Buckle v. Caswell, 2012 SKQB 143

• Judge: Danyliuk, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 05, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKQB 143;(2012), 395 Sask.R. 286 (QB)

Buckle v. Caswell (2012), 395 Sask.R. 286 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AP.043

Wayne Buckle (plaintiff) v. Gay Caswell (defendant)

(2009 Q.B. No. 149; 2012 SKQB 143)

Indexed As: Buckle v. Caswell

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Danyliuk, J.

April 5, 2012.

Summary:

On an internet blog, Caswell made statements about Buckle, an attorney, including that he grew and used marijuana, used cocaine, had misappropriated funds, been disbarred, had breached the public trust, had misused his office and position and was a dishonest and despicable person. Buckle sued Caswell for defamation. Caswell did not defend, but stated that she would not apologize. The action was noted for default. Buckle applied for judgment under rules 114(4) and 119 and for an order under rule 122 for injunctive relief. Buckle sought $50,000 for general damages and aggravated damages for libel and costs fixed at $5,000.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 341 Sask.R. 281, granted judgment for Buckle, including damages assessed at $50,000, an injunction restraining Caswell from making further defamatory statements, a mandatory injunction requiring Caswell to make all reasonable efforts to remove the statements at issue from the internet and costs fixed at $5,000. Caswell appealed.

The Saskatchewan Court of Appeal, in a decision reported at (2010), 362 Sask.R. 141; 500 W.A.C. 141, dismissed the appeal. Caswell continued to make statements about Buckle on her internet blog. Asserting that Caswell was in contempt, Buckle sought remedies including jail, a fine, removal of the blog from the internet and solicitor and client costs.

The Saskatchewan Court of Queen's Bench found that Caswell was in contempt of court and in criminal contempt of court by breaching or failing to obey the court's judgment. She was sentenced to 30 days' imprisonment, which was suspended as long as she complied with the injunction granted earlier. Certain portions of Caswell's blog were to be removed from the internet. Caswell was ordered to pay solicitor and client costs to Buckle, fixed at $3,000.

Civil Rights - Topic 1843.1

Freedom of speech or expression - Limitations on - Defamation - [See Contempt - Topic 3325 ].

Contempt - Topic 42

General - Elements of contempt - Mens rea - [See Contempt - Topic 684 ].

Contempt - Topic 682

What constitutes contempt - Judgments and orders - Requirement of knowledge of court order - [See Contempt - Topic 684 ].

Contempt - Topic 683

What constitutes contempt - Judgments and orders - Requirement of clear and unambiguous order - [See Contempt - Topic 684 ].

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - On an internet blog, Caswell made statements about Buckle, a lawyer, that were found to be defamatory - Rothery, J., granted Buckle relief including an injunction restraining Caswell from making further defamatory statements and a mandatory injunction requiring Caswell to make all reasonable efforts to remove the statements at issue from the internet - Caswell continued to make statements about Buckle on her internet blog - Asserting that Caswell was in contempt, Buckle sought remedies including jail, a fine, removal of the blog from the internet and solicitor and client costs - The Saskatchewan Court of Queen's Bench found that Caswell was in contempt of court and in criminal contempt of court by breaching or failing to obey the court's judgment - A number of the new entries on Caswell's blog were "capable of damaging the plaintiff's reputation and lowering esteem of him amongst right-thinking persons within the community" - These were defamatory and were contrary to Rothery, J.'s judgment - Proof of personal service of that judgment on Caswell was filed - The judgment's terms were clear and certain - Caswell had intentionally acted in direct contravention of the judgment - Her acts in continuing to publish defamatory matter concerning Buckle, even after she was served with notice of this application, were intentional - All of the elements of contempt had been proven - See paragraphs 18 to 34.

Contempt - Topic 3325

Punishment - Imprisonment - When appropriate - On an internet blog, Caswell made statements about Buckle, a lawyer, that were found to be defamatory - Rothery, J., granted Buckle relief including an injunction restraining Caswell from making further defamatory statements and a mandatory injunction requiring Caswell to make all reasonable efforts to remove the statements at issue from the internet - Caswell continued to make statements about Buckle on her internet blog - Asserting that Caswell was in contempt, Buckle sought remedies including jail, a fine, removal of the blog from the internet and solicitor and client costs - The Saskatchewan Court of Queen's Bench, having found Caswell in contempt, imposed a sentence of 30 days' imprisonment, which was suspended as long as she complied with the injunction granted earlier - Even when dealing with overtly contemptuous behaviour, the concepts of punishment and deterrence could not "entirely overshadow a consideration of reformation and rehabilitation" - The appropriate disposition had to address all of those factors - As well, care had to be taken not to prevent legitimate expressions of opinion - The right to free speech, while not absolute, deserved protection - Therefore, the entire destruction of the blog was not ordered but only those portions that were identified as defamatory - However, the court was persuaded by Buckle's position on costs - Where it was necessary to apply to enforce an established civil right or court order through contempt proceedings, a cost award at or approaching a complete indemnity was appropriate - Caswell was ordered to pay solicitor and client costs to Buckle, fixed at $3,000 - See paragraphs 35 to 43.

Contempt - Topic 3326

Punishment - Suspended sentence - [See Contempt - Topic 3325 ].

Contempt - Topic 5108

Practice - Hearing - Adjournments - On an internet blog, Caswell made statements about Buckle, a lawyer, that were found to be defamatory - Rothery, J., granted Buckle relief including an injunction restraining Caswell from making further defamatory statements and a mandatory injunction requiring Caswell to make all reasonable efforts to remove the statements at issue from the internet - Caswell continued to make statements about Buckle on her internet blog - Asserting that Caswell was in contempt, Buckle sought remedies - Caswell, who was self-represented, requested an adjournment for "health reasons" and to meet with an unidentified out of province attorney - The Saskatchewan Court of Queen's Bench refused to grant an adjournment - The overarching consideration on such a request was to ensure that the hearing was fair - Buckle was entitled to enforce his judgment and to have his application dealt with expeditiously - Caswell was unrepentant and was "capable of articulating her position well" - There was no prejudice to her to proceed with the application - Further, an adjournment had the potential to bring the administration of justice into disrepute - Delay for delay's sake was not only inappropriate, but its effects could be deleterious - See paragraphs 10 to 17.

Contempt - Topic 5115

Practice - Hearing - Costs - [See Contempt - Topic 3325 ].

Libel and Slander - Topic 644

The statement - What constitutes defamatory statements - General principles - Disparagement of reputation - [See Contempt - Topic 684 ].

Practice - Topic 3073.1

Applications and motions - Applications - Adjournments - [See Contempt - Topic 5108 ].

Practice - Topic 7464

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - In contempt proceedings - [See Contempt - Topic 3325 ].

Cases Noticed:

Lindquist et al. v. Riendeau et al. (1987), 60 Sask.R. 60 (C.A.), refd to. [para. 13].

Zenkewich v. Eremko, [2002] Sask.R. Uned. 224; 2002 SKQB 494, refd to. [para. 13].

Markwart v. Prince Albert (City) (2006), 289 Sask.R. 71; 382 W.A.C. 71; 277 D.L.R.(4th) 360; 2006 SKCA 122, refd to. [para. 13].

Loh et al. v. Yang, [2007] B.C.A.C. Uned. 85; 2007 BCCA 358, refd to. [para. 14].

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [para. 22].

Botiuk v. Toronto Free Press Publications Ltd. - see Botiuk v. Bardyn et al.

Vellacott v. Laliberte (2012), 390 Sask.R. 120; 2012 SKQB 23, refd to. [para. 23].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 24].

Conway et al. v. Zinkhofer, [2007] A.R. Uned. 419; 2007 ABQB 2, refd to. [para. 25].

Baumung v. 8 & 10 Cattle Co-operative Ltd. et al. (2005), 269 Sask.R. 190; 357 W.A.C. 190; 259 D.L.R.(4th) 292; 2005 SKCA 108, refd to. [para. 31].

Regina (City) v. Cunningham, [1994] 8 W.W.R. 457; 123 Sask.R. 233; 74 W.A.C. 233 (C.A.), refd to. [para. 33].

Simpson Timber Co. (Saskatchewan) Ltd. v. Bonville et al., [1986] 5 W.W.R. 180; 49 Sask.R. 105 (Q.B.), refd to. [para. 38].

Canadian Copyright Licensing Agency ("Access Copyright") v. U-Compute et al. (2007), 361 N.R. 220; 2007 FCA 127, refd to. [para. 39].

Frontenac Ventures Corp. v. Ardoch Algonquin First Nation et al. (2008), 239 O.A.C. 257; 295 D.L.R.(4th) 108; 2008 ONCA 534, refd to. [para. 40].

Counsel:

Lawrence J. Zatlyn, Q.C., for the plaintiff;

Gay Caswell, on her own behalf.

This application was heard by Danyliuk, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following fiat on April 5, 2012.