Bell ExpressVu Limited Partnership v. Torroni et al. EchoStar Satellite LLC et al. v. Torroni et al. [Indexed as: Bell ExpressVu Limited Partnership v. Torroni]
94 O.R. (3d) 614
Court of Appeal for Ontario,
Rosenberg, Sharpe and Blair JJ.A.
January 30, 2009
Civil procedure -- Pleadings -- Striking out -- Motion judge striking statement of defence for failure to pay costs -- Motion judge concluding that no reason was shown why defence should not be struck -- Motion judge erring in transferring onus to defendant and in failing to provide defendant with opportunity to cure default -- Motion judge finding that defendant did not have strong defence on merits but pleadings not in record before him -- Defendant's appeal allowed.
Contempt of court -- Disobedience of court order -- Motion judge erring in finding defendant in contempt of court orders without considering whether terms of orders were sufficiently clear and without considering that burden was on plaintiffs to establish contempt beyond reasonable doubt.
The respondents alleged that the appellant and other defendants were illegally facilitating unauthorized access to their encrypted satellite television programming signals. They obtained an Anton Piller order, pursuant to which they copied information from certain computers in the appellant's possession. Some of the copied information turned out to be unreadable, and the respondents obtained two orders requiring the appellant to allow the respondents to attend at his "premises" (in one order) and "business premise" (in the other order) to re-image computer hard drives in order to rectify the problem. Claiming that the appellant failed to comply with those orders, the respondents brought motions for a finding [page615] that the appellant was in contempt and for an order striking his statement of defence for failing to pay costs of the proceedings which resulted in the orders. The motions were granted. The appellant appealed.
Held, the appeal should be allowed.
Per Blair J.A. (Rosenberg J.A. concurring): A three-pronged test is required for a finding of civil contempt. First, the order that was breached must state clearly and unequivocally what should and should not be done. Second, the party who disobeys the order must do so deliberately and wilfully. Third, the evidence must show contempt beyond a reasonable doubt. The motion judge focused solely on the question of deliberate and wilful disobedience of the orders and did not appear to have considered the requirements that the terms of the order must be sufficiently clear and unequivocal or that contempt must be proven beyond a reasonable doubt. There was a discrepancy between "premises" in one order and "business premise" in the other order. The appellant had vacated his business premises after the Anton Piller Order was granted. There was no list of the hard drives in question. The orders did not provide a blank cheque to the respondents to re-examine the appellant's computers at any location, at any time. There was too much scope for confusion regarding the actual terms of the orders to find the appellant in contempt.
In concluding that no reason was shown why the statement of defence should not be struck, the motion judge erroneously transferred the onus on the motion to strike to the appellant. The motion judge also erred in failing to provide the appellant with an opportunity to cure the default. Finally, his conclusion that it was not apparent that the defendant had a strong defence on the merits was puzzling, as the pleadings were not in the record before him. The order striking the defence should be set aside.
Per Sharpe J.A. (dissenting): The motion judge did not err in finding the appellant in contempt of court. The respondents' notices of motion were not deficient for lacking particulars of the alleged contempt. The motion judge did not improperly admit hearsay evidence in an affidavit from a lawyer in the firm representing the respondents, contrary to rule 60.11(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That rule precludes hearsay evidence only with respect to contentious facts. The appellant filed no material on the motion. Since he did not put the factual basis for the contempt motion in issue, there was no breach of the rule. The orders in question were sufficiently clear. They granted the respondents access to the hard drives in whatever "business premise" or "premises" the appellant was keeping them. There was ample evidence to support the motion judge's finding that the appellant had deliberately interfered with the proper efforts of the respondents to exercise the authority and receive the benefits of the orders. There was nothing in the motion judge's reasons to suggest that he failed to apply the criminal standard of proof.
APPEAL from the orders of Spence J. of the Superior Court of Justice dated February 20, 2008 finding the appellant in contempt of court and striking a statement of defence.
Cases referred to Chiang (Trustee of) v. Chiang (2009), 93 O.R. (3d) 483, [2009] O.J. No. 41, 2009 ONCA 3; Dare Foods (Biscuit Divisions) Ltd. v. Gill, 1972 506 (ON SC), [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.); F.H. v. McDougall, [2008] S.C.J. No. 54, 2008 SCC 53, 61 C.R. (6th) 1, 61 C.P.C. (6th) 1, 297 D.L.R. (4th) 193, 83 B.C.L.R. (4th) 1, [2008] 11 W.W.R. 414, 260 B.C.A.C. 74, EYB 2008-148155, J.E. 2008-1864, 60 C.C.L.T. (3d) 1, 380 N.R. 82, 169 A.C.W.S. (3d) 346; Hobbs v. Hobbs, [2008] O.J. No. 3312, 2008 ONCA 598, 79 W.C.B. (2d) 31, 54 R.F.L. (6th) 1, 240 O.A.C. 202, 170 A.C.W.S. (3d) 511; Jaskhs Enterprises v. 1444707 Ontario Ltd., [2004] O.J. No. 4062, [2004] O.T.C. 859, 134 A.C.W.S. (3d) 80 (S.C.J.); [page616] Prescott- Russell Services for Children and Adults v. G. (N.) (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686, [2006] O.J. No. 2488, 271 D.L.R. (4th) 750, 214 O.A.C. 146, 29 R.F.L. (6th) 92, 150 A.C.W.S. (3d) 84 (C.A.); Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, 2006 SCC 52, 273 D.L.R. (4th) 663, 354 N.R. 201, J.E. 2006-2235, 218 O.A.C. 339, 41 C.P.C. (6th) 1, 52 C.P.R. (4th) 321, 152 A.C.W.S. (3d) 70, EYB 2006-111169; R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J. No. 30, 165 N.R. 374, J.E. 94-647, 42 B.C.A.C. 161, 89 C.C.C. (3d) 193, 29 C.R. (4th) 113, 23 W.C.B. (2d) 211; Toronto Transit Commission v. Ryan (1998), 1998 14635 (ON SC), 37 O.R. (3d) 266, [1998] O.J. No. 51, 41 C.L.R.B.R. (2d) 21, 50 O.T.C. 46, 76 A.C.W.S. (3d) 729 (Gen. Div.); Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 29 (SCC), [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, 96 D.L.R. (4th) 376, 141 N.R. 281, J.E. 92-1458, 50 Q.A.C. 161, 76 C.C.C. (3d) 289, 45 C.P.R. (3d) 1, 35 A.C.W.S. (3d) 792 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 57.03(2), 60.11(3), 60.12(b)
Hari S. Nesathurai, for appellant Jeremy Corkery. Denise Bambrough, for respondents Bell ExpressVu Limited Partnership, EchoStar Satellite LLC, EchoStar Technologies Corporation, and Nagrastar LLC.
BLAIR J.A. (ROSENBERG J.A. concurring): -- Introduction
[1] Jeremy Corkery is one of a group of defendants being sued by Bell ExpressVu Limited Partnership in one action, and by EchoStar Satellite LLC and others in a second. The plaintiffs in both actions claim similar relief against the same defendants in relation to unauthorized access to, and trafficking in, satellite television signals.
[2] On February 20, 2008, Justice Spence found Mr. Corkery in contempt of earlier orders granted in both proceedings on November 16, 2007 (the "November 16 Orders"), and struck his statements of defence primarily for failing to pay costs of the proceedings which resulted in the November 16 Orders. The November 16 Orders were a follow up to an Anton Piller Order obtained by the plaintiffs at the beginning of the proceedings and permitting them, among other things, to copy information from certain computers in Mr. Corkery's possession. Some of the copied information turned out to be unreadable, for various technical reasons. Under the November 16 Orders, Mr. Corkery was required to allow Bell ExpressVu and EchoStar to attend at his premises to re-image (i.e., copy) certain computer hard drives and removable [page617] storage media in order to rectify the problem. In circumstances that I shall outline, this never happened, and Spence J. ultimately found Mr. Corkery in contempt and struck his statements of defence in both actions.
[3] Mr. Corkery seeks to set aside that disposition. For the reasons that follow, I would allow the appeal. Facts
[4] The respondents allege that the appellant and other defendants were illegally facilitating unauthorized access to their encrypted satellite television programming signals. They obtained the Anton Piller Order and an interlocutory injunction from Morawetz J. on July 20, 2006. On July 26, the Anton Piller Order was executed at the appellant's place of business (5974 Main St., Niagara Falls) and his former home (6092 Trillium Crescent, Niagara Falls). As part of that exercise, a number of computer hard drives were copied onto what is called a "Western Digital" WD2500JB computer hard drive (the "Western Digital Drive"). A law firm was appointed as Independent Supervising Solicitor ("ISS") under the Anton Piller Order.
[5] The respondents subsequently discovered that the Western Digital Drive had malfunctioned. The information and evidence copied onto it could not be accessed or copied further. The respondents therefore applied for orders permitting them to re- image (i.e., re-copy the information from) the computer hard drives and electronic media devices from which the information had originally been copied. Spence J. granted the order requested in each action on November 16, 2007. Paragraph 2 of the orders state:
The Bell ExpressVu Order
- THIS COURT ORDERS that the Plaintiff, Bell Expressvu Limited Partnership be permitted to re-attend the business premise of the Defendant, Jeremy Corkery ("Corkery"), for the purpose of re-imaging the computer hard drives and removable media which were initially copied onto the Western Digital Drive.
The EchoStar Order
- THIS COURT ORDERS that the Plaintiffs may re-attend the premises of the Defendant, Jeremy Corkery ("Corkery"), for the purpose of re-imaging the computer hard drives and removable media which were initially copied onto the Western Digital Drive.
[6] Thus, there are differences between the two orders. In the Bell ExpressVu order, the plaintiffs are permitted "to re- attend the business premise of the Defendant", whereas in the EchoStar order they may "re-attend the premises of the Defendant" [page618] (emphasis added). These differences became a source of contention and confusion, exacerbated by the fact that Mr. Corkery apparently vacated his business premises at 5974 Main St. following the execution of the Anton Piller Order and before the November 16 Orders.
[7] The appellant attended the motion before Spence J. on November 16, although he was unrepresented at the time. He was present when the motion judge read his endorsement and was provided with a copy of that endorsement. He was also provided with a copy of the order as issued and entered by way of an e- mail message sent to him on December 3, 2007.
[8] Bell ExpressVu and EchoStar say that the appellant deliberately failed to comply with the November 16 Orders. Mr. Corkery says he never deliberately disobeyed them. He maintains: (a) that it took time for him to arrange a day off work on a date that was acceptable for the respondents, or their representatives, to attend; (b) that there were difficulties in clarifying the place of attendance; and (c) that alternate suggestions to address the foregoing problems -- for example, that the hard drives be brought to the offices of the ISS for copying -- were met with unacceptable and improper demands by the respondents to access his computers (as opposed to the permissible access to the hard drives and electronic media in question).
[9] All of this can be traced in a series of e-mail exchanges that took place between November 20, 2007 (when counsel for the respondents made his first request for convenient times within the ensuing two weeks when their computer forensics expert and the ISS could re-attend) and December 6 (the evening before a 9:30 a.m. appointment obtained to schedule proceedings to enforce the order). As is often the case in disputes of this nature, it is possible to find elements in support of both sides' positions in this exchange. At the end of the day, however, the respondents had not yet been provided with access to the hard drives and removable media devices in question.
[10] At the 9:30 a.m. appointment on December 7, the motions for contempt and to strike the appellant's statements of defence were scheduled for January 30, 2008. On January 17, the appellant was served with the notices of motion in each action. The contempt motion was founded on his conduct in allegedly interfering with the respondents' right to attend and re-image the hard drives and electronic devices. The motion to strike was based primarily on his failure to pay the costs ordered against him at the time of the November 16 Orders.
[11] The appellant did not serve or file any responding materials, but on January 30 sought an adjournment and served a [page619] number of summonses to witnesses. The motion judge refused the adjournment and quashed the summonses. [See Note 1 below] Although proceedings commenced that day, the motion was put over in any event because there was insufficient time to hear it. As the motion judge was seized of the matter, a new date was set for February 19, 2007.
[12] On February 18, the appellant delivered six of the ten contested hard drives to the offices of the ISS.
[13] On February 19, the appellant sought leave to file materials and, again, an adjournment. He was represented by counsel at this time. The motion judge refused both requests and proceeded to hear the motions, which he disposed of by way of a very brief endorsement the following day. His reasoning with respect to the contempt finding is contained entirely in the following two sentences:
Based on the material of the plaintiffs and in particular the course of conduct shown in the communication between the parties in the motion records of the plaintiffs, the defendant Mr. Corkery deliberately interfered with the proper efforts of the plaintiffs to exercise the authority and receive the benefit of the court order of Nov 16/07. This interference constitutes contempt of this Court order.
[14] With respect to the motion to strike, he said:
The costs of the plaintiffs' motions in respect of the Nov 16/07 order were ordered to be payable within 30 days. The costs have not been paid. Mr. Corkery has failed to comply with the order in this respect as well. It is not apparent that Mr. Corkery has a strong defence in the merits in the actions against him. There is no evidence as to Mr. Corkery's means. No reason is shown why his defence should not be struck. In view of his non-payment of the costs order and considering that conduct in the context of the conduct of Mr. Corkery in the course of the proceeding, which is well reflected in the above order for contempt, order to go as requested by the plaintiffs to strike out Mr. Corkery's defence in this action. Analysis
[15] The appellant argues that in finding him in contempt, the motion judge erred in (a) failing to find the respondents' notices of motion deficient for lack of particulars of the alleged contempt; (b) improperly admitting affidavit evidence on information and belief, contrary to rule 60.11(3) [page620] [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], and in according weight to such hearsay evidence; and (c) failing to identify and to apply the required test for a finding of contempt.
[16] In relation to the order striking out his statements of defence, the appellant submits that the motion judge erred in (a) failing to recognize his known means; and (b) finding that he did not have a strong case on the merits.
The contempt finding
[17] I do not need to deal with the two procedural issues raised by the appellant because I am persuaded that the appeal must be allowed on the third ground. In any event, I have read the reasons of my colleague Justice Sharpe, and I agree with his disposition of the issues respecting the allegedly deficient notice of motion and introduction of hearsay evidence.
[18] On the third ground, however, I agree with the appellant that the motion judge either failed to turn his mind to the test to be applied in making a finding of civil contempt or, if he did, that he applied the test improperly. Nowhere in the motion judge's brief six-line endorsement on the contempt issue does he address this important question.
[19] The respondents seek to imprison the appellant for a civil contempt. Indeed, Ms. Bambrough confirmed at the outset of argument that her instructions were to seek a jail term, and only alternatively, a fine, if the matter proceeds.
[20] A finding of contempt of court is a serious matter that is quasi-criminal in nature. It is "first and foremost a declaration that a party has acted in defiance of a court order": Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, at para. 35. The potential penal sanctions facing a contemnor underscore the seriousness of such a finding. As the Supreme Court of Canada has observed, "[t]he penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of 'public law', in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue": Pro Swing, at para. 34, citing Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 29 (SCC), [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, at p. 1075 S.C.R. This court has recently reaffirmed these principles in Chiang (Trustee of) v. Chiang (2009), 93 O.R. (3d) 483, [2009] O.J. No. 41, 2009 ONCA 3, at paras. 10-11. [page621] It is for these reasons that motions for contempt are often said to be strictissimi juris, i.e., that all proper procedures must be strictly complied with: see Dare Foods (Biscuit Divisions) Ltd. v. Gill, 1972 506 (ON SC), [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.); Toronto Transit Commission v. Ryan (1998), 1998 14635 (ON SC), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen. Div.).
[21] The three constituent elements of the test for civil contempt were summarized by this court in Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 81792 (ON CA), 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)
[22] See, also, Hobbs v. Hobbs, 2008 ONCA 598, [2008] O.J. No. 3312, 54 R.F.L. (6th) 1 (C.A.), at paras. 26-28. 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. 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: Chiang, at paras. 10-11.
[23] As noted, the reasons of the motion judge were exceedingly brief. I do not suggest that such reasons must necessarily analyze the application of the established three- pronged test to the facts of the case in great detail: see Hobbs, at paras. 26-28. However, a motion judge must at a minimum turn his or her mind to the test and apply the elements of the test properly. Here, the motion judge did not do so.
[24] Instead, he focused solely on the question of deliberate and wilful disobedience of the orders. The motion judge does not appear to have considered the requirements that the terms of an order must be sufficiently clear and unequivocal or that contempt must be proven beyond a reasonable doubt. 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.
[25] The parties engaged in a debate via e-mail over what business premises the November 16 Orders referred to and where the re-attendance to re-image should take place. The discrepancies between the two orders appear to have been at the root of this [page622] exchange of communications and to have led to confusion regarding the meaning of the orders. In the Bell ExpressVu order, the plaintiffs are permitted "to re- attend the business premise of the Defendant", whereas in the EchoStar order they may "re-attend the premises of the Defendant" (emphasis added). To complicate matters further, Mr. Corkery asserts that the respondents were aware of his having moved business premises in the time between the execution of the Anton Piller Order and the November 16 Orders. The respondents profess to have no knowledge of such a move.
[26] The respondents were permitted to re-attend "for the purpose of re-imaging the computer hard drives and removable media which were initially copied onto the Western Digital Drive". However, there is apparently no list of the hard drives and removable disks in question. The appellant took the position that he had some, but not all of them, and, indeed, he delivered six out of a total of ten in issue to the offices of the ISS on February 18, the day before the argument of the motion. Moreover, there is some indication in the record that several of the hard drives and removable disks may not have belonged to or been in the possession of the appellant, but, rather, belonged to and may have been in the possession of his clients.
[27] None of these matters were addressed by the motion judge, nor does any consideration appear to have been given to whether or not the terms of the November 16 Orders were sufficiently clear and unequivocal in the circumstances to support a finding of contempt.
[28] Those orders did not provide a blank cheque to the respondents to re-examine the appellant's computers in any location, at any time. They provided instead access to hard drives and removable media at the appellant's "business premises" or "premises". There was too much scope for confusion regarding the actual terms of the November 16 Orders -- as evidenced by the communications between the parties -- to find the appellant in contempt, in my view. In this respect, I agree with the following observations of Cullity J. in Jaskhs Enterprises v. 1444707 Ontario Ltd., [2004] O.J. No. 4062, [2004] O.T.C. 859 (S.C.J.), at para. 40:
[A] failure to comply with an order of the court will not be contempt if there are genuine, unresolved issues between the parties with respect to the manner in which it is to be carried into operation. A finding of contempt will not be made for breach of an order unless its meaning and requirements in the particular circumstances are clear and unambiguous. (Citations omitted)
[29] Nor does the motion judge seem to have considered the question of the burden of proof -- a matter that may well be [page623] important in this case. The burden is on the party seeking the contempt order to establish contempt on the evidence beyond a reasonable doubt. Probability is not sufficient. While a good case may be made that the appellant was in all likelihood ragging the puck as much as he could in terms of facilitating the respondents' re-imaging exercise, whether it could be said beyond a reasonable doubt that he was deliberately interfering with the respondents' rights under the orders may be another story. It is not clear what standard the motion judge applied in making his finding that "Mr. Corkery deliberately interfered with the proper efforts of the plaintiffs to exercise the authority and receive the benefit of the court order of Nov 16/07."
[30] Accordingly, while the motion judge applied his mind to the second criterion for a finding of contempt -- i.e., whether the appellant had "deliberately and wilfully" disobeyed his orders -- he does not seem to have considered the equally important first and third criteria, namely whether the terms of the orders were clear and unequivocal and whether the record established a finding of contempt beyond a reasonable doubt. He thus left issues arising on the record touching both of these criteria unresolved.
[31] It is for these reasons that I take a different view of Mr. Corkery's compliance or non-compliance with the November 16 Orders for purposes of a contempt finding than does my colleague. I am satisfied the finding of contempt cannot stand and must be set aside.
The order striking the statements of defence
[32] I am also satisfied that the orders striking out the appellant's statements of defence must be set aside as well.
[33] The motion judge based his decision to strike on three grounds: (i) The appellant's failure to pay the costs of the November 16 Orders; (ii) the appellant's conduct on the basis of which he had been found in contempt; and (iii) the fact that it was not apparent the appellant has a strong defence on the merits.
[34] The motion judge concluded that "no reason [was] shown why his defence should not be struck". Respectfully, this approach transfers the onus on the motion to strike to the appellant. It was not for the appellant to demonstrate that he had a strong defence on the merits or to show why his defence should not be struck. It [page624] was for the respondents to do so. This flaw is significant given the grounds upon which the motion judge proceeded.
[35] It was open to the motion judge to consider striking the appellant's defence based on his failure to pay the costs of the November 16 Orders and on his conduct in relation to those orders: rules 57.03(2) and 60.12(b). Striking out a defence is a severe remedy, however, and in my opinion ought generally not to be a remedy of first resort in circumstances such as this, without at least providing the defaulting defendant with an opportunity to cure the default. The appellant was afforded no such opportunity.
[36] The motion judge emphasized what he viewed as the lack of a strong defence on the merits. Coupled with the appellant's conduct -- which need not be established beyond a reasonable doubt for these purposes -- and the failure to abide by the costs award, a weak defence could justify an order striking the pleadings. The basis for the motion judge's conclusion that "it is not apparent that Mr. Corkery has a strong defence in the merits in the actions against him" is puzzling, however. The appellant's statements of defence were not in the record before him. Nor, for that matter, were the statements of claim. There is therefore some merit in the appellant's submission that it was difficult for the court to make any finding regarding the relative merits of either party's case. It is not possible to say whether -- supposing he had been able to assess the details of the appellant's defence and it turned out to be more meritorious than he had thought -- he may have considered the costs default and the appellant's conduct in a different light.
[37] Taken in conjunction with the apparent reversal of onus, these considerations lead me to conclude that the orders striking the appellant's defences in the two actions must be set aside as well. Disposition
[38] For the foregoing reasons, I would allow the appeal and set aside the orders in each action finding the appellant in contempt and striking out his statements of defence. I observe in closing, however, that the November 16 Orders remain in effect and continue to be binding upon the appellant.
[39] The appellant is entitled to his costs of the appeal, which I would fix in the amount of $15,000 all inclusive. In the circumstances, I would make no order as to costs with respect to the motion before Spence J.
[40] SHARPE J.A. (dissenting): -- I have read the reasons of my colleague Blair J.A. I agree with his disposition of the appeals [page625] against the orders striking out the statements of defence. However, I respectfully disagree with his conclusion that the appeals against the contempt orders should be allowed. For the following reasons, I would dismiss the appeals from those orders. Issues
[41] The appellant raises three issues in relation to the finding of contempt: (1) Were the respondents' notices of motion deficient for lacking particulars of the alleged contempt? (2) Did the trial judge err by improperly admitting hearsay evidence? (3) Did the trial judge err by failing to identify and apply the required test for a finding of contempt? Analysis 1. Were the respondents' notices of motion deficient for lacking particulars of the alleged contempt?
[42] I see no merit to the submission that the notices of motion lacked sufficient particulars to bring home to the appellant the basis of the allegation of contempt. Bell ExpressVu sought an order in the following terms:
An order declaring that Corkery is in contempt of the Spence Order for failing to grant the Plaintiff access to his premises for the purpose of re-imaging computer hard drives that were originally copied by the Plaintiff on July 25, 2006, onto a "Western Digital" WD2500JB computer hard drive that malfunctioned (the "Western Digital Drive"), as ordered.
[43] The Echostar notice of motion was in similar terms.
[44] The notices of motion then provided detailed grounds setting out the crucial term of Spence J.'s November 16, 2007 order and alleged that, to date, the appellant had refused all of the respondents' requests to re-image the computer hard drives.
[45] In my view, the appellant could have been left in no doubt about the nature of the allegations giving rise to the contempt proceedings. He was named as the alleged contemnor. The acts said to constitute contempt -- failure to grant the respondents access to his business premises to re-image certain hard drives -- were specified. As the allegation involved the ongoing breach of an existing order, the date of the alleged contempt -- the period following the date of the order, November 16, 2007 -- was sufficiently identified. [page626] 2. Did the trial judge err by improperly admitting hearsay evidence?
[46] The appellant alleges that portions of an affidavit from a lawyer in the firm representing the respondents should not have been admitted, relying on rule 60.11(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The portion of the affidavit to which objection is taken describes the exchange of various e-mail messages between the appellant and counsel for the respondents. Copies of those e-mail messages are attached as exhibits.
[47] Rule 60.11(3) provides:
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)
[48] 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. 3. Did the trial judge err by failing to identify and apply the required test for a finding of contempt?
[49] While the motion judge's reasons could hardly be described as fulsome, it is my view that in the circumstances of this case, they were adequate. Moreover, there was ample evidence in the record to support the motion judge's conclusion that the appellant was guilty of contempt.
[50] When assessing the sufficiency of the motion judge's reasons, it is important to recall that the appellant filed no material. This was not a case where the facts were in dispute or where issues of credibility had to be resolved. The only issue before the motion judge was whether or not the respondents' material established that the appellant had failed to comply with the November 16 Orders.
[51] I now turn to the appellant's specific complaints regarding the motion judge's reasons. (a) Clarity of the order
[52] In my view, the motion judge should not be faulted for failing to address in his reasons the issue of whether or not the terms of the November 16 Orders were sufficiently clear and unequivocal to support a finding of contempt and his failure to do so should not vitiate his finding of contempt. [page627]
[53] First, the orders which the motion judge himself had made were clear on their face: they required the appellant to give the respondents access to his premises to allow them to re-image the hard drives they had tried to copy on July 25, 2006.
[54] Second, I fail to see how the fact that the appellant had moved his business or moved the hard drives from where they had been when the Anton Piller Order was first executed could somehow defeat the rights of the respondents or render the orders unclear. Simply put, the order granted the respondents access to the hard drives in whatever "business premise" or "premises" the appellant was keeping them. The respondents did not insist, as was their right, to actually enter the appellant's premises; they simply wanted access to the hard drives. Where the hard drives were being kept was a matter entirely within the appellant's knowledge. In my view, the appellant should not be permitted to circumvent the orders by moving the hard drives from one place to another.
[55] Third, it is clear from the record that the appellant was in court when the motion judge made his order and that he was provided with a draft order for approval. It was only when he was being pressed for his cooperation and threatened with contempt that he took any exception to the wording of the orders. He filed no material to indicate that he did not understand what the orders required him to do. The evidence before the motion judge indicates that the appellant's failure to comply with the orders was the product of his own strategy of delay and avoidance rather than the result of any uncertainty or confusion about the meaning of the orders.
[56] The respondents' solicitor sent an e-mail to the appellant on November 20, pressing him to approve the draft orders and comply with the orders. In his response sent the following morning, the appellant asked the solicitor for clarification as to what premises the respondents wished to attend. The respondents' solicitor immediately responded as follows:
The purpose of Spence J's order was to allow us to re-image the 10 hard drives found at your business premises (5974 Main St., Niagara Falls) and identified by DEI using the following control numbers: 401, 402, 403, 405, 408, 409, 410, 411, 412, 413. Our motion materials . . . provide more detail as to which of your computers these hard drives were removed from. You should still have those computers and those hard drives as they are considered evidence in this action and must be preserved by you. It will be up to you to advise us where they are currently located.
Please note that time is of the essence on this issue as every passing day potentially undermines the integrity of that electronic evidence. As such, please advise us as soon as possible when we can come and re-image them. [page628]
[57] When the appellant again asked for particulars as to the meaning of the word "premises" later that same morning, counsel for the respondents replied aptly:
You need to advise us where the drives are located. That's within your knowledge, not ours. The order allows us to enter the premises where the drives are located.
[58] These responses accurately captured the meaning of the orders and what the appellant was required to do.
[59] On November 27, the appellant advised the respondents' agents, who were to do the re-imaging, that he had moved from his office at 5974 Main St. It is significant that at this point, there is no suggestion of any concern about a lack of clarity in the orders as to where the imaging would take place. Indeed, the appellant indicated that the re-imaging could take place at his current premises or, alternatively, that he could bring the hard drives to the office of the respondents' agents. He added that since he lived in a small apartment it would be less than convenient to do the re-imaging there and that he "would be agreeable to moving the location" but that he would need the "go ahead" to do so. When he was told that the respondents were agreeable to copying the hard drives at their agents' office but that to do so the appellant would be required to bring both the computers and the hard drives, the appellant objected.
[60] I see no merit to the submission that the respondents' request that the appellant bring the computers in which the hard drives were found on the date of the original search exceeded the ambit of the November 16 Orders. The November 16 Orders gave the respondents more than the right to have access to the hard drives: they gave them the right to access the appellant's premises for the purpose of re-imaging the hard drives. Moreover, the November 16 Orders have to be read as part and parcel of the original Anton Piller Order that gave the respondents broad rights to search electronic equipment used by the appellant, required the appellant to preserve the evidence and expressly provided that the appellant shall not "remove any of the Evidence from the Premises, or alter, deface, discard, conceal or destroy in any manner any of the Evidence wherever situate".
[61] In my view, on this record, there was no doubt about the clarity of the orders or what they required the appellant to do. The respondents repeatedly asked when and where they could re-image the hard drives. The appellant failed to provide them with access to the hard drives despites numerous requests, opportunities and the threat of contempt proceedings between November 16, 2007 and the hearing of the contempt motion, [page629] which was not concluded until February 20, 2008. Where the appellant's premises were located and where the hard drives could be found were matters within the appellant's knowledge. Any confusion or uncertainty about the location of the hard drives or the place where the respondents would attend to re-image them was caused by the appellant's own actions. The appellant's failure to comply with the orders cannot, in my view, be attributed to any doubt about what the orders required him to do. (b) Requisite state of mind
[62] There was ample evidence to support the motion judge's finding that the appellant had "deliberately interfered with the proper efforts of the plaintiffs to exercise the authority and receive the benefit of the court order of Nov. 16/07". That was a finding of fact that is entitled to deference in this court, and in any event, I find it difficult to see how the motion judge could have come to any other conclusion. In particular, the evidence demonstrated that -- the appellant had been served with and had knowledge of the November 16 Orders; -- the appellant knew that the orders entitled the respondents to have access to the hard drives for the purpose of re- imaging them; -- the appellant knew where the hard drives were located; -- the appellant had the ability to give the respondents access to the hard drives; and -- the appellant failed to give the respondents access to the hard drives as required by the orders. (c) Proof beyond a reasonable doubt
[63] "Where the trial judge does not express a particular standard of proof, it will . . . be presumed that the correct standard was applied . . . unless it can be demonstrated by the analysis conducted that the incorrect standard was applied": F.H. v. McDougall, [2008] S.C.J. No. 54, 2008 SCC 53, at para. 54. Judges "are presumed to know the law with which they work day in and day out": R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, [1994] S.C.J. No. 30, at p. 664 S.C.R.
[64] There is nothing in the motion judge's reasons to suggest that he applied a standard other than the well-known standard [page630] applicable to a finding for contempt -- proof beyond a reasonable doubt. Indeed, the unequivocal language he used when making the key finding -- "the defendant Mr. Corkery deliberately interfered with the proper efforts of the plaintiffs" -- suggests that he saw no room for doubt.
[65] Furthermore, the motion judge's reasons must be read as a response to the case as it was presented. As I have already noted, the appellant filed no responding material and did not put any of the facts alleged by the respondents in issue. In these circumstances, the motion judge cannot be faulted for omitting to state explicitly that he had satisfied himself that contempt had been proven beyond a reasonable doubt. Conclusion
[66] For these reasons, I would dismiss the appeals from the contempt finding.
Appeal allowed.
Notes
Note 1: The appellant served a motion for leave to appeal to the Divisional Court the decision denying the adjournment Mr. Nesathurai does not seek to rely on it as part of his appeal before us.