Contempt of an Injunction Restraining Defamatory Statements

The Dispute

Two shareholders of a private company had been in dispute for years, and during examinations under oath one of them objected to the interpreter and questioned the interpreter’s credentials. Over the following week he circulated written material about the interpreter and the opposing law firm, and left copies in that firm’s office building. The other side obtained a court order restraining him, then applied to have him punished for breaching it.

The Parties’ Positions

The applicant shareholder applied under Rule 22-8(1) of the Supreme Court Civil Rules to have the respondent found in contempt of an order granted on short notice. That order restrained him from “slandering, publishing or causing to be published any defamatory statements directly or indirectly referencing” the opposing law firm, its partners and its employees. It framed the application on the three elements the Supreme Court of Canada set out in Carey v. Laiken. Those elements require an order that states clearly and unequivocally what is to be done, actual knowledge of the order, and an intentional act that the order prohibits. It relied on emails and postings sent from the respondent’s own address in the days after service, on the repetition of the same complaints and the same photograph used beforehand, and on evidence that the firm had engaged the interpreter only once.

The respondent resisted the application on four grounds, contending that the evidence was hearsay, that the order was not sufficiently clear because it did not specify what the “Defamatory Statements” consisted of, that the statements were not defamatory, and that nothing proved he was their author. His affidavit attested that two lawyers had told him the interpreter had worked for the firm for ten years, that she held no certification, that he believed the material he had prepared was true, and that his daughter had made the postings that followed the order.

The Court’s Decision

The court rejected the hearsay objection and the contention that the statements were not defamatory, finding that while there was some truth in the comments they went further and were clearly intended to damage reputations. It was satisfied that the meaning of “Defamatory Statements” was abundantly clear to the respondent, the order having come immediately on the heels of the material he was distributing. It did not accept that his daughter had authored the later postings, observing that the complaints were the same, that the publications bore striking similarities and the same photograph, and that she had sworn no affidavit.

Satisfied beyond a reasonable doubt, the court found the respondent in contempt and directed him to appear within sixty days to purge it. The finding left the respondent exposed to committal or a fine in a proceeding that had begun as a shareholder dispute.

Key Lessons for Parties Bound by an Injunction and Those Enforcing One

• Treat a general restraint as covering the conduct that immediately preceded it. The court was satisfied that the meaning of “Defamatory Statements” was abundantly clear to the respondent because the order followed directly on the material he had been distributing.
• Take a genuine ambiguity in an order back to the court that granted it. The respondent wrote to opposing counsel saying that the particulars of the restrained statements were unclear, and that correspondence did not answer the application when it was heard.
• Support an attribution to a third party with that person’s own evidence. The respondent’s affidavit attributed the later postings to his daughter, and the court recorded that no affidavit from her had been filed before declining to accept the attribution.
• Expect a court to compare publications made on either side of an order. The applicant established authorship circumstantially, from the same complaints, the same photograph and the respondent’s own email address appearing in material published on both sides of the order.

The outcome of this matter turned on the terms of the order, the conduct that preceded it and the evidence before the court on the application. A similar application may resolve differently.

ATAC LAW acts for applicants and for respondents in injunction and contempt proceedings in the Supreme Court of British Columbia.

This matter was conducted by Dan H. Griffith, who acted for the respondent on the contempt application.