Court of Appeal for Ontario
Date: 2019-09-16 Docket: C66530
Panel: Hoy A.C.J.O., Tulloch and Jamal JJ.A.
Between
J. Gordon Ross, Estate Trustee for the Estate of Mary Elizabeth Grafton, Deceased
Appellant (Respondent)
and
James H. Ross, J. Grafton Ross and S. Graeme Ross
Respondents (Applicants)
Counsel
W. Gerald Punnett, for the appellant, J. Gordon Ross
Mark A. Radulescu, for the respondents
Heard and released orally: September 12, 2019
On appeal from: the order of Justice D.A. Broad of the Superior Court of Justice, dated January 25, 2019.
Reasons for Decision
[1] The appellant appeals the order sentencing him to 15 days in jail, to be served on weekends, for contempt of an order relating to the passing of the accounts of his aunt's estate.
[2] We agree with the appellant that the sentencing judge erred in principle in considering that the appellant had not put forward a plan for adequate supervision of house arrest terms in concluding that a conditional sentence was not appropriate in the circumstances. We also conclude that such error affected the sentence imposed.
[3] The respondent concedes that the appellant has now purged his contempt. The appellant is a lawyer who has practised law for over 45 years. He is now 73 years of age, has no prior convictions, and had no prior findings of contempt. The sentencing judge found that his non-compliance arose from "a failure to understand and appreciate or to ignore the need for, and importance of, complying with the order within the specified time or within any reasonable time." It is difficult to conclude that this amounts to a callous disregard for the court's authority.
[4] In all of the circumstances, we suspend and set aside the sentence imposed and order the appellant to follow-up on any further order imposed out of the passing of accounts scheduled for October 31, 2019 with diligence and with the assistance of counsel.
[5] In all of the circumstances, there should be no costs in this matter.
"Alexandra Hoy A.C.J.O."
"M. Tulloch J.A."
"M. Jamal J.A."