COURT FILE NOS.: CV-19-419-00

DATE: 20210804

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PHILIP WILLIAM CRAWFORD and HAILEY BROOKE CRAWFORD

Plaintiffs

-and-

STANDARD BUILDING CONTRACTORS LIMITED (FEDERAL CORPORATION 1115109-6), STANDARD PAVING LIMITED (NOVA SCOTIA REGISTRY ID #3223128) AND SHANE ROSS

Defendants

Matt Taft, for Philip William Crawford, Hailey Brooke Crawford and CIBC Mortgages Inc.

Shane Ross, in person

HEARD at Kingston: 15 July 2021

Mew J.

REASONS FOR decision

(Motion for Contempt)

[1] Shane Ross has been found in contempt of two orders of this court which enjoined the defendants from dissipating their assets, including operating their bank accounts, and required the defendants to disclose, under oath, the nature, value and location of their assets worldwide.

[2] After two adjournments at the request of Shane Ross, a hearing of the penalty phase of the contempt proceeding took place in Kingston on 15 July 2021.

[3] At the same time, I heard evidence and submissions in relation to the plaintiffs’ motion for a further order finding Mr. Ross in contempt of my judgment of 7 January 2021 and my order of 29 March 2021. My judgment of 7 January 2021 varied the previous freezing orders and made them permanent, amongst other things. My order of 29 March 2021 was a consent order agreed to by the parties at the time of Mr. Ross’ first request for an adjournment of the penalty phase of the original contempt proceeding.

[4] At the conclusion of the hearing on 15 July 2021, I informed the parties that this was one of the rare cases where the repeated and flagrant breaches of the court’s orders by Mr. Ross warranted a custodial sentence. I ordered that he be imprisoned for ninety days. I also informed the parties that I was satisfied beyond a reasonable doubt that Mr. Ross was in contempt of the court’s judgment of 7 January 2021 and its order of 29 March 2021.

[5] With respect to each of these determinations, I advised the parties that written reasons for my decision would follow. These are my reasons.

Background

[6] Shane Ross is, among other things, a general contractor, who carries on business through a number of companies, including the corporate defendants. He was hired to rebuild the plaintiffs’ home after it was severely damaged by fire. Instead, he and his companies received $137,690.50 from the Crawfords by way of insurance proceeds but was found to have only done work to the value of $10,000.

[7] The plaintiffs commenced an action against the defendants in December 2019. On 20 December 2019, Madam Justice MacLeod-Beliveau granted a motion on short notice for an interim freezing order in the form of a Mareva injunction restraining the defendants from dissipating any assets and granting other relief. A motion by the defendants for an order discharging or varying the original freezing order was heard on 23 January 2020. By order dated 31 January 2020, the original freezing order was confirmed and continued, subject to certain variations.

[8] The form and content of the two orders closely tracked the model order prepared by the Commercial List Users’ Committee of the Superior Court of Justice. The portions of the order which are pertinent to the contempt motion are set out below.

[9] Of note, the operative parts of the order were preceded by a notice, which provided:

If you, the Defendants, disobey this order you may be held in contempt of court and may be imprisoned, fined or have your assets seized. You are entitled to apply to the Court on at least 24 hours notice to the Plaintiffs, for an order granting you sufficient funds for ordinary living expenses and legal advice and representation.

[10] The first two paragraphs of the orders follow the standard verbiage and provided:

a. THIS COURT ORDERS that Shane Ross, Standard Building Contractors Limited, Standard Paving Limited (the “Defendants”), and their servants, directors, employees, agents, assigns and any one else acting on their behalf, and any and all persons with notice of this injunction, are restrained from directly or indirectly, by any means whatsoever:

1.Selling, removing, dissipating, alienating, transferring, assigning, encumbering, or similarly dealing with any assets of the Defendants, wherever situate, including but not limited to the assets and accounts limited in Schedule “A” hereto;

2.Instructing, requesting, counselling, demanding, or encouraging any other person to do so; and

3.Facilitating, assisting in, aiding, abetting, or participating in any acts the effect of which is to do so.

b. THIS COURT ORDERS that paragraph 1 applies to all of the Defendants’ assets whether or not they are in their own name and whether they are solely or jointly owned. For the purpose of this order, the Defendants’ assets include any assets over which they have the power, directly or indirectly, to dispose or deal with as if it were their own (collectively or individually). The Defendants are to be regarded as having such a power if a third party holds or controls the assets in accordance with their direct or indirect instructions.

[11] Paragraph 7 of the Order, as amended by the 31 January 2020 order, provided:

7. THIS COURT ORDERS that the Bank of Montreal, and any other financial institution to which this Order is served (the “Banks”) to forthwith freeze and prevent any removal or transfer of monies or assets of the Defendants held in any account or on credit on behalf of the Defendants, with the Banks, until further Order of the Court including but not limited to the accounts listed in Schedule “A” hereto, save and except that:

a) The banking institutions of the Defendants, Standard Building Contractors Limited, Standard Paving Limited, and Shane Ross, shall accept deposits into any of the bank accounts of the Defendants, Standard Building Contractors Limited, Standard Paving Limited, and Shane Ross, whether by cheque, electronic transfer, wire or direct deposit;

b) The banking institutions of the Defendants, Standard Building Contractors Limited, Standard Paving Limited, and Shane Ross, shall at the request of the Defendants, Standard Building Contractors Limited, Standard Paving Limited, and Shane Ross, or any one of them, provide a bank draft in the sum of $139,000.00 payable to the Accountant of the Superior Court of Justice…

[12] The question of whether the defendants were in contempt of the orders of MacLeod-Beliveau J. was one of the issues resolved by me following a four-day trial in November 2020, which was conducted under the simplified procedure.

[13] In my reasons for decision, reported at 2021 ONSC 166, I noted that both disclosure obtained from the defendants’ bankers and inquiries pursued by the plaintiffs subsequent to the orders of MacLeod-Beliveau J. revealed the existence of other bank accounts operated by, or under the control of, one or more of the defendants which had not been disclosed by them as required by the court’s orders. A number of these accounts had been actively used for not only the receipt, but also the disbursement of funds, notwithstanding the freezing order. A Canadian Tire Mastercard had been used in much the same way that a personal bank account would have been. One account that had been particularly active, and through which payments had been made to several of the defendants’ employees/contractors as well as “Mom and Dad”, was held in the name of TAB Civil Contracting Corporation which, I found, was under the control of Mr. Ross at all material times. I concluded:

[157] No doubt a more detailed forensic examination of the financial documents obtained would provide a more comprehensive picture of the nature and extent of the financial activities engaged in by the defendants after MacLeod-Beliveau J.'s freezing order was made.

[158] Suffice it to say that I am left in no reasonable doubt, having regard to the examples cited in the preceding paragraphs, that the defendants have breached the Mareva injunction order on numerous occasions and, accordingly, that Shane Ross is in contempt of court. Mr. Ross will be required to attend in person, in court, in Kingston, at 10:00 a.m. on Monday 29 March 2021, to place any evidence which he wishes the court to consider by way of possible mitigation or purging of his contempt, and to determine what, if any, sanctions should be imposed on him if the finding of contempt is sustained.

[14] In addition to the finding of contempt, judgment was given in this, and a related construction lien action, which, with the inclusion of punitive damages and costs, amounted to $311,429.88 plus any accrued post-judgment interest.

[15] The orders previously made by MacLeod-Beliveau J. were subject to certain variations, which included expanding the scope of the production of financial records and information to include various additional companies such as TAB Civil Contracting Corporation, and extending the reach of the freezing order to the assets of TAB Civil Contracting Corporation, with the proviso that the extent of the liquidatable assets covered by the Mareva injunction was stated to be $311,429.88 plus any accrued post judgment interest. The judgment also provided that the freezing order would cease to have effect if the sum of $311,429.88 plus any applicable post judgment interest was paid into court, or if the court received a satisfaction piece from the plaintiffs confirming full payment of all financial obligations resulting from the judgment.

Attendance in Court on 29 March 2021

[16] Mr. Ross attended in court in person on 29 March 2021, having previously parted company with the lawyer who had represented him at trial. He alleged that he had been unable to open any of the electronic materials that the plaintiffs had served on him. This service had been effected by way of an email to Mr. Ross which provided a link to a OneDrive maintained by the plaintiffs’ solicitors. All of the plaintiffs’ documents were available on and downloadable from the OneDrive in both PDF and Word formats. The same link was forwarded by email to me.

[17] I was able to download the materials without difficulty. Upon being advised by Mr. Ross at the outset of the hearing on 29 March that he had been unable to access the documents, I immediately made arrangements for some of them to be printed for him.

[18] I should add that although Mr. Ross had, prior to the attendance in court, advised the plaintiffs’ lawyers that he had been having difficulties opening the documents, there had been no communications or complaints after the plaintiffs had sent in their motion confirmation form on 24 March and, accordingly, counsel for the plaintiffs believed that any issues relating to the documents had resolved.

[19] At the hearing on 29 March, Mr. Ross also advised that he intended to retain a new lawyer and wished to have some further time to do so. With the court’s encouragement, Mr. Ross and counsel for the plaintiffs negotiated and ultimately agreed the terms of an order, pursuant to which the hearing of the penalty phase of the contempt motion would be adjourned and certain steps would be taken in the meantime by way of mitigation or purging of Mr. Ross’ contempt.

[20] I will return to the operative parts of the 29 March 2021 order shortly. One of the terms was that the contempt hearing would be adjourned to 10:00 am on Monday, 12 July 2021.

[21] The plaintiffs subsequently filed a motion, also returnable on 12 July, for contempt relating to the alleged breach by Mr. Ross of the court’s orders of 7 January and 29 March 2021.

Attendance in Court on 12 July 2021

[22] Mr. Ross duly appeared on 12 July 2021, having purported to deliver extensive materials by email at approximately 10:00 p.m. the previous evening (a Sunday). He was once again representing himself. He advised the court that he had been unable to secure a new lawyer.

[23] Again, Mr. Ross explained that he had been unable to access documents sent to him by the plaintiffs via OneDrive. Although those materials had been sent by email, with a link, on 29 June 2021, Mr. Ross complained that it was not until 6 July 2021 that he had been able to access the documents.

[24] The court was sent the same link. I was able to access the plaintiffs’ documents on that OneDrive link without difficulty.

[25] Mr. Ross holds a Bachelor of Commerce degree and a Master’s in Business Administration. He is familiar and, as best as I can tell, adept at dealing with electronic communications. I was highly skeptical of his claim that he had been unable to activate the OneDrive link the first time he offered that excuse. I did not believe him the second time.

[26] Nevertheless, Mr. Ross also informed me that because aspects of the court’s freezing order potentially affected businesses and property that his parents had an interest in, that they, too, needed to have access to the documents so that they could take advice. The lawyer representing Mr. Ross’ parents had been on vacation the week prior to 12 July so even if that lawyer had been able to access all of the documents, he would not have had an adequate opportunity to review them and advise his clients. Principally for that reason, I granted a short further adjournment to 15 July 2021.

[27] I advised the parties that on 15 July 2021 I would deal with both the penalty for the original contempt and the question of whether or not there had been further contempt on the part of Mr. Ross for breaching one or both of the court’s orders of 7 January and 29 March 2021. I also advised them that in the event that there was a further finding of contempt, that the penalty phase relating to such contempt would be heard at a later time, thereby giving Mr. Ross the opportunity to mitigate or purge any contempt that might be found to have occurred.

[28] Mr. Ross was given leave to file further material any time up to noon on 14 July 2021.

15 July 2021 Hearing

[29] The hearing on 15 July lasted the entire day. I gave leave to the plaintiffs to cross-examine Mr. Ross on his affidavit of 10 July 2021, which Mr. Ross had filed in relation to the motion.

[30] Extensive submissions, both in writing and orally, were received from both the plaintiffs and from Mr. Ross.

Facts

[31] I am mindful of the principle that in civil contempt proceedings, once a finding of contempt has been made at the first stage of a bifurcated proceeding, the penalty decision should be based on the facts or evidence known to the court at the time of its finding of contempt, which in this case was 7 January 2021: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 65.

[32] A judge may, however, properly revisit an initial contempt finding where the contemnor subsequently complies with the order or otherwise purges his or her contempt or, in exceptional circumstances, where new facts or evidence have come to light after the contempt finding was made.

Mr. Ross’ Lack of Adherence to the Court Order of 29 March 2021

[33] In the present case, one of the aims of the order of 29 March 2021 was to provide the plaintiffs with an opportunity to obtain further information that would assist with the execution of judgment. For example, one of the terms of the order was that Mr. Ross would submit to an examination in aid of execution pursuant to Rule 60.18.

[34] Another aim of the order was to set up a series of steps that would enable Mr. Ross to start the process of purging his contempt. Thus, Mr. Ross agreed that he would pay the plaintiffs $50,000 by 19 April 2021 and pay a further $81,636.66 within 30 days of the 29 March order, thereby accounting in full for the $137,690.50 in funds that the plaintiffs had originally sought to preserve through the Mareva injunction (after taking into account certain adjustments).

[35] Mr. Ross also agreed to swear and deliver to the plaintiffs a truthful and comprehensive statement of his worldwide assets as contemplated by the original freezing order of 20 December 2019 and to provide monthly updates to the plaintiffs regarding his business activities, income, benefits, gifts, loans etc.

[36] The order also required the defendants to comply with the injunctive terms of the 7 January 2021 judgment in full, noting that it remained open to Mr. Ross to approach the court for ordinary living and legal expenses.

[37] The consent order of 29 March 2021 was quite explicit in specifying the level of detail which Mr. Ross was to provide in his statement of worldwide assets. However, what Mr. Ross produced, by way of a schedule to an affidavit which he swore on 5 May 2021, was a short spreadsheet which did not contain the level of detail required and disclosed a negative cash balance of $675 located in Bank of Montreal and Royal Bank of Canada accounts, no liquid assets and no interest in real estate.

[38] Similarly, monthly updates provided by Mr. Ross, again in accordance with the 29 March consent order, reported no employment activities or income, virtually no expenses, and no expenditure of money. It was disclosed that an unidentified friend was providing him with food and toiletries.

[39] Mr. Ross did, however, as already mentioned, produce payments totalling $131,636.66 which were paid to the credit of the Crawfords. The cheques were drawn on the account of a Nova Scotia solicitor representing Mr. Ross. Despite the express provisions of the consent order of 29 March requiring him to, Mr. Ross did not disclose the source of these funds (the consent order required him to provide “Information regarding all other income, benefits, gifts or loans of any kind…including a description of the income, the first and last name of the payor, their relationship to Mr. Ross…” and, to the extent not already disclosed “a list of anyone who has provided money or credit to the defendants during the previous month”).

[40] When expressly asked where the $131,636.66 had come from, Mr. Ross said that it was a “personal loan” from a “family friend” who he refused to identify. He said there was no written agreement between him and the lender, and no correspondence evidencing any of the loans or gifts on which, he says, he is dependant.

[41] At his examination in aid of execution on 31 May 2021, Mr. Ross claimed that he had incurred no expenses in April or May 2021. In fact, he had not been spending money at all: “I’m making sure that we’re in 100 percent…compliance or whatever with the Order”, he said. He claimed that other people had been buying him food and toiletries and gasoline for his truck. He alleged that his car insurance had been prepaid for a significant amount of time. His dog had been eating meat that had been hunted in the wild.

[42] Despite reporting that his cash position was minus $675, Mr. Ross said that he had not been working at all. He explained his rationale for not doing so:

I don’t necessarily feel a need right at the moment to go out and find work or doing anything else until this whole procedure is taken care of. This whole thing with you and your clients and whatever else is taken enough of my focus that I believe once that’s been taken care of maybe I’ll revisit it…

[43] Mr. Ross stated that none of his companies generated any revenue during 2020 or 2021.

[44] Mr. Ross claimed that he had been volunteering with a church group and with his parents’ company, Culloden Properties Corporation. Describing a typical day, he said:

It’s basically get up in the morning, do a few things, maybe exercise, when I have to volunteer or help somebody out with something, I will, go back, to the house, bum around a little bit, that’s about it. Help some people out where I can…

Mr. Ross’ Non-disclosure of Real Property Assets/Activities, Income and Interests

Lake Echo

[45] Prior to returning to Ontario for the hearings on 12 and 15 July, Mr. Ross had been living at a house in Lake Echo, Nova Scotia. The formal title to the Lake Echo house is held by Mr. Ross’ mother, Annis Ross. Mr. Ross claims that his mother pays the mortgage and the utilities and that he does not reimburse her.

[46] Inquiries made by the plaintiffs’ solicitors disclose that Annis Ross acquired the Lake Echo property from the Trustee in Bankruptcy of Mr. Ross’ ex-wife in July 2019.

[47] According to information provided by Danielle LaBrash, a law clerk with the firm of solicitors representing the plaintiffs, Annis Ross lives at an address in Foxboro, Ontario. However, when her interest in the Lake Echo property was registered, her address was reported to be an address in Halifax, Nova Scotia, the same UPS store mailbox address used by Standard Paving Limited and TAB Civil Contracting Corporation.

[48] Mr. Ross claimed that he could not recall whether he had any discussions with his mother when she acquired the Lake Echo property from his ex-wife’s trustee in bankruptcy. This, despite the property having been Mr. Ross’ former matrimonial home. Although Mr. Ross claimed that his parents live at the Lake Echo address approximately fifty percent of the time, when asked what years they had lived at there, he said he wasn’t sure but perhaps 2017, 2018 or 2019. For a number of reasons, that answer cannot be correct. Quite apart from the fact that Mr. Ross’ mother only acquired title to the property in August 2019, the evidence would suggest that until December 2018, when the property was acquired by the trustee of Mr. Ross’ ex-wife, Mr. Ross and his ex-wife had been living there.

[49] The plaintiffs, in their written submissions, explained how they then took Mr. Ross through a series of payments made to his mother via cheque with memo lines reading “Echo Forest”. Mr. Ross initially denied the payments were contributions to a mortgage on the property. Instead, Mr. Ross suggested the amounts were rent being collected by “our people in Nova Scotia just as a favour to Mom”, and then he claimed the cheques were “expenses”.

[50] Evidence was also developed that Culloden Properties Corporation had been incorporated on 14 May 2019, with the same UPS store mailbox addressed used by other corporations that Mr. Ross was involved with. Annis Ross is listed as the sole director, with an address in Dartmouth, Nova Scotia. During his examination in aid of execution, Mr. Ross acknowledged that this address is “in the ghetto” and that his mother had never lived there.

[51] Culloden Properties Corporation, which had been incorporated federally, was registered in Nova Scotia on 6 June 2019. Once again, the Dartmouth address was used. Mr. Ross was described as “recognized agent” and the Lake Echo address given.

[52] When asked on his cross-examination whether he had anything to do with Culloden Properties, Mr. Ross answered “No”.

[53] The reality is very different from what Mr. Ross portrays. Indeed, I have no doubt that Culloden Properties is a front for Mr. Ross and that it is his company, in all respects, except its legal ownership, which is in his mother’s name.

89 Flying Cloud Drive

[54] As disclosed by evidence provided by the original trial (and hence part of the record upon which the original contempt finding was made), Culloden had taken title to another property that had been owned by Mr. Ross’ ex-wife until her bankruptcy: 89 Flying Cloud Drive, Cole Harbour. Mr. Ross claimed that he was unaware of his transaction. He denied knowledge of whether there were mortgages on the Flying Cloud Drive property, despite the evidence showing that he routinely made the mortgage payments. Monthly statements obtained with respect to a Culloden Properties’ bank account with Scotiabank (pursuant to the terms of the Mareva injunction) confirmed that Mr. Ross had, in fact, authority to view the balances in the account. While he denied ever having viewed balances, he did confirm that he had made deposits to the account.

[55] Evidence of the transactions concerning Flying Cloud Drive would not appear to be a breach of the Mareva injunction or part of the evidentiary foundation for the initial finding of contempt. But they are indicative of Mr. Ross’ willingness to lie under oath. His claim that he had no knowledge of the acquisition of properties from his former wife’s trustee in bankruptcy, of the mortgage arrangements, payments and other matters relating to those properties, is not believable.

33 River Road

[56] A transcript of text messages which Mr. Ross filed just before the commencement of trial indicates that in May 2020, six months after his assets were frozen by this court’s order, Mr. Ross texted his friend Christopher Meisner (who he subsequently sued by way of third-party proceedings) about two buildings that he was finishing up and renting out. A portion of their exchange is as follows:

Ross: Man, I’m over here taping drywall in some apartments.

Meisner: Fuck how long is that gonna take? What you doing exactly?

Ross: I’m doing the mudding. It’s about 1/3 done now. Tomorrow it’ll be 2/3 or so…This week I’ll do the trim work in the evenings, and then a week from Monday the painter is booked to come in… I have them rented for July 1… This one the breakdown is as follows:

Rents for two units: $2,120.00

Mortgage payment: $517.00

Taxes: $210.00

Insurance: $266.00

Utilities: $280.00

Profit: $847/month

[57] Mr. Ross denied that the property he is discussing in this exchange of texts was another property which was owned by Culloden Properties and had been acquired from the trustee of his ex-wife. When he was ultimately presented with evidence showing that Culloden owned the property and the lease, which Mr. Ross had executed on behalf of Culloden in December 2020 (which states that Mr. Ross is the current agent or property manager for the landlord and the current superintendent of the building”), Mr. Ross asserted that “there’s nothing against me having any kind of, like, employment or volunteer work with the corporation”.

[58] An affidavit was obtained by the plaintiffs from Jayden Caines, in which he described Mr. Ross as his landlord at 33 River Road, Halifax, from December 2020 to March 2021. Mr. Caines never had any dealings with Mr. Ross’ parents. Yet Mr. Ross, in an affidavit filed on 10 July 2021, claims that his only interaction with Mr. Caines was during completion of administrative tasks related to his renting of a property. He claims that Mr. Caines has, subsequently, been threatening him.

[59] Regardless of what Mr. Caines may or may not have done while and since he was a tenant at 33 River Road, I am quite satisfied from the record that Mr. Ross acted as property manager and de facto landlord in relation to the River Road property.

6 Middle Street

[60] The other building which Mr. Ross texted Mr. Meisner about was 6 Middle Street. Of that, Mr. Ross wrote:

Ross: The other 3 unit I’m finishing up too is as follows:

Rents for three units: $2,950.00

Taxes: $265

Insurance: $210

Utilities: $400

Profit: $1490

So just off those two small buildings, they’re profiting $28,000.00 a year.

[61] On his examination in aid of execution, Mr. Ross denied that the three unit building he described to Mr. Meisner was 6 Middle Street. He insisted that he only obtained the breakdown of revenues and expenses through his “volunteer” work. When asked who the owner of the building was, he said:

I’m not even sure…I volunteer for a bunch of my different friends so, I don’t know which building in particular this is…I help them out with some financial, like calculations and stuff…these guys own hundreds of units. I’m not sure which one it was.

[62] When asked why his “friends” who own “hundreds of units” do not pay him for his services, even though Mr. Ross has no money in his bank account, Mr. Ross explained:

I didn’t ask to be paid…I don’t need it, Matt. I don’t require this big, grandiose lifestyle. I really don’t care…and, again, you also don’t get to owning hundreds and hundreds of units by overpaying every person that walks across your front lawn. If they can take advantage of a little bit of free labour…that’s just more money in their pocket.

[63] Despite his espoused modesty, on 6 January 2020, (again, a date after the original Mareva injunction order), Mr. Ross told Mr. Meisner that he had spent $26,000 eating out at restaurants in 2019. On 14 March 2020, he wrote to Meisner about a mutual friend, remarking: “My watch is worth more than their car, and my car is worth more than their fucking house ha hah”.

[64] The property at 6 Middle Street is owned by Mr. Ross’ father, Peter Ross. When taking title, Peter Ross reported his address at the same UPS store mailbox in Dartmouth, NS, that Mr. Ross used on other occasions. Evidence gathered by the plaintiffs suggest that it was Mr. Ross who put the original deposit down on 6 Middle Street (as he had with the Flying Cloud Drive and River Road properties) and that thereafter, he made mortgage payments.

Old Sackville Road

[65] While not germane to the finding of contempt itself, but very germane to whether Mr. Ross has purged his contempt and or committed further contempt, in November 2019, just before the original Mareva injunction was granted, Mr. Ross sent a text to his friend Christopher Meisner concerning properties at 276 and 272 Old Sackville Road:

Ross: “Just getting finished with this place and putting it for sale. Had some machines dropped this am to cut in the new driveway and yard… It was a small house on a huge lot. I bought it four years ago. Fixed it a bit and rented it. Now we subdivided the lot so I get free lot, completely renovated the house too [sic] to bottom… Bought for $97500. Put 38750 into it. House is going up for $249,900.00 and the free lot I’ll get $110k for lol.”

[66] Asked about this text during his examination in aid of execution, Mr. Ross said that he did not have any properties in November 2019 and does not know which property was being discussed. When asked if he had been lying to Mr. Meisner about owning and renting property, Mr. Ross replied, “I mean, we were probably shooting the shit about something, but I don’t even know what it’s in relation to…we’re probably just shooting the shit, talking like a couple of guys.”

[67] However, in January 2020, after his assets were frozen, Mr. Ross told Mr. Meisner that he was “Getting some properties sold…things are good. I will need to get rid of a couple of more places and restructure a bit but it’s coming good”. Asked about this at his examination in aid of execution, Mr. Ross denied that he was referring to property, and claimed this was “mental restructuring” only.

[68] The evidence developed by the plaintiffs indicates that the texts appear to refer to properties at 276 and 272 Old Sackville Road. 276 Old Sackville Road had been previously owned by Mr. Ross’ ex-wife. When the property was severed, 272 Old Sackville was created.

[69] The plaintiffs have produced a copy of a multi-listing service notice for 276 Old Sackville Street which Mr. Ross posted on 25 January 2020 (so after the Mareva injunction) on a social media page: “newly renovated 3-bedroom one full bathroom home…updated inside and out including complete regrading of the driveway and yard, new roof, new siding, new windows, new flooring updates in the kitchen, new trim and full painted throughout”.

[70] Despite Mr. Ross’ protestations to the contrary, and in particular his assertions that the work done and any transactions involving the Old Sackville street properties have been at the behest of his parents, I am completely satisfied that it is, in fact, Mr. Ross who has been dealing with them.

Mr. Ross’ Real Property Activities: A Conclusion

[71] The property dealings which Mr. Ross has been involved with, as described above, are relevant to both of the issues that need to be decided on this motion.

[72] To the extent that Mr. Ross was, either directly, or through a front such as Culloden Properties, buying, selling, renovating, renting or otherwise generating economic benefit from properties after the effective date of the Mareva injunction, such activities represent additional support for the finding already made of multiple episodes of contempt of the court’s order.

[73] Mr. Ross has not told the truth about these properties and transactions when questioned about them during his examination in aid of execution.

[74] Additionally, the extent to which he has worked as a property manager since the 7 January 2021 order (as indicated in the affidavit of Mr. Caines) would form the basis for a further finding of contempt on the part of Mr. Ross.

[75] These property transgressions are but a small part of a much larger and more serious picture.

Mr. Ross’ Bank Activity in Relation to Multiple Corporations

[76] When one turns to the bank accounts and other business dealings of Mr. Ross, it can be seen that he effectively thumbed his nose at the court from the minute that he became subject to the Mareva injunction and has continued to do so, the subsequent court orders of 7 January 2021 and 29 March 2021 notwithstanding.

[77] Mr. Ross deposited the Crawfords’ insurance proceeds into a Standard Paving Limited account at the Bank of Montreal. This appears to have been his main operating account until his assets were frozen in December 2019. When that account was frozen, Mr. Ross moved his activity to an account at the Royal Bank of Canada in the name of Standard Paving Limited, the existence of which was not disclosed, despite the order of this court requiring disclosure. He also, as discussed in the trial decision, operated through a RBC account in the name of TAB Civil Contracting Corporation, a company ostensibly “owned” by his friend, Kris Matthews.

[78] Once the use and operation of the RBC accounts was discovered, and those accounts frozen, in July 2020, it transpires that Mr. Ross began cashing cheques and re-filling a prepaid credit card at Money Mart. At the same time, the financial activity in the Culloden Properties bank account increased dramatically. The plaintiffs assert that Mr. Ross’ operations were being funded through that account, and through another corporation, Barber Paving and Construction Inc.

[79] During his examination in aid of execution, Mr. Ross acknowledged that he had used Standard Paving’s undisclosed bank account with RBC after the freezing order had been imposed to pay business expenses and his personal credit card bills.

[80] Closer examination of the records entered into evidence at trial (and which formed, in part, the basis for the court’s finding of contempt) shows that between 20 January 2020 (three days before Mr. Ross brought an unsuccessful motion to dissolve the Mareva injunction) and July 2020, roughly $282,000 in deposits and in withdrawals passed through the Standard Paving account at Royal Bank of Canada. The transactions include e-transfers to “Mom and Dad” from the TAB and Standard Paving accounts at RBC totalling $30,252.76.

[81] Despite this evidence, at his examination in aid of execution, Mr. Ross insisted that none of his companies had any revenue whatsoever in 2020 or in 2021, and that his businesses have not been generating any revenue since the freezing order was imposed.

[82] On 9 April 2020, Mr. Ross texted Mr. Meisner:

All you need to do is incorporate a holding company and have all the income go into the holding corporation. Keeps it off your tax return and then just have a credit card on the corporate account and pay it off from the company account…it’s better to keep the income away from you personally. I do the same thing.

[83] Apparently consistent with this approach, on 22 April 2020, Mr. Ross’ Nova Scotia lawyer wrote a cheque to TAB Civil Contracting Corporation for $62,959.82, with the memo line reading “Proceeds Ross/Echo”. The plaintiffs submit that this may be connected to the Lake Echo property. The cheque was deposited on 28 April 2020. Three days later, TAB Civil Contracting Corporation made a $10,000 payment to Mr. Ross’ Canadian Tire Mastercard.

[84] Evidence which was not before the court at the time of trial has now emerged in the form of an affidavit from Mike Yari, who is the president of a Halifax business called Pinnacle Construction. His affidavit was sworn on 24 June 2021. He deposes that in January 2020 (so, shortly after the assets of Mr. Ross and Standard Paving were frozen), he retained Standard Paving Limited to complete concrete form work on a project known as the “Bowtie” project – a six storey, multi-unit residential building in Dartmouth. Mr. Yari confirms that Pinnacle paid Mr. Ross the sum of $168,959.07 during 2020. His affidavit authenticates a series of cheques which were provided to Mr. Ross, some of which were deposited in the Standard Paving Limited RBC account, and others which were negotiated at Money Mart.

[85] Mr. Yari deposes that Standard Paving was retained in June 2020 to complete a sewer tie in on the same project as the previous contract.

[86] Mr. Yari’s affidavit also explains how one of Standard Paving’s subcontractors placed a lien on the property because, apparently, Standard Paving had refused or otherwise failed to pay for the subcontractor’s services. Pinnacle paid $47,000 to have that lien discharged. Other problems and deficiencies ultimately resulted in Standard Paving being eliminated from the project.

[87] The following extract from Mr. Yari’s affidavit is instructive:

23. SPL invoiced Pinnacle throughout SPL's involvement with the Bowtie project. One of the invoices we received from Ross, dated August 24, 2020, stated that the name of his company was "Barber Paving and Construction Inc." ("Barber Paving"). To the best of my recollection, Ross never explained to me why he submitted this invoice through this company….

24. The address for Barber Paving as listed on the invoice was the same address we had on file for SPL: 231-610 Wright Ave in Dartmouth. The email address was sr@barberpaving.ca (I understand "SR" to be reference to "Shane Ross"). The telephone number was 902-476-8464, which matches the telephone number for SPL as listed on SPL's website (http://www.standardpaving.ca/) ….

25. Pinnacle paid SPL/Barber the following amounts in relation to the Bowtie project (exclusive of the $47,000.00 we paid to Sancton [an unpaid supplier of scaffolding to Standard Paving] to have its lien discharged, as above):

DATE

SUM

February 21, 2020

$10,691.55

February 25, 2020

$4,455.88

March 13, 2020

$8,521.27

March 27, 2020

$13,159.62

April 24, 2020

$16,091.15

May 15, 2020

$10,273.93

June 26, 2020

$14,375.00

June 30, 2020

$36,369.90

July 31, 2020

$26,270.77

September 1, 2020

$11,500.00

September 3, 2020

$17,250.00

Total

$168,959.07

[88] Mr. Ross denied that any of the cheques from Pinnacle Construction that he cashed at Money Mart were related to work that was ongoing in 2020. Rather, he said, Pinnacle was “…leftover clients from over the last couple of years and there some expenses that we had to basically take money in and then send it right back out. So there is no net increase or decrease in the asset position of the company whatsoever.”

[89] The reference to there being no net increase or decrease in the asset position of the company reflects a recurring theme in Mr. Ross’ defence of his position, and his explanation for many of the transactions which he undoubtedly was party to.

[90] Mr. Ross has a friend, Jonathan Sousa. He and Mr. Ross were at university together. Mr. Sousa is now a Chartered Professional Accountant, living and working in Bermuda. He is the director of a company called Fathom Group Limited. According to its Instagram page, Fathom Group Limited is in the soft furnishings and marine upholstery business. Mr. Ross explained that Mr. Sousa’s mother conducts the soft furnishings and marine upholstery aspects of the business (although he was able to identify his friend Mr. Sousa in a picture showing a gentleman operating a sewing machine). However, according to Mr. Ross, Mr. Sousa, who also works for one or more Bermuda based reinsurance companies, undertakes professional accounting work through Fathom Group Limited. A letter from Mr. Sousa, dated 2 September 2020, produced by Mr. Ross, indicates that Mr. Sousa was asked to analyse certain documents and offer an opinion on whether the debt financing activities taken by the shareholders of Standard Paving Limited and Standard Building Contractors Limited “outside of the company” and, in particular, the use of the Mastercard held by Mr. Ross “should not have any impact on the asset value of the shareholder or the subject companies”.

[91] Exactly what Mr. Sousa’s mandate was and what documents he analysed is not clear. Aside from the fact that his letter is not, by any stretch of the imagination, couched in the form or usual content of an expert opinion, it does little to support the position taken by Mr. Ross.

[92] Mr. Ross seems to believe that if he was receiving money and paying corresponding expenses out of his business accounts, and thereby not depleting the asset base of his companies, he was not breaching the Mareva injunction. This, of course, ignores the fact that the accounts were frozen (although the bank at the time was not aware of this, because Mr. Ross had not disclosed the existence of the SPL account at RBC to the court or to the plaintiffs and had not told the Bank about the order).

[93] Quite how Mr. Ross then reconciles processing cheques generated as a result of Standard Paving’s contract with Pinnacle through Money Mart with the limitations imposed by the court’s orders, eludes me.

[94] It gets worse for Mr. Ross. In relation to a lien dispute between Standard Paving Limited and Pinnacle Construction Limited, Mr. Ross swore an affidavit in Nova Scotia proceedings on 5 February 2021. In that affidavit, he swears that SPL supplied labour, materials and equipment to Pinnacle up until 11 December 2020 (so, after the evidentiary stage of the Crawford trial had finished), claiming $416,054.40 for the work done by SPL for Pinnacle.

[95] Mr. Ross swore a second affidavit in support of SPL’s lien claim against Pinnacle on 22 June 2021. In that affidavit, he confirmed that the last day worked by Standard Paving on the project was 15 December 2020. He then refers to GPS logs which, he alleges, show Standard Paving’s backhoe and tandem vehicle being used in and around Halifax in November and December 2020. He also appends as an exhibit an email that he says he sent to Pinnacle on 16 October 2020 in which he states “I’m not sure if you think you’re the only client we have, but you’re not…we can’t just jump when you say go, we have other commitments”.

[96] Mr. Yari was not cross-examined on his affidavit. However, during the course of being cross-examined at the hearing on 15 July, Mr. Ross said that his work as a contract administrator in relation to the Pinnacle contract was on a “voluntary” basis. The amount of work done, he claimed, was minimal.

[97] Mr. Ross said that he had no recollection of telling Pinnacle that SPL’s assets were frozen. However, he maintained that there was nothing in the Mareva injunction that enjoined SPL from using equipment or allowing others to use its equipment. Furthermore, he claims that there was nothing wrong with cashing the Pinnacle cheques at Money Mart because the money was not Standard Paving’s money. This, he said, was because under Nova Scotia law, all funds paid by a client in a construction setting are trust funds held for the benefit of subcontractors. He did not tender any legal opinion to support that contention. Asked why he had resorted to using Money Mart, he said that it was because his friend and subcontractor, Mr. Horner, had asked to be paid in cash. He claims that a majority of the money cashed through Money Mart, in fact, went to Mr. Horner.

[98] The process of describing the tangled web of deception weaved by Mr. Ross is exhausting.

[99] For every lie and inconsistency that was put to him, he had an answer. He maintained the same expression and demeanour throughout both his testimony and his oral submissions, no matter how firm the questioning by counsel or interventions from the bench. There was no intent, he repeatedly explained, to breach the orders. He said he had taken the precaution of seeking professional advice, which led him to believe that he was doing nothing wrong.

[100] He did not only rely on Mr. Sousa. He also claims that he understood from the legal advice given to him that he was not in breach of the orders (in that regard, I have made two orders permitting lawyers who have represented him and his companies during the course of these proceedings be removed from the record).

Corroborated evidence from Ms. Slaunwhite (Mr. Ross’ former Office Manager)

[101] After the discovery of the hitherto undisclosed bank accounts held with Royal Bank of Canada, as already noted, Mr. Ross began cashing cheques and purchasing pre-paid credit cards at Money Mart. The Crawfords learned about this through Mr. Ross’ former office manager, Courtney Slaunwhite. Ms. Slaunwhite had testified at trial. At paragraph 29 of my reasons for decision (2021 ONSC 166), I commented that there was good reason to doubt the veracity of much of Ms. Slaunwhite’s evidence, adding that “she was a feisty, argumentative and defensive witness”.

[102] At the time of trial, Ms. Slaunwhite was fiercely loyal to Mr. Ross. Following the trial, they evidently fell out. In late March 2021, she approached the plaintiffs’ lawyers, offering to give evidence in this proceeding. She led the plaintiffs to the various real properties that have been discussed above, informed them of Mr. Ross’ dealings at Money Mart and alerted them to the fact that Mr. Ross was operating through Barber Paving and Construction Inc. While, Mr. Ross, not surprisingly argues that little if any weight should be placed on Ms. Slaunwhite’s evidence, given how unreliable I found her to be at trial, the information which she provided to the plaintiffs has been corroborated.

[103] Between 2 July 2020 and 25 March 2021, Mr. Ross cashed cheques through Money Mart totalling $203,428.20. Ten of these cheques were processed through Money Mart following the conclusion of the trial, totalling over $69,500.

[104] During the course of his examination in aid execution, Mr. Ross acknowledged that he had resorted to Money Mart after the RBC accounts were located and frozen in July 2019, and that he had used a pre-paid credit card over a period of five months. He denied that this was a breach of the court order, claiming it was “outside of the Mareva. It’s nothing to do with it”.

[105] In keeping with prior behaviour, Mr. Ross then blamed Ms. Slaunwhite for cashing cheques after the trial in November 2020. However, Money Mart confirmed that the cheques it disclosed to the plaintiffs were cashed by Mr. Ross (their policy being to require identification before letting anyone cash a cheque).

[106] After the RBC accounts were frozen, there was a significant increase in the overall activity in the Culloden Properties bank account. Until April 2020 (with the exception of one month), the highest monthly closing balance in the account had been $65.93. On 27 May 2020, Culloden Properties obtained a COVID loan of $40,000. Then from July 2020 until December 2020, monthly deposits to the account were $8,900, $42,637.68, $55,992.58, $67,697.34, $179,032.29 (November 2020) and $6,217.58. Payments from the Culloden Properties account include expenses apparently incurred by Mr. Ross for items such as a fitness club membership, a telephone bill and construction equipment, including lease payments for equipment that had been leased by Standard Paving.

[107] Further evidence of continued economic activity by Mr. Ross and his companies was produced in the form of identical advertisements posted to the “Indeed” website. The posts said that Standard Paving and Culloden Properties were hiring concrete labourers, framing carpenters and an experienced operator to operator a 13-ton Hitachi machine in Halifax. Mr. Ross initially claimed that this was a coincidence, but then explained that Culloden had recently retained an administrator who used to work for him, so that it is possible that she had “inadvertently” posted a series of Culloden job advertisements under Standard Paving.

[108] In his sworn statement of assets, Mr. Ross claimed that, as of 5 May 2021, there was roughly $250,000 worth of his vehicles and equipment at 38 Gotha Street, Trenton. Photographs taken at that address two days later confirm that none of the vehicles or equipment could be seen at that address (although Mr. Ross insisted that some of the smaller traffic control equipment was sitting inside a sea container). His explanation for the absence of the equipment was that he lends it out to other people:

Well, the assets are frozen. That doesn’t prevent anyone from using it…different people are borrowing stuff, borrow a truck, borrow whatever.

When asked what he was paying the owner of 38 Gotha Street to store his equipment at that location, Mr. Ross claimed that a friend of his had a lease with the owner and that the friend let him leave items there.

[109] Barber Paving and Construction Inc. was incorporated by Ms. Slaunwhite in July 2020. In March 2021, Ms. Slaunwhite claims she discovered that she could no longer access the company’s bank account. She alleges that, without her knowledge, she had been removed as the sole director of what she regarded as her own company, and that Mr. Ross’ friend, Kris Matthews, had been added in her place. She says that when she confronted Mr. Matthews about this, he told her that Mr. Ross had given him the paperwork to take to the bank appointing him as a director.

[110] Mr. Ross denies ever receiving any money from Barber Paving. However, two cheques received from Money Mart confirmed that Mr. Ross did, in fact, receive cash and cheques from Barber Paving and Construction. And, as previously indicated, the final invoice received from Mr. Ross in relation to Pinnacle Construction’s contract with Standard Paving was in the name of Barber Paving and Construction Inc. The address for Barber on the invoice is the same UPS mailbox store used by Mr. Ross for other purposes. The telephone number is the same number used by Standard Paving. And the email address was sr@barberpaving.ca.

[111] Ms. Slaunwhite asserts that Mr. Ross continued to operate his business, and that he always had enough money at his disposal to have the Mareva injunction set aside. When she asked Mr. Ross why not just pay the Crawfords to have his assets unfrozen, she alleges that Mr. Ross told her “I just want to fuck with them”.

[112] Ms. Slaunwhite also maintains that Culloden Properties Corporation is operated by Mr. Ross and that the whole point of the corporation is to keep assets out of Mr. Ross’ own name. She confirmed that Mr. Ross operated the Culloden Properties email account and phone number, and that she had seen Mr. Ross access the Culloden Properties bank account using online banking.

[113] While there is good reason to take any evidence given by Ms. Slaunwhite with a pinch of salt, as previously indicated, much of the information that she provided to the plaintiffs’ lawyer was corroborated by other sources. Taking in the overall context, having particular regard to Mr. Ross’ complete disregard for the truth, I am inclined to accept her evidence at this stage of the proceedings as reliable.

[114] Consistent with the “blameless approach”, when questioned why he has not paid the judgment debt, Mr. Ross has laid the blame at the feet of the plaintiff’s lawyers. He accuses them of refusing to act in a professional manner:

…there’s no real point in having this whole exercise because we have already tried to comply with you as far as payment terms and it’s been you guys that have been holding it up by not replying to our lawyer for weeks on end… You’re just not replying to him when he’s trying to contact you to make arrangements.

[115] Mr. Ross maintained this position at the hearing on 15 July 2021, claiming that he had not paid his debt to the plaintiffs because the plaintiffs’ lawyers’ refused to accept his proposed terms for retiring the balance of the judgment debt owing. However, he was unable to produce a copy of any written proposal made by him to retire the debt.

[116] Mr. Ross also lays blame at the feet of the plaintiffs themselves, taking the position that now that he has repaid the entirety of the insurance money (i.e. reimbursed the amounts advanced by the insurers – he has not paid the judgment debt in full which also includes punitive damages, interest and costs) that if the plaintiffs are still short on funds to complete the rebuild of their home, it is because of their mismanagement not his.

Findings upon which the penalty for contempt is based

[117] The evidentiary stage of the trial of this action concluded on 26 November 2020. My decision was released on 7 January 2021. My finding that Mr. Ross was in contempt of the court’s freezing orders was based on the evidence that was presented at trial.

[118] Since the release of my decision, the plaintiffs have attempted to enforce their judgment. They have also taken an active role in the continued prosecution of their contempt motion through to the penalty stage.

[119] The plaintiffs’ position is that the appropriate remedy for Mr. Ross’ contempt of court is a term of imprisonment of four months.

[120] In support of their position, they rely not only on what was known about the nature and extent of Mr. Ross’ contempt up to the time of trial but, also, on additional information that has come to light since the trial which, they suggest, clearly demonstrates that Mr. Ross’ contempt was, in fact, far more extensive than had appeared to be the case at trial. Instead of purging his contempt, the evidence suggests that the scale of his contempt is far greater than initially appeared to be the case.

[121] As the Supreme Court of Canada observed in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 18, while the Rules of Civil Procedure do not prescribe the form of contempt proceedings, as a general rule, proceedings are bifurcated into a liability phase, where the case on liability proceeds and a defence is offered, and, if liability is established, a penalty phase.

[122] At the Court of Appeal level in Carey (Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530), the Court reinforced the principle, at para. 32, that the parties have one chance to present their case on a contempt motion and, absent exceptional circumstances, the finality principle precludes a contemnor getting a second “bite at the cherry” [emphasis added]. This observation was made in the context of a situation where the motions judge had initially found an individual to be in contempt but, following evidence received during the penalty phase, had allowed the finding of contempt to be reopened, ultimately finding that she could no longer be satisfied beyond a reasonable doubt of the respondent’s contempt.

[123] The Court of Appeal identified two qualifications to the general rule that a contempt finding at the first hearing is final.

[124] First, because the ultimate aim of the law of civil contempt is to secure respect for and compliance with court orders, there must be a certain element of flexibility in the way it is applied. Accordingly, if the contemnor purges the contempt, Rule 60.11 provides a judge with the discretion to vary or even discharge a contempt order. The logic of this qualification is that the contempt proceedings will, in such circumstances have had their intended effect of securing compliance with a court order.

[125] The second qualification, described at para. 35 of the Court of Appeal’s decision “is that contempt proceedings are subject to the standard principles that allow parties to re-open findings in exceptional circumstances where there is sound explanation for why the fresh evidence or new facts were not presented to the court before the contempt order was made” [emphasis added].

[126] The Supreme Court of Canada in Carey, at para. 66, endorsed the Court of Appeal’s approach, stating that, without exhaustively outlining the circumstances in which a judge may properly revisit an initial contempt finding, the two exceptions enunciated by the Court of Appeal were apt.

[127] The circumstances of the present case are most unusual.

[128] As indicated in these reasons, some of the facts drawn out by the plaintiffs in their submissions during the penalty phase were contained in the evidentiary record that the court grounded its contempt findings on. However, many additional facts have come to light since the initial contempt finding was made. In large measure, these facts had been supressed and could not, with the exercise of reasonable diligence on the part of the plaintiffs, have been discovered sooner. Examples would include the property dealings, the use of the Money Mart account, the activities of Culloden Properties and Barber Paving, and the contract with Pinnacle. Many of these activities only came to light as a result of Ms. Slaunwhite coming forward in March of 2021.

[129] While I will go on in these reasons to address whether there has been further contempt of the court’s orders of 7 January and 29 March 2021, I am satisfied that the exceptional, if not unique, circumstances of this case warrant the taking into account evidence that has emerged since the trial, because it illuminates and informs the nature and extent of the contempt which I found at trial to have taken place. Indeed, I would suggest that it would undermine the purpose of the contempt power to deter violation of court orders, thereby encouraging respect for the administration of justice, if I were not to take into account what has come to light since the trial.

[130] That having been said, it is important that I draw a line of demarcation between the violations of the orders of MacLeod-Beliveau J, which form the basis of my finding of contempt at trial, and the further allegations of contempt of my own orders of 7 January and 29 March 2021, which I am now invited to make.

[131] I will accordingly base my penalty decision only on those events which are now known to have occurred up to the date of my contempt finding.

Penalty

[132] As already mentioned, the plaintiffs urge the court to send Mr. Ross to prison.

[133] As the Court of Appeal observed in Korea Data Systems Co v. Chiang (2009), 2009 ONCA 3, 93 O.R. (3d) 483, at para. 90:

Custodial sentences for civil contempt are rare. Lengthy custodial sentence [sic] are even rarer. Canadian courts have tended to punish contempt of court leniently. Ordinarily, the mere conviction for contempt together with a modest fine suffices to obtain compliance and protect the court's authority. Ordinarily, incarceration is a sanction of last resort: [citation omitted].

[134] In Ceridian Canada Ltd. v. Azeezodeen, 2014 ONSC 4162, aff’d 2014 ONCA 656, at para. 24 (ONSC), after noting that the Superior Court has imposed jail sentences ranging from five days to one year in cases of civil contempt, Belobaba J. found that each of the custodial cases had two things in common, namely (a) the breach was made knowingly and deliberately; and (b) the length of the jail term was a function of the continuing nature of the contempt discounted by the degree of remorse or apology on the part of the contemnor.

[135] Accordingly, as the Court of Appeal confirmed in Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, at para. 89, a jail sentence may be needed to adequately vindicate the due of administration of justice where serious violations of court orders have occurred. That said, because incarceration is ordinarily a penalty of last resort, consideration must also be given to whether any other penalty short of incarceration would be appropriate.

[136] The factors relevant to the determination of an appropriate sentence for civil contempt were set out by Epstein J.A. in Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, at para. 90, summarised by the Court in Business Development Bank of Canada at para. 90, as follows (with citations omitted):

(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) Presence of aggravating and mitigating factors.

(c) 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.

(d) Similarity of sentence in like circumstances.

(e) Reasonableness of a fine or incarceration.

[137] In Feigin v. L’vova, 2018 ONSC 5091, M. Edwards J. dealt with a motion for contempt for breaching various court orders, including a Mareva injunction, and order requiring the alleged contemnor to provide a full accounting and an order requiring a payment into court. He observed, at para. 63, that:

A Mareva injunction has been described as an exceptional and drastic remedy (see Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530). The whole purpose of a Mareva injunction is to provide a remedy to an aggrieved party, where it can be established that a "rogue is flouting the civil processes of the court". As Myers J. in Pronesti v. 1309395 Ontario Ltd., 2015 ONSC 1139 at para. 31 goes on to state "...[a] civil remedy that cannot be enforced provides scant justice to the applicant. The civil law must enforce its Mareva orders if justice is to be served in cases involving people whose consciences do not bind them to comply with the law..."

[138] At para. 66 in Feigin, Edwards J. added that, when considering the desirability and necessity of ensuring compliance with a Mareva order, “[i]f the rogue is allowed to get away with flouting the order of the court, this will be little reason for the court to issue future Mareva orders”. Going on to quote Myers J. in Pronesti at para. 33 "...[s]ome punishment is required for deterrence and to express condemnation, but compelling compliance with the underlying order is required to achieve civil justice".

[139] Those sentiments capture precisely my own disposition towards this case.

[140] As is abundantly clear from the evidence, Mr. Ross has serially, repeatedly, shamelessly and unapologetically flouted the court’s orders. Despite my finding, he continues to maintain that it was never his intention to breach them. He would have to have been wilfully blind for that to be so. And, in my judgment, he was not wilfully blind. He is a man with a MBA and a sophisticated understanding of business. I do not believe for one minute that he was misled by poor advice from his lawyers, his accountant friend, his office manager, his subcontractors, or anyone else that he has pointed the finger of blame at in an effort to avoid responsibility for his own actions.

[141] As a result, the only mitigating factor – and it is not an insignificant one – is that, including the bank draft for $47,858.41 which he handed up at the beginning of his oral submissions in court on 15 July 2021, Mr. Ross has now paid $139,495.07 to, or to the credit of, the plaintiffs. Yet, by his own words, he has the ability to pay the balance of the judgment. And while judgment debtors are not punished, by way of contempt proceedings, for not paying civil judgments, the overwhelming impression is that Mr. Ross has made a deliberate choice not to satisfy the plaintiffs’ judgment.

[142] The aggravating aspects are, of course, the sheer number of breaches of the court’s orders. Bank accounts, the existence of which were not disclosed, were operated. Cheques were negotiated through Money Mart. A Canadian Tire credit card was regularly topped up and used as a de facto debit card. Mr. Ross continued to conduct business, he and his companies entered into contracts, monies came in and went out, properties were managed, renovated and bought or sold. And for much of the time, Mr. Ross lived well, while the plaintiffs inhabited a trailer next to the burnt-out shell of their former home.

[143] The fictions that Mr. Ross acted as a “volunteer”, that he lived off the largesse and generosity of his “friends”, that his parents, living in Ontario, were actively involved with the businesses and properties in the Halifax, Nova Scotia area where Mr. Ross happens to be living, are all just that. Fictions. The scale and the audacity of Mr. Ross’ deception is almost unbelievable.

[144] Mr. Ross submitted that the appropriate penalty for his contempt would be a fine of $2,500.

[145] Even that suggestion is, in some respects, offensive. Having thumbed his nose, not only at the court, but at the plaintiffs, he proposes a modest payment – a fraction of what he still owes the plaintiffs – as an appropriate penalty for his serial contempt.

[146] The circumstances described above demand nothing less than a condign sanction. In the Business Development Bank case, the Court of Appeal reduced a 90-day term of imprisonment imposed by the motions judge to 45 days, finding that the case involved a single breach of a court order and that the plaintiff had otherwise achieved the remedy that it sought in its litigation with the contemnor. As a result, the Court of Appeal found that the 90-day sentence was disproportionate.

[147] In the present case, as will be apparent from my earlier comments, I have considered other options, including a fine, but have concluded that the nature and extent of Mr. Ross’ repeated breaches mandate a custodial sentence.

[148] I have concluded that a term of 90 days will send a message that has not, hitherto, got through to Mr. Ross, namely that the law requires him to comply with the court’s orders. It is also an appropriate measure of the denunciation of his conduct that the circumstances warrant and, more generally, may deter others who are tempted to behave as he has done.

[149] I therefore order the imprisonment of Mr. Ross for a period of 90 days.

Further Contempt

[150] I remind myself that a finding of civil contempt requires that:

a. The order alleged to have been breached must have stated clearly and unequivocally what should and should not be done;

b. The alleged contemnor must have had actual knowledge of the order; and

c. The alleged contemnor must have intentionally done the act that the order prohibited or intentionally failed to do the act that the order compelled.

[151] I am left in no reasonable doubt that Mr. Ross has been dishonest and deceitful in his statement of assets, in the monthly financial updates that he has provided, and throughout his examination in aid of execution.

[152] Furthermore, as is apparent from a review of his examination in aid of execution, the financial records that have been provided and the affidavits of witnesses that have been filed, that Mr. Ross has, to use the language of Rule 60.18(5) of the Rules of Civil Procedure “concealed or made away with property to defeat or defraud creditors.”

[153] Moreover, he has continued to flout the injunction itself. The injunction enjoins Mr. Ross, his agents and another else acting on his or their behalf, and anyone with notice of the injunction, to refrain from directly or indirectly, by any means whatsoever,

a. Selling removing, dissipating, alienating, transferring, assigning, encumbering or similarly dealing with any assets of the defendants wherever situated;

b. Instructing; requesting, counselling, demanding or encouraging any other person to do so; and

c. Facilitating, assisting in, aiding, abetting, or participating in any acts the effect of which is to do so.

[154] Since the judgment of 7 January 2021, Mr. Ross has presented cheques, in direct contravention of the judgment, through Money Mart. He has worked. He has managed properties. He has used companies that he controls to front for him.

[155] His dishonesty, perpetrated through affidavits, his testimony during his examination in aid of execution and his testimony at the hearing on 15 July 2021, is patent and unrelenting.

[156] Even the adjournment request by Mr. Ross on 12 July, when he peddled out the same excuse (namely, inability to download documents from the plaintiffs’ lawyer’s OneDrive) as he had in March, is indicative of how little respect Mr. Ross has for the rule of law and the court’s process.

[157] I therefore find him in contempt of the court’s orders of 7 January 2021 and 29 March 2021. As Mr. Ross will be incarcerated for the next 90 days, he is ordered to return to this court on Monday, 1 November 2021, at 2:00 p.m., at which time I will consider what, if any, further penalty is warranted for his further contempt.

Costs

[158] All matters of costs arising in relation to the penalty phase of the original contempt finding and the further contempt motion will be addressed at the hearing on 1 November 2021.

Graeme Mew J.

Released: 4 August 2021