Court dismisses Balita Newspaper, Tess Cusipag’s appeal

Top News Apr 28, 2017 at 4:40 pm
Atty. Howard Winkler

Atty. Howard Winkler (Photo provided)

The defamation lawsuit launched by the Honourable Senator Tobias Enverga Jr. against Balita Newspaper, Balita Media Inc., Tess Cusipag, Romeo P. Marquez and Carlos Padilla may have been finally put to rest by a ruling dated April 12, 2017.

The Court of Appeal for Ontario, presided by Justice David Doherty, Justice Jean MacFarland and Justice Paul Rouleau, dismissed Tess Cusipag and Balita Newspaper’s appeal to reduce the amount of damages awarded by Superior Court Justice Sidney N. Lederman on July 13, 2016.

The decision comes after a hearing that was held on April 6, 2017.

In its decision, the Court of Appeal held that “the trial judge did not err in considering the Botiuk case and giving some weight to the award approved in that case in making his assessment of compensatory damages”.

The lawyer for Tess Cusipag and Balita Newspaper argued that the award was out of line with other awards involving defamation of political figures. Rejecting this argument, The Court of Appeal held that the case of Senator Enverga was not a “political” case, but rather a personal one.

The Court of Appeal agreed with the findings of Justice Lederman that Tess Cusipag created a controversy so that she could defame Senator Enverga.

Senator Tobias Enverga Jr. (Photo provided)

Senator Tobias Enverga Jr.
(Photo provided)

The Court of Appeal affirmed the Justice Lederman’s finding that the conduct of Tess Cusipag and Balita Newspaper demanded a substantial award of punitive damages. The Court did not disturb Justice Lederman’s finding that Tess Cusipag repeated the defamation, knowing full well that it was false, and intended to repeat the defamation in the future. The Court stated that “on the facts as found by the trial judge, deterrence could only be adequately served by a significant award of punitive damages.”

The Court also ordered the appellants to pay to Senator Enverga $16,000 for the appeal costs, bringing the total of court damages and costs which Tess Cusipag and Balita Newspaper are liable to $356,000.

Senator Enverga was represented by lawyers Howard Winkler and Eryn Pond.

Howard Winkler has this statement: “It has been clear from the beginning of this proceeding that the words written by Mr. Marquez and published in Balita Newspaper by Tess Cusipag are false and defamatory of Senator Enverga, were published with extreme malice and that no defence to the publication ever existed. It is now time for Tess Cusipag and Balita Newspaper to stop their irresponsible and contemptuous campaign against Senator Enverga, accept responsibility for their actions and compensate Senator Enverga for the costs he has incurred in clearing his name and the damage they caused to his reputation”.

Senator Enverga in a statement indicated “I am grateful that this matter is now over and that justice has been served. I look forward to continuing to serve our community in the Senate of Canada.”

The decision of the Court of Appeal may be viewed via this link:
https://www.canlii.org/en/on/onca/doc/2017/2017onca302/2017onca302.pdf

Important timelines of the case:

Notice of Libel, March 7, 2014

Balita Newspaper, Balita Media inc., Tess Cusipag, Romeo Marquez and Carlos Padilla were given notice of intention to commence action

Summary Judgment ruling by Superior Court Justice Lederman, July 13, 2016 quote:

(46) “…The defendants, and in particular Cusipag, has done virtually everything she could to destroy and discredit Senator Enverga in an unrelenting manner, both in print and online.  They continue to advance the defence of justification even on this motion when they knew it was hopeless.  They engaged in absolutely no investigation whatsoever as to the truth of what they were publishing.  They were recklessly indifferent to the truth of the Article.  They gave the plaintiff no opportunity to respond to the allegations in advance of publication and to present his side of the story.  They have published innuendo with criminal implications which Cusipag herself admits in her affidavit as being “serious allegations of fraud”.  The defendants consistently and constantly repeated and published the Article and the Article remains on the website of Balita today and is available on the internet.  At no time has there been any retraction or apology given…”

https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4512/2016onsc4512.html?searchUrlHash=AAAAAQAHY3VzaXBhZwAAAAAB&resultIndex=1

Cost Ruling by Superior Court Justice Lederman, September 23, 2016 quote:

(10) “…Given the seriousness of the defamatory allegations against Senator Enverga and the determination of the defendants to pursue a scurrilous attack upon his reputation even in the face of having no evidence whatsoever to support the allegations, it cannot lie in their mouths to quarrel with the time spent and research conducted by the plaintiff in seeking vindication in this proceeding…”

https://www.canlii.org/en/on/onsc/doc/2016/2016onsc5910/2016onsc5910.html?searchUrlHash=AAAAAQAHY3VzaXBhZwAAAAAB&resultIndex=3

Guilty of Criminal Contempt of Court ruling by Superior Court Justice F.L. Myers, March 13, 2017 quote:

Why Criminal Contempt?

(36) “…Here, the Media Defendants’ conduct includes the “open, continuous and flagrant violation” discussed by Chief Justice McLachlin.  Ms. Cusipag was clear and express in her desire to spread her world globally and to enlist the aid of others in the media, and public figures, such as members of the Senate of Canada, to do so despite the court’s injunction.  Her statements indicated that the initial defamatory article and Facebook posting were true but were not accepted by the court due to the death of witnesses and an unseen conspiratorial hand that undermined the legitimacy of the judge’s ruling.  This is not conduct akin to failing to attend an examination for discovery or breach of a patent injunction that is limited in its intention and effect to the private rights of the immediate parties.  The Media Defendants are continuing an avowed, malicious, very public quest to destroy the plaintiff’s reputation in face of and despite an order of the Superior Court of Justice.  As Chief Justice Dickson wrote, their conduct “transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole.” ….(37) I  therefore find Tess Cusipag, Balita Newspaper, and Balita Media Inc. guilty of criminal contempt of court…”

https://www.canlii.org/en/on/onsc/doc/2017/2017onsc1635/2017onsc1635.html?searchUrlHash=AAAAAQAHY3VzaXBhZwAAAAAB&resultIndex=2

Criminal Contempt of Court sentencing is scheduled on June 2, 2017.

(PRESS RELEASE)