By FARRAH JOHNSON
Tribune Staff Reporter
PETER Nygard has appealed a contempt conviction he received for breaching an injunction that banned him from publishing stolen emails from environmental group Save The Bays (STB), on the grounds the fine and sentence handed down to him was too harsh.
On October 10, 2019, Nygard was convicted of contempt in a case centering on the theft of emails from the environmental advocacy group. A month later, he was sentenced to 90 days in prison and fined $150,000.
During a virtual hearing before the appellate tribunal of Justices Jon Isaacs, Maureen Crane-Scott and Roy Jones yesterday, Nygard’s attorney, Carlton Martin, appealed the sentence and fine, arguing his client was not personally served with the notice of motion “under which the contempt order was made”.
Nygard was not tuned into the hearing on Zoom.
Yesterday, Mr Martin said Nygard had not been given a personal service of the motion as required by law. Arguing the court and the respondents “should have known” the notice “had to be served personally”, Mr Martin said the court had “no jurisdiction or authority” to make the order.
Still, when asked how a personal service of notice would be effective since Nygard was outside the jurisdiction at the time, Mr Martin insisted the grounds of their argument revolved around the fact that the “court was wrong in granting substituted service”, since it could only be granted “if it is shown that” personal service could not be achieved.
He added in order for Nygard to be found guilty of contempt, a “link had to be established” between Nygard and the attorney representing him in the New York hearing. He claimed the lawyer was the one who “had the documents in his possession and was writing to a judge”. Mr Martin also said Nygard had filed an affidavit in the proceedings because he did not authorise the attorney to approach the judge.
Attorney Julian Malins represented STB in the matter. He argued Nygard’s 90-day prison sentence and the $150,000 fine were justified.
“Bearing in mind Nygard’s previous breaches of court orders... the sentence imposed by the court is, if anything, very much on the over-lenient side,” he said.
Mr Malins also invited the panel to “look through the facts the judge had to help her with her sentencing”, since he believed it was “merely indicative and helpful”. He also asked the justices to determine if the sentence was “so outside of what a judge – who had heard all the facts and submissions – could reasonably have made”.
Mr Malins said if their conclusions were “within that discretion”, the appellate justices should dismiss the appeal.
After listening to arguments from both sides, Justice Isaacs said the panel would reserve their judgment and notify both parties in “due course”.
The emails surfaced in an affidavit exhibited by lawyer Keod Smith, who represented the Canadian in an earlier contempt hearing. Later, the lawyers for STB secured an injunction preventing Nygard and Keod Smith from perusing, publishing or disseminating any information contained within the emails.
At the time, Justice Bowe-Darville ordered Nygard to make a full apology to the court within seven days, giving full and verifiable reasons for his non-appearance. Nygard was also told to assure the court in writing that he would discontinue using the emails which were the subject of a February 2019 injunction in New York court proceedings.