COURT FILE NO.: CV-13-0024-00
DATE: 2022-09-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rudolph Steinberg, Jakob Steinberg and Amanda Steinberg minors by their Litigation Guardian, Rudolph Steinberg v. Pamela Adderley
HEARD: September 9, 2022
BEFORE: Fitzpatrick J.
COUNSEL: M. Stoiko, for the Responding party Plaintiff, Rudolph Steinberg
A. Demeo, for the Moving party Defendant
DECISION ON MOTIONS
[1] The defendant brings a motion seeking a finding that the plaintiff is in contempt of court for failure to comply with the order of this court dated April 27, 2022. The order required the plaintiff to attend in the Greater Toronto Area (GTA) for defence medicals. This originally was ordered by Shaw J. on November 26, 2021 (the “Shaw J. Order”). The plaintiff brings a cross motion for a finding that the plaintiff is not in contempt and for an order that the defence medicals be required to be conducted in Thunder Bay. The plaintiff relies in part, on section 1 of the Ontario Human Rights Code R.S.O. 1990 c. H-19 (the “Code”) in respect of this proposed relief on the cross motion.
[2] Also, an endorsement of R.S.J. Warkentin, directed a question as to the costs of the defendant in a related motion that was heard before R.S.J. Warkentin on July 27, 2022 be heard together with this contempt motion.
Background
[3] The Shaw J. Order required the plaintiff to attend defence medicals in the GTA with doctors chosen by the defence. The reasons for Shaw J.’s decision were reported at Steinberg et al v. Adderley 2021 ONSC 7811. The plaintiff moved to vary the order. The motion was denied for reasons set out in Steinberg et al v. Adderley 2022 ONSC 2596. The background and history of this matter is well and fully laid out in both sets of reasons for decision. I rely on that background as well as the new material filed in coming to my decision on these motions today.
The Law
Contempt
[4] There is a well settled three-part test for a finding of civil contempt. The test is set out in the leading text on civil procedure in Ontario, The Law of Civil Procedure in Ontario 4th ed at p. 1219 as follows:
i) Did the order alleged to have been breached clearly and unequivocally state what should and should not be done?
ii) Did the party alleged to have breached the order have actual knowledge of it?
iii) Did the party allegedly in breach intentionally do the act that the order prohibits or did he or she intentionally fail to do the act the order compels?
[5] Each element must be proved beyond a reasonable doubt. Once a finding is made the court then entertains submissions as to penalty.
The Code
[6] Part 1 of the Code provides:
PART I
FREEDOM FROM DISCRIMINATION
Services
1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
[7] Section 46.1 of the Code deals with civil remedies in respect of alleged breaches under Part 1 as follows:
Civil remedy
46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect. 2006, c. 30, s. 8.
Same
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
Disposition
[8] The contempt motion and the cross motion were heard together as well as submissions on costs. For efficiency sake, I am providing my reasons for decision on both motions and the costs question in this endorsement.
Contempt Motion
[9] I find the plaintiff is in contempt of court. The new materials filed on this motion contain an email from counsel dated May 6, 2022, which proves beyond a reasonable doubt all three elements necessary to find Mr. Steinberg in contempt of the Order of Shaw J. as varied by the Order of Fitzpatrick J. contained in the endorsement dated April 27, 2022 (the “Fitzpatrick J. Order”). The email was sent by Mark Stoiko counsel for the plaintiff to Alex Demeo counsel for the defendant. The email stated:
Hello Mr. Demeo,
I have conferred with Mr. Steinberg on this matter.
Please cancel the rescheduled in-person appointments, which are referenced below (May 16-18). I do not want Mr. Steinberg to incur any cancellation fees.
Mr. Steinberg remains seriously concerned about his personal safety, and the potential (and unnecessary) risks that travelling to attend these in-person appointments will force upon him. Thank you,
Mark
[10] The email says it all.
[11] The Shaw J. Order and the Fitzpatrick J. Order clearly and unequivocally state what should and should not be done. The plaintiff has knowledge of the Orders as Mr. Stoiko indicates he has conferred with him about it.
[12] The plaintiff indicates he will not attend the defence medicals as ordered. This is evidence of an intentional failure to do the act compelled by the Shaw J. Order as modified by the Fitzpatrick J. Order.
[13] I do not accept Mr. Steinberg’s submission that there is new evidence that indicates his condition has worsened in a manner that would permit him to avoid compliance with the orders at issue.
[14] Mr. Steinberg’s new affidavit asserts he cannot now drive in an automobile for more than two hours. He says this is different evidence than that which was before Shaw J.. Counsel for Mr. Steinberg candidly admits all the new evidence of Mr. Steinberg and the others who have filed affidavits on his behalf on this motion, do not address in any way Mr. Steinberg’s ability to travel by air or rail. These are two legitimate ways Mr. Steinberg could also get to the GTA as he has been ordered.
[15] Mr. Steinberg has also filed an affidavit from a treating chiropractor Dr. Brian Schroeder sworn July 22, 2022. The affidavit does not indicate when Dr. Schroeder last treated Mr. Steinberg. In addition to giving a diagnosis of what happened to Mr. Steinberg in October 2011 Dr. Schroeder opines the following at paragraph 10 and 11 of his 12 paragraph affidavit:
The ligamentous incompetencies and instabilities have worsened since October to November 2017, when Mr. Steinberg's FSCO Hearing occurred. This has created a very dangerous and unstable situation for Mr. Steinberg. If Mr. Steinberg were to travel for long distances, and any unforeseen circumstances caused trauma to his cervical spine, the result could be extremely disastrous, even fatal.
I believe these injuries to Mr. Steinberg's cervical spine are potentially life-threatening, in nature. It is my professional opinion that the risk of long-distance travel to Mr. Steinberg is too great.
[16] I do not accept this opinion as doing anything to create a reasonable basis to excuse Mr. Steinberg’s failure to attend the defence medicals as ordered. Dr. Schroeder’s failure to identify when he examined Mr. Steinberg greatly reduces the probative value of his opinion. Dr. Schroeder puts a baseline of November 2017 to the time after which he thinks travel would be dangerous to Mr. Steinberg. This assertion does not overcome the finding of Shaw J. that Mr. Steinberg’s activities of two years later, in 2019 allowed Shaw J. to find in November 2021 that Mr. Steinberg was medically able to travel to the GTA. In paragraph 48 and 49 of the reasons for decision in Steinberg et al v. Adderley 2021 ONSC 7811, Shaw J. specifically references long distance car trips made by Mr. Steinberg in 2019. Mr. Steinberg did these journeys of his own free will. His doing so is expressly contrary to the opinion of Dr. Schroeder that post November 2017 the ligamentous incompetencies and instabilities have worsened and this has created a very dangerous and unstable situation for Mr. Steinberg. This disregard of the advice of Dr. Schroeder leads me to conclude that Mr. Steinberg travels where he wants, when he wants. If he does not want to travel, he attempts to rely on Dr. Schroeder’s less-than-clear opinion as to his condition to validate his refusal.
[17] I was not persuaded by Mr. Steinberg’s argument that the failure by the defendant to cross examine Dr. Schroder on his affidavit somehow elevates its probative value. The evidence of Dr. Schroeder is deficient and unpersuasive on its face for the reasons I have noted above. Opposing parties are permitted to allow unpersuasive evidence in chief to be submitted if it is otherwise relevant and admissible. Failure to cross examine does not serve to make unpersuasive evidence persuasive.
[18] I agree with the submissions of counsel for Ms. Adderley that Mr. Steinberg is taking a “third kick at the can” in filing the materials and the cross motion before the Court. Mr. Steinberg’s evidence did not persuade Shaw J. in 2021. Mr. Steinberg’s COVID-related evidence did not persuade me in the spring of 2022. His evidence filed in response to this motion does not persuade me that he had a reasonable basis to avoid complying with a clear and unequivocal order of the Court.
[19] The nature of the motions does have an impact on the result in this case. The plaintiff is clearly in contempt of court. He flat out refused to comply with a clear, unequivocal and direct order to go to the GTA at a particular time to attend particular examinations with a particular doctor. The matter was fully litigated before Shaw J. and then relitigated on the motion to vary before me in the spring of 2022. The plaintiff did not get what he wanted which was an order that he only be examined in Thunder Bay. Nevertheless, he refused to go as was evidenced by an email from his counsel on May 6, 2022.
[20] For these reasons, I find the plaintiff in contempt of court. He has been in contempt since May 16, 2022. The remedy for such a finding is another issue.
[21] Being in a state of contempt tends to cast an adverse light on a person who then comes back to court asking for a grant of the relief that is expressly contrary to what they have been ordered by the court to do. It looks like an appeal. Appeals are permissible. Just not to this court when the matter was heard here at first instance.
[22] I find on the material filed on these motions Mr. Steinberg has demonstrated no good reason to disobey the Shaw J. Order as modified by the Fitzpatrick J. Order. A finding of contempt is made against Mr. Steinberg.
The Cross motion
[23] In my view, Mr. Steinberg’s defence to the contempt allegation is a third attempt to assert he should not be required to comply with the Shaw J. Order. It is clear from the materials filed in response to the contempt motion that the plaintiff does not want to attend defence medicals in the place where the defence has arranged them to occur. The plaintiff is now trying for the second time to resist a clear and direct order of the Court having failed to convince the Court to refrain from ordering his attendance in the first place. In his cross motion, the plaintiff raises a request to be accommodated under the Code. The accommodation request is that the defence arrange to bring its doctors from the GTA to examine the plaintiff here in Thunder Bay. The cross motion is dismissed for the reasons that follow.
[24] In my view, the cross motion represents the third attempt by the plaintiff to obtain an order that defence medicals occur where he wants, not where the defence wants. Given how this matter has unfolded, the hours of hearing time it has taken thus far, and the timing of the assertion of a breach of the Code, I agree with the submission of the defence that the cross motion is in the nature of an abuse of court. The second motion which came before me in April 2022 was cast as a motion to vary but in essence sought to obtain the same relief as that advocated by the plaintiff in resisting the original defence motion heard by Shaw J. While an order to vary is always available, it was entertained as the order of Shaw J. allowed the plaintiff to seek to vary the order on the very narrow grounds of the impact the COVID-19 pandemic may have had on the plaintiff’s ability to travel to the GTA to attend the defence medicals. This was permitted only because counsel for the plaintiff had raised the matter of COVID-19 too late in the original process for Shaw J. to consider the question on the motion. Shaw J. could not further deal with the motion as he reached the statutory retirement age shortly after rendering his decision in November 2021.
[25] In my view, the attempt to raise the application of the Code at this point of the proceeding is unpersuasive. Any argument respecting an alleged violation of the Code was available on the same basic facts that the plaintiff alleges when he was before Shaw J. in 2021. There is no explanation offered by the plaintiff as to why it has only been raised now. I find this aspect of Mr. Steinberg’s argument has no merit for the following reasons.
[26] In any matter involving the application of section 1 of the Code, there is a threshold question of fact as to the circumstances of all parties involved. A violation of section 1 of the Code requires a finding of fact that services are actually or constructively denied on the basis of a disability. While the plaintiff asserts he is disabled in respect of attending these defence medicals, the decision of Shaw J. expressly finds otherwise. Shaw J. found the plaintiff was able to attend the defence medicals in the GTA. Mr. Steinberg has been found as a matter of fact to have no disability in respect of the order at issue. The failure to have the services provided arises solely because the plaintiff refuses to avail himself of the services. That is his choice alone. This is not an act of actual or constructive discrimination. The plaintiff is not being discriminated against because Shaw J. has found he is able to attend defence medicals in the GTA. He is not disabled from attending these treatments because of where they are scheduled. The plaintiff is not being denied any right to equal treatment for services because of disability because he has been found to be able to attend the medicals in Toronto. There is no denial of services because of “disability”. The only “denial” that is occurring is the plaintiff’s being “in denial” that he has been ordered to attend defence medicals in the GTA. Simply because the plaintiff continues to assert a state of affairs that flies in the face of a clear factual decision of the Court to the contrary does not allow a party to perpetually continue to come before the Court seeking relief. The facts have not changed as I have found above. Mr. Steinberg’s situation does not fall within the operation of section 1 of the Code.
[27] In my view, in this situation the defendant cannot be said to be providing a service to the plaintiff within the meaning of section 1 of the Code in any event. The service provider about which section 1 speaks are the doctors who will perform the defence medicals. The plaintiff has the right to be accommodated in the manner the services are provided if he can show he has a disability which requires the medicals to be performed in way different than proposed by the defence doctors. This right to accommodation does not extend to being able to dictate the geographic place the actual examination is going to occur once that issue has already been decided by the Court.
[28] The rights, obligations and duties of parties under the Code are a significant and serious part of the social fabric of the Province of Ontario. The Code is quasi-constitutional. This court has a duty to uphold the letter and spirit of the Code. This court also has a co-equal duty to accommodate all persons coming before His Majesty’s court seeking justice. However, I do not see the Court’s duties as being engaged in this case given the previous findings of the Court by Shaw J. The question of whether or not a party in civil litigation has a duty to accommodate an opposing party in the conduct of proceedings required under the Rules of Civil Procedure was not adequately argued before me. It is an interesting legal question but it is one I leave for another day as ultimately in this case, there is no disability experienced by the plaintiff which would permit him to engage section 1 rights under the Code.
[29] The cross motion is hereby dismissed.
Remedy
[30] For a finding of contempt, Counsel asks for a fine of $100.00 per day until such time as Mr. Steinberg attends the defence medicals as ordered. In the alternative, the defence asks Mr. Steinberg’s action be struck both on the basis that he is in contempt and on the basis of Rule 60.12 which provides the Court may dismiss a party’s proceeding for failing to comply with an interlocutory order.
[31] Mr. Steinberg argues no remedy should lie against him save that he will agree to attend defence medicals arranged to be held in the City of Thunder Bay Region.
[32] I agree with the alternative submission of the defendant that the only just order in the circumstances is to order Mr. Steinberg’s claim be dismissed in its entirety with costs. I say this for the following reasons.
[33] Mr. Steinberg has had four chances to agree to attend a defence medical. The defence asked him to go. He refused. The defence got an order of Shaw J. that he go. He refused. I declined to vary the order other than to direct Mr. Steinberg to go to other doctors of the defence choosing in the GTA. He refused to go. He instructed his counsel to yet again bring a motion for an order that would validate his refusal to attend where the defence wants him to attend. I dismissed this motion above. Strike four.
[34] The reasons of Shaw J. fully discuss the basis by which our rules of civil adjudication of disputes allows the defence to require and pay for a plaintiff to attend before doctors of its choice in the place where they practice. In my view, Mr. Steinberg will never travel to the GTA as ordered to attend defence medicals no matter how many more chances he is given to purge his contempt. Requiring the defence to set up another series of appointments would represent an act of utter futility. It would also send a message that Court orders really do not matter, and can be avoided as long as you can keep thinking up unpersuasive alternative reasons why you do not want to comply.
[35] Mr. Steinberg started this litigation. He asks the Court to award him large monetary damages for alleged wrongs done to him. Yet he refuses to comply with the orders of the very court from which he seeks ultimate redress. This paradoxical behaviour cannot continue. Mr. Steinberg’s contemptuous behaviour cannot be rewarded. His blatant refusal to comply with a clear, direct and unequivocal court order must have a consequence.
[36] The consequence is dismissal of his claim in total with costs. I find the power to make this order arises expressly from the provisions of Rule 60.12.
[37] Further, in disposing of the motion for contempt under Rule 60.11(5) I direct that Mr. Steinberg cannot institute further new proceedings in any Ontario Court against any party for damages of any kind arising from the events related to a motor vehicle accident in which he was involved October 29, 2011 without leave of the Court.
The Costs award for the July 22 attendance before R.S.J. Warkentin
[38] The submissions of counsel were focused on the motions today. The submissions regarding costs in respect of this very peculiar circumstance were not fully developed. This is not the fault of either counsel appearing before me. We simply did not have the time to properly deal with a rather unusual but narrowly focused problem.
[39] Given my disposition of the main motions, and the fact this litigation is now going to end, I am awarding the defendant costs for the July 22, 2022 attendance before R.S.J. Warkentin payable by Mr. Steinberg forthwith in the amount of $500.00. In my view this is a just disposition of a minor matter. The defendant ought not have been brought in to Court before R.S.J Warkentin on July 22, 2022.
[40] With respect to costs of the main motions, and the costs of the defence of the claim, if the defence is seeking costs they may submit a two page submission for the costs motion and a further two page submission for the costs of the action. They should also up date the costs outline currently filed in Caselines as well as providing a new costs outline for the entire action. This is to be served and filed in Caselines no later than 2 pm Friday October 14, 2022. Mr. Steinberg may then respond in no more than four pages on or before 2pm Friday October 21, 2022. If the defence submissions are not received by October 14, 2022, the Court will treat the costs issue as resolved.
[41] Order to go dismissing the claim by Mr. Steinberg with costs payable by Mr. Steinberg on a partial indemnity basis to be agreed or fixed plus an additional $500.00 for costs as directed for the July 22, 2022 attendance.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
DATE: September 29, 2022
COURT FILE NO.: CV-13-0024-00
DATE: 2022-09-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rudolph Steinberg, Jakob Steinberg and Amanda Steinberg minors by their Litigation Guardian, Rudolph Steinberg v. Pamela Adderley
HEARD: September 9, 2022
BEFORE: Fitzpatrick J.
COUNSEL: M. Stoiko, for the responding party Plaintiff, Rudolph Steinberg
A. Demeo, for the moving party Defendant
DECISION ON MOTIONS
Fitzpatrick J.
DATE: September 29, 2022