[1] 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.

[2] The plaintiff now moves for a permanent injunction, restraining Mr. Verdun from repeating or publishing, in any manner whatsoever, any statements about the plaintiff, directly or indirectly. For further particularity, the plaintiff sets out various statements the defendant has made about him, as outlined in the amended statement of claim and reply for inclusion in the order. The plaintiff also seeks costs for the action through to the end of the trial, in the all-inclusive sum of $215,919.32.

[3] The defendant claims that, as a result of the misconduct of the plaintiff and his counsel, and their lack of "clean hands", the plaintiff has no right to seek equitable relief against him and is not entitled to his costs. The defendant asks that no injunctive relief be imposed on him, that there be an order restraining the plaintiff from interfering with the publication or circulation of his book filed as Exhibit 12 at the trial, and that he be awarded $2 million in costs. [page794] Overview

[4] Robert Astley joined Mutual Life of Canada after graduating in 1966 from the University of Manitoba with a degree in science and a particular interest in a specialized branch of mathematics or actuarial science. He stayed at Mutual Life for most of his career (except for a three-year period when he took actuarial courses and worked as a pension consultant in Toronto), working his way to become CEO and president in 1993.

[5] Mr. Astley held that position in 1999 when Mutual Life converted to Clarica Life Insurance Co., which merged with Sun Life in 2002. He then became president of Sun Life Financial (Canada) to oversee the integration of Clarica and Sun Life in Canada. After he retired in 2004, he joined the Bank of Montreal ("BMO") as a director and the Canada Pension Plan Investment Board ("CPPIB") in 2006. He was appointed chairperson of the said board in October 2008, a position he holds today.

[6] His community and charitable work includes being chair of the Stratford Festival from 1990 to 1992, a member of the dean's advisory board for Wilfred Laurier University and establishing a family charitable foundation which funds projects for troubled youth in the Kitchener-Waterloo area.

[7] Cogent evidence adduced at trial characterized the plaintiff as a remarkable individual and businessman with high ethical and moral standards who is well-respected throughout the Canadian business community.

[8] Robert Prichard, formerly president and CEO of Torstar Corporation and dean and president of the University of Toronto, described Mr. Astley as "one of the finest directors" he has worked with over 15 years and a person who enjoyed a high degree of admiration and respect by his colleagues. He further attested to his "total integrity, modesty, and courteous nature".

[9] David Ganong, chairperson of the board of Mutual Life in 1999 and later, Clarica for three years and who worked closely with Mr. Astley, describes him as "an astute business person who deeply cared for the employees (of Mutual Life) and the community of Waterloo, and a "very great man of integrity and moral structure".

[10] David Galloway, CEO of Torstar until 2002 and now chair of the board at BMO, characterized Mr. Astley as "one of the most respected business people in the country", adding, "This is a great Canadian."

[11] Mr. Verdun's defamatory comments about the plaintiff relate to Mr. Astley's alleged destruction of Mutual Life in 1999, [page795] then Clarica and Sun Life, and his appointment to BMO's board of directors and, later, as chairperson of the CPPIB.

[12] Over several years, the defendant has called the plaintiff, among other things, unethical, corrupt, dishonest, a petty operator, lacking in integrity and motivated by greed. He made the impugned statements either in a public forum or in a manner designed to circulate them to a wide public audience, in some cases to millions of people who were shareholders in public companies.

[13] Mr. Verdun voiced his slanderous statements about Mr. Astley, not only at BMO's Annual General Meetings ("AGM") in February 2005 and March 2007, but also at the Canadian Imperial Bank of Commerce ("CIBC") and Royal Bank of Canada ("RBC") AGM in February 2005, the Bank of Nova Scotia ("Scotiabank") AGM in March 2006 and the Torstar AGM in May 2007, though the plaintiff had no connection with the latter financial institutions.

[14] Mr. Verdun also sent letters and correspondence, now found to be libellous, to David Galloway, chairman of BMO, on December 2, 2004; to Tony Comper and other BMO board members in January 2005; and in shareholders proposals widely circulated by mandate to BMO shareholders in November 2005 and November 2006. He also sent a letter of complaint to the Ontario Securities Commission in February 2006 which was released to the media.

[15] Mr. Verdun's stated goal to this day is to have Mr. Astley dropped as a director of BMO and as chairperson of the CPPIB. There was evidence at trial that may reasonably have led the jury to find, as they did, that the defendant's statements against Mr. Astley were motivated by malice.

[16] Despite this, the defendant has stated loudly and clearly that he intends to continue to disparage and discredit the reputation of the plaintiff. He claims that, in his self- defined role as a "shareholder rights advocate", he has a right to do so and any limitation of those rights would infringe his constitutional right to freedom of expression. Indeed, he has published a book entitled The Fox in Charge . . . of the Biggest Henhouse in Canada! (the "book"), in which he continues to defame the reputation of the plaintiff, alleging that he is a white collar criminal who should be jailed for fraud and sentenced to 14 years in prison.

[17] Notwithstanding several requests that the defendant cease his defamatory conduct, made both prior to the commencement of the action and thereafter, he has refused to do so. In his book, he expands and amplifies his defamatory comments about the plaintiff. The defendant, in his submissions, claims that the book falls outside the jury's findings and was based on additional research [page796] conducted after the statements were made which formed the subject of the action against him. I reject this argument. The book was made an exhibit at trial and additional copies of it were made available to the jury during its deliberations. The defendant gave evidence related to the "research" which he alleges underlies his criticisms of the plaintiff elucidated in the book. Clearly, the jury considered this when making its decision.

[18] The defendant makes reference in this motion to the oath of office sworn by the plaintiff and his duty to act with honesty and the highest ethical standards while conducting his official and private duties in a manner that will bear "the closest public scrutiny" and that "clearly exceeds the legal minimums". Not only did the defendant enter that oath of office as an exhibit at the trial, but he referred to it in his evidence, examination and cross-examination of witnesses, and his address to the jury. This is not new evidence.

[19] What the defendant is attempting to do here is to relitigate his case. The Injunction

[20] It is well-settled law that, in appropriate circumstances, a court may grant an injunction to prevent a defendant from continuing to disseminate defamatory material that affects a plaintiff's reputation: see, for example, Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, [2004] O.J. No. 2329 (C.A.), at paras. 77-79.

[21] Permanent injunctions have consistently been ordered after findings of defamation where either (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible: see Hunter Dickinson Inc. v. Butler, [2010] B.C.J. No. 1332, 2010 BCSC 939, at paras. 75-79; Griffin v. Sullivan, [2008] B.C.J. No. 1333, 2008 BCSC 827, at paras. 119-27; Newman v. Halstead, [2006] B.C.J. No. 59, 2006 BCSC 65 at paras. 297-301; Cragg v. Stephens, [2010] B.C.J. No. 1641, 2010 BCSC 1177, at paras. 34-35, 40.

[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 [page797] 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 p. 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.

[26] Though unnecessary, I note in passing that the second branch of the criteria for ordering a permanent injunction is also satisfied in this case. The defendant repeatedly stated during the proceedings that he is impecunious. Indeed, two costs awards in favour of the plaintiff remain outstanding, as well as other cost awards against him arising from other proceedings which he claims he is unable to pay by reason of his impecuniosity.

[27] Thus, there is a real possibility that the plaintiff will not receive any compensation from the defendant in satisfaction of the jury's awards.

[28] Before I leave this subject, I will deal with the defendant's allegations of misconduct as against the plaintiff and his counsel, Brian Radnoff and Don Jack. According to the defendant, "[t]here is overwhelming evidence of misconduct by the plaintiff and his counsel that destroys any possible right the plaintiff might have had to seek equitable relief in the form of an injunction".

[29] His submissions on this motion included an exhaustive review of the proceedings in the action, as it progressed. In the [page798] process, Mr. Verdun has accused both counsel of perjury, willful misconduct and professional incompetence which he alleges "tainted" the jury's verdict. In his words, the lawyers "intentionally misled me and did not act with integrity throughout the entire proceeding".

[30] I have read and reviewed all the allegations of the defendant underlying these assertions and have found them to be misguided and without any foundation whatsoever. At trial, their presentation of the case was thorough and fair in all respects. Indeed, I found both counsel to be reasonable, patient and helpful to the court and to Mr. Verdun regarding procedural and other matters. Counsel's behavior, in my view, conformed with the highest ethical standards expected of lawyers involved in civil litigation with an unrepresented defendant. Without exception, their conduct as officers of the court was fair and exemplary throughout this proceeding. I totally reject this argument of the defendant. In my view, it is completely without merit.

[31] The defendant also objects to the wording of the proposed injunction, claiming it is improperly phrased in a manner "so broad, vague and general" that it is unconscionable. At the same time, he argues that the particularized items in paragraph three are too excessive and detailed.

[32] I have considered how to best give effect to the jury's verdict. In doing so, I take cognizance of the fact that they rejected the defendant's defences of qualified privilege, fair comment and responsible communication, in every instance. They also found "malice" or ill-will on the part of the defendant. In the result, they awarded the plaintiff $250,000 in general damages and $400,000 in aggravated damages.

[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 [page799] 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. Conclusion

[37] The plaintiff's motion is allowed. Orders to issue against the defendant as outlined above. In summary, for over six years and possibly more, Mr. Verdun has admittedly engaged in a campaign to discredit the plaintiff. The jury has spoken. It is time for this vitriolic campaign to end. He must also understand that the consequences for deliberately failing to comply with a court order or disobedience of such an order may lead to proceedings for contempt of court. The Costs

[38] The plaintiff has submitted a costs outline requesting costs of the action on a partial indemnity basis in the sum of $215,919.32. He has removed the costs relating to all steps in the litigation for which costs were previously awarded, including the pleadings motion, summary judgment motion and a motion to amend the pleadings. On this principle, the bill of costs does not include costs dealing with the defendant's request to adjourn the trial originally scheduled for September 2010, or a significant portion of the preparation costs to that date.

[39] The trial, including jury selection, lasted approximately 10.5 days. The parties produced hundreds of documents. There were two days of examinations for discovery, a mediation, three pre-trial conferences, a trial management conference and an appearance in motion scheduling court. At the same time, actual trial time was reduced due to certain admissions made by the defendant. [page800]

[40] On December 18, 2009, the plaintiff served the defendant with a Rule 49 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] offer to settle, and achieved a significantly better result at trial. In cases where defamatory statements are found to be made against the plaintiff for malicious reasons and with an ulterior motive, costs on a substantial indemnity have been awarded (see, for example, Vigna v. Levant, [2011] O.J. No. 343, 2011 ONSC 629). Nevertheless, despite the jury's specific finding that the defendant acted with malice and the Rule 49 offer, the plaintiff only requests partial indemnity costs for the action. No claim is made for the time and attendance of counsel's student-at-law, Dylan Scott, or clerk, Melissa Schiestel, at the trial.

[41] In his submissions, the defendant did not dispute the items claimed by the plaintiff in his costs outline. The rates charged, the hours spent, the experience of the lawyers and the results achieved justify the amount claimed which would reasonably have been in the contemplation of the parties. I find it is fair and reasonable on a Rule 57 analysis, and award the plaintiff his costs in the all-inclusive sum of $215,919.32, payable forthwith.