Janet-Lee Song

This penalty decision follows a finding of contempt against Mark Mendl, former counsel to the Ontario Public Service Employees Union (OPSEU), for failing to comply with a court order to produce records and information regarding $3.7 million in union funds.

The court reviews the history of non-compliance, the steps taken by Mendl to eventually purge his contempt, and the aggravating and mitigating factors, including Mendl’s substance abuse and subsequent cooperation.

The court considers the purposes of civil contempt penalties, relevant case law, and the impact of Mendl’s suspension from legal practice.

Ultimately, the court imposes no further penalty, finding that Mendl’s incarceration, suspension, and agreement to pay costs suffice.

This costs endorsement followed a decision on an appeal and cross-appeal.

Given the divided success of the parties on both the appeal and cross-appeal, the Court of Appeal ordered that each party bear its own costs.

The parties entered into a contract in 1999 for the provision of market pricing data.

The appellant, a custodial bank, redistributed the data to its numerous affiliates without authorization.

The respondent discovered the breach in 2016 and sued.

The trial judge found the appellant breached the contract and awarded damages based on a rateable approach, but also awarded damages for sharing data with a specific affiliate.

On appeal, the Court of Appeal upheld the liability finding, concluding the contract only authorized the appellant itself to access the data.

The Court also upheld the trial judge's decision to change his unentered judgment and rejected the appellant's limitations defence.

On damages, the Court struck the award relating to the specific affiliate as double compensation but otherwise upheld the damages assessment, including an adverse inference drawn against the appellant for spoliation of evidence.

The Ontario Public Service Employees Union (OPSEU) brought a motion for civil contempt against its former lawyer, Mark Mendl and his professional corporation, for failing to comply with a previous court order to produce client files and financial records related to suspicious payments totaling $3.7 million.

Despite multiple requests and court appearances, Mendl deliberately refused to provide the ordered documentation.

The court found Mendl in contempt beyond a reasonable doubt, emphasizing his duty as an officer of the court.

A penalty hearing was scheduled, and Mendl was ordered to attend in person, with an opportunity to purge his contempt beforehand.

This appeal concerned the appropriate remedy for a party who deliberately accessed the opposing party's privileged information.

The application judge had struck the appellant's Notice of Appearance, barred them from filing evidence, and ordered the Partition Application to proceed undefended.

The appellant argued that this remedy was unpleaded, unproven, and that lesser remedies were available.

The Court of Appeal dismissed the appeal, affirming the application judge's decision.

The court found no error in applying the three-part test for unauthorized access to privileged documents, particularly given the appellant's failure to rebut the presumption of prejudice or propose effective alternative remedies.