ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-460830-00
DATE: 20130711
BETWEEN:
GREGORY DONOHUE and EXCLUSIVE ADVERTISING INC.
Plaintiffs
– and –
JOHN PIERCE also known as JOHN HOLLYWOOD PIERCE, CITY OF TORONTO and TORONTO PUBLIC LIBRARY
Defendant
Riaz S. Ahmed, for the Plaintiffs
John Pierce, in person
HEARD: June 21, 2013
T. Mcewen j.
reasons for decision
[1] The plaintiffs, Gregory Donohue (“Donohue”) and Exclusive Advertising Inc. (“Exclusive Advertising”), bring this motion pursuant to rule 60.11(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for a contempt order against John Pierce, also known as John Hollywood Pierce (“Pierce”), to enforce the Order of Roberts J. dated September 12, 2012 (the “Order”).
[2] The plaintiffs seek an order for imprisonment and substantial indemnity costs.
[3] Donohue filed an affidavit in support of the motion and Pierce filed a responding affidavit and voluminous materials.
background
[4] The plaintiffs brought an action against Pierce claiming, amongst other things, defamation, intentional interference with economic relations and punitive damages. The co-defendants, the City of Toronto and the Toronto Public Library, have been let out of the action and only Pierce remains as a defendant. The plaintiffs also brought a motion for an interlocutory injunction to prevent Pierce from posting defamatory statements and to require Pierce to remove all of his online defamatory postings involving the plaintiffs.
[5] The plaintiffs’ motion for an interlocutory injunction was heard by Roberts J. on September 12, 2012.
[6] Amongst other things, the Order by Roberts J. included the following:
(a) Gregory Donohue, Exclusive Advertising Inc. and John Pierce (hereinafter, the “Parties”) shall not publish or communicate to 3rd parties in any medium (other than in court filings) anything about each other;
(b) the parties shall remove any postings or publications or communications about each other from any public forum or medium over which they have control except for court filings; and,
(c) this order shall be without prejudice to any party’s position on or the outcome of the hearing and disposition of the plaintiffs’ motion and is subject to any further order of the court;
pierce’s actions since the date of the order
[7] Since the date of the Order, Pierce has continued to publish and communicate to third parties about Donohue.
[8] In particular, he has been communicating directly with Gary Pare (“Pare”) by email. The emails make derogatory comments about Donohue and reveal private information about him.
[9] By way of example, one such email reads as follows:
Hi Gary!!! I enjoyed talking to you on Wednesday morning!!! I would like to continue this conversation when you have more time!!! Very interesting!!! Well, one thing is for sure, Greg has done his usual and pieced you out with very little money every month, just enough to show an effort being made, if you ever take this case to court while he lives lavishly in King City and Marbella!!! If Greg hasn’t paid you within 10 years the amount you claim of over $350,000, chances are not in your favor (since the Exclusive Advertising contract runs out in October 2013) to get paid unless you pursue a criminal case against him!!! This proves Greg Donohue never had any intention of paying you your money in full from the beginning!!! Greg only response to pressure!!! Good luck!!! Thank you, John!!!
[10] Additionally, according to the uncontradicted affidavit evidence of Donohue, Pierce began contacting the media. Donohue deposed that he received a telephone call from Avery Haines, a reporter with CityNews. When Donohue became aware of this, he had his counsel contact Pierce to demand that he put an end to these communications.
[11] In a subsequent email, Pierce responded to the plaintiffs’ counsel as follows:
It Is None Of Your Concern Who I Communicate With In Any Manor Or Subject Matter!!! Any Information I Forward To Anyone Including Investigators Is My Prerogative!!!
[12] Further, Donohue’s affidavit evidence disclosed that Pierce has failed to remove the defamatory online postings that he has made on the following sites:
(a) Telerazor : http://www.telerazor.com/416-703/4
(b) Telerazor : http://www.telerazor.com/416-843
(c) Pissed Consumer: http://www.pissedconsumer.com/?option=com_search&itemid=38&searchword=exclusive+advertising+greg+donohue&go
(d) Pissed Consumer: http://www.pissedconsumer.com/?option=com_search&itemid+38&searchword=greg+donohue&go=
the contempt motion
[13] At the commencement of the motion, I discussed the seriousness of the matter with the parties. I specifically offered Pierce the opportunity to retain counsel (which he declined), as well as an opportunity to provide the court with viva voce evidence (which he also declined). Therefore, the contempt motion proceeded on the understanding that both sides would provide the court with oral submissions based on the filed materials.
[14] After the plaintiffs’ counsel completed his submissions, Pierce was offered an opportunity to respond. Pierce centered his submissions on the fact that he considered Donohue to be “a career criminal” and “a sociopath”. He went on to describe how he and Pare had been building a criminal and civil case against Donohue since at least 2008, but that he has not had any success thus far because Canada is “soft on cyber crime”.
[15] He then requested that I order an evaluation of Donohue by a psychologist.
[16] On a number of occasions, I attempted to have Pierce focus his submissions on the contempt motion before me, which dealt with his alleged breach of the Order.
[17] After acknowledging that his submissions had to be limited to the contempt motion before the court, he stated, “I am guilty” and “I am at your mercy”.
analysis
[18] A contempt motion is quasi-criminal in nature and the plaintiff has the burden of proving contempt beyond a reasonable doubt. The plaintiff must prove that the terms of the order are clear and unequivocal, that the defendant was aware of the terms of the order and that the order was disobeyed deliberately and wilfully: see Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; and College of Optometrists of Ontario v. SHS Optical Ltd. (2008), 2008 ONCA 685, 93 O.R. (3d) 139 (C.A.), at para. 71.
[19] In this case, the parties did not dispute that the terms of the Order were clear, that Pierce was aware of those terms and that he deliberately and wilfully disobeyed the Order.
[20] Pierce did not dispute that he communicated with Pare and CityNews, but rather, Pierce attempted to justify the communications based on what he described as Donohue’s “unlawful conduct”. As well, he did not dispute that he took no steps to remove the above-noted internet postings.
[21] Based on the evidence before the court, I find that the plaintiffs have established, beyond a reasonable doubt, that Pierce committed a contempt of court by deliberately and wilfully breaching the Order by communicating with Pare and CityNews, and by failing to remove the internet postings.
disposition
[22] For the reasons above, I find that the plaintiffs have established, beyond a reasonable doubt, that Pierce is in contempt of the Order as asserted in the motion brought by the plaintiffs.
[23] As discussed with the parties, the sentencing hearing will take place on August 28, 2013 at 361 University Avenue, Toronto.
[24] If the parties wish to file materials for sentencing, the materials shall be filed no later than August 17, 2013. Since a period of incarceration has been requested, I, again, suggest that Pierce retain counsel.
[25] Costs of the motions will be dealt with at the sentencing hearing.
T. McEwen J.
Released: July 11, 2013
COURT FILE NO.: CV-12-460830-00
DATE: 20130711
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GREGORY DONOHUE and EXCLUSIVE ADVERTISING INC.
Plaintiffs
– and –
JOHN PIERCE also known as JOHN HOLLYWOOD PIERCE, CITY OF TORONTO and TORONTO PUBLIC LIBRARY
Defendant
REASONS FOR DECISION
T. McEwen J.
Released: July 11, 2013