COURT FILE NO.: 2511-17

DATE: 2019/02/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DAN ANDERSSON and LEO CANADA INC., Plaintiffs

AND:

GERALDINE AQUINO (sometimes known as GERALDINE BORROMEO) and ATIF KAMRAN, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Matthew B. Lerner and Chris Hunter, for the plaintiff Mr Andersson Simon Bieber, for the plaintiff LEO Canada Inc. Lindsay Board, for the defendant Ms Aquino John Downing and Keegan Boyd, for the defendant Mr Kamran Paul Guy, for non-party Learning Enterprises Organization Limited (also known as “LEO UK”)[^1]

HEARD: August 1, 2018

ENDORSEMENT

Background

[1] The background and context of this litigation, (including earlier motions dealing with allegations of contempt on the part of both plaintiffs, the need for new and separate legal representation for each of the plaintiffs, and a successful motion by the plaintiff corporation for a finding and declaration that it had purged its contempt), were canvassed in detail in my earlier endorsements of January 31, February 5 and August 1, 2018.

[2] I accordingly will not repeat that information here.

[3] This endorsement is intended to address, (simultaneously because of the obviously overlapping issues involved), both:

a. the “penalty phase” of the defendant Mr Kamran’s contempt motion vis-à-vis Mr Andersson; and

b. the plaintiff Mr Andersson’s cross-motion for a declaration that he has purged his contempt, and setting aside of my earlier order, formally dated April 5, 2018, holding him in contempt.

[4] Summarized broadly, Mr Kamran’s position is that Mr Andersson has not purged the contempt identified in my endorsement of January 31, 2018. In particular, it is said that Mr Kamran still has not been granted access to all files, data and records of the plaintiff corporation, and that the failure in that regard stems from ongoing lack of co-operation and/or active efforts on the part of Mr Andersson to deny Mr Kamran such access. In the result, Mr Kamran requests the imposition of several penalties for contempt, including:

• an order compelling Mr Andersson’s personal attendance in court to receive an oral reprimand;
• an order requiring Mr Andersson to pay a fine of $1,000 a day, from the date of Justice Templeton’s original order to the date on which Mr Andersson purges his alleged ongoing contempt, thereby including a fine of $266,000 up until the hearing before me on August 1, 2018;
• an order compelling Mr Andersson to vote in favour of the purported “written special resolution” of shareholders, dated July 6, 2018, which Mr Kamran has circulated amongst shareholders of LEO UK; and
• an order compelling Mr Andersson to pay Mr Kamran costs of Mr Kamran’s contempt motion on a full indemnity basis.

[5] Described by way of a similarly broad summary, the position of Mr Andersson is that, since his retention of new counsel, he has worked diligently to ensure compliance with the court’s orders, despite the complexities, proprietary issues and jurisdictional challenges involved. In particular, Mr Andersson says that, through appropriate directions and the creation of new systems and accounts if and where necessary, he has done everything reasonably required by the court’s orders to accommodate Mr Kamran’s numerous requests for information pertaining to the plaintiff corporation. In the circumstances, Mr Andersson seeks:

• an order declaring that he has purged his contempt;
• an order discharging or setting aside, without further penalty, my earlier order dated April 5, 2018, (reflecting my endorsement of January 31, 2018), holding him in contempt;
• in the alternative, (if I find that Mr Andersson has not yet purged his contempt and that a sanction is warranted to ensure compliance), imposition of a suspended penalty together with directions regarding further remaining steps to be taken by Mr Andersson to purge his contempt within a reasonable period of time; and/or
• in the further alternative, (if I find that Mr Andersson has purged his contempt but an additional punishment for his earlier contempt is warranted), an order discharging or setting aside my aforesaid earlier order holding Mr Andersson in contempt, upon his payment of a fine totalling no more than $5,000.

[6] In keeping with a mounting trend in this extremely contentious and apparently well-funded litigation, the material filed by the parties in relation to those two motions, (including original and multiple supplementary motion records, cross-examination transcripts, facta, supplementary facta and multiple books of authorities), is voluminous. It fills approximately two banker boxes.

[7] While I have reviewed and considered all of that material in detail, I do not intend to canvass and address all of the parties’ evidence and arguments in minutiae here. What follows are what I consider to be the most salient points to convey my reasons for arriving at the conclusions outlined below.

Threshold observations

[8] In that regard, I think it helpful, and apparently necessary, to begin with a number of general threshold observations.

[9] I do so because, in my view, this aspect of the parties’ dispute has been pursued and argued in a manner that strayed significantly beyond the parameters of what was intended by the court’s earlier orders and endorsements.

[10] First, when those orders and endorsements were made, the only parties formally before the court were those identified in the style of cause noted above. There was no indication of any intention to involve further parties in the litigation, either as additional parties to the action, or as non-parties who might be affected by any relief requested in motions filed by the existing parties. In particular, there was no indication of any notice of motion having been formally and properly served, pursuant to Rule 37.07 of the Rules of Civil Procedure, on any non-party who might be “affected by the order sought” on any motion.

[11] Second, in my view it was or should have been abundantly clear that neither Justice Templeton nor I intended to make orders purporting to bind or affect parties other than those who were formally before the court; i.e., the immediate parties to this litigation, which in the case of the plaintiff corporation would include its directors, officers and employees, in their capacity as such persons.

[12] Third, in my view it also should have been reasonably clear that, to the extent this court was exercising jurisdiction over individuals named as parties to this litigation, the court was focused on each such individual in his or her personal capacity, or his or her capacity as a director, officer and/or shareholder of LEO Canada. Without limiting the generality of the foregoing, it was not this court’s intention to assert jurisdiction over an individual litigant in his or her capacity as the director, officer and/or shareholder of any other corporation, (including any foreign corporation), simply because the individuals in question might happen to have such additional capacities.

[13] Fourth, the intentions noted above were reflected expressly in this court’s orders and endorsements. In particular:

• Justice Templeton’s original “access” order of November 17, 2017, replicated with amendments in the order I then made on January 31, 2018, (apparently not formally entered until April 5, 2018), were specifically and expressly focused on and restricted to the provision of access to “files, data and records” of LEO Canada; i.e., files, data and records belonging to that Canadian corporation.[^2] The orders did not mandate, and never were intended to compel, the granting of access to files, data and records belonging to any other person or entity, including any other member of the “LEO group”, such as LEO UK. Again, such parties not only had no proper or formal notice of the motions leading to the relevant orders, and to the extent they were not present or carrying on business in Ontario, the making of any mandatory orders affecting the property of such non-parties, or purporting to bind their affairs, would raise obvious jurisdictional concerns.
• In paragraph 75 of my endorsement of January 31, 2018, I similarly made it clear that the court’s orders were only intended to compel access to information which putative directors and employees of LEO Canada, (including Mr Andersson), had “in their capacity as directors or employees of LEO Canada”. [Emphasis added.] When I indicated that the plaintiffs were to do “everything in their power” to ensure the access contemplated by the order, (meaning access to the files, data and records of LEO Canada), it was with that qualification very much in mind. It certainly was never my intention, (and in my view it similarly was never the intention of Justice Templeton), that the orders would be interpreted as compelling Mr Andersson to provide access to information that was available to him only in his capacity vis-à-vis corporations other than LEO Canada, including LEO UK. Once again, it seems to me that the making of any mandatory orders targeting and affecting individuals in their capacity as directors or shareholders of other corporations – and foreign corporations in particular - when the individuals in question were not formally served with pleadings or notice in that capacity, would raise similar notice and jurisdictional concerns.

[14] Fifth, in my view, the above jurisdictional constraints, and improprieties of binding non-parties without notice to orders such as the ones made by the court in this particular case, are not overcome by counsel for Mr Kamran’s suggested analogies to authorities, such as MacMillan Bloedel Ltd. v. Simpson, 1995 57 (SCC), [1995] 4 S.C.R. 725, at paragraph 31, and Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824, at paragraphs 28-29, in which the Supreme Court of Canada explained how and why a court may order injunctive relief that effectively may be binding vis-à-vis those who are not parties to an underlying lawsuit. Without limiting the generality of the foregoing:

• Again, this is not a case where the court’s existing orders were intended, expressly or implicitly, to bind those who were not parties to the lawsuit.
• In my view, there is a world of difference between issuing a prohibitive injunction, which even non-parties with notice of the order may be expected to comply, and issuing what essentially is a production order directing parties involved in litigation to produce, (in their capacity by which they are parties to that litigation), information and documentation within their possession or control. To suggest that such a production order made against a party to litigation automatically binds and compels non-parties to produce relevant information or documents which they not only possess, but also own and control, would ignore or effectively obliterate the underlying fundamental distinctions which necessitate the existence of Rule 30.10 dealing with production from non-parties, as well as the mandated procedural safeguards set forth therein. As emphasized by the provisions of that rule, production from non-parties requires a separate order specifically addressing such matters, obtained only with express leave of the court, and with such leave being granted only by way of a motion brought on notice to the affected non-party or non-parties.
• Moreover, in this particular case, even if Mr Kamran were to bring such a proper Rule 30.10 motion, on notice, vis-à-vis non-parties such as LEO UK and/or its officers, directors or related corporations, it seems to me that there still would be a need to address and overcome the obvious jurisdictional issues involved in this court making one or more mandatory orders in relation to parties which arguably lie outside its jurisdiction. This court’s inability to enforce such an order is just one such issue in that regard.

[15] Sixth, for numerous reasons, I similarly am not persuaded by arguments, advanced by counsel for Mr Kamran, that such notice and jurisdictional concerns can be brushed aside and easily overcome by reliance on Rule 30.02(4) of the Rules of Civil Procedure. In that regard:

• Rule 30.02(4) says the court “may order a party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged”.
• In my view, nothing in that rule obviates the need for notice to any party, including any particular corporation, (alleged to be a subsidiary, affiliate or other corporation under the control of any party to the litigation), which might be affected by such an order.
• Nor, in my view, does the rule address concerns that may arise when the potentially affected corporation arguably lies beyond the jurisdiction of this court.
• On the evidence before me, it seems clear there would be a serious factual dispute as to whether the preconditions of the rule apply, at least in terms of ordering the productions of documents which may be in the possession, control or power of LEO UK.[^3]

[16] Seventh, and perhaps most importantly, it seems that, in addition to misunderstandings concerning the parties and property intended to be affected by the court’s order, there also has been a fundamental misunderstanding as to the precise nature of the contempt which led me to find Mr Andersson in contempt on January 31, 2018. In particular:

• Counsel for Mr Kamran have argued these motions on the basis that Mr Andersson has not purged his contempt of court because he has failed to restore or grant the specific forms of access requested by Mr Kamran. Implicit in such arguments is an apparent assumption that the court definitely ordered that to be done.
• That simply was not the case.
• The court’s order mandating access to the corporate information of LEO Canada did not specify that such access had to be granted in any specific form or by any specific method, including any system of access that might previously have been enjoyed by Mr Kamran. To the contrary, in paragraph 75 of my endorsement of January 31, 2018, I expressly indicated that the touchstone for access to such information was not the access which Mr Andersson and/or Mr Kamran may have had in the past, and that the access to LEO Canada’s corporate information required by the court’s orders could be provided directly or indirectly. That obviously contemplated that the order was capable of satisfaction by the taking of steps to provide Mr Kamran with access to information in a form that might differ from the manner in which it previously may have been received by him.
• In any event, paragraph 70 of the same endorsement made it quite clear that the conduct of Mr Andersson upon which I grounded my finding of contempt was not the failure “to provide specific requested forms of access to Mr Kamran, for reasons which may or may not have merit”. [Emphasis added.] I instead emphasized that the behaviour which troubled me, in terms of Mr Andersson’s respect for court orders, and which made a finding of contempt a rather straightforward exercise in the circumstances, was:
  • the plaintiffs (including Mr Andersson) having “given no indication whatsoever of measures taken or planned to grant Mr Kamran access to LEO Canada’s corporate information, or what further measures might be possible in that regard”;
  • the plaintiffs having “failed entirely to provide or offer any access whatsoever” to Mr Kamran; and
  • the “complete failure” of the plaintiffs to provide Mr Kamran with access to LEO Canada’s corporate information, “as opposed to any failure to provide a specific form of access that may have been beyond the plaintiffs’ ability or control”. [Emphasis added.]
• In paragraph 72 of the same endorsement, I also emphasized that a major reason for exercising my discretion to make a formal finding of contempt was the fact I had not been presented “with evidence of any good faith actions on the part of the plaintiffs to comply, (albeit unsuccessfully or only in part), with the provisions of Justice Templeton’s order concerning Mr Kamran’s access to LEO Canada’s corporate information”. [Emphasis added.]
• I emphasize these points because, in my view, many arguments advanced on behalf of Mr Kamran were based on a fundamentally mistaken view that the court somehow had ordered the granting of specified forms of access demanded by Mr Kamran, and/or that Mr Andersson could purge his contempt only if he ensured that such forms of access were provided successfully to Mr Kamran.
• That simply was not my intent.
• Again, I made a finding of contempt because it seemed clear to me that, at the time, the plaintiffs, (i.e., Mr Andersson and LEO Canada, with the corporate plaintiff then under the exclusive control of Mr Andersson), were making no good faith efforts whatsoever to provide Mr Kamran with access to LEO Canada’s corporate information. Consistent with the coercive purpose of contempt orders, it was my hope and expectation that a finding of contempt would encourage Mr Andersson (and LEO Canada) to engage in such good faith efforts. In my view, the question of whether Mr Andersson has purged his relevant contempt must fairly be approached with the same focus.

[17] At the risk of repetition, I necessarily will be returning to some of the above observations in the course of my analysis below.

Relevance of further evidence introduced at penalty phase of contempt motion

[18] Before moving on to specific consideration of whether Mr Andersson has purged his relevant contempt, and the factors relating to determination of an appropriate penalty for that contempt, I also think it appropriate to emphasize that I am mindful of certain important restrictions on the purpose for which parties may introduce evidence at this stage of the contempt proceedings.

[19] In that regard, our courts have emphasized that the penalty phase of a contempt proceeding generally is not an opportunity for the contemnor to attempt any revisitation of the court’s earlier findings and declaration of contempt. To the contrary, the interests of justice are best served when the principle of finality is respected. A party faced with a contempt motion therefore generally is not entitled to present a partial defence at the liability stage and then, if the initial gambit fails, have a “second bite at the cherry” at the penalty stage.[^4]

[20] In particular, in circumstances in which a contemnor’s compliance with an original contempt order is impossible, the remedy generally is to appeal, not to ignore the order.[^5]

[21] In this case, further sworn evidence, (supplied by numerous affiants, including officers of LEO UK), has been tendered on behalf of Mr Andersson in relation to the penalty phase of this hearing. That affidavit material includes, inter alia, evidence describing unsuccessful efforts made by Mr Andersson in his capacity as an officer and director of LEO UK to facilitate Mr Kamran’s access to certain information systems, and how such efforts essentially were countermanded, overruled and/or otherwise effectively frustrated by actions taken by other authorities within LEO UK. Contrary to the submissions of counsel for Mr Kamran, and suggested analogies to cases such as Korea Data Systems Co. v. Chiang, 2007 12203 (ON SC), [2007] O.J. No. 1409 (S.C.J.), at paragraph 68, or A.U. v. T.C., [2018] N.S.J. No. 32 (N.S.F.C.), at paragraphs 21-22, I am satisfied that the resulting impossibility of Mr Andersson facilitating the access to systems requested by Mr Kamran, through use of the authority that Mr Andersson might have or have had in his capacity as an officer and/or director of LEO UK, is not an “impossibility” of Mr Andersson’s own making for which he should be held responsible.

[22] In any event, I do not view such evidence as an attempt by Mr Andersson to argue that he should not have been found in contempt because compliance with the court’s order was impossible. I instead view such evidence as relevant for at least the following reasons:

i. It effectively explains and emphasizes an underlying reality that the information systems targeted by Mr Kamran’s specific requests for access actually were not files, data and records “of LEO Canada”, although they may have contained information relating to LEO Canada. In other words, the evidence is relevant to establishing that the relevant systems actually were (and are) not covered by this court’s original order.

ii. It similarly explains and emphasizes that authorizing or facilitating access to such systems by Mr Kamran actually was not an ability or power Mr Andersson had in his capacity as a director, officer, employee or shareholder of LEO Canada, as opposed to any capacity he may have had vis-à-vis LEO UK, which therefore also lay beyond the intended ambit of this court’s original order.

iii. Insofar as Mr Andersson nevertheless voluntarily was willing to use the authority he had in his capacity as an officer and/or director of LEO UK to facilitate Mr Kamran’s access to the relevant systems owned and controlled directly or indirectly by LEO UK, (although this court’s order was not intended to compel or require such actions), at least until such efforts were countermanded and essentially blocked by other authorities within LEO UK, in my view such evidence is relevant to demonstrating and emphasizing Mr Andersson’s desire to do whatever he could to address this court’s finding that he was in contempt. Again, in my view, such actions were not required by this court’s order, which was intended to apply to files, data and records of LEO Canada, and to bind Mr Andersson in his capacity as a director of that corporation. However, our courts repeatedly have emphasized that any action undertaken by a contemnor to purge his or her contempt may serve as a mitigating factor in sentencing.[^6]

[23] Were it not for that view, I also would have considered, in the alternative, the court’s confirmed ability, in exceptional circumstances, to consider new facts or evidence which have come to light after an initial contempt finding has been made.[^7]

[24] In particular, even if it could be argued that this court’s order also bound Mr Andersson in his capacity as a director and officer of LEO UK, (which I do not think it did), the measures taken by other authorities within LEO UK to assert and exercise its ownership and effective control of the relevant systems, and effectively countermand and block Mr Andersson’s ability as a director and officer of LEO UK to grant Mr Kamran access to such systems, took place many months after the initial contempt hearing before me. In the particular circumstances of this case, evidence of such measures was not only highly relevant but also evidence that necessarily “came to light after the contempt finding was made”.

[25] With the above considerations in mind, I turn next to a consideration of whether Mr Andersson has purged his relevant contempt in this case.

Purging of contempt

[26] Again, I have reviewed and considered the material filed by the parties at length and carefully, but I do not intend to replicate that information in detail here. For present purposes, as far as purging of Mr Andersson’s relevant contempt is concerned, matters of particular interest and note from my perspective included the following:

• In my view, the approach taken by Mr Andersson and his new counsel towards ensuring compliance with the court’s order stands in stark contrast with the attitude on display when the matter was before me in the prelude to my finding of contempt. Without detailing all of the efforts of Mr Andersson and his new counsel, the substantial correspondence that has passed back and forth between the parties, and the developments which took place during cross-examinations, it seems to me that Mr Andersson and his counsel have worked diligently to address issues raised by my earlier endorsement and specific requests for access made by Mr Kamran and his counsel; e.g., by making reasonably prompt efforts to satisfy those exact demands, and by engaging in good faith efforts to provide reasonable alternative forms of access where specific access requested by Mr Kamran exceeded the intended scope of the court’s order and/or was beyond the ability of Mr Andersson to provide in his capacity as a director, officer or shareholder of LEO Canada. I do not think it can be fairly said that Mr Andersson and/or his counsel were dilatory in that regard. Nor am I inclined to think the matter always was a pressing concern from Mr Kamran’s perspective, given that there was an extended period, (approximately one month), when requests by Mr Andersson’s counsel for confirmation that Mr Kamran was content with Mr Andersson’s efforts to remedy his contempt went unanswered.[^8]
• Mr Kamran clearly remains unsatisfied with the access to the files, data and records he has received. Generally, however, it seems to me that Mr Kamran’s dissatisfaction in that regard stems, in large measure, from his insistence on receiving access to LEO Canada’s corporate information in specific forms, and/or through specific systems of information delivery. As noted above, Mr Kamran’s failure to receive such access was not the reason I held Mr Andersson in contempt, and Mr Kamran’s receipt of such specifically requested access was not the import of the orders made by the court. In particular, for the reasons already noted above:
  • The court’s orders were never intended to provide Mr Kamran, in a collateral fashion, with access to information extending beyond that of LEO Canada. If certain systems to which Mr Kamran desires direct access contain not only information relating to LEO Canada, but also information relating to other entities such as LEO UK and/or other LEO corporations that previously worked co-operatively in an integrated fashion, in my view it was entirely appropriate for Mr Andersson and his counsel to investigate alternatives that would provide Mr Kamran with the relevant LEO Canada information, (but no more than LEO Canada’s information), in some other indirect manner. The order mandated access to LEO Canada’s corporate information, not specific methods of that information’s delivery.
  • The court’s orders also were never intended to provide Mr Kamran with access to “files, data and records” not belonging to LEO Canada; e.g., to files, data and records actually belonging to other corporations, such as LEO UK, even if such files, data and records contain information relating to LEO UK. To the extent Mr Andersson voluntarily was willing to facilitate Mr Kamran’s access to such information by requesting co-operation from such other corporations in that regard, or by using authority and powers available to him in his capacity as an director, officer or shareholder of such other corporations, I think that was admirable, (and a demonstration of the lengths to which Mr Andersson was willing to go to purge his contempt), but not required.
  • To the extent such other corporations are not willing to share or permit sharing all or even part of their files, data and/or records with Mr Kamran, in my view there is nothing in the current orders that compels them to do so.
• Dealing with Mr Kamran’s specific requests for certain forms of desired access, and his criticism of Mr Andersson’s conduct in that regard:
  • Although Mr Kamran feels his current form of email access is not as convenient as the system he previously enjoyed in that regard, there seems to be no dispute that his email account has been reactivated. Moreover, on the evidence before me, it seems that delays in that regard were attributable more to failures on the part of Mr Kamran and/or his counsel to employ correct access procedures than to any fault on the part of Mr Andersson and/or his counsel. If anything, in my view Mr Kamran’s grudging refusal to acknowledge such realities undermines his other suggestions of nefarious intent on the part of Mr Andersson.
  • There similarly seems to be no dispute that, as early as March of 2016, Mr Andersson had given instructions to the Royal Bank of Canada, (i.e., the bank used by LEO Canada), to grant Mr Kamran signing authority on LEO Canada’s accounts, and invited Mr Kamran to follow up with the bank to finalize those arrangements. The evidence before me does not support any inference that Mr Andersson or his counsel bear responsibility for any subsequent delays in that regard.
  • As for the MIS system to which Mr Kamran seeks restored access:
    • In my view, the evidence makes it clear that the system in question may contain information relating to LEO Canada, but that it also enables access to information relating to other LEO entities, including LEO UK. That alone suggests to me that, as far as this court’s orders are concerned, the situation merits, at the least, the taking of reasonable steps to segregate information on the MIS system relating to LEO Canada and its provision to Mr Kamran in some alternative indirect manner; i.e., as opposed to his being given access to the MIS system in the same direct manner he previously may have enjoyed. The efforts undertaken by Mr Andersson and his counsel to create a customized portal in that regard were, in the circumstances, entirely reasonable.
    • I nevertheless think the evidence also makes it clear that the relevant MIS system is clearly owned, maintained and controlled LEO UK, with the assistance of its externally retained IT consultant Humanitas Meritus. In that regard, I not only prefer and accept the sworn evidence of Mr Magudia and Mr Venables in relation to such matters, but view Mr Kamran’s efforts to compel the board of LEO UK to grant him access to the MIS system, through a disputed “written special resolution” of LEO UK shareholders, as implicit recognition by Mr Kamran that the MIS system is indeed owned and controlled by LEO UK.
    • Although Mr Kamran disputes the bona fides of the account offered by Mr Andersson and Mr Magudia as to when and how the LEO UK board arrived at a decision to countermand and reverse efforts undertaken by Mr Andersson to restore Mr Kamran’s access to the MIS system, (through Mr Andersson’s use of authority to direct such access in his capacity as an officer of LEO UK), and the bona fides of the concerns and explanations offered in that regard by the LEO UK board, it seems to me such disputes are rather beside the point for present purposes. In that regard:
      • In my view, recognition of the reality that such efforts actually were countermanded by the LEO UK board, (which also instructed Mr Andersson in his capacity as an officer and director of LEO UK not to provide any such access to Mr Kamran), is implicit in Mr Kamran’s “written special resolution” efforts, effectively requesting the assistance of LEO UK shareholders to override the LEO UK board’s decision in that regard.
      • Mr Kamran asks me to ignore ostensible legalities and accept his contention that the LEO UK board is really controlled by Mr Andersson, despite apparent shareholdings and legalities governing the independent duties of directors; a position which strikes me as an ironic one to take in a lawsuit relying in large measure on precise shareholding arrangements. Mr Kamran also asks me to find that the supposed concerns of the LEO UK board in relation to granting him MIS access have no merit for a number of reasons; e.g., because he actually has not engaged in alleged improprieties or improper competition with the LEO group, and because information on the MIS system is said to be available to Mr Kamran in any event through his retained involvement with LEO UK and other LEO entities. (Like Magudia, I find such assertions hard to reconcile with Mr Kamran’s determined efforts to secure such access through this litigation). For all such reasons, Mr Kamran essentially asks me to find that the board of LEO UK is acting improperly. He also asks that I make directions whereby this court would accept and act upon the purported validity of his “written special resolution” by compelling Mr Andersson, in his capacity as a shareholder of LEO UK, to vote his shares in LEO UK in a certain fashion. In my view, however, this court properly has no business wading into a raging internal dispute between LEO UK shareholders, and/or the ongoing battles between current and former directors and officers of LEO UK. Barring some clear and compelling reason to think otherwise, (which in my view was not provided), it seems obvious that such matters fall within the bailiwick of courts in the United Kingdom. The courts of Ontario are simply not the proper battleground for addressing and resolving such serious disagreements relating to the internal workings of a UK corporation.
      • More generally, although Mr Kamran may dispute the legality or wisdom of LEO UK’s decision to deny him access to the MIS system owned and maintained by LEO UK, in my view that decision, and the resulting denial of Mr Kamran’s access to the MIS system, cannot properly be challenged in this court.
      • In any event, I note that, lthough Mr Kamran has been denied complete access to all information available on the MIS system, LEO UK apparently has co-operated in customizing Mr Kamran’s access to North American Sales Reports for the LEO group, which provides details of all transactions for the LEO Group’s North American markets. Once again, such an approach is in keeping with the intent of this court’s order to provide Mr Kamran with access only to corporate information relating to LEO Canada.
    • Beyond such realities, I am satisfied by the evidence before me that Mr Andersson himself took considerable bona fide and reasonable steps to grant Mr Kamran access to LEO Canada information on the MIS system, and access to the MIS system itself, before such access, (along with Mr Andersson’s own MIS access), was terminated by the LEO UK Board. In that regard, I am not persuaded by the implicit if not explicit suggestions that the account of events provided by Mr Andersson and Mr Magudia in that regard was some form of elaborate charade, carried out to bolster Mr Andersson’s position in this litigation. In my view, a fair reading of contemporary email exchanges and minutes of LEO UK board meetings suggests quite the opposite.
  • I do not intend to spend a great deal of further time individually considering the respective merits of Mr Kamran’s desired direct access to the SQL server, AWS account, Bitcoin wallets, Moneris and Paysafe accounts and Assembla system identified in the motion material, as the evidence in that material establishes, to my satisfaction, that they each raise concerns and realities similar to those identified above in relation to the MIS system. In that regard:
    • I am satisfied that, as originally constituted, the relevant systems each contained information beyond that relating to LEO Canada. In the circumstances, efforts to segregate and provide information to Mr Kamran relating only to LEO Canada, (e.g., by the creation of separate Bitcoin wallets for LEO Canada transactions, and similarly restricted Moneris and Paysafe accounts, which Mr Kamran apparently is now using), were reasonable and appropriate, and in keeping with the intent of this court’s order.
    • I also accept the sworn evidence tendered on behalf of Mr Andersson, (especially the evidence of Mr Venables and Mr Magudia in particular), that no one, including Mr Kamran and Ms Aquino, has ever had access to the SQL server or relevant AWS account in his or her capacity as a director, officer or employee of LEO Canada, (e.g., as opposed to the access granted to an isolated number of individuals who may have enjoyed SQL access in capacities held vis-à-vis LEO UK while also doing work for LEO Canada), and that the SQL server, AWS account and Assembla system are, in any event, also information systems owned, controlled and/or maintained directly or indirectly by LEO UK; e.g., with the AWS webhosting service maintained and managed for LEO UK by its externally retained provider Navlink. Similarly, I accept that the systems in question contain information, (such as sales and operations data for LEO UK), that extend beyond corporate information relating to LEO Canada; e.g., to include information relating to LEO UK. For reasons similar to those outlined above, it therefore seems to me that the decision to grant or withhold Mr Kamran’s access to such systems is that of LEO UK to make, and accordingly something beyond the ability of Mr Andersson to alter, (personally or in his capacity as a director, officer or shareholder of LEO Canada), or this court to question.
    • Notwithstanding such decisions, LEO UK apparently has confirmed its willingness to co-operate in providing Mr Kamran with indirect access to any information relating to LEO Canada on SQL; i.e., through requests submitted to the IT team of LEO UK, in accordance with LEO UK’s standard company practice and policy. Up until the time of the hearing before me, Mr Kamran apparently had not made any attempt to exercise such indirect access, preferring instead to insist on the direct access to which he thought he was entitled. Nor was there any evidence to suggest that Mr Kamran had made any analogous request to LEO UK, (through LEO UK’s finance or IT teams), to indirectly obtain AWS information relating to LEO Canada; e.g., to verify movement of Bitcoin. In my view, the consequences of such decisions by Mr Kamran should not be attributed to Mr Andersson, who lacks the ability, in his capacity as a director and officer of LEO Canada, to grant such access.
  • I am not persuaded, on the evidence, that there ever was a separate LEO Canada “marketing drive” – as opposed to the existence of past occasions on which Mr Kamran may have been granted access to the drive employed by LEO UK’s design team. In any event, the sworn evidence of Mr Venables indicates and confirms that LEO UK made arrangements to create a folder for Mr Kamran on the marketing drive, which Mr Kamran was then invited to access and use after his necessary taking of certain additional steps; e.g., creation of a necessary account with Netgear, (the provider of the service), and management of his credentials. Although Mr Kamran may have failed to exercise such access prior to the hearing before me, I see nothing in the evidence to suggest that was the result of anything done or not done by Mr Andersson.
• I agree with the submission of Mr Andersson’s counsel that disputes about the accuracy of LEO Canada information provided to Mr Kamran, as the result of the good faith efforts of Mr Andersson to facilitate such access, is no basis on which to refuse a finding that Mr Andersson has purged his contempt of court. Mr Andersson’s court ordered obligation was to co-operate in providing Mr Kamran with access to LEO Canada’s corporate information. Mr Andersson was not charged with a court-ordered responsibility to ensure the accuracy of all such information.
• As also noted by counsel for Mr Andersson, queries about the accuracy of any particular information received by Mr Kamran are matters which, on a go forward basis, can be pursued and investigated through the assistance of the court-appointed monitor. Such potentially never-ending inquiries and possible disputes should not be addressed by the extraordinarily serious and overly blunt instrument of a standing contempt order.
• Most importantly, it bears repeating that the relevant conduct of Mr Andersson which persuaded me to hold him in contempt was his complete failure, (at the time of the original hearing before in December of 2018), to engage in any efforts whatsoever to address, (even if such efforts were partly or entirely unsuccessful), the court’s order requiring Mr Kamran’s access to the records, data and files of LEO Canada. (That included a complete failure to make any efforts whatsoever to address Mr Kamran’s specific requests in that regard - whether or not they were meritorious.) I am more than satisfied that is not the situation which has prevailed since Mr Andersson’s retention of new counsel.

[27] Having reviewed and considered the motion material in its entirety, and the circumstances as a whole, I therefore am satisfied that Mr Andersson has purged his contempt. An order providing a declaration and confirmation in that regard accordingly should be made, as requested by Mr Andersson’s cross-motion.

Imposition of penalties for civil contempt – General principles

[28] Although Mr Andersson’s contempt may have been purged, that does not mean it never existed. Having existed, a question remains as to the penalty, if any, the court should impose in relation to that contempt.

[29] The imposition of such penalties is addressed by Rule 60.11(5) of the Rules of Civil Procedure, which reads as follows:

60.11 (5) In disposing of a motion [for a contempt order], 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.

[30] In theory, the court’s ability to “make such order as is just” to address civil contempt, pursuant to Rule 60.11(5), gives rise to a wide range of available penalties. In practice, however, the list is a relatively short one consisting of incarceration, a suspended sentence (perhaps conditional upon some act or event occurring), a fine, or no penalty – with the latter outcome usually reserved for situations where the relevant contempt has been purged.[^9]

[31] Applicable general principles governing exercise of the court’s discretion, reflected in Rule 60.11(5), include the following:

• In cases of civil contempt, (as opposed to criminal contempt), the court’s emphasis is less about punishment and more about coercion; i.e., attempting to obtain compliance with the court’s order, and corresponding societal respect for the courts.[^10] A remedy for civil contempt therefore primarily should be designed not only to enforce the rights of a private party, but also to enforce the efficacy of the process of the court itself.[^11]
• Punishment nevertheless has been recognized as a secondary purpose underlying sentencing for civil contempt. In other words, the effectively dual purpose of contempt orders is to compel obedience and punish disobedience. In particular, punishment serves to denounce conduct that requires denouncing and thereby deter the contemnor and others more generally who might contemplate breaches of court orders at will.[^12]
• Because civil contempt “bears the imprint of the criminal law”,[^13] aspects of its application are analogous or similar to those applied in the criminal law context. In particular, civil contempt must not only be made out to the criminal standard of proof beyond a reasonable doubt, but a person found in contempt may be committed to jail or face any other sanction available for a criminal offence.[^14]
• Similarly, general substantive principles governing determination of sentence in the criminal law context, including those found in ss.718, 718.1, 718.2 and 724(3) of the Criminal Code, R.S.C. 1985, c.C-46, are applied by way of analogy when determining the appropriate penalty (if any) to be imposed for civil contempt. For example, factors considered by the court include the following:
  • the proportionality of the sentence to the wrongdoing, (i.e., such that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender), bearing in mind that the relevant conduct being sanctioned is the wilful disregard of the court’s authority, and that the court accordingly must assess the seriousness of the relevant disrespect of the court rather than the severity of any resulting harm to other litigants;[^15]
  • the presence of aggravating factors;
  • the presence of mitigating factors;
  • denunciation and deterrence, (i.e., such that the sentence denounces unlawful conduct, promotes a sense of responsibility in the contemnor, and deters the contemnor and others from defying court orders);
  • the similarity of sentences imposed in like circumstances; and
  • the reasonableness of incarceration or a fine.[^16]
• However, appellate authority also has emphasized that deterrence, both specific and general, is the most important objective of a contempt penalty. A penalty imposed in response to conduct that defies the authority of the court must be sufficient, having regard to the particular context, to deter those involved and other similarly situated individuals from like conduct.[^17]
• Courts dealing with civil contempt also adopt, by way of analogy, certain procedural and evidentiary principles applied in relation to sentencing in the criminal law context, such as those referenced in s.724(3) of the Criminal Code, supra. In particular:
  • a party alleging the existence of any aggravating fact said to warrant imposition of a more serious penalty for civil contempt must establish the existence of that fact by proof beyond a reasonable doubt; whereas
  • a party found in contempt of court has the onus of proving any mitigating fact, (such as purging of the relevant contempt), on a balance of probabilities.[^18]
• As noted above, one possible penalty for civil contempt is incarceration – either immediate or by way of a suspended sentence conditional upon some act or event occurring. However:
  • Reflecting the general tendency of Canadian courts to be lenient in relation to such matters, custodial sentences for civil contempt are rare, and lengthy custodial sentences for civil contempt are rarer still.[^19]
  • Ordinarily, a finding of contempt, together with a fine or some other order in relation to the civil litigation, without incarceration, is sufficient to gain compliance and restore the authority of the court. Incarceration ordinarily is a sanction of last resort.[^20]
  • In particular, incarceration generally should be imposed only in cases of serious deliberate disobedience, (e.g., repeated breaches of a restraining order, a wilful flagrant breach of an order that shows callous disregard for the court’s authority or active public defiance), violence, or wilful interference with the course of justice.[^21]
  • Because incarceration for civil contempt is ordinarily a penalty of last resort, the court must always consider whether any other penalty short of incarceration would be a sufficient sanction for the gravity of the contempt, taking into consideration the sentencing principles applicable to civil contempt.[^22] In other words, incarceration generally is reasonable only where no other less restrictive sanction is appropriate.[^23]
  • Where a contemnor has purged his or her contempt, there usually is no longer any need or justification for incarceration.[^24]
• As noted above, another possible penalty for civil contempt of court is imposition of a fine. In that regard:
  • As a further reflection of the general tendency of Canadian courts to be lenient in relation to such matters, fines imposed on individuals for civil contempt have remained low, (e.g., in the range of $1,500 and $5,000), even in cases where contempt has involved the loss or misuse of substantial amounts of money.[^25]
  • Significant fines for civil contempt, (e.g., in the range of $50,000), have been imposed only in particularly egregious cases and/or where the contemptuous conduct was motivated by personal gain.[^26]
  • The few instances in which fines have been imposed at $100,000 or higher have been against unions with large memberships, (where the impact of such a fine effectively is absorbed by many individuals), or against large corporations in particularly egregious circumstances. Even in the latter type of cases, fines imposed on individual corporate directors involved in the relevant contempt have notably tended to be no more than $10,000.[^27]
  • Although some recent decisions have indicated a willingness of courts to consider imposition of more substantial penalties for contempt, such cases normally involve situations where there has been a lengthy course of disobedience and the contemnors have not purged their contempt.[^28]
  • If the court is inclined to impose a fine as a fit sentence for contempt, one important factor in that fine’s quantification is consideration of the particular contemnor’s ability to pay, lest the amount be trivial or unduly punitive vis-à-vis that particular contemnor. In any event, fines should never be imposed above an amount necessary to reflect the public interest in the matter.[^29]
  • Fines for civil contempt ordinarily are remitted to the province – and, in Ontario, should be paid to the Provincial Treasurer. Although the court may in certain circumstances have discretion to order that such fines be paid to others, public policy generally militates against awarding the payment of contempt fines to opposing litigants. As noted above, contempt is an offence against the authority of the court and the administration of justice, and it must not appear to function as a civil action in tort or contract.[^30]
• In the end, the overriding principle governing sentencing, in relation to civil contempt, is that the sentence imposed must be reasonable, having regard to the particular circumstances of the case.[^31]

[32] With the above principles in mind, I turn to their application in this particular case.

Determination of penalty for Mr Andersson’s contempt

[33] In determining what penalty (if any) to impose on Mr Andersson for his previous and now purged civil contempt, my considerations have included the following:

a. In relation to “proportionality”, (i.e., the fundamental principle that requires a punishment to “fit” the wrongdoing, in the sense of being commensurate with the gravity of the offence), in my view the severity of Mr Andersson’s relevant contempt falls at the lower end of the scale when compared to the contempt displayed in many of the other cases to which I have been referred. In that regard:

• The mere finding of contempt carries with it an inherent recognition that the conduct of the contemnor was deliberate and wilful. Contempt nevertheless can reflect degrees of wrongdoing, such that not every instance of contempt is equally blameworthy. Although all are serious, some are more serious than others.[^32]
• While Mr Andersson failed to act in compliance with the court’s original order, that failure was not coupled with any overt, aggressive or public indications of intention to defy the court’s authority, or otherwise voice disrespect for the court.
• In my view, Mr Andersson’s failure to act in compliance with the court’s original order was relatively short-lived. In particular, while he did not comply with the original court order made in late November of 2017, he seems to have embarked on active measures to comply with that order as soon as possible, (and certainly by March of 2018), following the release of my rulings in late January and early February of 2018 and his retention of new counsel shortly thereafter. Contrary to the submissions of counsel for Mr Kamran, I find this was not, in relative terms, a case of unremitting or prolonged intransigence on the part of the contemnor.
• Nor is this a case involving a contemnor who acted covertly to avoid compliance with a known court order, in the hopes of simply “getting away with” undetected contemptuous behaviour; i.e., conduct indicative of intentional wrongdoing. Mr Andersson’s failures and refusals were overt and openly communicated by his then lawyers of record. While that is certainly no excuse for his conduct, it does suggest to me that his relevant contempt of court, (in contrast to the acts and failures which constituted that contempt), was not intentional.

b. In relation to aggravating factors:

• The relevant contempt of Mr Andersson inherently did not consist of a single specific act or failure, but a more general failure to take any actions whatsoever to facilitate Mr Kamran’s access to files, data and records of LEO Canada.
• In my view, this particular case of contempt nevertheless lacks many of the aggravating factors seen in many other cases, such as protracted intransigence, proactive obstructionist tactics, intentionally flagrant violation of a court order, and/or any evidence confirming that the relevant contempt was motivated by illicit financial gain or “the lure of lucre”.[^33] The relevant contempt of Mr Andersson was more passive in nature. Moreover, the relevant contempt of court seems to have attracted no publicity, and in my view there is no evidence to confirm that the conduct has resulted in any financial harm to others. Furthermore, as noted above, while Mr Andersson’s earlier failures may have been deliberate and intentional, there is reason to believe that his effective violation of the relevant court order was not.

c. In relation to mitigating factors:

• I note that Mr Andersson has made no express apology or indication of remorse for his contemptuous behaviour; actions which ordinarily might be considered mitigating factors.[^34] Indeed, as emphasized by counsel for Mr Kamran, no affidavit sworn by Mr Andersson was filed in relation to this aspect of the proceedings. Having said that, I do have Mr Andersson’s earlier sworn affidavit emphasizing that he takes allegations of contempt of court very seriously, and the steps taken to purge his contempt following his retention of new counsel would seem to support that.
• There was no evidence before to me to suggest that Mr Andersson has ever defied any court order in the past. To the contrary, it was emphasized in submissions that Mr Andersson essentially is a first time offender in that regard. As in the criminal law context, that must be regarded as a significant mitigating factor.[^35]
• While this case is replete with allegations, suspicions, speculation and innuendo concerning supposed nefarious purposes of all concerned, in my view there was no evidence before me to substantiate any suggestion that Mr Andersson’s relevant contempt of court resulted in any monetary gain for Mr Andersson or monetary harm to the defendants.
• While not an excuse for his initial failure to comply with Justice Templeton’s order, I think it reasonable to infer that Mr Andersson was in large measure being guided at the time by legal advice received from his previous lawyers; lawyers who, (for the reasons outlined in my endorsement of February 5, 2018), regrettably had allowed themselves to adopt an overtly partisan role in circumstances where their own actions and advice were at issue in the underlying dispute. I think it noteworthy and telling that, as soon as Mr Andersson retained more objective counsel with no prior involvement or partisan interest in the matter, and no apparent conflict of interest concerns, he and his new counsel embarked on immediate steps to comply with the court’s orders.
• For the reasons outlined above, I have found that Mr Andersson succeeded in purging his relevant contempt; a consideration which our courts always regard as a significant and important mitigating factor.[^36]

d. As far as denunciation and deterrence are concerned:

• All contempt of court is inherently reprehensible conduct, and merits denunciation. However, for the reasons outlined above, in my view the seriousness of Mr Andersson’s misconduct falls on the lower end of the scale, in turn suggesting that, in contrast to more serious cases of contempt, this case merits a lower degree of corresponding denunciation.
• In relation to specific deterrence:
  • I am satisfied, (by the steps taken by Mr Andersson and his new counsel to address and purge his contempt), that these proceedings have brought home, to Mr Andersson, the seriousness of compliance with court orders.
  • That message has been buttressed, I think, by Mr Andersson having to confront the reality that a party in contempt – even one seeking injunctive relief on an urgent basis – is not permitted to request substantive relief from the court while such contempt remains outstanding. The general rule is that a party in contempt will not even be heard in the substantive proceedings until his contempt has been purged.[^37]
  • With the ongoing assistance of his new counsel, Mr Andersson seems very unlikely to engage in any further contemptuous behaviour. In my view, further specific deterrence is not required in the circumstances.
• As for general deterrence, there was little or no evidence to suggest that this litigation or Mr Andersson’s civil contempt has received any publicity, or come to the attention of anyone outside the LEO group of companies. Moreover, even if Mr Andersson’s contempt has come to the attention of others, a party who recognizes the error of disobedience and acts on it, (as Mr Andersson effectively has done in this case), also signals, to society at large, respect for court orders. Having said all that, judicial decisions such as this obviously are reported, and are frequently weighed in the balance by those considering the ramifications of possible disobedience in relation to court orders. I also am mindful of the reality that all those involved in or affected by this particular contentious litigation – still in its relatively nascent stages - need to know that past and future orders of the court need to be taken seriously. That too militates in favour of a penalty that promotes some measure of general deterrence.

e. In relation to similarity of sentences:

• A sentence should not reflect a marked departure from those imposed in like circumstances.[^38]
• Unfortunately, compared to sentencing decisions in the criminal law context, reported and unreported decisions in the area of sentencing for civil contempt are relatively scarce.[^39]
• Moreover, as our courts repeatedly have emphasized that instances of civil contempt and corresponding sentences are “notoriously fact specific”[^40], I am inclined to think, as the Supreme Court of Canada has emphasized in the criminal law context, that the search for a single appropriate sentence for a similar offender and a similar offence frequently will be a fruitless exercise or academic abstraction.[^41]
• As noted above, our Court of Appeal nevertheless helpfully has indicated generally that incarceration for civil contempt is rare, (and usually imposed only in relation to particularly egregious conduct), and that fines imposed on individuals for civil contempt generally have remained in the relatively low range of $1,000 to $5,000, with higher fines reserved for exceptional and particularly egregious conduct, (or conduct motivated by personal gain), with “six figure” fines being reserved for large labour unions or corporations. Some of the more striking examples in that regard include the following:
  • Our Court of Appeal’s decision in SNC-Lavalin Profac Inc. v. Sankar, supra, (a case involving a married couple’s deliberate and repeated breaches of a Mareva injunction involving improper appropriation and/or transfer of funds exceeding $400,000), in which the appellate court found that a fine for contempt of $150,000 imposed by the motion judge was inappropriate, (as there was no identified public interest justifying the imposition of such a large fine), and substituted a fine of $10,000 jointly payable by the two contemnors.
  • Our Court of Appeal’s decision in Boily v. Carleton Condominium Corp. 145, supra, to impose fines of $7,500 on individual contemnors in the “unique circumstances” of that case; i.e., where the directors of a condominium complex were not motivated by personal gain, but engaged in unremitting intransigence and open defiance of a court order, and refused to obtain legal advice until the eleventh hour, believing they knew best and were doing what was necessary.
  • The Manitoba Court of Appeal’s decision in Apotex v. Fermentation Inc. v. Novopharm Ltd., 1998 4886 (MB CA), [1998] M.J. No. 297 (C.A.), cited with apparent approval by our Court of Appeal in Boily v. Carleton Condominium Corp. 145, supra, at paragraph 109, reducing fines imposed at first instance on individual directors to no more than $10,000, in a patent infringement case where the defendant corporation and its directors, in a deliberate, wilful and carefully calculated manner, to secure millions of dollars in profit, had engaged in planned and sustained clandestine conduct to circumvent court orders preventing the corporate defendant’s continued sale of various drugs developed with technology and research wrongfully appropriated from the plaintiff.
• Having regard to such authorities, I reject categorically the exorbitant monetary fine suggested by counsel for Mr Kamran. In my view, such an outcome would be grossly inconsistent with the level of fines Canadian courts ordinarily impose on individual contemnors.
• If there is a fine for civil contempt to be imposed on Mr Andersson, for contempt on the lower end of seriousness, (for the reasons outlined above), and which now has been purged, in my view it should not exceed the range of $1,000 to $7,500.

f. As far as the reasonableness of incarceration or a fine:

• Mr Kamran did not seek an order incarcerating Mr Andersson for his civil contempt. However, as I indicated during the course of oral submissions, I independently was and am of the view that this is not one of those rare cases of civil contempt where it would be reasonable to impose any sentence of incarceration, even for a short period. Again, in my view:
  • the seriousness of the contemptuous behaviour in this case was at the lower end of the scale; and
  • as Mr Andersson has purged his contempt, there is no longer non-compliance with the court order as far as he is concerned, and the court’s authority in that regard has been restored.
• If there is to be any penalty imposed on Mr Andersson for his civil contempt, as between the possibilities of incarceration or a fine, the circumstances therefore suggest that imposition of a fine would be far more reasonable.

[34] With the above considerations in mind, I turn finally to precise determination of an appropriate penalty, (if any), for Mr Andersson’s contempt in the particular circumstances of this case.

[35] Again, I independently do not view incarceration as a sensible or appropriate option.

[36] Although Mr Kamran formally requested an order compelling Mr Andersson to attend personally before this court to “receive an oral reprimand”, (as part of the sentence to be imposed for Mr Andersson’s contempt), in my view such measures are neither necessary nor appropriate. Without limiting the generality of the foregoing:

• As noted above, the primary purpose of sentencing for contempt is to promote compliance, with a secondary purpose of punishment to further the goals of specific and general deterrence.
• The purpose of such sentencing is not humiliation. To the contrary, the Canadian Judicial Council and appellate authority have emphasized that care must be taken to ensure that the disposition of contempt proceedings does not appear to be bullying or vengeful.[^42]
• In the few reported instances where contemnors have been ordered to appear personally before the court for the purpose of sentencing, (in circumstances not involving incarceration), courts apparently were focused on contempt that had not yet been purged and/or situations where there were no indications that the contemnor was “on the road” to full compliance.[^43]
• In cases involving penalties for purged civil contempt falling short of incarceration, the court is perfectly capable of expressing denunciation for civil contempt through its written decisions. In today’s world of limited and increasingly over-stretched judicial resources, valuable court time should not be squandered on unnecessary hearings to have the court say aloud what can be read – especially in relation to a contemnor who has purged his or her contempt.

[37] Mr Kamran also requested an order compelling Mr Andersson to vote in favour of the purported “written special resolution” of shareholders, dated July 6, 2018, which Mr Kamran has circulated amongst shareholders of LEO UK. (Amongst other things, the resolution calls on LEO UK’s board of directors to take whatever steps are necessary to restore MIS access to Mr Andersson and Mr Kamran, and to “retract any instructions the LEO UK board may have given to Mr Andersson that would require him to act in a manner that is contrary to orders made by the court in Canada”.) I have no intention of making such an order, for reasons related to the threshold observations noted above. Without limiting the generality of the foregoing, and at the risk of repetition:

• In my view, Mr Andersson is before this court personally and in his capacity as a director, officer and/or shareholder of LEO Canada. He is not a party to this litigation in his capacity as a director, officer and/or shareholder of LEO UK.
• I think it clear that neither Justice Templeton nor I intended the earlier orders of this court to bind or govern the exercise of Mr Andersson’s authority or powers as a director, officer and/or shareholder of LEO UK.
• Similarly, I think it clear that nothing in the proceedings or orders to date involved any exercise or assertion of jurisdiction over LEO UK itself. That corporation is not a party to these proceedings, and to my knowledge it has not been formally served with any notice of these proceedings. Moreover, at present, I think there is every reason to believe that this court lacks a defensible basis for asserting jurisdiction over LEO UK. Not only is LEO UK self-evidently an entity incorporated and based in the United Kingdom, but in my view there is no evidence before me to suggest that it carries on business in Ontario. To the contrary, the evidence before this court strongly suggests that, instead of LEO UK itself expanding its operations into this jurisdiction, LEO Canada was created for the purpose of carrying on a similar business here.
• The evidence before me, (particularly that set forth in the sworn affidavit of Mr Magudia), indicates that the propriety and validity of the aforesaid “written special resolution” of shareholders circulated by Mr Kamran on July 6, 2018, was very much in dispute at the time of the hearing before me on August 1, 2018. In particular, LEO UK’s board of directors, (a majority of whom have concerns about Mr Kamran having complete and full access to information such as LEO UK’s MIS system, and oppose the granting of such access), has taken the position that the purported “written special resolution” of shareholders is invalid because it was not circulated by LEO UK, as required by the Companies Act 2006 (c.46); i.e., an Act of the United Kingdom Parliament. Sternly worded letters before action have been exchanged between English solicitors representing LEO UK and English solicitors representing Mr Kamran. The former demanded that the resolution be withdrawn, failing which orders would be sought from the courts of the United Kingdom.
• In my view, resolution of such internal workings and disputes of LEO UK are almost certainly matters for the courts of the United Kingdom to resolve, as a matter of proper jurisdiction and/or forum conveniens. They are not matters for this court to decide, expressly or implicitly; i.e., by suggesting that this court accepts that a valid “written special resolution” has been circulated to shareholders of LEO UK, in respect of which Mr Andersson should be compelled to cast a vote in his capacity as a shareholder of LEO UK.

[38] That leaves, for consideration, (apart from cost issues), the possibility of a fine, (also requested by Mr Kamran), and the possibility of what essentially would be an absolute discharge, (requested by Mr Andersson).

[39] In my view, it would not be appropriate in the particular circumstances of this case to deal with Mr Andersson’s purged contempt by way of an absolute discharge; i.e., by imposing no penalty at all beyond the court’s earlier finding of contempt. In that regard:

• I readily acknowledge that such an outcome lies within the range of my sentencing discretion. In particular, in numerous cases where a contemnor has purged his or her contempt, courts have concluded that a finding of contempt may be a sufficient penalty without imposition of any further penalty.[^44] Indeed, such an approach has been taken even in cases where a contemnor’s compliance has been “grudging, tardy and barely adequate”.[^45]
• However, I also am inclined to agree with the view that, in many other cases, the primary purpose of specific and general deterrence underlying sentencing for civil contempt is “not achieved merely by the act of getting caught”; i.e., that simple purging of the contempt may not be an adequate punishment.[^46]
• Moreover, in this particular case, I am very mindful of the reality that the parties in this highly contentious, well-funded and high stakes litigation are still mired in the relatively early stages of what promises to be a lengthy and combative road to a negotiated or court-ordered final resolution of their dispute. All parties travelling that road already have been subjected to court orders and/or confirmed undertakings. It seems more than likely that there will be further orders down that road requiring party compliance. In such circumstances, I do not think it would be salutary, in terms of deterrence, to allow an instance of confirmed civil contempt, (albeit contempt which has since been purged), to pass without some measure of additional penalty beyond the mere finding of contempt. In my view, something further is required to send an appropriate message, to all concerned, about the need to make every reasonable effort to comply promptly with all court orders as the matter moves forward.
• Having regard to all the circumstances, in my view some level of fine therefore is necessary to achieve the objectives of sentencing, defend the integrity of this court’s orders, and deter any similar conduct in the future by Mr Andersson or others – especially if all concerned realize, (as they should), that penalties for any future contempt in this litigation are likely to increase in severity after such a “warning shot” has been delivered.

[40] As for the quantum of such a fine:

• As noted above, the ability of a contemnor to pay a fine is a crucial consideration in determining its appropriate quantum.
• I have not been given any specific details of Mr Andersson’s income and expenses, or the value of his assets and liabilities.
• However, given the extent of his apparent shareholdings in LEO corporations in various nations around the world, and the success which the LEO group of companies seems to have enjoyed, I think it rather safe to assume that a fine in the upper range of those usually imposed on individual contemnors in this jurisdiction would not be crushing from Mr Andersson’s perspective.

[41] It has been said many times, and in many different ways, that sentencing is an art rather than a science.

[42] Having reviewed and considered the motion material in its entirety, and the general principles and considerations outlined above, I am satisfied that, having regard to the particular circumstances of this case, justice will be done if the appropriate “penalty” to be imposed pursuant to Rule 60.11, in relation to Mr Andersson’s purged contempt, is a fine of $5,000.00, payable to the Provincial Treasurer.

Mr Andersson’s cross-motion

[43] As noted at the outset, Mr Andersson’s cross-motion also seeks an order discharging or setting aside my order dated and entered April 5, 2018, insofar as it declared that Mr Andersson was in contempt of court.

[44] Formally, the latter relief essentially is brought pursuant to Rule 60.11(8) of the Rules of Civil Procedure, which reads as follows:

60.11 (8) On motion, a judge may discharge, set aside, vary or give directions in respect of an order under subrule (5) or (6) and may grant such other relief and make such other order as is just.

[45] Having made the aforesaid orders pursuant to Rule 60.11(5), including a finding/declaration that Mr Andersson has purged his contempt, I think it just and appropriate to grant the further relief he has requested. In particular, a further order shall go indicating that, upon confirmed payment of the fine noted above, my earlier order finding Mr Andersson in contempt shall be set aside.

Substantive conclusions

[46] Drawing together the relief I intend to grant, for the reasons outlined above, a combined order shall go whereby:

i. This court orders and declares that Dan Andersson has purged and discharged the findings of contempt made by this court on January 31, 2018;

ii. This court orders that the penalty for the previous civil contempt of Dan Andersson shall be a fine of $5,000.00, payable to the Provincial Treasurer for Ontario; and

iii. This court orders and declares that, upon payment of the aforesaid fine, and the service and filing of proof that the said fine has been paid, the order herein dated and entered on April 5, 2018, shall forthwith be set aside insofar as it found and declared Dan Andersson to be in contempt of court.

[47] A formal order shall issue accordingly. If there is any dispute as to the precise wording of the substantive provisions of that order, the parties may submit competing draft orders by rota basket for my consideration.

Costs

[48] Because of time constraints during the hearing before me on August 1, 2018, and the fact that my decision was reserved, the parties did not have a full opportunity to make cost submissions having regard to the substantive outcomes of the penalty phase of Mr Kamran’s contempt motion, and Mr Andersson’s cross-motion for orders declaring he had purged his contempt and setting aside my earlier order in that regard.

[49] I certainly was not presented with any material or information that would assist in the quantification of any such costs.

[50] Subject to submissions from counsel, my preliminary observations in relation to costs of the motions are as follows:

• As emphasized by counsel for Mr Kamran, courts frequently have adopted a practice of ordinarily awarding substantial indemnity or something approaching complete indemnity costs to a successful applicant in a civil contempt proceeding, on the sensible basis that contempt of court inherently is reprehensible conduct, and a person who obtains an order from the court is entitled to have it obeyed without further expense to himself or herself.[^47] Such an approach generally has been regarded as “the rule, not the exception”.[^48] Having said that, other authority has emphasized that an award of substantial or complete indemnity costs is not automatic in such cases, but in fact requires a more nuanced analysis; e.g., awarding costs at an elevated scale only if the contempt itself or the conduct of the contempt trial evinces a deliberate attempt at frustrating the court’s order, and after an examination of what is fair and reasonable in the circumstances, bearing in mind the reality that the court is still mandated to consider all factors set forth in Rule 57.01 of the Rules of Civil Procedure when exercising its discretion regarding costs.[^49]
• Moreover, numerous decisions have emphasized that awards of substantial or complete indemnity costs do not mean that the successful party can claim whatever costs may have been charged to him or her by his or her solicitors for work done on the matter.[^50] As I had occasion to observe in Aker Biomarine AS v. KGK Synergize Inc., [2014] O.J. No. 968, at paragraphs 30-31, a court’s willingness to provide a litigant with “full indemnity” for his or her reasonable litigation expense must not be construed as a “blank cheque” that will necessarily ensure recovery of all fees and disbursements voluntarily incurred in dealing with a particular step in the litigation, regardless of whether the chosen litigation measures were reasonable and proportionate. In other words, costs awarded on a substantial or complete indemnity basis are still subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont.Div.Ct.).
• Furthermore, I think it needs to be emphasized that Mr Kamran was not successful in relation to all aspects of his contempt motion. Most noticeably, while Mr Kamran certainly succeeded in having Mr Andersson noted in contempt:
  • Mr Kamran was not successful in his later efforts to oppose a finding that Mr Andersson had purged his contempt by the time of the penalty phase of the contempt motion;
  • While Mr Kamran succeeded in his general request to have Mr Andersson subjected to a penalty beyond a mere finding of contempt, Mr Kamran was not successful in his efforts to:
    • secure an order forcing Mr Andersson to appear personally in court to receive an oral reprimand; or
    • secure an order requiring Mr Andersson to pay a fine or fines coming anywhere near the grossly excessive amounts proposed by Mr Kamran; and
  • Mr Kamran was not successful in his efforts to oppose setting aside of my earlier order, dated April 5, 2018, holding Mr Andersson in contempt.
• Viewed from a different perspective, Mr Andersson enjoyed a significant measure of success in respect of which he arguably would be entitled to a measure of costs. In particular:
  • Mr Andersson was successful in opposing aspects of the relief sought by Mr Kamran in the penalty phase of Mr Kamran’s contempt motion; e.g., by demonstrating to my satisfaction that he had indeed purged his contempt, and by restricting the quantum of the fine I imposed to an amount of $5,000 – i.e., the amount suggested by Mr Andersson as an alternative to an absolute discharge if I felt that some penalty for his past contempt was required in the circumstances; and
  • Mr Andersson was entirely successful in relation to his cross-motion, which was opposed by Mr Kamran.
• In the result, (and leaving aside the possible implications of settlement offers, in respect of which I currently have no information), while Mr Kamran arguably would be entitled to costs in relation to the liability phase of his contempt motion, (subject to the over-riding constraints of reasonableness noted above), Mr Andersson arguably would be entitled to costs of the penalty phase of Mr Kamran’s contempt motion and the costs of Mr Andersson’s cross-motion.
• As for the extent to which such costs might offset each other:
  • For the reasons noted above, Mr Kamran likely would be entitled to his costs on a substantial or full indemnity basis in respect of the liability phase of his contempt motion.
  • Mr Andersson likely would be entitled to his costs only on a partial indemnity basis. In particular:
    • Although the court has a broad discretion in relation to costs, confirmed by s.131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as expanded by Rule 57.01 of the Rules of Civil Procedure, our appellate courts repeatedly have emphasized that awards of costs on a partial indemnity basis generally strike the proper balance as to the burden of costs that should be borne by the “winner”, and that elevated cost awards should be reserved for “rare and most exceptional” cases.[^51]
    • The sort of conduct meriting elevated cost awards has been described in various ways. For example:
      • In Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p.134, McLachlin J. indicated that elevated cost awards are warranted “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”.
      • In Mortimer v. Cameron (1994), 1994 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), and McBride Metal Fabricating Corp. v. H&W Sales Co. (2002), 2002 41899 (ON CA), 59 O.R. (3d) 97, whose principles were echoed and emphasized again by the Court of Appeal in Davies v. Clarington, 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.), conduct warranting elevated cost awards was described as “reprehensible”, “egregious”, or “acts that clearly indicated an abuse of process”, justifying enhanced costs as a form of chastisement.
    • In this case, while the conduct of Mr Andersson resulting in my “liability” finding of contempt was inherently reprehensible, (thereby normally warranting an award of related costs on a substantial or complete indemnity basis for the reasons outlined above), my preliminary view is that no conduct of Mr Kamran, in relation to the relevant motions, warrants an award of costs on an elevated scale.
    • As for the extent to which the likely cost entitlements of Mr Kamran and Mr Andersson might offset each other, (and I currently have no information whatsoever concerning the possible quantum of such costs), I make the broad observation that, while costs which may be awarded to Mr Kamran in relation to the liability phase of the contempt motion probably would be awarded on a higher scale, the costs which may be awarded to Mr Andersson, although probably awarded on a lower scale, seem related to matters in respect of which the parties devoted more effort.

[51] It is always preferable for parties to discuss and agree on cost resolutions acceptable to all concerned.

[52] However, if the parties are unable to reach an agreement on entitlement and/or quantum in relation to outstanding cost issues relating to Mr Kamran’s contempt motion and Mr Andersson’s cross-motion in that regard, the parties may serve and file written cost submissions, not to exceed ten pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within three weeks of the release of this decision.

[53] If no written cost submissions are received within three weeks of the release of this decision, there shall be no costs awarded in relation to those two motions.

“Justice I.F. Leach”

Justice I.F. Leach

Date: February 5, 2019

[^1]: When the particular matters described below came on for hearing before me on August 1, 2018, counsel for Learning Enterprises Organization Limited, (a British corporation informally described by the parties and therefore in my earlier endorsements as “LEO UK”), sought permission to address the court and file a relatively brief factum. In that regard, it was emphasized that LEO UK was not seeking to be made a party to the proceedings; e.g., by the granting of leave conferring formal status as an intervening party pursuant to Rule 13.01 of the Rules of Civil Procedure. It nevertheless wished to convey mounting concern that this court effectively was being asked to grant relief relating to the property and internal corporate affairs of LEO UK, (i.e., to grant relief without notice against a non-party, which lay beyond the proper jurisdiction of this court in any event), and that earlier orders made by this court were being interpreted by some as having already granted such relief. In the circumstances, I granted counsel for LEO UK leave to participate in the hearing on a limited basis, in the manner requested. Although counsel asked me to exercise my inherent jurisdiction in that regard, I think the situation more properly and clearly should be treated as my having granted leave pursuant to Rule 13.02 of the Rules of Civil Procedure; i.e., permitting LEO UK to participate in the hearing on a limited basis, as a friend of the court, to render assistance by way of argument without becoming a party to the proceeding. Formal affidavit evidence from LEO UK personnel, (prepared by such personnel with the assistance of counsel for LEO UK), nevertheless also was tendered by Mr Andersson, as part of his motion material. [^2]: The first operative paragraph of each order contains the following wording: “Andersson and Kamran will jointly operate LEO Canada on a day-to-day basis, which includes access by both Andersson and Kamran to all LEO Canada files, data and records, both electronic and otherwise…” [Emphasis added.] My endorsement of January 31, 2018, similarly makes repeated reference to LEO Canada’s files, date and records, and the granting of access to the corporate information of LEO Canada. See, for example, paragraphs 68, 70, 71 and 72 of my endorsement. [^3]: In particular, as noted in my endorsement of January 31, 2018, the evidence before me suggests that LEO UK is neither a subsidiary nor affiliate of LEO Canada, (the only corporate party to this litigation), as the two corporations deliberately were created as “stand alone” corporations. Moreover, although Mr Kamran alleges that Mr Andersson “controls” the board of LEO UK, and by implication LEO UK itself, that assertion is very much disputed in the sworn evidence of Mr Magudia, who emphasizes that he and Mr Landi have very strong employment contracts, cannot be removed from the board unless they resign, and exercise independent judgment. Of course, that evidence supplements Mr Magudia’s other evidence explaining how the board effectively overruled and countermanded Mr Andersson’s directions granting Mr Kamran access to the MIS system of LEO UK. [^4]: See Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paragraphs 61 and 65. See also Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.). [^5]: See Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, [2014] O.J. No. 3625 (C.A.), at paragraph 88. [^6]: See, for example: Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164, [2010] O.J. No. 2088, at paragraph 35; and Boily v. Carleton Condominium Corp. 145, supra, at paragraph 121. [^7]: See Carey v. Laiken, supra, at paragraphs 62 and 66. [^8]: I appreciate and accept that one of Mr Kamran’s lawyers was absent on a parental leave, and no one should be faulted for that. However, this litigation certainly does not suffer from a lack of lawyers, and a number of lawyers from the same firm have been actively involved in the representation of Mr Kamran. Had Mr Kamran been diligently pressing his lawyers for follow up to his demands for access, I have little doubt that one of them would have responded sooner to counsel for Mr Andersson. [^9]: See Niagara Regional Police Services Board v. Curran (2002), 2002 49405 (ON SC), 57 O.R. (3d) 631 (S.C.J.), at paragraph 20; Mercedes-Benz Financial v. Kovacevic, 2009 9423 (ON SC), [2009] O.J. No. 888 (S.C.J.), at paragraph 6; and Ceridian Canada Ltd. v. Azeezodeen, [2014] O.J. No. 3353 (S.C.J.), at paragraph 7. [^10]: See, for example: Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008), 2008 ONCA 534, 91 O.R. (3d) 1 (C.A.), at paragraph 37; Korea Data Systems Co. v. Chiang, supra, at paragraph 11; Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 7; Boily v. Carleton Condominium Corp. 145, supra, at paragraph 79; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 77. [^11]: See Boily v. Carleton Condominium Corp. 145, supra, at paragraph 79. [^12]: See, for example: College of Optometrists (Ontario) v. SHS Optical Ltd., 2008 ONCA 685, [2008] O.J. No. 3933 (C.A.), at paragraph 106; Chiang (Trustee of) v. Chiang, 2009 ONCA 3, [2009] O.J. No. 41 (C.A.), at paragraph 177; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 81. [^13]: See Korea Data Systems Co. v. Chiang, supra, at paragraph 11; and [^14]: See, for example: Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at paragraphs 34-35; and Korea Data Systems Co. v. Chiang, supra, at paragraph 11. [^15]: See, for example: Boily v. Carleton Condominium Corp. 145, supra, at paragraphs-129-130; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 90. As emphasized in the former decision by our Court of Appeal, civil contempt proceedings “do not have and must not appear to have the function of a civil action in tort or for breach of contract”. Any concern of opposing litigants about injury to them caused by the contemnor’s activities ought to be recoverable in damages or profits claimed, rather than imposition of a penalty for contempt. The concern of the court, in a case of civil contempt, is and must be the failure to respect the court’s process. [^16]: See, for example: Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 11; Astley v. Verdun, 2013 ONSC 6734, [2013] O.J. No. 4942 (S.C.J.), at paragraph 16; Boily v. Carleton Condominium Corp. 145, supra, at paragraph 90; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 90. [^17]: See, for example: Cornwall Public Inquiry Commissioner v. Dunlop, 2008 10382 (ON SCDC), [2008] O.J. No. 957 (Div.Ct.), at paragraph 48; Astley v. Verdun, supra, at paragraph 19; Boily v. Carleton Condominium Corp. 145, supra, at paragraphs 105-107; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 91. [^18]: See, for example, Korea Data Systems Co. v. Chiang, supra, at paragraphs 50-52. [^19]: See, for example: Boily v. Carleton Condominium Corp. 145, supra, at paragraph 108; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 82. In Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 35, Justice Brown (as he then was) provided a helpful review of what were then relatively recent cases in which a term of incarceration was imposed as a sanction for civil contempt. It is noteworthy that, in almost all of those reviewed decisions, there had been very deliberate and sustained defiance of court orders involving demonstrated substantial personal financial gains of the contemnor or threatened and realized financial losses to others – usually involving millions of dollars in money or property value. [^20]: See, for example: CIT Financial Ltd. v. Western Waste Recyclers Inc., [2008] O.J. No. 2386 (S.C.J.), at paragraphs 6 and 10; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 82. [^21]: See, for example, CIT Financial Ltd. v. Western Waste Recyclers Inc., supra, at paragraphs 7 and 10; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraphs 84-87. [^22]: See Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 89. [^23]: See West Lincoln (Township) v. Chan, [2001] O.J. No. 2133 (S.C.J.), at paragraph 39. [^24]: See, for example, British Methodist Episcopal Church v. Davis, [2010] O.J. No. 684 (C.A.), at paragraph 3. [^25]: See Boily v. Carleton Condominium Corp. 145, supra, at paragraph 108. [^26]: Ibid., at paragraph 110. [^27]: Ibid., at paragraph 109. [^28]: Ibid., at paragraph 111. [^29]: See, for example: Niagara Regional Police Services Board v. Curran , supra, at paragraph 36; and Boily v. Carleton Condominium Corp. 145, at paragraph 133. [^30]: See, for example: SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, [2009] O.J. No. 365 (C.A.), at paragraphs 14-16; and Langford (City) v. dos Reis, [2016] B.C.J. No. 2418 (C.A.), at paragraphs 23-26. [^31]: See, for example: West Lincoln (Township) v. Chan, supra, at paragraph 40; and Boily v. Carleton Condominium Corp. 145, supra, at paragraph 112. [^32]: See West Lincoln (Township) v. Chan, supra, at paragraph 29. [^33]: Compare College of Optometrists (Ontario) v. SHS Optical Ltd., supra, at paragraph 108. [^34]: While it occasionally has been suggested that the absence of an apology is an aggravating factor, I think it more appropriate to view it, as in the criminal context, as the absence of what otherwise would be a mitigating factor. In that regard, see Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 22; Ceridian Canada Ltd. v. Azeezodeen, supra, at paragraph 13; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 25. [^35]: See, for example, Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 28. [^36]: See, for example, Mercedes-Benz Financial v. Kovacevic, supra, at paragraph 22; and Astley v. Verdun, supra, at paragraph 25. [^37]: See Milligan v. Lech, 2006 CarswellOnt 8464, at paragraph 21. [^38]: See West Lincoln (Township) v. Chan, supra, at paragraph 30. [^39]: Ibid., at paragraph 30. [^40]: See College of Optometrists (Ontario) v. SHS Optical Ltd., supra, at paragraph 103. [^41]: See R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92. [^42]: See, for example: CIT Financial Ltd. v. Western Waste Recyclers Inc., supra, at paragraph 16; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 84. [^43]: See, for example, Uyj Air Inc. v. Barnes, [2011] O.J. No. 3513 (S.C.J.), at paragraph 75; and Ahmad v. 1288124 Ontario Inc., [2012] O.J. No. 4698 (S.C.J.), at paragraph 8. [^44]: See, for example: TG Industries Ltd. v. Williams, 2001 NSCA 105, [2001] N.S.J. No. 241 (C.A.), at paragraph 37; Blackman v. CIBC Wood Gundy Financial Services Inc, [2009] N.S.J. No. 652 (S.C.), at paragraphs 52-53; Szyngiel v. Rintoul, 2014 ONSC 3298, [2014] O.J. No. 2590 (S.C.J.), at paragraph 34; Chappell v. Hillock, [2015] O.J. No. 3402 (S.C.J.), at paragraph 12; and Knapp v. Munro, [2015] O.J. No. 4560 (S.C.J.), at paragraphs 19 and 32. [^45]: See Bell ExpressVu Ltd. Partnership v. Rodgers, [2009] O.J. No. 2197 (S.C.J.), at paragraph 20. [^46]: See West Lincoln (Township) v. Chan, supra, at paragraph 38. In the striking words of Justice Quinn: “Imagine the societal chaos if, for example, a bank robber could purge his crime simply by returning the money”. [^47]: See, for example: 1307347 Ontario Inc. v. 1243058 Ontario Inc., [2001] O.J. No. 585 (S.C.J.), at paragraph 5 ; Astley v. Verdun, supra, at paragraph 52; College of Chiropractors of Ontario v. Dies, [2015] O.J. No. 2249 (S.C.J.), at paragraph 21, varied but otherwise upheld, with an award of substantial indemnity costs, [2016] O.J. No. 22, at paragraph 14; Langford (City) v. dos Reis, supra, at paragraph 28; and Business Development Bank of Canada v. Cavalon Inc., supra, at paragraph 104. [^48]: See West Lincoln (Township) v. Chan, supra, at paragraph 43. [^49]: See, for example: Einstoss v. Starkman, 2003 2304 (ON SC), [2003] O.J. No. 96 (S.C.J.), at paragraph 14; and Astley v. Verdun, supra, at paragraphs 55-57. [^50]: See, for example: Worsley v. Lichong, [1994] O.J. No. 614 (Gen.Div.), at paragraph 5; Murano v Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p.248; and 1307347 Ontario Inc. v. 243058 Ontario Inc, supra, at paragraph 5. [^51]: See, for example, Foulis v. Robinson (1987), 21 O.R. (2d) 179 (C.A.), and Isaacs v. MHG International Ltd., (1984), 1984 1862 (ON CA), 45 O.R. (2d) 693 (C.A.).