COURT FILE NO.: DC-04-000664-00/00
Sudbury
DATE: 20051004
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: the corporation of the town of Cochrane, for the Plaintiff / Respondent and MICHAEL PALANGIO, for the Defendant / Appellant
BEFORE: JUSTICES MATLOW, GREER, E. MACDONALD
COUNSEL: Robert Yu, for the Defendant / Appellant
David L. Lanthier, for the Plaintiff / Respondent
HEARD: October 4, 2005
E N D O R S E M E N T
MATLOW J.
[1] At the conclusion of the hearing of argument, we endorsed the appeal book adjourning this appeal to the next sittings of this Court in Sudbury and stating that written reasons would follow. These are those reasons.
[2] Paragraph 1 of the formal order in appeal reads as follows:
THIS COURT DECLARES that the Defendant stands in contempt of this Court by reason of his disobedience of paragraph 1 (b) of the Order of the Honourable Mr. Justice R.A. Riopelle dated July, 200.
[3] There then followed three paragraphs of which two dealt with the imposition of costs sanctions against the defendant ordered by reason of his conduct impugned in paragraph 1 and one which dealt with the vacating of certain consent provisions contained in an earlier order.
[4] By this appeal, the appellant seeks to have us set aside paragraph 1 of the order and both paragraphs which deal with costs.
[5] As a preliminary issue which we raised with both counsel at the commencement of the hearing of argument, we invited them to make submissions regarding the jurisdiction of this Court under section 19 (1) of the Courts of Justice Act to hear this appeal, pointing out that our jurisdiction under that provision was limited to appeals from final orders of Superior Court judges that fell within the scope of the monetary limits prescribed and did not apparently provide for us to have jurisdiction in appeals from orders finding persons in contempt of court.
[6] After hearing those submissions, which included to references to the motion judge’s comments, it became evident to us that there may have been confusion about whether or not the motion judge really had found the defendant to be in contempt of court and whether the formal order may have been drawn in error by including such a provision. Our concern was further increased by the assertion of counsel for the plaintiff / respondent that it was not the intention of his client to urge the judge to find the defendant / appellant in contempt, even though it was his firm that had drafted and obtained the formal order which stated that this is what the judge did. As well, the material before us show no indication that many of the usual steps required for due process in contempt cases were followed.
[7] Accordingly, as a matter of abundant caution, we decided to give both counsel an opportunity to re-attend before the motion judge to seek clarification of his order and to seek his determination as to whether or not the formal order required some amendment. We recognized that the outcome of such a re-attendance might well affect the determination of the jurisdiction issue which we had raised.
[8] As well, counsel for the respondent submitted that if the contempt finding were to be deleted from the formal order, there might remain an appeal only with respect to costs. In such an event, if the order in appeal were determined to be an interlocutory order, leave to appeal would be required pursuant to Rule 62 or, in the alternative, if it were determined to be a final order, leave would be required pursuant to section 133 (b) of the Courts of Justice Act which applies to appeals which are solely from costs orders that are discretionary.
[9] Accordingly, we ordered the adjournment of this appeal so that all of these issues could be addressed fully when it next comes before this Court.
MATLOW J.
GREER J.
E. MACDONALD J.
RELEASED: October 4, 2005