NEWMARKET COURT FILE NO.: FC-09-032923-01

DATE: 20140414

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Frances Magri, Applicant

AND:

Ennio Cellupica, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: K. Larsen, Counsel for the Applicant
J. Lo Faso, Counsel for the Respondent

HEARD: April 2, 2014

ENDORSEMENT

[1] The Applicant, Frances Magri, brings a motion to set aside the order of Justice C.A. Gilmore, finding her in contempt of the previous order of Justice McGee. The basis for her request is that, although she was aware of the contempt motion hearing date before Justice Gilmore, her counsel of record advised her that she would not be required to attend. She therefore relies on Rule 25.19, which enables the court to change an order under certain circumstances. Both parties have new counsel.

[2] The Respondent, Ennio Cellupica, opposes the relief sought. He submits that Ms. Magri was aware of the court date and she has not adequately explained to the court why she was unable to attend.

[3] The relief sought in this motion engages a consideration of Rule 25(19)(e), which provides as follows:

25(19) Changing Order – Fraud, Mistake, Lack of Notice –

The court may, on motion, change an order that,

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or where the party was unable, for a reason satisfactory to the court, to be present. [Emphasis added.]

[4] Justice Gilmore dealt with the contempt motion and made findings of contempt with respect to travel consents. She dealt with the matter later in the afternoon after numerous attempts to contact Ms. Magri’s former counsel by telephone without success. She noted that the former counsel was still on record, did not appear, and did not provide an explanation for non-appearance, notwithstanding that the motion material was served on him in a timely manner.

[5] Justice Gilmore noted Ms. Magri refused to allow Mr. Cellupica to travel with the child, notwithstanding a specific court order previously made by Justice McGee. As Justice Gilmore stated in her ruling:

As the Applicant filed no material and failed to appear, there is no evidence to contradict that of the Respondent and I therefore find the Applicant in contempt of the order of McGee J. dated October 28, 2010, para. 6. The Applicant has blatantly refused to allow reasonable travel requests made by the Respondent.

[6] As to the disposition with respect to the contempt finding, Justice Gilmore ordered:

(a) The Applicant shall pay a $1,000 fine for her contempt, payable forthwith;

As to costs, Justice Gilmore stated:

Costs of the September 11, 2013 and today’s appearance set at $3,500 total. The Applicant’s non-participation in this proceeding shows a flagrant lack of respect for the court and her son’s father.

The Non-attendance by Ms. Magri

[7] In her affidavit, Ms. Magri confirmed that she was served with the Notice of Contempt Motion and she provided these documents to her then counsel. She attended the First Appearance Court. Her lawyer was not present.

[8] The matter was first returnable in Motions Court on September 11, 2013. She attended, but her counsel did not attend. Justice Vallee adjourned the matter to October 16, 2013, and Ms. Magri advised her counsel of that date.

[9] As to advice from her lawyer, she stated at para. 17 of her affidavit:

On October 15, 2013, I texted him (her previous counsel) about the court date the next day, and [her counsel] told me that I did not have to appear in court on October 16, 2013, as the date had been moved to November 12, 2013. He sent me a text message informing me that he confirmed with the court clerk that there was no court “tomorrow” and the new date was November 12. I trusted my lawyer and did not think it necessary to attend court on that day, as I had every other court date.

[10] As noted previously, she did not attend the court date before Justice Gilmore and neither did her counsel. She subsequently learned of the order of Justice Gilmore, and retained new counsel who brought this motion. Her affidavit material indicates that she has reported her previous counsel to the Law Society of Upper Canada and has received acknowledgement of that report from the Society.

[11] In submissions, her counsel now sets out that the order ought to be set aside based on the three-part test that:

(i) there is a good explanation as to why Ms. Magri did not attend the hearing in front of Justice Gilmore;

(ii) that this application was brought on a timely basis when the order came to her attention; and

(iii) Ms. Magri has a sufficient prima facie case.

[12] Counsel for the Respondent, Mr. Cellupica, submits that Ms. Magri knew of the court date and ought to have attended, and further that the words “was unable to be present” in Rule 25(19)(e) should be given its plain meaning. In other words, there is nothing in her material indicating why she was unable to attend, and therefore the contempt order ought not to be changed or set aside.

Analysis

[13] I am satisfied that the order of Justice Gilmore finding Ms. Magri in contempt, ought to be set aside and the matter referred back to her on a full hearing of the evidentiary issues from both the Applicant and the Respondent. A finding of contempt is made on a beyond reasonable doubt standard, not on a balance of probabilities. Contempt findings are quasi-criminal in nature and can have a significant effect on the course of litigation, especially in family matters. A finding of contempt on an earlier matter can often haunt the person so found with respect to every step of the proceedings thereafter. I am satisfied that Ms. Magri has provided a satisfactory reason why she did not appear, her lawyer told her it was not necessary. Her lawyer was on the record, was an officer of the court, and was obligated to be truthful to her and to attend before Justice Gilmore on the hearing date unless other consent arrangements were made with counsel for Mr. Cellupica. He did not do so. Ms. Magri may have further remedies against her former lawyer, but that will not solve the finding of contempt, which was clearly based on Justice Gilmore’s inability to hear Ms. Magri’s side of the story. The negligence of a lawyer in not advising his client should not fall to the feet of the client when contempt is in issue. Ms. Magri is entitled to have her day in court before being found in contempt in these circumstances.

[14] I am satisfied that she moved on a timely basis to retain new counsel who prepared materials, contacted counsel opposite, and arranged a motion date before the court. I am also satisfied that based on her affidavit submissions, she has a prima facie case. Her material contains a copy of a letter from her former lawyer to Mr. Cellupica’s former lawyer, outlining her position with respect to travel consent. Mr. Cellupica’s position is that his former lawyer did not receive that letter. Those are factual and evidentiary issues, which can be determined at a full hearing of the motion.

[15] The word “unable” in Rule 25(19)(e) should be given a broad interpretation in accordance with the spirit of this rule. Ms. Magri had a lawyer who was on the record and therefore an officer of the court with respect to this matter. A client who is advised by his or her lawyer not to attend court should be able to rely on that advice. To require clients to attend court in spite of their lawyer’s advice would lead to absurd results.

[16] The motion to set aside or change the order of Gilmore J. with respect to the contempt finding is granted. Having set aside the finding of contempt, it is appropriate to set aside the penalty and costs orders that were the consequences of the contempt finding. The moving party, Mr. Cellupica, has leave to bring a fresh motion before Justice Gilmore with respect to the contempt issue, if so advised, on proper notice to Ms. Magri. The issue of contempt and consequent penalties or costs orders, if any, can be addressed on a full evidentiary record when Justice Gilmore has heard submissions from both parties.

Costs

[17] If the parties cannot agree on costs, I will receive written submissions not exceeding three pages from the Moving Party within twenty days of the release of this endorsement. The Responding Party will have a further ten days to respond with submissions not exceeding three pages.

MULLIGAN J.

Date: April 14, 2014