COURT FILE NO.: CV-15-66579
DATE: 2021/04/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Bennett, Plaintiff
AND
Sandra Swift, Kemp Waterman, Toni Tegano, and the CIBC, Defendants
BEFORE: Ryan Bell J.
COUNSEL: Timothy Sullivan, for the Plaintiff
Bryan Delaney, for the Defendants Sandra Swift, Kemp Waterman, and Toni Tegano
Onofrio Ferlisi, for the Defendant CIBC
HEARD: March 25, 2021
ENDORSEMENT
Overview
[1] This 2015 action concerns the partnership Affordable Auto Sales & Service. Examinations for discovery have not occurred.
[2] On September 20, 2018, Justice Kershman ordered (the “Order”):
THIS COURT ORDERS THAT the Defendants Sandra Swift (“Swift”), Kemp Waterman (“Waterman”) and Toni Tegano (“Tegano”) [collectively, the “Swift defendants”] shall serve a sworn affidavit of documents and its Schedule “A” documents within fifteen (15) days of the date of this Order.
THIS COURT ORDERS THAT the [Swift defendants] shall produce all documents relevant to any Affordable Auto Sales & Service transaction, including but not limited to credit card statements belonging to the business and/or any of the individual Defendants on which Affordable Auto Sales & Service supplies have been charged or reimbursed, indemnified or paid down from Affordable Auto Sales & Service resources, within twenty-five (25) days of service of their respective affidavit of documents.
[3] In this motion, Mr. Bennett seeks: (i) an order extending the time frame by which the action is to be set down for trial; and (ii) an order finding the Swift defendants in contempt of paragraphs 1 and 2 of the Order.
[4] At the conclusion of the hearing on March 25, 2021, I ordered, on the consent of all parties, that the time for setting the action down for trial be extended to February 28, 2022.
[5] For the following reasons, I dismiss Mr. Bennett’s motion for an order finding the Swift defendants in contempt of the Order.
Factual Findings
[6] It is not necessary for me to provide a detailed chronology of the exchanges between counsel leading up to and following the Order. Based on the evidentiary record before me, I make the following findings relevant to the issue of contempt.
[7] First, the Swift defendants complied with paragraph 1 of the Order. On October 5, 2018, the Swift defendants served Mr. Bennett with their sworn affidavit of documents, including the Schedule “A” documents. The affidavit of documents was sworn by each of the three Swift defendants. The Swift defendants responded promptly to requests to provide copies of missing and so-called “blurry” documents.
[8] Second, after the fall of 2018, the plaintiff made no further requests regarding productions until June 2020. In June, Mr. Bennett’s counsel wrote to counsel for the Swift defendants and, in relation to four of Mr. Waterman’s credit cards, identified the statements that had not been produced. In response, counsel for the Swift defendants advised:
- statements prior to December 2013 would not be produced because the partnership was not in existence at that time and the partnership’s first cheque was January 1, 2014;
- statements for two of the credit cards had already been produced; and
- statements for the other two credit cards were not typically used for partnership expenses. Counsel for Mr. Bennett was invited to request specific statements corresponding with specific partnership transactions.
[9] Third, on January 25, 2021, plaintiff’s counsel served a draft notice of motion for this motion. The draft notice incorrectly identified one of the statements alleged to be “missing.” When the correct statement was identified in the notice of motion served February 18, 2021, Mr. Waterman was unable to access the statement online. I accept Mr. Waterman’s evidence that he has requested a hard copy of the statement from the bank and that it will take some weeks to process his request.
Analysis
[10] Mr. Bennett relies on rules 60.05 and 60.11(1) of the Rules of Civil Procedure. Rule 60.05 provides: “An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.” Rule 60.11(1) provides that a contempt order may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
[11] The criteria which apply to a finding of guilt of contempt of court are well-established. As set out by the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35, civil contempt has three elements, each of which must be established beyond a reasonable doubt:
(i) the order alleged to have been breached must state clearly and unequivocally what should and should not be done;
(ii) the party alleged to have breached the order must have had actual knowledge of it; and
(iii) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
[12] In this case, the plaintiff’s principal complaints are: (i) some of the Schedule “A” documents were/are missing or illegible; and (ii) documents the plaintiff considers relevant within the meaning of the Order have not been produced.
[13] A contempt order is “first and foremost a declaration that a party has acted in defiance of a court order: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, at para. 35. There is simply no evidence that the Swift defendants have acted in defiance of the Order. They have produced or taken steps to produce certain documents said to be “missing”; they have not produced others on the basis that they do not fall within the scope of paragraph 2 of the Order. The fact that Mr. Bennett does not agree with their position does not render the refusal to produce an act of civil contempt.
[14] The civil contempt remedy is one of last resort. As the Court of Appeal for Ontario stated in Hefkey v. Hefkey, 2013 ONCA 44, at para. 3:
Moreover, in our view, the civil contempt remedy should not have been sought in the circumstances revealed by the record. The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed.”
[15] The Court of Appeal’s caution in Hefkey is apposite here. There were other adequate remedies available to Mr. Bennett. The Swift defendants have agreed to produce the April 4, 2014 statement upon receipt from the bank; it remains open to Mr. Bennett to move for the production of other specific documents. I agree with Mr. Bennett’s counsel that the parties need to “get moving” – this action was commenced more than five years ago and has not proceeded to examinations for discovery. But, as a remedy of last resort, the civil contempt remedy should not have been sought in the circumstances of this case.
Disposition
[16] The time to set the action down for trial is extended to February 28, 2022. The motion to find the Swift defendants in contempt is dismissed. The Swift defendants shall provide the April 4, 2014 statement for the card ending in *6956 to the plaintiff on receipt.
[17] Costs of the motion are not requested as against the CIBC. If Mr. Bennett and the Swift defendants are unable to agree on costs of the motion, they may make written submissions limited to a maximum of three pages. The Swift defendants shall deliver their costs submissions by April 16, 2021. Mr. Bennett shall deliver his responding costs submissions by April 23, 2021. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Justice R. Ryan Bell
Date: April 9, 2021
COURT FILE NO.: CV-15-66579
DATE: 2021/04/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: John Bennett, Plaintiff
AND
Sandra Swift, Kemp Waterman, Toni Tegano, and the CIBC, Defendants
BEFORE: Ryan Bell J.
COUNSEL: Timothy Sullivan, for the Plaintiff
Bryan Delaney, for the Defendants Sandra Swift, Kemp Waterman, and Toni Tegano
Onofrio Ferlisi, for the Defendant CIBC
ENDORSEMENT
Ryan Bell J.
Released: April 9, 2021