CITATION: Zhong v. Wu, 2022 ONSC 4288
COURT FILE NO.: CV-19-00618097-0000
DATE: 2022-07-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
XINSHENG ZHONG
Plaintiff
– and –
JIAN WU
Defendant
Heng (Pandora) Du, for the Plaintiff
Jian Wu, Self-Represented Defendant
HEARD: July 18, 2022
KOEHNEN J.
REASONS FOR JUDGMENT
[1] In oral reasons dated May 16, 2022, I found the defendant Jian Wu to be in contempt of court. Mr. Wu did not attend the hearing on May 16, nor did he attend an earlier hearing on April 25, 2022.[^1]
[2] This hearing was intended to provide Mr. Wu with an opportunity to explain why he was not in contempt of Justice Dunphy’s order or, in the alternative, address the issue of the appropriate sentence for contempt if I continue to be of the view that Mr. Wu was in contempt of Justice Dunphy’s order.
Is Mr. Wu in Contempt of Court?
[3] On December 9, 2019, Justice Penny issued an order finding that Mr. Wu had defamed the plaintiff, Mr. Zhong. In addition, Penny J. ordered Mr. Wu not to make any further defamatory marks about Mr. Zhong. In a subsequent proceeding, Justice Dunphy found that Mr. Wu had breached Justice Penny’s order and had made further defamatory comments about Mr. Zhong. Justice Dunphy found Mr. Wu to be in contempt of Justice Penny’s order. On September 7, 2021, Justice Dunphy issued an order requiring Mr. Wu to publish an apology on social media chat sites on which he had published defamatory statements about the plaintiff. The plaintiff moves before me for an order finding Mr. Wu to be in contempt of Justice Dunphy’s order for failing to publish the apologies as required.
[4] Mr. Wu submits that he was not in contempt of Justice Dunphy’s order. I disagree.
[5] Justice Dunphy required Mr. Wu to publish a very particular text on social media websites on which Mr. Wu had defamed Mr. Zhong. The text that Justice Dunphy ordered Mr. Wu to publish had been worked out with and agreed to by Mr. Wu. As noted, Justice Dunphy’s order was dated September 7, 2021. When the matter first came before me on April 25, 2022, Mr. Wu had not published the letter that Justice Dunphy ordered him to publish. Instead, Mr. Wu published a text of his own making which repeated the defamatory statements he had made about the plaintiff. That amounted to contempt of both Justice Dunphy’s and further contempt of Justice Penny’s orders, although in this proceeding I address only the contempt of Justice Dunphy’s order.
[6] Mr. Wu did not address his contempt of Justice Dunphy’s order. Instead, Mr. Wu addressed what he says was a purging of the contempt by purporting to abide by my directions of April 25, 2022. In my endorsement of April 25, 2022, I directed Mr. Wu to publish the letter in the form required by Justice Dunphy within four days of April 25, 2022. Mr. Wu says he did so. The issue of whether he did so was addressed in my endorsement of May 16, 2022. As indicated in that endorsement, the plaintiff was able to find a PDF icon labelled letter of apology on the various social media sites in question, however, when he tried to open the icon, he received a message in Chinese to the effect that the document had “expired or had been cleared”. In his submissions at this hearing, Mr. Wu showed the plaintiff’s counsel his phone in an effort to demonstrate that the letter was accessible. The letter remained inaccessible on the plaintiff’s phone.
[7] It appears that if one posts a PDF document on the social media site at issue, access to the PDF may expire after a certain period. According to Mr. Wu, if one has downloaded the PDF before it expired, it is downloaded onto the user’s device and remains accessible. That would also mean that Mr. Wu has not complied with Justice Dunphy’s order because he has not posted the apology but has posted something that is accessible for only a short period of time. On Mr. Wu’s own explanation, the reason the letter is accessible on his phone is because he downloaded the letter when it was accessible on the social media website.
[8] The way to address that issue was to have the text of the apology posted, not as a PDF document, but as a text on the social media site itself. I note that I directed that Mr. Wu do just that in my endorsement of May 16, 2022. Despite that direction, Mr. Wu did not do so until after an hour of debate during this hearing about whether Mr. Wu would post the apology as a PDF document or as an actual chat text. He ultimately agreed to post it as a chat text. The text was posted on three social media sites on which Mr. Wu had published defamatory information about Mr. Zhong: CCTV International TV, the Multi-Cultural Group, and the Markham Thornhill Zongshiqing, during the hearing and was confirmed by plaintiff’s counsel.
[9] In the foregoing circumstances, Mr. Wu remained in contempt of Justice Dunphy’s order until the hearing on July 18, 2022 when he finally purged his contempt.
The Appropriate Sentence
[10] The plaintiff asks that I sentence Mr. Wu to 60 days in jail for his contempt.
A. Sentencing Principles
[11] The principal factors to consider in sentencing include the following:[^2]
a. the proportionality of the sentence to the wrongdoing;
b. the presence of aggravating or mitigating factors;
c. deterrence and denunciation;
d. the reasonableness of the penalty and the availability of sanctions other than jail; and
e. the similarity of sentences imposed on similar contemnors for similar acts of contempt committed in similar circumstances.
a. The Proportionality of The Sentence to The Wrongdoing
[12] Fashioning a proportionate sentence requires an understanding of the underlying contempt. As noted, the contempt here was the failure to publish a letter of apology. That letter has now been published.
b. The Presence of Aggravating or Mitigating Factors
i. Mitigating Factors
[13] The principal mitigating factor is that Mr. Wu has now purged his contempt by posting the letter apology as required. The mitigating impact of that factor is however reduced considerably because it required three court hearings to bring Mr. Wu to that point.
ii. Aggravating Factors
[14] The plaintiff notes that Mr. Wu has been in front of six judges in relation to the defamatory statements. All six have warned Mr. Wu that he was in the wrong and was on a dangerous path if he did not correct his course of action. Justice Dunphy expressly raised the possibility of jail.
[15] The plaintiff also notes that, as of March 2022, Mr. Wu has $115,000 in unpaid damage and cost awards in favour of Mr. Zhong. Mr. Zhong has received nothing on account of those awards which he advances as a further reason for seeking incarceration. Unpaid damage awards and cost awards do not, however, constitute a basis for incarceration. The law is clear that the plaintiff must enforce damage and cost awards through civil remedies not through threat of jail for contempt.
[16] In my view, there are three principal aggravating factors. First, it took three court hearings to get Mr. Wu to comply with Justice Dunphy’s order. Second, Mr. Wu still does not accept that he has acted in contempt of court. Third, Mr. Wu made a number of submissions today that suggest that he intends to continue publishing defamatory statements about the plaintiff and his lawyer. Those included statements to the effect that he would expose the plaintiff’s lawyer for the lies she told in court, that he has the right to write his member of Parliament to expose wrongdoing, that much of what the plaintiff said in his materials was not true, that the plaintiff is dishonest and makes things up and that the defendant has the right to express himself and publish news releases.
[17] I wish to make it abundantly clear to all that there was no evidence before me to demonstrate any of those allegations. There was nothing before me to suggest that the plaintiff had been dishonest or made things up, there was nothing to suggest that his lawyer had told lies to the court. Instead, Mr. Wu simply made bald assertions to that effect without providing any supporting evidence and without even providing examples of what he claimed were untruths. Indeed, at one point in his submissions Mr. Wu admitted that he had no evidence to support any of the defamatory comments that he had made about the plaintiff. At another point, Mr. Wu stated that the wrongdoing of which he had complained had occurred, but it was not the plaintiff who engaged in the wrongdoing. In saying that, Mr. Wu is in effect admitting that he has defamed Mr. Zhong.
c. Deterrence and Denunciation
[18] Although coercing a contemnor to comply is a primary goal of civil contempt sentences, deterrence and denunciation are important secondary considerations.[^3]
[19] The plaintiff notes that the legal system has suffered a serious wound where parties refuse to abide by court orders.[^4]
[20] Deterrence figures largely in my decision about the appropriate sentence. Sentencing Mr. Wu to jail for his past contempt does nothing to prevent the further allegations that the plaintiff is concerned about. It does not de-escalate the situation but risks escalating it further.
[21] It is clear to me that Mr. Wu is an individual who is full of passion but that that passion is seriously misdirected. Sending Mr. Wu to jail today will not correct that. Ideally, a sentence would be one that aims to deter Mr. Wu from future misconduct in relation to the plaintiff and his lawyer.
d. Reasonableness of Sanctions Other Than Jail
[22] A common approach to sentencing generally is to impose lighter sentences on first offenders with increasingly serious sentences for subsequent offences. That approach is particularly appropriate for contempt. In my view, it is all the more appropriate where the contempt has been purged. That would incline me to sanctions other than jail.
e. Comparison to Other Sentences
[23] The plaintiff cites Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic,[^5] as authority for the proposition that a person guilty of contempt can be incarcerated even after he has purged his contempt. In that case, the court sentenced the defendant to five days in jail after he had purged his contempt.
[24] Mr. Wu referred to a case for which he had no citation in which a judge from British Columbia ordered a fine of one dollar.
[25] In addition, Mr. Wu submits that any sentence for contempt should be light because he was pursuing a matter of public interest to the Chinese community in Canada. Pursuing an issue of public interest does not, however, give anyone the right to defame another person.
The Appropriate Sentence
[26] A more appropriate sentence here, in my view, is a conditional discharge subject to probation of 12 months.
[27] The discharge is conditional on Mr. Wu abiding by the orders of Dunphy J. and Penny J. during the 12 month probation period. That is to say, Mr. Wu may not, during the probationary period, repeat any defamatory statements about the plaintiff.
[28] If Mr. Wu repeats a defamatory statement about the plaintiff during the probation period, he will be subject to a criminal charge for breach of probation which can subject him to imprisonment of up to four years and will, if convicted, result in Mr. Wu having a criminal record.
[29] In addition, if Mr. Wu makes any defamatory statement about the plaintiff during the probationary period, he will be subject to further penalties for contempt. The plaintiff may bring such contempt proceedings before me. The penalty for any such contempt proceeding will have to take into account the fact that Mr. Wu has been treated leniently this time around yet still engaged in further breaches of a court order. The penalty for a further breach would in all likelihood result in a jail sentence because Mr. Wu will already have been given every chance to avoid jail and will have wasted those chances.
[30] This sentence achieves the compliance goal of contempt proceedings more effectively than would the immediate jail sentence that the plaintiffs seek. Securing future compliance appears especially important here given Mr. Wu’s suggestion during argument that he may repeat the defamatory statements in the future. The sentence provides a carrot and stick approach. If Mr. Wu takes the carrot and complies, he will avoid jail and emerge without a criminal record. If Mr. Wu repeats the defamatory statements, he will face the stick: a criminal charge for breach of probation, a criminal record if convicted and a further contempt proceeding that will in all likelihood result in a longer period of incarceration than the plaintiff now seeks. That provides substantial incentive for Mr. Wu to stop defaming the plaintiff.
[31] Probation orders in criminal matters are usually accompanied by certain conditions provided for in s. 731.1(2) of the Criminal Code, including an obligation to report to a probation officer and promptly notify the court or probation officer of any change of address, employment, or occupation. Given the circumstances of this case, I do not believe it necessary for Mr. Wu to report to a probation officer. However, I will require Mr. Wu to notify counsel for the plaintiff of any change of address, employment, or occupation during the probation period.
[32] As noted earlier, Mr. Wu appears to be an extremely passionate, although misdirected individual. I would strongly urge Mr. Wu simply to stop talking to anyone about the plaintiff (or his lawyer). His allegations against them have been entirely unfounded. Continuing to make those allegations will only land him in more serious difficulty. Given that the matter will be coming back before me, Mr. Wu will be dealing with a judge who is familiar with the history.
Costs
[33] The plaintiff seeks costs on a full indemnity scale of $11,380.59 including disbursements and HST. Those costs are more than reasonable for the preparation of a motion record, factum and three court attendances.
[34] In my view, the plaintiff is entitled to costs on a full indemnity scale. The plaintiff should not have had to bring this proceeding. Mr. Wu was completely in the wrong from the outset. Six judges have come to that conclusion.
[35] The principle behind reduced scales of costs is that courts do not wish to discourage parties from mounting meritorious claims even if they are ultimately unsuccessful. Mr. Wu’s position here had no shred of merit from the outset.
[36] In addition to the costs set out in paragraph 33 above, I also award the plaintiff the costs of providing an interpreter for the hearing. The interpreter was required by Mr. Wu. Mr. Wu did not provide his own interpreter although he had been directed by the court to do so. The interpreter, Ms. Zheng, was of great assistance to the court. Her rate is $95 per hour plus HST with a five-hour minimum. Five hours plus HST comes to $536.75. That also strikes me is more than reasonable.
[37] Mr. Wu will therefore pay the plaintiff costs of a total of $11,917.34.
Koehnen J.
Released: 2022-07-21
CITATION: Zhong v. Wu, 2022 ONSC 4288
COURT FILE NO.: CV-19-00618097-0000
DATE: 2022-07-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
XINSHENG ZHONG
Plaintiff
– and –
JIAN WU
Defendant
REASONS FOR JUDGMENT
Koehnen J.
Released: 2022-07-21
[^1]: Mr. Wu was reached by phone during the hearing on April 25, 2022. He stated that he was in the emergency ward of a hospital and could not attend. That hearing was therefore adjourned to May 16. [^2]: Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 at para. 89. [^3]: Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 at para 78, 81. [^4]: Ontario Securities Commission v. Robinson et al., [2010] 100 O.R. (2d) 451, paragraph 45. [^5]: Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic, 2009 CanLII 9423 (ON SC).