Court of Appeal for Ontario

Date: 2022-03-17 Docket: M52988 (C69619)

Before: van Rensburg, Nordheimer and Harvison Young JJ.A.

Between:

Jack Oliveira and Luis Camara on their own behalf and on behalf of all members of Labourers International Union of North America, Local 183 Plaintiffs (Responding Parties)

And:

Mario Oliveira Defendant (Moving Party)

Counsel:

Mario Oliveira, acting in person Youssef Kodsy and Michael D. Wright, for the responding parties

Heard: March 7, 2022 by video conference

Reasons for Decision

[1] This is a motion to review the order of a single judge of this court under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The moving party/appellant, Mario Oliveira, commenced an appeal in this court. He purported to appeal several orders and endorsements of a motion judge of the Superior Court (the “SCJ motion judge”). At the forefront is an order dated February 26, 2021 (the “Contempt Order”), finding him in contempt of two earlier orders of the SCJ motion judge. The appellant also seeks to appeal other orders that preceded and followed the Contempt Order, including an order dated April 29, 2021 sentencing him to a period of incarceration, with the term to be determined, and a costs order dated June 25, 2021.

[2] The appellant did not perfect his appeal within the requisite time. On the day following the perfection deadline, he brought a motion before a single judge of this court (the “chambers judge”), seeking an extension of time to perfect his appeal and other relief. The chambers judge (1) refused to grant an extension of time to perfect the appeal; (2) refused to stay the appellant’s sentencing for contempt; and (3) ordered sealed a document that was included in the appellant’s motion materials in violation of the deemed undertaking rule.

[3] The appellant has since been sentenced for contempt. On January 14, 2022, he was sentenced by the SCJ motion judge to a period of incarceration of 89 days to be served intermittently when Ontario jails permit. That order is the subject of another appeal to this court. On consent, Pardu J.A. made an order on March 1, 2022, extending the time to appeal and staying the order pending appeal. She also directed case management of that appeal, the appeal in C70060, and the present panel motion and appeal. She explained that either party may seek an appointment with a case management judge.

[4] The appellant brought a motion before this panel to review the chambers judge’s order. In particular, he asserts that the chambers judge erred in refusing to extend time for his appeal and in ordering a document contained in his materials (which he has refiled in his materials on this review motion) to be sealed.

[5] A panel may interfere with the order under review under s. 7(2) of the Courts of Justice Act if the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18.

[6] In our view, the refusal of the chambers judge to extend time to appeal the Contempt Order reflects such an error. Applying the “justice of the case” test, and considering all of the relevant factors, we grant the extension of time for the appellant to appeal the Contempt Order, and, in the circumstances, certain other orders that are related to the contempt proceedings. We do not see any error in the decision to order sealed a document that was subject to the implied undertaking rule, and we make the same order in respect of the same document which has been filed in this review motion.

[7] The parties have been involved in several legal actions, some of which are ongoing. The orders the appellant seeks to appeal were made in the context of a breach of confidence action commenced by the respondents as a result of the appellant’s threat to disseminate certain information to a confidential list of contact addresses that he allegedly obtained through his former employment with the respondent union. The SCJ motion judge made an order dated December 23, 2020, requiring the return of the confidential list, prohibiting the appellant’s use and retention of the confidential list, and appointing a forensic inspector to examine the appellant’s devices and accounts to confirm that the confidential list was permanently and irrevocably deleted. She made a subsequent order on January 28, 2021, requiring compliance with the December 23 order.

[8] On February 26, 2021, on motion by the respondents, the SCJ motion judge found the appellant in contempt of the December 23 and January 28 orders and made the Contempt Order. She deferred sentencing to permit the appellant the opportunity to purge his contempt. In an endorsement dated April 16, 2021 (reported at 2021 ONSC 2856), she refused the respondents’ request to stay an action pending in another court as part of the sentencing for contempt. On April 29, 2021, the SCJ motion judge issued Reasons for Sentence, concluding that she would order a term of incarceration to be served once the Covid-related circumstances subside. On June 25, 2021, she ordered costs of the contempt proceedings to the respondents and fixed the amount.

[9] On July 7, 2021 the appellant served and filed a notice of appeal (which has since been amended) and a Certificate Respecting Evidence purporting to appeal the various orders and endorsements of the SCJ motion judge, including the Contempt Order. In the months that followed, the appellant served and filed other documents in connection with his appeal, including an Exhibit Book and a Factum. Although the appellant also prepared and served an Appeal Book and Compendium, it was not accepted for filing because it did not include the signed and entered orders under appeal. The respondents served and filed a Respondents’ Certificate Respecting Evidence.

[10] After the court refused the appellant’s filing, he brought a motion before the chambers judge for an extension of time to perfect his appeal and other relief.

[11] In denying an extension of time to appeal the Contempt Order, the chambers judge noted two concerns: first, there was a substantial delay between the date of the order and the date on which the appellant filed his first notice of appeal; and second, and more importantly, the appeal was without merit. The chambers judge stated that nothing in the appellant’s submissions pointed to any error in the SCJ motion judge’s decision or suggested any basis for the court to intervene on appeal. He observed that “[t]he appellant asserts that he has complied with the order to provide his devices for forensic inspection even though he acknowledges that he destroyed them, and so precluded that inspection permanently”: at para. 8. In these circumstances, the chambers judge concluded that the appellant failed to establish that the justice of the case required an extension.

[12] The chambers judge concluded that the appeals from the other orders lay to the Divisional Court, such that an extension of time would inevitably result in the appeals being quashed for want of jurisdiction. He therefore declined to grant an extension to perfect the appeal in respect of these other orders.

[13] In our respectful view, the chambers judge erred in principle in refusing an extension of time to appeal the Contempt Order on the basis that the appeal lacks merit.

[14] In a motion to extend time to appeal, the overriding issue is whether it is in the interests of justice in the particular circumstances to extend time: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 3.02(1); 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, at para. 4. Among the relevant factors, the court may consider whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), at para. 14. Other factors include whether the appellant intended to appeal during the appeal period; the length of and explanation for the delay; and prejudice to the opposing party: Denomme v. McArthur, 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 7. Consideration must be given to all factors relevant to the circumstances of the case: Leighton v. Best, 2014 ONCA 667, 20 C.B.R. (6th) 326, at para. 14.

[15] The challenge here is that, while the Contempt Order was made in open court on February 26, 2021, the SCJ motion judge did not provide any written reasons or endorsement. According to the respondents’ counsel, she did provide oral reasons, however no transcript has been filed with this court. The respondents’ counsel submit that the SCJ motion judge’s reasons for making the Contempt Order can be gleaned from certain passages in her subsequent endorsements, and that this was a proper basis for the chambers judge to conclude that the appeal of the Contempt Order is without merit.

[16] We disagree. A civil contempt order is a serious matter. The power to find an individual guilty of contempt is exceptional, and exercised as a last resort, only after finding that the necessary elements are made out, and after affording the alleged contemnor procedural fairness: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36; Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20; and 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951, 135 O.R. (3d) 538, at para. 37, leave to appeal refused, [2017] S.C.C.A. No. 62. Without seeing the reasons for the Contempt Order, it is impossible to assess, even in a preliminary way, the merits of the proposed appeal. Moreover, a lack of reasons itself can be a ground of appeal. At the time the motion was heard by the chambers judge, the respondents had not even taken out a formal order.

[17] In the circumstances, the chambers judge erred in dismissing the motion for an extension of time primarily on the basis that the appeal lacks merit. He also erred by failing to consider all the circumstances.

[18] The only other factor referred to by the chambers judge with respect to an extension of time to appeal the Contempt Order was that the appellant was substantially late: the time to appeal the contempt finding was 30 days from February 26, 2021, and the appellant’s first notice of appeal was served several months later, in early July 2021. While it is no doubt true that there was a delay, the appellant’s confusion is at least partly explained by the fact that the decision was made orally, there were no written reasons, and the respondents had not taken out an order.

[19] There are other relevant circumstances, including the seriousness of the finding of contempt that, as in the present case, can lead to a penalty of imprisonment. In addition, after filing his notice of appeal, the appellant continued to take steps with a view to perfecting his appeal, the respondents did not object to the late filing of the notice of appeal, and there was no assertion of prejudice.

[20] In all the circumstances, we are satisfied that an extension of time to appeal the Contempt Order is warranted.

[21] As for the other orders and endorsements referred to in the appellant’s notice of motion, we agree with the chambers judge that no extension is warranted in respect of an appeal of an order that is interlocutory. This precludes an extension of time in respect of the order dated April 16, 2021. We would, however, direct that the extension of time to perfect the appeal includes the orders of the SCJ motion judge dated April 29, 2021 and June 25, 2021. The April 29, 2021 decision determined that a sentence of imprisonment was required, while the June 25, 2021 endorsement awarded costs of the contempt proceedings to the respondents and fixed the amount. In our view, it makes sense to grant an extension of time for the appellant to perfect his appeal to include the April 29 sentencing decision and to permit him to seek leave to appeal the costs order when he appeals the Contempt Order.

[22] The appellant has included in his materials a certificate stating that he has ordered transcripts. Apparently, the transcripts he has obtained have not been prepared by a certified transcriptionist. The respondents indicated at the hearing before us that they will object to any such transcripts being used in the appeal. For their part, the Respondents’ Certificate Respecting Evidence lists a number of transcripts the respondents contend are necessary for the appeal. Arguably many of the transcripts from the various attendances before the SCJ motion judge and other judges may not be required for this appeal. As noted earlier, at the hearing of this motion, counsel for the respondents indicated that the SCJ motion judge gave oral reasons for finding the appellant in contempt on February 26, 2021. This transcript should be before the court in this appeal. Any directions respecting transcripts may be sought from the case management judge.

[23] Finally, there is no basis to interfere with the decision of the chambers judge to seal a document that the appellant included in his motion materials. The appellant filed the same document in this review motion, notwithstanding that it has absolutely no relevance to the matters before us. There is no question that the appellant knowingly violated the deemed undertaking rule when he filed this document. The document, which is located at Volume 2, Tab 1 of his motion record, is not properly part of the court record and will be sealed.

[24] For these reasons, the order of the chambers judge is set aside in part. An order will go extending time to perfect the pending appeal as it relates to the Contempt Order, the April 29, 2021 sentencing decision and seeking leave to appeal the costs order dated June 25, 2021, with the following directions:

a) Counsel for the respondents are to provide the issued and entered Contempt Order that they had taken out to the appellant by March 21, 2022;

b) The appellant is to amend his Appeal Book and Compendium to include the issued and entered Contempt Order, and serve and file it by March 31, 2022; and

c) The appeal will be considered perfected once the Appeal Book and Compendium is filed.

[25] As was ordered by Pardu J.A. on March 1, 2022, either party may request an appointment with a case management judge should further directions be required.

[26] There will be no costs of this motion.

"K. van Rensburg J.A."

"I.V.B. Nordheimer J.A."

"A. Harvison Young J.A."