How far can a person go in criticizing a trustee and other professionals in a bankruptcy?
Dhillon was convicted of criminal contempt for breaching court orders made in connection with the administration of the Braich bankruptcy. The orders enjoined Dhillon and others from publishing “disparaging or defamatory statements about the Trustee, counsel for the Trustee, or any other person or entity connected to the administration of this bankruptcy”.
Dhillon contravened the orders. In 2010, he anonymously published two blog posts, which contained extensive information about the Braich bankruptcy, comments about the trustee in bankruptcy, its legal counsel, justices of the Supreme Court of British Columbia, some of whom made orders in the bankruptcy proceedings, and other persons alleged in the blog posts to be connected to the bankruptcy. The blog posts alleged or strongly implied criminal or civil wrongs such as dishonesty, incompetence, corruption, and unethical conduct.
Dhillon’s trial proceeded summarily between June 18, 2014 and January 22, 2015. At trial, he took the position that the contents of the blogs were true and, therefore, that the Crown could not prove beyond a reasonable doubt that the statements in issue were “disparaging or defamatory”.
On February 25, 2015, the trial judge found Dhillon guilty of criminal contempt for violating the orders. The trial judge held that “the truth or falsity of the statements in issue is not relevant in the determination of whether publication of those statements violated” the orders.
On appeal, Dhillon submitted that the trial judge erred by concluding that the orders were sufficiently clear to form the basis of a finding of criminal contempt. The orders provided that Dhillon was prohibited from making any “disparaging or defamatory statements about the Trustee, counsel for the Trustee, or any other person or entity connected to the administration of this bankruptcy”. Dhillon argued that this provision was too vague to be understood as applying to publication of information about judges presiding over bankruptcy proceedings, and that individuals have wide latitude to publicly criticize judges without attracting prosecution for contempt.
The terms of an injunction order on which a prosecution for criminal contempt rests must be free from ambiguity, vagueness, or uncertainty so that those governed by the injunction will know with precision what actions are forbidden. Anyone subject to court orders must be able to readily determine their obligations and responsibilities by having regard to what is on the face of the formal order setting out what they are required to do or refrain from doing. Terms cannot be implied or read into an injunction order.
The court will interpret the order in accordance with its ordinary meaning, taking into account its context. It is only within those limits that the alleged contemnor is entitled to the most favourable interpretation of the order.
The orders were sufficiently clear and unambiguous for the appellant to know that he was required to refrain from making disparaging or defamatory statements about the trustee in bankruptcy, their legal counsel, and individual professionals involved in administering the bankruptcy. Dhillon was not required to look beyond the four corners of the orders to know that he was enjoined from publishing negative statements about those specific persons or entities.
However, the orders were unclear as to whether judges are properly considered persons connected to the administration of the bankruptcy. Judges making orders in bankruptcy proceedings are not, in general terms, considered to be connected to the administration of a bankruptcy. The court’s role in bankruptcy proceedings is supervisory—consisting of giving directions, hearing applications to reverse or modify acts or decisions of a trustee or inspector, and superintending the conduct and decisions of officers administering the bankruptcy by authorizing and sanctioning acts necessary for the due administration of the estate.
The implication of s. 41 of the Bankruptcy and Insolvency Act is that the court grants a discharge after it is satisfied that the estate has been fully administered by the trustee, and the court’s role in seeing that an estate is fully administered is limited to taxing the trustee’s accounts and settling objections, applications, oppositions, motions, and appeals in legal proceedings.
In light of the common understanding in Canadian bankruptcy law respecting the court’s role in the administration of a bankruptcy and the fact that the orders were silent as to whether they were meant to prohibit the publication of statements about judges involved in the Braich bankruptcy, the Court found that the orders were ambiguous on this issue.
The Court held that the trial judge did not err in concluding that the orders were sufficiently clear to form the basis of a finding of criminal contempt. While the orders did not prohibit publication of disparaging or defamatory statements about judges involved in the Braich bankruptcy, they clearly prohibited publication of such statements about the trustee in bankruptcy, their legal counsel, and individual professionals involved in administering the bankruptcy. The statements alleging dishonesty, corruption, incompetence, and unethical conduct fell within the ambit of “disparaging” statements. Defamation is demonstrated where published statements are shown, in the eyes of a reasonable person, to lower the reputation of the person about whom they are made. Allegations of dishonourable or dishonest conduct in an individual’s professional life will typically meet this definition.
The appeal was dismissed.
Counsel: D.M. Layton, Q.C. for the respondent.