CITATION: Blatherwick v. Blatherwick, 2016 ONSC 7247
COURT FILE NO.: 810/10
DATE: 2016 11 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barbara Ann Blatherwick
J. Cox and Natalie Bazar, Counsel for the Applicant
Applicant
- and -
Brian Earl Blatherwick
I. Kilgour, Counsel for the Respondent
Respondent
- and -
Simpson Wigle LLP and Stuart Law, Other Parties
M. Kestenberg and T. Slahta, Counsel for the Other Parties
HEARD: November 1, 2016
REASONS FOR JUDGMENT
LEMAY J
[1] This is a matrimonial case with a long and complicated history. Reasons for judgment in the actual trial were given by Ricchetti J. in April of 2015 (see Blatherwick v. Blatherwick 2015 ONSC 2606). There have been a number of proceedings since that decision was released.
[2] Part of Ricchetti J.’s decision was a finding that the Respondent, Mr. Brian Blatherwick, had breached various Court orders. These Court Orders included a Mareva/Freezing Order that was made by Belleghen J. on November 18th, 2010. The Respondent was in breach of this Order in part because he directed companies under his control to pay his lawyers, contrary to that Mareva Order (see paragraphs 287 to 289 of Ricchetti J.’s decision).
[3] Ricchetti J. reserved the question of whether the law firms that received the payments, being Ormston List Frawley LLP and Simpson Wigle LLP, and the individual lawyers involved were in contempt of court for their receipt of funds, and directed the parties to schedule a date for a hearing on this issue (see paragraph 602 of Ricchetti J.’s decision).
[4] A contempt motion in respect of the conduct of Simpson Wigle and Mr. Law is scheduled to proceed before Ricchetti J. on November 30th and December 1 and 2, 2016. In advance of that motion, both sides are seeking production from the other.
[5] Mr. Law is a partner in Simpson Wigle LLP, and was the Respondent’s lawyer in the divorce proceedings up until the end of 2014.
[6] I will refer to Mr. Law and Simpson Wigle LLP collectively as the “alleged contemnors”.
The Issues to be Determined
[7] The Applicant, Ms. Barbara Blatherwick (“the Applicant”) is seeking production of an Affidavit of Documents as well as all relevant documents in the possession of either of the alleged contemnors.
[8] The alleged contemnors are, in turn, seeking production of all arguably relevant documents in the possession or control of the Applicant or her lawyer, for the purposes of resisting the contempt motion.
[9] In order to understand my conclusions on these issues, I should first set out some of the relevant facts in this case.
The Relevant Facts
a) The Litigation Between the Blatherwicks
[10] The underlying family law litigation was a hard fought case that resulted in a trial that was several weeks long. Enforcement proceedings are ongoing.
[11] At the outset of the proceedings, in 2010, an ex-parte Mareva/Freezing Order was granted by Belleghen J. This Order was continued on consent, and there were some variations in its terms during the course of the litigation, again on consent.
[12] The Order of Belleghen J. included the following paragraphs:
- All of the Respondent’s assets be frozen including any corporations or subsidiaries in which the Respondent has an interest or control, including any subsidiary corporations inside or outside of Canada, subject to the daily financial operations necessary to carry on business, such corporations including, but limited to:
a) Seasons Capital Ltd., incorporated in Hong Kong;
b) Seasons (HK) Ltd. (newly formed company), incorporated in Hong Kong;
c) Seasons Ltd. MCO, incorporated in Macau;
d) Concept Marketing Asia Ltd, incorporated in Hong Kong;
e) Concept Marketing Canada 2197501 Ontario Inc.), incorporated in Canada;
f) Rockwood Land Co. Canada, incorporated in Canada;
g) Seasons UV (219806 Ontario Inc.), incorporated in Canada;
h) Seasons Design Group Inc.;
i) Seasons USA;
j) Seasons Limitago;
k) Blatherwick Holdings Inc.;
l) Any and all subsidiaries in Seasons related companies worldwide;
m) Such further and other companies in which the Respondent has an interest.
- A Mareva Injunction be issued against the Respondent and any corporations or subsidiaries in which the Respondent has an interest or control, including any subsidiary corporations inside or outside of Canada, subject to the daily financial operations necessary to carry on the business including, but not limited to, the following corporations:
a) Seasons Capital Ltd., incorporated in Hong Kong;
b) Seasons (HK) Ltd. (newly formed company), incorporated in Hong Kong;
c) Seasons Ltd. MCO, incorporated in Macau;
d) Concept Marketing Asia Ltd, incorporated in Hong Kong;
e) Concept Marketing Canada 2197501 Ontario Inc.), incorporated in Canada;
f) Rockwood Land Co. Canada, incorporated in Canada;
g) Seasons UV (219806 Ontario Inc.), incorporated in Canada;
h) Seasons Design Group Inc.;
i) Seasons USA;
j) Seasons Limitago;
k) Blatherwick Holdings Inc.;
l) Any and all subsidiaries in Seasons related companies worldwide;
[13] During the course of the litigation, there were significant issues with disclosure of documents and financial records from the Respondent, in part because he took the position that he did not control many of the companies involved in the corporate structure. Ricchetti J. came to different conclusions, as set out in his decision.
[14] After the decision was released in April of 2015, the Applicant attempted to enforce the Judgment. She has been largely unsuccessful in her enforcement efforts, but they continue.
[15] Indeed, in May of 2016, the Respondent was found to be in contempt of Court for his failures to comply with the judgment of Ricchetti J. A subsequent sentencing hearing was held in July of 2016, and the Respondent was sentenced to 180 consecutive days in jail for his contempt. He remains incarcerated.
b) The Contempt Proceedings
[16] Separate contempt proceedings were brought against the alleged contemnors. While Ricchetti J. had also indicated that there could be a contempt proceeding against Ormston List Frawley LLP, there is no motion relating to that proceeding before me.
[17] These contempt proceedings were commenced by way of the Applicant’s Notice of Motion dated December 20th, 2015 that sets out the grounds for the motion and the relief sought as follows:
- Breached paragraphs 5 and 7 of the Order of Mr. Justice Belleghem dated November 18, 2010 (attached as schedule “A”) by receiving legal fees from the Respondent’s companies without obtaining an exception from this court or the consent of the Applicant.
IF YOU ARE FOUND IN CONTEMPT OF THE COURT, THE COURT MAY MAKE AN ORDER TO IMPRISON YOU, TO PAY A FINE AND TEMPORARILY TO SEIZE YOUR PROPERTY. YOU MAY ALSO BE ORDERED TO PAY COSTS. IF YOU DO NOT COME TO COURT, A WARRANT MAY BE ISSUED FOR YOUR ARREST TO BRING YOU TO COURT.
[18] In my view, the relief being sought here is quite broad, and includes criminal sanctions.
[19] As part of the contempt proceedings, the Applicant’s counsel has provided counsel for the alleged contemnors with a form of waiver from the Respondent, seeking production of the file in their possession. Various forms of waiver have been provided, but the file has not been produced.
[20] In the meantime, at an examination in February of 2016, the Respondent provided the Applicant’s counsel with copies of some communications between himself and the alleged contemnors. These documents were not disclosed until September of 2016.
[21] Shortly after receiving these documents, counsel for the alleged contemnors wrote to the Applicant’s counsel to advise that they were seeking directions from Ricchetti J. because the Applicant had obtained (and intended to use) prima facie privileged documents in the contempt motion.
[22] The Applicant was of the view that she was entitled to use these documents, and on the basis of the waiver that she had received from the Respondent, entitled to production of relevant portions of his file from the alleged contemnors. The alleged contemnors disagreed.
[23] As a result, the Applicant brought a motion for production, and the parties had a conference call with Ricchetti J. on or about October 6th, 2016. The Applicant’s production motion was scheduled for November 1st, 2016.
[24] Subsequent to this conference call, counsel for the alleged contemnors brought a cross-motion for production from the Applicant, also returnable on November 1st, 2016. It is these motions that I must resolve.
The Applicants Motion
[25] There are three components to the Applicants motion. She is seeking the following:
a) Production of an Affidavit of Documents by Mr. Law and Simpson Wigle LLP. This Affidavit is to contain any and all communications relating to payments, retainer agreements and the like, and is to include any non-privileged documents.
b) In the alternative, the Applicant seeks production of relevant documents in the possession, control or power of the alleged contemnors.
c) A preservation Order requiring the alleged contemnors to preserve the entire file relating to the Blatherwick litigation.
[26] Counsel was unable to direct my attention to a case that was directly on point, and I did not find one myself. There is not a great deal of guidance in the case law about production (from either side) in a contempt proceeding. Therefore, in considering these three requests as well as the requests from the alleged contemnors, some basic principles should be kept in mind, as follows:
a) A contempt proceeding is a quasi-criminal proceeding. As a result, a higher level of protection applies to the accused than would apply to a defendant in a civil proceeding.
b) One of the principles that applies to a contempt proceeding is that the alleged contemnor is entitled to make full answer and defence, and is not required to incriminate themselves.
c) A contempt proceeding is governed, in part, by the Rules of Civil Procedure and the Family Law Rules, but it is not entirely governed by either set of Rules. It is governed by the Court’s inherent ability to control its own proceedings.
d) The accused in any proceeding has the right to remain silent. That principle applies in contempt proceedings as well. In this case, however, Mr. Law has waived his right to silence by filing an Affidavit in support of his position on the merits of the contempt motion.
e) A lawyer is an officer of the Court. While I accept that principle, counsel for the Applicant urges me to find that the lawyer has a higher obligation to produce documents to the Court and to the other side because he is a lawyer. I unreservedly reject that argument, as the lawyer in this case is also the accused. A requirement to produce documents could be seen as a requirement to incriminate himself, and the protections of the Charter in that regard apply to everyone equally.
f) The privilege that attaches to a lawyer’s file is the client’s privilege. As a result, the client is the one who can waive the privilege, and the client is the party that owns most of the file that the lawyer has in his or her possession.
a) The Affidavit of Documents
[27] The Applicant is seeking a listing of all of the documents relating to any payments made by or on behalf of the Respondent during the course of the litigation, including retainer agreements and communications pertaining to third party payments made on the Respondent’s behalf. The Applicant is also requesting all non-privileged and non-confidential communications that were made for the purposes of giving unlawful legal advice.
[28] In my view, this request should be rejected for two key reasons. First, as I have noted above, this is a quasi-criminal proceeding. There is no prima facie obligation on the alleged contemnors to automatically provide disclosure. They have a right to silence in this case. Even when this right to silence is waived, as it has been by Mr. Law, there is no automatic obligation placed on the alleged contemnors to step forward and disclose everything in their possession, control and power that is arguably relevant to the motion.
[29] Second, the file that is being sought by the Applicant in this case is the Respondent’s file. As a result, there is no automatic obligation on the part of the alleged contemnors to produce this file to a third party. Significant parts of it are the property of the Respondent, and the privilege associated with that file is his to waive. I acknowledge that he has waived that privilege and will return to the effect of that waiver in this case below.
[30] I also reject the Applicant’s argument that this proceeding is governed by the Rules of Civil Procedure. There are aspects of this proceeding that are governed by the Rules of Civil Procedure, but disclosure is not one of those aspects. A finding of contempt carries criminal sanctions, such as incarceration, with it. As a result, there is no automatic, two way disclosure obligation. The disclosure obligations in a criminal context are set out in R. v. Stinchcombe (1991 45 (SCC), [1991] 3 S.C.R. 326) where Sopinka J. clearly states that:
I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.
[31] Automatically applying the disclosure obligations in the Rules of Civil Procedure to a defendant in a quasi-criminal proceeding does not fit with the way Canadian courts conduct criminal proceedings, and I decline to impose these obligations on the alleged contemnors.
[32] I turn to the request for the production of non-privileged and non-confidential communications for the purposes of giving unlawful legal advice. I am not prepared to give any effect to this request. If the alleged contemnors were required to comply with this request, then they would have to turn over those documents that the contemnors agree show them giving unlawful legal advice. In other words, they would be incriminating themselves by requiring them to self-identify the occasions on which they agree that they gave unlawful legal advice. Such a request is in clear contravention of the Charter right against self-incrimination.
[33] Accordingly, the Applicant’s request for an Affidavit of Documents is dismissed.
b) The Relevant Documents
[34] The relevant documents that might be in the possession, control or power of the alleged contemnors fall into two categories. First, there are documents that have already been produced to the Applicant by the Respondent. The alleged contemnors concede that these documents may be admissible at the hearing of the contempt motion before Ricchetti J. The only ground for excluding them is relevancy, and all parties agree that relevancy determinations are to be made by Ricchetti J. Accordingly, I make no Orders about those documents except to note that they may be used by the Applicant on the hearing of her motion.
[35] Then, there are documents that the Respondent has stated exist as part of the file that is in Simpson Wigle’s possession. In an Affidavit filed with the Court, the Respondent states:
During the course of Stuart Law’s representation of me in the matrimonial litigation, there were hundreds of emails exchanged between Mr. Law and myself with respect to payments to be made by me to Simpson Wigle. I am not in a position to be able to produce these emails as I am currently serving a six month jail sentence for contempt of court. If Simpson Wigle does not produce these communications, I will be providing them through counsel to Mr. Cox once I am no longer in jail.
[36] It is clear, therefore, that the Respondent does not have any objection to the production of these documents. This fact brings me to the four different answers that I can reach on the production request, as follows:
a) The request could be rejected.
b) The request could be granted, and production ordered.
c) The Respondent Affiants could be required to bring their file for the purposes of cross-examination, and production requests could be dealt with as they arise.
d) The Respondent, could be required to attend at Court and requested to produce the file as part of a third-party records motion.
[37] If this were a prosecution being brought by the Crown, then the Crown would have the ability (even after charges are laid) to obtain search warrants and conduct searches for evidence relevant to a crime.
[38] The test for obtaining a search warrant is whether there is reasonable and probable grounds to believe that the execution of the warrant would produce evidence to support the allegations of contempt. In this case, a warrant might well be issued, based in part on the fact that there are clearly going to be communications between the Respondent and the alleged contemnors that relate to the payment of funds. In addition, as set out below, the Applicant already has a number of e-mails that clearly show that the alleged contemnors are likely to have additional information in their possession that is relevant to the allegations of contempt.
[39] In addition, Mr. Law has waived his right to silence. As a result, he will be subject to cross-examination, and can be asked to produce documents and provide undertakings.
[40] In light of both of these facts, it would be unreasonable to dismiss the Applicant’s motion for production and I decline to do so. Some production is appropriate in this case. The more difficult questions are what should be produced and how should it be produced.
[41] One possibility would be to simply grant the broad production Order that has been requested, and provide the alleged contemnors with some time to comply with that Order. In a purely civil case, that would be the most appropriate route to take. However, in this case, the alleged contemnors are entitled to additional protections from the Court, as they are subject to the possibility of criminal sanctions. As a result, simply ordering production without considering some other steps is also not something I am prepared to do.
[42] I am, however, of the view that some production should be provided in this case both because there are reasonable and probable grounds to believe that the alleged contemnors have relevant documents and because Mr. Law has waived his right to silence.
[43] This brings me to the third and fourth alternatives that have been set out above. In my view, those alternatives provide a better path forward to deal with the issues of documentary discovery and production.
[44] The first step is that the Respondent should indicate whether he has any objections to producing the documents in his file relating to the payment of fees. If he has no objections, then production can be ordered on the basis of a third party records application. This production can include those portions of his file in the possession of the alleged contemnors that the Respondent has control over.
[45] The second step would then be to permit questioning of Mr. Law. This can be done in one of two ways. First, Mr. Law can attend for cross-examination on his Affidavit and be asked to give undertakings and refusals. The Applicant could then move on those refusals. Alternatively, Mr. Law could be cross-examined in open Court before Ricchetti J. and production issues could be dealt with as they arise. I am not deciding which of these alternatives is preferable, as that is a decision that Ricchetti J. (as the judge hearing the contempt motion) should make.
c) The Preservation Order
[46] The Applicant seeks an Order directing Simpson Wigle LLP and Stewart Law to preserve all documents in their possession relating to the Blatherwick file.
[47] The lawyers for the alleged contemnors argue that they have given an undertaking to preserve these documents, and that their clients, who are lawyers and subject to the Rules of Professional Conduct have also given such an undertaking. As a result, they oppose a production Order as the undertakings, in their view, should be sufficient.
[48] During the course of oral argument, I asked whether the lawyers for the alleged contemnors would be prepared to consent to a preservation Order. They indicated that they did not have such instructions, and could not get them before the conclusion of argument. As a result, I am left to rule on this issue.
[49] Normally, an undertaking from a lawyer as to the preservation of documents might be sufficient to satisfy the Court that documents would be preserved. However, in this case, I have had the opportunity to review some of Mr. Law’s communications with the Respondent while he was the Respondent’s counsel.
[50] While I make no findings of fact about these communications, there are two that are sufficiently concerning that they are worth setting out in detail. First, there is an e-mail dated August 26th, 2014 that appears to be from Mr. Law to the Respondent, while Mr. Law was still the Respondent’s counsel. This e-mail states:
Obviously this is an important time. We all need to hang together for the sake of the trial. The trial really is the thing to focus on. I will do what I can on the passport front but dealing with FRO is like dealing with CRA. They like the absolute power they wield. Frankly, it might even help if you lose your passport. Seasons goes on without you showing you are more of a one-seventh player not a key man/50% guy. Your income obviously goes down for spousal support purposes. I am still mulling all of this over but, my friend, things don’t have to look as black as they appear.
[51] Second, there is a letter to the Respondent from Mr. Law dated August 14th, 2014 that states:
We write to once again inquire as to when we can expect to receive the required retainer funds to allow us to begin preparations for trail in earnest. Specifically, it is vital that we order the transcripts from last Fall’s motions as soon as possible. You have said for some time now that the funds are essentially on their way. Please have Simon, the company and perhaps even Randy and Bill send it now. With respect to the company, please make sure you are “on record” (in writing) as opposing the delivery of the funds to us.
[52] At first reading, both of these communications seem to suggest that Mr. Law is counselling the Respondent to ignore Court Orders and evade his responsibilities to the Court. The second letter (which concerns the payment of fees), also seems to suggest that Mr. Law is counselling the Respondent to mislead the Court about what has actually happened. As I have indicated, I make no factual finding about whether that was actually Mr. Law’s intent, or whether the communications actually say what they seem to say. That is a matter to be determined in the contempt proceeding before Ricchetti J.
[53] However, these communications raise at least a prima facie indication that Mr. Law might be prepared to counsel a client to evade Court orders and/or to evade such Orders himself. In light of that fact, and in light of the fact that (as far as I am aware) he remains a partner in the Simpson Wigle firm, I am not prepared to accept an undertaking to preserve records in this case from either Simpson Wigle LLP or Mr. Law. Such an undertaking has less force than the actual Orders that Mr. Law may have counselled his client to ignore, and it would be unreasonable in this case for the Court to expect the Applicant to accept such an undertaking from Mr. Law or his firm or for the Court to be satisfied with such undertaking itself.
[54] Accordingly, a preservation Order will issue, with such Order to be effective immediately. Any documents that were deleted prior to the creation of the preservation Order may be subject to the previously given undertaking and/or to other legal principles. That, however, is not a matter that I need determine.
The Alleged Contemnors’ Motion
[55] The alleged contemnors seek the following production:
a) An order requiring production from the Applicant, her counsel and any other entity under their power or control to produce all relevant documents relating to the Applicant’s contempt motion, including communications between the Respondent and Mr. Law and/or any employee of Simpson Wigle LLP.
b) An order requiring production of any communications between Simpson Wigle and any third parties.
c) An Order directing that the Applicant deliver a consolidated motion record containing all of the evidence that she intends to rely on at the hearing of this matter.
[56] There was also a request for an Order asking for information as to how the Applicant came into possession of the allegedly privileged communications between Mr. Law and the Respondent, including the e-mails set out above. This issue was not aggressively advanced by counsel for the alleged contemnors at the hearing of the motion.
[57] I am not prepared to grant any relief relating to the allegedly privileged communications that the Applicant has received for two reasons. First, it is the Respondent’s privilege to assert, and not that of the alleged contemnors. Second, the motion record before me clearly shows that the Respondent has consented to the production of these documents. Indeed, he was the one who provided the Applicant with the communications that I have set out above.
[58] This brings me to the other production requests that the alleged contemnors have made. In argument, counsel for the alleged contemnors directed my attention to the decision in Vale v. Local 6500 (2010 ONSC 3039) where the Court was considering a production request from the Union, who was alleged to be in contempt of various Orders relating to picketing during a strike.
[59] In granting the Union production, the Court stated the following (at paragraph 7):
I am not so certain that the Stinchcombe disclosure obligations will exist in every motion brought for civil contempt. In my view, the nature and extent of the disclosure obligations need to be decided on a case by case basis, having regard to such issues as:
(1) The relief being sought by the party bringing the motion for contempt. If the motion is brought essentially for the purpose of ending the unlawful conduct that is one thing; if the motion is brought with a request for a significant penal sanction, that is another thing entirely;
(2) Whether the alleged contempt is ongoing, resulting in an urgent need to preserve order and protect the authority of the court;
(3) If the alleged contempt is not ongoing, whether the relationship between the parties is such that the impugned conduct might reasonably be expected to resume without timely intervention by the court;
(4) The nature of the conduct alleged; and
(5) The nature and extent of the materials of which disclosure is sought and the time expected to product it.
[60] Counsel for the alleged contemnors argues that the obligation of the Applicant to provide disclosure in this case is akin to the obligation of the Crown. I disagree. The Crown is a minister of justice and has societal obligations to the administration of justice beyond those of a private party.
[61] In this case, the Applicant is only a private party and does not have all of the Crown’s obligations. However, it is clear from the passage from the Vale decision that I have produced above that there are production obligations that the Applicant is subject to in this case.
[62] In reviewing the criteria set out above, there are no allegations that the contempt is ongoing, and a significant sanction is sought in this case, as the Applicant is seeking relief that could involve criminal sanctions. Both of these factors suggest a broader disclosure obligation on the part of the Applicant.
[63] In addition, it does not appear that the alleged contempt is ongoing or that it is likely to commence if the Court doesn’t intervene. As a result, there is less urgency to the contempt application, which means that disclosure can (and should) be addressed in a more thorough way. The fact that there is less urgency to this application than there might otherwise be is seen from the fact that the application was commenced almost a year ago.
[64] This brings me to the final issue, which is the nature of the production being sought by the alleged contemnors. In considering what production should be ordered, I am mindful of the analysis that is set out in Vale, supra, as well as the fact that the alleged contemnors should be given the opportunity to make full answer and defence.
[65] As a result, a relatively broad Order for disclosure from the Applicant should be made in this case. However, it should be confined to relevant records. Based on the submissions of counsel, and the foregoing analysis, the Applicant is directed to produce the following records to the alleged contemnors:
a) All communications in the possession, control or power of the Applicant between the Respondent and Stuart Law and/or any employee of Simpson Wigle LLP relating to the payment or receipt of fees.
b) All communications in the possession, control or power of the Applicant directly between any third parties and Stuart Law and/or any employee of Simpson Wigle LLP relating to the payment or receipt of fees.
[66] At this point, I have not made an Order for all communications to be produced, as it appears to me that the Applicant’s contempt motion deals with the payment of legal fees. As a result, requiring disclosure of documentation relating to the payment and/or receipt of legal fees will provide the alleged contemnors with the ability to provide full answer and defence. However, in the event that the Applicant is making a broader claim of contempt then the orders set out in paragraph 65 would have to be expanded. Whether such an expansion of the motion is permissible is not a matter that I am deciding.
[67] This brings me to the request from the alleged contemnors for a further motion record from the Applicant. This is a request that relates to the overall management of the contempt proceeding, and is something that should be left to Ricchetti J. to determine.
Orders and Next Steps
[68] The following Orders flow from my reasons in this case:
a) The parties are to seek the attendance of the Respondent and/or his counsel at the commencement of the hearing before Ricchetti J. on November 30th, 2016. To that end, I have provided a copy of this decision to the Respondent’s counsel.
b) The position of the Respondent on whether he is opposed to a third party records motion respecting the portions of his legal file in the possession of either Stuart Law or Simpson Wigle LLP is to be ascertained as quickly as possible, either on November 30th, 2016 or within ten (10) calendar days thereafter. If there is no opposition to such a motion, the relevant portions of the file are to be produced to Mr. Blatherwick, who will then provide it to the Applicant. If there is opposition to such a motion, then a motion is to be returnable before either myself or Ricchetti J. to address the issues.
c) Cross examinations of both the Applicant and Mr. Law are to be rescheduled.
d) A preservation Order in the form sought by Mr. Cox is to be issued.
e) The remainder of the relief sought in the motions is either dismissed or deferred to Ricchetti J. for determination.
[69] In addition, there is a question as to what should be done at the dates of hearing scheduled before Ricchetti J. In my view, the production obligations that I have imposed on the Applicant as well as the potential obligations that may accrue to the alleged contemnors may make it difficult to proceed with the hearing of the motion on the merits.
[70] However, it is clear that useful work can be done in the scheduled appearance before Ricchetti J. In particular, the Respondent and his counsel can attend on November 30th, 2016 and confirm whether the Respondent has any objections to producing the relevant portions of the Respondent’s file. Ricchetti J. can then make the appropriate Orders. As well, there are issues about the timetable and procedure for the underlying contempt motion that can be usefully considered on the scheduled dates.
[71] The issue of the costs of this production motion are to be left to Ricchetti J. to determine at the end of the contempt proceeding. While I am aware of the general expectation that judges will fix costs of any step in the proceeding, it is not appropriate to fix costs at this stage, as the results of the various production processes are not yet known. Therefore, it will be impossible to ascertain with any certainty which party has been more successful (and/or more reasonable) in this case.
LEMAY J
Released: November 22, 2016