Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
RE: RACHELLE LONNEBERG, YVONNE MILLS, ALIA EL-MOWAFY, Plaintiffs
-and-
SIGE ARSENE ONCA (a.k.a. SIGE ARSENE MIERANTSA ONCA, a.k.a. ARSENE MIERANTSA ONCA, a.k.a. SIGE MIERANTSA ONCA, a.k.a ARSENE ONCA, a.k.a. SIGE ONCA, a.k.a. SIGE MIERANTSA, a.k.a. ARSENE MIERANTSA, a.k.a. SIGE ARSENE), ONCA CAPITAL INC, LEADING WAY PERFORMANCE INC, INOVANTAGE INC., PAULINE RADZIKOWSKI, Defendants
BEFORE: F.L. Myers J.
COUNSEL: Tanya Walker and Alana Spira, for the plaintiff Alia El-Mowafy Daniel Rizzi, for the plaintiffs Rachelle Lonnegerg, Yvonne Mills Sige Arsene Onca, in person
HEARD: July 9, 2021
ENDORSEMENT
Background
1Mr. Onca acknowledges that he owes the plaintiffs money.
2The plaintiffs have brought a motion to hold Mr. Onca in contempt of court for failing to disclose his assets as previously ordered by the court. Mr. Onca delivered a timely list. However, it disclosed no real assets.
3At the plaintiffs’ request, at a case conference on May 21, 2021, at which Mr. Onca did not attend, I scheduled the motion to hold Mr. Onca in contempt of court returnable July 27, 2021 for a full day. My endorsement reads:
Mr. Onca has agreed to repay funds claimed by the plaintiffs and has failed to do so despite his agreement. He has effectively continued the wrongful deprivation of the plaintiffs. There is good reason to fear asset dissipation as Mr. Onca now claims to own no assets. The Mareva injunction dated March 5, 2021 is therefore extended to trial or further order of the court.
Mr. Onca communicated with counsel as recently as May 5, 2021 using the email noted for him above. Service of the contempt motion materials on Mr. Onca by e-mail to that email address is deemed sufficient for the contempt motion. Personal service is not necessary.
The plaintiff moves to hold Mr. Onca in contempt of court for failing to disclose his assets as ordered.
Mr. Onca should understand that this is a serious matter. Being held in contempt of court can subject a person to a criminal law penalty including a fine, house arrest, probation, or a jail sentence.
If Mr. Onca has not obeyed the court’s order he should do so immediately. Moreover, he should understand that the court will enforce its order. Mr. Onca should seek legal counsel immediately. He can also avoid this issue as well by fulfilling his settlement agreement with the plaintiffs.
Mr. Onca has a right to remain silent in his contempt proceeding. The plaintiffs must prove their allegations against Mr. Onca beyond a reasonable doubt and they cannot compel him to be a witness against himself.
Mr. Onca can choose to respond with affidavit evidence of himself or others if he wishes or he can call witnesses to testify at the hearing (including himself if he wants to testify). Any witness who testifies by affidavit or at the hearing can be cross-examined by counsel for the other side.
The plaintiffs will serve any further evidence on which they rely on Mr. Onca by June 4, 2021.
If Mr. Onca wishes to respond to the plaintiffs’ evidence before the hearing with affidavits of himself or others, he must serve those affidavits on counsel for the plaintiffs by June 18, 2021.
If Mr. Onca intends to call any witnesses to testify at the hearing (other than himself) then, by June 18, 2021, Mr. Onca shall provide the plaintiffs’ lawyers with a written list of the witnesses whom he intends to give evidence at the hearing and he will provide a written outline or summary of the evidence that he expects each witnesses will say.
For greater certainty, Mr. Onca is not required to provide an outline of any testimony that he personally may decide to give at the hearing. He can deliver an affidavit or an outline of his testimony by June 18, 2021 or, if he prefers, he can decide at the hearing whether he will want to testify or not.
All witnesses who swear affidavits may be cross-examined out of court prior to the hearing or they may be cross-examined live at the hearing if the parties prefer. It is up to each party to decide whether they wish to cross-examine each witness at all or prior to the hearing or at the hearing.
The plaintiffs will serve their legal argument document (a factum) by July 9, 2021.
If Mr. Onca wishes to deliver written legal argument (in the form of a factum), he must service it on the plaintiffs’ counsel by July 16, 2021.
All motion documents are to be filed with the Court through the Civil Submissions Online portal and uploaded to Caselines prior to the hearing.
The motion will be heard by me for the full day on July 27, 2021 by Zoom.
The motion to extend the Mareva injunction was only necessary because Mr. Onca failed to pay the amounts he agreed in the settlement and that he promised again on May 5, 2021. He has failed to respond to the plaintiffs since that time. In the circumstances, I assess costs of today against Mr. Onca on a partial indemnity basis. However, in the event that the court later decides against Mr. Onca on the merits either of contempt of court or in the action, it will be open to the presiding judge to top up these amounts to full indemnity amounts if he or she deems it appropriate.
The defendant shall pay costs on a partial indemnity basis to Ms. El-Mowafy of $3,340 and of the two other plaintiffs of $150 forthwith.
[Emphasis in original]
4I recite the full endorsement to set out the complications in dealing with a contempt proceeding but also to leave no doubt that Mr. Onca will be required to comply with the court’s orders.
5The plaintiffs had served their motion record seeking a contempt order prior to the May 21, 2021 case conference. On June 9, 2021, the plaintiffs requested an extension of one week for their deadline to deliver any further evidence on which they rely in support of the contempt proceeding. Mr. Onca objected on the basis that the plaintiffs ought to have had its case in hand prior to bringing contempt proceedings against him.
6I ruled in favour of the plaintiffs and granted the extension requested as follows:
While I understand Mr. Onca’s concern that a party alleging contempt should have its evidence in hand, the allegation here is that Mr. Onca has concealed assets in breach of an injunction. In those circumstances, it is not unusual for it to take time for a plaintiff to compile evidence as he or she has to investigate facts that the defendant is alleged to be hiding.
The legal test for an extension of time involves an assessment of whether the defendant is injured or prejudiced by the extension and whether it is in the interests of justice generally to allow the extension.
The plaintiffs propose a draft order that extends its deadline by a week and also extends the deadline for Mr Onca to provide his responding evidence or will-say statements by the same one week. The motion is returnable over a month later. Mr. Onca has plenty of time to prepare his witnesses and documents for the hearing even with the one week extension. Moreover, if that becomes problematic for him, he can always request an adjournment on evidence as the hearing date nears. Accordingly, I can see no prejudice to Mr. Onca by the request sought today.
In my view, the interests of justice also support the extension. The issue is very serious. The plaintiffs allege that Mr. Onca is in violation of an order of the court requiring him to disclose his assets. That order was only made after a judge was satisfied that the plaintiffs have a very strong case against Mr. Onca.
If the plaintiff needs a bit more time to establish its case and there is no prejudice to Mr. Onca’s ability to respond, then the interests of justice weigh in favour of ensuring that there is a full evidentiary record put before the court.
Accordingly, I have signed the order as requested that I have amended as to form.
7It is now one month later. The plaintiffs requested a case conference that I heard this morning. They ask the court to adjourn the motion for contempt sine die (without a fixed return date). They say they are having difficulty collecting evidence from sources whom they prefer not to name.
8They presented two alternatives as well. First, Mr. Rizzi asks the court to reiterate and enforce the obligation on Mr. Onca to attend for cross-examination on the list of assets that he purported to disclose under the Mareva injunction. Second, Ms. Walker proposes that instead of adjourning the motion without a fixed date, the court should set a case conference in September. At that case conference the plaintiffs could advise Mr. Onca and the court if they have been successful in collecting evidence from the third party witnesses whom they have approached. Ms. Walker submits that if they do not then have evidence in hand, they will withdraw the motion.
9In Carey v. Laiken, 2015 SCC 17, the Supreme Court of Canada reiterated the important limitation on civil contempt of court proceedings. They are a proceeding of last resort. They are not to be used as a routine enforcement measure. At para. 36, Cromwell J. wrote the following for the unanimous court:
The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders: see, e.g., Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect”: Centre commercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663, at para. 7. As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments”: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, at p. 1078, citing Daigle v. St-Gabriel-de-Brandon (Paroisse), 1991 CanLII 3806 (QC CA), [1991] R.D.J. 249 (Que. C.A.). Rather, it should be used “cautiously and with great restraint”: TG Industries, at para. 32. It is an enforcement power of last rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89 O.R. (3d) 81, at paras. 41-43; Centre commercial Les Rivières ltée, at para. 64.
10It is unfortunately apparent that the plaintiffs have not complied with the High Court’s directive. The initial June 4, 2021 deadline that I extended for one week, was for the plaintiffs to deliver “any further evidence on which they rely”. The plaintiffs had already delivered their motion record. They never said that they did not have evidence to prove that Mr. Onca was in contempt and or that they were still investigating whether they could prove the allegation.
11The plaintiffs alleged in formal court documents that Mr. Onca has committed contempt of court. That is not something to be alleged on spec.
12The plaintiffs had brought their motion and asked for a two weeks to top up their evidence. Then they asked to extend that for a week because they were waiting for a late response from a third party.
13That is very different from saying that the plaintiffs cannot establish contempt without hearing from unnamed third parties who have not responded since May and who may not respond before September if at all.
14Mr. Rizzi submits that the Mareva injunction requires Mr. Onca to attend for cross-examination on his list of assets. He proposes to conduct that examination now. I had to remind Mr. Rizzi that s. 11 (c) of the Charter of Rights and Freedoms protects people charged with an offence from being compelled to testify against themselves. Perhaps Mr. Rizzi should have considered the option of cross-examining Mr. Onca on his disclosure statement before moving to hold him guilty of contempt of court?
15Ms. Walker asks for two more months for the plaintiffs to hope to locate evidence.
16If they cannot already prove that Mr. Onca has assets, then how have they alleged that Mr. Onca is in contempt of court? How have they brought a motion of last resort? Why did they not move for lesser form of relief – like examination for example? Why go first to the longest club in the bag?
17At this stage, the plaintiff’s proposed motion risks the appearance of “just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect”.
18In my view, it is not in the interests of justice to adjourn the motion as sought. The plaintiffs’ extended deadline to file additional evidence has passed. The plaintiffs have proof beyond a reasonable doubt of Mr. Onca’s contempt or they do not. They are directed to advise the court and Mr. Onca by 4:30 p.m. on July 13, 2021 whether they are abandoning their motion.
F.L. Myers J.
Date: July 9, 2021