CITATION: Boroni v. Polidoro, 2017 ONSC 4447
COURT FILE NO.: CV-16-548173
DATE: 20170721
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SALVATORE BORONI, GILDO BORONI, ROSINA BORONI, SALVATORE GIULIANO, VITO GIULIANO, CATERINA GIULIANO, and BRUNO GIULIANO
Plaintiffs
– and –
COSIMO “COSMO” POLIDORO, JOHN DOES, JANE DOES, and the DOE CORPORATION
Defendants
Norman J. Groot and Ashley Ferguson, for the Plaintiffs
Joseph Irving, for the Defendant
HEARD at Toronto: June 28, 2017 and July 21, 2017
archibald j.
REASONS FOR JUDGMENT FOR CIVIL CONTEMPT AND SENTENCE
(A) INTRODUCTION
[1] The Plaintiffs brought this motion to have the Defendant Cosimo Polidoro found in contempt of court and sentenced. On March 7, 2016, the Plaintiffs commenced an action against Mr. Polidoro in connection with a real estate transaction. On July 14, 2016, Dow J. issued partial default judgment against him for fraud, breach of trust/fiduciary duty, and conversion. Justice Dow ordered Mr. Polidoro to provide an accounting to the Plaintiffs, which he failed to do. Mr. Polidoro also failed to comply with several subsequent orders which I made. These included orders to attend a judgment debtor examination, to provide certain financial information to the Plaintiffs, and to appear in court on certain dates. Most egregiously, Mr. Polidoro lied to the Plaintiffs and this Court about the death of his father, while using that prevarication as the reason why he could not attend a scheduled court appearance. By Mr. Polidoro’s subsequent admission, his father fortunately remains alive today.
[2] Although contempt proceedings are typically bifurcated into separate liability and penalty phases, the parties agreed by means of their agreed statement of facts (Exhibit 1) to proceed both with liability and penalty on June 28, 2017. Bifurcation normally allows the contemnor a chance to purge his contempt before sentencing, which is a mitigating factor. In this case, the most offensive aspect of Mr. Polidoro’s contempt, his brazen lie to this Court about his father’s death and its continued perpetuation over a period of four months, cannot be purged to any large degree. The lie alone merits a substantial sentence premised upon the principles of deterrence and denunciation. These reasons, therefore, address both Mr. Polidoro’s liability for civil contempt of court and the requisite sentence. I remanded this matter to July 21, 2017 to provide these reasons.
(B) ISSUES
[3] This decision addresses two issues. First, I will describe the acts and omissions that comprise Mr. Polidoro’s liability for civil contempt of court. Mr. Polidoro signed the agreed statement of facts on June 28, 2017, including his admissions of liability to eight counts of contempt. The facts are not in dispute. Second, I will address the appropriate range of sentence for Mr. Polidoro’s admitted contempt of court.
(C) FACTS
[4] The following details are taken from the agreed statement of facts.
[5] On March 7, 2006, the Plaintiffs issued their statement of claim in this action. The claim sounds in fraud, breach of fiduciary duty, and conversion. It sets out a real estate investment fraud perpetrated by the defendant. On July 14, 2016, Dow J. issued a partial default judgment against Mr. Polidoro. In his judgment, Dow J. ordered Mr. Polidoro to provide the Plaintiffs with an accounting of the money with source documents, such as bank statements, within 30 days. Mr. Polidoro took no steps to set aside the default judgment and did not provide the Plaintiffs with an accounting.
[6] Count 1: The first count of Mr. Polidoro’s contempt of court comprises his failure to provide an accounting of the funds as required by Dow J.’s order.
[7] After Mr. Polidoro failed to provide the accounting, the Plaintiffs brought a contempt motion against him for failing to do so. There were a number of court attendances from September 2016 onwards. I will not recount them all.
[8] My involvement with this matter began on October 28, 2016. On November 10, 2016, I ordered Mr. Polidoro to attend a judgment debtor examination on November 14, 2016 and for him to appear in court on December 1, 2016 to advise of his efforts to retain counsel and to provide the accounting. Mr. Polidoro asked the Plaintiffs to reschedule the judgment debtor examination several times. He ultimately failed to attend the examination on November 23, 2016. Mr. Polidoro did not attend court on December 1, 2016. He informed counsel for the Plaintiffs that his non-attendance was due to his father being in hospital and he needed to be with his father.
[9] Count 2: The second count of Mr. Polidoro’s contempt of court comprises his failure to attend the judgment debtor examination on November 23, 2016 and to appear in court on December 1, 2016 as required by my November 10, 2016 order.
[10] On December 1, 2016, I ordered Mr. Polidoro to attend court on December 2, 2016, and to advise of his efforts to retain counsel and of his steps to provide the accounting. Mr. Polidoro did not attend. He informed counsel for the Plaintiffs by telephone and by text that his father had died the night before. This turned out to be a flagrant lie.
[11] Count 3: The third count of Mr. Polidoro’s contempt of court comprises his failure to appear in court on December 2, 2016 as required by my December 1, 2016 order. I pause to note here that the agreed statement of facts does not refer to Mr. Polidoro’s prevarication as a separate “count” of contempt. The Plaintiffs in their factum argue that his lie should simply be considered an aggravating factor on sentence, albeit a major one. In my view, Mr. Polidoro’s lies about his father’s passing are by far the most troubling aspect of his conduct in this proceeding. Rather than treating the lie as an aggravating factor, I will consider it as a major aspect of this third count of contempt. The lie is the reason that he offered for his failure to appear in Court on December 2, 2016.
[12] On December 2, 2016, I ordered Mr. Polidoro to attend a judgment debtor examination on December 12, 2016 and to attend before me on December 16, 2016. He neither attended the judgment debtor examination nor attended the court date. On December 16, 2016, I issued a warrant for his arrest.
[13] Count 4: The fourth count of Mr. Polidoro’s contempt of court comprises his failure to attend the judgment debtor examination on December 12, 2016 and to appear in court on December 16, 2016.
[14] On January 30, 2017, Mr. Polidoro was arrested on the outstanding warrant. On January 31, 2017, he appeared before me on a bail hearing and was released on his own undertaking, which included a condition that he attend his judgment debtor examination on February 1, 2017 and appear in court on February 28, 2017.
[15] On February 1, 2017, Mr Polidoro attended the judgment debtor examination. At the examination, he starkly repeated his lie while under oath:
- Q. Are your parents alive?
A. No.
- Q. All right. So, an issue in these contempt proceedings was that your father passed away?
A. Yes, I lost my mother last year, September, and my dad, I believe it was November…I don’t know the date.
Additionally, Mr. Polidoro blatantly went on to offer up the name of the purported executor of his father’s estate and even offered a time and location for the purported reading of his father’s will. In other words, he committed to the shameless lie and dug the hole of prevarication even deeper.[^1]
[16] On February 28, 2017, Mr. Polidoro appeared before me with counsel (different from his counsel in the present proceeding). On that date, I ordered Mr. Polidoro, at paras. 2-5 of my order, to attend the continuation of his judgment debtor examination on March 22, 2017, to provide information and documents for his undertakings given on February 1, 2017, to provide details about his father’s death by March 15, 2017, and to provide information about the executor of his father’s estate.
[17] Count 5: The fifth count of Mr. Polidoro’s contempt of court comprises his failure to comply with paras. 2-5 of that order by failing to attend the continuation of his judgment debtor examination and failing to provide the information responsive to the various outstanding questions about his finances and his father’s alleged death.
[18] On April 7, 2017, Mr. Polidoro appeared before me with his present counsel, Mr. Irving. On that date, I ordered his continuing judgment debtor examination to take place before me on April 10, 2017 to ensure compliance with his previous undertakings, including employment information. He was to bring all relevant documentation to the examination.
[19] Count 6: The sixth count of Mr. Polidoro’s contempt of court comprises his failure to comply with my April 7, 2017 by failing to provide the ordered information.
[20] On April 10, 2017, Mr. Polidoro did appear before me to continue his judgment debtor examination. During that examination, he admitted under oath that his father had not died. Mr. Polidoro also gave evidence regarding his undertakings, but did not produce any supporting documentation. I therefore ordered Mr. Polidoro to fulfil his undertakings by April 21, 2017. I also scheduled his trial for his contempt of court for his ongoing lies for May 23, 2017.
[21] Count 7: The seventh count of Mr. Polidoro’s contempt of court comprises his failure to provide supporting documents for his undertakings as required by my April 10, 2017 order.
[22] On April 28, 2017, Mr. Polidoro appeared and I once again ordered him to produce supporting documents in support of his undertakings, including employment records, and that he must sign an authorization for the Plaintiffs’ to obtain his bank statements.
[23] Count 8: The eighth and last count of Mr. Polidoro’s contempt of court comprises his failure to provide supporting documents for his undertakings, as ordered in my April 28, 2017 order. This order remains largely unfulfilled as of the date of the release of this judgment on July 21, 2017.
(D) POSITIONS OF THE PARTIES
[24] Mr. Polidoro admits liability for eight counts of civil contempt of court. The parties disagree to some degree as to the appropriate sentence for his contempt.
[25] Counsel for the Plaintiffs submitted that a sentence of 90 days to be served intermittently would be an appropriate penalty, with the opportunity for his sentence to be stayed after 60 days if he purged his contempt by complying with his outstanding undertakings and provided a full accounting. A 90-day sentence would further the primary purposes of civil contempt sentencing, namely specific and general deterrence. The Plaintiffs rely on the Superior Court’s decisions in Cellupica v. Di Giulio, 2011 ONSC 1715, 105 O.R. (3d) 687 [Cellupica (Sentencing)] and Uyj Air Inc. v. Barnes, 2011 ONSC 3847, 96 W.C.B. (2d) 86, in which our Court imposed 90-day sentences in what the Plaintiffs submitted are factually similar circumstances to the present case.
[26] The Plaintiffs submitted that deterrence and denunciation are the primary factors I should consider in sentencing Mr. Polidoro. They submitted that the aggravating factors include the fact that Mr. Polidoro failed to comply with multiple court orders over an extended period of time and that he gave perjured evidence regarding the death of his father.
[27] Counsel for the Defendant submitted that a sentence of 60 days to be served intermittently would be an appropriate penalty. He submitted that the real issue in this proceeding is that Mr. Polidoro had the “temerity” to lie to the Plaintiffs and the Court about the death of his father. The fact that Mr. Polidoro has failed to account to the Plaintiffs is less significant because he has already admitted that the money went to his personal expenses. A 60-day sentence would send a serious message to Mr. Polidoro and the public that it is not acceptable to lie to the Court.
[28] Counsel for the Defendant submitted that the following are mitigating factors for Mr. Polidoro: he signed the agreed statement of facts; he agreed to a tripartite agreement with his employer and the Plaintiffs to voluntarily garnish his wages; and he apologized to this Court.
[29] Both sides agreed that Mr. Polidoro’s sentence should be served intermittently on weekends so that he can remain employed and can continue to make payments to the Plaintiffs. This sets the upper limit for his sentence at 90 days, as any sentence longer than 90 days cannot be served intermittently.
(E) THE LAW
[30] Rule 60.11(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:
A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
[31] Rule 60.11(5) of the Rules of Civil Procedure sets out the range of penalties a court may impose for civil contempt:
(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary,
and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
[32] The Supreme Court summarized the law regarding liability for civil contempt in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 32: “[c]ivil contempt has three elements which must be established beyond a reasonable doubt”. These three elements are, at paras. 33-35: (1) “that the order alleged to have been breached ‘must state clearly and unequivocally what should and should not be done’ [citations omitted]”; (2) “that the party alleged to have breached the order must have had actual knowledge of it”; and (3) “the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels”.
[33] There are two primary purposes for sanctions for civil contempt. These are to ensure that the contemnor complies with relevant court orders, and to signal to the public that the Court and its processes are to be respected, i.e. specific and general deterrence. As the Court of Appeal explained in Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para. 79:
The purpose of a penalty for civil contempt is to enforce compliance with a court order and to ensure societal respect for the courts […]. The remedy for civil contempt is designed not only to enforce the rights of a private party […] but also to enforce the efficacy of the process of the court itself. [Citations omitted.]
[34] In addition to ensuring compliance with court orders, another purpose of sentencing for civil contempt is “punishment for breaching a court order”: Carey v. Laiken, at para. 31. See also Master Karen Jolley’s article entitled “Sanctions for Civil Contempt – a National Survey and a Critique” in the 2013 Annual Review of Civil Litigation (Toronto: Carswell, 2013) at 360-395 for an excellent review of pertinent sentencing principles.
[35] The Court of Appeal in Boily goes on to state, at para. 90, that “[t]he following are the factors relevant to a determination of an appropriate sentence for civil contempt:
a) the proportionality of the sentence to the wrongdoing;
b) the presence of mitigating factors;
c) the presence of aggravating factors;
d) deterrence and denunciation;
e) the similarity of sentences in like circumstances; and
f) the reasonableness of a fine or incarceration.
(F) ANALYSIS
[36] As a preliminary comment, as I noted in the introduction, contempt proceedings are typically bifurcated to allow the contemnor an opportunity to purge his or her contempt before the penalty phase. That purging can be considered as a mitigating factor in sentencing: see e.g. Cellupica v. Di Giulio, 2010 ONSC 5839, 5 C.P.C. (7th) 371, at para. 78. In my view, it is reasonable to sentence Mr. Polidoro at this time because, regardless of what future steps he might take to purge his contempt, his nefarious conduct already warrants a custodial sentence and his lie to this Court and its perpetuation and embellishment cannot be purged to any large degree. It alone warrants a substantial custodial sentence. I therefore will address both liability and sentencing at this time.
(1) Mr. Polidoro’s liability for contempt of court
[37] To recap, Mr. Polidoro’s admitted acts of contempt are his failing to comply with the following orders:
Para. 7 of Dow J.’s July 14, 2016 order to provide an accounting;
Paras. 1 and 4 of my November 10, 2016 order to attend court and attend a judgment debtor examination;
Para. 1 of my December 1, 2016 order to attend court and to advise of his efforts to provide an accounting. This is also when Mr. Polidoro first lied about his father’s death, offering this flagrant deceit as the reason for his failure to attend Court;
Para. 1 of my December 2, 2016 order to attend court and to advise of his efforts to provide an accounting;
Paras. 2-5 of my February 28, 2017 order to attend the continuation of his judgment debtor examination and provide information in response to the various outstanding questions about his finances and his father’s alleged death;
Paras. 3-4 of my April 7, 2017 order to comply with previous undertakings to provide certain information to the Plaintiffs, including employment information;
Para. 1 of my April 10, 2017 order to provide supporting documentation for his undertakings; and
Para. 1 of my April 28, 2017 order to provide supporting documentation for his undertakings.
[38] There is no dispute that all of the orders which Mr. Polidoro breached were clear and unequivocal. The orders directed him to: attend court at 361 University Avenue in Toronto at specific times and on specific dates; to attend judgment debtor examinations at specific times on specific dates and at a precise location in Toronto; and to provide specified information to the Plaintiffs, such as bank statements and employment records. These were not complicated orders. Their wording was precise and unambiguous. I find that the eight orders that Mr. Polidoro breached clearly and unequivocally set out what was expected of him. I also unreservedly accept the agreed statement of facts signed by Mr. Polidoro, in which he admits liability for the above-mentioned breaches. There can be no question that he had actual knowledge of these eight orders and that he intentionally breached these orders.
[39] I am therefore satisfied beyond a reasonable doubt that Mr. Polidoro committed eight counts of civil contempt of court by breaching the court orders, with Count 3 constituting the most serious count because it encompasses Mr. Polidoro’s initial lie about his father’s death.
(2) Mr. Polidoro’s sentence for contempt of court
Mitigating factors
[40] The following are the mitigating factors in this case. First, Mr. Polidoro has admitted his contempt of court by signing the agreed statement of facts. A contemnor’s admission of his breach is a key mitigating factor on sentencing: see e.g. 2363523 Ontario Inc. v. Nowack, 2016 ONSC 2518, 129 W.C.B. (2d) 494, at para. 73. By signing the agreed statement of facts, Mr. Polidoro has taken some responsibility for his actions and saved the parties from having to spend more time and resources calling evidence on the various issues.
[41] Second, Mr. Polidoro has agreed to a tripartite agreement between himself, his employer, and the Plaintiffs whereby his wages are now being voluntarily garnished in order to pay his judgment debt. A contemnor’s effort to mitigate the damages is a positive factor on sentencing: see e.g. Keenan v. Keenan, 2015 ONSC 574, 118 W.C.B. (2d) 622, at para. 14. While it is true, as the Plaintiffs note, that Mr. Polidoro would have been obliged to pay his judgment debt in any event, he has helped expedite the process of ensuring the Plaintiffs receive payment for their losses, which is a primary purpose of contempt proceedings. Under the agreement, Dow J.’s partial default judgment against Mr. Polidoro, including costs, will be paid to the Plaintiffs in its entirety within three years. It is appropriate to provide some credit to Mr. Polidoro for taking this course of action. In addition, the costs of this contempt judgment will be added to the amount to be paid back in the tripartite agreement.
[42] Third, at the hearing of this motion, Mr. Polidoro provided an apology to this Court. A sincere apology is a mitigating factor in sentencing: see e.g. Astley v. Verdun, 2013 ONSC 6734, 118 O.R. (3d) 43, at para. 27. Mr. Polidoro stated that he has been to confession, has learned a valuable lesson, will ensure this never happens again, and shall make his best efforts to make good on any outstanding issues. I cannot place a great deal of weight on Mr. Polidoro’s apology in light of his past conduct and the undertakings yet to be fulfilled, but it appears that he is beginning to take this matter seriously. I consider his apology to be a minor mitigating factor.
Aggravating factors
[43] I find that the main aggravating factor in this case is Mr. Polidoro’s repeated breaches of the court orders over the course of almost a year. He breached eight different court orders by repeatedly failing to attend court and to provide the information necessary to provide an accounting to the Plaintiffs. His conduct occurred over an extended period of time; it was not just a one-off situation. The fact that a contemnor has engaged in numerous breaches of court orders or repeated acts of contempt is an aggravating factor in sentencing: see e.g. Korea Data Systems Co. v. Chiang, 2009 ONCA 3, 93 O.R. (3d) 483, at para. 88. Mr. Polidoro had plenty of opportunities to purge his contempt but persisted in his contemptuous conduct for a significant period of time, while repeatedly defying court orders.
[44] The fact that a contemnor has shown disrespect to the Court by lying to it can be an aggravating factor in sentencing: see e.g. Chiang, at para. 88. Although the Plaintiffs submit that Mr. Polidoro’s lie about his father should be considered an aggravating factor in sentencing, I prefer to consider the lie as a substantive aspect of Count 3 and will consider it in the next section.
[45] The aggravating factors clearly outweigh the mitigating factors. While Mr. Polidoro has belatedly taken some steps to remedy the situation, it does not and cannot change the fact that he deliberately and repeatedly failed to comply with straightforward court orders to attend court, to attend a judgment debtor examination, and to provide documents to the Plaintiffs. His conduct persisted for almost a year. Thus, while I have found that there are some applicable mitigating factors, these positive factors will not reduce his sentence by a large amount.
Proportionality
[46] A sentence for civil contempt “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Chiang, at para. 86. In this case, proportionality considerations can largely be addressed as part of the other factors that I will discuss, particularly deterrence and denunciation. Suffice it to say that Mr. Polidoro bears a high degree of responsibility for his breaches. No one forced Mr. Polidoro to lie; he made a conscious decision to lie to the Plaintiffs and this Court in a futile attempt to escape his obligations under Court orders. Further, the gravity of the offence cannot be understated. Mr. Polidoro showed a brazen disrespect to this Court by serving up such an outrageous lie and perpetuating that ‘web of deceit’ for several months. There is no excuse for his conduct.
Deterrence and denunciation
[47] I have no hesitation finding that the factors of general and specific deterrence and denunciation should play a central role in sentencing Mr. Polidoro, primarily in light of his lie about his father’s death. In accordance with the purposes of civil contempt sentencing set out by the Court of Appeal in Boily, at para. 79, “to ensure societal respect for the courts” and to “enforce the efficacy of the process of the court itself”, I find that it is necessary to denounce Mr. Polidoro’s conduct in the strongest terms and to send a clear signal to all who might consider showing such flagrant disrespect to our courts that such conduct will not be tolerated.
[48] To summarize, Mr. Polidoro used his father’s purported stay in hospital and subsequent death as an excuse to avoid his obligations to the Plaintiffs and this Court. It began when he advised counsel for the Plaintiffs on December 1, 2016 that he could not attend Court because his father was in hospital. It grew much worse on December 2, 2016 when he advised counsel for the Plaintiffs that he could not attend Court as ordered because his father had died. That message was relayed by counsel to the Court. It persisted on February 1, 2017, when he testified under oath at his judgment debtor examination that his father had died. He even proffered the name of the purported executor of the estate and a date and location for the reading of his father’s will. He persisted with this sophisticated lie for several months.
[49] I find it hard to conceive of a more shameless, offensive, and disrespectful contempt of court. Such behaviour simply cannot be tolerated and must be deterred.
Sentences in like circumstances
[50] Counsel for the Plaintiffs provided several cases to me, but submitted that Cellupica (sentencing) and Barnes are most relevant to the present case. Counsel for the Defendant did not provide additional case law, but agreed that a 90-day custodial sentence was the upper limit of the reasonable available sentences and argued the mitigating factors should reduce Mr. Polidoro’s sentence below 90 days to a 60-day intermittent sentence.
[51] The Cellupica case dealt with plaintiffs who had obtained a default judgment against the contemnor for $2.5 million based upon a fraudulent investment scheme. The contemnor failed to comply with orders to provide certain documentary evidence and to attend at an examination in aid of discovery. Justice David Brown described the contemnor has having “stonewalled” and “played a cat-and-mouse game with the plaintiffs” over the course of a year in an effort to avoid disclosing relevant information. Justice Brown wrote, at para. 41:
When a person, such as [the contemnor], exhibits a course of conduct showing disregard for the process established by our law, as aided by court orders, to enable judgment creditors to secure legitimate information about the financial affairs of a judgment debtor, it is appropriate to impose a strong sanction on that person in order to preserve the integrity of our legal process and court orders, especially when set against the backdrop of a judgment debtor who essentially "took the money and ran".
[52] Although it was the contemnor’s first contempt finding, Brown J. found his conduct warranted a 90-day sentence. Justice Brown concluded, at para. 51, that if the contemnor participated meaningfully in an examination in aid of execution and provided the remaining documents which he had been ordered to produce, he could apply to the court to vary the order, including a possible reduction of the sentence.
[53] The contemnor in G M Textiles Inc. v. Sidhu, 2016 ONSC 2055, 84 C.P.C. (7th) 34 was a judgment debtor for $1.7 million who had “deliberately, blatantly and continuously flouted” many terms of six court orders. Justice Reid imposed separate custodial terms for each breach, which amounted to a global term of 18 months to 21 months, less one day. The sixth and final custodial term of four months could be reduced to one month if the contemnor attended an examination in aid of execution and cooperated in answering relevant questions. Justice Reid commented, at para. 59 that:
The one month residual period to be served even if contempt is purged is reflective of the principle that while late compliance is better than no compliance, there must be some punitive consequence to the lengthy and unwarranted delay.
[54] In Uyj Air Inc. v. Barnes, 2011 ONSC 3847, 96 W.C.B. (2d) 86, the husband and wife contemnors breached many undertakings and court orders. They had been subject to three contempt findings prior to sentencing. They provided false information and made insincere promises to the moving parties and the Court. As the contemnors had several children, Roberts J. imposed a 90-day sentence on each contemnor to be served intermittently and on alternate weekends. This allowed the contemnors to continue working and to have someone home with the children.
Reasonableness of a fine or incarceration
[55] The parties agreed that a period of incarceration is the appropriate penalty for Mr. Polidoro’s contempt of court. A fine would underweight the principles of deterrence and denunciation for Mr. Polidoro’s repeated breaches of court orders and for his lie. For the reasons discussed above, only a period of incarceration would adequately further the purposes of civil contempt sentencing.
(G) SENTENCE
[56] I have found beyond a reasonable doubt that Mr. Polidoro is liable for eight counts of civil contempt of court for the breaches of the court orders. I have considered the factors relevant to sentencing for civil contempt, including in particular specific and general deterrence and denunciation, as well as the relevant mitigating and aggravating factors.
[57] A lengthy sentence is clearly appropriate in light of Mr. Polidoro’s egregious lie about his father, coupled with his repeated breaches of court orders which began with his complete disregard for Dow J.’s initial order of July 14, 2016. I am also mindful of the fact that civil contempt proceedings such as this should also focus on the interests of the Plaintiffs and attempt to ensure that they can obtain a reasonable recovery of their judgment debt. After all, this was the central purpose of all of the court appearances, the judgment debtor examinations, and the orders for an accounting.
[58] Under the tripartite agreement, a portion of each of Mr. Polidoro’s pay cheques will be garnished and sent to Counsel for the Plaintiffs in trust to pay down his judgment debt, including costs. He also now has an outstanding costs award for this motion. But for the tripartite agreement, which is premised upon Mr. Polidoro’s continued employment, no money would be flowing to the Plaintiffs at this time.
[59] It is in the best interests of the parties that Mr. Polidoro should be able to continue with his employment and to continue making his payments. This leads to two conclusions. First, Mr. Polidoro’s sentence should be intermittent, to be served on weekends. This will allow him to work during the week. He is to report to jail by 7:00pm each Friday and to be released at 5:30am each Monday. He will be released on his own recognizance of $500.00 without deposit with the condition that he remain employed and report back to prison each Friday by 7:00pm. Second, Mr. Polidoro’s sentence must be 90 days or less because intermittent sentences are not available for terms of greater than 90 days. Any sentence that I would impose above 90 days would undermine his ability to work.
[60] In light of the gravity of Mr. Polidoro’s conduct, my starting point for consideration is that he should face the maximum sentence available in these circumstances of 90 days. Given the mitigating factors I found above (the agreed statement of facts, tripartite agreement, and apology), I will reduce this possible 90-day sentence to 76 days on count three. For the other seven counts (counts 1 and 2, and 4 through 8), the sentence will be 24 days on each count to run concurrently to each other and to count three respectively.
[61] On the return date of July 21, 2017, Mr. Polidoro did not attend. He apparently went to Centenary Hospital in Scarborough. His sentence will therefore commence on Friday, August 4, 2017 and run on every weekend until it is completed. I am not inclined to offer Mr. Polidoro the opportunity to reduce his sentence by purging his contempt; his actions to date warrant this 76-day sentence to be served in its entirety, regardless of what steps he might take in the future. Mr. Polidoro will serve 19 weekends since there is no statutory remission for civil contempt sentences.
(H) CONCLUSION
[62] This Court’s outstanding orders against Mr. Polidoro shall remain in effect, including his accounting to the Plaintiffs, which includes complying with his undertakings to provide certain financial information with supporting documentation. At the hearing of this motion, the parties agreed that Mr. Polidoro will attend the continuation of his judgment debtor examination at 10:00am on August 21, 2017 and provide the supporting documentation he has thus far failed to provide.
[63] Mr. Polidoro should recognize that he must still comply with the outstanding orders or he could well face a further term of imprisonment in the future.
[64] By consent of the parties, Mr. Polidoro shall pay costs to the Plaintiffs in the amount of $50,000, inclusive of HST and disbursements. Those costs will be added to the amounts in the tripartite agreement.
Archibald J.
Released: July 21, 2017
CITATION: Boroni v. Polidoro, 2017 ONSC 4447
COURT FILE NO.: CV-16-548173
DATE: 20170721
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SALVATORE BORONI, GILDO BORONI, ROSINA BORONI, SALVATORE GIULIANO, VITO GIULIANO, CATERINA GIULIANO, and BRUNO GIULIANO
Plaintiffs
– and –
COSIMO “COSMO” POLIDORO, JOHN DOES, JANE DOES, and the DOE CORPORATION
Defendants
REASONS FOR JUDGMENT
Archibald J.
[^1]: I am reminded of the apposite words of Sir Walter Scott from his 1808 poem Marmion, Canto 6, Stanza 17: “Oh what a tangled web we weave, When first we practice to deceive!”