COURT FILE NO.: CV-21-0106-00
DATE: 2023-10-06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jennifer Lindstrom, Plaintiff
v. Executor, Estate of Oiva Paju, Chris Paju, Defendants
HEARD: September 7, 2023
BEFORE: Acting Regional Senior Justice T.J. Nieckarz
COUNSEL: Self Represented Plaintiff
J. Clark, for the Defendants
Endorsement on Motion
Overview:
[1] The Defendant, Chris Paju (Estate Trustee of the Estate of Oiva Paju – moving party), seeks an order finding the Plaintiff (Jennifer Lindstrom – responding party) in contempt of my order dated March 29, 2023.
[2] Paragraph 1 of my March 29, 2023, Order (the “Order”) states:
[1] While this proceeding is ongoing, Ms. Lindstrom shall not threaten criminal proceedings against any affiants for the Defendant, or the Defendant, for their participation in this proceeding and particularly (but not limited to) in exchange for any monetary amount or offers to settle.
[3] The Order was made at a case conference, in the context of a highly contentious estate proceeding between siblings. The case conference was convened at the request of the Defendant, who was concerned that Ms. Lindstrom was threatening an affiant with criminal charges if she did not recant certain affidavit evidence and pay a monetary amount. I was concerned that Ms. Lindstrom was making threats of criminal proceedings not only against the affiant, but also against the Defendant. The threats against the Defendant were to pay the monetary settlement sought by Ms. Lindstrom or risk facing criminal proceedings. The order was made out of concern for all parties, including Ms. Lindstrom, who did not appreciate the potential criminal liability to herself as a result of such threats.
[4] The Defendant alleges that Ms. Lindstrom has breached the Order by threatening to report the Defendant and his alleged fraudulent conduct to the Canada Revenue Agency, threatening incarceration if he does not pay a specified sum of money. Specifically:
a. On or about June 26, 2023, Ms. Lindstrom sent the following email to the Defendant, with the heading “Extremely Serious Infraction”:
…The consequences for your actions for taking over $200,000 are extremely serious and include your immediate termination as executor without fees and severe punishment from the Court. The consequences for the lawyers and accountants involved are also very serious and include punishment from the Court and disciplinary action from their professional associations…
…Chris, to say the consequences for your attempt to take over $100,000 of my inheritance are very serious is an understatement…
…if you would like me not to report you to the CRA fraud informant program, which will have very significant implications for you and for the lawyers and accountants who have been complicit in condoning your illegal actions, you must immediately administer the estate legally which includes honouring the legally valid Codicils and ending the illegal withholding of my personal funds. If you do not want me to seek legal action to receive my personal funds I am giving you the option to wire transfer me the funds I am legally entitled to, on Tuesday…
…Chris, your illegal actions regarding Black Bay PIN 62849-007 are difficult to comprehend. Your attempt to take such a large amount of my inheritance is a heinous violation of the law and you face a severe reprimand as a result…If you do not wire transfer me $241,629 on Tuesday June 27th I will be forced to contact the CRA fraud informant line in order to report your illegal actions… [Emphasis added]
b. On June 26, 2023, the Defendant caused a draft of this contempt motion to be served personally on Ms. Lindstrom. On that same day, she responded with further email correspondence stating that “there is nothing in the endorsement regarding me referencing criminal proceedings. Chris, you have until 2:00 p.m. EST on Tuesday, June 27th to send me MY money.”
c. On June 27, 2023, Ms. Lindstrom sent multiple emails to the Defendant, which included, but is not limited to the following:
i. “Chris if you follow advice from lawyers who have given you advice to act illegally for years you will face severe punishment. Just send me my money which I will receive after court proceedings and you will be terminated without fees, plus possible incarceration.”
ii. Your actions are illegal and subject to serious punishment which can be avoided if you simply pay me what I am entitled to. [Emphasis added]
d. On July 7, 2023, Ms. Lindstrom explained:
“I deliberately used the words serious infraction instead of criminal proceedings. Court could be a civil as the Statement of Claim is a civil proceeding. Working with the CRA would likely be an out of Court arrangement with directive to you from the CRA.”
e. Ms. Lindstrom’s response to the draft notice of motion for contempt also acknowledged, in part, that: “The Canada Revenue Agency tax fraud division is an investigative division that where appropriate refers cases for possible criminal prosecution. It is not a criminal proceeding.”
[5] The position of the Defendant is that Ms. Lindstrom has failed to follow the letter and spirit of the Order and is in contempt for continuing to threaten criminal proceedings. The Defendant seeks to bifurcate the contempt motion into separate hearings dealing with liability and sentencing in a manner that will allow Ms. Lindstrom to purge her contempt.
[6] The position of Ms. Lindstrom is that she deliberately did not threaten criminal proceedings. While she recognizes that the threat to report the Defendant to the CRA fraud department could result in criminal prosecution, that would be the CRA’s decision if they chose to take it that far. She did not threaten anything contrary to the wording of the Order.
The Law and Analysis:
[7] Rule 60.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as am., provides that an order requiring a person to do an act other than the payment of money, or to refrain from doing an act, may be enforced by a contempt order.
[8] A finding of contempt could result in serious consequences. Rule 60.11(5) gives a judge the authority to make the following orders against a person who is found to be in contempt:
a. imprisonment for such period and on such terms as are just;
b. imprisonment if the person fails to comply with a term of the order;
c. pay a fine;
d. refrain from doing an act;
e. pay such costs as are just; and/or
f. comply with any other order that the judge considers necessary.
[9] While it remains in the discretion of the presiding judge, the liability portion of the contempt hearing generally should be held before the penalty phase: College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, at paras. 73-74.
[10] At the liability phase of the contempt hearing, the onus is on the moving party (Defendant in this case) to prove all three of the following elements beyond a reasonable doubt:
a. The Order alleged to have been breached must state clearly and unequivocally what should and should not be done;
b. The party alleged to have breached the Order must have had actual knowledge of it; and
c. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the Order compels.
Carey v. Laiken, 2015 SCC 17, at paras. 33-35.
[11] With respect to the first two of the essential elements of a finding of contempt, I find that:
a. The Order states clearly and unequivocally that Ms. Lindstrom shall not threaten criminal proceedings against the Defendant, and particularly in exchange for any monetary amount or offers to settle.
b. Ms. Lindstrom by her own admissions had actual knowledge of the Order. I also note her attendance at the case conference when I explained the order I was making and why.
[12] The more challenging part of the analysis in this case is whether Ms. Lindstrom has intentionally threatened criminal proceedings contrary to the terms of the Order.
[13] It is trite to say that there is an expectation that court orders will be respected and obeyed. As Cumming J., noted in Sussex Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 49336 (ONSC), at para. 47:
[47] …
The deliberate failure to obey a court order strikes at the very heart of the administration of justice…If someone can simply ignore or finesse his way around a court order it will tend to add uncertainties and risks, with consequential inefficiencies and additional costs, as well as causing unfairness, with consequential inequities and additional costs.
[14] As Ricchetti J., explained in Sure Track Courier Ltd. v. Kaisersingh et al., 2011 ONSC 4810, at paras. 53-54, a party is obliged to exercise diligence to ensure they obey a court order in both letter and spirit. A person cannot escape a finding of contempt by “finessing” the interpretation of the order or by hiding behind a restrictive and literal interpretation to make a mockery of the order and the administration of justice.
[15] This case is a difficult one. On the one hand Ms. Lindstrom states that she did not intend to violate the court order, carefully choosing her words to ensure compliance. On the other hand, the Defendant argues that Ms. Lindstrom has violated the spirit of the order, making threats that she knew attracted potential criminal consequences, and has merely “finessed” her language to try to avoid technical non-compliance. The Defendant does not accept that Ms. Lindstrom’s violation of the Order is accidental.
[16] I believe Ms. Lindstrom when she says she did not think her most recent threats violated the wording of the Order. However, the purpose of the order was clearly explained to her as being to stop threats that attract potential criminal consequences being made against the Defendant and others, in exchange for a payment of money. Ms. Lindstrom has acknowledged in writing an understanding that a CRA fraud investigation could attract criminal consequences. She made that threat, yet again, in exchange for a payment of money. I am left to conclude that she knew what she was doing, figured she had found a ‘loophole’ around the Order, and continued with the type of threat my order was designed to avoid.
[17] I understand that Ms. Lindstrom would like her inheritance as soon as possible. What she fails to understand is that the estate cannot make the distribution she seeks given the nature of the claims she has made. Her proceeding is what has delayed the payment of her inheritance. This does not mean she has done anything wrong by making the claims she feels are justified; she has a right to make her claims and a judge will decide whether they are valid or not. But she must understand that given the claims she has made, the Estate Trustee cannot distribute the Estate in the manner she requires, unless he agrees with her claims, which he does not. Ms. Lindstrom can make offers to settle the proceeding, and the court encourages this, but she cannot make threats against people in exchange for a payment of money. To be clear, she can make an offer of the amount she is willing to resolve all litigation for, and she can say what position she will take in the litigation with respect to the claims she is making if the offer is not accepted, but she should not attach to that offer any threats of reprisal (other than a claim for costs) for non-acceptance.
[18] Litigation cannot effectively be conducted in an environment in which parties, counsel, and third-party witnesses are subjected to threats of criminal, quasi-criminal, or professional responsibility proceedings when they are doing nothing other than advancing a position contrary to the opposing party to the litigation. Such actions detract from the substantive issues in the litigation, increase costs, and unnecessarily increase the hostility associated with the litigation. This does not mean there may not be circumstances in which it is necessary to make reports for breaches of professional obligations or otherwise, but I see nothing about this proceeding that suggests to me this is one of those cases. Even if it were, to threaten to do so if a payment of money is not made could be construed as extortion. With respect to the Defendant, as I have explained to Ms. Lindstrom, it will be up to the judge hearing this case to determine whether his evidence is accepted as credible or not. It is also up to a judge to decide whose position shall prevail based on the law, and not based on threats.
[19] In the circumstances, while a finding of contempt could be justified, given that Ms. Lindstrom is self-represented and I have the sense she is struggling to understand the process and implications of certain actions, I am more inclined to adjourn the contempt motion, and make a last chance order. Contempt is a finding of last resort to protect the integrity of the court system and ensure orders are obeyed. While the motion was warranted, I find that there is an opportunity to accomplish this aim in a manner other than a finding of contempt at this point.
[20] To be clear, the conduct of Ms. Lindstrom was not appropriate and was not in keeping with the spirit of my previous order. She must not make any more threats of any nature or kind against either the Defendant, his counsel, or witnesses, prior to the conclusion of this proceeding. If she does, the consequences could include either having her case dismissed, or a finding of contempt with the consequences that follow. I am adjourning the contempt motion to the hearing of this case on November 27th. If between now and the hearing there are no further incidents of contempt, then I will dismiss the motion at that time, subject to argument as to costs of that motion. If there are further incidents, the Defendant may also choose not to wait until November 27th and may seek relief prior to that date.
[21] It is ordered that:
a. If Ms. Lindstrom makes any further threats of any nature or kind (other than a claim for costs) against the Defendant, his counsel, or witnesses in this matter while this proceeding is ongoing, and particularly (although not limited to) threats of reprisal in exchange for failure of the Defendant to pay a sum of money, in addition to any other sanction provided by the Rules of Civil Procedure, the court may:
i. Stay the Plaintiff’s (Ms. Lindstrom) proceeding;
ii. Dismiss the Plaintiff’s proceeding;
iii. Make a finding of contempt; or
iv. Make such other order as is just in the circumstances.
b. The contempt motion is adjourned to November 27, 2023, at 10:00 a.m. If there are no further threats between this date and November 27th, the motion shall be dismissed subject to an argument as to costs. If there are further threats, on notice to Ms. Lindstrom, there shall be further argument on that date (or such earlier date as the Defendant provides notice of) as to whether there should be a finding of contempt made.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
DATE: October 6, 2023
COURT FILE NO.: CV-21-0106-00
DATE: 2023-10-06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jennifer Lindstrom, Plaintiff
v. Executor, Estate of Oiva Paju, Chris Paju, Defendants
HEARD: September 7, 2023
BEFORE: Acting Regional Senior Justice T.J. Nieckarz
COUNSEL: Self Represented Plaintiff
J. Clark, for the Defendants
ENDORSEMENT ON MOTION
Nieckarz A/R.S.J.
DATE: October 6, 2023