COURT FILE NO.: CV-17-580326
DATE: 20210428
ONTARIO SUPERIOR COURT OF JUSTICE
RE: PARAMOUNT FINE FOODS et al., Plaintiff
-and-
KEVIN J. JOHNSTON et al., Defendants
BEFORE: F.L. Myers J.
COUNSEL: Jonathan C. Lisus and Niklas Holmberg, for the plaintiffs. Kevin J. Johnston representing himself.
HEARD: April 28, 2021
ENDORSEMENT
[1] The plaintiffs have brought a contempt motion against Mr. Johnston for allegedly violating the order made by Ferguson J. dated May 13, 2019, with reasons reported at 2019 ONSC 2910.
[2] In her decision, Ferguson J. found Mr. Johnston had defamed the plaintiffs. She adjudged the defendants liable to pay $2.5 million in damages. In addition, she granted permanent injunctions against the defendants prohibiting them from approaching the plaintiffs and their lawyer and from publishing defamatory statements about the plaintiffs or their lawyers.
[3] Ferguson J. found that Mr. Johnston is a prolific and determined publisher of content on websites and social media platforms. The plaintiff alleges that Mr. Johnston has recently continued to defame him and his counsel online by saying things prohibited by the order made by Ferguson J.
[4] Ferguson J. discussed how the Mr. Johnston had used his internet platform to disseminate hate towards the plaintiffs as Muslims. She found:
Motivated by ignorance and a reckless regard for acceptable norms, the Johnston defendants' behaviour reflects a contempt for Canada's judicial process, an abuse of the very freedoms this country affords them and a loathsome example of hate speech at its worst, targeting people solely because of their religion. Left unchallenged, it poisons the integrity of our democracy.
[5] Ferguson J. made the following orders (among others):
[94] The Johnston defendants are permanently restrained, or anyone acting on their behalf, direction, or in conjunction with them, from:
(e) disseminating, posting on the Internet, publishing, or broadcasting in any manner whatsoever, either directly or indirectly, any defamatory statements concerning the plaintiffs or its officers, directors, shareholders, employees or related entities.
[95] The Johnston defendants are permanently restrained, or anyone acting on their behalf, direction, or in conjunction with them, from:
(c) video or audio recording or photographing, or attempting to video or audio record or photograph anyone from Lax O'Sullivan Lisus Gottlieb LLP; and
(d) disseminating, posting on the internet, publishing or broadcasting in any manner whatsoever, either directly or indirectly, any defamatory statement concerning Lax O'Sullivan Lisus Gottlieb LLP.
[6] Ferguson J. also left no doubt what she found were defamatory statements and were therefore prohibited. She wrote:
[53] Justice Nakatsuru further held that the defendants' expressions shared "all the essential hallmarks and attributes of an expression that is not worthy of protection" blaming members of the group for the current political problems in society alleging they are a powerful menace, carrying out secret conspiracies, or plotting to destroy civilization; labelling them as criminals, parasitic, or pure evil; equating the targeted group with groups traditionally reviled in society such as child abusers or deviant criminals; and dehumanizing the targeted group by describing them as animals, lesser creatures, or the like.
[54] The other false and malicious statements published by the Johnston defendants throughout 2017 and 2018 also bear the hallmarks of hate. Among other things, the Johnston defendants' statements: refer to Mr. Fakih as a "Muslim business owner" or a "Muslim man" who discriminates against "white" or Christian people; accuse the plaintiffs of conspiring to take down the Johnston defendants' online accounts and working with politicians and law enforcement officials to sabotage Mr. Johnston's political aspirations; accuse the plaintiffs of "nefarious" activities and funding/supporting terrorist organizations "so they can cut babies in half'; further accuse the plaintiffs of working "very closely with the Pakistani spy agency to bring not just [Mr. Johnston] down but you down and all of Canada down too".
[55] The impugned statements are defamatory.
[Notes omitted. Emphasis added]
[7] I convened a case conference to schedule the contempt motion. Mr. Johnston is currently in Calgary where he says he is running for election as mayor. He attended the case conference by telephone.
[8] Mr. Lisus provided a video clip of Mr. Johnston indicating to his internet audience that he intended to use the case conference to ask for a lawyer and he was good to his word. He told me that he did not understand the proceedings and he wants to retain a lawyer. He said he would apply for legal aid today.
[9] Although he says he wants to retain counsel, as he is currently a self represented party, I felt it was important to explain a few things about the proceeding process to Mr. Johnston. I told him that the plaintiffs claim that he has violated Justice Ferguson’s order. I read to him paras. 53 to 55 of the order and explained to him that Ferguson J. has already determined what words are defamatory and prohibited. This hearing will not be about whether the words that Mr. Johnston has now published are “defamatory”. Rather, the plaintiff needs to prove that Mr. Johnston has published words that were prohibited in letter or in sprit by the judge’s order.
[10] I also explained to Mr. Johnston that he has the right to remain silent. If he wishes he can file written evidence or he can give or call others to give live evidence at the hearing.
[11] I also told Mr. Johnston that while I was not requiring him to say anything, if I knew that between now and the date of the hearing of the motion, he would not publish any words that could be considered prohibited by the injunction, it would be easier to provide him more time to prepare. I have not made any effort to compare to the order of Ferguson J. to the evidence of what the plaintiffs claim Mr. Johnston has said to date. I am not talking about whatever Mr. Johnston may or may not have said that led the plaintiffs to bring this motion. But I asked if he had anything to tell me to give me confidence in granting him an adjournment. He quite properly chose to await representation by a lawyer before responding.
[12] I should note that nothing has prevented Mr. Johnstone from retaining counsel or applying for legal aid up to today. Moreover, I am aware from other cases that Legal Aid Ontario can act very quickly when there is a need for it to do so.
[13] Finally, I explained to Mr. Johnston that this is a serious matter. Although Mr. Lisus advises that Mr. Johnstone has not availed himself of the right to be represented by counsel up to this point in the proceeding, I urge him to do so now. Should a court make a contempt finding, sentences can include all manner of legal punishments including a jail term.
[14] I adjourned the case conference to Monday, May 3, 2021 at 2:00 p.m. Toronto time (Eastern Daylight Time). That is 12:00 noon Calgary time.
[15] I expect to schedule the hearing of the contempt motion at the next case conference. If Mr. Johnston does not have counsel retained by then, he should be prepared to show that he still intends to retain counsel and that he has made bona fide efforts to do so by then.
F.L. Myers J.
Date: April 28, 2021