ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-442557
DATE: 20121005
BETWEEN:
ROCCA DICKSON ANDREIS INC., ROCCA DICKSON ANDREIS CORP. and ROCCA DICKSON ANDREIS LTD.
Plaintiffs/Responding Parties
– and –
UMBERTO ANDREIS ALSO KNOWN AS BERT ANDREIS
Defendant/Moving Party
Marco Drudi , for the Plaintiffs/Responding Parties
Stephen F. Gleave and Richelle M. Pollard , for the Defendant/Moving Party
HEARD: July 10, 2012
b. p. o’marra j
reasons for decision
[ 1 ] The Plaintiffs brought a motion for civil contempt against the Defendant. A trial has been set for five days commencing March 4, 2013. The Defendant moves to dismiss the motion for contempt based on the following:
Failure to particularize the allegations of contempt;
No purpose would be served by the continuance of the contempt proceedings; and
The contempt application is an abuse of process.
references to the parties
[ 2 ] In this ruling RDA will refer to the Plaintiff in the main action, the moving party on the contempt motion. The Defendant in the main action, responding party on the motion for contempt and moving party on the motion to dismiss will be referred to as Andreis .
the facts
[ 3 ] On December 22, 2011, the Plaintiffs brought a motion to restrain the Defendant from dealing with clients of his former firm. Counsel attended a motion scheduling court on January 3, 2012. They negotiated a consent order that restricted the Defendant, his employees, agents, servants and assigns from dealing with clients of his former firm until the return of the motion on February 27, 2012 (the “Low Order”).
[ 4 ] Former counsel for the Defendant agreed to the Low Order without the consent of his client who at the time was out of the country.
[ 5 ] On February 15, 2012, counsel for the Plaintiffs wrote to counsel for Ms. Caravaggio. He had received instructions to bring a contempt motion against the Defendant and Ms. Caravaggio for breaching the Low Order.
[ 6 ] On February 24, 2012, the Plaintiffs served their motion for contempt against Andreis and Ms. Caravaggio returnable February 27, 2012.
[ 7 ] On February 27, 2012, Justice Whitaker heard the Plaintiffs’ motion for injunctive relief. His Honour dismissed the Plaintiffs’ motion, discontinued the Low Order as of February 28, 2012 and ordered the Plaintiffs to pay costs of $45,000.
[ 8 ] On May 9, 2012, the Defendant in this action and others commenced an action against the Plaintiffs. The Defendant in this action also commenced a separate action for defamation against the Plaintiffs and others.
[ 9 ] On May 10, 2012, the Plaintiff served this contempt motion on counsel for the Defendant as well as Ms. Caravaggio. They seek imprisonment as relief.
[ 10 ] On May 15, 2012, the parties to this action attended Motion Scheduling Court. A timetable was set. The Plaintiffs were ordered to produce their documents by June 30, 2012.
[ 11 ] RDA sets out no particulars in the Notice of Motion but indicates that particulars are to be found in the affidavit of Peter Rocca. The affidavit sets out two arguable particulars, in that the parties involved, date and nature of the breach are set out. Two other “particulars” are more accurately generalizations and direct the reader to exhibits to Mr. Rocca’s affidavit. In these exhibit materials there are documents that would probably indicate to a reader in Andreis’ position specifics of alleged breaches of the injunction order. Many are difficult to find, however, and for a general reader unfamiliar or only partially familiar with all of RDA and Andreis’ client dealings it is difficult to sort out exactly which activities are potentially breaches of the injunction.
[ 12 ] RDA’s responding factum on the motion to dismiss sets out ten particularized allegations. Counsel for Andreis objects to this. While nearly all of the particulars eventually set out in the responding factum do relate to documents that can be found somewhere in the motion record, it is unclear whether those documents can fairly be said to provide “particulars” as they still require inferences to be drawn about how the document reflects the breach of the injunction order in question.
[ 13 ] It should be noted that these particularized allegations in the RDA responding factum are very similar to the list from a previous factum submitted by RDA on a prior motion in February 2012.
[ 14 ] One of the main difficulties with the motion record before this court is that it is hard to tell what are not particulars. Instances that are arguably violations of the injunction are included amongst documents that, while they indicate that Andreis was trying to get clients to move from RDA with him, are not dated so as to suggest (except perhaps in a loose inferential sense) violations of the injunction.
[ 15 ] It is difficult to say whether the allegations are “buried” in the motion record. They are certainly poorly organized and there appear to be numerous repetitions. In addition to the particulars set out in the affidavit of Peter Rocca, there is information available in the motion record that, with some searching, also indicates specifics of the alleged contemptuous conduct.
the affidavit of peter rocca
[ 16 ] The affidavit of Mr. Rocca establishes background to the motion.
[ 17 ] The “particulars” of the alleged contempt are set out in paragraphs 10 through 13 inclusive on page 7 of the motion record. The following wording in each paragraph could be construed so as to constitute a “particular”:
“As can be seen from the surveillance evidence, Caravaggio was meeting with clients in breach of the injunction order”.
“The exhibits to the February affidavit confirm communications and dealings with clients and insurers after January 3, 2012 between Caravaggio and the insurers and the clients of the Plaintiffs”.
“On February 2, 2012, Andreis issued a proposal to a client in breach of the injunction order”.
“On January 20, 2012, Tullio and Caravaggio spoke with Chris Mangos from Aviva to issue bonds for Carwell, a client governed by the injunction order”.
[ 18 ] Of the above allegations, #1 and #2 appear quite vague and require the reader to find details of particulars in the exhibits to the affidavit. Exhibits “B”, “F” and “G” are extensive. While allegation #3 is clearer, it does not identify who the client is, or whether they were governed by the injunction order. The exhibit in question is three pages long and is a single document directed to a client. Allegation 4 does not direct to an exhibit. It does refer to the date, parties, nature of the interaction and whether the client was governed by the injunction order. However, neither the location nor the means of communication (phone, in-person, etc.) are set out.
re allegation no. 1 – exhibit “F”
[ 19 ] Allegation number 1 alleges that Caravaggio was meeting with the clients in breach of the injunction order. No dates or names of other parties are specified. The allegation directs the reader to exhibit “F” of the affidavit.
[ 20 ] Exhibit “F” is approximately 36 pages long and consists of what appear to be black and white, low resolution photos acquired through surveillance personnel who were working for the lawyers of RDA.
[ 21 ] Exhibit “F” presents a series of photos from the surveillance conductor during different date ranges. Photos are generally labelled indicating date, time, location and subject. Nothing in Exhibit “F” explicitly refers to any breaches of the injunction order. It is necessary to look at each photo, check the date, and the parties involved, in order to identify whether the photo would suggest breaches of the injunction. In order to do this, one needs to check the parties identified in the photographs against the list of RDA clients covered in the injunction order from Schedule “A” to the Order Low J. That list is available on the motion record at Tab C, pages 258 through 261.
[ 22 ] Only Ms. Caravaggio is mentioned in allegation number 1.
[ 23 ] With respect to Exhibit “F”, there is available information from which a “particular” could be inferred. That does not answer the concern as to whether the information is clearly and fairly presented. It would have been fairly easy for RDA to set out the points directly in the affidavit of Mr. Rocca rather than requiring the reader to review the surveillance records.
[ 24 ] One of the specifics related to the broad allegation in number 1 was eventually itemized in the RDA respondent factum on the motion to dismiss.
allegation #2 – Alleged communications and dealings with clients and insurers after January 3, 2012 between Caravaggio and the insurers and the clients of the Plaintiffs
[ 25 ] The affidavit of Peter Rocca directs the reader to Exhibits “B” and “G”.
[ 26 ] Exhibit “B” contains the “February” affidavit, which together with the included selections from the Exhibits to an earlier affidavit, totals approximately 176 pages.
[ 27 ] The February affidavit has sections that allege breaches of the injunction.
allegation No. 3 – Allegation that on february 2, 2012 andreis issued a proposal to a client in breach of the injunction order
[ 28 ] The affidavit of Peter Rocca directs the reader to Exhibit “H” to the affidavit. Exhibit “H” is three pages long and appears to be a broker-client document. It is dated February 2, 2012 and purports to be from the Defendant.
[ 29 ] RDA has at least identified the nature of the contempt allegation.
allegation #4 – allegation that on january 20, 2012, tullio and caravaggio spoke with chris mangos from aviva to issue bonds for carwell, a client governed by the injunction order
[ 30 ] This allegation does not direct the reader to any exhibit. The particularized allegation does set out a date, parties, nature of the interaction, and whether the client was governed by the injunction order. However, neither the location nor the means of communication (phone, in-person, etc.) are set out.
particulars of contempt
[ 31 ] In Ontario the test is not whether the contempt is specified in the notice of motion but whether the responding party has been given fair notice of the alleged contempt. While it is preferable for particulars to be set out in the notice of motion it may be that allegations in an affidavit provide fair notice of the allegations.
Geremia v. Harb , 2007 1893 (ON SC) , [2007] O.J. No. 305 (O.S.C.) at para. 36 .
application to dismiss based on the motion for contempt serving no purpose
[ 32 ] The Low Order had expired more than two months before the Plaintiffs brought their second motion for contempt.
[ 33 ] Contempt proceedings seek to achieve compliance with court orders. However, that is not the only purpose. There is also the need to enforce respect for court orders. Expiry of the order does not eliminate the latter aspect.
St. Elizabeth Home Society v. Hamilton (City) , 2008 ONCA 182 , [2008] O.J. No. 983 (O.C.A.) para. 55 .
West Lincoln (Township) v. Chan [2001] O.J. No. 2133 (O.S.C.) at para. 37 .
abuse of process
[ 34 ] Courts have equitable and statutory jurisdiction to dismiss or stay proceedings for abuse of process.
Courts of Justice Act, R.S.O. 1990 c. C-43 s. 106.
Canada (M.C.I.) v. Tobias 1997 322 (SCC) , [1997] 3 S.C.R. 391 .
[ 35 ] Courts have an inherent and residual discretion to prevent an abuse of the court’s process. The concept of abuse of process was described at common law as proceedings unfair to the point that they are contrary to the interest of justice. The doctrine also evokes the public interest in a fair and just trial process and the proper administration of justice.
Toronto (City) v. C.U.P.E. 2003 SCC 63 , [2003] 3 S.C.R. 77 at para. 35 .
[ 36 ] A stay or dismissal of an action based on abuse of process should only be granted as a last resort. A very high threshold must be met. It will be granted only in the clearest of cases.
United States of America v. Magnifico (2007), 2007 ONCA 535 , 223 C.C.C. (3d) 129 (O.C.A.) at para. 16 .
Slovenia v. Soba [2009] O.J. No. 5948 (S.C.O.) at para. 17 .
[ 37 ] Andreis argues that RDA has brought the contempt motion for the improper purpose of burdening Andreis and Ms. Caravaggio with expensive litigation.
[ 38 ] If there is a legitimate basis for alleging contempt it may be beside the point that the Plaintiffs also have bad intentions or wish to harm the Defendant monetarily or otherwise.
See Westjet Airlines Ltd. v. Air Canada [2005] O.J. No. 2310 (O.S.C.) per. Nordheimer J., paras 19 and 20.
[ 39 ] At this preliminary stage I am unable to find that the Defendant has shown the high threshold necessary to invoke abuse of process to stay or dismiss the contempt motion.
the respondents’ factum on the motion to dismiss
[ 40 ] RDA’s respondent factum on the motion to dismiss the Respondent sets out a series of particularized allegations regarding the alleged contempt. None of these points are cited in the motion record in the motion for contempt. They are all cited to a “supplementary motion record” or cited to transcripts of cross-examination which are also not in the motion record.
conclusion
[ 41 ] There appear to be particulars set out in the affidavit of Peter Rocca on the motion record to allegations #3 and #4.
[ 42 ] The other two generalized allegations, being numbers #1 and #2, direct the reader to broad sections in the Motion ecord which requires searching in order to find information from which an inference of a particular could be drawn. In order to locate these documents one must search page-by-page through previous affidavits and exhibit materials of questionable levels of organization. To a more familiar reader (that is to say one of the parties) the materials may be much easier to navigate and it might be reasonable to suggest that one of the alleged contemnors could more quickly and easily ascertain the specific acts encompassed under allegations #1 and #2. However, that begs the question as to whether someone who is alleged to have committed contempt should have to be making this type of painstaking search through pages and pages of documents to discern the specific allegations of contempt they face. It is not too much to ask of a party that alleges civil contempt that they clearly delineate the particulars of the alleged contempt sufficient to direct and focus the responding party and the court on what is specifically alleged.
[ 43 ] The materials filed by ADR on the contempt motion are not “reader friendly”. They are “reader hostile”. There is considerable merit to the complaint of lack of sufficient and clear particulars. However, I cannot say that there is ultimately a complete lack of “fair notice” of the allegations.
[ 44 ] The Respondent/Moving Party seeks a dismissal or stay of the contempt proceeding. At this stage I am not prepared to do that. However, the Plaintiff/Respondent to this motion will be ordered to redraft, serve and file particulars of the alleged contempt within 15 days of the date of this order. Those particulars are to be in a form that readily and clearly delineates the specifics of the alleged contempt.
Result
[ 45 ] Applications to dismiss the motion for contempt are dismissed.
[ 46 ] The Plaintiff/Respondent is to serve and file within 15 days of this order clear and concise particulars of the alleged contempt.
[ 47 ] I will consider brief written submissions as to costs (3 pages plus bill of costs) to be delivered to Judicial Administration by October 24, 2012.
B. P. O’Marra J.
Released: October 5, 2012
COURT FILE NO.: CV-11-442557
DATE: 20121005
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ROCCA DICKSON ANDREIS INC., ROCCA DICKSON ANDREIS CORP. and ROCCA DICKSON ANDREIS LTD. Plaintiffs/Responding Parties – and – UMBERTO ANDREIS ALSO KNOWN AS BERT ANDREIS Defendant/Moving Party
REASONS FOR DECISION
B. P. O’Marra J.
Released: October 5, 2012