College of Chiropractors of Ontario v. Stephen Dies, 2015 ONSC 2828
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COLLEGE OF CHIROPRACTORS OF ONTARIO
Applicant/Moving Party
– and –
STEPHEN DIES
Respondent/Responding Party
Karen Jones, for the Applicant/Moving Party
Alexander Minkin, for the Respondent/ Responding Party
HEARD: April 28, 2015
STEWART, J.
1In my decision of December 30, 2014, Stephen Dies was found guilty of contempt of the Order of Smith J. dated May 19, 2006. Despite the provisions of that Order and Minutes of Settlement entered into by him on May 7, 2014 in the course of an earlier contempt proceeding, Dies has continued to hold himself out as a chiropractor and perform controlled acts permitted to be carried out only by a chiropractor licensed and registered to do so under the Chiropractic Act, 1991, S.O. 1991, c. 21, and the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
2The proceedings were adjourned to a sentencing hearing which took place on April 28, 2015. The College filed additional affidavit evidence to demonstrate that, even following the finding of contempt, Dies has continued to engage in the impugned conduct, thus continuing to violate the provisions of Smith, J.’s Order and the Minutes of Settlement entered into by him.
3In response, Dies submitted his own affidavit swearing that on April 22, 2015 he removed the sign describing him as “Doctor of Chiropractic” which hung outside his home office. In his affidavit, Dies states that his clinic has been closed as of April 22, 2015, will remain closed and that he no longer will be seeing customers at the clinic.
4Dies also swears that if he is contacted by any persons for treatment or diagnosis, he will not deal with them but will refer them to a licensed chiropractor.
5Dies indicates his intention to switch careers entirely and to work as a Workers’ Compensation Advocate.
6Dies attests to certain health conditions he and his wife suffer from that he says would be deleteriously affected if he is required to serve a prison sentence. No medical reports with respect to these matters have been filed, despite the fact that the sentencing portion of these proceedings was adjourned for that specific purpose.
7The College asks that Dies be sentenced to jail for a period of six months. The College also asks for a series of ancillary Orders.
8Dies submits that the objectives of the College and any concerns for public protection and deterrence will be served by the finding of contempt, and the imposition of an order for costs. Essentially, he seeks a disposition akin to a suspended sentence as was imposed by McEwan J. in Donohue et al v. Pierce et al, 2013 ONSC 5422. In that case, the individual found to be in contempt of a court order was afforded “one last chance” to avoid incarceration. McEwan J. ordered that if the subject were to fail to comply with the provisions of the Court Order he would be sentenced to a term of 90 days in jail unless he could show cause why incarceration should not at that time be enforced against him.
9In determining the appropriate sanction in a case such as this, the Court must give consideration to the sentencing principles set out in ss. 718 and 718.1 of the Criminal Code of Canada. These include deterrence, denunciation, rehabilitation, the presence of mitigating and aggravating factors, the promotion of a sense of responsibility and the acknowledgement of the harm done to victims and the community and proportionality (see. Sussex Group Ltd. v. Fangeat, [2003] O.J. No. 3348 (Ont. S.C.J.).
10The principle of proportionality dictates that a sentence for civil contempt should be proportionate to the seriousness of the offence. The least restrictive sanction that would ensure compliance and accord with the principles of fundamental justice should be imposed.
11Rule 60.11(5) of the Rules of Civil Procedure also provides that, where a finding of contempt has been made, the judge may order, among other things, that the person in contempt be imprisoned, that he do an act pay such costs that are just and comply with any other order that the judge considers necessary.
12In this case, Dies’ defiance of Smith, J.’s order has been obvious, unrepentant and ongoing up to just days before this sentencing hearing. For years, Dies has been an obstinate scofflaw, demonstrating an utter lack of respect for the governing body of his former profession, the public whose safety the College is obligated to protect, and the courts to whom the College turned as a last resort when all else failed to deter his conduct.
13There is therefore a significant element of public protection involved in the fashioning of a consequence fit for this case. Dies has been engaging in a regulated activity without regulation of competence or capacity, and outside mandatory rules of conduct. A serious penalty is called for.
14However, I observe that Dies has taken positive steps at last to purge his contempt. I am prepared to accept as fact that he is aging, health issues and is the sole caregiver and attendant for his ailing wife.
15The facts and history of this dispute are such that the suspended sentence approach adopted by McEwan, J. in a different case is, in my view, wholly inadequate to address the need to deter repetition of Dies’ conduct, to express the Court’s disapproval of his flagrant disobedience of its orders and to protect the public.
16I consider that a conditional sentence involving a significant period of “house arrest” is the appropriate approach to take in this case and one which will best achieve the objectives of sentencing. Such a penalty also will give Dies a chance to avoid incarceration in a public facility at public expense, while minimizing the need for the College to supervise his every move and spend further resources on yet another protracted court proceeding should Dies breach any of the conditions to be attached to him.
17Accordingly, Dies is sentenced to a period of six months to be served by him commencing June 1, 2015 and on certain conditions. Among those conditions are the following:
(a) Dies shall comply fully and to the letter with all provisions of the Smith, J. Order and with the undertaking contained in his affidavit of April 23, 2015;
(b) Dies shall be confined to 13103 King Street, King City, Ontario, and permitted to leave the premises only for the following reasons:
i. to work at an occupation that does not violate any Court orders and as approved by the Court and counsel for the College;
ii. for necessary medical and dental treatment for himself or his wife;
iii. for household shopping for no more than 4 hours per week;
iv. for the purpose of fulfilling any other conditions of this sentence;
(c) Dies shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the Court;
(d) Dies shall appear before the Court when required to do so;
(e) Dies shall notify the Court and counsel for the College in advance of any proposed change of address, and shall promptly notify the Court and counsel for the College of any change of employment;
(f) Dies shall complete 150 hours of community service, at a place and in a capacity as approved by the Court and the College, before the end of his period of house arrest;
(g) A copy of the contempt decision and this sentencing decision shall be provided to the police facility closest to Dies’ house;
(h) The College shall be at liberty to contact Dies during his sentence and he shall co-operate with the College, its counsel and representatives to satisfy them that these conditions are being complied with and fulfilled by him.
18If Dies breaches any of these conditions, he will be brought before the Court and ordered to serve the balance of his sentence in custody.
19In addition, a writ of sequestration pursuant to Rule 60.09 shall issue, directing the Sheriff to take possession of Dies’ office and chiropractic equipment and dispose of them.
20The College also seeks its costs on a solicitor and client basis in the amount of approximately $48,000.00. Dies submits that $15,000.00 for costs is appropriate.
21Costs of a successful motion for a finding of civil contempt should in the ordinary course be on a substantial indemnity basis (see: West Lincoln (Township) v. Chan, 2001 Carswell, Ont. 1885 (Ont. S.C.J.)). This is such a case.
22This application was of significant importance to the parties. It required the delivery of extensive affidavits and facta, as well as cross-examinations and several court attendances. I consider that a fair and reasonable amount to award the College for its costs, keeping in mind the overall consideration of proportionality, is $35,000.00. That amount shall be paid by Dies to the College by no later than August 31, 2015.
23In addition, the outstanding balance of the costs order of the previous contempt motion shall be paid in full by no later than August 31, 2015.
24There may be other conditions or features of the house arrest provisions which counsel wish to raise before the complete specific details of the conditional sentence are finalized. I encourage the parties to confer with respect to these and then advise me of their position with respect to these in writing. If there are points of disagreement in this regard, a further attendance before me may be scheduled.
STEWART J.
Released: May 1, 2015
CITATION: College of Chiropractors v. Stephen Dies, 2015 ONSC 2828
COURT FILE NO.: 06-CV-306413-PD2
DATE: 20150501
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COLLEGE OF CHIROPRACTORS OF ONTARIO
Applicant/Moving Party
And
STEPHEN DIES
Respondent/Responding Party
REASONS FOR SENTENCE
STEWART J.
Released: May 1, 2015