Court File and Parties
COURT FILE NO.: CV-07-542 DATE: 2016-04-11 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JULIE CRAVEN and JOHN CRAVEN, Plaintiffs AND: RICHARD CHMURA, Defendant
BEFORE: The Honourable Mr. Justice D. A. Broad
COUNSEL: Michael A. Jaeger, for the Plaintiffs Defendant self-represented
HEARD: April 16, 2015 ORIGINALLY DELIVERED ORALLY ON APRIL 17, 2015
Endorsement
[1]
Background
The plaintiffs Julie Craven and her father John Craven brought an action against a number of defendants including Richard Chmura for damages, including punitive and aggravated damages, for libel and intrusion upon seclusion, as well as for an interlocutory and permanent injunction. The action was dismissed as against the remaining defendants and as a result Richard Chmura remained as the sole defendant at the time of trial.
2The action concerned the publication on certain internet sites created, controlled and maintained by Richard Chmura of numerous statements disparaging of Julie Craven and John Craven as well as the posting on YouTube of certain videos containing depictions of and statements about the plaintiffs, accessed through links on Richard Chmura’s websites.
3The creation of the websites by Richard Chmura and the posting of the disparaging statements and videos followed upon extremely tragic circumstances involving the brutal killing of Julie Craven’s eight-year-old son Jared, the grandson of John Craven, by Julie Craven’s estranged husband Andrew Osidacz in March 2006. After he killed his son Jared Andrew Osidacz went to Julie Craven’s residence and held her hostage, using a butcher knife, for 45 minutes before he was shot and killed by the police before he could plunge the butcher knife into Ms. Craven’s neck.
4Richard Chmura was a brother-in-law to Andrew Osidacz, being previously married to Andrew Osidacz’s sister.
5Richard Chmura set up his websites in or prior to August, 2007 and began posting poems and other writings as well as videos which sought to vilify and humiliate Julie Craven and John Craven and other members of their family. Many of the statements appear to be designed to blame Julie Craven for the deaths of her son and Andrew Osidacz, to glorify Andrew Osidacz, and to seek to explain away and excuse his violent actions.
6The statements about Julie Craven and John Craven and the video depictions of them posted to Richard Chmura’s websites can only be described as despicable, heartless and outrageous. They included allegations or implications that Julie Craven and/or John Craven were guilty of extortion, insurance fraud, fraudulent fundraising activities and assault. In one of the videos Richard Chmura is heard to assert that Julie Craven is a victim of post traumatic stress disorder as a result of years of control and abuse by John Craven. Perhaps most alarming is the allegation that Jared was the biological son of John Craven as a result of an incestuous relationship between him and Julie Craven. The websites also sought to portray Julie Craven as an insincere and manipulative false victim. One of the videos depicted images of Julie Craven in juxtaposition with images of a witch from a Hollywood movie. There was no basis or support provided for any of the insulting, humiliating and outrageous statements made about Julie Craven and John Craven on the websites.
7Richard Chmura pleaded various defences to the action in to his Statement of Defence dated June 16, 2008. All of the defences, save for the defences of justification or truth and qualified privilege, were struck out by Justice Nightingale on a motion for summary judgment on March 28, 2013. Richard Chmura maintained the defences of truth and qualified privilege until he abandoned them partway through the trial.
8The action was tried with respect to the claims for libel and intrusion upon seclusion before a jury. For oral reasons I determined, as a question of law, that 30 statements that appeared on the websites maintained by Richard Chmura were capable of being libelous of Julie Craven and John Craven or one of them. A series of 90 questions relating to these 30 statements were included in the question sheet provided to the jury. The jury was also instructed that, in their discretion, they could choose to deliver a general verdict in respect of the claim in libel. I also found as a matter of law that two actions of Richard Chmura were capable of giving rise to a claim for intrusion upon seclusion, including the posting on his websites of a personal medication history of Julie Craven and a letter from Children’s Aid Society prior to Jared’s death mentioning Julie Craven’s name numerous times.
9The jury found for the plaintiffs on a general verdict for defamation and awarded both general and punitive damages against Richard Chmura in favour of each of Julie Craven and John Craven and awarded general and punitive damages against him in favour of Julie Craven for intrusion upon seclusion.
[10]
Permanent Injunction
The plaintiffs argue that, in addition to the award of damages pursuant to the verdict of the jury, a permanent injunction is necessary in order to protect them from further harm resulting from further false, damaging and defamatory statements and depictions about them being published by Richard Chmura by postings to the Internet or by other modes of communication.
[11]
The Legal Test
As observed by Justice Ellen MacDonald in 122164 Canada Limited o/a New York Fries v. C.M. Takacs Holdings Corp., 2012 ONSC 6338 (S.C.J.) at para. 31, it is not generally easy to obtain an injunction in response to a defamation claim since in a democratic society, freedom of speech is not so lightly cast aside. However, Justice MacDonald confirmed at para. 32 that the remedy of a permanent injunction is not impossible to obtain. A permanent injunction following findings of defamation may be ordered where either (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible. A number of cases were cited by Justice MacDonald in support of this test including Astley v. Verdun, 2011 ONSC 3651 (S.C.J.) at para. 21.
12It is evident that the nature of the defamatory statements, the extent of the past harm and the severity of the future harm which would ensue from any repeated publication of the defamatory statements are not relevant considerations on whether a permanent injunction should issue, as the jurisprudence now stands. If these were relevant considerations in law I would have no hesitation in ordering a permanent injunction on those grounds alone. It is difficult to conceive of more outrageous, despicable and harmful libelous statements than were published by Richard Chmura about Julie Craven and John Craven in this case. The publishing of the statements appear to have been calculated to inflict and prolong the maximum amount of suffering on a grieving mother and grandfather following the brutal and tragic death of a beloved son and grandson. The evidence indicated that the effect of the publication of the libelous statements has been devastating to both Julie and John Craven and in particular has prevented them from completing a healthy grieving process following the loss of Jared. The malicious, high-handed and oppressive conduct of Mr. Chmura in publishing the statements was reflected in the punitive damage awards made by the jury.
[13]
First Prong: Likelihood of Continued Publication
The first prong of the test does not require proof of a probability that the defendant will continue to publish defamatory statements despite the finding of liability, but rather a likelihood of such continuation is all that is required. Richard Chmura asserts that the award of damages against him will act as a sufficient deterrent and that he had earlier removed many of the statements from his websites and on the last day of the trial had begun the process of removing the websites from the internet.
14It is noted however that at no time has Richard Chmura offered any retraction or apology to Julie Craven or John Craven and in his final address to the jury he sought to justify the publication of the statements on the basis of what he asserted were objectionable statements made by Julie Craven about his children and other members of his family in a presentation made by her to a legislative committee in support of Bill 89, known as Jared’s Law in 2007, which was ultimately passed into law. It is also noted that he set up the websites while he was living in the United States and unsuccessfully sought to stay the action against him on the basis that the Ontario court had no jurisdiction over the matter. In his submissions to the court on the legal determinations Mr. Chmura indicated that he “will not stipulate attornment to this jurisdiction…and intends to bring a motion to set aside the withdrawal of his jurisdiction motion nunc pro tunc to May 15, 2008.”
15Mr. Chmura testified on cross-examination that when his internet service providers shut down his websites as a result of complaints from counsel for the plaintiffs he set up a mirror website in order to maintain their presence on the internet. As indicated previously, he maintained in his Statement of Defence that all of the statements were true up to and following the commencement of the trial and that the publication of the statements was protected by qualified privilege.
16These factors, in my view, point to a legitimate concern that Richard Chmura will continue his publication of defamatory statements despite the finding that he is liable to the plaintiffs for defamation. However I am not required to make a determination as to whether this concern has reached a level of likelihood as I find that the second prong of the test in New York Fries has been satisfied.
[17]
Second Prong: Real Possibility of No Compensation
The second prong of the test involves a lower standard than the first. All that is required is a real possibility, not a likelihood, that Julie Craven and John Craven will not receive any compensation.
18During submissions it became apparent that Mr. Chmura is not gainfully employed. There are three outstanding costs awards against Mr. Chmura in favour of the plaintiffs which remain unpaid, namely the sum of $2,500.00 pursuant to the Order of Justice Turnbull dated December 7, 2010, a further $2,500.00 pursuant to the Order of the Court of Appeal dated June 17, 2011 and $3,600.00 pursuant to the Order of the Court of Appeal dated April 22, 2014. In addition Justice Nightingale made an Order for costs dated December 21, 2012 in the sum of $3,500.00 against Richard Chmura in favour of a proposed witness Dave Levac on a motion to quash a summons to witness. It was indicated in submissions that this costs order also remains unsatisfied. Mr. Chmura submitted that he did not have the resources to pay the costs awards. He gave no indication of where and when he will obtain the resources to satisfy the outstanding costs awards, much less the damage award.
19A possibility means a chance that something will happen, and a real possibility connotes a possibility that is not speculative or lacking in support. It is axiomatic that past behavior can act as a indicator of future behavior. In my view Richard Chmura’s failure to pay the outstanding costs awards, dating back up to more than four years ago, provides a sufficient basis for a finding that there is a real possibility that Julie Craven and John Craven will not receive any compensation, given that enforcement against Mr. Chmura of the damage award may not be possible. The test for the issuance of a permanent injunction preventing any continued or repeated publication of libelous statements about Julie Craven and John Craven has therefore been satisfied.
[20]
Terms of the Injunction
Regarding the terms of the permanent injunction, the authorities indicate that it is appropriate for the order to restrain a defendant from disseminating, posting on the internet or publishing in any manner, directly or indirectly, any statements or comments about the plaintiff, not simply statements or comments which can be characterized as defamatory. See New York Fries at para. 37 and Astley at para. 35. The breadth of such an injunctive order is, in my view, warranted in this case to avoid the cost and other consequences of future litigation between the parties.
21To adopt the language of Justice Chapnik in Astley at para. 37 the defendant Richard Chmura has engaged in a campaign to discredit the plaintiffs. The jury has spoken. It is time for this vitriolic campaign to end. Richard Chmura must also understand that the consequences for deliberately failing to comply with a court order or disobedience of such an order may lead to proceedings for contempt of court.
[22]
Order
It is therefore ordered as follows:
a. The defendant Richard Chmura is enjoined from dissemination, posting on the Internet, distributing or publishing in any manner whatsoever, directly or indirectly, statements, comments, videos, pictures or depictions about or concerning the plaintiffs Julie Craven and John Craven. For further particularity, the defendant Richard Chmura shall not publish or cause to be published or otherwise disseminate or distribute in any manner whatsoever, whether by way of the Internet or other medium, any statements, videos, photographs or other communications which refer to the plaintiffs Julie Craven or John Craven by name, depiction or description;
b. A mandatory injunction shall also issue requiring the defendant Richard Chmura to remove the defamatory comments, statements, videos, and depictions respecting the plaintiffs Julie Craven and John Craven from any internet site on which he has posted them and any links to those sites.
D. A. Broad J.
Date: April 11, 2016