Court File and Parties
CITATION: Greenberg v. Nowack, 2015 ONSC 2256
COURT FILE NO.: CV-12-468162
DATE: 20150408
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: H. Joseph Greenberg and Pepi Greenberg, Plaintiffs
– AND –
Steven J. Nowack, Defendant
BEFORE: Justice E.M. Morgan
COUNSEL: Martin Greenglass, for the Plaintiffs Steven Nowack, in person N. Groot, for 236523 Ontario Inc. in Court File No. CV-14-500797
HEARD: April 8, 2015
ENDORSEMENT
[1] The parties appeared before me today, as ordered on March 27, 2015, in order for me to sign the warrant of committal and the order flowing from my March 27th endorsement.
[2] Mr. Groot introduced himself as counsel for another set of plaintiffs in one of the several outstanding actions against Mr. Nowack. He advises me that there is a half day motion in his clients’ action scheduled before Master Abrams today, and a full day case management conference in his clients’ case and those of three other claimants against Mr. Nowack on April 22, 2015. Mr. Groot asks for a delay of Mr. Nowack’s incarceration in order to allow these long scheduled motions to take place.
[3] Mr. Greenglass opposes any such delay. He advised me this morning, however, that Mr. Nowack has served him just this morning with a motion returnable today before a single judge of the Court of Appeal seeking a stay of my Order.
[4] Mr. Nowack has informed me that this material has not actually been filed with the Court of Appeal as it was delivered too late to be filed. He advises me that he is still self-represented, although he says that he has again consulted a very well-known lawyer who is not here and who apparently is not prepared to go on the record for him. Mr. Nowack also indicated that he attended at the Court of Appeal earlier this morning to address the matter in person, but was told that there is no judge available to hear him today. He therefore asks me to grant a temporary stay to give him a chance to attend at the Court of Appeal on a walk-in basis tomorrow or some other day.
[5] Mr. Nowack also took the opportunity this morning to advise me that he hopes to be in a position to purge his contempt by April 16, 2015. He says that he is in the process of collecting documents from his bank. While I appreciate Mr. Nowack’s assurances that he is making an effort to collect the documents that he was first ordered to produce a year ago, I find it telling that not a single piece of paper has yet been produced by Mr. Nowack since his having been found in contempt, despite the passage of several more weeks.
[6] Mr. Greenglass indicated that I have jurisdiction to hear Mr. Nowack’s motion for a stay of my Order, and that he would not oppose my hearing it. Mr. Nowack has taken the opportunity to give a brief synopsis of his submissions and to review some of the case law that he had planned to submit to the Court of Appeal. In a nutshell, his argument is that he was prejudiced by having had the contempt motion heard without having been granted an adjournment to retain counsel, and that a serious ruling such as a finding of contempt and a sentencing for contempt should not be done without the Defendant having an opportunity to retain counsel.
[7] I pointed out to Mr. Nowack that he attended before me on March 20, 2015 and the matter was put over for a week so that he could retain counsel and produce the documents that he has been ordered to produce. He then attended again the following week, on March 27th, and again said that he had consulted Brian Greenspan, his criminal lawyer, as well as a civil litigation lawyer, and wanted more time to retain a lawyer for this matter. Today he has made the same request, and has told me that he is certain that he will be able to bring counsel next time. He does concede that he has financial difficulties and has been unable to retain anyone, and he also says that the lawyers he has consulted have consistently been too busy to schedule an appearance on his behalf. He also says that he has continued to consult with Brian Greenspan with respect to the overlap between the civil litigation and the criminal litigation he is facing.
[8] Mr. Greenglass advises that he has now received an email from Crown counsel in Mr. Nowack’s criminal case indicating that Mr. Greenspan has gone off the record for Mr. Nowack. The same email advises that all of the Crown disclosure material has been delivered to Mr. Nowack. I note that this is the very material that Mr. Nowack previously told me he was waiting to receive from Mr. Greenspan.
[9] Mr. Greenglass also points out to me that Mr. Nowack appeared over the past year before Justice Firestone, Master Dash, and Justice Brown, all as a self-represented litigant. Each of those motions put the contempt matter in issue. Mr. Nowack’s need for counsel was hardly new when he appeared before me for the first time on March 20, 2015. He has long known about these proceedings and keeps making the same arguments and the same requests for an adjournment.
[10] With all due respect, there is no credibility to Mr. Nowack’s assertion that he will retain a lawyer next time if only a stay is granted today, or that he would have brought a lawyer today if only an adjournment had been granted on March 27th. Mr. Nowack has been invoking Mr. Greenspan’s name as a renowned criminal lawyer working on his behalf, as well as the names of prestigious Bay Street law firms that he says he has been consulting, but it always turns out that no one can attend. I find it particularly telling that Mr. Greenglass had to be advised by the Crown that Mr. Greenspan no longer is also no longer on the record for Mr. Nowack in the criminal case. Mr. Nowack did not mention that to me in his submissions until it was brought up by Mr. Greenglass.
[11] While any court is reluctant to grant an order against a defendant who has not had an opportunity to seek the advice of and retain counsel, at some point justice must be allowed to proceed. Mr. Nowack appears to be using his need for counsel as a sword rather than a shield. Although Mr. Nowack, like any other litigant, would benefit from having counsel present, this repeated request has become a rather transparent delay tactic.
[12] I order Mr. Nowack to be taken into custody today, in accordance with my ruling of March 27, 2015. Once he is taken into custody and appropriately processed, the officers are to escort him to the sixth floor of 393 University Avenue so that the motion scheduled for today in Mr. Groot’s clients’ case can be heard. Mr. Groot advises that Master Abrams’ schedule is clear for the rest of the day and that the Master will be standing by for the motion to proceed. Mr. Nowack will attend at that motion still in the custody of the officers, who can afterward escort him to the provincial jail where he will serve his sentence. This same procedure can be repeated on April 22, 2015; if Mr. Nowack is still in custody when that full day motion comes up, he can be escorted to court by police officers and can make his appearance while still in custody.
[13] Mr. Greenglass advises that none of the outstanding cost orders have been paid by Mr. Nowack. Given that today’s appearance was necessitated as much by my own schedule as by the parties’, there will be no costs of today’s appearance.
Morgan J.
Date: April 8, 2015