Ontario Superior Court of Justice
Court File No.: 2304/17 (Chatham)
Date Heard: March 4, 2025
Date Released: March 17, 2025
Between:
Scott Lozon, Plaintiff
and
Bryan Lozon, Patrick Lozon, Gerald Lozon and Arlene Lozon, Defendants
Appearances:
Catherine Patterson, for the Plaintiff
Jeffrey Nanson, for the Defendant, Bryan Lozon
David Kirwin, for the Defendants, Gerald and Arlene Lozon
Ruling on Contempt Motion
Jasminka Kalajdzic
Introduction
1In the latest instalment of a long-running legal battle between members of the Lozon family, Scott Lozon has brought a contempt motion against his brother, the defendant Bryan Lozon, to enforce a judgment of the Court of Appeal. Pursuant to that judgment, Bryan was to deliver four snowmobiles that were identified by model name and vehicle identification number (“VIN”).
2Seven months after the Court of Appeal’s judgment, on the eve of this contempt motion, Bryan delivered the items depicted in the following photographs:
3Bryan submits that he complied with the court order because he delivered four items – two damaged and incomplete snowmobiles and two snowmobile tunnels – bearing the relevant VINs. His evidence is that when the Court of Appeal ordered him to deliver the four machines, the items in the photographs above were what he had in his possession.
4Scott alleges that Bryan tampered with the snowmobiles that were intended to be transferred and he affixed the correct VIN tags on different machines. In doing so, Bryan wilfully defied the order requiring him to deliver the four snowmobiles listed in the order.
5Both parties swore affidavits and were cross-examined on them. In addition, two non-parties who bought and sold snowmobiles to the litigants swore affidavits stating that the items delivered to Scott were not the machines listed in the Court of Appeal’s judgment.
6I am satisfied beyond a reasonable doubt that Bryan did not fully comply with the Court’s order. The two tunnels depicted above are not, by any common sense or technical definition, “snowmobiles”. The evidence of tampering with respect to a third item is overwhelming. For the reasons below, I find that Bryan wilfully failed to comply with the Court order. Accordingly, he is in contempt.
Facts
7Scott and Bryan are brothers. Their parents are Gerald and Arlene Lozon. Although defendants in the action, Gerald and Arlene are not responding parties to the contempt motion.
8In October 2015, there was a physical altercation between Scott, Bryan, Gerald and Gerald’s brother. Scott was badly beaten and Bryan sustained superficial injuries.
9In 2016, Scott brought an action against Gerald and Arlene claiming he was the beneficial shareholder of a family company, the shares of which were held in trust for him by his father. Gerald and Arlene, via a numbered company, counterclaimed to obtain possession of a multimillion-dollar log cabin in which Scott and his spouse were residing. The 2016 litigation is referred to as the “Corporate Action”.
10In 2017, Scott brought an action against his brother, father and uncle for damages stemming from the October 2015 assault and battery. That same year, Bryan and Gerald sued Scott for their injuries stemming from the same incident. These actions are collectively referred to as the “Personal Injury Actions”.
11In 2017, Scott and his parents participated in a mediation of the Corporate Action. It was unsuccessful. During the course of the mediation, a list of machines and equipment was prepared that included, at line 26, “snowmobiles only, less the El Tigre previously owned by Scott and Bryan Lozon’s mother”. No other snowmobiles were specifically listed, but the evidence is that the family collectively owned many.
12In 2022, the parties to the Corporate and Personal Injury Actions attended a 12-hour mediation, which resulted in Minutes of Settlement (“Minutes”). The Minutes provided that Gerald and Arlene would make cash payments totalling $1.12 million to Scott and that Scott would vacate the cabin. Those aspects of the settlement have been completed. What remains in dispute is a small, but apparently important, part of the settlement that required Scott to receive certain equipment, including five snowmobiles of his choosing, except for the El Tigre once owned by his mother but then gifted to Bryan. No VINs or pictures of the snowmobiles were attached to the Minutes.
13Shortly after the Minutes were signed, and although entitled to five, Scott requested two snowmobiles: a 1971 King Cat 4 cylinder and a 1981 El Tigre 6000 (not the El Tigre excluded from the list). He did not have VINs but requested those two machines based on his familiarity with the defendants’ collection of snowmobiles. Six days later, Scott received a trailer with parts of snowmobiles as shown in this photograph:
14Scott refused to accept the contents of the trailer in satisfaction of his right to five snowmobiles. His counsel wrote to the defendants’ lawyers reiterating the demand for the 1971 King Cat and the 1981 El Tigre and, in addition, requesting two more snowmobiles, a Red Cylinder Yamaha and a 2003 black Firecat F7.
15Bryan resisted transferring the snowmobiles, stating that they belonged to him and that he did not agree to transfer them during the mediation.
16Scott then brought motions in both the Corporate Action and his Personal Injury Action seeking to have the 2022 Minutes enforced. He also sought an order that the snowmobiles be delivered to the secure custody of a non-party because he was concerned Bryan would vandalize or damage them if he were ordered to deliver them to Scott.
17In response to the motion, Bryan swore an affidavit listing the four snowmobiles he believed Scott was referring to and gave the VINs associated with them. He also attached copies of receipts of purchase and ownership documents for each of the four machines. He argued that because those snowmobiles were not specifically listed in the Minutes, there was no meeting of the minds and no enforceable agreement. He also responded to Scott’s request that the snowmobiles be placed in a third party’s safekeeping with this statement: “Scott suggests in his affidavit that he is concerned that the snowmobiles will be ‘vandalized or otherwise damaged’. That will not happen. The snowmobiles are in my possession. I own them. I have no intention of damaging my own property.”
18By order dated October 28, 2022, the motion judge dismissed the motions on the basis that there was a misunderstanding as to which items were included in the Minutes and therefore no agreement was reached.
19Scott appealed. In a decision reported at Lozon v. Lozon, 2023 ONCA 645, the Court of Appeal allowed the appeal and ordered judgment in accordance with the 2022 Minutes. The Court found at para. 16 that the motion judge had erred by basing his decision on the evidence of the subjective intentions of the parties. The objective evidence at the time of execution of the Minutes supported a finding that Scott was entitled to choose any five snowmobiles, including those owned by Bryan, except the El Tigre previously owned by Arlene.
20The Court then, at para. 21, listed the following four snowmobiles Scott had requested through his counsel and included the VINs supplied by Bryan because “clarity is important”:
- 1971 King Cat 4-cylinder snowmobile VIN 161015;
- Model 60001981 El Tigre snowmobile VIN 1018836;
- Red Yamaha Vmax 4-cylinder snowmobile VIN VX800W8BU003720;
- 2003 black Firecat F7 snowmobile VIN 4UF03SNW33T172731.
21The Court ordered that “the four snowmobiles listed above be delivered to Scott forthwith” and awarded costs to Scott in the amount of $29,000.
22Two months after the decision of the Court of Appeal, Bryan brought a motion for directions “concerning the implementation of the settlement reached in this action and two related actions.” Scott then cross-motioned for an order of contempt.
23Bryan’s motion for directions was based on his argument that he was not required to deliver his four snowmobiles because Scott’s son had already removed snowmobiles from the premises of the family business and Scott was therefore not entitled to any others.
24On the eve of the return of Bryan’s motion for directions and Scott’s contempt motion, Bryan changed counsel, delivered the items depicted in the photographs at para. 2 of these reasons, and abandoned his motion.
Evidence Regarding the Snowmobiles
25Bryan argues that he delivered the four snowmobiles listed in the Court of Appeal’s order. Scott submits that those are not the snowmobiles contemplated in the Court’s order, notwithstanding that the VIN tags on each item match the VINs listed in the order.
26The parties filed substantial evidence related to the four machines. All of it is circumstantial in the sense that no one witnessed Bryan tampering with VIN tags or in recent possession of snowmobiles matching the model names of those in the order.
(a) 1971 King Cat 4-cylinder Snowmobile VIN 161015
27For this motion, Scott produced a picture of the 1971 King Cat he had requested. It is the picture on the left, below, taken in 2012 before the family dispute and litigation. On the right is the item delivered by Bryan that he says is the 1971 King Cat.
28The item on the right is a gray tunnel with a steering column. It does not have an engine, skis, suspension, a seat, or a windshield.
29The plaintiff filed evidence by Ian Cook. Mr. Cook has 30 years of experience selling and servicing snowmobiles. He testified that a 1971 King Cat is very rare and expensive. Only 124 King Cats were made.
30Mr. Cook’s evidence is that a partial number engraved on the tunnel belongs to a 1973 Arctic Cat Panther and does not belong to a 1971 King Cat. He also states that the VIN tag is in the wrong location, that he can see where the original VIN tag was located, and that the “numbers have been ground off”. He further testified that the exhaust exit is not located where it should be on a 1971 King Cat and that the tunnel has a left-hand chain case on the frame whereas all King Cats were right hand drive. He concludes unequivocally: “This is not a 1971 King Cat.”
31Bryan’s response to this evidence is that Mr. Cook could not say what condition the King Cat was in when Bryan purchased it or while it was in his possession.
32Bryan’s evidence was that he purchased two King Cats in 2009 at the same time – the tunnel that was ultimately delivered to Scott, and the pristine King Cat shown in the photo in para. 27 above. The receipt only listed one VIN because the pristine King Cat had no ownership papers or a VIN. In contrast, he claimed that the tunnel had both ownership papers and a VIN, and that he registered it with the Ministry of Transportation and obtained a plate number for it. He stated that he did not register the pristine King Cat with the Ministry of Transportation and that he sold it in 2015. He further testified that he could not remember the name of the man to whom he sold it, and he did not offer any proof of the sale.
(b) 1981 El Tigre 6000 Snowmobile VIN 1018836
33In the foreground of the picture on the left, below, is the 1981 El Tigre Scott stated he had requested pursuant to the Court of Appeal’s decision. The picture was taken in 2012 at an event where Bryan was exhibiting the El Tigre. On the right is a picture of what Bryan delivered to Scott that purports to be the same machine.
34Mr. Cook testified that the snowmobile delivered to Scott was not a 1981 El Tigre 6000. The VIN tag was not original to the machine and the serial number had been ground off. The stamp and sticker on the tunnel of the snowmobile were missing. The engine was a 1991 model.
35Bryan stated that the El Tigre was last operational in 2014 or 2015, two or three years after the picture, above, was taken. Bryan stated there was no registration decal on the machine because he had removed it. He also said that a previous owner must have ground off the serial number. He did not have an explanation for the other disparities noted in Mr. Cook’s affidavit.
36As with the other three snowmobiles, Mr. Cook admitted that he did not know the condition of the El Tigre at the time Bryan swore his 2022 affidavit.
(c) Red Yamaha Vmax 4-cylinder Snowmobile VIN VX800W8BU003720
37For this motion, Scott produced a picture of the Yamaha Vmax snowmobile owned by Bryan (on the left). On the right is the red tunnel Bryan delivered that he says is the Yamaha Vmax snowmobile.
38Mario Michael is the sales manager of Bob’s Motorsports, a Yamaha snowmobile dealership. He has known Bryan for many years. He submitted an affidavit in which he testified that Bryan keeps his snowmobiles in mint condition and that Bob’s has sold numerous parts to Bryan for his Yamaha Vmax over the years. He noted that the Vmax is very rare and that the red tunnel delivered to Scott has no value.
39Bryan testified that he had in fact bought two Yamaha Vmax snowmobiles at the same time from the same person but that the pristine machine shown above in the photo on the left did not have ownership papers. He stated that he had registered the tunnel (depicted in the picture on the right) as a 96 Yamaha VX8 on January 21, 2013. At his cross-examination, he could not say why he had registered and obtained plates and a registration decal for a tunnel he could not drive. He undertook to produce the decal but did not do so.
40Bryan testified that he sold the pristine Yamaha Vmax for cash in 2018. He had no receipt or other proof of sale.
41Bryan continued to insure a Yamaha Vmax until at least 2020. He claimed that what was insured was the red tunnel.
42Bryan conceded that the Yamaha Vmax, with which Mr. Michael was familiar and which he described as “pristine” and in “mint condition”, matches the description of the Vmax he allegedly sold in 2018.
(d) 2003 Black Firecat F7 snowmobile VIN 4UF03SNW33T172731
43Scott produced a picture of the black Firecat F7 he requested, taken in 2013 (below, left). On the right is the snowmobile delivered by Bryan.
44The Firecat is the only one of the four items delivered to Scott that Bryan described as an operational snowmobile. At his cross-examination, Bryan referred to the other three items as “tunnels” or “parts machines”.
45Mr. Cook testified that there is no VIN on the body of the snowmobile and that the serial number of the engine does not match the original engine on the Firecat that was sold to Bryan in 2003. Mr. Cook also stated that the Firecat that Bryan purchased had a Snow Pro suspension package but that the snowmobile delivered to Scott had standard suspension. Bryan testified that he had replaced the engine and that is why the serial numbers do not match, and that he replaced the original suspension because it leaked. He did not provide supporting documentation for these purchases.
Law and Analysis
Preliminary Procedural Issue: Is Viva Voce Evidence Needed?
46Before turning to the test for contempt, I must address a preliminary point raised by Mr. Nanson in his factum and briefly at the hearing. He submitted that the motion could not be heard on a paper record because there are controverted facts. He cited Regina v. Jetco Manufacturing Ltd. and Alexander, 57 O.R. (2d) 776 (C.A.) for this proposition.
47A contempt motion may proceed in a summary fashion employing one of two hearing methods: (i) a hearing on a written record, or (ii) an oral hearing with viva voce evidence. According to Jetco, “[w]hen there are controverted facts relating to matters essential to a decision as to whether a party is in contempt of court, those facts cannot be found by an assessment of the credibility of deponents who have not been seen or heard by the trier of fact.”
48Similarly, in Regina v. B.E.S.T. Plating Shoppe Ltd. and Siapas, 59 O.R. (2d) 145 (C.A.), the Court of Appeal stated that “[w]here affidavits filed by the parties to contempt proceedings contain contradictory statements with respect to material facts or issues in the case, an alleged contemnor is entitled to have the trial of an issue with the calling of witnesses to give viva voce evidence if he so requests.”
49Mr. Nanson did not identify which material facts are in dispute that require a trial. He did not ask to call, let alone insist on calling, his client, who was present. He referred only to Jetco and then proceeded to argue the motion, relying on the affidavit evidence and the cross-examination transcripts.
50Counsel for Scott Lozon, Ms. Patterson, did not address Jetco. She took the position that civil contempt motions are routinely argued on a paper record, without the need for viva voce evidence, and the court could do so here.
51A contempt hearing is held as a summary proceeding, and the evidence against the defendant may be adduced in affidavit form. The Supreme Court of Canada has held that this procedure does not, of itself, violate the s. 7 Charter of Rights and Freedoms rights of the accused to a fair trial so long as the court conducts the hearing in accordance with the principles of fundamental justice: United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901.
52However, both Jetco and B.E.S.T. predate the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Neither counsel addressed the impact of Hryniak on contempt motions.
53A judge can decide a motion for summary judgment on the basis of conflicting affidavit evidence if the judge has confidence that they can find the necessary facts and apply the relevant legal principles so as to resolve the dispute: see the reasons of Karakatsanis J. in Hryniak, at para. 50. The same is true in a contempt motion, even on the criminal standard of proof: Business Development Bank of Canada v. Cavalon Inc., 2016 ONSC 4084, at para. 52, aff’d 2017 ONCA 663, 416 D.L.R. 269, leave to appeal refused, [2017] S.C.C.A. No. 504. If “affidavit evidence filed by the alleged contemnors defies common sense, the judge can safely have confidence that findings can be made based on the criminal standard of proof”: Cavalon, at para. 52.
54The approach in Cavalon has been consistently followed when the underlying disputed facts on a contempt motion can be resolved by way of affidavit evidence, cross-examinations, and limited oral evidence, or any combination of the three: Boutis and The Corporation of the County of Norfolk et al, 2024 ONSC 3985, at para. 45.
55Although I agree with Mr. Nanson that material facts are in dispute, it does not follow that I cannot make proper assessments of credibility without viva voce evidence. In light of the evolving law since Hryniak, a contempt motion can be decided on affidavit evidence, particularly when, as here, extensive cross-examinations were conducted and the transcripts are in the record.
Test for Contempt
56On a motion for civil contempt, the moving party must prove contempt beyond a reasonable doubt. In order to meet the test for civil contempt, the following three elements must be established: (i) the order states clearly and unequivocally what should have been done; (ii) the party alleged to be in contempt has actual knowledge of the order; and (iii) the party alleged to be in contempt 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, [2015] 2 S.C.R. 79, at paras. 32-35.
57A judge retains an overriding discretion to decline to make a contempt finding when the foregoing factors are met but it would be unjust to do so, such as when the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: Carey v. Laiken, at para. 37.
58The exercise of the contempt power is discretionary, and courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last, rather than first, resort: Ruffolo v. David, 2019 ONCA 385, at para. 18.
59In assessing contempt allegations, courts should consider the totality of the evidence: Wang v. Feng, 2023 ONSC 2315, at para. 117.
Application of Test for Contempt
60First element: The order allegedly breached must state clearly and unequivocally what should and should not have been done: Carey v. Laiken, at para. 33.
61The Court of Appeal’s order was clear and unequivocal. The Court specified the model names and VINs of the snowmobiles precisely because “clarity is important” (at para. 21). Bryan himself admitted that the order was clear in his affidavit sworn December 1, 2023 in support of his motion for directions, stating at para. 12: “The result on the appeal brought certainty with respect to the issue of the snowmobiles and tractor that were to be delivered to Scott.”
62I find the first element of the test is met beyond a reasonable doubt.
63Second element: the party alleged to be in contempt must have had actual knowledge of the order.
64There is no dispute that Bryan had knowledge of the order.
65Third element: 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, para. 35.
66The requirement to prove the contemnor intentionally failed to do what the order compelled is distinct from proving whether an alleged contemnor intended to disobey the order in question. Contumacy, or lack thereof, is not an element of civil contempt: Carey v. Laiken, at para. 38.
67Unlike other cases where the main dispute is whether the contemnor acted intentionally in violation of the order, the central question I must address is whether Bryan violated the order at all. Did he do the act that the order compelled? That is, did he deliver the four specific snowmobiles listed at para. 21 of the Court of Appeal’s judgment? Bryan states that he did because he delivered four items with VIN tags that matched the VINs listed in the judgment. For this to be true, the court must accept his explanation that the four items were in the same condition as of the time that he listed the snowmobiles and VINs in his August 2022 affidavit and reject the evidence of tampering proffered by the plaintiff.
68Scott submits that Bryan’s “story is not believable.” The more likely story, Scott says, is that Bryan has retained the four snowmobiles and affixed the VIN tags from the actual snowmobiles onto the four items he delivered. Bryan did not comply with the order because he did not deliver four snowmobiles, let alone the four specific snowmobiles listed in the court order.
69Mr. Nanson urged the court to find that the contempt test was not met beyond a reasonable doubt because Bryan delivered four items with VINs matching those in the court order. His argument is effectively that there was technical compliance.
70I reject the formalistic approach advanced by the defendant. The interpretation of a court order should be approached contextually with a view to achieving the order’s objective: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, at para. 33. The alleged contemnor must follow the letter and the spirit of the order: Chirico v. Szalas, 2016 ONCA 586. In Chirico, for example, a court order required the defendant to surrender his dog to the Humane Society. A different agency, not the Humane Society, approached him for the dog and the defendant resisted. ‘Technically’, the defendant in Chirico did not fail to relinquish his dog to the Humane Society, but the Court of Appeal still found he was in contempt because he had failed to comply with the spirit of the order. The contemnor knew that he had to surrender the dog for destruction, and the identity of the organization receiving the dog was not important.
71So, the proper question is not whether Bryan technically complied with the Court of Appeal’s order but rather whether he followed the letter and spirit of the order. More precisely, has Scott proven beyond a reasonable doubt that Bryan did not do so?
72A motion for contempt brings into play the fundamental principles of the presumption of innocence and the plaintiff’s burden of proving the elements of contempt beyond a reasonable doubt: Greenberg v. Nowack, 2016 ONCA 949, at paras. 26, 27; Jackson v. Jackson, 2016 ONSC 3466, at para. 48.
73While the alleged contemnor is entitled to the presumption of innocence and right to remain silent, as a practical matter, an explanation will sometimes be required to avoid a conviction: 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951 at para. 40. Further, if an alleged contemnor chooses to testify, his evidence is subject to full scrutiny, and the court may draw adverse inferences from his evidence: Sweda Farms Ltd. et al. v. Ontario Egg Producers et al, 2011 ONSC 3650, at para. 24.
74If the alleged contemnor testifies at the contempt hearing, either orally or by affidavit, the principles of R. v. W.D., [1991] 1 S.C.R. 742 are engaged: Citti v. Klein, 2020 ONSC 2228, at para. 31.
75When assessing the credibility of the competing evidence, W.D. dictates the following:
- If I accept Bryan’s evidence that he did not deliberately and wilfully breach the court’s order, I must conclude that Bryan did not commit contempt of court;
- Even if I do not believe Bryan’s evidence, if it leaves me with a reasonable doubt about his liability for contempt, I must find that he did not commit contempt of court order; and
- Finally, even if Bryan’s evidence does not leave me with a reasonable doubt about his culpability, I may find him in contempt only if the rest of the evidence that I accept proves his culpability beyond a reasonable doubt.
76Any reasonable doubt must be resolved in favour of the alleged contemnor: Sweda Farms, at para. 26. A reasonable doubt is not to be an imaginary or frivolous doubt, nor may it be based on sympathy or prejudice. It must be based on reason and common sense, logically derived from the evidence or absence of evidence. Courts have long recognized that it is virtually impossible to prove anything to an absolute certainty and the moving party is not required to do so: Sweda Farms, at para. 26; R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39.
77The first and second branches of W.D. compel me to consider Bryan’s evidence. The assessment of the veracity of Bryan’s explanation relates to his credibility. Ms. Patterson relied on Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at para. 10, which offers the following guidance on the evaluation of credibility and reliability of witnesses in both civil and criminal cases:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
78For the reasons that follow, I find that Bryan’s evidence about the King Cat, Yamaha Vmax and El Tigre is not credible. I do not accept it, and it does not raise a reasonable doubt as to his contempt. I will address the 1971 King Cat first.
(a) 1971 King Cat
79The 1971 King Cat was a rare and valuable snowmobile. Bryan delivered a gray tunnel with a steering column. It does not have an engine, skis, suspension, a seat or a windshield. He referred to it repeatedly as a “tunnel” in his cross-examination.
80Mr. Cook swore an affidavit listing a number of discrepancies between the item that was delivered and the features of a 1971 King Cat. He also stated that the VIN tag was in the wrong location, he could see where the original VIN tag had been located and removed, and that the “numbers have been ground off”. He concluded unequivocally: “This is not a 1971 King Cat.”
81Mr. Cook is not an interested party. He knows both Bryan and Scott because he has sold snowmobile parts to them, but there was no suggestion that he has a bias favouring Scott.
82Bryan’s response to this evidence is twofold. First, he states that Mr. Cook cannot say what condition the King Cat tunnel was in when Bryan purchased it or while it was in his possession. Second, he states that he had bought two King Cats at the same time from the same person, and the intact, pristine King Cat known to both Mr. Cook and Scott was a different snowmobile that he sold in 2015.
83In 2022, Bryan still retained a receipt for the King Cat he purchased in 2009 for $10,000. The receipt only listed one VIN and one King Cat. Bryan testified that the receipt was for both the pristine King Cat and the tunnel, but that the VIN referred to the tunnel. He stated that the pristine King Cat had no ownership papers or a VIN. He further testified that the King Cat he registered with the Ministry of Transportation and plated was the tunnel and that he never registered the pristine King Cat before selling it to an unidentified man in 2015 for $1000.
84I reject this evidence. It defies common sense. For it to be true would require a number of wild coincidences.
85It is illogical that Bryan would register, plate and insure a tunnel that cannot be driven. The detailed purchase receipt shows only one item was purchased, a 1972 King Cat, but Bryan asks this court to believe that two items were purchased that day and that the VIN noted on the receipt referred to the tunnel, not to the rare, valuable King Cat snowmobile. He says the valuable, operational King Cat snowmobile had no VIN or ownership papers and that he never registered it with the Ministry of Transportation. These coincidences are too convenient and simply not believable.
86There is also the matter of insurance. He undertook to produce the registration decal for the tunnel but failed to do so. He also said that he had insured the operational King Cat for fire and theft only but took under advisement a request to produce his liability insurance policies from 2016 to the present. Nothing was produced.
87The snowmobile Bryan kept in pristine condition, as shown in a 2012 photo taken at a snowmobile show, was one he says he sold three years later for $1000. Although he kept the receipt for its purchase in 2009, he failed to keep any documentation for the sale in 2015 or remember to whom he sold it. He also testified that he kept the 2009 receipt “in the snowmobile”, and yet there is nowhere on the tunnel such a receipt could be stored.
88The evidence must be assessed in the context of the litigation. Bryan did not want to part with his four snowmobiles. He brought two motions for directions, one in 2022 and the second in late 2023, claiming that there was no agreement with respect to Bryan’s machines. He argued that the settlement of the Corporate Action did not involve him and that his snowmobiles, therefore, were not part of the deal. He continued to make this argument even after the Court of Appeal ruled otherwise. For example, at his cross-examination for the contempt motion, the following exchange took place:
Q. Well, he, he asked for a King Kat four-cylinder snowmobile. And you had…
A. Yeah.
Q. … you had a frame and previously you had what was in fact a 1971 King Kat four-cylinder snowmobile, correct? But you had sold it?
A. Yes.
Q. Okay, so why would you think that he was asking for this frame and not what you had already sold and no longer had possession of?
A. Because he was unaware of the fact that I sold the other one.
Q. But why would you not have said Scott is asking for a, for a snowmobile that I no longer own because I sold it?
A. I own the ownership and a snowmobile that says ’71 King Kat or ’72 King Kat.
Q. You thought he was asking for that frame?
A. Yes.
Q. I think you’re lying. All right.
A. He didn’t ask, and I didn’t tell him what I did with it. Just like he never told me I was part of the mediation. You come to me years after saying, oh, by the way, we want your stuff. You were told not to, that I was not part of the mediation for the corporate. I was only there on civil.
Q. Well, you lost on that point.
A. Oh, after you sent it all off to lawyers and I should have been notified. Do you not agree that I should have been notified? I got all the paperwork that says that it was against Gerald and Arlene Lozon, not Bryan and Gerald and Arlene.
Q. Okay so …
A. You pulled a fast one there.
89Finally, as a matter of common sense, the tunnel that Bryan delivered is not a snowmobile. That there is a VIN tag attached to it bearing the numbers listed in the Court of Appeal’s order does not mean Bryan has complied with the order, especially when there is evidence the original VIN tag was removed from the tunnel and the existing one was installed in the wrong location. Simply put, a frame without an engine, skis, suspension, a seat or a windshield is not a snowmobile, and a snowmobile is what Bryan was required to deliver.
(b) 1981 El Tigre 6000
90The machine Bryan delivered and claimed to be the 1981 El Tigre 6000 is not operational. Mr. Cook testified that the VIN tag is not original to the machine. The serial number on the machine has been ground off. The stamp and sticker on the tunnel are missing. The engine is from a 1991 model.
91Mr. Michael, the sales manager at Bob’s Motorsport Ltd., also testified that the delivered machine was a “parts sled with the wrong trim and motor”.
92Bryan testified that he had two 1981 El Tigre snowmobiles but that the one he delivered bearing VIN 1018836 was the more intact of the two and that the other one was “just for parts”. He stated that he had registered the machine that was delivered to Scott but that he had removed the registration decal because he did not like the looks of it.
93Bryan’s evidence is not credible. He again claims to have had two versions of the very same snowmobile model but produced only one receipt. There is evidence of tampering with the VIN tag, and the machine’s parts do not match the original. The registration tag was missing. Despite Mr. Michael testifying that Bryan kept all of his snowmobiles in pristine condition and Bryan testifying in 2022 that there was no need to deposit the machines for safekeeping with a third party because he had no intention of damaging his machines, the El Tigre was not in good condition. And according to Bryan, the serial number was “possibly” ground off by a previous owner. There are too many coincidences to accept for his evidence to be true. I reject it.
(c) Yamaha Vmax 4
94The evidence related to the Yamaha Vmax 4 is similar to what was offered for the King Cat. Scott produced a photograph of the snowmobile taken in 2012, when Bryan exhibited it at a snowmobile show. Like the King Cat, the 1996 Yamaha Vmax 4 is very rare, and Bryan kept both snowmobiles in mint condition.
95Mr. Michael, a disinterested third party who sold Bryan numerous parts for the Vmax, examined the red tunnel delivered by Bryan. Mr. Michael stated that he would be very surprised if the tunnel is the Vmax and concluded that it has no value. He stated that Bryan “keeps his snowmobiles in pristine condition” and he “can’t imagine that Bryan would use the 1996 Yamaha V-Max 4 for parts”.
96Bryan’s evidence is that he purchased an intact Yamaha Vmax and the tunnel at the same time but that only one VIN was noted on the receipt and it belonged to the tunnel. He said the intact Vmax – a showpiece and rare snowmobile – had no ownership papers. This is the same evidence he gave for the King Cat. It is too big of a coincidence for it to be true.
97Bryan registered, plated and insured the tunnel. When asked why he would bother registering and plating an undriveable tunnel, he said did not know. Although he undertook to provide the registration decal associated with the Yamaha Vmax bearing the VIN listed in the court order, he did not produce it.
98Bryan testified that he sold the Vmax 4 in 2018 for cash. He had no supporting documentation for the sale. An insurance card in the motion record showed that a Yamaha Vmax 4 was insured from December 5, 2019 to December 5, 2020 – a year after it was allegedly sold. According to Bryan, the insured Vmax was the worthless tunnel. This explanation is not credible.
99Again, as a matter of common sense, the red tunnel that Bryan delivered is not a snowmobile. That there is a VIN tag attached to it bearing the numbers listed in the Court of Appeal’s order does not mean Bryan has complied with the order. A frame without an engine, steering column, skis, suspension, a seat or a windshield is not a snowmobile, and Bryan was required to deliver a snowmobile. I do not accept Bryan’s evidence that the intact Vmax 4 was sold in 2018 and that the tunnel he delivered was the Vmax 4 snowmobile contemplated in the court order.
(d) 2003 Black Firecat F7
100Of the four items delivered to Scott, the 2003 Firecat is the only operational one. It looks like a snowmobile, even if it is in poor condition and is missing parts.
101Mr. Cook testified that he was working at the dealership when Bryan bought the black Firecat. He produced the build sheet for that snowmobile and testified that the engine serial number does not match the original motor installed by the manufacturer. Further, he testified that the serial numbers on the chassis had been removed and that the Snow-Pro suspension that came with the 2003 Firecat was missing. Mr. Michael also testified that the VIN had been buffed off the tunnel.
102Under cross-examination, Bryan testified that he had had to replace the engine in the Firecat and this accounts for the engine serial number not matching the original motor. He similarly stated that he had replaced the suspension and the front frame, which he says explains why the VINs do not match. Notably, none of this evidence was contained in Bryan’s 2022 affidavit. He gave this evidence after having received the affidavits of Mr. Cook and Mr. Michael.
103Bryan’s evidence was also internally inconsistent. He testified that he had bought some of the replacement parts for the Firecat from Mr. Cook and that he had done the work “sometime after ’14, ‘15”. Yet, elsewhere in his testimony, he stated that the “last time I was involved with Ian in relationship to any of my snowmobiles was in 2014.” Bryan testified that he replaced the motor after 2015 but then stated that he bought the engine in 2013 from someone on Kijiji.
104While I find much of Bryan’s evidence regarding the Firecat lacking credibility, I am not satisfied beyond a reasonable doubt that the Firecat he delivered is not the original Firecat purchased and contemplated by the court order. It is plausible that he had to change the engine more than ten years after purchasing it. Mr. Cook readily conceded that the replacement of the engine would explain the mismatched serial numbers. Unlike the other three items Bryan delivered, the Firecat is a snowmobile, not just pieces of one, and it is operational.
105I therefore find that Bryan is not in contempt of para. 3(d) of the Court of Appeal’s judgment.
106Having found that Bryan’s evidence does not raise a reasonable doubt as to his contempt regarding the King Cat, Yamaha Vmax and El Tigre, I may find him in contempt only if the rest of the evidence, which I accept, proves his culpability in relation to paras. 3(a)-(c) of the judgment beyond a reasonable doubt.
107I have considered the rest of the evidence filed at the motion, including that of two disinterested witnesses who gave evidence that VIN tags were tampered with, serial numbers were ground off, and the items delivered were not snowmobiles but “tunnels” or a “parts sled”. I accept that this evidence proves Bryan’s contempt beyond a reasonable doubt.
Conclusion on Findings of Contempt and Discretion
108I have considered the test set out in W.D. I do not accept Bryan’s evidence that he delivered the three snowmobiles required under paras. 3(a), (b) and (c) of the Court of Appeal’s judgment. His evidence is neither credible nor reliable. In this regard, I concur with the comments made by Gray J. in Cavalon, at paras. 51-52, that if the “affidavit evidence filed by the alleged contemnors defies common sense, the judge can safely have confidence that findings can be made based on the criminal standard of proof.”
109Bryan’s breach must be wilful, not accidental. In P.S.B. v. H.M.V.M., at para. 43, the Court stated, concerning contempt: “An individual need not be found in breach of a specific term in a court order. It is sufficient if the actions are ‘designed to obstruct the course of justice by thwarting or attempting to thwart a court order’”. “‘Willful’ is intended to exclude only casual, accidental or unintentional acts of disobedience”: P.S.B., at para. 42.
110Given the steps Bryan has taken to conceal the three snowmobiles and alter the VINs, I find he has breached the court order wilfully.
111Even when all three of the elements of contempt are established, a judge has a discretionary power to decline a finding of contempt if it would be unjust to so order. This residual power relates to the fact that, generally, the power of contempt should not be used on a routine basis to obtain compliance with court orders: Greenberg v. Nowack, para. 32. The Court must consider less severe means of enforcing compliance.
112I find that a less severe option than declaring Bryan to be in contempt of the Court of Appeal’s order is not available. He has resisted delivering what he calls “his” snowmobiles for almost three years and has spent tens of thousands of dollars in legal fees and costs orders doing so. He has twice delivered parts of snowmobiles in purported satisfaction of a court order. His anger over being ‘duped’ into giving up his prized snowmobiles has clouded his judgment. If he was not prepared to comply with a judgment of the Court of Appeal, only an order of contempt may prompt him to do what he was obligated to do more than a year-and-a-half ago.
Order
113This court orders that:
(i) The plaintiff’s motion for finding the defendant, Bryan Lozon, in contempt of paras. 3(a), (b) and (c) of the Court of Appeal’s judgment dated October 3, 2023 is allowed.
(ii) The penalty phase of the proceeding is adjourned to be heard by me on a date to be fixed with the Trial Coordinator. The motion will be booked for sixty minutes, and counsel will file written submissions at least seven days in advance. The defendant may use this intervening period to purge his contempt, and this will be taken into account for the purposes of penalty.
114The costs of the motion to date are reserved to the balance of the motion.
Jasminka Kalajdzic
Justice
Released: March 17, 2025