Court File and Parties

COURT FILE NO.: CV-17-567867 DATE: 2019-05-16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TARGET LUMBER & LOGGING COMPANY LLC, Plaintiff AND: SNOW ANGEL VENTURE 1 GP INC., SNOW ANGEL MANAGEMENT SERVICES INC., PETER CORBIERE, DEBORAH PAINE, GARDNER MCBRIDE AND 2394390 ONTARIO INC., Defendants

BEFORE: Sossin J.

COUNSEL: Lauren Ray, Counsel for the Plaintiff Peter Corbiere, for Himself Mark Hogan, Counsel for the Defendant, Deborah Paine

HEARD: May 13, 2019

REASONS FOR JUDGMENT and SENTENCING FOR CONTEMPT OF COURT

OVERVIEW & PROCEDURAL HISTORY

[1] The plaintiff, Target Lumber & Logging Company LLC (“Target Lumber”), brings this motion under Rule 60.11 of the Rules of Civil Procedure, R.R.O. Reg 194 (the “Rules of Civil Procedure”), for a determination that Peter Corbiere (“Corbiere”) and Deborah Paine (“Paine”) (collectively, “the defendants”) are in contempt of court and if so, to determine their sentence.

[2] Target Lumber retained the defendants to conduct due diligence on a loan agreement. When Target Lumber became aware that this work was not done, the company sought recovery of the funds it had provided to the defendants as a deposit.

[3] The defendants consented to a judgment on the claim in the amount of $89,389.01, by Order of Justice Copeland, dated February 5, 2018.

[4] Following this judgment, Target Lumber attempted to schedule examinations in aid of execution and obtain the necessary financial documents from the defendants.

[5] Corbiere was unrepresented, but purported to retain counsel on the eve of a scheduled examination in August, 2018. In order to allow time for his counsel to prepare for the examination, an adjournment was granted.

[6] Corbiere attended the rescheduled examination in October, 2018, without counsel. He failed to produce any of the documentation set out in Schedule “A” of the Notice of Examination. His failure to cooperate led to no substantive questions being asked or answered during this attendance.

[7] After fruitless attempts to complete an examination in aid of execution against the defendants, Target Lumber moved for an Order to compel the defendants attend an examination in aid of execution and to produce documents and records set out in a schedule, within 30 days. Master Abrams granted this Order on December 18, 2018 (the “Abrams Order”), indicating in the Order that “if the Defendants fail to adhere to the terms of the Order, then the Plaintiff is at liberty to seek to hold the Defendants Peter Corbiere and Deborah Paine in contempt pursuant to Rule 60.11 of the Rules of Civil Procedure.” Corbiere consented to this Order.

[8] By email correspondence on December 21, 2019, Corbiere indicated his intent to comply with the Abrams Order, and that he was in the midst of “assembling the required information,” but no production of financial documents or compliance with the Order followed.

[9] The defendants were served with the Notice of Motion for this contempt motion on January 31, 2019.

[10] The contempt motion proceeded in a bifurcated fashion. The motion to determine whether the defendants met the threshold for contempt was heard on April 3, 2019. Neither of the defendants appeared at this hearing.

[11] The test for civil contempt was articulated by the Supreme Court in Carey v. Laiken, 2015 SCC 17, at paras. 33-35:

1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
2. 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 the order compels.

[12] Each element of civil contempt must be proven beyond a reasonable doubt: Carey v. Laiken, at para. 32.

[13] In this case, the Abrams Order enclosed Schedule “A” to the Notice of Examination, which clearly and unequivocally set out the documents and records which Corbiere was required to produce and his attendance at an examination in aid of execution. These included a list of bank accounts held by the defendant companies, bank and credit card statements, corporate tax returns and notices of assessment, financial statements and other similar documentation.

[14] Corbiere attended before Master Abrams and consented to the Order, so there is no question that he had actual knowledge of the Order.

[15] Finally, the defendants failed to provide production as set out in Schedule “A” of the Notice of Examination referred to in the Abrams Order, which constitutes an intentional failure to do the act that the Order compels.

[16] At the April 3, 2019 hearing, I found that Target Lumber had demonstrated beyond a reasonable doubt that the defendants were in contempt of court for their failure to comply with the Abrams Order, as set out in my endorsement of that date.

[17] The defendants were given until May 13, 2019 to purge their contempt, at which time the sentencing portion of the motion was scheduled.

[18] Corbiere took no steps to purge his contempt prior to this hearing.

[19] Paine, on the other hand, retained counsel, provided production of some material in aid of examination and in partial compliance with the Abrams Order in advance of the May 13, 2019 hearing, and provided an account for why steps were not taken earlier to purge the contempt through a sworn affidavit, dated May 11, 2019.

[20] For this reason, the aspect of this motion relating to Paine’s contempt and sentencing was adjourned with conditions, on consent, pursuant to an endorsement of May 13, 2019.

[21] In light of the adjournment in relation to Paine’s contempt, these reasons relate only to Corbiere’s contempt.

[22] The sentencing portion of the bifurcated contempt motion against Corbiere was heard on May 13, 2019. While Corbiere attended the hearing and made submissions, he filed no affidavit or evidence in support of his position that he intended to comply with the Abrams Order.

What is the Appropriate Sentence for Corbiere’s Contempt?

[23] As Corbiere did not comply with the December 18, 2018 Order of Master Abrams, and did not purge his contempt by the hearing on May 13, 2019, I must now consider the appropriate sentence.

[24] Target Lumber seeks to have Corbiere sentenced to imprisonment for 60 days.

[25] Corbiere submits that a fine or alternative remedy is more appropriate.

[26] The common law contempt power is codified in Rule 60.11(5) of the Rules of Civil Procedure, which provides a number of options with respect to sentencing:

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.

[27] In determining an appropriate sentence for contempt, the purpose of such orders is important to reiterate. Civil contempt orders serve a dual purpose, as set out by the Ontario Court of Appeal in Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574 (“Boily”), 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: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, at 1075. The remedy for civil contempt is designed not only to enforce the rights of a private party (See: Poje v. Attorney General (B.C.), [1953] 1 S.C.R. 516 at 517; Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, at para. 37), but also to enforce the efficacy of the process of the court itself. Justice McLachlin powerfully expressed this broader purpose in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 931, stating:

[t]he rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

[28] The Court of Appeal’s decision in Boily provides, at para. 90, that the following factors are 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.

[29] The application of these factors to the sentence in this case is set out below.

Proportionality

[30] As with other forms of sentencing, a sentence for civil contempt “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Chiang (Re), 2009 ONCA 3 (“Chiang”), at para. 86.

[31] Given the contempt in this case is serious, but occurred over a relatively brief period of time (less than 4 months), and did not reflect a complete disregard for the court’s process (Corbiere himself attended the examination in aid of execution, though failing to adhere to the production Order of Master Abrams), I find this instance in the middle of the spectrum of wrongdoing in relation to contempt.

Mitigating Factors

[32] In this case, the mitigating factors are:

• Corbiere’s demonstration of a certain degree of remorse in his submissions on May 13, 2019;
• Corbiere has not contested the contempt motion and acknowledged his failure to comply with the Abrams Order in his submissions on May 13, 2019; and
• Paine’s partial compliance with the Order of Master Abrams in advance of the hearing on May 13, 2019, which includes some of the information sought from Corbiere as well.

[33] Corbiere stated that his life has fallen into chaos over the past year, culminating in the loss of his business, a number of legal actions, a period of committal and treatment at a psychiatric facility, and at least one other instance of being imprisoned for twenty days on a contempt sentence in an unrelated proceeding in another jurisdiction in Ontario.

[34] Corbiere’s indication of mental health issues could constitute a mitigating factor, but only where evidence of the medical condition is in the record, which is not the case here.

[35] While Corbiere did not file an affidavit to swear to any of these assertions, the fact of his imprisonment in April, 2019, also is referred to in Paine’s affidavit.

[36] In his submissions, Corbiere argued that his April, 2019 incarceration “woke him up” to the gravity of the contempt finding in this case, and that further incarceration is not necessary to compel compliance with the Abrams Order.

Aggravating Factors

[37] In this case, the aggravating factors are:

• Corbiere’s deliberate course of action to resist the Order of Master Abrams after giving his consent to that Order; and
• Corbiere’s deliberate pattern of failing to respond to Target Lumber or providing evasive responses.

[38] Previous contempt findings may be an aggravating factor in a contempt sentence. While Corbiere indicated he was incarcerated for 20 days in April, 2019, pursuant to a contempt sentence in an unrelated case, I do not have sufficient details of the other case or circumstances of that incarceration to conclude whether and to what extent it should be considered an additional, aggravating factor.

Deterrence and Denunciation

[39] The punishment for contempt is intended to reflect denunciation, serve as a disincentive to those who might consider breaching court orders in the future, and “repair the wound” to the legal system caused when court orders are ignored; Boily, at para. 105.

Sentences in Like Circumstances

[40] In reviewing other cases with a similar matrix of circumstances in the context of contempt sentences, I find the requested sentence of 60 days of imprisonment too severe.

[41] I am guided by the Court of Appeal’s statement in Chiang (at para. 90) that, “[o]rdinarily incarceration is a sanction of last resort.” (citing Robert J. Sharpe, Injunctions and Specific Performance, 3rd. ed. (Aurora, Ont.: Canada Law Book, 2000), at para. 6.120)

[42] The cases ordering terms of imprisonment generally involve a more repeated and serious record of non-compliance. For example, in Greenberg v. Nowack, 2015 ONSC 2015, a term of 15 days incarceration was imposed for repeated and flagrant non-compliance with court orders over an 18 month period; and in Cellupica v. Di Giulio, 2011 ONSC 1715, the Court imposed a term of 90 days incarceration on a contemnor who resisted examination in aid of execution for a judgment of over $2.5 million, and who had violated the terms of an earlier conditional sentence.

[43] A conditional sentence is also available as a potential sentence for contempt. For example, Devathasan v. Ablacksingh, 2018 ONSC 7557 (“Ablacksingh”) involved a finding of contempt against a judgment debtor subject to a judgment for $50,000.00, who resisted production of financial documents and records and attendance at an examination in aid of execution. In Ablacksingh, Justice Nishikawa imposed a conditional sentence of two months. She concluded (at para. 37):

I have determined that a conditional sentence of two months is appropriate in the circumstances. There is no question as to the court’s ability to impose a conditional sentence for contempt of court: Astley v. Verdun, 2013 ONSC 6734. This is an appropriate and proportionate sentence to reinforce the gravity of Mr. Ablacksingh’s conduct while securing his compliance with the outstanding court orders.

[44] I also have considered circumstances in which a fine has been imposed for contempt. At the hearing, Corbiere submitted that he is now earning some income. Given Corbiere’s financial position and conduct to date, however, and the judgment and costs awards which remain outstanding, I find that a fine would be unlikely to be paid, and serve little purpose in facilitating compliance.

[45] Corbiere stated that he has recently gained possession of a storage locker which he claims contains pertinent document and records to the examination in aid of execution. He asserts that he will be in a position to provide the production sought by Target Lumber in a matter of days.

[46] I reiterate that Corbiere filed no materials on this motion. As a result, none of these assertions constitute evidence in this case, nor has Target Lumber had a chance to cross-examine Corbiere or verify his claims with respect to the storage locker or new sources of income. For these reasons, I do not rely on Corbiere’s bald assertions that he intends to purge his contempt in the coming days in determining the appropriate sentence.

Reasonableness of Fine or Incarceration

[47] In this case, weighing all the sentencing factors and the circumstances of this case, I find a conditional sentence to be the appropriate sentence for Corbiere’s contempt. I find the circumstances of this case analogous to those in Ablacksingh where a similar sentence was imposed.

[48] The conditional sentence Order, in addition to the usual statutory terms, will include the following terms:

a. Corbiere will be under house arrest for sixty days. He will be required to remain in his residence except for medical appointments or medical emergencies involving himself, shopping trips to purchase groceries or other necessary items of less than two hours duration twice per week, and activities directly related to compliance with the Abrams Order in this case; b. Corbiere will report to a conditional sentence supervisor; c. Corbiere will carry a copy of the conditional sentence Order with him whenever he leaves his residence, for the duration of the conditional sentence Order; d. Corbiere will comply fully to the best of his ability with the Order of Master Abrams; and e. Corbiere will attend before me at the conclusion of the 60 days, on July 15, 2019, to determine if these conditions have been met.

[49] Corbiere will attend in person on May 17, 2019, for purposes of finalizing the Order for this conditional sentence.

COSTS

[50] Target Lumber has submitted a costs outline seeking costs of $14,529.53 on a substantial indemnity basis.

[51] In BDBC v. Cavalon Inc., 2017 ONCA 663 at para. 104, the Court of Appeal confirmed that substantial indemnity will be the appropriate scale of costs in the context of costs for a contempt motion involving serious conduct.

[52] Accordingly, I would order the costs of this contempt motion against Corbiere to be paid on a substantial indemnity basis, and I would fix those costs in the amount of $14,529.53, inclusive of all applicable taxes and disbursement.

[53] I clarify that this costs award will be paid by Corbiere to Target Lumber.

[54] A determination of any costs related to Paine, and whether the defendants are jointly and severally liable for any additional costs, will await the conclusion of that part of the contempt motion against the defendants.

[55] I will remain seized of this matter and will monitor Corbiere by means of interim appearances which may be scheduled by Target Lumber’s counsel, if necessary, or which may be scheduled by Corbiere for purposes of considering a reduction to this sentence should the contempt be purged prior to the expiry of the sentence. Any willful breaches of my Order could result in an additional period of incarceration.

Sossin J. Released: May 16, 2019