Paramount Fine Foods v Johnston, 2021 ONSC 5530

COURT FILE NO.: CV-17-580326

DATE: 20210812

ONTARIO SUPERIOR COURT OF JUSTICE

RE: PARAMOUNT FINE FOODS et al., Plaintiffs -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. Ian McCuaig, possible counsel for Kevin J. Johnston Sameha Omer, for the National Council of Canadian Muslims

HEARD: August 10, 2021

ENDORSEMENT

This Case Conference

[1] By Reasons dated July 29, 2021, reported at 2021 ONSC 5285, I found the defendant Kevin J. Johnston in contempt of court by reason of his violations of the injunction granted by Ferguson J. dated May 13, 2019.

[2] Ferguson J. had prohibited Mr. Johnston from continuing to defame the plaintiff Mohamad Fakih. I found that Mr. Johnston defamed Mr. Fakih in a speech and on his internet streams six times between February and May of this year in ways identified and prohibited by Ferguson J.

Scheduling Issues

[3] On August 10, 2021, I convened a case conference to schedule the sentencing hearing arising from the finding of contempt.

[4] In my prior decision, I expressed concern both as to Mr. Johnston’s apparent contempt for the court’s process and also with the possibility that he might continue to defame Mr. Fakih.

[5] Despite inviting Mr. Johnston to commit to comply with the injunction in two hearings, Mr. Johnston has yet to do so. See: the July 29, 2021 endorsement at para. 82 and the April 28, 2021 endorsement at para. 11.

[6] I recognize that Mr. Johnston is not required to say anything. However, his public statements indicating that he does not respect civil court orders coupled with his disinclination to commit to comply with the injunction going forward, leaves me sharing the concern articulated by Ferguson J. that there is a strong likelihood that Mr. Johnston will continue to defame Mr. Fakih in violation of the court’s injunction. I note that Mr. Johnston made the most recent statement for which I held him in contempt of court even after these contempt proceedings had commenced.

[7] Mr. Lisus asks the court to schedule the sentencing hearing soon. He submits that Mr. Fakih has continued to be the subject of Mr. Johnston’s racist slurs and Mr. Fakih should be entitled to expect the court to enforce a measure of justice with some alacrity.

[8] As I noted in my July 29 endorsement, civil contempt is as much or more concerned with enforcing compliance with the court’s order than it is with punishment. Accordingly, I agree with Mr. Lisus that the matter should proceed in a relatively quick pace consonant with the parties’ entitlement to procedural fairness.

[9] As was the case at the contempt proceeding, Mr. McCuaig attended this case conference as putative counsel. At the contempt proceeding, Mr. Johnston indicated that he wanted to retain Mr. McCuaig as his legal counsel. Mr. Johnston requested an adjournment to allow his request for a Rowbotham order to proceed in the fall in a different contempt motion in a different case being heard in a different region. It was Mr. Johnston’s expectation that if he succeeded in obtaining government funding for counsel in the other case, the government would agree to fund his legal costs for Mr. McCuaig in this case.

[10] I declined to adjourn the contempt hearing for reasons that I have provided already and need not repeat.

[11] In his affidavit dated July 21, 2021, in support of his request for an adjournment to allow the Rowbotham motion to proceed, Mr. Johnston swore:

I am otherwise unable to afford to retain counsel

[12] Mr. McCuaig acted for Mr. Johnston in a contempt hearing at the beginning of July in Alberta. Mr. Johnston swore that he raised money from friends and supporters to fund Mr. McCuaig’s fees for that hearing.

[13] At the outset of the case conference, Mr. McCuaig advised that although he had not yet served a notice of appointment under Rule 15.03 (2), he and Mr. Johnston have come to terms on an arrangement so that Mr. McCuaig can now act for Mr. Johnston on the sentencing hearing.

[14] Mr. McCuaig also advised that Mr. Johnston is no longer advancing a request for a Rowbotham order in relation to this matter. As I noted in my prior endorsement, Mr. Johnston never brought a motion for such an order in this proceeding.

[15] In discussing scheduling, Mr. Lisus indicated that the plaintiffs did not anticipate a need for further evidence unless Mr. Johnston commits a further act of contempt of court between now and the sentencing hearing. Mr. Fakih may wish to submit a victim impact statement for the hearing.

[16] Similarly, Mr. McCuaig advised that Mr. Johnston does not intend to file evidence for sentencing.

[17] As no further evidence is being adduced by either party, it is only necessary to schedule dates for the delivery of factums and for a half-day hearing.

[18] I indicated that the court has time available for this matter in late September.

[19] Mr. McCuaig advised that he does not have a single half-day time slot available before early November. Mr. McCuaig is not prepared to accept the retainer to appear on any date before November as he says he would be sacrificing the interests of other clients and he is not prepared to do so.

[20] Mr. Lisus advised that he too has a busy schedule, but that he would make himself available on any day that the court can hear counsel in view of the importance that Mr. Fakih places on this matter.

[21] I have taken several opportunities to press on Mr. Johnston the importance of retaining counsel. He was provided with a lengthy opportunity to do so. This matter commenced in April. My several endorsements leading up to the hearing on July 28, 2021 detail the efforts made to accommodate Mr. Johnston’s entitlement to retain and instruct to counsel.

[22] I cannot ignore Mr. Johnston’s public statements that he uses the expression of a desire for a lawyer tactically and that he does not retain lawyers in civil matters. These statement are quoted in my July 29, 2021 endorsement. Similarly, I am struck by the convenience of Mr. Johnston’s ability to find a way to retain Mr. McCuaig now after swearing under oath that absent an adjournment to seek a Rowbotham order he is unable to afford to retain Mr. McCuaig.

[23] Of course, I do not know the details of the relationship between Mr. McCuaig and Mr. Johnston. Nor should I. I have only the evidence adduced before me on which to make findings and to draw inferences.

[24] Mr. McCuaig submits that it would be unfair to Mr. Johnston to schedule the sentencing hearing before he is available in November.

[25] I have a particular difficulty with this submission in light of Mr. McCuaig’s advice that Mr. Johnston does not intend to file further evidence. In essence, that means that Mr. Johnston will not be putting forward evidence of any efforts to purge his contempt. Neither will he be adducing evidence of mitigating factors – the burden of proof of which lies with him.

[26] Justice Ferguson made the following finding about Mr. Johnston’s defamatory campaign against Mr. Fakih:

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.

[27] Having found expressly that Mr. Johnston continues to make racist slurs against Mr. Fakih in his internet broadcasts, knowing that he has not committed to stop doing so, and now being told that he is not intending to file evidence, leaves me greatly concerned that Mr. Johnston continues to present a very serious risk of continuing to violate the injunction. He has done nothing to indicate any acceptance of the legitimacy of this court’s rulings despite my finding him liable for contempt of court.

[28] In my view, it is not reasonable to ask, and I am not prepared to agree, to subject Mr. Fakih to the unmitigated risk of Mr. Johnston continuing his campaign of making online racist slurs against Mr. Fakih for another three months.

[29] Mr. Fakih already has a judgment from this court. While Mr. Johnston surely has rights deserving of protection, so too does Mr. Fakih. At this stage, I weigh the need to enforce the court’s order and to protect Mr. Fakih as more significant than Mr. Johnston’s belated and tactical request to retain a lawyer with no availability for three months.

[30] I schedule the sentencing hearing to proceed by videoconference on September 22, 2021 for 2.5 hours. I am prepared to start court at 8:00 a.m. and to run to 9:30 a.m. for two days in a row if that would assist Mr. McCuaig. Or, the hearing can commence toward the end of the afternoon to accommodate Mr. McCuaig. However, if Mr. McCuaig cannot find a way to be available, then Mr. Johnston will have to look for other counsel. I note that Mr. McCuaig confirmed that he has not spent time reviewing this matter. So there is no investment lost nor any need for any greater time for new counsel to get up to speed.

[31] Mr. Lisus and Mr. Holmberg shall serve, file, and upload to Caselines a factum by September 8, 2021. Mr. Johnston’s factum shall be served on the plaintiffs’ counsel, filed through the Civil Submissions Online portal, and uploaded to Caselines, by September 15, 2021.

Motion to Intervene

[32] Counsel for the National Council of Canadian Muslims attended the case conference after indicating a desire to do so by letter dated August 6, 2021. The NCCM wishes to make submissions on sentencing concerning the effect of Mr. Johnston’s conduct on the Muslim community in Canada. It is far from clear to me that intervention is appropriate in a sentencing hearing. Similarly, I do not know if the NCCM might be entitled to deliver a comminute impact statement.

[33] Counsel for the NCCM will deliver a motion record for a motion in writing to intervene by August 17, 2021. Mr. McCuaig asked to have to September 10, 2021 to respond. As the motion record should include the proposed submissions to be made at the sentencing hearing, there is no impact on the schedule otherwise.

F.L. Myers J.

Date: August 12, 2021