REASONS FOR DECISION

J. FERGUSON, J.

[1] On May 11, 2017, I found Mr. Feeley to be in contempt of court. He was to comply with specific undertakings. He was given a specific list. He was told how he could purge the contempt. He has not done so. He was told at the last attendance on July 24, 2017, that he would be incarcerated the next time if he did not comply. He has not. Despite the warnings, he comes today with no affidavit evidence and flimsy comments only. He was told the last time that he needed to produce an affidavit. He has not done so. His efforts to avoid providing the plaintiff with information to enforce the judgment amounts to a flagrant disregard for the legal obligation imposed upon judgment-debtors.

[2] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The outstanding judgment of September 21, 2011 is in the amount of over $700,000.00. He has paid peanuts.

[3] The examinations in aid of execution failed. The plaintiff has been stonewalled by the defendant. Mr. Feeley has defied court orders. I already gave him further indulgence when counsel pressed for incarceration on July 24, 2017.

[4] In the context of civil proceedings, the defendant’s misconduct has been very serious and merits denunciation and deterrence both general and specific.

[5] There are no mitigating factors.

[6] Quoting from Cellupica et al. v. D. Giulio 2011 ONSC 1715, 105 OR (3d) 687 at para 41 “while we no longer live in an age of debtor’s prison” we do live in an age where our society places great emphasis on the rule of law. Indeed, the rule of law stands as one of the two foundational principles of our contemporary Canadian constitution. When a person, (such as Mr. Feeley), 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”.

[7] The amount of money Mr. Feeley took from the plaintiff was large. At the same time the tasks imposed upon him by the order of this court were simple, to attend an examination in aid of execution and produce records of bank accounts etc. in his name. The simplicity of complying with the court order, when assessed against the magnitude of the debt owed, point to the appropriateness of a significant penalty for breach of the court’s orders.

[8] Consequently, in my view this is one of those cases in which it would be just to impose a period of incarceration on the contemnor even though it is his first offence. I do not consider the imposition of a fine to be appropriate. Mr. Feeley has not sought to set aside the judgment. Collection has been unsuccessful, although some money is being garnished. He has not tried to satisfy any portion of the $18,000.00 in costs awards on July 24, 2017. On the evidence before me there is no reasonable prospect that Mr. Feeley would pay a fine. Based on his conduct, I expect he would simply ignore it.

[9] Mr. Feeley you have not purged your contempt. You have shown little remorse. Your attempts to avoid providing your judgment-creditor with relevant information and evidence spans over a long period of time. You have made promises to this court which you have broken. In sum, your conduct has displayed a pronounced disdain for our legal system and the courts of this country.

[10] Accordingly, I sentence you to serve sixty (60) days in a provincial correctional institute. I direct that a Form 60L Warrant of Committal issue against you in which shall read:

a. YOU ARE ORDERED TO arrest MICHAEL FEELEY and deliver him to a provincial correctional institution to be detained there for sixty (60) days. Upon conclusion of that sentence, I order you to return MICHAEL FEELEY to this court to appear before me, MADAM JUSTICE JANE FERGUSON, upon his release from custody.

[11] This endorsement shall be attached to the Warrant of Committal. I should note that by virtue of the language of the warrant, Mr. Feeley is not eligible for parole and, on the expiration of his sentence, he must be returned before me.

[12] That said, since the primary purpose of sentencing for civil contempt is to promote compliance with the court’s orders and to incent the contemnor to purge his ongoing contempt, I add the following two conditions to the sentence I have imposed on Mr. Feeley:

i. If you agree to subject yourself to a meaningful and fully responsive examination in aid of execution during your incarceration in order to purge part of your contempt, I direct the correctional institution to make facilities available to enable the plaintiff to conduct such an examination of him under oath; and

ii. If you participate in a meaningful and fully responsive examination in aid of execution and/or you deliver to the plaintiff the remaining bank records and documents ordered to be produced by me, prior to the expiry of your term of imprisonment, you are free to move before me on three days’ notice to the plaintiff for the variation of this order, including a reduction of the sentence I have imposed.

[13] I will remain seized of this matter.

[14] I have ordered further costs of $2,000.00 to be paid by the defendant to the plaintiff.

Jane Ferguson, J.

Released: August 24, 2017

CITATION: Dean Warren Enterprises Inc. v. 1628655 Ontario Inc., 2017 ONSC 5038

COURT FILE NO.: CV-11-433685

DATE: 20170824

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dean Warren Enterprises Inc.

Plaintiff

– and –

1628655 Ontario Inc. and Michael Feeley

Defendants

REASONS FOR DECISION

Jane Ferguson, J.

Released: August 24, 2017

Dean Warren Enterprises Inc. v. 1628655 Ontario Inc., 2017 ONSC 5038

Case Summary

REASONS FOR DECISION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues