DATE: 20050505

DOCKET: C41200

COURT OF APPEAL FOR ONTARIO

RE:

GINA MARIE ANTHES and LIZ WILSON-ZORZETTO (Applicants/Respondents in Appeal) – and – DAVID WILSON, Estate Trustee under the Last Will and Testament of Edward L. Wilson, deceased (Respondent/Appellant)

BEFORE:

BORINS, BLAIR and LAFORME JJ.A.

COUNSEL:

Barry L. Yellin

for the respondent/appellant in appeal

No one appearing

for the applicants/respondents in appeal

HEARD & RELEASED ORALLY:

May 02, 2005

On appeal from the order of Justice J.W. Quinn of the Superior Court of Justice dated September 3, 2003.

E N D O R S E M E N T

[1] The appellant is the Estate Trustee under the last will and testament of his father. On this appeal, he seeks to set aside the order of J.W. Quinn J. dated September 3, 2003, finding him in contempt of an earlier order of Taliano J. requiring Mr. Wilson to pass his accounts as Estate Trustee by a certain date. He was two weeks late in filing his materials to do so.

[2] For reasons that are not clear from the record, Quinn J. returned the court’s own motion for contempt.

[3] We note at the outset that judges should approach the use of the contempt power with caution, and in the case of contempt not in the face of the court, should not act hastily and might well think of leaving such action to the parties. A court’s own motion for contempt poses particular procedural problems. Who is the prosecutor and who must satisfy the burden of proof, for instance?

[4] A contempt process – even a civil contempt process – is criminal in nature and requires proof of the contemptuous conduct beyond a reasonable doubt. The conduct must be wilful, deliberate and of a contumacious and egregious nature.

[5] Here, Quinn J. did not address the issue of the burden of proof. There was some evidence before him of efforts made by Mr. Wilson to have the accounts prepared and to comply with the order of Taliano J. The trial judge did not consider whether this evidence could give rise to a reasonable doubt and appears to have proceeded on the erroneous premise that the appellant had taken no action whatsoever. In our view, this constituted a palpable and overriding error justifying appellate intervention. We see nothing on the record before us or before Quinn J. of the kind of wilful, deliberate or contumacious conduct that could justify a finding of contempt.

[6] We conclude by reiterating the observations of this court, through Borins J.A., in Rogacki v. Belz (2004), 232 D.L.R (4th) 523 at para. 32:

I conclude with the observation, found in many of the authorities, that it is a serious matter for a person to be found in contempt of court. Even in a case of civil contempt such as this, a contempt proceeding is punitive in nature with broad powers given to the court including the power to order imprisonment. Because of the criminal nature of contempt proceedings, the person who is its object has many of the safeguards accorded a person accused of a criminal offence. The onus is on the applicant to prove its case beyond a reasonable doubt. See Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217, 71 D.L.R. (4th) 84. Given the gravity of a finding of contempt, the court’s contempt power should be exercised with scrupulous care and only when the circumstances are clear and beyond reasonable doubt.

[7] Accordingly, the appeal is allowed and the order of Quinn J. is set aside.

“S. Borins J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A”