COURT FILE NO.: CV-20-00653959-00ES
DATE: 20210928
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of the Estate of Gabor Nagy, deceased
BETWEEN:
GABRIEL NAGY
Applicant/Moving Party
– and –
SANDRA DI NARDO and ANNE EVA NAGY
Respondents
Gabriel Nagy, Self-represented
Sandra Di Nardo and Anne Eva Nagy, Unrepresented
HEARD: September 22, 2021
REASONS FOR DECISION
Dietrich J.
Overview
[1] This matter involves the persistent refusal of the Estate Trustee of the Estate of the late Gabor Nagy (the “Estate”) to account to her brother and her sister for her administration of the Estate.
[2] This court issued a Certificate of Appointment of Estate Trustee without a Will to the respondent Sandra Di Nardo (the “respondent”) on June 4, 2015. Despite numerous requests from her brother, the applicant Gabriel Nagy, and an order made by Justice Hainey of this court requiring her to file her accounts and an application to pass them, the respondent has failed to do so.
[3] On August 11, 2021, I found the respondent in contempt of court for her failure to obey Justice Hainey’s Order, dated March 2, 2017: Nagy v. Di Nardo 2021 ONSC 5540. I afforded the respondent fourteen days to purge her contempt by complying with Justice Hainey’s Order. She did not purge her contempt.
[4] The applicant now comes before the court seeking an order imposing a penalty on the respondent. The respondent does not appear today. The other respondent in the within application, Anne Eva Nagy, has submitted her rights in this matter, and appears today to observe the proceedings.
Background Facts
[5] The beneficiaries of the Estate are the three children of the late Gabor Nagy: the applicant, the respondent, and Anne Eva Nagy. Each of them is entitled to one-third of the Estate pursuant to the rules of intestate succession.
[6] Since making an interim distribution to the beneficiaries, the respondent has refused to provide the beneficiaries with an accounting of her administration, and she has not made any further distribution of Estate property to the applicant. The respondent has failed to provide as much as an informal accounting. Accordingly, the applicant has no means of assessing what he is entitled to from the Estate, what remains owing to him, and whether the respondent has administered the Estate properly.
[7] To make matters worse for the applicant, the respondent has evaded service since Justice Hainey’s Order was personally served on her. Despite numerous requests, she has refused to provide her current mailing address to the applicant and has moved residences more than once.
[8] On June 15, 2021, Justice Cavanagh of this court made an order permitting the applicant to serve the respondent via email to her personal email address (as set out in the order), with a text message to her cell phone number (as set out in the order) notifying her that he has sent the documents to her by email. Despite further requests by email and text, and the applicant’s warning of his intention to bring a motion for contempt, the applicant got no response from the respondent.
[9] On August 16, 2021, the applicant served a copy of my Reasons for Decision in the contempt motion to the respondent via email in accordance with Justice Cavanagh’s Order. The applicant served the corresponding Order on the respondent in the same manner on August 24, 2021. He got no response.
[10] The respondent has not purged her contempt by filing her accounts and an application to pass them, as ordered by Justice Hainey. She had fourteen days from the date of my Reasons for Decision on the contempt motion to do so.
Position of the Applicant
[11] The applicant asserts that the respondent has ignored Justice Hainey’s Order for more than four and a half years, and that she has no intention of complying with it. She was given an opportunity to purge her contempt by complying with that Order, and she declined.
[12] The applicant submits that the respondent has a lot of money and that this court should levy a fine for her contempt and that the fine should be substantial.
Analysis
[13] The issues I must consider in this sentencing proceeding are as follows:
Did the respondent make a good faith attempt to purge the contempt?
What are the circumstances of the offender?
Are there mitigating or aggravating factors?
What is the appropriate sentence to be imposed?
[14] First, based on the record, the respondent has made no effort to purge the contempt. She has ignored my Judgment in the contempt proceeding in the same way as she has ignored Justice Hainey’s Order. She did not respond to the applicant’s service of my Reasons for Decision and corresponding Judgment on her. The respondent has not appeared in court today to offer any explanation for her ongoing contempt of Justice Hainey’s Order.
[15] Second, there is no information before the court to suggest that the respondent is in ill-health, or that she is in financial straits.
[16] Third, in my view, there are no mitigating factors. The respondent has not admitted that she has breached Justice Hainey’s Order, and she has persistently declined to obey it. The respondent has rejected the authority of the court and has breached Justice Hainey’s Order with the full understanding and knowledge of the contempt.
[17] Fourth, rule 60.011(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 regulates the punishment that a court may impose in a contempt matter:
(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary,
and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
[18] Contempt of court may be civil or criminal. In the former case, it generally involves failure to comply with a court order in private litigation, as is the case with the respondent, Ms. Di Nardo. In Chiang v. Chiang, 2009 ONCA 3 at para. 10, the Ontario Court of Appeal held that a failure to follow a court order in private litigation invariably reflects “public disrespect for the authority of the court.”
[19] In United Nurses of Alberta v. Alberta, 1992 CanLII 99 (SCC), 1992 1 S.C.R. 901 at p. 931, the Supreme Court of Canada held that the whole point of punishing a contemnor is to maintain the rule of law.
[20] In considering the relevant principles, I find that the respondent has shown disrespect for the authority of this court by willfully ignoring Justice Hainey’s Order. In breach of her fiduciary duty, she has also steadfastly refused to engage with the applicant, a beneficiary of the Estate, who is entitled to the accounting he seeks. She has put him to considerable personal expense through her refusal to provide him with her co-ordinates for service and her refusal to respond to any of his correspondence encouraging her to comply with Justice Hainey’s Order. The respondent’s disobedience has continued for more than four and a half years. All of this conduct is evidence of the respondent’s profound disrespect for the authority of the court.
Disposition
[21] It is appropriate that this court punish the respondent in a bid to compel obedience. Accordingly, the respondent shall pay a fine of $20,000 within 60 days of the date the Judgment is served on her in accordance with Justice Cavanagh’s Order. Given the respondent’s persistent refusal to comply with court orders in this matter, I have some real doubt about whether she will comply with this order to pay the fine. It is for this reason that I further order that if the respondent does not pay the fine within 60 days of the date the Judgment is served on her, she shall serve a jail sentence of seven days.
[22] If the respondent fails to pay the fine within such 60 days, the applicant may return to this court for an order requiring the respondent to surrender into custody.
Costs
[23] The costs of this motion are reserved to the application judge hearing the applicant’s application in this matter.
Application Date
[24] On August 11, 2021, via email, the applicant sought the respondent’s co-operation to set a date for the hearing of the application. She did not respond to his request. The application is now scheduled to be heard on January 5, 2022 at 10 am.
Service
[25] The applicant shall serve a copy of these Reasons for Decision and the Judgment in this matter on the respondent and Anne Eva Nagy.
Dietrich J.
Released: September 28, 2021
COURT FILE NO.: CV-20-00653959-00ES
DATE: 20210928
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of the Estate of Gabor Nagy, deceased
BETWEEN:
GABRIEL NAGY
Applicant/Moving Party
– and –
SANDRA DI NARDO and ANNE EVA NAGY
Respondents
REASONS FOR DECISION
Dietrich J.
Released: September 28, 2021