ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-311034

DATE: 20141126

BETWEEN:

ROBERT ASTLEY
Plaintiff

– and –

ROBERT J. VERDUN
Defendant

Brian N. Radnoff for the Plaintiff

Arnold Zweig for the Defendant

HEARD: November 18, 2014

Goldstein, J

REASONS FOR JUDGMENT ON SECOND CONTEMPT HEARING

[1] Once again, Mr. Verdun finds himself caught in a predicament of his own making. In May 2013 I found Mr. Verdun in contempt of court for violating an injunction issued by Madam Justice Chapnik in 2011. I sentenced him in October 2013. On November 18, 2014, I found Mr. Verdun in contempt of court for the second time for violating the sentencing order. These are my reasons for finding him in contempt a second time.

BACKGROUND

[2] Mr. Verdun has been on a campaign against Mr. Astley for many years. Mr. Verdun has an Ahab-like obsession with Mr. Astley. And, very much like Captain Ahab, this obsession has cost him dearly. Mr. Astley sued Mr. Verdun for libel and won a significant judgment in 2011. To simplify, I set out the key court dates and litigation events:

DATE

EVENT

• May 20, 2011

Jury Trial

Jury finds Mr. Verdun liable for libelling Mr. Astley; awards $250,000.00 in general damages and $400,000.00 in aggravated damages. The damages award has not been paid.

• June 14, 2011

Astley v. Verdun, 2011 ONSC 3651, 106 O.R. (3d) 792, [2011] O.J. No. 2727.

Chapnik J. issues wide-ranging permanent injunction. The injunction prohibits Mr. Verdun from communicating with anyone regarding Mr. Astley. Chapnik J. also issues a costs order of $215,919.32 payable by Mr. Verdun forthwith. The costs award has not been paid.

• June 6, 2011

Mr. Verdun files a Notice of Appeal in respect of the jury’s verdict and damages award.

• July 12, 2011

Mr. Verdun files a Supplementary Notice of Appeal dealing with the injunction issued by Chapnik J.

• Sept. 7, 2011

Handwritten endorsement.

Jurianz J.A. orders Mr. Verdun to post $25,000.00 as security for costs for the appeal. He also awards $2,500.00 in costs payable by Mr. Verdun. The costs award has not been paid.

• Oct. 28, 2011

Handwritten endorsement.

Deputy Registrar of the Court of Appeal dismisses Mr. Verdun’s appeal of the jury verdict for failure to order transcripts. The Deputy Registrar awards $750.00 in costs payable by Mr. Verdun. The costs award has not been paid.

• April 18, 2012

Handwritten endorsement.

Panel of the Court of Appeal upholds the Deputy Registrar’s decision. The panel awards $3,000.00 in costs payable by Mr. Verdun. The costs award has not been paid.

• Oct. 4, 2012

Astley v. Verdun, [2012] S.C.C.A. No. 268.

Supreme Court of Canada dismisses Mr. Verdun’s application for leave to appeal the Court of Appeal’s decision.

• May 23, 2013

Astley v. Verdun, 2013 ONSC 2998, [2013] O.J. No 2365.

I find Mr. Verdun in contempt of court for violating Chapnik J.’s order.

• Oct. 29, 2013

Astley v. Verdun, 2013 ONSC 4942, 118 O.R. (3d) 43, [2013] O.J. No. 4942.

I sentence Mr. Verdun to the equivalent of a conditional sentence and probation. I award $24,377.41 in costs payable by Mr. Verdun. I am unaware whether this award has been paid.

• Nov. 29, 2013

MacPherson J.A. of the Court of Appeal stays the sentencing order pending appeal.

• Sept. 24, 2014

Astley v. Verdun, 2014 ONCA 668.

The Court of Appeal hears Mr. Verdun’s appeal and dismisses it the same day. Extends stay of my sentencing order to the end of the day on September 29, 2014.

• Sept. 29, 2014

Stay of sentencing order expires.

• Nov. 18, 2014

Handwritten endorsement,with reasons to follow.

I find Mr. Verdun in contempt of court for failing to abide by the terms of the sentencing order dated October 29, 2013.

[3] Mr. Verdun was not permitted to leave Ontario during the currency of the conditional sentence. The stay of the sentencing order expired at the end of the day on September 29, 2014. Mr. Verdun was required to be in the province by the end of that day. He was not.

[4] How was it that Mr. Verdun was out of Ontario on September 29, 2014?

[5] On November 20, 2013, Mr. Verdun appealed my contempt finding and the subsequent sentencing order. He was within the one-month period for filing a notice of appeal, as my order was dated October 29, 2013. MacPherson J.A. issued a stay of the sentencing order shortly after that, on November 29, 2013. As a result, Mr. Verdun was not bound by the terms of my sentencing order between November 29, 2013 and September 29, 2014.

[6] On January 13, 2014 Mr. Verdun booked a ticket on British Airways using points for himself and his companion, Nuala Freund. Mr. Verdun and Ms. Freund were to travel, Club Class, from Toronto to Barcelona, Spain, on September 15, 2014. They were then to fly from Barcelona to London, U.K., on October 7, 2014, also Club Class. They were then scheduled to travel from London to Toronto, First Class, on October 12, 2014.

[7] On June 26, 2014, Mr. Verdun’s appeal was scheduled to be heard on September 29, 2014. Mr. Verdun was to be out of the country when the appeal was heard.

[8] The Court of Appeal dismissed his appeal on the day that it was heard. The panel issued a short endorsement. I am informed that counsel advised the panel that Mr. Verdun was out of the country and asked that they stay of the sentencing order be extended. The Court of Appeal extended the stay for five days. Mr. Verdun did not return to Ontario before the end of the day on September 29, 2014. In fact, Mr. Verdun did not change his return flight. He and Ms. Freund flew from Barcelona to London on October 7, 2014, as scheduled. They also flew from London to Toronto on October 12, 2014, as scheduled.

[9] Mr. Verdun states in his affidavit that Ms. Freund has a debilitating back condition. She is in constant pain but unable to take medication for it. He says that he is financially dependent on Ms. Freund, while she is dependent upon Mr. Verdun for physical assistance. According to Mr. Verdun, the trip to Europe was booked so that Ms. Freund could try various back therapies. There was an appointment in France to investigate “a unique type of therapy” for back pain; there was therapeutic swimming at a friend’s home in France for 10 days; and there was an osteopath appointment in London. Mr. Verdun did not explain the purpose of the visit to Barcelona.

[10] Mr. Verdun did say that he attempted to change his flight with British Airways, but had no success. He says he made five phone calls, but that to change the flights would have cost almost $15,000.00, if seats were available. Accordingly he did not change his flight and came back as scheduled on October 12, 2014, two weeks after he was required to be in Ontario.

ISSUE

[11] There is no question that Mr. Verdun breached the sentencing order. There is also no question that Mr. Verdun knew that by failing to return to Ontario by the end of the day on September 29, 2013 he would be in breach of the sentencing order. The sole issue, therefore, is whether he intentionally did so.

ANALYSIS

[12] The crux of Mr. Verdun’s position is found in paragraphs 12 and 13 of his affidavit:

12. … in that email Ms. Biggar [Mr. Verdun’s appellate counsel] did not indicate to me that it was imperative that I had to return regardless of cost and regardless of any other circumstances.

13. I did respond providing her the information she requested… I took it from that exchange of correspondence that I should investigate how we could make it back but, if we did not, I truly did not think that I could be found in contempt. I thought that if I made reasonable efforts to return as soon as possible to complete the sentence that would be acceptable.

[13] In other words, Mr. Verdun felt that he did not need to actually comply with the order. He merely needed to make what he deemed reasonable efforts to comply with the order.

[14] Mr. Verdun’s understanding of the law is flawed. The elements of civil contempt are knowledge of the order and intentional commission of an act that is prohibited by it: Laiken v. Carey, 2013 ONCA 530, 116 O.R. (3d) 641, 367 D.L.R. (4th) 415 at para. 57-58. The fact that the contemnor did not intend to act contemptuously is irrelevant. As long as he or she intentionally committed the act prohibited by the order (or failed to do something required by the order) that is enough for a finding of contempt: Sheppard v. Sheppard (1975), 1976 710 (ON CA), 12 O.R. (2d) 4 (C.A.) at p. 8.

[15] The court must be satisfied beyond a reasonable doubt that both elements have been proven. In my view, they have. I am satisfied beyond a reasonable doubt that Mr. Verdun was aware that he was required to be in Ontario by the end of the day on September 29, 2014. He admits as much in his affidavit.

[16] I am also satisfied beyond a reasonable doubt that Mr. Verdun wilfully and intentionally failed to comply with the order. A party must obey a court order in both letter and spirit: Ceridian Canada v. Azeezodeen, 2014 ONSC 3801.

[17] I find that Mr. Verdun’s attempts to comply with the sentencing order were not genuine. They were simply designed to show that he had done something, anything. The fact that the attempts were ineffective was irrelevant, at least to him. I make these findings for the reasons set out:

Mr. Verdun Deliberately Risked Violating The Sentencing Order

[18] Mr. Verdun booked the trip to Europe in January 2014. In June 2014 the Court of Appeal set down his appeal for September 24, 2014. He knew that he would be away when the appeal was heard. He took no meaningful steps to change his trip so that he would not be out of the country when the Court of Appeal heard his appeal. He explained that his counsel had advised him that the Court of Appeal would likely reserve until after the Supreme Court heard the appeal in Carey v. Laiken, which is scheduled for December 10 of this year.

[19] I do not find that explanation persuasive:

• I doubt very much that Mr. Verdun’s able appellate counsel did not also warn Mr. Verdun that the appeal could be dismissed from the bench.

• Perhaps more importantly, Mr. Verdun has personal experience with the Court of Appeal. On two occasions before that Court he has represented himself. On both of those occasions the Court of Appeal heard and dismissed his appeal on the same day: Astley v. Verdun, 2008 ONCA 728; Astley v. Verdun, an unreported decision of the Ontario Court of Appeal dated April 17, 2012.

• Mr. Verdun’s appeal of my original contempt order and sentence did not raise any significant or important issues that needed to wait until the resolution of Carey v. Laiken. The Supreme Court of Canada might have taken months, or even a year, to render a decision in that case, which means that the Court of Appeal could have had Mr. Verdun’s appeal under reserve for a very long period indeed. It is hard to understand why Mr. Verdun, who is a very intelligent man, thought that the Court of Appeal would do that.

[20] Mr. Verdun further states in his affidavit:

9. I made the assumption that it would be all right to return to Canada on October 12, 2014. No one advised me specifically whether or not that was an improper assumption.

[21] It is not clear to me why Mr. Verdun required advice that he was risking non-compliance with the sentencing order. Mr. Verdun had a great deal of experience litigating on his own behalf. He has only lately seen that having a professional advocate is a great advantage. Mr. Verdun also has extensive professional experience of his own as a journalist, editor, and corporate governance advocate (although in a highly quixotic manner). He is a sophisticated person. Nobody needed to tell him he was taking a risk. He knew it, or should have known it. Even without advice, the risk was obvious.

[22] When Mr. Verdun learned that he would be away he cavalierly decided that he would not take steps to re-schedule his trip. There is no evidence that he attempted to make arrangements for Ms. Freund to take the trip with a different friend who could have assisted her. His action – or inaction – is inconsistent with a genuine attempt to obey the sentencing order in letter and spirit. It is consistent with a thumbing of the nose at the court’s process. Mr. Verdun’s thumbing of the nose on this occasion is also consistent with his behaviour towards the court on other occasions.

Mr. Verdun Took No Meaningful Steps To Comply With The Order Once He Learned That The Stay Was Lifted

[23] Mr. Verdun was in Uzes, France on September 25, 2014. Apparently he drove a rental car from Barcelona to Uzes so that Ms. Freund could engage in therapeutic swimming at a friend’s house. It is a four-hour drive from Barcleona to Uzes. Mr. Verdun provides no information as to Ms. Freund’s ability to make a four-hour drive. He noted that there was an Air France pilot’s strike that ended on September 28, 2014 but that air travel was in total chaos for a few days.

[24] Mr. Verdun described what he did when he learned that the Court of Appeal had given him five days to return to Canada:

16. I made five telephone calls to British Airways to try to change the flights, but had no success because no reward seats were available. In each case, I asked to speak to a supervisor, but was unable to obtain any exceptions for our booking made on points. I looked up the amount of the cost to purchase, and found it to be almost $15,000.00, if seats were available.

[25] Essentially, Mr. Verdun decided that since it would cost $15,000.00 for him and Ms. Freund to return to Canada flying Club Class or First Class on British Airways they would just stay in Europe and complete their sojourn.

[26] In fact, the cost for Mr. Verdun to return early on Club Class or First Class on British Airways would have been $7,500.00, assuming that his information was correct – which I doubt, as I deal with later in these Reasons. I infer that $15,000.00 was the cost of tickets for himself and Ms. Freund.

[27] It is unclear to me why Mr. Verdun had to fly Business Class or Club Class specifically on British Airways. Were there no other means to return to Canada? Was it really impossible for Ms. Freund to travel without Mr. Verdun? While Mr. Verdun does state that Ms. Freund relies extensively on him, and I am prepared to believe him, nowhere in his affidavit does he state that it is impossible for Ms. Freund to travel without him. I do not need to take judicial notice to point out that it is common knowledge that unaccompanied minors and disabled people travel without companions all the time. It is also common knowledge that airlines provide extensive assistance to those travelling in the stylish – and expensive – atmosphere of First Class.

[28] I note that Mr. Verdun has unpaid costs damages awards and costs awards totalling almost $900,000.00 – and this amount that I am aware of before interest, I suspect that the amount may be higher. It is puzzling to me how he was able to take a first-class vacation to Europe but suddenly became concerned about the cost of returning when it seemed he might be required to cut short his stay.

[29] Furthermore, did Mr. Verdun’s ability to use the Internet to book travel suddenly desert him? He and Ms. Freund were travelling on an electronic ticket. It appears that he booked it online. I draw the inference that he did so. Even if he did not, it is simply inconceivable in 2014 that any adult person of Mr. Verdun’s age, knowledge and experience is unable to search for flights from Europe to Canada online. He clearly had access to a computer when he was in Europe as he corresponded with his counsel by email. Even if I am wrong about his ability to book travel online, there was nothing to stop him from walking into a travel agency and making inquiries. Nothing, that is, except his indifference to doing so.

[30] Mr. Verdun’s few desultory phone calls to British Airways was not a meaningful attempt to comply with the sentencing order. I utterly reject his explanation. I conclude that he made an empty gesture, nothing more.

There Were Many Opportunities To Return In A Timely Manner

[31] Mr. Astley’s counsel set out numerous methods by which Mr. Verdun could have returned to Canada in the five days that were available to him to do so. He could have flown from Montpilier, France to London for between $378 per person and $978 per person. Ms. Freund’s London osteopath appointment could have been rescheduled easily. From London, Mr. Verdun and Ms. Freund could have flown to Toronto for as little as $959 per person. Alternatively, Mr. Verdun could have taken the train from Nimes, France (which is near Uzes) to Paris. That high-speed train takes 2 hours and 55 minutes. From Paris it is another high-speed train ride to London. Although Mr. Astley’s counsel did not research this, Mr. Verdun could, undoubtedly, have driven back to Barcelona as he originally planned and caught a flight from Barcelona to London or some other transit destination in Europe and thence to Toronto, if no direct flight was available. Although there is no evidence one way or the other, I seriously doubt that doing so would have cost more than $7,500.00.

[32] Mr. Astley’s counsel also investigated Mr. Verdun’s claim that to change his flight would have cost $15,000.00. According to her affidavit, the change fee was less than $100.00 to change a points flight. As well, the points could have been used on a British Airways partner airline, such as American Airlines, if no reward seats were available on a British Airways flight. If only economy seats were available, the difference in reward points was refundable.

Conclusion

[33] No doubt visiting Spain, France, and the United Kingdom was very pleasant for both Mr. Verdun and Ms. Freund. Certainly it is to be hoped that the therapeutic swimming in France helped Ms. Freund’s back troubles. It is also to be hoped that the osteopath in London – who, according to Mr. Astley’s counsel’s affidavit, could have readily and easily changed Ms. Freund’s appointment – also helped. It is unclear to me whether the visit to Barcelona was related to Ms. Freund’s back troubles. Mr. Verdun’s affidavit is silent on that point. I could assume that he and Ms. Freund perceived some therapeutic value simply in a visit to a beautiful and dynamic European city, but I think it much more likely that they were simply on vacation.

[34] In his affidavit Mr. Verdun states that it was always his intention to return to Canada and complete his conditional sentence. I believe Mr. Verdun in that regard. I do not doubt that he planned to return. I also do not doubt that he was only going to return when he was good and ready, and when it suited him and Ms. Freund and when his vacation was over. Whether or not he had to comply with the sentencing order was, at best, a minor consideration. He did not comply with the order either in letter or in spirit.

DISPOSITION

[35] For the second time in this proceeding, Mr. Verdun is found guilty of contempt of court. His sentencing hearing will take place on December 5, 2014. The issue of costs is reserved until that day.

Goldstein, J

Released: November 26, 2014

COURT FILE NO.: CV-311034

DATE: 20141126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT ASTLEY
Plaintiff

– and –

ROBERT J. VERDUN
Defendant

REASONS FOR JUDGMENT

Goldstein, J

Released: November 26, 2014