Sabourin and Sun Group of Companies v. Laiken, 2011 ONCA 757

CITATION: Sabourin and Sun Group of Companies v. Laiken, 2011 ONCA 757

DATE: 20111130

DOCKET: M40696 (C54546)

COURT OF APPEAL FOR ONTARIO

Sharpe J.A. (In Chambers)

BETWEEN

Sabourin and Sun Group Companies

Plaintiff/Defendant by Counterclaim

and

Judith Laiken

Defendant/Plaintiff by Counterclaim (Respondent)

AND BETWEEN

Judith Laiken

Defendant/Plaintiff by Counterclaim (Respondent)

and

Sabourin and Sun Group of Companies, Peter Sabourin, Sabourin and Sun Canada Inc., Sabourin and Sun Inc., a Bahamas Corporation, Sabourin and Sun BVI Trust, and Intervest Direct Inc., 1077472 Ontario Limited, Greg Irwin, Sabourin and Sun Inc. and 1061971 Ontario Limited

Defendants to Counterclaim

P.F. Schindler, for the moving party Peter Carey

Kevin D. Toyne, for the responding party Judith Laiken

Heard: November 28, 2011

Reasons for Decision

Sharpe J.A.:

[1] The appellant, a lawyer, moves for a stay of an order finding him in contempt of court. The contempt finding arises from a Mareva injunction (“the order”) obtained by the respondent against the appellant’s client. After the order freezing the client’s assets on strict terms had been made, the appellant received a cheque from his client for a very substantial sum. The appellant deposited the cheque in his trust account. He deducted his outstanding fees and, because he believed that following his client’s instructions to use the remainder to settle some debts would violate the order, he instead returned the balance to the client.

[2] The motion judge found that the appellant’s conduct constituted contempt of the order which, inter alia, ordered any person with knowledge of the order to prevent the withdrawal of monies held in the client’s name in a trust account. The appellant seeks to reverse that finding, essentially on the grounds that the motion judge erred in her interpretation of the order and that the order was not sufficiently clear to forbid the course of action he took.

[3] Upon giving her reasons for finding the appellant in contempt, the motion judge adjourned the matter pursuant to rule 60.11 (1), (5) and (8):

CONTEMPT ORDER

Motion for Contempt Order

60.11 (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

Content of Order

(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

Discharging or Setting Aside Contempt Order

On motion, a judge may discharge, set aside, vary or give directions in respect of an order under subrule (5) or (6) and may grant such other relief and make such other order as is just.

[4] The motion judge explained what she was doing as follows:

As a result, the parties shall appear before me for a hearing during the week of December 19, 2011 at 361 University Avenue. Mr. Carey’s attendance is required at the hearing although he is not obliged to call any evidence or testify. At that hearing, if he wishes, Mr. Carey shall have the opportunity to present any further evidence, including viva voce evidence, and make any submissions that he wishes to make. The plaintiff shall also have the opportunity to file any further material, call evidence, cross-examine at the hearing, and make submissions. I shall take all of this into account in making any order under rule 60.11(5) and (8) of the Rules of Civil Procedure.

[5] The appellant submits that it would be appropriate for this court to stay the proceedings at this stage and to entertain his appeal from the contempt finding before allowing the motion judge to make her final disposition pursuant to rule 60.11(5).

[6] For the following reasons, I am unable to accept the appellant’s submission.

[7] In my view, it would be premature to grant a stay at this point in the contempt proceedings. A stay would interrupt the Superior Court proceedings and run a serious risk of fragmenting any appeals to this court. If the appeal from the contempt finding were to succeed, that would end the matter, but if it failed, the appellant would still have a right of appeal from any sanction the motion judge imposed. Appeals that interrupt a proceeding and risk a fragmented appeal are almost invariably discouraged. It is almost always preferable and more efficient for appeals to await the completion of proceedings in the trial court so that a complete record and disposition is presented on appeal: see, e.g. Laudon v. Roberts, 2009 ONCA 383, 308 D.L.R. (4th) 422, at para. 25: “The time-honoured practice of reserving to the conclusion of trial the appeal of various rulings made during the proceedings is sound in that it preserves court time and costs.”

[8] The appellant cites Bell ExpressVu Ltd. Partnership v. Torroni, 2009 ONCA 85, 304 D.L.R. (4th) 431, as a case where this court appears to have entertained an appeal from a finding of contempt before the sanction was imposed: see para. 19. However, as I read that case, the court entertained the appeal without any consideration of the point at issue here. Accordingly, I do not view Bell ExpressVu as authority to depart from the established rule against hearing appeals on a piecemeal basis or as authority for the proposition that appeals from contempt findings should ordinarily be heard before the sanction has been imposed.

[9] To stay the contempt proceedings at this stage would also interfere with the design of the commonly followed procedure that is permitted, if not prescribed, by rule 60.11 (5) and (8), of dividing a contempt proceeding into two phases, the first dealing with the issue of whether the party is in contempt and the second dealing with the issue of sanction. Until the order has been made under 60.11 (5), the contempt proceedings have not come to their final conclusion. Until the sanction has been imposed, the judge has not expressed his or her final view of the case. It is clear from the passage quoted above from the motion judge’s reasons that she has not yet completed her adjudication of the contempt proceedings. Indeed, her specific reference to rule 60.11 (8) indicates that she remains open to a wide range of possible outcomes. Until she completes her work, this court will not know if the motion judge considered the contempt to be serious or trivial or how the judge intended to use the sanction of contempt to bring about compliance or to punish the contemnor. These are elements integral to the nature and character of the contempt proceeding and essential to an appellate court’s full appreciation of the disposition under appeal.

[10] Finally, even if I were to approach the matter solely from the perspective of applying the test for a stay, it is my view that the appellant’s request for a would stay fail.

[11] I will assume for these purposes that the appellant can satisfy the first branch of the test and show that there is, as required by the RJR MacDonald Inc. v. Canada 1994 117 (SCC), [1994] 1 S.C.R. 311 test, a serious issue for this court to decide, or, in the words of Finlayson J.A. in Vassallo v. Mulberry Street Ltd. (1995), 1995 673 (ON CA), 83 O.A.C. 386 at para. 15, that the merits of the appeal “deserve the attention of the full court”.

[12] The appellant cannot, however, demonstrate either irreparable harm or that at this stage, the balance of convenience favours a stay.

[13] Until the motion judge makes her order under rule 60.11 (5), we do not know what harm the appellant will suffer as a result of the finding of contempt and so we cannot say that the harm is irreparable. I do not accept the appellant’s submission that the mere risk that he will be sent to jail is sufficient to demonstrate irreparable harm. Indeed, the respondent has stated that she will not seek immediate committal at the sentencing hearing. If, at some point, the sanction of imprisonment is imposed, the appellant can move immediately for a stay and the court can then assess the merits of the stay application with a complete picture of the peril he faces. This would follow the practice used in criminal appeals where an appellant cannot seek judicial interim release until the appeal from conviction is heard until sentence has been imposed Furthermore, the appellant will almost certainly have an advantage over most criminal appellants as it is very unlikely that in a civil contempt proceeding he will be taken immediately to jail without the opportunity to seek a stay.

[14] Nor, in my view, can the appellant show that the balance of interest favours granting a stay at this point in the proceedings. The balance of convenience can only be assessed in the light of the sanction the appellant seeks to avoid on appeal. And, as I have explained, the interests of justice strongly favour postponing the stay decision until after the motion judge has decided upon the appropriate sanction.

[15] Accordingly, the motion for a stay is dismissed with costs to the respondent fixed at $3,000 inclusive of disbursements and HST.

“Robert J. Sharpe J.A.”

RELEASED: November 30, 2011