ONTARIO
SUPERIOR COURT OF JUSTICE
2012 ONSC 2130
DURHAM COURT FILE NO.: CV-37312/05 (Toronto Action) CV - 08-357570
DATE: 20120404
B E T W E E N:
SWEDA FARMS LTD. carrying on business as BEST CHOICE EGGS
Donald R. Good, for the Plaintiffs (Moving Parties)
Plaintiff
- and -
ONTARIO EGG PRODUCERS, MARK BEAVEN and HARRY PELISSERO
Geoffrey P. Spurr, for the Defendants OEP, Harry Pelissero and Mark Beaven
Defendants
A N D B E T W E E N:
BEST CHOICE EGGS, a division of SWEDA FARMS LTD., VERIFIED EGGS CANADA INC., and SVANTE LIND
Plaintiffs
- and -
BURNBRAE FARMS LIMITED, BURNBRAE HOLDINGS INC., JOSEPH P. HUDSON, CRAIG HUNTER, L.H. GRAY & SON LIMITED, WILLIAM HARDING GRAY, MICHAEL WALSH, MAPLE LYNN FOODS LIMITED, JOHANNES KLEI, and JOHN KLEI
Tiffany D. Soucy, for the Defendant Burnbrae Farms Limited
David B. Williams/Alison M. Webster, for the Defendants L.H. Gray & Son Limited, William Harding Gray and Michael Walsh, moving parties
Norman Bourdeau, Responding Party, Self-Represented
Defendants
HEARD: Written Submissions
REASONS FOR DECISION IN CONTEMPT MOTION
LAUWERS J.:
[1] By letter dated April 3, 2012 and emailed the same day Mr. Bourdeau requested that a return date be fixed “to finalize the penalty and costs phase of the finding of contempt prior to April 30, 2012. This would allow the complete record at the appeal hearing as to penalty, costs and finding of contempt can be heard in their entirety in the appeal not fragmented.”
[2] Ms. Webster, who has been prosecuting the contempt, advised in her responding email that she has “agreed to his request, but with the rather significant proviso that we do not want the current appeal date of April 30, 2012 to be jeopardized by this rather late request by Mr. Bourdeau.” Ms. Webster said that she was: “concerned that argument, the delivery of Your Honour’s reasons, and the potential need to file new materials before the Court of Appeal will guarantee an adjournment of the April 30, 2012 date.” Ms. Webster believes that the submissions on both sides will take one to one and-a-half hours.
[3] Ms. Webster explained that on March 19, 2012 Mr. Bourdeau moved for an order of the Court of Appeal: “staying the appeal such that Your Honour could deal with the issues of penalty and costs.” The parties raised the decision of https://www.canlii.org/en/on/onca/doc/2011/2011onca757/2011onca757.html. Although Rouleau J.A.’s endorsement is silent on the issue, according to Ms. Webster: “The court agreed that it lacked jurisdiction to make the order and Mr. Bourdeau subsequently withdrew the motion.”
[4] Mr. Bourdeau relied on Sabourin. In that case the appellant was seeking an order of the Court of Appeal “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).” (para. 5.) Sharpe J.A. dismissed the motion on the basis that the appeal itself should not be fragmented (para. 7). He added at para. 9:
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.
The decision in Sabourin suggests that Mr. Bourdeau’s appeal was premature and ought to have waited for the penalty phase to be completed.
[5] In these difficult circumstances, I am prepared to hear submissions on penalty, and any evidence that may be necessary, on April 12, 2012 at 11:00 a.m. in Oshawa.
[6] Mr. McCutcheon, Mr. Spurr and Ms. Aitchison have all indicated that they take no position and may or may not appear on watching briefs.
[7] In email correspondence Mr. Good advised the court that he now wishes now to appear in support of Mr. Bourdeau, even though: “The plaintiffs did not participate at the contempt trial since Mr. Bourdeau had his own counsel and no contempt claim was made against the plaintiffs.” He now seeks “to participate in the penalty phase if for no other reason than to protect our key witness.” Mr. Good’s request to be permitted to participate amounts, in my view, to a request for relief under rule 13 of the Rules of Civil Procedure.
[8] I give the following directions:
Any party wishing to intervene at the penalty hearing may bring a motion under rule 13 of the Rules of Civil Procedure. The motion material is to be served and sent by email no later than 4:00 p.m. on Thursday, April 5, 2012. Responding material is to be served and sent by email no later than 12:00 noon on Tuesday, April 10, 2012.
L.H. Gray may serve and send by email any supplementary material relating to penalty no later than 12:00 noon on Tuesday, April 10, 2012, recognizing that much of L.H. Gray’s material relating to penalty has already been filed.
Mr. Bourdeau may serve and send by email responding material no later than 4:00 p.m. on Wednesday, April 11, 2012.
The argument will proceed on Thursday, April 12, 2012 at 11:00 a.m. in Oshawa. Any motions to intervene will be argued first and then the argument on penalty will proceed. The courtroom will be arranged so that viva voce evidence can be heard if necessary.
[9] So ordered.
Justice P.D. Lauwers
RELEASED: April 4, 2012