DATE: 20061127

DOCKET: C45345

COURT OF APPEAL FOR ONTARIO

RE:

DONALD MILLIGAN AND MARY ELLEN MILLIGAN Personally and on behalf of others (Plaintiffs/Respondents) – and – ANDREW KEITH LECH (Defendant/Appellant)

BEFORE:

LABROSSE, DOHERTY and BLAIR JJ.A.

COUNSEL:

Paul Mack

for the appellant

David Mackenzie and Ryan Warren

for the respondents

HEARD & RELEASED ORALLY:

November 22, 2006

On appeal from the order of Justice J. Robert MacKinnon of the Superior Court of Justice, dated April 10, 2006.

E N D O R S E M E N T

[1] On April 10, 2006, the motion judge: (1) dismissed the appellant’s motion for an order discharging, setting aside or varying the contempt order of July 29, 2004 and staying all civil contempts proceedings; (2) made a finding that the appellant was in contempt for the third time; and (3) sentenced him to a further fifteen months incarceration, consecutive to any other time required to be served. The appellant appeals these orders.

[2] This is a class action in which the plaintiffs are suing the appellant in relation to a multi-million dollar fraud ($50,000,000 or more). The appellant was noted in default and commencing in August 2003, numerous orders have been made for production of material and attendances for examination for discovery.

[3] The first contempt order was made on October 14, 2003 for failing to produce documents, answer questions on examination for discovery and attend in court. He was sentenced to twelve months incarceration. On July 29, 2004, a second contempt order was made for the same reasons and the appellant was sentenced to fifteen months incarceration followed by a third contempt order on April 10, 2006 when he was sentenced to a further fifteen months incarceration.

[4] Throughout the proceedings, the appellant has repeatedly breached his promises to the court and demonstrated a deliberate and flagrant disregard for court orders. He was not only encouraged to purge his contempt at any time, but provided with opportunities to file material, to retain counsel when not represented by counsel, to attend for his examination for discovery and to answer questions under oath.

[5] The appellant took no step (until the present appeal) to appeal the orders to produce, the orders to attend for his examination for discovery, the findings of contempts or the sentences. No attempts have been made to stay the orders except pending the hearing of this appeal. A stay was granted but had no effect as the appellant was refused bail on the criminal contempt charges arising from the fraud. More importantly, at all times, he could have purged his contempt by complying with production and submitting to his examination.

[6] This is not a case of a court sanctioning the same refusal. In this case, each sentence for contempt was the result of a positive act by the appellant, which constituted a discrete and wilful refusal to comply with the subsequent orders.

[7] The appellant seeks leave to introduce fresh evidence, which it is alleged, contradicts the respondents’ contention that his responses to questions that would be asked on his examination for discovery are relevant for the purpose of determining what happened to the money invested by the class members.

[8] Accepting that contention at face value does not in any way render the orders for production and his examination moot. This evidence could not affect the result of this appeal.

[9] We see no basis to interfere with the discretionary orders of contempt made by the motion judge. Given the serious, wilful and deliberate nature of the contempt, we are not persuaded that the motion judge was in error in imposing the sentences that he imposed.

[10] The appeal is dismissed with costs fixed at $10,000, all inclusive.

“J.M. Labrosse J.A.”

“Doherty J.A.”

“R.A. Blair J.A.”