Court of Appeal for Ontario

Citation: Astley v. Verdun, 2015 ONCA 225 Date: 20150402 Docket: M44589 (C59749)

Before: Simmons, Tulloch and Pardu JJ.A.

Between

Robert M. Astley Plaintiff (Respondent/Responding Party)

and

J. Robert Verdun Defendant (Appellant/Moving Party)

Counsel: Elizabeth Roberts, for the appellant Brian N. Radnoff, for the respondent

Heard and released orally: March 16, 2015

ENDORSEMENT

[1] In our view, the motion judge erred in concluding that the contempt finding and sentence under appeal is merely a do-over of the original contempt finding and sentence, and that Mr. Verdun’s appeal does not raise a serious question to be argued warranting consideration of a stay pending appeal.

[2] The contempt motion forming the subject matter of the current appeal was premised on Mr. Verdun’s failure to comply fully with the terms of the conditional sentence he received on the first contempt motion. Having regard to the decision in R. v. Casey, 2000 5626 (ON CA), [2000] O.J. No. 71 (C.A.) at para. 22, there is an arguable issue concerning whether Goldstein J. was entitled to proceed by further contempt motion rather than invoking enforcement mechanisms for breach of a conditional sentence. In fairness to the motion judge, this issue was not raised before her.

[3] Further, even assuming a further contempt motion was an available procedure, the quantum of the sentence imposed raises a serious question to be argued on appeal. Having regard to the time served to date under the second conditional sentence, Mr. Verdun faces potential irreparable harm if a stay pending appeal is not granted.

[4] We also conclude that the motion judge erred in holding there is any potential prejudice in these circumstances to Mr. Astley. Unlike the first contempt motion, the second contempt motion was not about enforcing the original injunction. Rather, it was about ensuring Mr. Verdun fulfilled precisely the terms of the conditional sentence imposed on the first contempt motion. In these circumstances, the balance of convenience favours a stay.

[5] As for the order for security for costs, even if the motion judge should not have considered outstanding costs awards under rule 61.06(1)(c), it was open to her to consider Mr. Verdun’s other conduct in the proceeding and to make an order for security costs having regard to that conduct.

[6] In all the circumstances, we set aside the motion judge’s order dismissing the motion for a stay; we grant the motion for a stay; we vary the order for security for costs to $10,000; and we set aside the order dismissing the appeal for delay. In addition, we direct that the security for costs be paid and the appeal be perfected within 30 days from today, failing which the appeal may be dismissed by the registrar for delay or for failing to pay the order for security for costs without further notice. As success on this motion is divided, the order of the motion judge as to costs is set aside and there will be no order as to costs of the hearing before us.

[7] On consent, this endorsement is amended to also provide that:

• the appellant’s passport, currently being held by the Superior Court of Justice, shall be returned to him;

• the appellant shall attend the appeal hearing at the Court of Appeal and shall surrender his passport to the Court of Appeal immediately prior to the appeal hearing;

• that if the appeal is dismissed for failure to perfect the appeal or failure to pay the security for costs as provided in this endorsement, the order for a stay pending appeal is automatically terminated and the warrant of committal dated December 9, 2014 immediately continues in full force and effect, including the term requiring the surrender of the appellant’s passport.

“Janet Simmons J.A.”

“M. Tulloch J.A.”

“G. Pardu J.A.”