COURT FILE NO.: CV-17-1539-00
DATE: 2019 09 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HENRY POULIE, RICHARD GALAS, BERNARD MCEVOY, TOLIN ENTERPRISES LTD., TONY GARGARO, LINA GARGARO, CONNIE ANNETTA AND DAN MILLER
Hugh MacKenzie, Counsel for the Plaintiffs
Plaintiffs
- and -
KEVIN J. JOHNSTON
Self-Represented
Defendant
HEARD: June 1, 6 and 25, September 27 and December 2018, March 21, April 26, and September 13, 2019
REASONS FOR DECISION
LEMAY J
[1] This is a motion by the Plaintiffs to have the Defendant, Mr. Kevin J. Johnston, found in contempt of a number of Orders of this Court. The contempt proceeding flows from interactions between Mr. Johnston and the Plaintiffs that started on a beach in Tiny Township, near Midland, Ontario in the summer of 2015 and have continued through various Court proceedings.
[2] Mr. Johnston claimed that the beach was public property. The individual Plaintiffs, who all own residential and/or cottage properties along the beach, asserted that it was private property. The Corporate Plaintiffs are all companies that are controlled by one (or more) of the individual Plaintiffs.
[3] Mr. Johnston represents himself as a journalist. Although Mr. Johnston is self-employed, he broadcasts his views and his reports on various websites, and appears to be the main content producer for a website called Freedom Report. The material that Mr. Johnston generates is both video and in writing.
[4] Based on the reports published by Mr. Johnston, the Plaintiffs have advanced claims of defamation against Mr. Johnston. The defamation action was not defended by Mr. Johnston, and he was noted in default. Around the same time, Mr. Johnston brought an action against some of the Plaintiffs (as well as other individuals) relating to the beach and the events that had taken place on the beach in the summer of 2015. That action was dismissed under Rule 21 in the summer of 2017.
[5] Since the summer of 2017, the Plaintiffs in this action have been attempting to have Mr. Johnston comply with the findings in the defamation action and have had various Court orders issued in order to ensure compliance. In June of 2018, a motion was brought before me alleging that Mr. Johnston was in contempt of several previous Court orders. I have held several days of hearings into that question. What follows are my findings and my reasons.
The Parties
[6] In the course of these proceedings, I heard testimony from Tony Gargaro and Connie Annetta, two of the Plaintiffs in this proceeding. In order to understand the significance of the defamation claims, and the reasons that the Plaintiffs have brought a contempt motion, it is important to understand the parties and their relationship.
[7] Mr. Gargaro is a Director of a company called Tolin Enterprises Ltd., which is one of the other Plaintiffs to this action. Mr. Gargaro has a property on Balm Beach in Tiny Township. His sons are on title for the property, but he built it for them.
[8] Ms. Annetta is a teacher at a high school that is part of the Toronto Catholic District School Board (“TCDSB”). For the purposes of these reasons, it is not necessary to identify which high school Ms. Annetta teaches at. Indeed, a significant amount of Mr. Johnston’s comments have been directed at Ms. Annetta through her school and officials of the school board so further identification of that school would only serve to further publish the defamatory statements.
[9] As I have noted, Mr. Johnston is an online journalist and blogger. I am not aware of him having any other employment. Mr. Johnston had no connection to or knowledge of the Plaintiffs prior to the incident on the beach
[10] After the Plaintiffs had completed their case, I advised Mr. Johnston that he was not required to testify as this was a proceeding that could result in criminal sanctions and he had the right to remain silent. Mr. Johnston decided to testify, and I will address the relevant points of Mr. Johnston’s testimony in my reasons.
[11] Mr. Johnston was self-represented throughout these proceedings. However, he had a paralegal assisting him. The paralegal was Mr. Edward Wallerstein. Mr. Wallerstein was not entitled to appear before me on this matter, and did not hold himself out as being able to represent Mr. Johnston. Further, I did caution Mr. Johnston that Mr. Wallerstein was not qualified to assist him.
[12] However, Mr. Wallerstein was permitted to remain and assist Mr. Johnston. As will be seen, I also permitted Mr. Wallerstein to speak to the matter on occasions where Mr. Johnston failed to appear. I appreciated Mr. Wallerstein’s participation in this proceeding, as it ensured that the matter proceeded more smoothly and more expeditiously.
a) The Original Issues and Proceeding
[13] The original issue flows from events on and near Ardmore Beach in Tiny Township in the late summer of 2015. This beach is also referred to as Balm Beach in some of the materials. It does not appear to be a different beach, but the precise location of the beach is not important for these reasons. I will refer to it as “the beach” in the rest of this decision.
[14] There was an altercation on the beach involving a number of the Plaintiffs and Mr. Johnston. Mr. Johnston claims that the beach is public property. The Plaintiffs disagree. Charges were laid against Mr. Johnston, and he entered into a peace bond at some point. I will return to this issue below.
[15] On December 21st, 2016, Mr. Johnston brought an action against approximately fifty (50) defendants, almost all of whom were personal defendants. In that action, Mr. Johnston sought damages in the sum of $500,000.00.
[16] The Defendants brought a motion before Ricchetti J. to have this action dismissed pursuant to Rule 21. This motion was heard and granted by Ricchetti J. on July 13th, 2017, and his reasons for decision were issued on July 21st, 2017 (see 2017 ONSC 4310).
[17] Ricchetti J. dismissed Mr. Johnston’s action without leave to amend his pleading as the facts that were pled in the Statement of Claim did not disclose any cause of action. In other words, Mr. Johnston did not have any basis for bringing a claim against the various parties that he sued.
[18] After releasing these reasons, Ricchetti J. provided a costs endorsement which states, in part:
Mr. Johnston engaged in a public campaign of humiliation and intimidation against a number of the personal defendants before and after the motion.
It is one thing to commence litigation to deal with factual and legal issues. However, where the Plaintiff engaged in such conduct to support his claim and use such conduct for his media organization, such conduct is deserving of sanction by this court. A punitive award is warranted in these circumstances for this outrageous conduct (not only before the claim, before the motion but also after the motion had been dealt with by the court).
Substantial indemnity costs are awarded in favour of the Defendant.
[19] It is clear that Mr. Johnston’s conduct in bringing this action, as well as pursuing a campaign of “humiliation and intimidation” against the Plaintiffs in this action was of considerable concern to Ricchetti J. This endorsement was provided to Mr. Johnston at the time that it was made.
[20] Costs in the sum of $32,023.64, inclusive of HST and disbursements were ordered to be paid by Mr. Johnston. Those costs remained unpaid up to the final day of the contempt hearing.
b) The Defamation Proceeding and the Subsequent Orders
[21] On February 27th, 2017, counsel for the Plaintiffs sent a letter to Mr. Johnston alleging that various statements, articles and videos that Mr. Johnston had placed on-line were defamatory and needed to be removed. The Plaintiffs did not receive a satisfactory response to this correspondence.
[22] As a result, a Statement of Claim was issued on April 10th, 2017 and was served on Mr. Johnston on April 20th, 2017. No Statement of Defence was ever filed by Mr. Johnston. As a result, on May 15th, 2017, counsel for the Plaintiffs Requisitioned the registrar to note Mr. Johnston in default. Mr. Johnston was duly noted in default. On the record before me, Mr. Johnston has not made any efforts to set this noting in default aside since it was made.
[23] On August 3rd, 2017, a motion was brought by the Defendants for default Judgment. Although Mr. Johnston did not attend at the motion, Shaw J. determined that the motion required a long motion date and one was booked for April 25th, 2018.
[24] In the interim, Shaw J. ordered as follows:
THIS COURT ORDERS that pending a further Order of the Court, an interim mandatory injunction requiring the Defendant to remove all defamatory broadcasts including videos, articles and other content from every forum, on which they were broadcast about the Plaintiff on any issue involved with this action.
THIS COURT ORDERS an interim mandatory injunction prohibiting the Defendant from broadcasting further defamatory material about the Plaintiffs or any issue involved with this action.
THIS COURT ORDERS that a copy of this Endorsement and Order shall be served on the Defendant personally at his home address of: 3205 Anderson Crescent, Mississauga, Ontario.
[25] The evidence before me made it clear that this Order came to Mr. Johnston’s attention by way of personal service on August 22nd, 2017. The Order was not complied with.
[26] I find, beyond a reasonable doubt, that defamatory content not only remained on-line after the Order of Shaw J. was issued, but it was published and moved to different websites. I will address the reasons for this finding of fact below.
[27] As a result of the continued publication of defamatory statements, contrary to the Order of Shaw J., a motion was brought returnable on November 30th, 2017. This motion, which was a motion to find Mr. Johnston in contempt, was scheduled before Price J. Mr. Johnston did not attend at the motion in the morning, and sent Mr. Wallerstein as his agent.
[28] However, Mr. Johnston did ultimately attend before Price J. around 2 pm. At that time, the parties agreed to partial minutes of settlement pending the April 25th, 2018 summary judgment motion. At that time, Mr. Johnston agreed to be bound to the following terms:
- The Defendant, Kevin J. Johnston (KJ) agrees to the following:
- KJ to forthwith comply with the Order of Justice Shaw in this proceeding dated August 3, 2017.
- More specifically, KJ shall forthwith act directly and/or indirectly to remove all of the subject videos from the following platforms including websites and social media (internet-based). Should platforms on which the subject videos are located be internet-based, KJ shall take all reasonable steps, directly and/or indirectly to have these removed.
[29] The minutes of settlement then contain a detailed list of all of the websites where defamatory content had been posted and/or was still found. Price J. issued an endorsement the same day incorporating these minutes into an Order of the Court.
[30] Some steps were taken by Mr. Johnston to remove some of the defamatory postings. However, as noted below, an additional posting was made on February 18th, 2018, which was clearly defamatory, and other postings were also made after the Order of Seppi J. that were also clearly defamatory.
[31] The Plaintiffs made efforts to have the posting removed by writing to both Mr. Wallerstein and to Mr. Johnston in mid-March of 2018. At this point, the Order of Price J. had not yet been issued and entered by the Court. That Order was issued and entered on March 27th, 2018. A copy of that Order was provided by regular mail to Mr. Johnston on March 29th, 2018 along with the offending posts and a further demand that they be removed.
[32] The matter had originally been set to return before the Court for a long motion on April 25th, 2018. That date remained scheduled. At that hearing, the Plaintiffs brought a motion before Seppi J. for a finding that Mr. Johnston was in contempt of the Orders of Shaw J. and Price J. The Plaintiffs also sought a permanent mandatory injunction requiring Mr. Johnston to remove all defamatory broadcasts and preventing Mr. Johnston from making any further defamatory broadcasts about the Plaintiffs. Mr. Johnston was in attendance at this motion.
[33] Seppi J. granted the relief that the Plaintiffs were seeking and found Mr. Johnston in contempt of the Orders of Shaw J. and Price J. The key portions of Seppi J.’s Order are as follows:
THIS COURT ORDERS that the Defendant, Kevin J. Johnston, is hereby found in contempt of the Order of Justice Shaw, dated August 3, 2017, and the Order of Justice price, dated November 30, 2017.
THE COURT ORDERS that:
(a) the Defendant shall forthwith and by no later than 14 days of this Order, remove, direct and/or cause to be removed, any and all on-line materials including but not limited to Youtube videos, written materials and all other content from all sites in regard to the issues and the Plaintiffs in this Application, and
(b) that the Defendant shall forever cease and desist from either directly or indirectly posting, causing or directing to be posted or broadcast any such content as noted in 2(a) above.
THIS COURT ORDERS that in the event of default or violation of the above Order the Plaintiffs are at liberty to seek whatever sanction the Court may deem appropriate on account of the Defendant’s contempt, including fine or incarceration.
THIS COURT ORDERS that the Defendant, having been noted in default, and having had notice of this hearing, and the above finding of contempt, such sanction may be ordered, ex parte without further notice to the Defendant subject to the Plaintiffs’ counsel having informed the Defendant by email, at kevinjackaljohnston@gmail.com, and that a violation of this Order has occurred and been found.
[34] This Order was issued and entered on May 11th, 2019. Mr. Johnston was served with a hard copy of this Order, as well as the endorsement of Seppi J. on May 14th, 2019.
[35] As I will detail below, Mr. Johnston made additional postings after this Order was made. As a result, the Plaintiffs elected to proceed on an ex parte basis to obtain a finding that Mr. Johnston was in contempt. They also sought sanctions against Mr. Johnston.
d) The Proceedings Before Me
[36] The ex parte motion flowing from the Order of Seppi J. came on for hearing before me on June 1st, 2018. At that time, I determined that there appeared to be a “prima facie case of further contempt on the part of the Defendant, Mr. Johnston.” Based on that observation, I directed Mr. Johnston to appear before me on June 6th, 2018. I did not, however, make any findings of contempt as I took the view that a hearing was necessary.
[37] At the appearance on June 6th, 2018, Mr. Johnston confirmed that he was in possession of a copy of the Order of Seppi J. A further copy of this Order was provided to Mr. Johnston by Mr. MacKenzie. I directed that this matter come back before me on June 25th, 2018 for a half hour to define the issues, determine the timetable and set a date for presentation of the evidence.
[38] On June 25th, 2018, Mr. Johnston failed to attend before me, and sent Mr. Wallerstein. Mr. Wallerstein advised the Court that Mr. Johnston was claiming to have medical issues that prevented his attendance at Court. No medical documentation was filed. As a result, I adjourned the matter to September 27th, 2018 to address the issues identified at the June 6th, 2018 appearance, issued a bench warrant (with discretion) for Mr. Johnston, and provided further directions about any further medical absences on the part of Mr. Johnston.
[39] At the September 27th, 2018 date, I set out the deadline for the Plaintiffs’ materials, and directed that the evidentiary hearing on the contempt issues would take place on December 17th, 2018. The parties duly appeared before me on December 17th, 2018. Two further days of hearings were scheduled in March and April of 2019 at which evidence and argument were heard.
[40] I should note that Mr. Johnston raised medical issues, specifically whether he was suffering from a mental health condition that caused him to publish some of the statements about the Plaintiffs. I find that there was no substance to these claims because there was no evidence to establish that Mr. Johnston had any mental health issue that caused him to intentionally disobey Court Orders.
[41] Finally, the appearances in June and September of 2019 were necessary because of exhibit issues. On reviewing the exhibits that were marked at trial, I determined that the videos on Exhibit 6 could not be accessed on the USB key that had been filed as an exhibit.
[42] I reattended in Court on June 18th, 2019 and advised the parties of this fact. A fresh copy of the exhibit was filed by Mr. MacKenzie. I provided Mr. Johnston with the opportunity to make submissions on what should be done with this exhibit.
[43] Mr. Johnston objected to the use of the videos on the new exhibit as they were allegedly not in the format that he used. As a result, Mr. Johnston took the position that the videos had been changed too much and could not be relied upon in this trial.
[44] Mr. MacKenzie argued that the videos should be received as the format did not matter. It was the content that was important, and the content had not been changed.
[45] While I am inclined to accept Mr. MacKenzie’s position on this issue, I have determined that it is not necessary for me to receive and consider these videos in order to reach my conclusions. In addition, not considering this evidence will ensure that Mr. Johnston has had his position fully and fairly considered. As a result, I have not considered this evidence (exhibit 7) in arriving at my decision.
e) The Criminal Proceedings
[46] Throughout the course of this litigation, there have been related criminal proceedings. Setting out the result of these proceedings is important in terms of understanding the scope of the interactions between Mr. Johnston and the Plaintiffs. The details of how the criminal proceedings came to be initiated was not completely clear from the evidence.
[47] There were two separate criminal proceedings. The first proceeding was in Tiny Township, and involved Mr. Johnston’s interactions with various Plaintiffs. In particular, Mr. Gargaro and his family were involved in this proceeding. Ultimately, Mr. Johnston was charged with criminal harassment and trespass, and pled guilty. The proceeding resulted in a peace bond being in place for a period of two years.
[48] The second was in the criminal courts in Toronto. The proceeding had lasted for more than a year and involved approximately eleven (11) separate appearances. A peace bond was agreed to by Mr. Johnston in early June of 2018 as a result of this proceeding. I understand that it will last for one year, so that it has already expired.
[49] The evidence before me supports a conclusion that Mr. Johnston did not breach any of the conditions of the peace bonds that were imposed on him.
[50] The two criminal cases also concerned Mr. Johnston’s continued interaction with the Plaintiffs, particularly over the use of the Beach in Tiny Township.
The Legal Test for Contempt
[51] There are two different types of contempt, criminal and civil. This case concerns civil contempt. As I indicated to the parties in the course of the hearing, this decision only addresses the liability issue: is Mr. Johnston in contempt? If he is in contempt, there will be a penalty hearing at a subsequent date. The reason for the bifurcation of proceedings is that, as the Supreme Court of Canada noted in Carey v. Laiken (2015 SCC 17 at para. 18), liability and penalty are discrete issues (see also College of Optometrists (Ont.) v. SHS Optical Ltd. 2008 ONCA 685)
[52] The test that must be met for a finding of civil contempt is set out in a number of cases including Carey, supra. In Greenberg v. Nowack (2016 ONCA 949), the Court of Appeal has recently set out the test for civil contempt as follows:
The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
The party alleged to have breached the order must have had actual knowledge of it; and
The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.
[53] Each element of civil contempt must be proven beyond a reasonable doubt. In my findings, where I have accepted that any element of the test has been met, I have reached that conclusion beyond a reasonable doubt. In addition, judges have discretion to decline to make a contempt finding where it would be unjust to do so, even if the three-part test has been met.
[54] In terms of assessing whether Mr. Johnston is in contempt, I must first set out the nature of the statements that Mr. Johnston has made since the first Order was made. Then, I must consider whether he has met the test for contempt with respect to each of the Orders of Shaw J., Price J. and Seppi J.
The Nature, Timing and Content of the Statements
[55] The Plaintiff filed a series of USB drives and hard copies of material that remained on the internet after each of the Orders I have outlined above was made. This establishes, on a factual basis, the continued publication of defamatory material. Some of that material was new material that was created after the Orders were made, while other portions of the material had been created prior to any of the Orders being made in this case. I note, however, that some of the material that was created prior to any of the Orders was reposted after the Orders were made, which engages the provisions of those Orders.
[56] Prior to the Order of Shaw J., Mr. Johnston had made statements that were found to be defamatory on YouTube, Twitter and a number of websites that he either controlled or provided content to. The statements made about the Plaintiffs by Mr. Johnston were all found to be defamatory by previous Orders of this Court. None of those Orders have been appealed, so the statements remain defamatory at law.
[57] I do not intend to exhaustively review all of the defamatory statements. However, a sampling of some of the more significant defamatory comments, and the dates that they were made, follows.
[58] First, between August of 2017 and November of 2017, Mr. Johnston did remove some of the defamatory postings from some websites. However, much of the material was moved to other websites, especially the Mississauga Gazette. To that end, I accept as accurate a chart that was attached as Exhibit 14 to Mr. Gargaro’s Affidavit of October 31st, 2017. This chart is supported by a Google search that was done shortly before the motion before Price J. was heard, showing that numerous defamatory statements made by Mr. Johnston about the Plaintiffs remained on the Internet.
[59] In addition, on October 4th, 2017, Mr. Johnston conducted a live Facebook posting where he interviewed someone from Tiny Township who had been charged as a result of issues relating to the beach. During that interview, Mr. Johnston advised that he had created a petition on Freedom Report about the beach and he stated that one of the Plaintiffs, Connie Annetta harasses women and children. He also identifies Ms. Annetta as a teacher at a high school in Toronto.
[60] On February 18th, 2018, Mr. Johnston posted another Bitchute video and a narrative at his Freedom Report website. This video was mostly about Ms. Annetta. In the narrative report, Mr. Johnston calls Ms. Annetta “Toronto’s most psychotic high school teacher,” and makes other defamatory comments about her. Mr. Johnston also invites everyone to a criminal proceeding being held in the Ontario Court of Justice where Mr. Johnston is the accused so that they can watch him question Ms. Annetta for two straight days.
[61] After the February 18th, 2018 communication, Mr. MacKenzie wrote to Mr. Wallerstein on March 7th, 2018, outlining the defamatory statements in the materials that Mr. Johnston made. Having reviewed the materials, these defamatory statements are all established. In addition to a number of allegations about Ms. Annetta’s mental health and personality traits, those comments include:
a) A claim that Ms. Annetta lies, or has lied, to the public, to the Ontario Provincial Police and to the mayor of Tiny Township.
b) A claim that Ms. Annetta has filed false criminal charges against Mr. Johnston.
c) A claim that Ms. Annetta has filed intentionally false documents with the Court.
[62] Mr. Wallerstein was told that the Plaintiffs required these publications to be removed from the website immediately and that an apology be published on Mr. Johnston’s website, Freedom Report. Mr. MacKenzie sent a follow-up letter on March 21st, 2018 and again on March 29th, 2018.
[63] As I have noted above, after this publication in March of 2018, the parties appeared before Seppi J. on April 25th, 2018 and further Orders were made as set out at paragraph 33.
[64] There were two further postings from Mr. Johnston that are of concern in this action. First, on May 28th, 2018, Mr. Johnston posted a lengthy video to both his Facebook page and to YouTube. That video included the following comments about Ms. Annetta:
a) That she was a child molester and taught at the TCDSB.
b) That she had filed false police reports.
c) That she was a child molester who screamed at children.
[65] On the next day, Mr. Johnston posted a complaint on his website, Freedom Report. It was a formal complaint to the TCDSB about an “Evil Teacher”. That letter reads, in part:
Here is my formal complaint about this woman, one which her lawyer in an unrelated CIVIL case says I am not allowed to write. Well, here it is. Spread this around please, we MUST protect our children in Canada, and it starts RIGHT HERE.
To whom it may concern,
My name is Kevin J. Johnston and this letter is a FORMAL COMPLAINT about CONNIE ANNETTA, a teacher at [name removed] School. Connie Annetta is a land owner in Balm Beach within Tiny Township, Ontario. Connie Annetta is a share-holder of a corporation, 2019796 Ontario Inc. which is primarily owned by Bernard McEvoy, a professor at Ryerson University.
Below is a point form list of the crimes committed (that she/they have not yet been convicted for):
• Creating false ownership records of the beach and filing them with the Midland Properties Branch.
• Hiring security guards to criminally harass people walking on the beach.
• Criminally harassing men, women and children on the beach.
• Molesting children on the beach as young as 9.
• Constant false police reports filed with the Midland Branch of the Ontario Provincial Police.
• Connie Annetta has been witnessed numerous times walking north and south on Ardmore Beach with a clipboard telling people that they are not on “her list” and ergo they must leave the beach. She has done this so often that she has earned the moniker “Clipboard Connie.”
[66] At the end of this posting, Mr. Johnston provided a contact list of more than seventy (70) people that visitors to Freedom Report could contact in order to complain about Ms. Annetta. All of these people appear to work in the education system, but the list was not confined to TCDSB addresses. It included addresses for contacts at other school boards and other educational institutions.
[67] In his posting, Mr. Johnston confirmed that he had sent a copy of his complaint to all of the individuals (and organizations) on his e-mail list. It is an extensive list.
[68] Mr. Johnston took the position that he did not actually send the letter of complaint by e-mail, as the e-mail address was not his. Specifically, there were a number of additional characters at the end of the e-mail addresses on the printouts of the e-mails that I reviewed. I reject Mr. Johnston’s evidence for four reasons, as follows:
a) The statement is almost exactly the same as the statement that Mr. Johnston had posted on his website. It is, therefore, unlikely that someone else with the name Kevin Johnston in their e-mail string sent this.
b) Mr. Johnston’s evidence was internally inconsistent. Specifically, he testified that he did not send the e-mail. However, he also testified that he had an “obligation” to bring his concerns about Ms. Annetta forward because she was a teacher and students could be affected. If he had felt obligated to bring these issues forward, then the e-mail is something that he would have sent.
c) The information in this e-mail is very similar to the information that Mr. Johnston keeps publishing about Ms. Annetta. As a result, I infer that he sent this e-mail.
d) The e-mail clearly reads as if it was written by, and originated from, Mr. Johnston.
[69] Based on the foregoing, I conclude that Mr. Johnston posted this statement on the web and sent it by e-mail to more than ninety people both inside and outside the TCDSB.
[70] In addition to these two items, Mr. Johnston had at least one additional post on his website advising parties about his Court appearance on June 4th and 5th, 2018. In this posting repeated some of the same statements that were set out above, and invited people to donate to Mr. Johnston as well as to attend at Court and watch him expose a number of the Plaintiffs in this case as liars.
[71] As I have noted, the criminal case ended with a peace bond being issued. I was not provided with much other evidence over what took place during the criminal proceedings.
[72] In any event, all of the statements that I have outlined above are defamatory. I reach that conclusion for two reasons. First, Mr. Johnston was noted in default in the defamation action and a number of other judges have found these types of statements to be defamatory in the past.
[73] Second, there is nothing new or unique in Mr. Johnston’s statements about the Plaintiffs. All of the statements concern matters relating to the beach in Tiny Township. The nature of these statements has already been adjudicated by the Courts, and found to be defamatory. Indeed, Ricchetti J. found these statements to be part of a campaign of public humiliation and intimidation and found Mr. Johnston’s conduct to be outrageous.
[74] I entirely agree with this conclusion, and I note that this outrageous behavior continued both after Ricchetti J. made his costs decision, and after the Orders of Shaw J., Price J. and Seppi J. were made.
Was or Is Mr. Johnston In Contempt?
[75] The answers to both halves of this question is yes. I am satisfied beyond a reasonable doubt that Mr. Johnston was in contempt of the Orders of Shaw J., Price J. and Seppi J. and I am also satisfied beyond a reasonable doubt that Mr. Johnston remains in contempt of these Orders. I will now review my findings with respect to each Order.
Shaw J.’s Order
[76] The first element of the test is met. I find, beyond a reasonable doubt, that Mr. Johnston was aware of Shaw J.’s Order. The evidence before me is clear that Mr. Johnston was served with a copy of Shaw J.’s Order. This Order was served on Mr. Johnston personally, as well as by e-mail and regular mail. The Affidavit of Service in the Court file confirms that Mr. Johnston was served on August 22nd, 2017 with this Order, and Mr. Johnston acknowledged receiving the Order, although he could not remember the precise date it was served on him.
[77] I also note that the Order of Price J. required compliance with the Order of Shaw J., and that Mr. Johnston consented to Price J.’s Order. This also demonstrates that Mr. Johnston was aware of the terms of Shaw J.’s Order.
[78] The second element of the test is whether the order is clear and unambiguous. I find, beyond a reasonable doubt, that it is clear and unambiguous. Under the Order, Mr. Johnston was clearly required to do two things:
a) Remove all of the defamatory postings.
b) Not re-post or publish anything else that was defamatory.
[79] In terms of whether the Order is clear, an issue regarding the definition of defamatory was raised. Mr. Johnston alleged that he needed a definition of defamatory. He also seemed to suggest that defamatory meant statements that were not true, and that many of the things he said about the Plaintiffs (and Ms. Annetta in particular) were true. The suggestion from both of these arguments was that the Order was unclear in its reference to defamatory statements.
[80] I reject this argument for the following reasons:
a) The definition of defamatory is clarified by the reference to “any issue involved in this action”. This language makes it clear that the statements that Mr. Johnston was making that were the subject of the action had to be removed. When read with the Statement of Claim, which Mr. Johnston acknowledged receiving, the definition of defamatory statements is, or at least should have been, clear.
b) Mr. Johnston provided no basis for his assertion that “defamatory” statements excluded statements that were true. I view this as self-serving evidence that was designed to both avoid responsibility for the statements that Mr. Johnston made and justify his continued campaign of vilification against the Plaintiffs.
c) Particularly with the Orders of Price J. and Seppi J., Mr. Johnston had correspondence from Mr. MacKenzie about what the defamatory content was, and even removed some of it.
d) Defamatory broadcasts were defined in the motion materials and in the Statement of Claim. Any ambiguity that might have existed in these Orders was clearly eliminated by the context in which the Orders were made. In any event, I note that a party should not be permitted to hide behind a restrictive and literal interpretation of an Order to circumvent the Court’s intentions (see Boily v. Carleton Condominium Corp. 2014 ONCA 174 and Sweda Farms Ltd. (C.O.B. as Best Choice Egg) v. Ontario Egg Producers 2011 ONSC 3650.) In my view, at best this is what Mr. Johnston is seeking to do.
[81] Based on those observations, the Order was clear and unambiguous. Mr. Johnston understood the types of statements that he was prohibited from making and publishing.
[82] Finally, the Order was intentionally breached in at least the following respects:
a) Mr. Johnston made no concerted effort to remove all of the postings. He failed to do something that the Order of Shaw J. required him to do.
b) The interview on October 24th, 2017 described at paragraph was clearly defamatory. Mr. Johnston knew, or ought to have known, that this statement was a violation of the Order of Seppi J.
[83] For these reasons, I have concluded beyond a reasonable doubt that Mr. Johnston was in contempt of the Order of Shaw J.
Price J.’s Order
[84] There can be no dispute that Mr. Johnston was aware of the terms of the Order of Price J. Not only was Mr. Johnston present in Court when the Order was made, but he consented to the terms of the Order.
[85] The Order is also clear and unambiguous. First, it requires Mr. Johnston to comply with the order of Shaw J., which I have already found to be clear and unambiguous.
[86] Second, the terms of this Order were, if anything broader and clearer. Price J.’s Order required Mr. Johnston to act “directly or indirectly” to remove all of the subject videos. It was clear that everything had to be removed, and that Mr. Johnston was responsible for ensuring that everything was removed. I will return to this issue when I address the question of whether Mr. Johnston is still in contempt. I have already dealt with the other arguments about whether Mr. Johnston was in breach of the Orders.
[87] Finally, I have concluded beyond a reasonable doubt that Mr. Johnston breached these Orders in at least the following respects:
a) By failing to take active steps to remove the postings.
b) By posting additional items, including the February 18th, 2018 report and the items that were posted after the Order of Seppi J.
[88] In terms of the February 18th, 2018 report, I note that the Order of Price J. was not yet issued and entered at that time, so the report’s publication may not have been a breach of Price J.’s Order. However, that report is still clearly contrary to the Order of Shaw J., and leaving this report on the internet past the day that the Order of Price J. was signed was a breach of both Orders.
[89] Having concluded, beyond a reasonable doubt, that each of the three elements of the test for contempt are met, I find that Mr. Johnston was in contempt of the Order of Price J.
Seppi J’s Order
[90] I start with the question of whether Mr. Johnston had knowledge of the Order of Seppi J. I find that he did for two reasons. First, he was in Court when the Order was made and acknowledged on cross-examination that he understood the Order. Second, the Order was personally served on him on May 14th, 2018 by regular mail. There was no dispute in the evidence that Mr. Johnston had received this Order.
[91] Then, there is the question of whether the Order is clear and unambiguous. The relevant terms of the Order are set out at paragraph insert. I find that the Order was clear and unambiguous. On its’ face the terms are clear. ALL postings in relation to the issues in the application (being the beach in Tiny Township) were to be removed by Mr. Johnston and he was to cease and desist from posting new ones.
[92] This brings me to the final element of the contempt test, whether Mr. Johnston breached Seppi J.’s Order. Mr. Johnston had an e-mail exchange with Mr. MacKenzie about this Order on May 28th, 2018. That exchange reads as follows:
From: MacKenzie, Hugh
Receiver: kevinjackaljohnston@gmail.com
Time: 2018-05-28, 12:53:59
Subject: Re: Request For Information- Connie Annetta
Kevin:
Connie Annetta is a client of mine. The orders of Justices Shaw, Price and Seppi all make it clear that you cannot post any videos, narrative, or heading related to Connie Annetta, her husband, family, occupation or at all that can be construed or otherwise viewed or seen as defamatory.
I strongly recommend that you refrain from any activity that can “possibly” be construed as defamatory or defaming Ms. Annetta. If you have questions about this, please speak with Mr. Wallerstein.
Hugh MacKenzie
On May 28, 2019, at 2:09 PM, Kevin J. Johnston kevinjackaljohnston@gmail.com wrote:
Mr. MacKenzie,
Thank You. I understand that I can say nothing is deliberately not true in the province of Ontario.
I do appreciate your time on this matter.
Kevin J. Johnston
From: MacKenzie, Hugh
Receiver: kevinjackaljohnston@gmail.com
Time: 2018-05-258, 15:17:56
Subject: Re: Thank You- Request For Information- Connie Annetta
That is not what the Orders say and Mme Justice Seppi clarified that.
Anything you say, post, narrate or write about my clients, me, my law firm, the beach and their actions on or with respect to it that is defamatory is in breach of the order. Where you post it from is not relevant. It is the fact of the breach of the order that the court will look at.
[93] This e-mail string serves to illustrate two points. First, it demonstrates that Mr. MacKenzie has ensured that Mr. Johnston understands what the Order requires of Mr. Johnston and what Mr. Johnston is prohibited from doing by the Order. Second, Mr. Johnston’s comment about not saying anything that is “deliberately” not true illustrates Mr. Johnston’s attempts to evade, minimize and/or avoid the application of these Orders. When I consider this comment together with Mr. Johnston’s testimony in Court, it is clear that he is attempting to minimize and/or avoid his responsibility for his conduct, but that he is well aware that he breached Court Orders.
[94] This brings me to the letter of complaint that Mr. Johnston authored about Ms. Annetta. In testimony, Mr. Johnston stated that this letter was not a breach of the Order of Seppi J. Instead, Mr. Johnston took the position that this was a complaint that he was required to make in order to protect students in Ontario because he had information about Ms. Annetta’s conduct.
[95] I reject that explanation for the following reasons:
a) The “complaint” was disseminated very broadly. If Mr. Johnston had genuinely been bringing a complaint about Ms. Annetta’s conduct, he would have brought it to her superiors in the TCDSB, and would not have copied either as many people as he did or sent it to people outside of the TCDSB.
b) The allegations in the “complaint” relate directly to the defamatory comments that Mr. Johnston had previously been making about Ms. Annetta. It is unlikely that these were a “complaint” to protect students. Instead, they were a continued publication of the previous defamatory statements.
c) The context of when and how this “complaint” was launched must be considered. Specifically, the e-mail exchange between Mr. MacKenzie and Mr. Johnston makes it clear that Mr. Johnston had been reminded of the provisions of Seppi J.’s Order, and that he knew that anything defamatory was prohibited. In addition, this “complaint” came about at the same time as Mr. Johnston’s video described at paragraph 64.
[96] In his testimony, Mr. Johnston offered the explanation that his postings after the Order of Seppi J. were an “emotional” reaction. Specifically, he testified that he thought that the parties had agreed to leave each other alone, and that his postings after May 28th, 2018 were a reaction to the fact that Ms. Annetta was continuing with the criminal prosecution of Mr. Johnston.
[97] I reject Mr. Johnston’s evidence on this point as untruthful for the following reasons:
a) There is no merit to Mr. Johnston’s claim that the parties had “agreed” to leave each other alone. At this point in the litigation when Seppi J. issued her Order, it should have been clear to Mr. Johnston that the Plaintiffs expected him to stop his conduct. There were no guarantees that they would stop the litigation until they had a final decision.
b) In a video dated July 9th, 2017, Mr. Johnston talked about how he had staff that would “humiliate” school employees if students were prohibited from watching his videos. Mr. MacKenzie accurately characterized Mr. Johnston’s approach to teachers and school administrators as a “blueprint”, and Mr. Johnston was using the same type of “blueprint” for his campaign against Ms. Annetta.
c) The correspondence that Mr. Johnston sent to Mr. MacKenzie on May 28th, 2019 contains a number of statements that suggest that Mr. Johnston was engaged in a negotiating strategy with his communications, rather than merely acting emotionally.
[98] Based on the foregoing, I conclude beyond a reasonable doubt that Mr. Johnston deliberately and intentionally breached the Order of Seppi J. He was also well aware of what the terms of that Order were and the Order had no ambiguity.
Have There Been Sufficient Steps Taken to Purge the Contempt?
[99] No.
[100] All three Orders contain a direction that Mr. Johnston was to take positive steps to remove the defamatory postings from the Internet. As an example, the Order of Price J. states that Mr. Johnston will “remove, direct and/or cause to be removed” all of the defamatory postings. This is a very broad directive.
[101] Mr. Johnston has, in my view, deliberately ignored this direction. He has testified that he will take down the postings if he is advised about their existence by Mr. MacKenzie and his son. Mr. MacKenzie’s son is, I understand, very familiar with technology and has been assisting the Plaintiffs in this matter.
[102] Mr. Johnston’s obligations do not end with taking down posts that Mr. MacKenzie or his son identify. Mr. Johnston has a positive obligation to search out the information on the internet and take all reasonable steps to ensure that it is removed.
[103] By asserting that he would remove the items as identified by the Plaintiff, and that it was the Plaintiffs’ responsibility to remove the items, Mr. Johnston is in breach of all three orders. He has an obligation to search out and remove the posts on his own initiative and to show that he has taken all reasonable steps to do so. Until, and unless, he does that he remains in contempt of all three Orders.
[104] Mr. Johnston remains in contempt of the Orders of Shaw J., Price J. and Seppi J. The previous paragraphs provide a clear and complete picture of what Mr. Johnston must do to purge his contempt. Until those tasks are complete, Mr. Johnston will remain in contempt of this Court.
Should I Exercise My Discretion and Not Make a Finding of Contempt?
[105] No. In my view, it would not be unjust to find Mr. Johnston guilty of contempt of Court. I reach that conclusion for a number of reasons, as follows:
a) Mr. Johnston was in contempt of three Orders of Judges of this Court made almost a year apart.
b) Mr. Johnston not only failed to take down the postings that he had been directed to remove, he also added new postings that were of an inflammatory nature and made these defamatory statements to Ms. Annetta’s superiors.
c) Mr. Johnston made the additional postings in 2018 in the face of an agreement (formalized by the Order of Price J.) not to make any further defamatory comments about the Plaintiffs.
d) Mr. Johnston remains in contempt and has not followed the Orders of the Court.
e) Mr. Johnston has failed to pay the costs previously awarded against him in this case. As a result, a lesser sanction such as a costs award will not have the effect of properly sanctioning Mr. Johnston’s behavior.
[106] In addition, Mr. Johnston’s statements to Mr. MacKenzie in the May 28th, 2019 e-mail include phrases such as “I guess they [the Plaintiffs] aren’t smart enough to understand that I have NOTHING to lose and they have EVERYTHING to lose.” The e-mail, when read as a whole, suggests that Mr. Johnston was continuing to engage in a campaign of vilification against the Plaintiffs even after he had been ordered to cease and desist by the Courts.
[107] Finally, part of the reason that contempt is a discretionary order is to ensure that it is not used routinely to obtain compliance with Court Orders (see Carey, supra at paragraph 36). In this case, the Plaintiffs have taken many steps outside of a formal contempt motion to obtain compliance. This is not a routine use of the contempt proceeding to obtain compliance. This has been a long and difficult proceeding for the Plaintiffs, and they have acted more than reasonably.
[108] Accordingly, I decline to exercise my discretion to not register a finding of contempt against Mr. Johnston in this case.
Conclusions
[109] For the foregoing reasons, I find that Mr. Johnston was in contempt of the Orders of Shaw J., Price J. and Seppi J. in the following manner:
a) Continuing to make, post and re-post defamatory statements about the Plaintiffs.
b) Failing to take all reasonable steps to ensure that the defamatory statements that Mr. Johnston has made and/or posted about the Plaintiffs are removed from the Internet.
[110] Although most of the defamatory postings have been removed, Mr. Johnston remains in contempt of the Orders of Shaw J., Price J. and Seppi J. because he has failed to take steps to remove all of the postings that he has created. As I indicated above, it is not sufficient for Mr. Johnston to state that he is removing these defamatory posts at Mr. MacKenzie’s requests. The Orders require Mr. Johnston to take positive steps to search these postings out and take all reasonable steps to remove these postings from the Internet.
[111] Given that I have made findings of contempt against Mr. Johnston, there will be a sentencing hearing which will take place on a date to be scheduled in Court on the date that these reasons are released.
[112] Finally, the costs of the contempt hearing remain reserved until the conclusion of the sentencing hearing. Submissions on costs will be made as part of the submissions on the sentencing hearing. To that end, Mr. MacKenzie is directed to serve and file his clients’ bill of costs in advance of that hearing.
LEMAY J
Released: September 19, 2019
COURT FILE NO.: CV-17-1539-00
DATE: 2019 06 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HENRY POULIE, RICHARD GALAS, BERNARD MCEVOY, TOLIN ENTERPRISES LTD., TONY GARGARO, LINA GARGARO, CONNIE ANNETTA AND DAN MILLER
Plaintiffs
- and -
KEVIN J. JOHNSTON
Defendant
REASONS FOR JUDGMENT
LEMAY J
Released: September 19, 2019