[2] The material before this Court on this contempt motion is voluminous.
[3] The facts are summarized in the Interim Order of Akbarali J. dated May 10, 2021 and the Endorsement of Myers J. dated July 2, 2021. As background context, the defendants leased from the plaintiffs premises with a large tract of land next door to the plaintiffs’ property and signed a two-year lease, expiring April 30, 2021. The lease specified that it was to be used only for a single-family residential property. The lease incorporates the Ontario Real Estate Association Agreement to Lease, Residential Form 400. The lease provided for monthly rent of $4,500, with the first 10 months payable by post-dated cheques. Deposits of first and last month’s rent, plus 2 months’ security deposit were stipulated.
[4] Differences arose between the parties. On April 30, 2020, the Golds signed a Form N9 under the Residential Tenancies Act for early termination of the lease on April 30, 2020. The defendants did not move out on April 30, 2020 as agreed pursuant to the Form N9; indeed, they still inhabit the leased premises. Nor have they paid any rent since April 30, 2020. As at March 2021, $78,500 in back rent was due and owing.
[5] The defendants commenced this action in May 2020. Leave to amend the action pursuant to the draft statement of claim was granted by Myers J. in his Order of July 2, 2021. The action seeks damages pursuant to the Lease Agreement between the parties as well as damages in relation to damage sustained by the plaintiffs regarding mature trees cut down by the defendants on the leased property in violation of the provisions of the lease, and for defamation and online harassment by the defendants.
[6] The Interim Order of Akbarali J. states, inter alia, as follows:
[3] THIS COURT ORDERS that the Defendants, each of them, and anyone acting on their behalf, are restrained and enjoined from cutting down or making any changes to any trees, shrubs, or other vegetation on the leased property, in accordance with the terms of the lease agreement between the Defendants and 385 Ontario, and that if the Defendants identify any trees, shrubs or vegetation on the leased property that pose a danger, their solicitor will inform the solicitor for the plaintiff and no action will be taken without agreement between the parties or a Court order.
[4] THIS COURT ORDERS that until further order of the Court, the Defendants shall forthwith, and in any event by the end of the business day, May 13, 2021, remove public access:
(a) to all images or videos concerning Mr. Baghai, his family members or agents (explicitly or by inference) or any private information about Mr. Baghai, including any words or videos concerning the within litigation; and
(b) to all images or videos identified by the Plaintiff in this Motion, as being offending images or videos.
[5] That, forthwith, the Defendants, each of them, and anyone acting on their behalf, are restrained and enjoined from publishing, broadcasting, or communicating on the Anna Mae Gold YouTube Channel or elsewhere any defamatory or harassing words, images or videos concerning Mr. Baghai, his family members or agents (explicitly or by inference) or any private information about Mr. Baghai, including any words or videos concerning the within litigation.
[7] The Order of Myers J., dated July 2, 2021 continued the Interim Order of Akbarali J., dated May 10, 2021 pending the final outcome of the proceeding or further Order of the Court. In that Order, Myers J. further granted leave to amend the statement of claim and title of proceeding in the form attached to his Order as Schedule A, adding Shane Baghai as a party plaintiff. As well, Myers J. ordered that the defendants pay costs to 385277 Ontario Ltd. and Mr. Baghai in the amount of $15,000 all-inclusive on a partial indemnity basis, without prejudice to the plaintiffs’ right to seek a top-up to substantial or full indemnity after trial.
[8] It is the position of the plaintiffs that, following the Orders of both Akbarali J. and Myers J, the defendants have continued, in breach of the Orders, to cut down trees, shrubs and vegetation on the leased property, without consultation with the plaintiffs. Further, the defendants have continued to post derogatory, defamatory and harassing videos regarding and directed at Mr. Baghai, both directly and indirectly, and have failed to remove all images and videos, both direct and indirect, regarding the corporate plaintiff, Mr. Baghai, his family and agents, as required by the Orders of Akbarali J. and Myers J.
[9] The plaintiffs further state that the defendants have continued to live on the leased premises without paying any rent, and have not paid the costs ordered pursuant to the Order of Myers J.
[10] The issue to be determined is whether the defendants have breached and are therefore in contempt of the Orders of Akbarali J. and Myers J. as regards removal of trees, shrubs and vegetation; as regards continuing to post defamatory and harassing videos; and as regards failing to remove videos previously posted.
The Law Regarding Contempt of Court
[11] An Order for contempt to enforce an Order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained on motion, such as this motion brought before me.
[12] Pursuant to Rule 60.11 of the Rules of Civil Procedure, a judge, on a motion for contempt of court, may “make such order as is just, including imprisonment, payment of a fine, complying with any other Order and payment of such costs as are just. There are generally four penalty options available upon a finding of contempt: “no penalty (usually where the contempt has been purged); a suspended sentence (perhaps conditional upon some act or event occurring); a fine; or incarceration: Niagara (Municipality) (Police Services Board) v Curran (2002), 50 7OR (3d) 31, at para 20 (SCJ). Pursuant to Rule 60.11, the judge may impose other orders considered necessary.
[13] For a finding of civil contempt, three elements must be established beyond a reasonable doubt, as follows:
(i.) that the order alleged to have been breached must state clearly and unequivocally what should and should not be done;
(ii.) that the party alleged to have breached the order must have actual knowledge of it; and
(iii.) that the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
Carey v Laiken,2015 SCC 17, 2015 CarswellOnt 5237 at paras. 33-35
[14] In this case, I am satisfied that all of the criteria required for a finding of contempt have been satisfied beyond a reasonable doubt, as I will elaborate below.
[15] A party subject to an order must comply with both the letter and the spirit of the Order: Chirico v Szalas, 2016 ONCA 589, at paras. 54 and 57-58. The reason or motivation for breaching a Court Order is not an element considered in the test for civil contempt.
[16] In this case, having reviewed all of the evidence before me, I am satisfied that the defendants are in contempt of court, and have breached the Interim Order of Akbarali J. and the Interlocutory Order of Myers J., for the reasons that follow. They have, indeed, admitted such, but have attempted to make excuses for said breaches. As indicated above, such reasons or excuses are not elements considered in the test for civil contempt.
The Orders State Clearly and Unequivocally What Should and Should Not Be Done
[17] I have set forth, in relevant part, the Order of Akbarali J., which is continued by the Interlocutory Order of Myers J, above at para. 6. The Orders are clear, understandable, detailed and there is no ambiguity in what the defendants are and are not to do. As is apparent from having reviewed all of the evidence before this Court, the defendants do not indicate that they do not understand the Orders. Rather they have simply advanced excuses for not following the Orders, which excuses, as indicated above, are not elements to be considered in civil contempt.
The Defendants Had Actual Knowledge of the Interim and Interlocutory Orders
[18] The defendants were aware of the Orders. They had counsel who represented them on the motions before Akbarali J. and Myers J. Moreover, they acknowledged the subject Orders in affidavits and transcripts that were before me in evidence.
[19] As regards the prohibition from cutting down trees, shrubs and vegetation on the leased property, and the requirement to inform their solicitor who would inform the solicitor of the plaintiffs of any vegetation they considered dangerous, it was also made clear in the Order that no action would be taken without agreement between the parties or a court order. Despite this, the defendants have continued to remove trees without respecting the protocol set forth in the Order. Indeed, Ms. Gold admits that, on a Friday evening, the defendants advised their counsel by email of an issue, namely a tree, that they considered needed attention. Despite the fact that it was a weekend, and as Ms. Gold admitted, it was also the Jewish Sabbath, because they did not hear back from their counsel by email within 24 hours, they proceeded to cut the tree down without honouring the procedure set forth in the Order. Indeed, they admitted to this.
[20] In another video, Ms. Gold videotaped Mr. Gold removing small trees, shrubs and vegetation from around the house and deck. In that case, there was no attempt to notify the plaintiffs through the defendants’ counsel. Indeed, the defendants excuse their actions by stating that in this case, they were simply making an instructional videotape for their YouTube Channel regarding how to tend one’s property as regards vegetation, and that this had nothing to do with the Court Order. I do not accept this excuse. Again, this was a violation of the clear Orders of Akbarali and Myers JJ.
[21] As regards the videotaping, I have reviewed the videotapes and transcripts that have been posted since the Interim Order of Akbarali J., and am satisfied that these videotapes that have been posted online, continue to make reference to Mr. Baghai, his family and agents, both explicitly and by inference. The videotapes posted on line and on Ms. Gold’s YouTube Channel have continued unabated since both Orders were made. They continue to be crude, vulgar, harassing, threatening and defamatory. Further, many of such videos which existed before the Orders were made and were to be taken down by Order of the Court by May 13, 2021, continue to remain posted online and have not been removed from public access as was ordered by the Court.
[22] While counsel for the defendants submits that, for the most part, the impugned videos do not make reference to either the landlords, their family or agents, and that reference is being made to others such as Ms. Gold’s purported “phantom secret lover”, those who have followed her YouTube Channel would be able to understand these video clips within the entire factual matrix of her ongoing diatribe against the landlords and the litigation. The videos implicitly make reference to the landlords, their family and agents, as well as their counsel, using the same language as in videotapes made prior to the Orders. While it is also submitted that the clips of her going to the police station to be charged have nothing to do with this litigation, she is, of course, being criminally charged for harassment, which also arises from the same factual matrix as that involved in this action.
[23] Transcribed comments contained in these videotapes are set forth in the plaintiffs’ factum, paras. 21 to 30.
[24] While the Interim Order of Akbarali J. also required that the defendants remove from public viewing all videotapes taken prior to the Order which involve the defendants, their family, their agents and/or the ongoing litigation, I have reviewed those videotapes, which are in evidence before this Court, carefully, and am satisfied that they have not been removed from public viewing. Again, this is in breach of the Interim Order of Akbarali J, which is continued by the Interlocutory Order of Myers J.
[25] I find that the second prong of the test is satisfied.
The Defendants Intentionally Did the Acts Prohibited and Failed to do the Acts that the Order Compelled
[26] Following the Orders granted by both Akbarali J. and Myers J., the defendant, Ms. Gold, videotaped her husband taking down trees on the leased property, in contempt of the Orders. She further videotaped Mr. Gold cutting shrubs, new growth trees and vegetation around the house and deck. The taking down of trees, cutting of shrubs and vegetation are all in breach of the Order of Akbarali J., which was continued by Myers J. In none of these cases, was the protocol, set forth in the Order of Akbarali J. followed.
[27] Further, all of these videotapes were posted on her YouTube channel, although some were taken down after being posted for a brief time. Ms. Gold’s videotaping was undertaken and posted in breach of the subject Orders. Whether the videotapes were posted for a long period of time or a brief period of time, they were nevertheless posted in breach of the Orders and in contempt of court.
[28] In her videotapes, Ms. Gold indeed discussed the violation of the injunction/order, thus acknowledging it. She further admitted to cutting down trees after the injunctive order and without permission, on cross-examination on her affidavit filed in support of this motion.
[29] As regards posting of the videos, even for a short time, Ms. Gold explained her strategy in a video dated June 13, 2021, as follows:
Screenshots are meaningless. Sometimes they are up for barely a few seconds until I am satisfied that the receiving end has indeed received my message in a bottle.…
These messages start off pretty crude with lots of words and lots of explanation. Explicit explanation. And I add another layer that is usually a little bit more, a little bit more cryptic.…
Only my most dedicated audience, the ones that truly watch every video that I present, often in sequence, only to those, am I making any sense.… nobody other than my captive audience has any clue. Any clue as to who I am and who I am talking to. Only you know babe. Only you have been with me since this shit show started. Only you know, and you know who you are. Bring it on baby. Bring it on.…
[30] She has continued to post videos on her YouTube Channel since the Orders were made. In a video titled “The Miracle” posted August 7, 2021, she stated that she was posting the video in defiance of the Court Order, as follows:
Sorry not sorry… Step up to the plate, babe, I know you can dance fight me… Feel free to submit this video to the honourable judge as proof of my defiance. For what is defiance in the court of man, is salvation in the court of heaven.
[31] I am satisfied based on the foregoing, and on my review of all of the evidence before this Court, that the defendants have intentionally, and in defiance of the Court Orders, breached said Court Orders.
[32] I am therefore satisfied that the third prong of the test for contempt of court has been established. Thus, I find that the defendants are in contempt of court.
[33] As regards the failure to honour and respect the Orders of the Court or Tribunal, I also note that the defendants failed to comply with orders granted by the Landlord and Tenant Board to pay rent to the plaintiff, and further failed to pay costs of the motion before Myers J., as ordered by Myers J. While an order for payment of money cannot be the subject of a contempt motion pursuant to Rule 60.11 of the Rules of Civil Procedure, and while I have not considered this evidence in coming to my conclusion, these failures to comply with and honour Orders of the Court and Tribunal, are further illustrations of the defiance in which the defendants hold the administration of justice in Canada.
Sanctions to be Imposed
[34] As indicated above, pursuant to Rule 60.11 of the Rules of Civil Procedure, a judge, on a motion for contempt of court, may “make such order as is just, including imprisonment, payment of a fine, complying with any other order and payment of such costs as are just.
[35] The defendants have shown callous disregard for the plaintiffs and for any Order of this Court. The rule of law is the bedrock of a democratic and free society. Where the Court’s authority and Orders are ignored, and the administration of justice interfered with, the Court is empowered to punish for contempt.
[36] The defendants’ behaviour, which displays a flagrant and concerted effort to avoid the Court Orders against them, constitutes what D. Brown J. (as he then was) described in Mercedes-Benz Financial v Kovecevic, 2009 CarswellOnt 1142 at para. 10 as “conduct that undermines one of our country’s fundamental principles”. As stated by Morgan J. in his decision of March 27, 2015 “the defendant’s flaunting of court orders is not only a violation of the rights of the plaintiffs, it is an affront to the rule of law”.
[37] In this case, the plaintiffs seek the following alternate Orders to cure the contempt: adherence to all Orders of this Court, imprisonment, vacant possession of the leased premises. The plaintiffs submit that they will not feel safe in their own property until the defendants have been removed from the neighbouring leased property. In this regard, they cite, as precedent for such an order, the following cases: York Condominium Corp. No 82 v Singh, 2013 ONSC 2066 at para 59; Etobicoke (City) v Whitty, 1998 CarswellOnt 4223 (CA) at para 5.
[38] The plaintiffs further, and/or in the alternative, seek an order pursuant to Rule 60.12 which provides that where a party fails to comply with an interlocutory order the Court may, in addition to any other sanction imposed, stay a party’s proceedings, dismiss the parties proceedings or strike out the defence, or make such other order as is just.
[39] The defendants will be given the opportunity to purge their contempt of court.
[40] Firstly, the Orders of both Akbarali J and Myers J. are to be complied with in full.
[41] No trees, shrubs or vegetation are to be removed from the leased property except in compliance with the protocol set forth in the Order of Akbarali J. and continued by the Order of Myers J.
[42] I order that the defendants take down all the videotapes posted publicly which refer, both directly and indirectly, to the landlord, Shane Baghai, the Baghai family, their agents, the litigation and the factual matrix involved, including all videotapes posted publicly before and after the Orders were granted, which include all videotapes posted publicly before and after those listed in Schedule C of the plaintiffs’ factum, and appended to this Endorsement.
[43] All videotapes are to be taken down and removed from the YouTube Channel and the Internet by January 10, 2022 at the latest. No such videotapes are to be posted for even a brief moment and then removed. That would also constitute a breach of the Orders of the Court.
[44] The counterclaim of the defendants in this action is further to be stayed until such time as the ongoing Orders of both Akbarali J. and Myers J. and of this Court are fully complied with and honoured, or until further order of the Court.
[45] In the event that the defendants do not comply with the Orders of Akbarali J. and Myers J., and do not comply with the Orders herein, the parties will return before this Court for further sanctioning of the defendants, and potentially for incarceration and/or removal from the leased property.
Costs
[46] The parties are to provide me with their bills of costs, limited to three pages total within 10 days of release of this Endorsement."
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