Permanent Injunction Granted in Landmark Ontario Libel Judgment

“The defendant, J. Robert Verdun (“Mr. Verdun”) has engaged in a deliberate, concerted and relentless campaign over a number of years to injure the reputation of the plaintiff, Robert M. Astley (“Mr. Astley”).  And he has done so with malice.  That was the clear and unequivocal verdict of the jury.”

The Honourable Madam Justice Chapnik, Ontario Superior Court of Justice in Astley v. Verdun.

Back on May 30th, 2011, Michael McKiernan of Law Times reported on a “Landmark ruling in libel suit”  :

A jury has awarded $650,000 to a director of the Bank of Montreal after finding renowned shareholder rights activist Robert Verdun had defamed him.

The award to Robert Astley, who is also chairman of the Canada Pension Plan Investment Board, included $400,000 for aggravated damages. That makes it one of the largest aggravated damages awards in Canadian history, lawyers believe.

The civil jury rejected Verdun’s defences to eight statements on May 20, finding all of them were defamatory and that he had acted with malice.

The verdict brings an end to a five-year legal battle between the two men over Verdun’s opposition to Astley’s appointment to the Bank of Montreal board.

On June 14th, 2011, in Astley v. Verdun, 2011 ONSC 3651 (CanLII), Madam Justice Chapnik granted the plaintiff, Astley a permanent injunction restraining the defendant, Verdun from disseminating, post on the Internet or publishing, in any manner whatsoever, directly or indirectly, any statements or comments about the plaintiff.

Chapnik, J. writes,

[22]      After the trial, this Court extended an interim injunction that had been granted against the defendant, pending further court order.  I am advised that, despite requests for Mr. Verdun to dismantle his blog about the plaintiff which repeated many of the defamatory statements that were the subject of the plaintiff’s action, he refused or neglected to do so. He did, however, eventually remove most of the identifying references.

[23]      Finally, the defendant’s submissions before me are calculated and premised upon his desire to continue to publish his defamatory statements contained in his book, and otherwise, against the plaintiff, in the guise of “the public interest.”  At page 519 of his book, the defendant states that he will continue to make negative comments about the plaintiff, even if a finding is made in the plaintiff’s favour.  In his words, “…I can never be silent about the dishonest, unethical and immoral public business conduct of Robert Astley.”

[24]      Mr. Verdun undoubtedly intends to continue his negative and defamatory campaign against Mr. Astley.  He not only refuses to offer any apology or retraction of his statements, but has extended the scope of his publications after the commencement of the action by publishing his book and posting statements on the Internet which he refused to disengage even after the jury’s verdict.  Indeed, he continues to assert the propriety of his criticisms and his defences which were soundly rejected by the jury.

[25]      In the circumstances, I find it highly likely that the defendant will continue to publish defamatory statements about the plaintiff despite the finding that he is liable to the plaintiff for defamation, absent an injunction restraining him from doing so.”

The trial judge adds,

[33]      Injunctive relief is an exceptional remedy that will not be imposed by the Courts lightly.  I certainly agree with the defendant when he states that any form of prior restraint on freedom of speech is extremely serious and can only be imposed in the clearest and rarest of cases.  This, however, is one of those cases.

[34]      This is so given the plaintiff’s high reputation and positions in the business community and the wide circulation of the defamatory statements calculated to destroy that reputation, as well as the strong likelihood that the publishing of defamatory statements against the plaintiff will continue and the real possibility that the plaintiff will not actually be compensated by the payment of damages.

[35]      Accordingly, I order a permanent injunction to issue against the defendant, J. Robert Verdun, restraining him from disseminating, posting on the Internet or publishing, in any manner whatsoever, directly or indirectly, any statements or comments about the plaintiff, Robert M. Astley.  This injunction shall include the publication, circulation and promotion of the book entitled “The Fox In Charge…” and any similar or other publications.  For further particularity, the defendant shall not publish or cause to be published or otherwise disseminate or distribute in any manner whatsoever, whether by way of the Internet or other medium, any statements or other communications which refer to Robert Astley by name, depiction or description.

[36]      There will also be a mandatory injunction requiring the defendant to forthwith remove his blog postings dated April 29, 2011 and May 2, 2011 from the Internet, and any similar postings that refer to the plaintiff, directly or indirectly.

Finally, Chapnik J. ordered Mr. Verdun to pay Mr. Astley the all-inclusive sum of $215,919.32 payable forthwith.

Ouch.

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