COURT OF APPEAL FOR ONTARIO

CITATION: 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951

DATE: 20161216

DOCKET: C62035

Strathy C.J.O., LaForme and van Rensburg JJ.A.

BETWEEN

2363523 Ontario Inc.

Plaintiff (Respondent)

and

Stephen Nowack, Melissa Frishling, John Doe 1 to 10, Jane Doe 1 to 10, and Doe Corporations 1 to 10

Defendants (Appellant)

J. Thomas Curry and Laura E. Robinson, for the appellant

Norman Groot, for the respondent

Heard: October 14, 2016

On appeal from the orders of Justice Sean F. Dunphy of the Superior Court of Justice, dated January 8, 2016 and April 18, 2016, with reasons reported at 2016 ONSC 2518.

van Rensburg J.A.:

A. Overview

[1] The appellant, Steven Nowack, appeals an order dated January 8, 2016, finding him in contempt and an order dated April 18, 2016, finding he had not purged his contempt and sentencing him to 30 days in prison. The contempt proceedings arose out of the efforts of the respondent, 2363523 Ontario Inc. (“236”), to enforce a default judgment. Mr. Nowack contends that the motion judge: failed to direct himself as to the required test for contempt and the associated burden of proof; erred in how he dealt with Mr. Nowack’s documents that had been included in the Crown brief in his criminal proceedings (referred to here as the Wagg issue); and failed to provide Mr. Nowack with certain procedural safeguards.

[2] For the reasons that follow, I would dismiss the appeal. As I will explain, the motion judge did not err in principle or law in finding Mr. Nowack in contempt. The elements of contempt were clearly made out on the evidence beyond a reasonable doubt. The motion judge did not err in dealing with the Wagg issue, which did not excuse Mr. Nowack’s failure to produce documents and to perform the accounting required by the orders. Finally, there was no procedural unfairness: indeed, the procedure the motion judge adopted permitted Mr. Nowack, after 236 had made out a prima facie case of contempt, the full opportunity to explain himself. The motion judge also afforded Mr. Nowack the opportunity to purge his contempt before he was sentenced.

B. Facts and decisions below

[3] 236 obtained default judgment against Mr. Nowack on September 16, 2015 in an action for fraud, conversion, and breach of fiduciary duty (the “Judgment”). The Judgment, which was obtained in Mr. Nowack’s presence, ordered him to pay 236 $3,000,000 in damages and $22,000 in costs. Paragraph 6 also required Mr. Nowack, within 30 days, to provide 236 with an accounting:

of any and all financial transactions completed by him using or in any way relating to [236’s] funds, including producing bank statements, FXCM statements, and transaction documents including copies of wire transfers, cheques or other forms of transaction, from any of his accounts into and from which [236’s] funds were deposited.

[4] Mr. Nowack brought a motion to set aside the Judgment and was examined further to that motion on October 9, 2015. He ultimately abandoned the motion, but gave a number of undertakings during his examination.

[5] In early November 2015, 236 brought a motion for contempt. 236 argued that Mr. Nowack had failed to comply with para. 6 of the Judgment and failed to answer the undertakings given at his examination. On November 26, 2015, when the contempt motion was initially returned before the motion judge, he ordered Mr. Nowack to attend at a judgment debtor examination on December 1, 2015, to bring with him the documents listed at para. 6 of the Judgment as described in 236’s notice of examination, and to comply with the undertakings given at his October 9 examination in advance of the December examination. This order was made on Mr. Nowack’s consent, and the motion judge seized himself of any further motions arising from his order.

[6] Mr. Nowack was late for his examination on December 1, 2015, and he did not bring any documents with him or answer any of his undertakings.

[7] On January 8, 2016, 236’s contempt motion was returned before the motion judge based on Mr. Nowack’s failure to comply with para. 6 of the Judgment and the requirements of the motion judge’s order of November 26, 2015.

[8] Mr. Nowack attended the hearing with his criminal counsel, Anthony Moustacalis, who explained that Mr. Nowack was due in another courtroom that day in respect of his criminal charges. He referred briefly to Mr. Nowack’s position that certain documents he was required to produce may be part of the Crown’s brief and subject to a deemed undertaking not to be produced. He then withdrew.

[9] Mr. Nowack then brought in civil counsel, David Sloan, and the contempt hearing proceeded. 236 relied on affidavit evidence attaching the orders in question and stating that Mr. Nowack had failed to comply. Mr. Nowack gave evidence under oath, led by Mr. Sloan. He stated that he was the accused in a criminal prosecution for fraud arising from the same facts giving rise to the civil proceeding commenced by 236. He stated that the only financial documents he had in his possession were those that had been seized by the police as part of the prosecution and returned to him as part of the Crown’s disclosure. He claimed that his criminal counsel (not Mr. Moustacalis) told him he was not permitted to produce such documents to third parties. This was his excuse for failing to produce documents to 236 in compliance with the underlying orders. He stated that he had provided authorizations to the plaintiffs in other judgment enforcement proceedings (the “Greenberg Litigation”), allowing them to seek transaction records from the relevant financial institutions. He then provided those authorizations to counsel for 236 during the hearing, stating that he did not have the money to obtain the records himself.

[10] Mr. Nowack also provided the motion judge with a document purporting to be his answers to undertakings from the October 9 examination. In each case, the “answer” provided was a short refusal claiming that the question was not relevant.

[11] The motion judge found Mr. Nowack in contempt and gave brief oral reasons. He rejected Mr. Nowack’s claim that he could not produce the financial documentation that he was ordered to produce because it had formed part of the Crown disclosure for his criminal prosecution. The motion judge stated that the procedure Mr. Nowack should have taken to comply with the underlying orders was to collect the documents within his power, possession, or control and to supply them to the court under seal if necessary to get a ruling. The motion judge observed that Mr. Nowack was not prevented from using the information he had to provide an accounting even if it referenced documents he was unable to produce. The motion judge went on to find that Mr. Nowack failed to produce any of the documents he was ordered to produce, including income tax returns, bank books, statements of assets and liabilities, and statements of employment and other sources of income, in a timely way. The motion judge concluded that the orders were “fairly straightforward and explicit”. He found they had not been complied with, that excuses and promises of future compliance were not good enough, and that the contempt alleged had been made out on the evidence.

[12] The motion judge scheduled a sentencing hearing for February 8, 2016 to give Mr. Nowack time to purge his contempt. The day before, on February 7, Mr. Nowack delivered to 236 an electronic disc containing extensive financial information (which had been in his possession for several months and had already been provided to counsel in the Greenberg Litigation). He also provided a sworn declaration of his assets and income to show that he owned nothing and had no income of any kind. The sentencing hearing was adjourned to permit 236 to review the information Mr. Nowack supplied.

[13] 236 examined Mr. Nowack again on March 23 and April 7, 2016. He gave a number of refusals at these examinations.

[14] The sentencing hearing was returned before the motion judge on April 11, 2016. The motion judge assessed whether Mr. Nowack had made a bona fide effort to purge his contempt. After hearing submissions from counsel for 236 and Mr. Nowack, who was self-represented, the motion judge adjourned the proceeding until April 18, at which point he delivered written reasons finding Mr. Nowack had not purged his contempt and sentencing him to 30 days in prison. His reasons expanded upon the oral reasons for finding Mr. Nowack in contempt and provided reasons for his sentence.

[15] While it was agreed that Mr. Nowack had purged his contempt regarding the undertakings given at his October 9, 2015 examination, the motion judge found that he had only partially complied with the orders requiring him to produce relevant financial information and to provide an accounting. The motion judge concluded that his efforts had been “belated and half-hearted”: at para. 46. The motion judge found that, while providing account authorizations to 236 was a mitigating factor regarding sentencing, Mr. Nowack had been ordered to perform an accounting himself. This obligation was therefore not discharged by telling 236 to complete an accounting instead. Moreover, the accounting Mr. Nowack claimed to have provided was “utterly inadequate”: at para. 59.

[16] The motion judge concluded that incarceration was the only remedy that would adequately meet the sentencing objectives for civil contempt, namely coercion and punishment. A fine would have no impact on Mr. Nowack given his failure to pay outstanding judgments and costs awards. As he claimed to have no assets or income, a fine would be the equivalent of imposing no penalty at all.

[17] Mr. Nowack had already served a 15-day sentence for contempt pursuant to an order of Morgan J. in the Greenberg Litigation. Nevertheless, Mr. Nowack had continued to resist disclosing his financial affairs. A sentence greater than 15 days was therefore required to compel Mr. Nowack to perform his obligations. In all of the circumstances, the motion judge concluded that a custodial sentence of 30 days was appropriate. He further ordered that, within 45 days of Mr. Nowack’s release, he was to perform an accounting and to produce all documents received through Crown disclosure in his criminal proceedings. Finally, the motion judge ordered Mr. Nowack to attend an examination and answer questions based on the financial records he produced.

[18] The motion judge declined to stay the sentence to permit Mr. Nowack to appeal to this court. He was immediately incarcerated and served ten days of his sentence between April 18 and April 28, 2016. On April 28, this court stayed the warrant of committal pending this appeal.

C. Issues

[19] Mr. Nowack asserts that the motion judge erred in:

1. Failing to direct himself as to the elements of the legal test and the reasonable doubt standard of proof for civil contempt, and failing to properly apply these elements;

2. Requiring Mr. Nowack to produce documents that were included in the Crown’s brief in his criminal proceedings; and

3. Conducting the contempt proceeding in a manner that violated the principles of fundamental justice.

(1) Did the Motion Judge Properly Consider and Apply the Test for Civil Contempt?

[20] A party seeking to establish civil contempt must prove that: (a) the order alleged to have been breached states clearly and unequivocally what should and should not have been done; (b) the party alleged to have breached the order had actual knowledge of it; and (c) the party allegedly in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 33-35. A judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: Carey v. Laiken, at para. 37. The burden on a party seeking a contempt order is to establish the above elements by proof beyond a reasonable doubt: Carey v. Laiken, at para. 32; Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 29; Chiang (Re), 2009 ONCA 3, 93 O.R. (3d) 483, at paras. 11 and 50.

[21] Mr. Nowack contends that the motion judge erred in failing to specifically articulate this three-part test in his brief oral reasons. He says that, because of the serious consequences flowing from a finding of contempt and the onus of proof beyond a reasonable doubt, it was necessary for the motion judge to specifically advert to the test and the burden of proof in his reasons.

[22] Further, Mr. Nowack says that the motion judge erred by failing to make the necessary findings on each of the three elements. In that regard, he relies on a passage in the transcript of the contempt hearing where the motion judge, after hearing submissions from the moving party, stated:

THE COURT: Okay. So this is your contempt motion.

MR. GROOT: Yes.

THE COURT: We’re just – we’re pointing to the three aspects of the order that said do X, Y and Z.

MR. GROOT: Yes.

THE COURT: And you’re saying that he hasn’t done them.

MR. GROOT: Yes.

THE COURT: So, as far as that’s concerned, that’s your case.

MR. GROOT: That is my case.

THE COURT: So, do we need more?

MR. GROOT: No.

THE COURT: So let’s hear why he hasn’t done them and what he’s proposing to do about it.

Mr. Nowack says that this excerpt demonstrates that the motion judge believed it was only necessary to find that he had violated the orders, and that the motion judge did not turn his mind to the first two elements of the test.

[23] I would not give effect to these submissions. As Mr. Nowack’s counsel acknowledged in argument on appeal, there was no real issue as to the first two elements of the test – that the orders in question were clear and unambiguous and that Mr. Nowack had notice of what he was required to do.

[24] Thus, what the motion judge had to decide was whether Mr. Nowack intentionally failed to do what the orders compelled. This requirement is distinct from proving whether an alleged contemnor intended to disobey the order in question. Contumacy, or lack thereof, is not an element of civil contempt: Carey v. Laiken, at para. 38. Additionally, it was for the motion judge to determine if it was appropriate to exercise his discretion to decline to make a contempt order in the circumstances: Carey v. Laiken, at para. 37.

[25] In Torroni, this court held that the reasons for a contempt order need not analyze the application of the three-part test to the facts of the case in great detail, but that the judge “must at a minimum turn his or her mind to the test and apply the elements of the test properly”: at para. 23. This court set aside a finding of contempt because the motion judge had failed to consider whether the terms of the underlying order were clear and unequivocal and whether the record established a finding of contempt beyond a reasonable doubt: at paras. 27-29. The motion judge’s consideration of whether the alleged contemnor “deliberately and wilfully” disobeyed the order was not sufficient to ground a finding of contempt in the absence of considering the other elements of the test for civil contempt: at para. 30.

[26] Mr. Nowack says that Torroni mandates that a judge deciding a contempt motion must explicitly set out the three elements for contempt as well as the burden of proof. I disagree. While a judge deciding a contempt motion must turn his or her mind to the test for contempt and apply the elements correctly, Torroni does not require the judge to set out the test expressly in his or her reasons. In Torroni, the orders at issue were not clear. They permitted the plaintiff to enter the premises of the defendant to access computer files. The parties engaged in an email debate as to what specific premises the orders referred to and where the computer access should take place: at para. 25. In the motion judge’s reasons finding contempt, there was no indication that he dealt with this ambiguity, or considered the part of the test for contempt requiring the order to be clear.

[27] By contrast, in this case, there was no dispute about the clarity of the orders and what they required. Nor was there any dispute that their terms had come to Mr. Nowack’s attention. The only issue was whether Mr. Nowack had intentionally failed to perform the acts the orders compelled, or whether he had a reasonable explanation for his non-compliance. His counsel acknowledged that Mr. Nowack had no explanation or excuse for his failure to answer undertakings. As for the balance of what he was required to do, Mr. Nowack had the opportunity to explain his non-compliance and offered only the excuse (that he had made without success in the Greenberg Litigation) that he was unable to produce or use documents that had been seized and were part of the Crown disclosure in his criminal proceedings.

[28] Reasons must be understood in context: R. v. R.E.M., 2008 SCC 51,[2008] 3 S.C.R. 3. The motion judge gave brief oral reasons at the conclusion of the contempt hearing, as Mr. Nowack was due in another courtroom to deal with his criminal case. A reading of the oral reasons and the record of the contempt hearing demonstrates that the motion judge understood the test for contempt and that he applied the test correctly. Indeed, in his oral reasons, the motion judge stated: “I have a motion for contempt alleging non-compliance with some fairly straightforward and explicit orders.” At the contempt hearing, the motion judge also stated: “[Mr. Nowack] was ordered to [do] a number of not vague and general things, but very specific things.” Shortly thereafter, he stated: “Convicted means that I am being asked to find that [Mr. Nowack] was ordered to do X, Y and Z, knowing that he was ordered to do it, he didn’t do it, and so that’s the issue before me today.”

[29] Further, the motion judge expanded upon his brief oral reasons for finding Mr. Nowack in contempt in his sentencing reasons. In paras. 18 and 21 he stated:

Mr. Nowack’s breaches of the two orders…were clear. He had fully understood his obligations…There was no serious question of the non-compliance being inadvertent or due to a misunderstanding. I concluded [at the contempt hearing] that Mr. Nowack had knowingly and deliberately breached both orders and was in contempt.

Later in his sentencing reasons, at para. 90, the motion judge stated: “A finding of guilt requires that the thing required to be done was clear and the breach was both knowing and deliberate beyond a reasonable doubt. In finding Mr. Nowack guilty, I have found all of that to be true.”

[30] These additional reasons supplemented the brief oral reasons the motion judge initially provided and leave no doubt that he understood and correctly applied the test for contempt.

[31] Mr. Nowack’s counsel also argued that the motion judge failed to consider Mr. Nowack’s partial compliance with the requirements of the orders in determining whether the third element – that Mr. Nowack had failed to comply – was met. There is no merit to this argument. At the time the contempt was found, Mr. Nowack had not complied with the specific paragraphs relied upon by 236 from the Judgment and the motion judge’s order of November 26, 2015. There was no question that Mr. Nowack had failed to answer undertakings, that no excuse was offered, and that his only explanation for failing to comply with the balance was his Wagg excuse. In these circumstances, there was nothing by way of partial compliance for the motion judge to assess. At the sentencing hearing, it was acknowledged that Mr. Nowack complied with some terms of the orders, and had therefore purged certain aspects of his contempt. This was taken into consideration in his sentence.

(2) Did the Motion Judge Err in Requiring Mr. Nowack to Produce Documents from the Crown Brief?

[32] In his appeal, Mr. Nowack reiterates the argument made at his contempt hearing that he was unable to comply with the orders because the documents were part of the Crown’s brief in his criminal proceedings. He says that documents he had received through Crown disclosure, even if they were his own documents that had been seized from him, ought not to have been ordered to be produced. He relies on this court’s decision in P.(D.) v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.), at para. 17, which outlines a three-step procedure to be followed before a litigant produces documents in his possession or control that form part of a Crown disclosure brief.

[33] Mr. Nowack contends that the motion judge’s finding of contempt based on his failure to produce documents contained in a Crown brief was premised on a misapprehension of the obligations imposed on Mr. Nowack as a recipient of Crown disclosure. He says the motion judge erred in stating, in response to his Wagg concerns, that he ought to have produced the documents to the court under seal. Instead, he says it was incumbent on 236 to bring a motion to obtain the Crown’s consent to have the documents produced.

[34] In argument on appeal, Mr. Nowack’s counsel acknowledged that it was possible for Mr. Nowack to have brought any Wagg motion that was required. He argued, however, that it was sufficient for Nowack to signal to 236 that he had documents that were part of the Crown brief.

[35] I would not give effect to any of these arguments. The motion judge did not accept the bona fides of Mr. Nowack’s excuse for failing to comply with his obligations. He referred to the fact that Mr. Nowack had raised the same arguments in the Greenberg Litigation without success. The motion judge was correct to note that Mr. Nowack had been ordered to produce documents and to use documents to prepare an accounting, irrespective of their source. Mr. Nowack was not a litigant involved in a discovery process, but a judgment debtor who had been ordered to produce documents that were in his possession and to use the documents to prepare an accounting. As the motion judge noted, if Mr. Nowack had concerns, he could have provided the documents to the court under seal. In other words, it was incumbent on Mr. Nowack to do something himself to address the concern, assuming it was legitimate, rather than to simply raise the argument as an excuse for his non-compliance. Indeed, as Mr. Nowack notes in his factum, after he was found in contempt and sentenced, he promptly sought and obtained the Crown’s consent to release documents.

[36] There was no error in the motion judge’s treatment of the Wagg issue, and I therefore would not give effect to this ground of appeal.

(3) Were the Contempt Proceedings Consistent with the Principles of Fundamental Justice?

[37] Section 7 of the Charter of Rights and Freedoms applies to civil contempt proceedings because they are penal in nature: R. v. Cohn (1984), 48 O.R. (2d) 63 (C.A.), at p. 76, leave to appeal refused, [1985] 1 S.C.R. vii. Contempt proceedings must therefore afford an alleged contemnor “all necessary safeguards”: Toronto Transit Commission v. Ryan (1998), 1998 CanLII 14635 (ON SC), 37 O.R. (3d) 266 (Ct. J. (Gen. Div.)), at p. 270; Torroni, at para. 20. The proceeding must preserve the principles of fundamental justice by safeguarding the right to be presumed innocent and the right to make full answer and defence: R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 1987 CanLII 4056 (ON CA), 59 O.R. (2d) 145 (C.A.), at p. 150.

[38] Mr. Nowack says that the contempt proceedings were inconsistent with these principles because he was denied the presumption of innocence.

[39] Mr. Nowack points to the transcript of the hearing, just before he stepped into the witness box, and says that the circumstances were “less than ideal” because the motion judge communicated an expectation he would testify. Mr. Nowack says that he was denied the right to remain silent.

[40] By the time Mr. Nowack entered the witness box, the evidence 236 had put forward was sufficient to meet all three prongs of the test for contempt: there was compelling evidence of Mr. Nowack’s failure to comply with the orders that were clear and known to him. The motion judge was simply stating the obvious when he observed “let’s hear why he hasn’t done [these things] and what he’s proposing to do about it.” While Mr. Nowack had the right to remain silent, as a practical matter some explanation was required if he had any chance of raising a doubt on the question of his contempt. Mr. Nowack had legal counsel. He was not forced to testify, nor did he indicate any unwillingness to do so. Rather, he used the available opportunity, in response to his counsel’s questions, to attempt to explain his conduct.

[41] Mr. Nowack also asserts that the motion judge had already determined Mr. Nowack’s non-compliance with the underlying orders in advance of the contempt proceeding. He points to the motion judge’s endorsement on November 26, 2015, adjourning the proceeding to January 8, 2015, in which he stated that Mr. Nowack had been unable to provide any evidence of his compliance with the underlying orders or any valid excuse for failing to attend a judgment debtor examination. To reinforce this conclusion, the motion judge made other comments at the January 8 hearing to the effect that Mr. Nowack had to purge the contempt that he already committed.

[42] There was no prejudging of the issue of contempt in this case. Contempt proceedings not infrequently involve multiple attendances, as their purpose is to secure compliance with an order. While a motion judge must tread carefully when expressing views regarding a party’s contempt prior to having the benefit of evidence in a contempt hearing, the November 26 endorsement accurately reflected the absence of any evidence of Mr. Nowack’s compliance before the judge at that time. Indeed, the adjournment provided Mr. Nowack further time to demonstrate his compliance. The motion judge clearly began the contempt hearing with the premise that he had to be satisfied of Mr. Nowack’s contempt beyond a reasonable doubt, and he afforded him the full opportunity to explain his conduct.

[43] Mr. Nowack also contends that the motion judge did not properly assess the relevance of the evidence that he attempted to adduce at his sentencing hearing. He argues that the contempt proceedings denied him the right to make full answer and defence. This right includes the right to submit or call evidence: GM Textiles Inc. v. Sidhu, 2016 ONSC 667, at para. 81. Mr. Nowack attempted to introduce emails exchanged between counsel for 236 and counsel for the plaintiffs in a related proceeding, and Mr. Nowack attempted to call the latter as a witness. He now argues that the motion judge erred in rejecting the relevance of this evidence based only on Mr. Nowack’s submissions and without the motion judge’s own analysis as to admissibility after reviewing the emails and the proposed witness’s testimony.

[44] I disagree. Mr. Nowack, even with the motion judge’s probing, was unable to explain how the emails or witness would be relevant to sentencing and whether he had purged his contempt. The motion judge concluded that the evidence Mr. Nowack sought to advance pertained to 236’s alleged motives, which was not relevant to the purpose of the hearing. On appeal, Mr. Nowack did not attempt to put forward any other explanation of how the excluded evidence might have been relevant to the sentencing hearing.

[45] Finally, I note that counsel for Mr. Nowack on appeal took issue with the motion judge sitting on a motion for contempt of his own order. He said that, as a general rule, a judge should not be permitted to hear a motion for contempt of his or her own order, as there could be a reasonable apprehension of bias. He relied on Central Capital Corp. v. 819187 Ontario Ltd., 1993 CarswellOnt 4447 (C.A.). I do not propose to address this argument in any detail except to say that I am not aware of any principled basis to adopt such a general rule.

[46] In Central Capital a judge, in her reasons for summary judgment, expressed the view that the appellant was in contempt of an order of Eberle J. This court held that the same judge ought not to have heard a subsequent motion for contempt of the order of Eberle J. There was a reasonable apprehension of bias in the circumstances, as a reasonable person might think that the judge had prejudged the issue of contempt. The conclusion was based on the particular facts of the case.

[47] Central Capital did not involve a judge sitting on a contempt motion from her own order, and the court did not articulate a general rule that a judge should never sit on a contempt motion from his or her own order. In my view, such a rule would be both impractical and inconsistent with the overall objective of contempt motions in securing compliance with orders. And the procedure adopted here, as well as in the Greenberg Litigation, where a judge seized himself with contempt proceedings, and then made a series of orders that gave Mr. Nowack the opportunity to avoid a finding of contempt could only serve to enhance the fairness of the process and did not in itself give rise to a reasonable apprehension of bias.

D. Disposition

[48] For these reasons, I would dismiss the appeal. I would extend the stay of the warrant of committal until December 27, 2016. I would award costs of the appeal to 236 on a partial indemnity basis. If the parties are unable to agree on costs, they may make written submissions to this court. 236 shall have ten days from the date of release of these reasons to serve and file its submissions, and Mr. Nowack shall have ten days from receipt of such submissions to serve and file responding submissions. There shall be no reply submissions. Written submissions are to be limited to three pages in length, not including a bill of costs.

Released: “K.M.v.R.” December 16, 2016

“K. van Rensburg J.A.”

“I agree G.R. Strathy C.J.O.”

“I agree H.S. LaForme J.A.”