COURT FILE NO.: CV-22-36/ES-13-129 DATE: 2023-02-01
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Office of the Children’s Lawyer Applicant
- and -
Harold Edward John Nordby Defendant / Respondent
Counsel: A. Leung, for the Applicant D. Fuller, for the Respondent
HEARD: January 26, 2023, at Kenora, Ontario
BEFORE: Mr. Justice W. D. Newton
Reasons on Motion for Penalty for Contempt
Overview
[1] The Office of the Children’s Lawyer (“OCL”) is litigation guardian for a minor child who is the grandson of the respondent Mr. Nordby.
[2] Almost six years ago, the OCL obtained an order requiring Mr. Nordby to pass accounts relating to an estate for which the minor was a beneficiary. Mr. Nordby did not pass the accounts and by reasons delivered September 28, 2022[^1] I found Mr. Nordby in contempt of that order. I ruled that Mr. Nordby may purge his contempt by filing the application to pass accounts within 60 days. I also ruled that should Mr. Nordby not comply with that order, then the OCL may move under Rule 60.11 for a penalty.
[3] Mr. Nordby has not filed the application to pass the accounts and therefore, the OCL seeks an order that Mr. Nordby be imprisoned for contempt and that Mr. Nordby pay the costs of these motions.
The Proceedings to Date
[4] The undisputed facts are as set out in my prior decision.
[5] Jennifer Lynn Nordby died on June 23, 2013. Her will appointed her father, Harold Edward John Nordby, estate trustee and named her two children as beneficiaries.
[6] Mr. Nordby obtained a Certificate of Appointment of Estate Trustee with a Will on October 30, 2013. The Application for Certificate of Appointment of Estate Trustee sworn to by Mr. Nordby on October 16, 2013 stated the value of the estate at $205,660.
[7] Despite multiple requests, Mr. Nordby failed to provide an accounting of the estate assets to the OCL.
[8] The OCL obtained an order from Fregeau J. on April 12, 2017 requiring Mr. Nordby to file accounts of the estate and bring an application to pass accounts within 60 days of the order being served on him.
[9] Mr. Nordby was personally served with a copy of the order on July 26, 2017.
[10] Mr. Nordby communicated with the OCL between September and November 2017 and provided some banking documentation but did not file accounts of the estate or an application to pass accounts as ordered.
[11] Since November 27, 2017, the OCL has made several attempts to contact Mr. Nordby by telephone and by mail but Mr. Nordby has not filed accounts of the estate and has not filed an application to pass accounts. That led to the contempt motion.
[12] On August 11, 2022, I heard a motion for substituted service of the contempt motion upon Mr. Nordby and I made the following endorsement:
Ms. Stamm on behalf of the OCL seeks a contempt order. Respondent does not appear and appears to be evading service. Order to issue permitting substitution service by ordinary mail effective seven days after mailing.
This order and motion material and contempt order to be served by regular mail with the new return date motion adjourned to September 22, 2022.
[13] Mr. Nordby was substantially served with the motion material including the motion record for contempt order, and my endorsement dated August 11, 2022 by regular mail on August 17, 2022.
[14] Despite service, Mr. Nordby did not appear on the contempt motion.
[15] I was satisfied beyond a reasonable doubt that that the order alleged to have been breached clearly and unequivocally states what is required, that Mr. Nordby had actual notice of the order, and that Mr. Nordby intentionally failed to do what was ordered. Accordingly, I found Mr. Nordby in contempt.
[16] As noted, I ruled that Mr. Nordby may purge his contempt by filing the application to pass accounts within 60 days of service of this order upon him by ordinary mail. My reasons also clearly set out the orders that could be made where a finding of contempt is made.
[17] On December 22, 2022 the OCL moved for a penalty as Mr. Nordby had not purged his contempt.
[18] Mr. Nordby appeared and indicated that he was seeking legal counsel. I adjourned the penalty hearing until Thursday, January 26, 2023. My endorsement that day stated:
This date is peremptory on Mr. Nordby. That means that the hearing will proceed whether he is in attendance or not or whether he has retained a lawyer or not.
Mr. Nordby has been advised that the penalty to be determined by me will depend on the steps he has taken to comply with the original order. Costs deferred to that date.
[19] On January 26, 2023, Mr. Fuller appeared and advised that he had been retained by Mr. Nordby two days previously. Mr. Fuller was seeking an extension of 60 days to allow Mr. Nordby to purge his contempt by perfecting and filing his application to pass accounts.
Position of the Parties
[20] The OCL seeks a penalty of 30 days imprisonment, noting that the contempt has not yet been purged and that this is a long-standing breach of a court order by someone in a position of trust. The OCL also seeks its costs of these motions.
[21] Counsel for Mr. Nordby made no specific submissions with respect to the penalty but requested, as stated, an extension of time to purge the contempt.
The Law
[22] Rule 60.11(5) provides that where a finding of contempt is made, the court 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.
[23] Some recent decisions of this court are of assistance in determining the appropriate penalty.
[24] In Langston v. Landen[^2], Greer J. sentenced an estate trustee to 14 months imprisonment for contempt of various orders including failing to pass accounts. Greer J. noted:
[40] Persons found in contempt have to be accountable for their own actions, whether the matter is civil or criminal. The same principle of deterrence applies to either system. [Underline added.]
[43] Proper penalties make the public sit up and take notice. The word goes out into the community that the Court will not tolerate disobedience of its Orders. In this case, the “community” is specific as well as general in nature. The specific community is that of estate trustees and other trustees, as well as persons in positions as fiduciaries, persons acting under powers of attorney or other positions of trust. When money held in trust disappears, the person who controls it has a legal obligation to account for its administration, if ordered to do so. Failure to so account is egregious conduct, since executors/trustees/guardians/attorneys all are obliged to keep proper accounts. [Underline added.]
[25] In imposing penalty, Greer J. observed that the behavior “was no single incident and no slip from otherwise honest behavior.”[^3]
[26] In Poulie v. Johnston[^4] LeMay J. imposed a sentence of four months imprisonment for contempt and applied the following legal principles:
[45] In imposing a sentence for contempt, it is important to remember that the rule of law is central to a consideration of contempt of Court. As McLachlin J. (as she then was) noted in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901:
Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [Underline added.]
[48] One of the key principles that should be applied in a sentence, even for civil contempt, is deterrence. As Lax J. noted in Chiang (at para. 25):
[25] The primary purpose of sentencing in contempt proceedings is deterrence. It should serve as a disincentive to those who might contemplate the breach of court orders. The courts do not have an army to enforce their orders. If large numbers of litigants were to disobey court orders, the court system would soon break down. Courts expect parties to voluntarily comply with its orders and in the vast majority of cases, they do. This may explain why contempt cases are somewhat rare and incarceration for civil contempt is even rarer. There would appear to be only a handful of reported cases in the commercial law context where custodial sentences have been imposed. I will return to these later in considering the appropriate sentence. I turn now to the sentencing factors to be considered as they apply to the Chiangs' conduct. [Underline added.]
[27] In fixing sentence LeMay noted that there were a number of aggravating factors including the length of the contempt, the deliberate ignoring of court orders, the nature of the statements made and intimidation. He also noted that the only significant mitigating factor was the fact that the contempt was then purged.
[28] As observed by Emery J in Alabi v. Alabi[^5] , a fine may be an appropriate punishment for contempt for a breach of a court order that has been effectively satisfied by an equalization order.
Analysis and Disposition
[29] This is a long-standing breach of a court order. As the affidavit evidence discloses, the OCL has been requesting this information from Mr. Nordby for over five years. He was warned by me in my decision dated September 28, 2022 that the punishment for contempt could include imprisonment. He was given 60 days to comply with the 2017 order but did not do so. Almost 3 months later, on December 22, 2022, Mr. Nordby had not taken significant steps to purge his contempt. Indeed, on the return of the motion before me on January 26, 2023, it was apparent that he had only retained counsel two days before the motion was heard.
[30] He is an estate trustee. He has been advised of his obligation to pass accounts and he has ignored that obligation. His actions show a complete disregard to his obligation as an estate trustee and a willful disregard for a court order.
[31] However, his conduct is not as egregious as the conduct in Langston or Poulie. While the aggravating factor of a lengthy failure to abide by a court order is present, other factors present in those cases are not. Nevertheless, despite being given what is now four months to purge his contempt, he has not done so.
[32] I have considered whether a fine is appropriate but recognize that what is at issue here is accounting for funds that were to benefit his grandchildren. As I have no information before me as to the disposition of the estate assets or Mr. Nordby’s financial circumstances, I conclude that a fine is not appropriate.
[33] I conclude that the paramount principle to be applied is deterrence and fostering respect for and compliance with court orders. Imprisonment is a punishment that will make Mr. Nordby and the public “sit up and take notice.”
[34] The punishment for the contempt to date is five days imprisonment.
[35] The contempt has not yet been purged. As requested by his counsel, Mr. Nordby has an additional 60 days from the date of these reasons to purge his contempt. What is required is that Mr. Nordby must file his passing of accounts within 60 days and also obtain a date for the hearing of the passing of accounts. Due to scheduling difficulties that date may not be within 60 days, but a date must be fixed for that hearing within 60 days. The trial coordinator is instructed to assist in securing that date, but that date will not be given until the passing of accounts documentation has been served and filed. If Mr. Nordby does not purge his contempt within 60 days, then this matter may return before me for a further penalty hearing.
[36] I have signed a warrant of committal.
[37] It is further ordered that Mr. Nordby shall pay costs to the Office of the Children’s Lawyer in the amount of $2500, all-inclusive, from his own funds and not from the estate of Jennifer Nordby.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: February 1, 2023
COURT FILE NO.: CV-22-36/ES-13-129 DATE: 2023-02-01
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Office of the Children’s Lawyer Applicant
- and –
Harold Edward John Nordby Respondent
REASONS ON MOTION FOR PENTALTY ON CONTEMPT
Newton J.
Released: February 1, 2023
[^1]: Estate of Nordby, 2022 ONSC 5521. [^2]: 2010 ONSC 6993. (“Langston”). [^3]: Langston at para. 29. [^4]: 2922 ONSC 5186. (“Poulie”). [^5]: 2022 ONSC 230. (“Alabi”)