Court File and Parties

Court File No.: CV-15-532500 Date: 2018-06-15 Superior Court of Justice - Ontario

Re: The Law Society of Upper Canada And: Aspasios Paul Hatzitrifonos a.k.a. Paul Hatz

Before: P.J. Monahan, J.

Counsel: Julia Wilkes, for the Applicant Aspasios Paul Hatzitrifonos, his own behalf

Heard: March 29 & April 30, 2018

Reasons for Judgment on Penalty

[1] On November 28, 2017, I found the Respondent, Aspasios Paul Hatzitrifonos, in contempt of court for breaching the November 27, 2015, order of Dunphy J. of this Court (the “Order”), enjoining him from engaging in the unauthorized provision of legal services or from holding himself out as a person entitled to practice law or provide legal services in Ontario. I found that Mr. Hatzitrifonos, with knowledge of the Order, had essentially ignored it and continued with his legal services business, including appearing on behalf of clients in the Ontario Court of Justice and providing them with legal advice.

[2] Having found Mr. Hatzitrifonos in contempt of court, I then adjourned the proceeding to permit the parties to make submissions on the appropriate penalty. The hearing on penalty commenced on March 29, 2018 and continued on April 30, 2018.

Positions on Penalty

[3] The Law Society of Upper Canada takes the position that the appropriate penalty is a 30-day period of incarceration. The Law Society notes that Mr. Hatzitrifonos’s contempt was serious, wilful and deliberate, and was motivated by personal financial gain. With full knowledge of the Order, Mr. Hatzitrifonos chose to ignore it and continued to operate his legal services business. As court staff and the judiciary became aware of Mr. Hatzitrifonos’s defiance of the order, he continued to provide legal services but attempted to conceal his involvement. Moreover, he continued to advertise his legal services until mid-October 2017, when the contempt proceedings were well underway.

[4] In the Law Society submission, incarceration is necessary to ensure compliance with the Order, to protect the public from Mr. Hatzitrifonos’s continued unauthorized provision of legal services, and to serve as a general deterrent to others who might consider violating court orders made in the public interest.

[5] In response, Mr. Hatzitrifonos has provided a written apology in which he takes responsibility for breaching the order of Dunphy J. and promising not to repeat this conduct in the future. He has also undertaken to provide community service through a charitable organization in his community, and submitted a supportive letter from Rev. John Sullivan, S.J., of Our Lady of Lourdes Parish in Toronto. He indicates that he has moved on and is now employed in an entirely different business, and that any period of incarceration could well result in his loss of employment. He has also begun reimbursing the Law Society for the costs orders that have previously been issued against him.

Sentencing Principles For Civil Contempt Of Court

[6] Pursuant to rule 60.11 of the Rules of Civil Procedure, the Court has broad discretion to fashion an appropriate remedy for contempt and may make such order as is just in the circumstances of the case.

[7] A number of recent decisions of this Court as well as of the Court of Appeal have reviewed the principles applicable to sentencing in respect of civil contempt.[^1] These cases have confirmed that (in contrast to sentencing for criminal contempt), the primary objective of sentencing for civil contempt is to coerce the contemnor to comply with the orders in question. A secondary purpose of sentencing in the civil context is punishment aimed at achieving both specific and general deterrence and denouncing the conduct in question.

[8] Because the primary purpose of imposing a penalty for civil contempt is to secure compliance with the relevant order, incarceration is rare in civil cases.[^2] Ordinarily, a finding of contempt, together with a fine or some other appropriate order is sufficient to gain compliance and restore the authority of the court. Incarceration is a sanction of last resort.

[9] Taking these general principles into account, the jurisprudence has identified a number of specific factors or considerations properly taken into account in determining an appropriate sentence for civil contempt. The range of factors that is appropriate for consideration is extensive; a partial list includes the following:

a. a sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender;

b. a sentence should be increased or reduced to account for aggravating or mitigating factors surrounding the contempt or the contemnor;

c. a sentence should be similar to sentences imposed in other comparable cases;

d. sentences should denounce unlawful conduct, promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders; and

e. the court should consider whether a sanction other than imprisonment will achieve the objective of restoring the Court’s dignity and authority.

Application of Sentencing Principles

[10] Considering first the gravity of the offense and the responsibility of the contemnor, I note that Mr. Hatzitrifonos’s breaches of the Order were repeated, wilful and deliberate. He operated a legal services business for a number of years prior to the issuance of the Order and then essentially ignored the order for two years after it had been issued. He ignored repeated directions by Judges of the Ontario Court of Justice that he was not entitled to appear before that court. He was motivated by personal gain and attempted to conceal his conduct. He only ceased breach of the Order once these contempt proceedings were underway and he recognized that he had no option other than to comply.

[11] Mr. Hatzitrifonos’s repeated and intentional defiance of the Order is a significant aggravating factor weighing in favour of a more serious sentence. That said, there are a number of mitigating factors that are also significant and important. These include the fact that Mr. Hatzitrifonos has now recognized that his conduct was in breach of the court order, provided a written apology to the Court, and promised not to engage in similar conduct in the future. I accept his expressions of remorse, albeit late in the day, as genuine. Moreover, I am persuaded that he sincerely intends to comply with the Order and that his contemptuous conduct will not be repeated in the future.

[12] With respect to the need for deterrence and denunciation, as I noted in my earlier reasons, this case engages broader issues relating to the important role of the Law Society in protecting the Ontario public from the unauthorized provision of legal services by persons without proper legal training. Moreover, the deliberate flouting of court orders, if tolerated or permitted, will inevitably erode the public respect accorded to court decisions, thereby undermining an independent judiciary and the rule of law itself. These are obviously values of the highest importance, and weigh in favour of a meaningful sentence for the contempt that has occurred in this case.

[13] An appropriate sentence must be comparable to those imposed in like circumstances. I have already noted that incarceration is rare in the civil context. The Law Society relies upon the 2012 decision of DiTomaso J in Law Society of Upper Canada v. Fingold,[^3] where a sentence of 14 days incarceration was ordered for a single breach of the injunction order. I note, however, that in that case the contemnor remained unrepentant and unapologetic and continued to display defiance in relation to the governance authority of the Law Society. In contrast, in Fingold 2017, Charney J. declined to order Fingold’s incarceration, even for a repeat offense, on the basis that imprisonment was no longer necessary in order to ensure compliance.

[14] Finally, in considering the possibility of other sanctions short of imprisonment, I note that Mr. Hatzitrifonos has expressed a willingness to undertake community service as well as to begin paying legal costs due to the Law Society.

[15] Taking all of these factors into account I do not believe this is an appropriate case for incarceration. I recognize that Mr. Hatzitrifonos repeatedly and without excuse or justification defied an order of this Court. Such conduct cannot be tolerated or condoned. That said, I am satisfied that Mr. Hatzitrifonos has now brought himself into compliance with the Order and genuinely intends not to repeat his offensive conduct in the future. As such, the primary purpose of civil contempt proceedings, namely, to gain compliance and restore the authority of the court, has already been achieved without the necessity of a term of incarceration.

[16] Nor do I see the imposition of a fine as meaningful or appropriate in these circumstances. Before imposing a fine, the court must consider the contemnor’s ability to pay.[^4] Mr. Hatzitrifonos testified that he receives a very modest income. He has been unable to pay costs awards made in favour of the Law Society in the past and I do not see that he has the capacity to pay any additional fine. In fact, given his modest income, any additional fine I might impose would likely mean that Mr. Hatzitrifonos would be unable to comply with this Court’s order on sentence. This would produce the opposite of the result intended, which is to ensure compliance by Mr. Hatzitrifonos with orders of this Court. This goal can only be achieved if the order is a practical one that Mr. Hatzitrifonos has the capacity to satisfy.

Conclusion

[17] Taking all these factors into account, I accept Mr. Hatzitrifonos’s written apology as an expression of his remorse and intention to comply with orders of this Court in the future. I further order him to undertake an additional 40 hours of community service with our Lady of Lourdes Parish, in addition to that outlined in the May 6, 2018 letter of Rev. John Sullivan, S. J. This community service is to be performed over the next six months and Mr. Hatzitrifonos is to submit evidence of such community service to this Court by no later than December 15, 2018. Finally, Mr. Hatzitrifonos is to make monthly payments of $30 per month for the next 12 months to the Law Society, as partial payment of the outstanding court orders. I note that this partial payment will not alter or impair the legal validity and/or enforceability of those costs orders.

[18] I invite the parties to attempt to settle the matter of costs. If they are unable to do so, I will receive written costs submissions from the Law Society within 21 days of today, with Mr. Hatzitrifonos providing his submissions in response 21 days later.

P.J. Monahan, J.

Date: June 15, 2018

[^1]: Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 at paragraph 77; Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574 at paragraphs 90 to 112; Law Society of Upper Canada v. Fingold, 2017 ONSC 1370 ("Fingold 2017") at paragraphs 18 to 21; 2363523 Ontario Inc. v. Nowack, 2016 ONSC 2518 at paragraphs 66 to 75 (affirmed 2016 ONCA 951).

[^2]: Boily at paragraph 82; Chiang (Trustee of) v. Chiang, (2009) 2009 ONCA 3, 93 O.R. (3rd) 483 (C.A.) at paragraph 90.

[^3]: 2012 ONSC 2850 (“Fingold 2012”), at paragraphs 51 to 57.

[^4]: Nelson Barbados Groups v. Cox, 2010 ONSC 569 at paragraph 34.