By JOSEPH G. LARIOSA
(© 2017 Journal GlobaLinks)
CHICAGO (JGL) – Justice Frederick L. Myers of the Ontario Superior Court in Toronto has affirmed on March 8 the order of Justice Sidney Lederman to
hold Tess Cusipag, publisher-editor of Balita Newspaper and its publisher Balita Media, Inc. (Media Defendants) in criminal contempt of the injunction, giving them “fair warning that the order of Justice Lederman remains binding on them and is to be obeyed in letter and in spirit” in an endorsement made public Thursday (March 23), according to records provided this reporter by Emilie Smith, Media Relations of the Communications Branch of the Ministry of the Attorney General.
Justice Myers made the injunction permanent, enjoining “Media Defendants directly and indirectly, from publishing and/or broadcasting, or encouraging or assisting others to publish or broadcast any statements in any manner whatsoever which in their plain or ordinary meaning or by innuendo suggest:
1. In relation to fundraising activities for Kalayaan (Independent) Cultural Community Centre (“KCCC”), Senator Enverga committed criminal fraud; and
2. That by virtue of Senator Enverga's involvement in fundraising activities for KCCC in 2001 and by virtue of his statements in relation to the charitable status of the Philippine Canadian Charitable Foundation (PCCF), he is a pathological or biological liar.
Myers said sentencing on the contempt motion “will be scheduled at a case conference to be held after my reasons are released.”
The injunction order was issued by Justice Lederman following the complaint of Filipino Canadian Sen. Tobias C. Enverga, Jr. that even after Media Defendants lost in a summary judgment in a defamation suit last July 13, 2016, the Media Defendants “continue to make defamatory statements against the plaintiff and has shown no interest in stopping her efforts or refraining from misconduct.”
Aside from Cusipag, her other co-defendants in the defamation suit are the deceased Carlos Padilla, the president of KCCC, deceased Consolacion “Mama Ching” Quejas, also president of KCCC; and Romeo P. Marquez (a.k.a. Romy Marquez), who wrote the alleged defamatory article.
MEDIA DEFENDANTS LOSE $340,000 IN DAMAGES
|SENATOR TOBIAS C. ENVERGA, JR.|
Justice Lederman ordered Media Defendants liable to pay plaintiff $150,000 for general and aggravated damages, $100,000 for punitive damages, interests and cost and an additional “substantial indemnity basis fixed at $90,000."
In ruling against Media Defendants, Lederman said defendants have no reliable evidence to prove the truth of the $6,000 fraud allegation or the PCCF donation/tax credit allegation.
Lederman faulted Ms. Cusipag for admitting, “on discovery that it is not true that Senator Enverga committed a fraud in relation to fund raising activities and that the PCCF allegations are false.”
Lederman issued an injunction as “Cusipag vows to continue to make defamatory statements against the plaintiff and has shown no interest in stopping her efforts or refraining from misconduct.”
The justice pointed out that in 2010, after Senator Enverga was elected as a Catholic school board trustee, he arrived late to a press event held by Cusipag. She published a warning to Senator Enverga. “First off is to respect the press who can wield its power to make or break you.”
In the article and on her Facebook page, she is fulfilling the threat that she made against the plaintiff in 2010 that would destroy him, Lederman said.
MOTIVATED BY MALICE
Lederman added Cusipag was motivated by malice as she “obviously holds a deep-seated resentment towards Senator Enverga. She used his comments to the Philippine press as a springboard to vent her unfounded allegations in the published article and her Facebook to intentionally besmirch Senator Enverga's reputation in the Filipino-Canadian community.”
Cusipag is appealing Justice Lederman’s damages award to the Court of Appeal for Ontario but not the findings of liability found against her by Lederman.
Cusipag’s lawyer, James H. Chow, argues that all the findings against his clients “relate to criminality or the accusation that the plaintiff is a pathological or biological liar.” Unless those elements were repeated by the Media Defendants, they cannot have breached Justice Lederman’s judgment.
Lederman also faulted Media Defendants for disseminating an email dated Oct. 6, 2016, under the subject line: “This is the truth, the two witnesses were both dead and Cantos testimony came late but Enverga pinned it on me. But the truth is the truth.”
The email was forwarded to this correspondent, attaching an affidavit of Willie Cantos that Lederman ruled inadmissible.
Cusipag said when Cantos was available to be deposed, the schedule of discovery was already over.
When asked by this correspondent why she lost in the case, Cusipag said her “witnesses were dead … this (Cantos) affidavit was obtained because of that but it was too late. I am trying to disseminate this to all our contacts, (sic) Community knows the truth here.
“Carlos (Padilla) was so engrossed in getting him to be held accountable while he was alive.
"Enverga I thought would stop when Carlos died of stress, but he did not and instead blamed me for everything. They filed a motion for summary judgment against me.”
MEDIA DEFENDANTS “NO BREACH” OF LEDERMAN’S ORDER
In defense of his clients, Mr. Chow argued “even if the Media Defendants’ new publications were careless and unprofessional, the court should be equally unable to find them to amount to a breach of Justice Lederman’s order beyond a reasonable doubt.
“I do not see the cases as equivalent” to the decision of Justice Edward P. Belobaba in Quenneville v Volskwagen, 2016 ONSC 4607 (CanLII), Chow said. “There is nothing equivocal either in the injunction granted or in the Media Defendants’ conduct in this case. I see no room for doubt that, good to their word, the Media Defendants have repeated and encouraging other to publish the very same allegations that they admitted to be false and were found to be false by Justice Lederman and which they knew they were enjoined from re-publishing.”
In the case of “Quenneville,” one the responding parties, Joshua Merchant, a lawyer of Merchant Law Group LLP (“MLG”) accused of “scooping” or recruiting parties as joinders as either individual parties in a suit or of a class suit, was accused of breaching the “December 4 (, 2015) Carriage Order” based on the “February 12, (2016) Endorsement.”
Justice Belobaba dismissed the motion for contempt against Merchant because the email blast Merchant sent out took place on Feb. 8, 2016, which preceded the “February 12 (, 2016) clarification” and did not find Merchant in violation of the contempt of court beyond reasonable doubt.
In my interview with Ms. Cusipag, she denied sending any alleged offending email message to a Senator in Canada mentioned in the complaint. She said she is investigating the possibility that someone hacked her email account and sent the offending email messages to the Canadian senator. She said she would like to see the full “header/s” of the said email messages to find out the original sender/s of the offending messages.
Mr. Chow distanced himself from his clients for alleging that they “lost before Lederman J. because of the effect of the unseen hand of conspiracy rather than a just holding on the admitted facts and the applicable law.”
Chow said, “(H)is clients’ racist slur (are) aimed at Mr. Justice Lederman and Mr. (Howard K.) Winkler (Enverga’s lawyer), who are alleged to be both Jews. He advised that his clients now understand that such hateful statements are wholly inappropriate.”
Justice Myers, in turn, said, “It strikes me that this is a first and welcomed step toward purging the Media Defendants’ contempt. The court encourages the Media Defendants to take further steps to purge their contempt so as to demonstrate concretely and completely their respect for the orders of the Superior Court of Justice and bring this entire ordeal to a quick and final conclusion.”
Contrary to a blogsite, https://balitanewsboycott.wordpress.com, lampooning Balita, a Toronto fortnightly, Cusipag said in keeping with the advice by her lawyer, she was asked not show up during the oral argument of the motion for contempt.
The blogsite said, "Perhaps fearing embarrassing taunts from the gallery in the event the proceeding went against them, neither Cusipag nor Marquez showed up at the hearing, although Cusipag was reported having been somewhere in the building looking very nervous and worried."