DATE: 20021001 DOCKET: C37832

COURT OF APPEAL FOR ONTARIO

RE: MARZIO POMPEANI (Respondent) – and – BONIK INC. (BONIK INCORPORATED), BOKRICA INC. AND RAY M. REALTY INC. (Appellant)

BEFORE: McMURTRY C.J.O., CARTHY AND GOUDGE JJ.A.

COUNSEL: J. Thomas Curry and K.E. Taylor For the appellant

Robert J. McComb For the respondent

HEARD: September 19, 2002

On appeal from the order of Justice Robert G. S. Del Frate of the Superior Court of Justice dated February 1, 2002.

E N D O R S E M E N T

Released Orally September 19, 2002

[1] [1] In our view, regrettably, the three findings of contempt made below cannot stand. First, the contempt asserted for September 21, 1998 had, in our view, already been adjudicated by Poupore J. who had made no such finding concerning that conduct.

[2] [2] Second, the contempt asserted for November 23, cannot stand in the face of the lack of clarity created by the Divisional Court order and the fact that the appellant relied on the advice of counsel which, in turn, was based on that lack of clarity.

[3] [3] Third, the contempt found for the conduct on July 25, 2001 cannot stand in the face of the conflicting evidence concerning the reason for the appellant’s non-attendance on that day.

[4] [4] We have very considerable sympathy for the frustration no doubt felt by the respondent and Justice Del Frate’s attempt to control the unreasonable conduct of Mr. Nikolic. However, the appeal must be allowed and the findings of contempt set aside. The remainder of the order below including the costs paragraph of that order stands.

[5] [5] In view of the conduct of the appellant the respondent is entitled to its costs in the amount of $5000.00.

“R.R. McMurtry C.J.O.”

“J.J. Carthy J.A.”

“S.T. Goudge J.A.”