CITATION: Rocca Dickson Andreis Inc. v. Umberto Andreis, 2013 ONSC 5508

DIVISIONAL COURT FILE NO.: 205/13

DATE: 20130910

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Nordheimer and Perell, JJ.

BETWEEN:

Rocca Dickson Andreis Inc., Rocca Dickson Andreis Corp. and Rocca Dickson Andreis Ltd.

Plaintiffs/Respondents

– and –

Umberto Andreis also known as Bert Andreis

Defendant/Appellant

Marco Drudi, for the Plaintiffs/Respondents

Stephen F. Gleave/Richelle M. Pollard, for the Defendant/Appellant

HEARD: August 22, 2013

aston j.

Background and Issues

[1] This is an appeal by the defendant Andreis, and two other persons who are not parties to this action, from the interlocutory order of B. O’Marra J. dated October 5, 2012. The requisite leave to appeal was granted by Swinton J. on May 22, 2013.

[2] The appeal requires us to address several issues that arise when the target of a civil contempt motion challenges the adequacy of the particulars alleged to constitute contempt.

[3] The plaintiffs (“RDA”) had brought a motion to find Andreis and the two others in contempt of an interlocutory order of Low J. granting a temporary injunction. After an order was made that the contempt motion would proceed by a trial on oral evidence, now scheduled for five days next January, Andreis and the two others brought a motion to dismiss the plaintiff’s civil contempt motion for failure to provide particulars, and on other grounds not germane to this appeal. The motions judge dismissed that motion, but did order the plaintiffs to serve and file “clear and concise particulars of the alleged contempt” within fifteen days. This is the appeal from that order.

[4] RDA is the former employer of Andreis. In this action it alleges that in December 2011 Andreis wrongfully solicited clients when leaving the employment of RDA. On January 3, 2012, Low J. granted a temporary injunction, on consent, prohibiting Andreis from contacting certain named clients pending the return of RDA’s motion for an ongoing injunction. On February 27, 2012, Whitaker J. refused to grant an ongoing injunction, the result of which was that the temporary order of Low J. made January 3, 2012 was no longer in effect. RDA’s subsequently brought the contempt motion, alleging that Andreis and the two others had failed to comply with the temporary injunction while if was extant.

[5] The issues raised on this appeal are as follows:

(i) Did the motions judge err in law in the application of the test for adequate particulars in a civil contempt motion?

(ii) Did the motions judge err in law in granting RDA the right to serve and file new or better particulars? and

(iii) If the motions judge had the power to grant RDA the right to serve and file new or better particulars, did he err in law by failing to consider relevant factors and principles in the context of this particular case?

The Decision of the Motions Judge

[6] As the motions judge found at paragraph 11 of his decision:

RDA sets out no particulars in the Notice of Motion but indicates that particulars are to be found in the affidavit of Peter Rocca. The affidavit sets out two arguable particulars, in that the parties involved, date and nature of the breach are set out. Two other “particulars” are more accurately generalizations and direct the reader to exhibits to Mr. Rocca’s affidavit. In these exhibit materials there are documents that would probably indicate to a reader in Andreis’ position specifics of alleged breaches of the injunction order. Many are difficult to find, however, and for a general reader unfamiliar or only partially familiar with all of RDA and Andreis’ client dealings it is difficult to sort out exactly which activities are potentially breaches of the injunction.

[7] It is evident from paragraphs 12 through 15 of the reasons of the motions judge that the particulars of the alleged contempt are also not clearly set out in the supporting affidavit and its exhibits. At paragraph 42 of his reasons, the motions judge found that “to a more familiar reader (that is to say one of the parties) the materials may be much easier to navigate … However, that begs the question as to whether someone who is alleged to have committed contempt should have to be making this type of painstaking search through pages and pages of documents to discern the specific allegations of contempt they face”.

Did the motions judge err in law in applying the test for particulars in a civil contempt motion?

[8] The first question on this appeal is whether it is strictly necessary that the particulars of the alleged contempt be set out in the Notice of Motion.

[9] Relying on Geremia v. HARB, [2007] O.J. No. 305 (O.S.C.) at para. 36, the motions judge stated at paragraph 31 of his decision:

In Ontario the test is not whether the contempt is specified in the Notice of Motion but whether the responding party has been given fair notice of the alleged contempt. While it is preferable for particulars to be set out in the Notice of Motion, it may be that allegations in an affidavit provide fair notice of the allegations.

[10] The jurisprudence on whether the Notice of Motion must specify the alleged contempt starts with the decision in Dare Foods (Biscuit Division) Limited v. Gill, [1973] 1 O.R. 637 (Ont.H.C.) at 639. In that case Zuber J. held that Notices of Motion for civil contempt “must contain allegations of a concrete fact of a nature to identify the particular acts complained of”. More specifically at pages 639 to 640, Zuber J. held that “it is not an answer that details of the [alleged contempt] can be discovered by reading the affidavits filed in support of the notice [of motion]”.

[11] Dare Foods was followed or cited with approval in many subsequent cases. See for example the decision of the British Columbia Court of Appeal in Ebrahim v. Ebrahim, [2000] B.C.J. No. 1265 and the decisions in this court in Ayotte v. Bishop, (1996), 24 R.F.L. (4th) 390 at paras. 8-10 and Toronto Transit Commission v. Ryan, [1998] O.J. No. 51 at pages 7 and 8.

[12] However, the requirement that the particulars be set out in the Notice of Motion itself was not applied by the Court of Appeal in Follows v. Follows, (1998) CarswellOnt 3512 (C.A.). On that appeal, the appellant submitted that she had not been accorded procedural fairness because she was not given reasonable particulars of the allegations of contempt. At para. 3 of its decision, the Court of Appeal stated [emphasis added]:

On the first issue we recognize that contempt motions in civil proceedings have a criminal character. This is especially so in this case because the contempt motion seeks to punish past misconduct. Therefore the requirement that the appellant be given reasonable particulars is important.

Although it would have been preferable for the particulars of the breaches of Justice Beaulieu’s order to have been set out in the Notice of Motion, we are satisfied that the allegations in paragraph 16 of the respondent’s affidavit, in a section of that affidavit titled “George and Regina’s contempt of Justice Beaulieu’s Order”, gave the appellant fair notice of the allegations against her. Similarly, she had fair notice of the allegation that she had breached Justice Speigel’s order. No objection to the lack of or inadequacy of the particulars was raised before Benotto J. [the motions judge]. Nor did the appellant argue that she had been prejudiced by the conduct of the proceedings before Benotto J.

[13] The editor’s headnote to the Follows decision states that “the Ontario Court of Appeal’s conclusion that contempt proceedings are not invalidated because the Notice of Motion or other process does not include concrete particulars of the offence as a condition precedent to a court’s jurisdiction to make an order impliedly overrules [Ayotte v. Bishop] (1996), 24 R.F.L. (4th) 390 which held that the court’s jurisdiction was so limited”. This was the same conclusion reached by J.W. Quinn J. at para. 34-36 of his decision in Geremia (supra). He concluded that “Follows rightly overrules Dare Foods and is contrary to, and preferred over, Ebrahim”. As already noted, the motions judge relied on Geremia in dismissing Andreis’ challenge to the contempt motion based upon insufficient particulars.

[14] The motions judge did not err at law in looking outside the four corners of the Notice of Motion to decide whether Andreis had “fair notice” of “reasonable particulars”.

[15] However, there is a critical second question to consider when determining the adequacy of particulars. Adopting the words used in Follows, what constitutes “fair notice” and “reasonable particulars” in civil contempt motions? In my view, for the reasons that follow, the motions judge erred in the application of the legal test by failing to consider the criminal nature of civil contempt. In fairness to the motions judge, it seems the issue the parties focused upon when he heard the motion was whether the particulars had to be found in the Notice of Motion itself, without any attention to this critical second question of what constitutes “fair notice” or “reasonable particulars” in motions for civil contempt.

[16] At paragraph 43 of his reasons, the motions judge found [emphasis added]: “There is considerable merit to the complaint of lack of sufficient and clear particulars. However, I cannot say that there is ultimately a complete lack of ‘fair notice’ of the allegations.” This enunciation of the test fails to recognize the important underlying principle that a person whose liberty is at stake is entitled to know clearly and unequivocally the act or omission alleged against him or her. Any ambiguity or uncertainty must be resolved in favour of the person accused.

[17] It is important not to extend or over apply Follows, a brief endorsement, that does not include any reference to any prior decisions. More specifically, the Court of Appeal did not refer to Dare Foods, Toronto Transit Commission, Bishop v. Ayotte, or other cases which had held that the particulars of the alleged contempt must be set out in the Notice of Motion and that it is impermissible to have to look to the supporting affidavit evidence to discover the required particulars. Though Follows opens the door on this point, because in that case the court did indeed consider allegations outside the four corners of the Notice of Motion itself, Follows must be read in light of other cases, and specifically the Court of Appeal’s subsequent decision in Bell Expressvu Limited Partnership v. Torrini, [2009] ONCA 85.

[18] At para. 20 of Bell Expressvu the Court of Appeal affirms that “motions for contempt are often said to be strictissimi juris, i.e. that all proper procedures must be strictly complied with”. The court specifically cited the Dare Foods and Toronto Transit Commission cases but made no reference to its own decision in Follows or the motions court decision in Geremia. The Geremia decision goes too far when it states that Follows “overruled” Dare Foods, because there was no mention of Dare Foods in Follows and Dare Foods was subsequently cited with approval by the Court of Appeal in Bell Expressvu. In my view, the very brief reasons in Follows with no reference whatsoever to any precedent or legal principle should not be given the expanded meaning implied in Geremia and adopted by the motions judge in this case.

[19] Follows states that it is “preferable” that the particulars be set out in the Notice of Motion itself, without going so far as to make that a condition precedent. To that limited degree, but only on that narrow point of where to find the particulars, Follows overrules Dare Foods and the other cases which would draw a bright line on the necessity that those particulars be in the Notice of Motion itself. That said, there is good reason to continue to emphasize the importance of putting all the required particulars in the Notice of Motion whenever that is practically possible. There may be cases in which it is not possible or practical to insist that the particulars be in the Notice of Motion. For example, the party bringing the motion for civil contempt may only discover certain facts after the motion is brought.

[20] However, it is still the norm that adequate particulars of the alleged contempt should be clearly articulated in the Notice of Motion itself whenever possible.

[21] In my view, Follows created a very limited exception to the general requirement that adequate particulars ought to be in the Notice of Motion, reflecting the particular circumstances of that case. First, the particulars were readily ascertainable from a single paragraph in the supporting affidavit served with the Notice of Motion, a paragraph which included the heading “George and Regina’s contempt of Justice Beaulieu’s order”. Second, the objection concerning particulars in Follows was not raised until after the contempt motion had been heard. It was raised for the first time on appeal and the Court of Appeal was satisfied that there had been no prejudice or breach of procedural fairness in the way the hearing was conducted, even though it would have been “preferable” for the particulars to have been found in the Notice of Motion itself.

[22] The test of “fair notice” and “reasonable particulars” articulated in Follows must be measured by analogy to a criminal proceeding. The requirement for particulars must address the rights of the alleged contemnor, whose liberty is at stake, including that person’s Charter rights.

[23] A close reading of Geremia reveals that the motions judge did in fact apply strictissimi juris principles in dismissing the motions for contempt. See paragraphs 50-54, 56, 64, and footnote 26 of that decision. J.W. Quinn J. concluded at para. 65:

I realize the father may think that the mother has escaped a finding of contempt because of what may be colloquially called a technicality. Yet, criminal law thrives on technicalities and civil contempt is civil in name only.

[24] In this case, unlike Geremia, there is no reference in the motion judge’s reasons to the correlation between a civil motion for contempt and criminal law proceedings. The strictissimi juris principles, tracing procedural requirements to the possibility of penal consequences including incarceration, are the measuring stick for “fair notice” and “reasonable particulars”. It is not up to the alleged contemnor to demonstrate “a complete lack of fair notice”. The onus is on the party seeking a finding of contempt and penal consequences to clearly spell out the particulars, to direct and focus both the responding party and the court on precisely what act or omission constitutes contempt.

[25] The fact that the motions judge in this case required the plaintiffs to redraft, file and serve particulars of the alleged contempt reinforces the conclusion that the material filed initially had failed to adequately particularize the allegations of contempt.

[26] Because the procedure is strictissimi juris there was a basis for the motions judge to dismiss the contempt motion. I conclude that the motions judge erred in law in the application of the test for adequate particulars in a civil contempt motion. However, that conclusion is not dispositive of the appeal because of the ancillary order permitting the RDA to deliver new or better particulars.

Did the Motions Judge have the power to grant RDA the right to file new or better particulars?

[27] For the purpose of this appeal, and without endorsing it as the preferred procedure, I would consider the order requiring RDA to serve and file new or better particulars as tantamount to permission to amend its Notice of Motion. There is nothing in the Rules of Civil Procedure to foreclose the possibility that RDA could amend its Notice of Motion. The motions judge had the power to permit it to do so.

Did the Motions Judge err in allowing RDA the right to serve and file new or better particulars in the context of this case?

[28] Accepting that the motions judge had the jurisdiction to allow an amendment or clarification of the particulars of the alleged contempt in the manner he did, the next questions to address are whether, and if so how, that jurisdiction should be exercised.

[29] As pointed out by Ferrier J. at page 5 of Toronto Transit Commission:

An application in respect of contempt of court is strictissimi juris and as a result calls for the most scrupulous attention of the courts to ensure adherence to all necessary safeguards. [citation omitted]

The need for strictissimi juris is enhanced where, not only is the liberty of the person potentially at stake, but also where the intervention of the court to correct procedural or substantive defects in the material filed could lead to the perception that justice is not seen to be done: [citation omitted]

[30] RDA had not sought to amend its Notice of Motion. It took the position that it had provided adequate particulars. The framing of an allegation of contempt, and the degree of detail provided in support of such an allegation, may reflect a tactical or strategic decision by the party bringing the motion for contempt. It is an error in principle in civil contempt motions to grant permission to cure a defect in the material of the moving party when such permission is not requested. Unlike Follows, the affidavit material with its exhibits in this case did not provide clear notice of the allegations, as the motions judge found. Given that finding, and the applicability of the principle of strictissimi juris, the motions judge should have dismissed the motion for contempt rather than assisting RDA by affording it the unsolicited right to correct the deficiency.

[31] Moreover, had RDA chosen to seek an amendment of its Notice of Motion the motions judge would have had to balance the interests of the parties, as well as those of the court itself, in deciding whether to permit an amendment. This is unexplored territory in the procedure for civil contempt motions, but given the strictissimi juris nature of the proceeding it is undoubtedly the case that leave to amend the Notice of Motion must be justified, and is not as of right.

[32] In his oral submissions counsel for RDA fairly conceded that the motion material is deficient on its face on the issue of particulars. However, he submits that the motions judge had a wide discretion to permit RDA to cure any defect in the manner he did. He submits this appeal should be dismissed on the basis of the deference this court ought to afford to a discretionary decision.

[33] In R v. Rezaie (1996), 31 O.R. (3d) 713, Laskin J.A. considered the term “error in principle” in the context of appellate deference to a discretionary decision. At p. 71 he wrote:

Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law. [citations omitted]

Once an error in principle has been shown to exist, the motions judges’ decision is no longer entitled to deference. An appellate court is free to exercise an original discretion of its own.

[34] A motions judge exercises a wide discretion in allowing a party to amend its Notice of Motion. However, a party does not have an unfettered or absolute right to amend an allegation of contempt. There are factors the court must necessarily take into account when considering a request to amend. In this case there is no indication the motions judge balanced any competing considerations in exercising his discretionary authority to allow an amendment.

[35] Factors to consider when deciding whether to allow an amendment of a Notice of Motion for civil contempt would include the nature and degree of any prejudice to either side, the explanation for deficiency in the materials, whether the amendment is a clarification or raises new and different allegations, the timing of the request to amend, and the benefit or purpose to be served by the contempt proceeding in relation to its cost. From the perspective of the court’s interest in promoting respect for, and compliance with, its orders it would be legitimate to consider whether the contempt is ongoing or likely to resume and how the decision may be seen by other litigants or the general public.

[36] At a time when the justice system is wrestling with the issue of access to justice it may be relevant to consider how a particular case impacts on the ability of others to utilize the limited resources of the system. The contempt motion in this case is scheduled for a five day trial, not a two hour motion. That is not irrelevant. If limited court time is going to be consumed by such motions then it is not unfair to insist that the moving party comply strictly with the reasonable requirements of such motions, especially given the seriousness of the relief sought. Specificity in the Notice of Motion will assist in expediting the hearing of such matters.

[37] A motion for civil contempt has often been described as a remedy of last resort in compelling compliance with an order. In this case, the temporary injunction of Low J. had already run its course and no injunction was in effect at the time the motion for contempt was initiated. Clearly, RDA’s purpose on its motion for contempt in this case is only for the purpose of discomfiting its opponent, and not to encourage respect for court orders or even compliance with an ongoing order. It may also be significant that there is a continuing action in which RDA is claiming damages for economic loss as well as punitive damages.

[38] The motions judge did not address any balancing of relevant factors when deciding whether to exercise his discretion to grant leave to amend in the circumstances of this case. In fairness to the motions judge, he was not asked to do so. However, without reasons outlining the basis for his decision we cannot conclude the motions judge properly exercised his discretion. The decision of the motions judge therefore falls within the Rezaie description of an error in principle. Consequently, we must consider the issue afresh. Exercising our own discretion, we conclude that leave to deliver new or better particulars is not justified in the circumstances of this case.

Conclusion

[39] RDA’s civil contempt motion was materially defective on its face. It failed to afford adequate particulars. The motions judge had the power to permit an amendment of RDA’s Notice of Motion, but erred in granting that permission in the circumstances of this case. The appeal is therefore allowed and the plaintiffs’ civil contempt motion is dismissed. There are other legal issues respecting the two individuals who are not parties but against whom RDA seeks a finding of contempt with penal consequences. It is not necessary for us to address those issues because these reasons apply with at least equal force to those individuals. Moreover, it is not clear from the record that these additional issues were raised before the motions judge. Finally, I note that after this appeal was argued, the parties brought to our attention the Court of Appeal’s recent judgment, Sabourin and Sun Group of Companies v Laiken, 2013 ONCA 530. While an important judgment about the procedure and nature of civil contempt, the Court of Appeal does not address the issues raised on this appeal, and I need not comment further about it.

Costs

[40] The appellants claim for costs of the appeal amounting to $46,544.99 on a substantial indemnity basis is far out of proportion to what is fair or reasonable. By comparison, the respondents proposed costs outline, before knowing the outcome of the appeal, asked for costs of the appeal amounting to $6,556.78. The appellants include over $3,000 as disbursements for “computer research” and “photocopying” but only a small part of the appellant’s Book of Authorities or Supplemental Authorities had any bearing on the appeal. More importantly all the legal research was done for the original motion and/or the motion for leave to appeal. The hours claimed for this appeal itself are excessive in the extreme. The appellants were awarded $7,000 for costs on the original motion (notwithstanding that their motion was dismissed) and will now receive $6,000 for costs of the leave motion as fixed by Swinton J. The costs of the appeal not already encompassed by the prior costs orders ought to be modest, more in line with the plaintiff’s costs outline.

[41] The plaintiffs are to pay costs of the appeal fixed at $8,000 inclusive of disbursements and H.S.T. They are also to pay costs of the motion for leave to appeal, fixed by Swinton J. at $6,000, all inclusive.

[42] As for the costs of the contempt motion itself, it is difficult to isolate any additional costs other than the first attendance to secure an order on consent directing that the matter proceed as a trial, and the scheduling of that trial. The affidavits and cross-examinations on the contempt motion were all used on the motion that is the subject of this appeal, a motion which went into the evidence in great detail, and for which costs have already been determined.

[43] In addition to the costs of the appeal and motion for leave to appeal, RDA is to pay costs of the civil contempt motion fixed at $1,500, all inclusive.

Aston J.

Nordheimer J.

Perell J.

Released: September 10, 2013

CITATION: Rocca Dickson Andreis Inc. v. Umberto Andreis, 2013 ONSC 5508

DIVISIONAL COURT FILE NO.: 205/13

DATE: 20130910

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Perell, * JJ.

BETWEEN:

Rocca Dickson Andreis Inc., Rocca Dickson Andreis Corp. and Rocca Dickson Andreis Ltd.

Plaintiffs/Respondents

– and –

Umberto Andreis also known as Bert Andreis

Defendant/Appellant

REASONS FOR JUDGMENT

Aston J.

Released: September 10, 2013