OSHAWA COURT FILE NO.: CV-18-139-00 DATE: 20181128 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rhonda Day, Applicant AND: Dominic Thomas, Respondent

BEFORE: The Honourable Mr. Justice C.F. de Sa

COUNSEL: Sara Mosadeq, Counsel for the Applicant Matthew Hickey, Counsel for the Respondent

HEARD: November 20, 2018

RULING ON MOTIONS

Overview

[1] The Applicant has brought a motion for a contempt order requiring that the Respondent pay a fine or be incarcerated. The Applicant has also asked that the Respondent turn over immediate possession of the subject property at 73 Wright Crescent, Ajax, Ontario (the “Property”). By the Order of Justice Sosna dated July 6, 2018, the Property was ordered to be partitioned and sold. According to the Applicant, the Respondent has been actively interfering with the sale of the Property in contravention of that Order.

[2] The Respondent opposes the application. He takes the position that the Applicant has failed to comply with the Rules for personal service. In addition, the Respondent argues that the materials filed rely largely on inadmissible hearsay, and accordingly, the application should be dismissed.

[3] For the reasons outlined below, I grant the Applicant’s request for immediate possession of the Property. The other terms of my Order out outlined at the end of these reasons.

Background

[4] The Property was purchased by both the Applicant and Respondent in 1998. Between 1998 and 2000, the parties lived together in the home and shared the monthly expenses of the Property including the mortgage, property tax, property insurance and utility bills.

[5] The parties separated in 2000. In 2007, the Applicant moved to Alberta where she currently resides. Because of his credit situation, the Respondent had to be removed from title. While he is no longer on title, the Respondent continues to reside at the Property and has resided there since 2000.

[6] The Applicant remains on title for the Property, and is currently paying all the expenses for the Property. She maintains her own home in Alberta and can no longer afford to carry the expenses of the Property. Although the Respondent has been residing at the Property, he has not been contributing to any of the costs.

[7] The Applicant brought an application for partition and sale of the Property dated January 19, 2018.

[8] By the Order of Justice Sosna dated July 6, 2018, the Property was ordered to be partitioned and sold.

[9] Justice Sosna further ordered that the Respondent was to cooperate with the Applicant in listing the Property for sale.

Actions Underlying the Allegation of Contempt

[10] Shortly after Justice Sosna’s Order, Ms. Erika Roberts, the real estate agent retained by the Applicant to list the Property for sale attempted to place a lock box on the door to the Property. The Respondent told Ms. Roberts that he intended to cause damage to the Property by “ripping up the floors” and taking out the fireplace. He stated that this was his house and it would not be sold.

[11] Accordingly, on July 23, 2018, Ms. Kelli Preston, lawyer for the Applicant wrote to Mr. Matt Hickey, lawyer for the Respondent advising him that the Respondent was in breach of Justice Sosna’s Order directing that the Property be sold. Mr. Hickey never responded to the letter of July 23, 2018.

[12] In and around the same time, the Applicant arranged for contractors to attend the Property to effect some repairs to bring the Property into a saleable condition. The Respondent refused to allow any contractors onto the Property. Accordingly, on July 30, 2018, Ms. Preston again wrote to Mr. Hickey about the Respondent’s breach of Justice Sosna’s Order. Again, there was no response from Mr. Hickey to the letter of July 30, 2018.

[13] At some point, the parties agreed that the Respondent would complete the repairs and have the Property ready for listing on September 1, 2018.

[14] On September 4, 2018, Ms. Preston wrote to Mr. Hickey that the Property would be listed for sale on October 1, 2018 and advised that a “Coming Soon” real estate sign would be placed on the Property. Ms. Preston requested that the Respondent cooperate in listing the Property for sale.

[15] On October 4, 2018, Ms. Roberts attempted to place a “For Sale” sign on the Property, however, the Respondent ran out of the Property and advised the agent that the Property was not for sale and that he would remove any sign placed on the Property.

[16] After the Applicant filed a contempt motion, the Respondent’s behaviour appeared to change. On October 22, 2018, Ms. Roberts was provided entry into the Property by the Respondent. Pictures of the Property show it to be in need of significant repair. The repairs necessary are outlined in the reply affidavit of Ms. Roberts and include repairs to the en-suite bathroom, living room ceiling, kitchen, basement, and windows in the home. The Property is also very unkempt and requires cleaning and organization.

[17] The Respondent has a tenant in the Property who has been present on all showings. During one of the attendances at the Property, an occupant was laying naked in the upstairs bedroom.

[18] According to Ms. Roberts, the Property cannot be sold in its current condition. The Property requires both repairs and cleaning. In Ms. Roberts’ professional opinion, the house cannot be sold with the tenant staying at the Property. Both the Respondent and the tenant must leave for the repairs to be effected.

[19] The Applicant continues to bear the cost of the mortgage payments on the Property. The continued financial burden on the Applicant is putting significant financial and emotional strain on the Applicant.

[20] The Applicant requests possession of the Property in order to complete the necessary repairs and to sell the Property.

The Previous Court Appearances

[21] The Applicant initially brought this motion returnable October 11, 2018. The materials were served on the Respondent’s counsel on the afternoon prior to the actual hearing date.

[22] Immediately after receiving the materials, Respondent’s counsel requested an adjournment as he was scheduled for a continuing education program in Toronto on October 11, 2018.

[23] The Applicant’s counsel attended on the motion on October 11, 2018. Upon the request of Applicant’s counsel, Justice Woodley ordered the Respondent to comply with the Order of Justice Sosna and also ordered costs in favour of the Applicant in the amount of $2,500.

[24] The Applicant served an amended motion record on October 19, 2018.

[25] The Respondent drafted and served responding materials on October 29, 2018. In those materials, the Respondent pointed out that the originating affidavit prepared by the legal assistant was hearsay (referring the first-hand experiences of Erika Roberts, the real estate agent) and should not be admissible. On that same day, Applicant’s counsel filed an affidavit of Erika Roberts, providing first-hand information pertaining to the same allegations of contempt.

[26] The matter was scheduled to be heard on November 2, 2018. Given the affidavit of Erika Roberts, the Respondent requested an adjournment and the matter was adjourned to November 16, 2018.

[27] The Respondent filed an affidavit in response and takes the position that while the Property may be under renovation, he is not interfering with the sale. According to the Respondent, he is merely conducting the necessary renovations to the Property himself.

[28] Regarding the other occupant who was naked in the bedroom, the Respondent takes the position that his roommate works nights and sleeps during the day. He has no knowledge if his roommate sleeps naked.

[29] Finally, the Respondent takes the position that he is participating in the process. According to the Respondent, the Applicant is just impatient.

Analysis

General Principles

[30] Rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (the “Rules”) provides:

60.11 (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

(2) The notice of motion shall be served personally on the person against whom a contempt order is sought, and not by an alternative to personal service, unless the court orders otherwise.

(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit. [emphasis added]

[31] There is a difference between criminal and civil contempt. The latter implies breach of judgments, orders or other court proceedings in affairs that are between private actors, whereas the criminal contempt of court relates to words or acts that obstruct justice or show an intention to do so. There is a greater public dimension to criminal contempt, that is, public harm, as opposed to the private harm concept of civil contempt. See: Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, [1953] 2 D.L.R. 785; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37.

[32] Civil disputes, when they threaten public respect for orders of law, transcend private concerns and properly become the subject of criminal remedies: Poje, supra, and B.C.G.E.U. v. British Columbia (Attorney General), supra. The more the conduct amounts to an outright defiance of the court’s authority, the further the conduct moves towards a criminal contempt. The Supreme Court of Canada explained this in United Nurses of Alberta, at pp. 931-933 S.C.R.:

A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. [emphasis added]

What the courts have fastened on in this and other cases where criminal contempt has been found is the concept of public defiance that "transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole": B.C.G.E.U. v. British Columbia (Attorney General), supra, at p. 237, per Dickson C.J., Lamer, Wilson, La Forest, and L'Heureux‑Dubé JJ. concurring. The gravamen of the offence is not actual or threatened injury to persons or property; other offences deal with those evils. The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court. [emphasis added]

[33] The penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of “public law”, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue. In Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065 at 1075.

[34] In United Nurses, supra, McLachlin J. established a direct connection between contempt of court and the rule of law, at p. 931:

The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [emphasis added]

[35] The power to punish for contempt of court is an integral part of the inherent powers of the courts (see Canadian Broadcasting Corp., supra), and as such it constitutes an essential element in the proper administration of justice.

[36] The gravity of a contempt order is underscored by the criminal law protections afforded to the person against whom such an order is sought. The significance of a contempt order is also evident from the sanctions potentially faced by the offender. In Canada, an individual in contempt of court can be committed to jail (see Rule 60.11 of the Rules of Civil Procedure) or may face the imposition of any other sanction available for a criminal offence, such as a fine or community service: Westfair Foods Ltd. v. Naherny (1990), 63 Man. R. (2d) 238 (C.A.). Thus, both the process used to issue a declaration of contempt and the sanction bear the imprint of criminal law. Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para 35.

[37] The three constituent elements of the test for civil contempt were summarized in Prescott-Russell Services for Children and Adults v. G. (N.), 82 O.R. (3d) 686, [2006] O.J. No. 2488 (C.A.), at para. 27:

The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order. (Citations omitted) [emphasis added]

[38] In relation to the first of these elements, it must be clear to a party exactly what must be done to be in compliance with the terms of an order: Pro Swing, at para. 24. As the Court of Appeal explained in Bell ExpressVu, v. Torroni, infra, at para. 24:

The strength of a finding of deliberate disobedience of an order weakens progressively with the lack of clarity in the terms of the order against which the disobedience must be measured.

[39] In relation to the third element, the requirement of proof beyond a reasonable doubt ensures that the potential penal consequences of a finding of contempt are not ordered lightly: Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, at para. 20.

[40] A judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge. R.R.O. 1990, Reg. 194, r. 60.11 (9).

[41] The civil contempt remedy is one of last resort. It should not be sought or granted in cases where other adequate remedies are available to the allegedly aggrieved party. Again, where the impugned conduct is not directed at defying the court’s authority, the goal should be to ensure compliance. Hefkey v. Hefkey, 2013 ONCA 44.

Application to the Facts of this Case

[42] The Respondent takes the position that the Applicant has failed to establish contempt. According to the Respondent, the original affidavit in support of the motion was not served personally. In addition, the original affidavit relied entirely on inadmissible hearsay contrary to the Rules. In light of the short service, I should not be entitled to rely on the affidavit of Erika Roberts. In short, given the strict rules that I am bound to observe in a contempt proceeding, the Respondent takes the position that the Applicant has failed to discharge its burden.

[43] While I recognize the importance placed on the Rules when dealing with a contempt proceeding, the strictness of the Rules are directed at ensuring the proper result. They are not instruments to be used to avoid compliance with the terms of a court order or to subvert the interest of justice.

[44] An improper finding of contempt has the potential of serious consequences. Accordingly, the court must carefully consider the order, the evidence and the requisite burden in deciding whether a contempt is made out. The strict rules are directed at ensuring the court achieves a proper result on the basis of a clear order and “reliable” evidence. However, it hardly lies in the mouth of someone who has evidently breached a court Order to direct a court that they are not permitted to consider hearsay evidence to make such a finding.

[45] I note that a finding of contempt properly limits the reliance on hearsay on contentious issues. As Sharpe J. in Bell ExpressVu Limited Partnership v. Torroni, supra, explained in his dissenting decision at para. 48 (confirmed in this aspect by the majority).

As the emphasized passage makes clear, the rule precludes hearsay evidence only with respect to contentious facts. The appellant filed no material on the motion. Since the appellant did not put the factual basis for the contempt motion in issue, I fail to see how there has been any breach of the rule. [emphasis added]

[46] I hardly find that the allegations in this case of contempt have been contested in their substance. Even on the Respondent’s own evidence, I am satisfied beyond a reasonable doubt that he is wilfully not complying with the Order of Justice Sosna and making efforts to subvert it. From the factual record before me, I am satisfied beyond a reasonable doubt that the conduct of the Respondent is sufficient to make out civil contempt.

[47] However, I need not make such a finding in this case to give effect to the underlying purpose of Justice Sosna’s Order. What matters in this motion is that the objectives of the original Order [of Justice Sosna] be carried out. If the matter returns again for a subsequent breach, however, the Respondent should be aware that the consequences will likely be severe.

[48] I will grant the Applicant’s request for possession of the Property immediately to prepare the Property for sale. I will give the Respondent 45 days to vacate the Property.

[49] The Respondent is not to do anything to interfere with the Property, nor engage in any work on the Property. The Respondent is not to cause any damage to the Property.

[50] If the Respondent interferes with the Applicant or her agents in any way in relation to preparing the Property for sale, he will be in contempt of this Order.

[51] I will grant the Respondent’s request to have all other matters related to the sale of the Property consolidated.

[52] The Respondent has also requested that the Order of Justice Woodley be set aside on the basis that he was not in attendance to make submissions. I grant the Respondent’s request to set aside Justice Woodley’s Order. However, I will order the costs of that original motion and the subsequent appearances in favour of the Applicant.

[53] Costs are ordered against the Respondent in the amount of $6,000 payable within 30 days.

Justice C.F. de Sa

Date: November 28, 2018