Court File and Parties

COURT FILE NO.: CV-14-502946 DATE: 20170313 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

SENATOR TOBIAS ENVERGA JR., Plaintiff

• a nd -

BALITA NEWSPAPER, BALITA MEDIA INC., TESS CUSIPAG, ROMEO P. MARQUEZ (a.k.a. Romy Marquez) and CARLOS PADILLA, Defendants

BEFORE: F.L. Myers J.

COUNSEL: Howard W. Winkler and Eryn Pond for the plaintiff James H. Chow for the defendants Tess Cusipag, Balita Newspaper, and Balita Media Inc.

HEARD: March 8, 2017

Endorsement

The Motion

[1] The plaintiff moves for an order finding Tess Cusipag, Balita Newspaper, and Balita Media Inc. (the “Media Defendants”) in contempt of the injunction granted by Mr. Justice Lederman dated July 13, 2016. At the conclusion of the hearing, I endorsed the motion record as follows:

For reasons to be delivered in the near future, I am satisfied beyond a reasonable doubt that the “Media Defendants” defined in the plaintiff’s notice of motion have committed criminal contempt as alleged. I write this now so as to give the Media Defendants fair warning that the order of Lederman J. remains binding on them and is to be obeyed in letter and in spirit. Sentencing will be scheduled at a case conference to be held after my reasons are released. I make no further order today. There is no need to do so given the continued validity of Justice Lederman’s order.

The Injunction

[2] Tess Cusipag is the owner of Balita Media Inc. which publishes the largest Filipino newspaper servicing the GTA and Hamilton under the banner Balita Newspaper. Ms. Cusipag is the publisher and the editor of the newspaper.

[3] By Judgment dated July 13, 2016, Lederman J. granted summary judgment in favour of the plaintiff for libel. He held the Media Defendants liable to pay the plaintiff $150,000 for general and aggravated damages, $100,000 for punitive damages, interest, and costs. By endorsement dated September 23, 2016, Lederman J. held that the plaintiff was entitled to costs on a substantial indemnity basis that he fixed at $90,000.

[4] In addition to awarding very substantial damages and punitive costs, Lederman J. also granted the following injunction:

2. THIS COURT ORDERS AND ADJUDGES that a permanent injunction is granted enjoining the Media Defendants directly and indirectly, from publishing and/or broadcasting, or encouraging or assisting others to publish or broadcast any statements in any manner whatsoever which in their plain or ordinary meaning or by innuendo suggest:

3. In relation to fundraising activities for Kalayaan Cultural Community Centre (“KCCC”), Senator Enverga committed criminal fraud;

4. That by virtue of Senator Enverga’s involvement in fundraising activities for KCCC in 2001 and by virtue of his statements in relation to the charitable status of the Philippine Canadian Charitable Foundation, he is a pathological or biological liar.

[5] In explaining his decision, at para. 33 of his Reason for Judgment, reported at 2016 ONSC 4512, Lederman J. held:

In the end, the defendants have no reliable evidence to prove the truth of the $6,000 fraud allegation or the PCCF donation/tax credit allegation. In fact, Cusipag admitted on discovery that it is not true that Senator Enverga committed a fraud in relation to fund raising activities and that the PCCF allegations are false.

[Emphasis added.]

[6] In addition, at paras. 47 and 48 of his reasons for Judgment, Lederman J. held:

[47] Cusipag vows to continue to make defamatory statements against the plaintiff and has shown no interest in stopping her efforts or refraining from misconduct. In 2010, after Senator Enverga was elected as a Catholic school board trustee, he arrived late to a press event held by Cusipag. She published a warning to Senator Enverga. “First off is to respect the press who can wield its power to make or break you.” In the Article and on her Facebook page, she is fulfilling the threat that she made against the plaintiff in 2010 that she would destroy him.

[48] Cusipag was motivated by malice. She obviously holds a deep seated resentment towards Senator Enverga. She used his comments to the Philippine press as a springboard to vent her unfounded allegations in the published Article and her Facebook to intentionally besmirch Senator Enverga’s reputation in the Filipino-Canadian community.

[7] Justice Lederman discussed his decision to grant the injunction as follows:

[51] Although rare, permanent injunctions have been ordered after findings of defamation where there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that the defendant is liable to the plaintiff for defamation, absent an injunction restraining the defendant from doing so: Astley v. Verdun 2011 ONSC 3651 at para. 21; St. Lewis v. Rancourt 2015 ONCA 513 at paras. 13-16.

[52] Here, there is an ongoing concern that the defendants will continue to publish defamatory statements about Senator Enverga. They have engaged in a persistent campaign to injure Senator Enverga and ruin his reputation and have done so with malice. They have refused to apologize and they have given no indication that they are prepared to stop their irresponsible defamatory attacks. In these circumstances, a permanent injunction will go…

[8] The defendants are appealing Justice Lederman’s damages award to the Court of Appeal for Ontario. They are not appealing from the findings of liability that Lederman J. made against them.

The Scope of the Injunction

[9] The Media Defendants are enjoined from:

a. directly and indirectly;

b. publishing and/or broadcasting or assisting others to publish or broadcast in any manner whatsoever;

c. words that have a defined “plain or ordinary meaning” or which suggest the defined meanings by way of “innuendo.”

[10] The defined meanings that the Media Defendants are prohibited from publishing or encouraging or assisting others to publish, directly or indirectly, are words that mean or by innuendo suggest that Senator Enverga “committed criminal fraud” in connection with fundraising for KCCC or that he is a “pathological or biological liar” by virtue of statements in relation to the charitable status of another charitable entity.

Proof of Contempt of Court

[11] The parties agree on the three-part test to establish contempt of court:

a. the order must state clearly and unequivocally what should or should not be done;

b. the party alleged to have breached the order must have had actual knowledge of it; and

c. the party alleged to have breached the order must have intentionally done the prohibited act.

Carey v Laiken, 2015 SCC 17, at para. 32

[12] Both sides agree that paragraph 2 of Justice Lederman’s judgment is clear. Mr. Chow’s first substantive submission to the court was that, “[t]he wording of Justice Lederman’s order is clear; particularly paragraph 2.” At paragraphs 4 and 5 of his factum, Mr. Chow lists a number of findings made by Justice Lederman concerning the false and defamatory words published by the Media Defendants in an article published in the Balita Newspaper and in a posting on Ms. Cusipag’s Facebook page. All of the findings, Mr. Chow argues, relate to criminality or the accusation that the plaintiff is a pathological or biological liar. He argues that unless those two elements were repeated by the Media Defendants, they cannot have committed a breach of Justice Lederman’s judgment.

[13] Mr. Chow argues, correctly in my view, that the power to punish for contempt of court is not to be used as a routine enforcement tool. Moreover, as the last remaining common law crime, contempt must be proven beyond a reasonable doubt. That means, all doubts must be resolved in favour of the accused contemnor.

[14] In discussing the article and Facebook posting that were the subject matter of the motion before him, Justice Lederman found that those two publications contained the prohibited meanings. At paragraph 22 of his Reasons for Judgment, Lederman J. wrote:

There is no doubt that the words complained of, read as a whole and in their entire context, accused Senator Enverga of criminal fraud; imply that Senator Enverga falsely represented that PCCF was a charity that could issue tax receipts for donations; and called him a biological and pathological liar.

[15] That is, whether new words, different words, or other words might contain the prohibited meanings, the one set of words that offend, without any doubt, are the initial published article and Facebook posting that were the subject matter of the summary judgment motion.

[16] The plaintiff relies on a number of publications made by the Media Defendants since the judgment to try to establish that the Media Defendants have breached the injunction. I agree with Mr. Winkler’s submission that to establish a breach of the injunction, the plaintiff does not have to look beyond Ms. Cusipag’s re-assertions of the truth of the original publications and of the defendants’ position at the summary judgment motion. I do not have to decide whether other formulations of words carry or suggest the prohibited meanings. Justice Lederman told the parties with clarity that the initial article and Facebook posting carried both of the prohibited meanings. Accordingly, the reassertion of the truth of those publications or of the defendants’ position before Ledermen J. is necessarily a statement carrying the prohibited meanings by plain and ordinary meaning, innuendo, and res judicata. That is, the injunction is both clear and unequivocal in prohibiting, at minimum, re-publication of statements that assert the truth of the allegations in the article and Facebook posting that Ms. Cusipag admitted were false and which the court found were false. I find that Ms. Cusipag and therefore the Media Defendants knew that para. 2 of the Judgment meant that they were enjoined from repeating the allegations in the article and Facebook posting that were before Justice Lederman as he held expressly that they carried the defined meanings set out in para. 2 of the injunction.

The Media Defendants’ Post-Judgment Publications

[17] The Media Defendants disseminated an email dated October 6, 2016, under the subject line:

This is the truth, the two witnesses were both dead and Cantos testimony came late but Enverga pinned it on me. But the truth is the truth.

[18] The email forwards to third parties an email exchange between Ms. Cusipag and a Correspondent with Journal Globalinks. Ms, Cusipag attached to her email to the Correspondent an Affidavit of Willie Cantos that Lederman J. had ruled inadmissible.

[19] In the email exchange, Ms. Cusipag re-asserted the truth of the defendants’ position before Justice Lederman. She was explaining to the GlobalLinks media Correspondent that they were unable to prove the truth of their articles because two of their witnesses had died and the Cantos affidavit was not admitted into evidence.

[20] The GlobalLink’s correspondent then asked Ms. Cusipag, “Why did you lose the case?” Ms. Cusipag responded as follows:

Simply because the witnesses were dead…this affidavit was obtained because of that but it was too late. I am trying to disseminate this to all our contacts, Community knows the truth here.

Carlos was so engrossed in getting him to be held accountable while he was alive.

Enverga I thought would stop when Carlos died of stress, but he did not and instead blamed me for everything. They filed a motion for summary judgment against me

WE showed email exchanges that would prove our case and that was the reasons why Enverga broke down in court. From that he knew he lost for sure, but I was shocked when the verdict came out.

They all said that there was another hand that worked on the judges etc. May Karma get to them both. His lawyer and the judge are both jews.

But thank God, people are reacting, Balita is gaining more support against him.

During the launching of Mabuhay Park, one of the officers of Taste of Manila told the politicians that Enverga is not wanted and asked to disinvite him and they did. Counsellor Pasternak we were informed told him straight that the Filipinos did not want him there.

Also the Mayor of Toronto assistant did the same, so during the launching, he was dressed in barong, still came, but ignored completely by the politicians. No acknowledgment, nothing…what a slap in the face.

After the program, he went on stage and asked if he could join them for the photo op, and that is what he has on his website. [Emphasis added.]

[21] In her cover email forwarding this email exchange to others, including at least one member of the Senate of Canada, Ms. Cusipag wrote:

Please help me disseminate the truth out there. I have permanent injunction. I am asking all our contacts all over the world for the truth to come out.

[22] The October 6, 2016 emails set out above show that Ms. Cusipag was continuing her efforts to besmirch the plaintiff’s reputation by repeating and re-asserting the truth of the same falsehoods that were the subject of the injunction. The words that I emphasized above establish clearly that:

a. The Media Defendants were expressly trying to disseminate their message;

b. The message being disseminated was that their allegations before Lederman J. were true;

c. They lost before Lederman J. because of the effect of the unseen hand of conspiracy rather than a just holding on the admitted facts and the applicable law.

[23] In addition, the cover email by which the email exchange was further disseminated to the third party Senator and others leaves no doubt that Ms. Cusipag and the Media Defendants were aware of the injunction. She mentioned it expressly. Moreover, she deliberately and directly engaged in an effort to both publish and encourage others to publish the message that the allegations ruled libelous by Lederman J. were true.

[24] As noted above, by re-asserting the truth of their claims from the hearing, the Media Defendants were re-asserting words that Lederman J. found to carry the enjoined meanings at para. 22 of his Reasons for Judgment

[25] The case law is clear that to prove intent for the purpose of contempt of court, one need show only that the prohibited act was done intentionally. It is not necessary to go further to show a “contumacious intent” - that the act was done with the specific purpose of breaching the court order. Carey, at para. 29. Yet here, in her own words, Ms. Cusipag makes her contumacious intention plain. She not only deliberately made the statements, she did so intending to violate the court order by encouraging others to publish her statements globally because she was enjoined from doing so.

[26] On December 3, 2016, the Media Defendants circulated another email. This one attached an article written by the defendant Marques. He was also the author of the article that was found to be defamatory by Justice Lederman. The new article specifically discusses the same fundraising event and quotes one of the dead alleged witnesses as saying that the plaintiff had no intention to pay to the charity the $6,000 raised at the fundraising event and that he kept the funds. These facts are expressly listed in paras 4 and 5 of Mr. Chow’s factum as among the facts that Lederman J. specifically found to be false and defamatory as carrying the prohibited meanings.

[27] Finally, the plaintiff points to online comments made by Ms. Cusipag in August 5, 2016 in relation to an article on the online news outlet Philippine Canadian News.com. The article reported on the result of the summary judgment motion and made specific mention of Justice Lederman’s holdings on the two key points – the allegation concerning the plaintiff’s fundraising for KCCC and the allegation that he is a pathological or biological liar. In her online comments, Ms. Cusipag wrote:

Just because our witnesses died does not mean that we wrote and published false reports. Balita will continue to publish the truth., [sic] There is no price tag for integrity, principle, and fairness. We vow to fight for those beliefs and defend them till [sic] we die.

[28] In this comment, Ms. Cusipag denied the falsity and re-asserted the truth of the publications that were the subject of Justice Lederman’s findings. She continued her theme that they only lost because witnesses had died. She ignored Justice Lederman’s finding that she admitted the falsity of both of her allegations during her examination for discovery. Be that as it may, this online comment is another breach of the injunction. Ms. Cusipag once again asserted the truth of the allegations that Lederman J. found to carry the prohibited meanings. Her vow to continue to do so leaves no doubt about her intention in making these statements.

Additional Arguments of the Media Defendants

[29] Mr. Chow invited the court to recognize a dichotomy between words that speak about the plaintiff’s fundraising and words which assert that he has committed “criminal fraud” in his fundraising activities. The former, he argues, remain open to the Media Defendants to discuss. It is only the latter that are expressly prohibited by the injunction. That is true. But that does not mean that the Media Defendants can write or say anything as long as they do not use the specific words “criminal fraud” or “pathological or biological liar.” That argument ignores the words “by innuendo suggest” that are equally prohibited in the injunction. Moreover, as discussed above, while in some cases there could be a question as to whether an innuendo has been made out, here no such issue exists. Justice Lederman told the Media Defendants throughout his Reasons for Judgment and in para. 22 specifically, that the initial article published by Balita and the Facebook posting on Ms. Cusipag’s Facebook page carried the defamatory meanings. In the new publications discussed above, the Media Defendants repeated those very libels by re-asserting their truth and the truth of their position at before Justice Lederman.

[30] The Media Defendants rely on a decision of Belobaba J. in Quenneville v Volskwagen, 2016 ONSC 4607. In that case, the alleged contemnors were prohibited from soliciting clients for a specific class action. Justice Belobaba found that the order was not specific until it was amended after the impugned contemptuous acts. In addition, the acts themselves had some element of ambiguity or equivocation in them. Therefore, Belobaba J. found that while the acts were careless and unprofessional, he could not find that they amounted to breach of a clear order beyond a reasonable doubt.

[31] Mr. Chow argues that even if the Media Defendants’ new publications were careless and unprofessional, the court should be equally unable to find them to amount to a breach of Justice Lederman’s order beyond a reasonable doubt. I do not see the cases as equivalent. There is nothing equivocal either in the injunction granted or in the Media Defendants’ conduct in this case. I see no room for doubt that, good to their word, the Media Defendants have repeated and encouraging other to publish the very same allegations that they admitted to be false and were found to be false by Justice Lederman and which they knew they were enjoined from re-publishing.

[32] Mr. Chow points to the concluding paragraph in Mr. Marques’ new article (which is referred to in para [26] above) in which Mr. Marques concludes:

It is not the intention of this essay to challenge the wisdom of the the [sic] judge in reaching his decision. All it is is [sic] to call attention to the practice of Enverga’s loyal followers to engage in some fact-twisting.

[33] Mr. Chow argues that this shows that Mr. Marques did not intend to commit contempt of court. This argument confuses contumacious intent with the intent to commit the prohibited act. While Mr. Marques may not have acted with the purpose of showing disrespect toward Justice Lederman’s order, Ms. Cusipag intentionally published statements containing words that she knew were false and which she knew she had been enjoined from re-publishing directly, indirectly, or by encouraging others to do so. It is no defence that the initial author of the words re-published by the Media Defendants disavowed holding a contumacious intent.

[34] I am satisfied that the plaintiff has proven beyond a reasonable doubt that the Media Defendants committed all three elements of the test for contempt of court. The injunction in para. 2 of the Judgment dated July 13, 2016 states clearly and unequivocally what was prohibited. The Media Defendants had actual knowledge of the injunction and intentionally did the prohibited acts.

Criminal v. Civil Contempt

[35] Finally, as noted in my handwritten endorsement repeated above, the category of contempt of court involved in this case is plainly criminal contempt. The distinction between civil contempt and criminal contempt was discussed by the Supreme Court of Canada in United Nurses of Alberta v. Alberta (Attorney General). Speaking for the majority of the Court, McLachlin J. (as she then was) wrote:

…A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. This distinction emerges from Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, at p. 527, per Kellock J.:

The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or a trade‑mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn. [Emphasis added.]

What the courts have fastened on in this and other cases where criminal contempt has been found is the concept of public defiance that "transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole": B.C.G.E.U. v. British Columbia (Attorney General), supra, at p. 237, per Dickson C.J., Lamer, Wilson, La Forest, and L'Heureux‑Dubé JJ. concurring. The gravamen of the offence is not actual or threatened injury to persons or property; other offences deal with those evils. The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court.

[36] Here, the Media Defendants’ conduct includes the “open, continuous and flagrant violation” discussed by Chief Justice McLachlin. Ms. Cusipag was clear and express in her desire to spread her world globally and to enlist the aid of others in the media, and public figures, such as members of the Senate of Canada, to do so despite the court’s injunction. Her statements indicated that the initial defamatory article and Facebook posting were true but were not accepted by the court due to the death of witnesses and an unseen conspiratorial hand that undermined the legitimacy of the judge’s ruling. This is not conduct akin to failing to attend an examination for discovery or breach of a patent injunction that is limited in its intention and effect to the private rights of the immediate parties. The Media Defendants are continuing an avowed, malicious, very public quest to destroy the plaintiff’s reputation in face of and despite an order of the Superior Court of Justice. As Chief Justice Dickson wrote, their conduct “transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole."

[37] I therefore find Tess Cusipag, Balita Newspaper, and Balita Media Inc. guilty of criminal contempt of court. Costs are reserved to sentencing. Counsel are to arrange a date for a Case Conference with my Assistant to discuss the scheduling of a sentencing hearing.

The Media Defendants have an Opportunity to Purge their Contempt

[38] At the opening of the hearing, Mr. Chow expressly dissociated himself from his clients’ racist slur aimed at Mr. Justice Lederman and Mr. Winkler. He advised that his clients now understand that such hateful statements are wholly inappropriate. It strikes me that this is a first and welcomed step toward purging the Media Defendants’ contempt. The court encourages the Media Defendants to take further steps to purge their contempt so as to demonstrate concretely and completely their respect for the orders of the Superior Court of Justice and bring this entire ordeal to a quick and final conclusion.

F.L. Myers J. Date: March 13, 2017