Executive Summary: Key Legal and Evidentiary Issues

• Breach of confidentiality in court-ordered mediation proceedings through unauthorized disclosure of settlement discussions and judicial assessments on social media platforms

• Contempt of court arising from intentional violation of mediation confidentiality requirements, resulting in waste of judicial resources and undermining faith in the dispute resolution process

• Credibility assessment of the contemnor's testimony regarding knowledge of mediation confidentiality and the judicial status of the presiding mediator

• Application of sentencing principles for civil contempt, balancing deterrence and denunciation against mitigating factors including expressions of remorse and personal circumstances

• Determination of appropriate penalty within established jurisprudential range for contempt offences, considering both public and private dimensions of civil contempt

• Discontinuation of underlying trademark dispute and its impact on the penalty phase of contempt proceedings

Background to the dispute

Planet Fitness Inc., operating a gym in Red Deer, Alberta since at least 1992, commenced an action against Planet Fitness Franchising LLC and PFIP, LLC (collectively, the Defendants) seeking expungement of the Defendants' 19 registered PLANET FITNESS trademarks and damages for passing off. The Plaintiff claimed to be the owner of the unregistered trademark PLANET FITNESS, which it had used in connection with its gym operations. In response, the Defendants counterclaimed for infringement of their registered trademarks and depreciation of goodwill.

The court-ordered mediation

In an effort to resolve the dispute, the Court directed the parties to attend mediation with Associate Judge Crinson. The parties participated in two mediation sessions, the first on February 20, 2024, and the second on March 25, 2024. During these confidential sessions, the parties exchanged settlement offers, Associate Judge Crinson provided a preliminary assessment of the merits of the case, and discussions took place regarding what expert and other witnesses would say if called to testify at trial.

The breach of confidentiality

Following both mediation sessions, Shawn Freeborn, the director of Planet Fitness Inc., posted videos on social media in which he disclosed information that had been conveyed to him in confidence during the mediation. In the videos, Mr. Freeborn discussed particulars of the Defendants' settlement offers, Associate Judge Crinson's preliminary assessment of the merits of the case, and what witnesses would say if they were called to testify at trial. He also made disparaging and threatening remarks about the Defendants, their officers, and legal counsel. The videos were available to the public at large.

Discovery and immediate response

Once counsel for the Defendants discovered Mr. Freeborn's videos on social media, they alerted the Court and the parties. Mr. Freeborn immediately took down the videos. The Defendants subsequently brought a motion for contempt against both Planet Fitness Inc. and Mr. Freeborn.

The liability phase

During the liability phase of the contempt motion, Mr. Freeborn testified that he did not know the mediation was intended to be confidential, or that Associate Judge Crinson was a judge. The Court found his testimony to be self-serving and unworthy of belief. On May 7, 2025, the Court found the Plaintiff and Mr. Freeborn in contempt, holding that Mr. Freeborn's breach of the confidentiality necessary to ensure a viable mediation process was egregious. The Court determined that it undermined the parties' faith in the process and resulted in the waste of scarce judicial resources. Mr. Freeborn's conduct was exacerbated by the personal threats included in his commentary and his unsatisfactory testimony before the Court. The Court concluded that the Defendants had established, beyond a reasonable doubt, that Mr. Freeborn's disclosure of confidential information obtained in the course of the mediation was intentional and sufficiently serious to warrant a finding of contempt.

Developments prior to the penalty phase

On September 8, 2025, the Defendants advised the Court that the underlying action and counterclaim had been discontinued, and they would take no position regarding the penalty phase of the contempt motion. The Defendants subsequently informed the Court that they would not seek costs of either the mediation or the contempt motion.

Submissions at the penalty phase

Mr. Freeborn appeared before the Court at the penalty phase without counsel. He gave an impassioned account of the financial, emotional and spiritual toll the legal proceedings had taken on him and his son. He described the underlying lawsuit as a nine-year battle that had destroyed him financially. He said he had always attempted to conduct himself with integrity and dignity, and he never intended to be untruthful. Mr. Freeborn expressed his abiding respect for the courts in Canada and said that these proceedings had taught him a lesson. He indicated he wanted to rebuild his life and was not in a position to pay any kind of fine. However, he also advised the Court that the Plaintiff and Defendants had settled the underlying action and counterclaim on mutually acceptable terms. The Court noted that Mr. Freeborn's submissions were not evidence, and he provided no documentary or other evidence to demonstrate that he was incapable of paying any kind of fine.

Application of sentencing principles

The Court applied the usual principles of sentencing developed in relation to criminal contempt, noting that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court considered the objectives of sentencing for civil contempt, including repairing the depreciation of the authority of the court, enforcing court orders, specific or general deterrence, denunciation or punishment, and compensation. The Court identified the primary aggravating factor as the scope and scale of the offending conduct. Mr. Freeborn posted several videos on social media that were available to the public at large. He disclosed many details of what had transpired during the confidential mediation and made disparaging comments and personal threats against the Defendants and their representatives. His self-serving testimony during the liability phase of the contempt motion was found by the Court to be unworthy of belief. The mitigating factors identified by the Court were Mr. Freeborn's prompt compliance with the Defendants' demand to remove the offending social media posts, his genuine expressions of remorse, and what the Court could infer from the evidence regarding his personal circumstances.

Review of precedents

The Court noted that there appeared to be no precedent for the imposition of a penalty for contempt arising from a breach of confidentiality in a court-ordered mediation. The Court reviewed jurisprudence in which fines were levied for contempt in the range of $500 to $5,000, with court costs in the range of $1,000 to almost $15,000. The Court acknowledged that the discontinuation of the underlying action and counterclaim, and the Defendants' confirmation that they were not seeking costs, was advantageous to the Plaintiff and Mr. Freeborn, as costs arising from contempt proceedings are often assessed on a solicitor-client basis and may result in awards of many thousands of dollars.

The ruling and outcome

On October 23, 2025, Justice Fothergill ordered that Planet Fitness Inc. and Shawn Freeborn are jointly and severally liable to pay a fine in the amount of $1,000. The fine is payable to the Receiver General for Canada and must be remitted to the Federal Court Registry within thirty days of the date of the Order. The Court considered this fine, at the lower end of the range established by the jurisprudence, to be appropriate while nevertheless marking the gravity of the contempt. The Court commended Mr. Freeborn for his expressions of remorse and continued respect for the courts in Canada.