COURT FILE NO.: CV-19-00000419-0000 (Kingston)
DATE: 20211101
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 the Plaintiffs
Leonard Hochberg, for the Defendant, Shane Ross
HEARD at Kingston: 1 November 2021
MEW J. (Orally)
REASONS FOR DECISION
[1] Shane Ross is before the court today to address the issue of the appropriate sanction to impose following my finding of contempt, reasons for which were given in my decision, reported at 2021 ONSC 5346, the initial decision having been made on the 15th of July, 2021.
[2] My findings were summarized at paragraphs 151 to 156 of that decision. In essence, I found that Mr. Ross had been dishonest and deceitful in his statement of financial information, and throughout an examination in aid of execution that had been conducted.
[3] In particular, I found that he had concealed or made away with property to defeat or defraud creditors. I found that he had continued to flout a Mareva injunction initially imposed by my colleague, Madam Justice MacLeod-Beliveau, and continued by my judgment at trial and the subsequent consent order of the parties. I found that, in contravention of my trial judgment of the 7th of January, 2021, he had presented cheques through Money Mart. I found that he had worked, that he had managed properties, and that he had used companies that he controlled - family companies - to front for him.
[4] I summarized my conclusions by saying at paragraph 155 as follows:
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.
[5] Mr. Ross has already served a substantial part of a 90-day sentence as a result of the earlier finding of contempt that I made as part of my January 2021 decision. That sentence was imposed concurrently with the hearing at which I made the second finding of contempt, for which Mr. Ross appears in court today.
[6] The plaintiff submits that Mr. Ross should now serve a further substantial period of imprisonment. The suggestion is eight to nine months. The plaintiff says that to impose a lesser sanction would be to send the wrong message to fraudsters and those who are inclined to disregard Mareva injunctions and similar orders of the court.
[7] I am referred, amongst other authorities, to the recent decision of Mr. Justice Myers in Lonneberg v. Onca, 2021 ONSC 6196, in which Justice Myers emphasized the importance of enforcing Mareva injunctions, saying this at paragraph 40:
Mareva injunctions must be rigorously enforced. A fraudster is not likely to be dissuaded from his greed and criminal bent by a piece of paper or a computer screen displaying a fancy red seal. If victims are to be able to obtain the enforceable remedies and compensation that the law promises, the court’s Mareva injunctions freezing assets and requiring asset disclosure must be enforced with the court’s full arsenal of authority and power. Otherwise, Canadians are sheep waiting to be fleeced.
[8] At the next paragraph:
The law is not so feckless.
[9] Against that, on behalf of Mr. Ross, the court is reminded that the approach to sentencing in cases of civil contempt should have regard to the sentencing principles applicable in criminal cases.
[10] I am referred, amongst other authorities, to the decision in the Court of Appeal in R. v. Hamilton, 2004 CanLII 5549 (ON CA), 2004 72 O.R. (3d) 1, and 241 DLR (4th) 490, in which reference was made in particular to subsections (d) and (e) of section 718.2 of the Criminal Code. Those principles being:
(d) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[11] I was also referred by Mr. Hochberg on behalf of Mr. Ross to the Chiang (Re) decision, (2009), 2009 ONCA 3, 93 O.R. (3d) 483 (C.A.), where the court noted at paragraph 11 that:
In cases of civil contempt, the court's emphasis is less about punishment and more about coercion — attempting to obtain compliance with the court's order.
[12] But, of course, that decision goes on to note that:
Still, civil contempt bears the imprint of the criminal law.
[13] Certainly, as has been discussed both in my previous decision and in numerous authorities, in cases of civil contempt, imprisonment is usually the sanction of last resort. In the present case, Mr. Ross has already experienced prison as a result of his contemptuous behaviour.
[14] He comes to the court today expressing remorse, saying, both directly and through others, that imprisonment has had an impact on him and has caused him to reevaluate his attitude towards orders of this court and towards the conduct that has brought him before the court, and in particular, the conduct that has resulted in, now, two sets of findings of contempt.
[15] It seems to me that the objective of coercion has already been met as a result of the sentence which was previously imposed on Mr. Ross. I have considered very seriously the possibility of sending Mr. Ross back to prison, if for no other reason than because of the magnitude of his contempt and the continuation of serial non-compliant behaviour over a period of six months following the release of my decision in January of this year.
[16] Ultimately, however, I am not persuaded that a further term of incarceration will increase the deterrent effect that should already have occurred as a result of the term of imprisonment that Mr. Ross has served.
[17] Nevertheless, a condign sanction is called for in this case.
[18] The rule of law is the bedrock of a democratic and free society, and the power of the court to punish for contempt is a necessary adjunct to the court’s authority, and to prevent undue interference with the proper administration of justice. A contempt proceeding is supposed to be punitive in nature.
[19] I have concluded that the appropriate sanction should include a number of elements.
[20] Firstly, the counselling which Mr. Ross has already commenced, and which he says has helped him to understand that he must change his ways, needs to continue. He is having counselling at the moment on a weekly basis, and I am directing that he continue to engage in that counselling for at least the next two months on a weekly basis at his own expense. At the end of two months, a report from the counsellor, Ms. Smith, assuming that he stays with her, should be produced to Mr. Taft and to the court.
[21] I also think it is appropriate to impose a fine on Mr. Ross, and that fine needs to be meaningful. I have concluded that an appropriate amount would be $10,000, which should be paid within 60 days.
[22] Should Mr. Ross fail to comply with either payment of the fine or with the counselling terms, then he will go to prison for a further 90 days, and this time, it will be 90 days, and not 90 days less remission. He will then need to return to court at the end of that period. The warrant that is made out will be framed in the appropriate language to make it clear that it is a 90-day sanction.
[23] Finally, Mr. Ross will return to court on a date to be set by the court so that the court can confirm that he had complied fully with the counselling and the payment of the fine elements of this sanction. As indicated, should there be a finding that he has not complied, the 90-day term of imprisonment will automatically follow.
[24] That date can be set, I would anticipate it will be in January, but it should be on a date that is mutually convenient to counsel and to the court. Mr. Taft, perhaps you can take the initiative to liaise with counsel and the trial coordinator to set the appropriate date. Depending on the circumstances, it may be appropriate for that hearing to be held virtually if it is simply a question of confirming compliance, but if there is any issue of non-compliance, then the hearing would need to be in person.
THE COURT: That is my decision. Is there any uncertainty as to what has been ordered or what is required? All right? Any other concerns or issues that need to be addressed now?
MR. HOCHBERG: I just suppose that the fine will be paid into court or through the court?
THE COURT: Yes, I think if you look at the rules, I think it gets paid ultimately to the Government of Ontario. I am not sure if the cheque gets made payable to the Treasurer of Ontario, but it is dealt with in Rule 60, or the commentary to Rule 60. If there are any questions about that, I am sure you can figure out. I guess it will be necessary to take out a formal order that captures all of this. I don’t mind which of you does that, but if you can submit it to me for review, I will process it as quickly as possible.
MR. HOCHBERG: Thank you very kindly, Your Honour.
THE COURT: All right. So, Mr. Ross, other than to check in that there has been compliance, I really hope that I don’t have to see you again. I hope that Mr. Taft’s skepticism about the genuineness of your remorse and of your statement that you are going to mend your ways turns out to be ill-founded. I think you can anticipate how you might be dealt with if you fall foul of the law again.
MR. ROSS: I don’t anticipate we’ll see each other again, Your Honour.
THE COURT: Okay. All right, thank you.
MR. TAFT: Thank you, Your Honour.
Graeme Mew J.
Handed down (orally): 1 November 2021
COURT FILE NO.: CV-19-00000419-0000 (Kingston)
DATE: 20211101
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
REASONS FOR DECISION
Mew J.
Handed down (orally): 1 November 2021