COURT FILE NO.: CV-20-652528
DATE: 20210429
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jack Oliveira and Luis Camara on their own behalf and on behalf of all members of Labourers International Union of North America, Local 183
Michael D. Wright and Youssef Kodsy, for the plaintiffs
Plaintiffs
- and -
Mario Oliveira
Defendant
Mario Oliveira, self-represented defendant
HEARD: In-writing
REASONS FOR SENTENCE
FERGUSON J.
[1] On February 26, 2021, I found Mr. Oliveira to be in contempt of court for his failure to abide by my orders made on December 23, 2020 and January 28, 2021. I deferred sentencing and provided Mr. Oliveira an opportunity to purge his contempt. I explained to him the consequences if he failed to purge his contempt (including that jail was an option). Rather than mitigating his contempt, he permanently frustrated my orders by irreversibly destroying the subjects of the forensic inspection thereby not allowing the court ordered forensic inspection to take place. The destruction of the devices was done at the protest of plaintiffs’ counsel and my warning not to do so. Mr. Oliveira was aware of my repeated demands that he comply with the orders also with full knowledge of the consequences if he failed to purge the contempt.
[2] Since the finding of contempt, Mr. Oliveira continues to write indicating that maybe I found him to be in contempt and maybe not. He is clearly wrong about this. He was found to be in contempt. Mr. Oliveira also says that he destroyed the devices with permission of the court. Again, that is not correct. He was told not to do that.
[3] In terms of sentencing, the plaintiffs’ primary position is that I should stay an action in Brampton involving the same parties. That matter has counsel, Mr. Davis. There was a conference call with the counsel and Mr. Davis on April 8, 2021.
[4] On April 16, 2021, I released my endorsement. I did not stay that action at this point.
[5] Rule 60.11(5) of the Rules of Civil Procedure codifies the wide power the court has to sentence for contempt. Specifically, 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.
[6] When the contempt is related to an interlocutory order, the court also has recourse to Rule 60.12. Rule 60.12 provides that where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided for in the Rules of Civil Procedure: (a) stay the party’s proceeding; (b) dismiss the party’s proceeding or strike out the party’s defence; or (c) make such other order as is just.
[7] In sentencing a contemnor for contempt, it is important to remember that the underlying purpose of contempt orders is to compel obedience and punish disobedience.[^1] The contempt power should be used to deter violations of court orders and encourage respect for the administration of justice.[^2]
[8] The Ontario Court of Appeal has summarized the factors relevant to a determination of an appropriate sentence for civil contempt as follows:[^3]
(a) Proportionality of the sentence to the wrongdoing – a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender;
(b) Deterrence and denunciation – the sentence should denounce unlawful conduct and promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders;
(c) Presence of aggravating and mitigating factors;
(d) Similarity of sentence in like circumstances;
(e) Reasonableness of a fine or incarceration.
[9] With respect to sentencing, Mr. Davis suggested during the telephone conference that a period of incarceration, once the jails are safe from Covid‑19, would be appropriate. In that endorsement, I indicated that I agreed but was concerned as to when that date would be. I indicated that I was considering house arrest as an option. In response to that, counsel for the plaintiffs has correctly pointed out that Covid‑19 has essentially created a house arrest situation and that such an order would have no impact on Mr. Oliveira who just continues to blindly avoid following orders. I agree.
[10] Counsel for the plaintiffs suggests that I order a term of incarceration to be served once the Covid related circumstances subside. I agree and I will assess the situation in 45 days. I never received any submissions on sentencing from Mr. Oliveira. If he wishes to provide submissions on sentencing, particularly a period of incarceration, he should do so within 30 days.
J.E. Ferguson J.
Released: April 29, 2021
COURT FILE NO.: CV-20-652528
DATE: 20210429
ONTARIO
SUPERIOR COURT OF JUSTICE
Jack Oliveira and Luis Camara on their own behalf and on behalf of all members of Labourers International Union of North America, Local 183
Plaintiffs
- and -
Mario Oliveira
Defendant
REASONS FOR sentence
J.E. Ferguson J.
Released: April 29, 2021
[^1]: College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, at para. 106, leave to appeal dismissed 2009 CanLII 30412 (SCC).
[^2]: Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, at para. 90.
[^3]: Business Development Bank of Canada v. Cavalon Inc., Ibid.