Court File and Parties

COURT FILE NO.: CV-18-00600589-0000 DATE: 20190515 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CORPORATION OF THE TOWN OF WHITCHURCH-STOUFFVILLE Plaintiff – and – JUSTIN ALTMANN Defendant

COUNSEL: Daniel J. Michaluk and Maureen M. Quinlan, for the Plaintiff Mauro Marchioni, for the Respondent

HEARD: May 6, 2019

NAKATSURU J.

[1] Mr. Justin Altmann was the mayor of the Town of Whitchurch-Stouffville (the “Town”). During his tenure, the media broke a story about a “wall” he made in his office bathroom with pictures and images of local councilors, town employees, and others that appeared to map out some beliefs Mr. Altman had about what was happening in his jurisdiction. From the record filed before me, I gather these events have gained some notoriety in the press, social media, and amongst the constituents of Town.

[2] In October of 2018, Mr. Altman lost his bid for re-election. In that month, during his re-election campaign, Mr. Altman was at four town halls: October 2, 5, 9, and 17. During these town halls, Mr. Altman tried to explain certain aspects of the “wall” that he created and to answer questions about events that occurred during his tenure as mayor.

[3] Mr. Altman has run into problems for what he said at these town halls. Mr. Altman had to abide by an order made by Justice McArthur on September 10, 2018. In June of 2018, the Town learned that Mr. Altman had distributed a binder containing its confidential information to various members of the public. The Town sued and obtained on consent an order for interim relief from Justice H. McArthur.

[4] The Town now brings a motion for civil contempt of court. It states that at these town halls, Mr. Altman breached the order of Justice McArthur.

[5] For the following reasons, I find that Mr. Altman did improperly breach Justice McArthur’s order but I will exercise my discretion and decline making a finding of contempt of court.

A. Preliminary Matters

[6] First of all, after notice to the media, I granted a publication ban requested by the Town regarding the identification of certain people and certain information. For the reasons already given in court, I found that the test for such a ban had been met. As a result of that ban, my decision will be somewhat curtailed in the details about the case.

[7] Second, at the hearing, Mr. Altman withdrew his argument that this motion was premature. Thus, it is not necessary to deal with this issue.

[8] Third, there is a preliminary issue about the admissibility of evidence on this motion. Mr. Altman objects to the admissibility of the transcript attached to Mr. Wayne Burgess’s affidavit. Mr. Burgess attended a public meeting at the Ballantrae Golf Club in Stouffville on the evening of October 5, 2018. He heard Mr. Altman give a public address and answer questions to about 22 people in attendance. Mr. Burgess swore that a recording of the meeting was made. He listened to the recording, reviewed the transcript attached to his affidavit, and swore that it accurately described what Mr. Altman said at the meeting.

[9] Mr. Altman argues that the affidavit of Mr. Burgess does not comply with Rule 60.11(3) since the recording and the transcript attached are hearsay and contentious, and the source of his information and belief are not provided for in his affidavit.

[10] There is no merit to this objection. At its core, Mr. Burgess is not presenting hearsay evidence. Mr. Burgess gives evidence about the words used by Mr. Altman that are said to be the basis for the breach of Justice McArthur’s order. It is not being presented for any hearsay purpose. Mr. Burgess was present at the town hall meeting. What Mr. Burgess attests to is his recollection of what was said by Mr. Altman and the fact the attached transcript accurately reflects his recollection. While there may be a hearsay component to his assertion that a recording of the meeting had been made (if he did not directly observe this), what is material for the purposes of assessing admissibility on this motion is Mr. Burgess’s own recollection about what said at the meeting by Mr. Altman. What he recalls is what matched the written transcript attached to his affidavit. There is no requirement that Mr. Burgess produce the recording itself in order for his affidavit to be admissible.

[11] As I said at the hearing, given that Mr. Burgess, unlike the other affiants, did not actually make the recording, the weight to be afforded to his recollections could have been challenged. However, the recording was never requested by Mr. Altman. Mr. Burgess was never cross-examined by Mr. Altman.

[12] In these circumstances, I am satisfied that his affidavit meets the test for admissibility.

B. Test for Civil Contempt

[13] Finding a person in civil contempt is not something that should be done lightly. It is a quasi-criminal matter. A finding will have serious consequences for Mr. Altman. It is an enforcement power of last resort. On the other hand, although the primary goal of civil contempt is remedial by ensuring an offending litigant obeys judgments and orders, the integrity of the justice system very much depends upon respect for court orders.

[14] The Town has the burden in proving the following things beyond a reasonable doubt:

• The order that was breached must clearly and unequivocally state what should or should not be done;
• The party who disobeyed the order must have had actual knowledge of it; and
• The party alleged in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels.

Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79.

C. Analysis

1. The order is clear and unequivocal

[15] The specific provisions of the order of Justice McArthur that Mr. Altman allegedly breached are the following:

1. THIS COURT ORDERS that, in this document, the term “Confidential Information” shall mean information that the Plaintiff has treated as confidential and not disclosed to the public and that is not known to the public other than through the Defendant’s own disclosures and shall expressly include: (a) All personal information of current or former employees of the Plaintiff contained in the binder of documents the Defendant disclosed to various member (sic) of the public in August of 2017; and (b) All information that has been the subject of in camera deliberations of the Plaintiff’s Council that the Plaintiff’s Council has not resolved to make public.

2. THIS COURT ORDERS that the Defendant, Davies and any other individual or third party to whom the Confidential information has been disclosed, shall be prohibited from using, reproducing, disseminating or otherwise disclosing the Confidential Information.

[16] Mr. Altman argues that this order does not clearly and unequivocally state what should and should not be done. This order defines Confidential Information as information that the Town kept confidential and that is not known to the public other than through the Defendant’s own disclosures. It is submitted that given this definition based upon what is or is not known to the public, any alleged breach is not discernible from the face of the order. Rather, Mr. Altman argues any breach requires a factual determination of what is in the public realm and is dependent on extrinsic evidence to establish. It is submitted that without the extrinsic evidence that the Town has produced on this motion, whether Mr. Altman breached this provision of the order would not be clear. Mr. Altman argues that it is this type of uncertainty that the authorities has warned against when it comes to findings of contempt. Thus, he submits the Town has failed to prove beyond a reasonable doubt that the order that was breached clearly and unequivocally states what should or should not be done.

[17] I do not accept this submission. In this case, what is at issue, are the contents of the binder that Mr. Altman disclosed to the public in August of 2017. Mr. Altman does not dispute that he disclosed the binder at a garden party during this time. Mr. Altman is aware of this binder as he created it himself. Furthermore, he was aware of the information found in it and its confidential nature as he stamped many of the pages confidential himself. Furthermore, this binder was the subject of the motion for interim relief before Justice MacArthur. Mr. Altman returned these binders in compliance with the order.

[18] So while I do agree that the initial part of the order which defines Confidential Information has several general aspects to it including a requirement that the information not be known to the public other than by Mr. Altman’s disclosures, the relevant portion that is the subject of this contempt motion is very clear. Regardless of whether the information is shown by extrinsic evidence to be known to the public or not, the definition of Confidential Information “shall expressly include”:

(a) All personal information of current or former employees of the Plaintiff contained in the binder of documents the Defendant disclosed to various members of the public in August of 2017.

[19] There is no ambiguity or uncertainty on the face of the order regarding what Mr. Altman could not disclose. Put simply, confidential information is to be treated confidentially. The content of the binder is such confidential information. In conclusion, I find proven beyond a reasonable doubt the relevant term of the order is clear and unequivocal.

2. Mr. Altman had knowledge of the order

[20] I find proven beyond a reasonable doubt that Mr. Altman had knowledge of the order and the specific provision in question. This is not disputed. Mr. Altman admitted that he did in his affidavit on this motion.

3. Mr. Altman intentionally did the act the order prohibited

[21] The final element of contempt is that the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

[22] Although the Town has contended that Mr. Altman also breached paragraph 1(b) of Justice McArthur’s order, I shall limit my decision to paragraph 1(a) of the order. It is disclosure of the personal information found in the binder for which there is the clearest and most compelling evidence.

[23] In order to discharge its onus, the Town has presented a number of affidavits. Four of those affidavits come from individuals who attended the town halls: Mr. Levi Nicholson, Mr. Colin MacKenzie, Mr. Wayne Burgess, and Ms. Jilliane Baquiran. Each has attached a transcript of a recording taken of what Mr. Altman said at these town halls. The audio recordings themselves are not attached as an exhibit. I find this is of no moment. Each affiant has averred to the truth and accuracy of the transcript. The audio recordings were never asked to be produced by Mr. Altman. Mr. Altman did not cross-examine these individuals. In his own affidavit, he does not really challenged the accuracy of the transcripts. Therefore, I accept the credibility and reliability of this evidence.

[24] In addition, the Town has presented an affidavit from the Chief Administrative Officer of the Town, Mr. Roman Martiuk. His affidavit and the motion record that was before Justice McArthur satisfies me about what is found in the contents of the binder. I accept his evidence.

[25] The first issue is then whether the Town has been proven beyond a reasonable doubt that Mr. Altman breached paragraph 6 of Justice McArthur’s order. When I look at the evidence, I am certain that he has. I fully appreciate that Mr. Altman did not specifically name names in his public statements. He also did not specifically refer to revealing the contents of the binder. However, I find proven beyond a reasonable doubt that he disclosed personal information of current or former employees of the Town contained in the binder. More specifically, Mr. Altman disclosed information about personal information about two individuals and information about their alleged activities and the Town’s investigation into them. This was personal information specifically covered in the binder. This was information that the Town for good reasons wished to treat confidential. Something that Mr. Altman was fully aware of. The potential disclosure of this confidential information was the reason the Town sued Mr. Altman. It was the reason they moved before Justice McArthur to get the binders back and to obtain the order the Town did. In the comments at the town halls, Mr. Altman gave information about the positions held by these individuals and details about them in a long narrative format. Given the information Mr. Altman revealed and factual circumstances that surrounded a small town setting like the Town, any member of the public could readily fathom who he was speaking of and what activity he was referring to. At one point he does use the name of one of the individuals. Other times he made specific reference to the confidential activity in issue. Perhaps Mr. Altman believed he was being oblique and could obfuscate the facts. However, there is no question in my view, that by disclosing what he did, he breached paragraphs 6 and 1(a) of Justice McArthur’s order. I find that this much is patently obvious.

[26] The second issue is whether Mr. Altman intentionally disobeyed the order. Mr. Altman averred that he never so intended. He averred that it was his belief that all of this information was already public to a large extent. When the Town first notified his lawyer about its view that Mr. Altman was breaching the order, his lawyer wrote back that Mr. Altman’s motivation was to try and explain to the citizens his position regarding the allegations being made against him and the Integrity Commissioner’s report. That all he was trying to do was to salvage his reputation in the midst of a re-election campaign.

[27] I find that Mr. Altman’s position does not affect the Town’s proof of his intent. Mr. Altman submits that he thought he was obeying the order and had no intent to infringe it. In essence, he argues he made a mistake of law. This does not afford him a defence or raise any reasonable doubt.

[28] In Carey v. Aiken, Cromwell J. said the following about the “intent” required for contempt (at para. 38):

It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25; Sharpe, at para 6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test "too high" and result in "mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge" (para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard; and Sharpe, at para 6.200.

[29] Given this, I find that on the whole of the evidence, the Town has proven beyond a reasonable doubt that Mr. Altman intended to breach the order. Mr. Altman knew what he was talking about at these town halls. It was quite intentional in my view given how he often just referred to the persons by the title/position they held. Mr. Altman really does not contend otherwise. I thus find proven beyond a reasonable doubt the intent required for contempt.

[30] Thus, I find proven by the Town beyond a reasonable doubt that Mr. Altman breached this clear order of which he knew and had notice of.

4. Exercise of my discretion not to make a finding of civil contempt

[31] The parties agree that despite the elements of contempt being proven, a judge has a discretion not to make a contempt finding. For instance, as noted in Carey, where the alleged contemnor acted in good faith by taking all reasonable steps to comply with the order, a judge may not make such a finding. The list of factors to be considered in the exercise of this discretion is not closed.

[32] In this case, Mr. Altman argues that at its highest, this was a technical breach and that I should exercise my discretion and not make a contempt finding. The Town submits that there are factors that aggravates Mr. Altman’s conduct including his disregard of warnings made by the Town to his lawyer about the breaches as he was making his town hall speeches.

[33] I agree with the Town that I should consider the fact that Mr. Altman is a public official who owes public duties and should be held to the highest standards when it comes to obeying court orders. Also, that on three occasions, the Town wrote to him advising him that he was breaching the order but he nonetheless continued. Finally, there are innocent third parties who were affected by Mr. Altman’s actions and he has never acknowledged the wrongs he has committed against them.

[34] All that being acknowledged, I find that the countervailing considerations outweigh these concerns. While these factors can also be taken into consideration at a penalty phase, I find them to be important now as well.

[35] First of all, as noted, Mr. Altman was never cross-examined on his affidavit. His averment that he did not intentionally disobey Justice MacArthur’s order was not challenged. He swears that it was his honest belief that the issues covered in the binder were not confidential as defined by the order and were already well known to the public. Mr. Altman appended a number of public articles and documents to support that belief. Given that Mr. Altman was never challenged, when I have assessed his affidavit in the context of the evidence as a whole, I have no reason to reject his evidence on this point. Put another way, as the doctrine of reasonable doubt applies to the issue of credibility, his unchallenged evidence raises such a doubt. Therefore, I conclude that while Mr. Altman had the intent for civil contempt, he acted on a mistake of law and without contumacious intent.

[36] Secondly, I appreciate that Mr. Altman continued with his speeches at the town halls despite being given warning by the Town it took the position he was in contempt. However, he had legal advice and legal representation at the time. His counsel took the position that it was not a breach of Justice MacArthur’s order. His counsel’s position was wrong. That said, Mr. Altman was seeking legal advice and was not on his own, flagrantly violating the order without taking any reasonable steps to make sure he was in compliance.

[37] Thirdly, these breaches have to be viewed in context. Mr. Altman disobeyed the order during the course of a municipal election in which he was running as a candidate for mayor. He felt that it was his civic obligation to explain the nature of the “wall” and other aspects of his tenure as mayor, during these town meetings. He did so without directly naming the individuals involved. While clearly there is a self-interested component to what he did, it also involved speeches that he gave during the course of a political discourse.

[38] A number of points arise from this important context.

[39] One stems from the fact that Mr. Altman was unsuccessful in his political bid. His breach of the orders was specific to his involvement in the electoral process. Now that this process is finished, any motivation for him to continue his disobedience is at an end. There is no evidence to support any suggestion that outside of these town halls in October of 2018, Mr. Altman breached the order or has continued to breach these orders. He has abided by the other terms of the order. For instance, he returned the binders that were the subject of the motion before Justice MacArthur as required by the order.

[40] In addition, if a firm message about the need to strictly abide by the terms of the order needed to be sent to Mr. Altman, these court proceedings surely would have brought that message home. If by small chance it has not yet fully been appreciated by him, I know that my decision will. Any further breach of Justice MacArthur’s order after this decision will not be treated with any leniency and could result in a period of imprisonment for Mr. Altman.

[41] Finally, Mr. Altman breached the order while he was engaged in a political forum and he was exercising his freedom of expression. At the pinnacle of our constitutional protection for an individual’s freedom of expression, is political speech. The very existence of our democracy depends upon the exercise of such expression without undue restrictions. While this does not allow an individual to breach court orders with impunity or allow individuals to run roughshod over the rights of other persons, it is an important context in which I must exercise my discretion. I should exercise my discretion in a manner that conforms to the values underpinning an individual’s guarantee of their freedom of expression as protected in s. 2 of the Canadian Charter of Rights and Freedoms.

[42] I note that not only is Mr. Altman’s right to speak that is engaged, but so also is the right of the public to hear, contemplate, and act upon his political expression. Given that Mr. Altman made a mistake of law in the absence of bad faith and likely will not again breach the order, I conclude that this contextual factor tips the balance in favour of declining to make a finding of contempt. In the circumstances of this case, the objectives underlying the law of civil contempt can be achieved without a chilling effect on such a fundamentally important right as political free speech.

[43] Thus, this motion is dismissed.

[44] With respect to costs, I find that both parties should bear their own costs. Success is evenly divided in terms of outcome. While the Town has proven beyond a reasonable doubt Mr. Altman is in contempt, Mr. Altman has persuaded me that it is just that a finding not be made.

[45] I wish to again thank both counsel for their assistance.

Justice S. Nakatsuru Released: May 15, 2019

COURT FILE NO.: CV-18-00600589-0000 DATE: 20190515 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CORPORATION OF THE TOWN OF WHITCHURCH-STOUFFVILLE Plaintiff – and – JUSTIN ALTMANN Defendant

REASONS FOR JUDGMENT

NAKATSURU J. Released: May 15, 2019