COURT FILE NO.: CV-16-551203
DATE: 2019-09-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.E., T.M., R.M., AND T.F.
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CHILDREN’S AID SOCIETY OF TORONTO, AND DURHAM CHILDREN’S AID SOCIETY
Defendants
M.E., for herself
Scott C. Hutchison and David Postel, for the Defendants, the Children’s Aid Society of Toronto, Giovanna Asaro, and Ada Lee
HEARD: August 7, 2019
SCHABAS J.
Reasons for Decision on Contempt Motion
[1] This endorsement addresses the plaintiff M.E.’s motion for contempt brought against the Children’s Aid Society of Toronto (“CAST”), its counsel, Giovanna Asaro, and her legal assistant, Ada Lee.
[2] The motion arises out of, and overlaps with, relief sought by the plaintiff in this action, in which she is representing herself. The motion was heard at the outset of the hearing of motions for summary judgment brought by the parties. I reserved my decision on the contempt motion and proceeded to hear the summary judgment motions. My Reasons for Judgment on the summary judgment motions are released concurrently with this decision and provide a more detailed review of the background facts and context.
[3] The actions which are alleged to constitute contempt may be summarized as follows:
The CAST for transmitting portions of the plaintiff’s file to the Criminal Injuries Compensation Board (“CICB”) in 2013, which contained a Pre-disposition Report (“PDR”) prepared for a proceeding involving the plaintiff under the Young Offenders Act, R.S.C., 1985, c. Y-1 (“YOA”) in the early 1990s;
Ms. Asaro and Ms. Lee for serving the CAST statement of defence in this proceeding on or about January 16, 2018, which made reference to proceedings involving the plaintiff under the YOA; and
Ms. Asaro for failing to personally attend before the Ontario Court of Justice to obtain an order respecting the plaintiff’s youth court records.
[4] Motions for contempt are serious matters. They are quasi-criminal in nature and carry serious sanctions and ramifications for contemnors. As a result, proper procedures must be followed. The moving party must clearly state what is alleged and the allegations must be proven beyond a reasonable doubt. The Supreme Court recently summarized the purpose, underlying principles and requirements of contempt in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 31-36. I have had regard to those passages in making this decision.
[5] Dealing with the first allegation, the transmittal of a portion of the CAST file to the CICB was done at the plaintiff’s specific request. The fact that it included a copy of a PDR does not mean the CAST breached a court order, or even that a youth court record was transmitted. The file was in the possession of the CAST as the plaintiff had been a Crown ward and the CAST was, for legal purposes, the plaintiff’s parent during that time. The plaintiff has pointed to no provision which required the CAST to either destroy the PDR or not disclose it where appropriate, such as in response to a specific request from the plaintiff, and there was no court order restricting its use. Further, although the plaintiff also contends that it was improper for the CICB to have sent the file to her paralegal, the CICB is not a respondent here, and it is difficult to see how this could be a contempt in any event.
[6] In the absence of the breach of a court order, or a statutory provision providing that a breach of a statute can be prosecuted as a contempt, there is no contempt of court as a matter of law: Rogacki v. Belz (2003), 2003 CanLII 12584 (ON CA), 67 O.R. (3d) 330 (C.A.), at para. 17. Here, the plaintiff complains of disclosure of a PDR used in a youth court proceeding that was in the possession of the CAST arising from its supervision of the plaintiff. Such disclosure may or may not be in violation of a statute, but it does not violate any outstanding court order, and there is no statutory provision that says such a breach can be prosecuted as a contempt as opposed to an offence under legislation.
[7] As to the second complaint, the statement of defence necessarily made reference to facts known to the CAST relating to the plaintiff’s youth court history and the CAST’s involvement with the plaintiff while she was in CAST’s care. The plaintiff’s complaint appears to be that the statement of defence was served on her adult children, but they had been named as plaintiffs by M.E., who drafted the claim, and they had attended at least one case management conference before Justice Kristjanson. Ms. Asaro and her assistant Ms. Lee, whose role was to simply transmit the document, can hardly be faulted for serving the statement of defence on the plaintiffs. Again, there is no order breached, and the references to youth court proceedings were necessary to defend allegations raised by the plaintiff. Pleadings are also subject to privilege and litigants cannot be limited in their ability to defend themselves due to fear of being held in contempt. Further, it should be noted that the statement of defence was not filed until the court file in this matter was ordered sealed by Kristjanson J. under s. 45(8) of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“CFSA”), and s. 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), thereby limiting dissemination of any facts related to the youth court proceedings.
[8] Finally, Ms. Asaro was not ordered to attend before the Ontario Court of Justice. While the plaintiff may have understood that Ms. Asaro was to attend on the motion in the Ontario Court of Justice, Kristjanson J.’s endorsement did not make such an order. It simply noted Ms. Asaro’s agreement at the time to attend, in her capacity as counsel for the CAST. At its highest, the endorsement did not “clearly and unequivocally require” Ms. Asaro to attend, which would be required for a contempt prosecution: Gupta v. Gupta, 2016 ONSC 6506, at para. 32; Malboeuf v. Hanna, 2018 ONSC 6562, at para. 15. Quite properly, Ms. Asaro did not attend as she had sworn the affidavit for the motion.
[9] Leaving aside my findings above, I also find that there was inadequate notice to the respondents of the nature of the alleged contempt. The plaintiff failed to articulate precisely what court order was breached, or what legislative provisions provide for a finding of contempt. This is not surprising, however, as there is no order or legislation applicable in this case.
[10] It appears that the plaintiff’s real grievance is that she was unaware of the PDR being in the CAST file and is upset that it was disclosed, along with the fact that she faced youth criminal justice proceedings as a teenager. This is an issue in the action, and is addressed in my Reasons for Judgment on the summary judgment motion released together with this decision.
[11] The motion for contempt is dismissed. Should the respondents wish to seek costs, they may file submissions not exceeding three pages, not including supporting documents, within 21 days, and the plaintiff shall file responding submissions with the same restrictions within 14 days of receiving the respondents’ submissions.
Schabas J.
Released: September 23, 2019
COURT FILE NO.: CV-16-551203
DATE: 2019-09-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.E., T.M., R.M., AND T.F.
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CHILDREN’S AID SOCIETY OF TORONTO AND DURHAM CHILDREN’S AID SOCIETY
Defendants
REASONS FOR DECISION ON CONTEMPT MOTION
Schabas J.
Released: September 23, 2019