COURT FILE NO.: CV-17-586772 DATE: 20190329 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Elaschuk AND: Jade Thelwell, also known as Jade Naraine
BEFORE: Nishikawa J.
COUNSEL: Lorne Honickman & Alexander Alton, for the Plaintiff Jade Thelwell, also known as Jade Naraine, in person
HEARD: March 25, 2019
ENDORSEMENT
Overview
1On May 25, 2018, I granted the Plaintiff’s motion for an interlocutory injunction and made the following order (the “Order”):
(i) The Defendant shall refrain from making, publishing, or causing to be published any false or defamatory statements relating to the Plaintiff whether oral, written, or distributed via the internet; and
(ii) The Defendant shall use best efforts to remove and to preserve electronic copies of all of the Defendant’s statements regarding the Plaintiff that are posted on the websites listed in Schedule ‘A’.
2On November 16, 2018, the Divisional Court dismissed the Defendant’s motion for leave to appeal the Order.
3The Plaintiff, Michael Elaschuk, brings a motion for civil contempt, alleging that the Defendant, Jade Thelwell, also known as Jade Naraine, is in breach of paragraph (i) of the Order. The proceeding was commenced under the r. 76 simplified procedure. The motion for contempt is based on affidavit evidence, and no cross-examinations have been conducted.
The Principles Applicable to Civil Contempt
4The common law contempt power is codified in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which set out the orders that the court may make where a finding of contempt is made. Rule 60.11(5) provides:
In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just; (b) be imprisoned if the person fails to comply with a term of the order; (c) pay a fine; (d) do or refrain from doing an act; (e) pay such costs as are just; and (f) comply with any other order that the judge considers necessary,
and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
5On a motion for civil contempt, the moving party must prove contempt beyond a reasonable doubt. In order to meet the test for civil contempt, the following three elements must be established: (i) the order states clearly and unequivocally what should have been done; (ii) the party alleged to be in contempt has actual knowledge of the order; and (iii) the party alleged to be in contempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 SCR 79.
6A contempt motion may proceed in a summary fashion employing one of two hearing methods: (i) a hearing on a written record, or (ii) an oral hearing with viva voce evidence: Fischer v. Milo at para. 10. “When there are controverted facts relating to matters essential to a decision as to whether a party is in contempt of court, those facts cannot be found by an assessment of the credibility of deponents who have not been seen or heard by the trier of fact….” Fischer v. Milo at para. 10, quoting R. v. Jetco Manufacturing Ltd. and Alexander (1987), 57 O.R. (2d) 776 (C.A.), at page 781.
The Parties’ Positions
7The Plaintiff states that defamatory statements about him continue to appear on the websites listed on Schedule ‘A’ of the Order, as well as on other websites of a similar nature (the “Third Party Websites”). There are also negative and harmful statements about the Plaintiff on the websites, www.jadenaraine.com and www.prettyandtheliars.com. The Plaintiff recognizes that the evidence in support of the motion is entirely circumstantial, but submits that no reasonable inference other than guilt can be drawn from the evidence.
8The Defendant denies making the statements. She alleges a conspiracy among three men, including the Plaintiff. She claims that they are responsible for the statements on the Third Party Websites so that she will be found in breach of the Order and, potentially, a bail condition. In respect of the websites www.jadenaraine.com and www.prettyandtheliars.com, the Plaintiff claims that those websites are maintained by “her record label” and that her producer/manager updates the websites.
Analysis
9There is no question that the first two elements of the test are met. The Order stated clearly and unequivocally what should have been done and Ms. Thelwell had notice of the Order, as evidenced by her appeal. The evidentiary record on the motion raises serious concerns about potential breaches of the Order in that defamatory statements continue to appear on various websites.
10However, in respect of the third element, I am not satisfied that this motion can be fairly determined on the evidence before me. The Plaintiff’s evidence consists of a lawyer’s affidavit attaching correspondence and website printouts. The Plaintiff relies upon the timing of the postings and their connection to steps or outcomes in the Defendant’s various proceedings. In certain cases, however, the printouts do not include the date on which they were printed.
11The Defendant relies upon a voluminous record of information that sought mainly to challenge the Order and is only tangentially relevant to the motion. Much of the relevant evidence is not proper evidence in this proceeding, such as “witness statements” that are not sworn evidence, or the affidavit of her lawyer in another proceeding, attaching his letters to third parties. In addition, there is no evidence as to who owns or controls the websites, www.jadenaraine.com and www.prettyandtheliars.com, other than the Defendant’s submissions on oral argument. Moreover, the Defendant’s credibility is central to the remaining issue and this cannot properly be assessed without cross-examination.
12The Defendant is self-represented. The potential consequences of a finding of contempt, which includes a term of imprisonment, are serious. Because of the quasi-criminal aspect of a contempt proceeding, the Defendant is to be accorded full procedural rights, including but not limited to, the right to make full answer and defence, the right to call witnesses and the right to cross-examine: Fischer v. Milo at para. 9.
13Accordingly, while I do not wish to prolong this matter more than necessary, I adjourn the Plaintiff’s motion and order an oral hearing with viva voce evidence from witnesses called by either party. The hearing shall be limited to the issue of whether the Defendant intentionally made further defamatory statements on the internet in breach of the Order. I strongly suggest that Ms. Thelwell retain counsel to assist at the hearing, given the potential consequences and the likelihood of cross-examination. The hearing is to be scheduled through my assistant, Roxanne Johnson at roxanne.johnson@ontario.ca.
14In the meantime, the Order remains in effect. The Defendant shall not make any further defamatory statements on any website, including those that she claims are administered by the record company, Voodoo Records. The Order specifically prohibits “causing to be published any false or defamatory statements relating to the Plaintiff” and must not be breached through an intermediary. As such, I require the Defendant to provide a copy of the Order and this Endorsement to anyone with access to the websites www.jadenaraine.com and www.prettyandtheliars.com, including but not limited to her producer/manager and anyone working with her at Voodoo Records.
Nishikawa J.
Date: March 29, 2019