The Price of Contempt

In August 2018, Justice Patillo granted summary judgment (see here) permitting recognition and enforcement in Ontario of US judgments against the defendants, Imran and Naeem Butt, in undefended actions for trade-mark and copyright infringement. The Butts were subsequently held in contempt of the judgment of Justice Patillo (see here). Their contempt consisted principally of streaming television and movie content belonging to the plaintiffs over various networks. The most recent judgment imposes the penalty for the contempt.

The plaintiffs sought jail terms for Imran and Naeem of four and six months respectively. The defendants proposed conditional sentences to be followed by probation.

Justice Koehnen carefully considered the facts and the nature of the ongoing contempt, in Canada and elsewhere.  After reviewing the provisions of the Criminal Code and determining that the defendants had “substantially complied” with the underlying judgment, he noted that were “several mitigating factors”:

The Defendants did ultimately stop streaming any content that belonged to the plaintiffs. They made efforts to communicate with service providers to shut down the server accounts over which the plaintiffs’ content had been transmitted. As noted, the Defendants also assigned the Shava TV name, logo, trademarks and copyrights to Dish Network. The assignment agreement should help the plaintiffs should they want to take further steps to shut down servers which they fear are not permanently disabled or if they should want to remove other Shava TV websites from the Internet. In addition, the assignment agreement commits the Defendants to never again use any of the plaintiffs’ copyrights or trademarks.

Justice Koehnen imposed a conditional discharge subject to probation of two years less a day, noting that if the defendants refrained from any further contempt, they would emerge without criminal records.  Justice Koehnen remains seized of the matter and he cautioned that should further contempt occur, criminal records are likely to follow.

In coming to this decision, Justice Koehnen examined and rejected the possibility of imposing a fine:

While there is no direct evidence before me of the Defendants’ ability to pay a fine, I infer from the record that they are of relatively modest means and would not have the ability to pay a material fine. Moreover, a fine would do little for anyone. It would not provide the plaintiffs with any relief and, if anything, would only diminish the ability of the Defendants to pay a cost award in the plaintiffs favour.

The Court also observed that the defendants were already facing liability in excess of USD $30 million arising from the US judgments.

Justice Koehnen ordered the defendants to pay costs in the amount of $484,305, observing:

Given the amount of the judgments that the plaintiffs have already obtained against the defendants and their likely means, the question of costs may, in any event, be more academic than real.

Justice Koehnen’s Reasons for Judgment can be found here.