Borer v. Nelson, 2020 ONSC 4259

COURT FILE NO.: 20-CV-82608 DATE: 08/07/2020 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BRUCE BORER and ANISE ODEH Plaintiffs – and – ROBERT NELSON, RUTH NELSON and JACK NELSON Defendants

Counsel: Douglas Cunningham for Anise Odeh Bruce Borer – Self-represented Defendants - Self-represented

Heard: July 8, 2020

Sentencing for Contempt

S. GOMERY J.

1On July 3, 2020, I found the defendant Robert Nelson in contempt of court orders to disclose information and records, including a Mareva injunction issued on March 10, 2020. The hearing was adjourned to today so that I could hear submissions on the sanctions for Mr. Nelson’s contempt.

2At the end of my detailed oral reasons on July 3, I told Mr. Nelson that he had an opportunity, in advance of today’s hearing, to purge his contempt by complying with the court’s past disclosure and production orders. I told him that, if he complied, this would make it less likely that he would face any significant sanction for his contempt. I warned Mr. Nelson that, if he continued to refuse to comply with the orders, he could expect to face serious sanctions, including possible jail time.

3At today’s hearing, Mr. Nelson said that he had the “utmost respect” for the justice system and expressed remorse for his failure to comply with the court’s orders. He has not however provided any information or records as previously ordered. There is not even any evidence, beyond his declarations and those of his parents Jack and Ruth Nelson, that he has made any effort to do what he has been ordered to do. He has done nothing to purge his contempt.

Legal Principles in Sanctioning Contempt of a Mareva Order

4Sanctioning contempt of court serves two purposes. First, it seeks to ensure that the person who has breached the court’s orders in the past complies with them in the future. Second, it sends a message to the public at large that the court’s processes must be respected; Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574; Devathasan v. Ablacksingh, [2018] O.J. No. 6621 (S.C.J) at para. 18; Target Lumber & Logging Co. LLC v. Snow Angel Venture 1 GP Inc., [2019] O.J. No. 2701 (S.C.J.) at para. 39.

5In Boily, at para. 90, the Court of Appeal held that the following factors were relevant in determining the sanction for contempt:

a) the proportionality of the sentence to the wrongdoing; b) the presence of mitigating factors; c) the presence of aggravating factors; d) deterrence and denunciation; e) the similarity of sentences in like circumstances; and f) the reasonableness of a fine or incarceration.

6A sanction must be proportionate “to the gravity of the offence and the degree of responsibility of the offender": Chiang, [2007] O.J. No. 1866 at para. 86. The court must therefore consider the seriousness of the conduct that gave rise to the contempt order.

7Enforcing Mareva orders is particularly important because such an order is only issued when there is strong evidence that a defendant has or will attempt to evade justice. In Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530, 367 DLR (4th) 415, the Court of Appeal stated that the premise of a Mareva order is that defendant “is a rogue bent on flouting the process of the court”. As Justice Myers aptly observed in Pronesti v. 1309395 Ontario Ltd., 2015 ONSC 1139, at para.30: “A civil remedy that cannot be enforced provides scant justice to the applicant”. For that reason, contempt of a Mareva order is a serious offence and may attract a serious sanction.

8For the same reason, deterrence and denunciation are important considerations in sanctioning civil contempt. In the absence of a meaningful sanction, the offending party may have no incentive to comply with the court’s orders going forward, and others may not take the court’s orders seriously either.

9In Devathasan, at paras. 24 and 28, Justice Nishikawa reviewed what Ontario courts have considered as mitigating and aggravating factors. I will not reproduce them here, but will refer to the relevant factor in discussing Mr. Nelson’s particular case.

10The range of sanctions imposed for civil contempt varies depending on the circumstances. Where a custodial sentence is imposed, the length of the term of incarceration imposed for simple civil contempt “varies greatly with the facts of a case and can vary between a number of days and a year”; In Greenberg v. Nowack, [2018] O.J. No. 366 (aff’d by the Court of Appeal at [2020] O.J. No. 2370](https://www.minicounsel.ca/oca/2020/370)), at para. 43. In Chiang, Lax J. canvassed recent Ontario decisions where the offender was sentenced to time in custody. The length of the sentence varied between five days to over a year.

11Finally, the court should consider sanctions other than jail: Criminal Code, s. 718(2) (d) and (e); Sussex Group v. Sylvester, [2002] O.J. No. 4350, 62 O.R. (3d) 123 (Sup.Ct.) at paras. 80-82. This is a particularly relevant consideration given the current COVID-19 health crisis. At a time when public health authorities are prohibiting gatherings of more than ten people at a time, sending someone to live with others in a congregated setting should only be done when there is no reasonable alternative.

Application of the Principles to Mr. Nelson’s Contempt

12The plaintiff seeks a 30 day custodial sentence, a fine of $5000 and costs.

13As already mentioned, breaching a Mareva order is serious misconduct that may warrant a serious sanction. This is explicit in r. 60.11(5) of the Rules of Civil Procedure, which provides that the court may order imprisonment, a fine, costs or “any other order that the judge considers necessary”.

14The only possible mitigating factor in this case is that there is no evidence that Mr. Nelson has defied court orders in the past or that he has previously been convicted of contempt.

15A sincere apology or demonstration of remorse to the court would a mitigating factor. Although Mr. Nelson has apologized and stated that he never intended to flout the court’s orders, I do not give this great weight since he has done nothing to try to purge his contempt since he was found liable.

16Mr. Nelson has urged me to consider his medical conditions. He says he has type 1 diabetes and hypertension as well as an eye condition. I do not find that this is a mitigating factor for two reasons. First, Mr. Nelson has filed no evidence of any medical condition; Willis v. Willis, 2009 CarswellOnt 3439 (Ont. S.C.), at paras. 43-51. He has mentioned his medical condition during past appearances but has produced no records. Second, there is no basis for me to find that any condition, if it exists, cannot be accommodated in prison; Niagara Regional Police Services Board v. Curran (2002), 57 O.R. (3d) 631, at para. 31.

17I consider the following to be aggravating factors:

• Mr. Nelson repeatedly breached court orders. He not only failed to comply with the Mareva order, but with three further disclosure and production orders by the court. The non-compliance took place over a four-month period.
• Mr. Nelson’s explanation for his failure to comply with the court’s orders changed over time. He repeatedly told the plaintiffs and the court that he would comply with deadlines, then sought further extensions. His misconduct was calculated and deliberate.
• As I found in my July 3 decision on his liability for contempt, Mr. Nelson has lied to the court. His conduct overall has showed disrespect for the court’s processes and a rejection of its authority.

18Mr. Odeh’s counsel relies on four cases where courts have imposed custodial sentences ranging from 90 days to six months: Greenberg v. Nowack; Cellupica v. Di Giulio, 2011 ONSC 1715, [2011] O.J. No. 1196; Boroni v. Polidoro, 2018 ONSC 6631, [2018] O.J. No. 6166 (S.C.J); and Trade Capital Finance Corp. v. Cook, [2017] O.J. No. 1657. Each of these cases involved allegations that the defendants had committed fraud or otherwise used the plaintiffs’ money for their own purposes. In all four cases, the courts concluded that a jail sentence was the only meaningful sanction, even for a first-time offence of contempt.

19Like the courts in the decisions canvassed above, I conclude that the only proportionate, meaningful and just sentence for Mr. Nelson’s contempt is a period of incarceration.

20I am mindful of the current health crisis, but do not believe that this should override the justice system’s interest in meaningful compliance with its orders and processes in this case. I agree with the plaintiff’s counsel that house arrest would also be meaningless, since the Covid-19 crisis already requires most Canadians to shelter in place. Public institutions, including this court and provincial correctional centres, are taking measures to reduce the risk of contagion.

21Mr. Nelson, please stand.

22You admit that the plaintiffs transferred roughly $2.8 million to you so that you could invest it but you have produced no records that show what happened to their money. Imposing a fine or costs would be meaningless since you have refused to disclose any assets. You have provided no information about the location of the plaintiffs’ money since this action began, despite repeated court orders requiring you to do so. You have tried to mislead the court.

23You need to understand that the court will enforce its orders. I cannot think of any other way to drive this point home and compel your compliance except by imposing a jail sentence.

24You are hereby sentenced to a two-week custodial sentence effective immediately. You are further ordered to return before the court on a day to be set in the week of August 10, 2020. If you have not complied with the court’s orders to disclose to your assets and produce records in support of that disclosure, you may be subject to further sanction at that time.

25I direct that a Form 60L Warrant of Committal issue against Robert Nelson ordering the police to arrest him and deliver him to a provincial correctional institution today to be detained there for fourteen days. This endorsement shall be attached to the Warrant of Committal.

26Mr. Odeh is entitled to his costs on the motion. He shall serve and file cost submissions and a cost outline by no later than July 17, 2020. Mr. Nelson shall have until August 4, 2020 to serve and file responding submissions, if any. Each set of submissions shall not exceed three pages in length.

X. S. Gomery J.