A. Introduction

[1] The defendants seek a finding of contempt.

[2] Some context is required before turning to the terms of the endorsement and order that are at the heart of this motion. Much of it is drawn from a January 9, 2023 endorsement of Rady J.

[3] Uplink Communications Inc. (“Uplink”) is a provider of high-speed internet and related services. Hybrid Utilities Co. Incorporated (“Hybrid”) is in the drilling and excavation business.

[4] As Rady J. explained this hotly contested action involves:

… the structure that houses the fibre optic cable that delivers television and high-speed internet services to subscribers.[^1]

[5] That structure is known as conduit. This proceeding relates to the installation of conduit by Hybrid which either did or was intended to house Uplink’s fibre optic cable.

[6] In the statement of claim it issued, Uplink seeks a number of orders in relation to the conduit Hybrid installed and damages of various kinds.

[7] Hybrid has defended and counterclaimed. Included in the list of remedies it seeks is an interim and permanent injunction preventing Uplink from utilizing the conduit Hybrid supplied to “projects located in the Thames Centre and Middlesex Regions of Ontario”. Collectively, Hybrid described them as the Xplornet Project.[^2]

[8] In October 2022, the defendants served and filed a motion record seeking, among other things:

An order for an interim … and interlocutory injunction prohibiting the Plaintiff and/or its subcontractors from utilizing, removing or otherwise modifying any and all conduit that was or has been supplied and installed by the Defendants in the following areas: Gladstone Drive (installation complete and soon to be activated); Harrietsville Drive; Elgin Road/Cromarty Drive; or Putnam Road/Breen Road.

[9] Needless to say, Uplink contested the motion.

[10] The first return date was November 4, 2022. Heeney J. presided. A long motion date was scheduled for argument. A term of the adjournment was imposed on both sides. At para. 3 of his endorsement, Heeney J. wrote:

Interim, interim order to go pending return of the motion restraining all parties from removing, installing or connecting fibre cable in the conduit that is the subject-matter of this motion, except for any necessary repairs to existing cable.

[11] A formal order was not taken out.

[12] The motion was argued before Rady J. on November 23, 2022. Decision was reserved. Following Rady J.’s January 9, 2023 endorsement, an order was issued and entered.

[13] Pursuant to its terms, until decision following trial, Uplink is (A) enjoined from utilizing, removing or otherwise modifying any and all conduit that was or has been supplied and installed by Hybrid and its co-defendants in four specified areas: (i) Gladstone Drive; (ii) Harrietsville Drive; (iii) Elgin Road/Cromarty Drive; and (iv) Putnam Road/Breen Road[^3]; but (B) nonetheless permitted to complete emergency repairs for customers that were actively receiving internet, television and/or phone services through fibre[^4] optic cable from Uplink as of November 4, 2022, provided at least twenty-four hours advance notice is given to the defendants.[^5]

[14] In paragraph 1 of its most recent notice of motion, the defendants seek:

An Order finding the Plaintiff and/or its officers and directors in contempt of the interim Order of Justice Heeney dated November 4, 2022, and the interlocutory Order of Justice Rady dated January 9, 2023.

[15] Uplink has sought leave from the Divisional Court to appeal Rady J.’s order. To the best of my knowledge, that motion is still to be heard in writing by a panel of that court. In any event, as the Court of Appeal recently confirmed:

… A court order must be obeyed unless stayed by a rule or by another order … The filing of a motion for leave does not have that effect. [Citations omitted][^6]

B. Civil Contempt – the procedural rules

[16] Rule 60.11 of the Rules of Civil Procedure is the operative procedural rule. Reflecting the seriousness of a contempt order, it requires personal service of the notice of motion on those against whom it is sought, unless the court orders otherwise: rule 60.11(2). That requirement was met insofar as Uplink is concerned[^7] but not any of its officers or directors. Consequently, the analysis that follows will be limited to the plaintiff.

[17] If, however, a finding of contempt is made against Uplink, its officers and directors are then exposed to the possibility of an order under rules 60.11(5) and (6).

[18] Affidavit evidence on motions of this kind is subject to the restriction rule 60.11(3) imposes. Except to the extent of facts that are non-contentious, an affidavit must be confined to matters within the affiant’s own knowledge.

C. Civil Contempt – the applicable test

[19] Hybrid alleges Uplink did things Heeney J.’s endorsement and Rady J.’s order prohibited.

[20] A finding of civil contempt can only be made if three elements are proven beyond a reasonable doubt: Carey v. Laiken, 2015 SCC 17, at paras. 32 – 35.

[21] First, the order in question must state clearly and unequivocally what should and should not be done. As Cromwell J. explained in Carey v. Laiken, supra, at para. 33:

… An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning … [Citations omitted]

[22] Second, Uplink – being the party alleged to have breached the order - must have actual knowledge of it: Carey v. Laiken, supra, at para. 34. That element is not in issue in this case.

[23] Third, since the defendants allege Uplink did things Heeney J.’s endorsement and Rady J.’s order prohibited, they must prove Uplink intentionally did something the court did not permit it to do: Carey v. Laiken, supra, at para. 35.

[24] At first blush, it may seem that the law requires proof of an intention to disobey an order of the court. However, that is not the test. As the Supreme Court of Canada explained in Carey v. Laiken, supra, at para. 38:

It is well established in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice … [T]o require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” … Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt … [Citations omitted]

[25] Even if all of the elements are established, the court retains the “discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case”: Carey v. Laiken, supra, at para. 37.

D. The Evidentiary Record

[26] Argument of this motion was based on an entirely written record. The defendants rely on affidavits of Anthony Demelo, a principal of Hybrid and a co-defendant, dated April 5 and May 24, 2023. Uplink filed affidavits of its principal, Brad Mousseau, dated April 19 and May 17, 2023. Transcripts of cross-examinations conducted on May 26 and 30, 2023 were filed.

[27] Thereafter and despite rule 39.02(2), Uplink served and filed a third affidavit of Mr. Mousseau affirmed June 1, 2023. That occurred without the moving parties’ consent. In its absence, leave must be obtained. It was not even sought. Consequently, that affidavit was not admitted.

[28] To some extent both parties disregarded the limits rule 60.11(3) imposes on the contents of affidavits filed on motions of this kind. However, that subrule was not the basis for an objection by either side.

[29] Factums were filed. Unfortunately, the moving parties served and filed theirs before any response had been received. Thereafter the factual record grew significantly. They should have served and filed a supplementary factum.[^8]

E. Were the orders clearly and unequivocally stated?

[30] Two of the three elements the moving parties must prove are in dispute. The first question is this: do the November 4, 2022 endorsement and/or January 9, 2023 order state clearly and unequivocally what Uplink should not do?

[31] As mentioned, with the exception of necessary repairs, Heeney J. restrained the parties from “removing, installing or connecting fibre cable in the conduit that is the subject-matter of this motion”.

[32] The words “removing, installing or connecting” clearly describe the actions that are prohibited.

[33] However, the words “conduit that is the subject-matter of this motion” left me wondering precisely what conduit the prohibition related to.

[34] I drew some assistance from the notice of motion that was then before the presiding judge. It sought an injunction in relation to conduit supplied and installed by the defendants at four specified locations. They were said to be: “Gladstone Drive (installation complete and soon to be activated); Harrietsville Drive; Elgin Road/Cromarty Drive; or Putnam Road/Breen Road.”

[35] Those four geographical areas were carried forward and specified in paragraph 1 of the order Rady J. granted. On that occasion, its operation was limited to the plaintiff. It enjoined Uplink “from utilizing, removing or otherwise modifying any and all conduit that was or has been supplied and installed by” the defendants at any of those locations.

[36] Nonetheless, the geographical description seemed vague. Questions came immediately to mind. Where in Ontario are those streets? Did Hybrid supply and install conduit along their entire length? If not, where did it do so?

[37] Boundaries tied to municipal addresses, intersecting roadways or some other distinguishing feature would have been helpful. A map providing a visual reference would have been even better. However, the endorsement and order did not include one.

[38] It seems that the parties’ counsel recognized the problem. On this motion, “maps showing the locations of the conduit that was purchased and installed by Hybrid” were referenced in and attached to Mr. Demelo’s initial May 5, 2023, affidavit.[^9] With respect, however, I found them difficult to read and impossible to decipher.

[39] Uplink’s principal, Mr. Mousseau, referred to those maps in his supplementary affidavit dated May 17, 2023. He deposed that those introduced by Hybrid were:

… not a reliable depiction of the actual location of conduits installed by the Defendants, as said drawing [sic] was only a planning tool produced by a third party (Ledcor) sometime around the beginning of the year 2021.

[40] Mr. Mousseau attached one of his own. It is a vastly better document. It is easy to read and shows all of the locations mentioned in Rady J.’s orders and the surrounding area. It highlighted the areas where Hybrid is acknowledged to have supplied and installed conduit. Other contentious ones were identified too.

[41] A similar map was attached to the affidavit Mr. Demelo signed a week later. It showed the same geographical area as the one Mr. Mousseau had provided. Highlighting was again used to mark the areas where Hybrid had supplied and installed conduit.

[42] Gaps in the description used in Rady J.’s order are readily identifiable. The order mentions Elgin Road and Cromarty Drive only where they intersect. However, based on the maps, Hybrid supplied and installed conduit along a substantial stretch of both of them.

[43] Putnam Road is referred to in that order where it intersects with Breen Road. However, with the benefit of the additional material filed on this motion, it appears the parties acknowledge Hybrid supplied conduit along a substantial stretch of Putnam Road too.

[44] Mossley Drive isn’t mentioned at all in the order, despite the fact both maps indicate Hybrid supplied and installed conduit along a short stretch west and east of Elgin Road.

[45] There would have been complete clarity had judges presiding earlier in this proceeding been provided with the maps that are now before the court.

[46] The moving parties have focused on two locations in their motion material: (i) an area along Gladstone Drive between Westchester Bourne to the west and Dorchester Road to the east; and (ii) the intersection of Harrietsville Drive and Elgin Road.

[47] As noted earlier, in a contempt motion, every element must be proven beyond a reasonable doubt.[^10] The evidence on this motion confirms that those two geographical areas were contemplated by the language used in both the November 4, 2022 endorsement and January 9, 2023 order.

[48] Despite initial misgivings, I am satisfied to the required standard that this court has clearly and unequivocally: (i) told Uplink what it is prohibited from doing; (ii) identified the conduit that is within its contemplation; and (iii) specified the locations that are in issue on this motion as ones where the court’s direction applies.

[49] I turn to the third and final essential element.

F. Did Uplink intentionally do something an order of the court prohibited?

[50] Has Hybrid proven beyond a reasonable doubt that Uplink intentionally did something the endorsement and/or order prohibited?

[51] Uplink denies that it has engaged in any of the prohibited activities on Gladstone Drive or at the intersection of Harrietsville Drive and Elgin Road.[^11]

[52] Uplink says the first area involves “mixed conduit”[^12] and the second is “being redrilled by” it.[^13]

[53] Based on my reading of the substantial volume of material assembled, it does not seem to be in doubt that Uplink thought it could access Hybrid supplied and installed conduit if: (i) it already contained fibre optic; and (ii) the Hybrid conduit was not touched.[^14] Based on that position, Uplink took steps to activate fibre optic cable within Hybrid supplied and installed conduit during the period after Heeney J.’s endorsement and Rady J.’s order.

[54] In my view, Uplink was wrong.

[55] In her endorsement, Rady J. noted that:

… Once a cable has been activated, it cannot be removed.[^15] If the plaintiff activates cable and it is ultimately determined that it is not the conduit owner, the defendant will be deprived of revenues to which it would be entitled and which it has deposed are necessary for its continued viability …[^16]

[56] In those circumstances, my colleague concluded:

… It is important to preserve the status quo pending a determination of the issues …[^17]

[57] Heeney J. prohibited the parties from, among other things, “connecting fibre cable in the conduit”. Uplink did what it had been expressly told not to do.

[58] Furthermore, accessing fibre optic cable previously run through conduit Hybrid supplied along Gladstone Drive resulted, in my view, in its utilization. That was something expressly prohibited by Rady J. It also changed the status quo despite the fact the injunction was granted to preserve it.

[59] Even if I am wrong that Uplink’s intentional conduct did something the endorsement and order specifically prohibited, it violated the spirit of them. On behalf of a unanimous court in Chirico v. Szalas, 2016 ONCA 586, at para. 56, Epstein J.A. explained that the Court of Appeal:

… has rejected a formalistic interpretation of the relevant order. It is clear that a party subject to an order must comply with both the letter and the spirit of the order … That party cannot be permitted to “hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and the administration of justice” … [Citations omitted]

[60] With respect to the intersection of Harrietsville Drive and Elgin Road, the moving parties rely on the detailed allegations contained in Mr. Demelo’s supplementary affidavit.[^18] In that document, Mr. Demelo described steps taken and observations made at that location during the period from April 13 through May 23, 2023.[^19] Narrated videos were attached in support.[^20]

[61] When cross-examined, Mr. Mousseau was asked almost a hundred questions relating specifically to conduit in that immediate area.[^21]

[62] Hybrid maintains that Uplink’s position concerning redrilling is a disingenuous one. On April 17, 2023, a hole was dug by Hybrid. Two conduit lines were located. Hybrid had installed both of them.[^22] Uplink had not installed either. The one that is involved in this lawsuit was identified. A piece of the exterior was removed from that line. Fibre optic cable was found inside. The hole was closed with black tape.

[63] In his May 17, 2023 affidavit, Mr. Mousseau deposed that three different lines of conduit had been installed in that location and that they were “running alongside each other.”[^23] A photo was attached.[^24] During cross-examination, he said Uplink’s work had been undertaken so that it would house fibre optic cable. As far as he knew, he said, the Hybrid installed line was empty and unconnected.[^25]

[64] At that time, Mr. Mousseau could not have known that representatives of Hybrid had returned to the intersection on April 28, 2023. That was first disclosed in the affidavit Mr. Demelo swore on May 24, 2023.

[65] During that second visit, a hole was dug again by Hybrid at the same location. Hybrid located the third line of conduit Mr. Mousseau had mentioned. It ran directly above the other two.

[66] Mr. Mousseau was noncommittal when asked during cross-examination the date the Uplink line had been installed. Sometime after November 4, 2022 was as far as he would go. In fact, it had to have been installed sometime after Hybrid’s initial attendance on April 17, 2023.

[67] The black tape that had been used to seal the hole that had been cut in the Hybrid supplied conduit on the previous visit was clearly visible.

[68] Importantly, the new line of conduit did not contain fibre optic cable. In fact, the Uplink conduit did not lead anywhere. Its terminal point was simply a dead end.

[69] After reading the documentary evidence, including the transcript of the cross-examination of Mr. Mousseau[^26] and viewing the photographs and videos the parties compiled, I am satisfied beyond a reasonable doubt that Uplink has made use of conduit supplied and installed by Hybrid along Harrietsville Drive following and despite the clear wording of Rady J.’s order.

[70] So that there is no misunderstanding, I am sure the third conduit line was not installed by Uplink as part of a redrilling exercise undertaken to ensure the prohibition imposed by the court was respected. Mr. Mousseau’s testimony that Hybrid may simply have failed to dig far enough to find the Uplink line is rejected. All of the conduit is rigid. The three tracks are vertically aligned.

[71] I am satisfied beyond a reasonable doubt that Uplink has intentionally done things this court has prohibited along Gladstone Drive and at the intersection of Harrietsville Drive and Elgin Road.

G. Conclusion, next steps and costs

[72] For the reasons given, all of the elements of civil contempt have been proven to the required standard.

[73] Regrettably, this is not a case involving an erroneous but honest interpretation of Heeney J.’s endorsement or Rady J.’s order. Consequently, a finding that Uplink is in contempt is hereby made.

[74] Hybrid’s motion will now proceed to the penalty phase. Any further factual materials shall be confined to that issue and in the context of the findings that have now been made. Evidence of any steps taken by Uplink to purge its contempt is relevant at the next stage. Evidence concerning allegations of further breaches is not.

[75] Given my pending retirement and limited availability beforehand, counsel are asked to participate in a fifteen-minute scheduling attendance on September 8, 2023, at 8 a.m. by teleconference. Counsel are directed to consult as soon as possible to discuss – and if possible, agree – to a timetable for the delivery of any further factual material. Ideally, if holiday schedules allow, that material will either have been fully or at least nearly served, filed and uploaded to Caselines before the next attendance.

[76] The issue of costs is reserved to the hearing involving penalty. Each side shall serve, file and upload a costs outline at least five days before that attendance, once scheduled.

“Justice A.D. Grace”

Justice A.D. Grace

Date: August 8, 2023

[^1]: The excerpt is drawn Uplink Communications Inc. v. Hybrid Utilities Co. Incorporated, 2023 ONSC 224 (S.C.J.), at para. 5. [^2]: See paras. 19 and 30f of Hybrid’s Statement of Defence and Amended Counterclaim. [^3]: As set forth in para. 1 of the order. [^4]: Spelled “fiber” in the order but “fibre” in Rady J.’s endorsement. The meaning is the same. [^5]: Para. 2 of the order went on to say that the defendants could observe and record the repairs being completed provided they were at least 50’ away from Uplink. Para. 2 of the order was not contemplated by Rady J.’s endorsement. However, the court acceded to the parties’ joint request to include it. [^6]: Oliveira v. Oliveira, 2023 ONCA 520, at para. 66. [^7]: As evidenced by the April 11, 2023 affidavit of service of Mohammed Abdel Wahab. [^8]: Despite the requirements of the Consolidated Practice Direction for the Southwest Region and the scheduling endorsement of Nicholson J. requiring one, the parties’ counsel failed to complete, sign and file a Certificate of Readiness of Special Appointment. That cannot happen again. The factum filed on behalf of Uplink was riddled with errors because it was prepared hastily. Had the parties’ attended to the required Certificate, they would also have addressed their minds to all intervening steps in order to complete the timetable.it contains. [^9]: This excerpt is drawn from para. 5 of Mr. Demelo’s April 5, 2023 affidavit. The maps were appended as Ex. 2. [^10]: Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, at para. 17; Moncur v. Plante, 2021 ONCA 462, at para. 10. [^11]: Additional areas are also in dispute. They were marked with an “X” by Mr. Mousseau during cross-examination on a map that was marked exhibit “5”. [^12]: A comment made with respect to a portion of Gladstone Drive, west of Dorchester Road. [^13]: A comment made with respect to the intersection of Elgin Road and Harrietsville Drive. [^14]: See, for example, the transcript of the cross-examination of Brad Mousseau conducted May 26. 2023, Qs. and As. 232 – 237. [^15]: In para. 7 of his April 5, 2023 affidavit, Mr. Demelo explained that “telecommunications regulations prevent Hybrid … from removing” fibre optic cable once installed. [^16]: At para. 21. [^17]: At para. 23. [^18]: See paras. 17 through 24. [^19]: The discussion was set forth in paras. 17 through 24. [^20]: They were marked as exhibits “L” through “S”. [^21]: Those started at Q. and A. 238 and continued through Q. and A. 330. [^22]: As I understand it, the bottom line shown in the photograph had been installed for a company called Xplore Inc. The top conduit line is one of those in dispute in this lawsuit. [^23]: At para. 63. [^24]: The photograph was attached as Ex. 11. [^25]: The entire exchange on this topic runs from approximately Qs. and As. 238 through 331. [^26]: Ibid.

Uplink Communications Inc. v. Hybrid Utilities Co., 2023 ONSC 4553

Case Summary

A. Introduction

B. Civil Contempt – the procedural rules

C. Civil Contempt – the applicable test

D. The Evidentiary Record

E. Were the orders clearly and unequivocally stated?

F. Did Uplink intentionally do something an order of the court prohibited?

G. Conclusion, next steps and costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1