CITATION: Hagel v. Fortin, 2018 ONSC 5507

DIVISIONAL COURT FILE NO.: DC-17-2358

DATE: 20180919

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: TIMOTHY hAGEL AND MARGARET HAGEL, Appellants

AND:

SANDY MILNE, dawn fortin, flora neave, david vavasour and walter renwick, Respondents

BEFORE: Aston, Ellies and Myers JJ.

COUNSEL: R. Lee, for the Appellants

M. Pomerleau, for the Respondents

HEARD at Ottawa: September 13, 2018

ENDORSEMENT

Ellies J.

OVERVIEW

[1] The appellants seek to set aside two orders made by Johnston J. on November 14, 2017. The orders stem from two underlying proceedings.

[2] In the first order (the “dismissal order”), Johnston J. dismissed an application by Timothy Hagel for disclosure of certain financial documents from the North Ridge Manor Homeowners Association and the members of the North Ridge Manor Co-Tenancy Committee (the “Committee”). The Committee was responsible for managing the common elements of the residential area (“North Ridge Manor”) in which all of the parties, with the exception of Walter Renwick, are co-tenants. Mr. Renwick was the property manager at North Ridge Manor. The application judge held that Mr. Hagel was precluded from bringing the application by the terms of a Full and Final Release that Mr. and Mrs. Hagel had signed on May 11, 2016 as part of the settlement of three earlier actions involving the Hagels and various combinations of the respondents.

[3] As part of the settlement of those actions, Mr. and Mrs. Hagel also signed Minutes of Settlement and consented to an order which was made by Abrams J. on April 28, 2016. The Abrams order prohibited the Hagels from posting signs on their property and from “verbally abusing, swearing at, harassing or intimidating any member of the committee, unit owner or occupier or staff member, contractor or other person doing business with North Ridge Manor”, among other things.

[4] In the second impugned order (the “contempt order”), Johnston J. found that Mr. and Mrs. Hagel were in contempt of the Abrams order by placing a clown with a crucifix on it outside their residence and found Mr. Hagel in contempt for yelling at Ms. Neave and a contractor hired to repair part of the road at North Ridge Manor.

[5] Pursuant to the terms of the Abrams order, the motion judge ordered Mr. and Mrs. Hagel to pay the sum of $1,000 for placing the clown in their yard and ordered Mr. Hagel to pay the further sum of $2,000 for yelling at Ms. Neave and the contractor.

[6] At the conclusion of the argument of both appeals, we quashed the appeal of the dismissal order, allowed Mrs. Hagel’s appeal of the contempt order and dismissed Mr. Hagel’s appeal of that order for reasons to be delivered. These are those reasons.

JURISDICTION

[7] The appeal of the contempt order comes to us pursuant to s. 19(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) because it is a final order directing payment of not more than $50,000. However, this court has no jurisdiction to hear the appeal from the dismissal order. That order is a final order outside of the ambit of s. 19 of the CJA and, as a result, must be appealed to the Court of Appeal pursuant to s. 6(1)(b) of that Act.

[8] While s. 110 of the CJA permits this court to order that the appeal of the dismissal order be transferred to the Court of Appeal, the power granted under that section is discretionary: Dunnington v. 656956 Ontario Ltd. (1992), 1991 7107 (ON SC), 9 O.R. (3d) 124 (Div. Ct.). In the circumstances of this case, we decline to exercise our discretion based on our view of the merits of that appeal and the appeal is, therefore, quashed.

STANDARD OF REVIEW

[9] The standard of review with respect to the remaining appeal is that set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Pure questions of law or questions of law that can be extricated from questions of mixed fact and law are reviewed on a correctness standard. Otherwise, questions of mixed fact and law and questions of fact are reviewable on the palpable and overriding error standard.

ANALYSIS

[10] The appellants challenge the contempt order on both procedural and substantive grounds.

Procedural Challenges

The Power to Order a Trial

[11] The appellants first submit that the motion judge ought to have dismissed the contempt motion because he was initially unable to decide some of the allegations of contempt due to conflicting affidavit evidence. We disagree.

[12] The parties appeared before the motion judge for the first time on September 30, 2016 to argue the motion. After lengthy discussion, the motion was adjourned to enable written submissions on how to proceed. On December 12, 2016, after receiving those submissions, the motion judge released reasons in which he indicated that he was unable to make findings of fact with respect to some of the allegations of contempt because of the conflicting affidavit evidence. As a result, he ordered a “mini-trial” (the “trial order”), “limited to only the issues of contempt identified and the [a]ffidavits filed”. The mini-trial was held in June and July 2017.

[13] The appellants submit that, by making the trial order, the motion judge permitted the respondents to “regroup”, allowing them to potentially collude and create false evidence.

[14] There is no evidence of collusion, nor have we been directed to anything that could support the appellants’ accusation of collusion or perjury. This submission is entirely without merit.

[15] The motion judge was entitled to conduct a trial pursuant to the provisions of r. 37.13(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits a judge hearing a motion to order the trial of an issue. That discretionary order was especially appropriate in this case, given the conflicting affidavit evidence filed by the parties and the onus on the moving parties to prove the alleged contempt on the criminal standard of proof beyond a reasonable doubt.

The Requirements of Rule 39.02(1)

[16] The appellants also submit that the motion judge was precluded by the Rules of Civil Procedure from permitting them to be cross-examined at the mini-trial. They submit that the motion judge could only permit the appellants to be cross-examined where they had been examined previously under r. 39.03. They rely on the provisions of r. 39.02(1), which reads:

39.02(1) A party to motion or application who has served every affidavit on which he or she intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.

[17] This submission misconstrues these rules. Rule 39.03 provides for the examination of witnesses in advance of the hearing of a motion or application other than those who have filed affidavits. There is no merit to the suggestion that a party who chooses to submit affidavit evidence is immune from cross-examination on that affidavit.

Permitting Cross-examination on Allegations Not Set Out in the Order

[18] The appellants submit that the motion judge impermissibly allowed the respondents to call evidence and to cross-examine the appellants during the trial with respect to allegations regarding which he did not indicate he needed to hear viva voce evidence, including the “clown placement” allegation.

[19] This issue was raised before the motion judge during the examination in-chief of Mr. Vavasour. The motion judge allowed the witness to be examined on the “clown allegations” on the basis that the affiant’s credibility in general was at issue (June 8, 2017 transcript, p. 6). We see no error on the part of the motion judge, nor any prejudice arising from his ruling. Mr. Hagel’s counsel was able to cross-examine the witness and Mr. Hagel heard that evidence before having to choose whether or not to testify himself.

The Right to Remain Silent

[20] Related to previous issue, the appellants contend that their right not to testify in the contempt proceedings was violated by the Trial Order: Vale Inco Ltd. v. United Steel, Rubber, Paper and Forestry, Manufacturing, Energy, Allied Industrial and Service Workers Local 6500, 2010 ONSC 3039, at para. 3.

[21] Again, we disagree. Mr. Hagel gave up his right to silence by filing an affidavit in the contempt motion. Mrs. Hagel did not file an affidavit. However, the motion judge did not order Mrs. Hagel to testify. Instead, he ordered that the “Responding Party [Mr. and Mrs. Hagel]” was “permitted” to call Mrs. Hagel. As Mr. and Mrs. Hagel were represented by the same lawyer, the clear inference is that Mrs. Hagel also chose to give evidence at the mini-trial when she was called to the stand by her own lawyer.

Substantive Challenges

[22] The appellants make two submissions of a substantive nature.

Whether Placing the Clown Amounted to a Breach of the Abrams Order

[23] First, they submit that the placing of the clown with a crucifix on their front yard did not constitute a breach of the Abrams order. We do not accept that submission.

[24] The motion judge held that he was satisfied beyond a reasonable doubt that the clown was intended to mock Mr. Vavasour and was, in fact, intended to harass him. That conclusion was amply supported by the record, including the history of the proceedings leading up to the Abrams order itself. There was no legal or factual error made by the motion judge in this regard.

The Absence of Evidence Against Mrs. Hagel

[25] The motion judge held that he was satisfied that both Mr. and Mrs. Hagel participated in placing the clown on their front lawn. We agree with the appellants, however, that there was no evidence upon which to reach that conclusion in regard to Mrs. Hagel.

[26] The only evidence as to who placed the clown on the Hagel’s front lawn came from Mr. Hagel, who was asked in cross-examination about when and how often he would bring the clown out (June 8, 2017 transcript, pp. 80-81). There was no evidence that Mrs. Hagel ever placed the clown on her front lawn or assisted Mr. Hagel to do so. Therefore, the only basis upon which the motion judge could have found Mrs. Hagel in contempt of paragraph 1 of the Abrams order was on the basis that she permitted the clown to be where it was. That is not what the order proscribes, however. The paragraph in question reads:

1. THIS COURT ORDERS the Defendants to permanently refrain from posting signs on the property know municipally as …

[27] In order to act as basis for a finding of contempt, the order allegedly breached must be clear in its terms and the impugned conduct must be a clear breach of those terms: Carey v Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35. The Abrams order does not impose a positive obligation on Mrs. Hagel not to permit signage on the property, only to refrain from posting it. For this reason, the motion judge’s finding of contempt against Mrs. Hagel cannot stand.

CONCLUSION

[28] For the foregoing reasons, the appeal of the dismissal order is quashed. The appeal of the contempt order is dismissed with respect to Mr. Hagel but is allowed as it relates to Mrs. Hagel. The finding of contempt against her is set aside. The “fine” imposed, however, remains the same, as it was a sum jointly owed by Mr. and Mrs. Hagel. The amount shall remain the same, but is only payable by Mr. Hagel.

COSTS

[29] In light of the mixed success on the appeal of the contempt order, we award no costs on that matter. With respect to the appeal of the dismissal order, while it is true that the appellants brought the appeal in the wrong court, it is also true that no issue of jurisdiction over that appeal was raised by the respondents. For that reason, while the respondents should be awarded some costs, those costs should be reduced to reflect the fact that raising the issue early on would likely have resulted in fewer costs being incurred. We award costs to the respondents in the amount of $2,500 all-inclusive.

“Justice Ellies”

Ellies J.

I agree “Justice Aston Aston J.

I agree “Justice Myers”

Myers J.

Date: September 19, 2018