Endorsement

COURT FILE NO.: CV-24-00002435-0000
DATE: 2025/01/10
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John Patrick Sigerson, Applicant
AND: Patrick Joseph Sigerson, personally and as Estate Trustee of the Estate of Alice Margaret Sigerson, Respondents

BEFORE: Justice I.F. Leach
COUNSEL: G. Charlton, for the Applicant
The self-representing Respondent not appearing
HEARD: January 10, 2025

Introduction

This matter was before the court today, in London’s weekly “regular motions” court, to address a motion by the Applicant herein for substantive relief including:

a. a declaration that the Respondent has failed to comply with the provisions of an Order made herein by Justice Moore on August 16, 2024, requiring the Respondent to vacate the property known by its municipal address as 912 Reytan Boulevard, Pickering, Ontario, L1W 1Y7 (“the Reytan Boulevard property”), within 10 days of the making of that order; and

b. an Order pursuant to Rule 60.11 of the Rules of Civil Procedure formally finding the Respondent to be in contempt, with ancillary terms requiring the Respondent to be arrested, imprisoned for a period of 30 days pursuant to the order and a corresponding warrant of committal, and pay a fine of $25,000.00.

Background and Procedural History

The Respondent did not appear in response to the Applicant’s motion, although personally served with the Applicant’s motion material, as required by Rule 60.11(2) of the Rules of Civil Procedure.

After reviewing and considering that material in detail yesterday evening, and receiving submissions from counsel for the Applicant this afternoon, I made a handwritten endorsement indicating that, for reasons indicated to counsel during the course of submissions (and which I would confirm in a typed endorsement to follow), the Applicant’s motion would be adjourned to January 24, 2025, with the following to occur in the meantime:

a. The Applicant would prepare, for delivery, a supplementary or amended notice of motion seeking, as alternative relief, an order compelling the Pickering Police Service and/or Enforcement Office of the Court in Oshawa to forthwith remove the Respondent from the Reytan Boulevard property and further assist if/as necessary to prevent the Respondent’s return to that property.

b. The Applicant would serve that supplementary or amended notice of motion, a copy of my handwritten endorsement and my typed reasons to follow (to be made available on or before Monday, January 13, 2025), forthwith on the Respondent personally.

c. The Applicant would also forthwith serve the same material, together with a copy of his original motion record (although that service did not need to be effected personally), on the Pickering Police Service and Ministry of the Attorney General (in relation to the Enforcement Office of the Court in Oshawa), so they would have notice and an opportunity to be heard when the matter was back before the court on January 24, 2025.

These are the typed reasons I said would follow upon my handwritten endorsement.

Factual Summary

The circumstances leading to the Applicant’s motion are set forth in detail in the motion material delivered by the Applicant, including personal service of that material on the Respondent as required by Rule 60.11(2) of the Rules of Civil Procedure. However, by way of a broad summary:

a. The Applicant and the Respondents are brothers, whose parents are now both deceased. The parties have no other siblings.

b. Prior to their deaths, the father and mother of the parties owned the Reytan Boulevard property as tenants in common.

c. Each parent also made a will specifying their desired estate arrangements, including the appointment of specified estate trustees and what was to happen to their respective property, including their respective interests in the Reytan Boulevard property. There have been a number of intervening developments between the time each parent died and today (including death of an additional estate trustee appointed by the parties’ father, termination by death of a lifetime right of occupancy in relation to the Reytan Boulevard granted by the parties’ father to the parties’ mother), but the resulting situation as of today is that:

i. the Applicant is the sole surviving estate trustee of the parties’ father, whose interest in the Reytan Boulevard property and estate residue are to be transferred to the Applicant; and

ii. the Respondent is the sole estate trustee of the parties’ mother, whose interest in the Reytan Boulevard property is to be transferred to the Respondent, and whose estate residue is to be divided equally between the Applicant and Respondent.

d. The Respondent, who has continued to live in the Reytan Boulevard property after the death of both parents, apparently has not taken any steps to administer his mother’s estate. Nor has he been paying municipal property taxes owed in relation to the property, despite being the sole beneficiary of its continued occupation.

e. In the result, the city of Pickering initiated steps to address the overdue municipal tax owed in relation to the Reytan Boulevard property by scheduling its public sale; a public sale that was to have taken place in September of 2024, and which inherently risked the property being sold for an amount less than the sale price that might be realized through a regular market sale organized and conducted by the property’s beneficial owners. In particular, the fair market value of the property was significantly higher than the minimum tender amount of $116,609.18 for which the property had been listed for sale by the municipality, and that would be required by the municipality in relation to the public sale, in respect of which the property would be sold to the person who submitted the highest tender or bid.

f. In an effort to prevent that risk from materializing, the Applicant herein brought an urgent application seeking partition and sale of the property, as well as ancillary relief. That application was brought on notice to the Respondent and came on for hearing before Justice Moore on August 16, 2024. The Respondent did not appear. In the result, Justice Moore made an Order including terms (at paragraphs 4 and 5 of the Order), that read as follows:

4. THIS COURT ORDERS that the Respondent shall vacate and remove any personal property from the property municipally known as 912 Reytan Boulevard, Pickering, Ontario, L1W 1Y7 (the “Property”) within 10 days of this Order.

5. THIS COURT ORDERS that failing the Respondent’s vacation of the Property within 10 days of the date of this Order then police and/or the Sheriff be authorized to forcibly remove the Respondent from the Property.

g. The Order made by Justice Moore also included provisions directing sale of the property by an appointed Estate Trustee During Litigation pursuant to indicated terms (e.g., with the outstanding municipal taxes and other obligations to be addressed by the sale proceeds), clearly contemplating that the Respondent would comply with the aforesaid provisions of the Order requiring him to vacate the Reytan Boulevard property, along with his personal property, within 10 days of the Order having been made, or be forcibly removed from the property if necessary pursuant to other provisions of the Order.

h. The Respondent has been personally served with the Order made by Justice Moore (e.g., through its inclusion in the Applicant’s personally served motion material if not before) but has not vacated the property. To the contrary, the Respondent has indicated to the contemplated purchaser of the property (pursuant to an Agreement of Purchase and Sale entered into pursuant to the terms of the Order made by Justice Moore), that he does not intend to vacate the Reytan Boulevard property.

i. In the circumstances, the Applicant and Applicant counsel (relying on paragraph 5 of the Order made by Justice Moore), contacted the police service in Pickering to enlist their assistance to forcibly remove the Respondent from the Reytan Boulevard property. However, members of that police service are said to have responded with an indication that they would not be able to take any action to evict the Respondent if he had not voluntarily vacated the property.

j. Applicant counsel then contacted the Enforcement Office of the Court in Oshawa (which apparently has assumed the responsibilities previously carried out by a “Sheriff” within the Regional Municipality of Durham), in an effort to enlist its assistance in the enforcement of the Order made by Justice Moore, and its provisions requiring removal of the Respondent from the Reytan Boulevard property. However, that Office is said to have responded with a similar indication that it cannot and/or will not forcibly remove the Respondent from the property if he will not leave voluntarily.

k. There is urgency to the Respondent vacating or being removed from the Reytan Boulevard property, as contemplated and required by the Order made by Justice Moore on August 24, 2025, because the Agreement of Purchase and Sale negotiated in relation to the property will be frustrated if the Estate Trustee During Litigation appointed by Justice Moore’s Order cannot deliver the property in a suitably prepared condition, including vacant possession, on the agreed closing date; a date which already has been extended (by agreement), from November 24, 2024 to March 31, 2025.

The Motion and Legal Principles

The Applicant’s motion and corresponding confirmation of motion filed by Applicant counsel contemplated the relief requested therein (including directed arrest and imprisonment of the Respondent), being granted summarily on an uncontested basis within the span of a 20-minute hearing.

However, as I had occasion to note in Dankiewicz v. Sullivan, 2019 ONSC 6382 and Dankiewicz v. Sullivan, 2022 ONSC 4324, the granting of civil contempt orders (especially those resulting in the imprisonment of an alleged contemnor) is a very serious matter and one therefore subject to stringent procedural and substantive law requirements.

For example, as I noted during the course of oral submissions this afternoon, the Applicant’s desire for a declaration that the Respondent is in contempt, followed by the immediate granting thereafter of a further order directing arrest and imprisonment of the Respondent and his payment of a substantial fine, runs counter to numerous authorities (including authority from the Supreme Court of Canada and Court of Appeal), emphasizing that the inherently serious matter of civil contempt generally should be approached in bifurcated “liability” and “penalty” phases. In particular, appellate authority has emphasized that “a proceeding that considers both liability and penalty in the same hearing may cause unfairness or be infested with legal error to such an extent to require a new hearing”.[^1] A bifurcated approach also provides a confirmed contemnor with an opportunity to purge any identified contempt voluntarily, thereby avoiding the further stigma of contempt, while saving additional party and court resources.

Civil Contempt: Liability and Penalty Phases

As for the required “liability” phase of such civil contempt proceedings, general principles and relevant legislative provisions include the following:

a. Contempt of court rests on the power of the court to uphold its dignity and process. The rule of law depends directly on the ability of courts to enforce their process, and maintain their dignity and respect. The purpose of a contempt order therefore is first and foremost a declaration that a party has acted in defiance of a court order.[^2]

b. In relation to civil contempt (which lacks the element of public defiance essential to criminal contempt), exercise of the court’s contempt jurisdiction is primarily intended to be coercive rather than punitive; i.e., to encourage or ensure compliance with court orders.[^3]

c. A finding of civil contempt requires proof, beyond a reasonable doubt, of three essential elements:

i. First, to ensure that a party will not be found in contempt where an order is unclear, the court order alleged to have been breached must state clearly and unequivocally what should and should not be done. For example, an order may not be sufficiently clear if 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.[^4] On the other hand, a party must comply with both the letter and spirit of a court order, and will not be permitted to hide behind formalistic, restrictive and literal interpretation to circumvent an order, thereby making a mockery of the order and the administration of justice. The days are long past when someone subject to a court order can get away with circumventing it by relying on a benign technicality.[^5]

ii. Second, the party alleged to have breached a court order (the alleged “contemnor”) must have had actual knowledge of the order. In appropriate circumstances, it nevertheless may be possible to infer such knowledge, or find the knowledge requirement satisfied on the basis of the “wilful blindness” doctrine.[^6]

iii. Third, the alleged contemnor must have intentionally done the act that the order prohibits, or intentionally failed to do the act that the order compels. An intention to disobey the court order, in the sense of desiring or knowingly choosing to disobey the order, is not required for a finding of contempt—although the existence or non-existence of such a “contumacious intent” may be relevant in determining the penalty to be imposed following a finding of contempt. All that is required, in relation to this third essential element of civil contempt, is proof beyond a reasonable doubt of an intentional act or omission that is in fact a breach of the relevant court order.[^7] Reliance on legal advice does not shield a party from a finding of contempt.[^8] Nor does a belief on the part of the alleged contemnor that there is a conflict between the demands of a court order and other perceived legal obligations. A party in such a position has appropriate avenues open to him or her other than a unilateral decision to breach the order (e.g., seeking a court determination in relation to the perceived conflict, and/or other efforts to appeal, quash, vary or otherwise have the order set aside), and cannot ignore the important and elementary principle that, so long as an order of the court remains in force, it is binding and conclusive, and must be obeyed.[^9]

d. It nevertheless must be remembered that the court’s contempt power is discretionary, and the full scope of that discretion purposely has not been delineated. A judge entertaining a contempt motion therefore generally retains some discretion to decline making a finding of contempt even where the three essential elements of civil contempt otherwise have been established; e.g., in circumstances where a contempt finding would work an injustice, as in cases where an alleged contemnor acted in good faith in taking reasonable steps to comply with an order. In that regard, it should be remembered that courts consistently have discouraged routine use of the contempt power to obtain compliance with court orders, as resorting to the power too easily might ultimately “cheapen” the role and authority of the very judicial power a finding of civil contempt seeks to protect. The contempt power therefore should be used “cautiously and with great restraint”, as an enforcement power “of last rather than first resort”.[^10]

e. In Ontario, civil contempt proceedings are governed by Rule 60.11 of the Rules of Civil Procedure. In that regard:

i. Pursuant to Rule 60.11(1), a party to a proceeding may make a motion to a judge, in that proceeding, seeking a contempt order to enforce an order requiring a person to do an act (other than the payment of money), or to abstain from doing an act.

ii. Rule 60.11 does not prescribe the form of contempt proceedings. However, as already noted above, in contempt proceedings liability for contempt and imposition of an appropriate penalty for any established contempt are discrete issues. As a general rule, contempt proceedings therefore are bifurcated into two phases. In particular, the first is a “liability phase”, wherein liability for an alleged contempt (including any defence offered by the alleged contemnor) is considered. If liability for contempt is established, the matter then moves on to a second and deliberately later “penalty phase”, during which the court determines a just order to address the relevant contempt if it has not been purged by the contemnor.[^11]

Penalty Phase and Sentencing Principles

In relation to the required “penalty” phase of civil contempt proceedings (i.e., to determine any penalty that may be appropriate in relation to established civil contempt), general principles and legislated provisions include the following:

a. Pursuant to Rule 60.11(5), a judge disposing of such a motion may “make such order as is just”. Without limiting the generality of that jurisdiction, where a finding of contempt is made, the judge may order the person in contempt to be imprisoned, pay a fine, do or refrain from doing an act, pay just costs, and comply with any other order the judge considers necessary.

b. Pursuant to Rule 60.11(8), a judge also has authority to discharge, set aside, vary or give directions in respect of any order made under subrules 60.11(5) and 60.11(6), and grant such other relief and make such other order as is just.

c. Breaching a court order has serious implications, which have been forcefully described many times. The rule of law requires that courts maintain their dignity and respect. To maintain respect, courts must enforce their process. If court orders can be ignored, our system of justice, the foundation of our society, breaks down.[^12]

d. The ordering of remedies for civil contempt is addressed by various provisions of Rule 60.11 of the Rules of Civil Procedure, including the following:

60.11 (5) In disposing of a motion [for a contempt order], the judge may make such order as is just, and where a finding of contempt is made, the judge 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.

(7) An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60L).

(9) Where a person fails to comply with an order requiring the doing of an act, other than the payment of money, a judge on motion may instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.

(10) The party enforcing the order and any person appointed by the judge are entitled to the costs of the motion under subrule (9) and the expenses incurred in doing the act ordered to be done, fixed by the judge or assessed by an assessment officer in accordance with Rule 58.

e. In theory, the court’s ability to “make such order as is just” to address civil contempt, pursuant to Rule 60.11(5), gives rise to a wide range of available penalties. In practice, however, the list is a relatively short one consisting of incarceration, a suspended sentence (perhaps conditional upon some act or event occurring), a fine, or no penalty—with the latter outcome usually reserved for situations where the relevant contempt has been purged.[^13]

f. While Rule 60.11(5)(d) gives the court authority to order that a contemnor “do or refrain from doing an act”, Rule 60.11(5)(f) gives the authority to order a contemnor to “comply with any other order that the judge considers necessary”, and Rule 60.11(9) contemplates and authorizes a court to order the performance of an act by others at the expense of a contemnor who failed to do the act as ordered, and such options remain possible remedies for contempt under the court’s broad powers to address a finding of contempt,[^14] it is critical to bear in mind at all times that the relevant conduct being sanctioned and to which the court’s remedy must respond is the wilful disregard of the court’s authority, and that civil contempt proceedings “do not have and must not appear to have the function of a civil action in tort or for breach of contract”. Any concern of opposing litigants about injury to them caused by the contemnor’s activities ought to be recoverable in damages or profits claimed, rather than imposition of a penalty for contempt. The concern of the court, in a case of civil contempt, is and must be the failure to respect the court’s process.[^15]

g. Applicable general principles governing exercise of the court’s discretion, reflected in Rule 60.11(5), Rule 60.11(7) and Rule 60.11(9), include the following:

i. In cases of civil contempt (as opposed to criminal contempt), the court’s emphasis is less about punishment and more about coercion; i.e., attempting to obtain compliance with the court’s order, and corresponding societal respect for the courts.[^16] A remedy for civil contempt therefore primarily should be designed not only to enforce the rights of a private party, but also to enforce the efficacy of the process of the court itself.[^17]

ii. Punishment nevertheless has been recognized as a secondary purpose underlying sentencing for civil contempt. In other words, the effectively dual purpose of contempt orders is to compel obedience and punish disobedience. In particular, punishment serves to denounce conduct that requires denouncing and thereby deter the contemnor and others more generally who might contemplate breaches of court orders at will.[^18]

iii. Because civil contempt “bears the imprint of the criminal law”,[^19] aspects of its application are analogous or similar to those applied in the criminal law context. In particular, civil contempt must not only be made out to the criminal standard of proof beyond a reasonable doubt, but a person found in contempt may be committed to jail or face any other sanction available for a criminal offence.[^20]

iv. Similarly, general substantive principles governing determination of sentence in the criminal law context, including those found in ss. 718, 718.1, 718.2 and 724(3) of the Criminal Code, are applied by way of analogy when determining the appropriate penalty (if any) to be imposed for civil contempt. For example, factors considered by the court include the following:[^21]

  1. the proportionality of the sentence to the wrongdoing (i.e., such that the sentence is proportionate or “fitted to” the gravity of the offence and the degree of responsibility of the offender), bearing in mind that the relevant conduct being sanctioned is the wilful disregard of the court’s authority, and that the court accordingly must assess the seriousness of the relevant disrespect of the court rather than the severity of any resulting harm to other litigants;[^22]

  2. the presence of aggravating factors;

  3. the presence of mitigating factors;

  4. denunciation and deterrence (i.e., such that the sentence denounces unlawful conduct, promotes a sense of responsibility in the contemnor, and deters the contemnor and others from defying court orders);

  5. the similarity of sentences imposed in like circumstances; and

  6. the reasonableness of incarceration or a fine.

v. However, appellate authority also has emphasized that deterrence, both specific and general, is the most important objective of a contempt penalty. A penalty imposed in response to conduct that defies the authority of the court must be sufficient, having regard to the particular context, to deter those involved and other similarly situated individuals from like conduct.[^23]

vi. Courts dealing with civil contempt also adopt, by way of analogy, certain procedural and evidentiary principles applied in relation to sentencing in the criminal law context, such as those referenced in s. 724(3) of the Criminal Code, supra. In particular:

  1. a party alleging the existence of any aggravating fact said to warrant imposition of a more serious penalty for civil contempt must establish the existence of that fact by proof beyond a reasonable doubt; whereas

  2. as noted above, a party found in contempt of court has the onus of proving any mitigating fact (such as purging of the relevant contempt), on a balance of probabilities.[^24]

vii. As also noted above, one possible penalty for civil contempt is incarceration—either immediate or by way of a suspended sentence conditional upon some act or event occurring. However:

  1. Reflecting the general tendency of Canadian courts to be lenient in relation to such matters, custodial sentences for civil contempt are rare and extraordinary, and lengthy custodial sentences for civil contempt are rarer still.[^25]

  2. Ordinarily, a finding of contempt, together with a fine or some other order in relation to the civil litigation, without incarceration, is sufficient to gain compliance and restore the authority of the court. Incarceration ordinarily is a sanction of last resort.[^26]

  3. In particular, incarceration generally should be imposed only in cases of serious deliberate disobedience (e.g., repeated breaches of a restraining order, a wilful flagrant breach of an order that shows callous disregard for the court’s authority or active public defiance), violence, or wilful interference with the course of justice.[^27]

  4. Because incarceration for civil contempt is ordinarily a penalty of last resort, the court must always consider whether any other penalty short of incarceration would be a sufficient sanction for the gravity of the contempt, taking into consideration the sentencing principles applicable to civil contempt.[^28] In other words, incarceration generally is reasonable only where no other less restrictive sanction is appropriate.[^29]

  5. Where a contemnor has purged his or her contempt, there usually is no longer any need or justification for incarceration.[^30]

viii. As noted above, another possible penalty for civil contempt of court is imposition of a fine. In that regard:

  1. As a further reflection of the general tendency of Canadian courts to be lenient in relation to such matters, fines imposed on individuals for civil contempt have remained low (e.g., in the range of $1,500 and $5,000), even in cases where contempt has involved the loss or misuse of substantial amounts of money.[^31]

  2. Significant fines for civil contempt (e.g., in the range of $50,000), have been imposed only in particularly egregious cases and/or where the contemptuous conduct was motivated by personal gain.[^32]

  3. The few instances in which fines have been imposed at $100,000 or higher have been against unions with large memberships (where the impact of such a fine effectively is absorbed by many individuals), or against large corporations in particularly egregious circumstances. Even in the latter type of cases, fines imposed on individual corporate directors involved in the relevant contempt have notably tended to be no more than $10,000.[^33]

  4. Although some recent decisions have indicated a willingness of courts to consider imposition of more substantial penalties for contempt, such cases normally involve situations where there has been a lengthy course of disobedience and the contemnors have not purged their contempt.[^34]

  5. If the court is inclined to impose a fine as a fit sentence for contempt, one important factor in that fine’s quantification is consideration of the particular contemnor’s ability to pay, lest the amount be trivial or unduly punitive vis-à-vis that particular contemnor. In any event, fines should never be imposed above an amount necessary to reflect the public interest in the matter.[^35]

  6. Fines for civil contempt ordinarily are remitted to the province and, in Ontario, should be paid to the Provincial Treasurer. Although the court may in certain circumstances have discretion to order that such fines be paid to others, public policy generally militates against awarding the payment of contempt fines to opposing litigants. As noted above, contempt is an offence against the authority of the court and the administration of justice, and it must not appear to function as a civil action in tort or contract.[^36]

ix. In the end, the overriding principle governing sentencing, in relation to civil contempt, is that the sentence imposed must be reasonable, having regard to the particular circumstances of the case.[^37]

Application to the Present Case

In this case, I think (without formally deciding the issue yet for the further reasons indicated herein), that there is good reason to believe that the Applicant is capable of establishing the three essential elements of contempt beyond a reasonable doubt. Without limiting the generality of the foregoing:

a. The provisions of paragraph 4 of the Order made by Justice Moore on August 24, 2024, clearly and unequivocally state that the Respondent was to vacate the Reytan Boulevard property, with his personal property, within 10 days of the Order being made.

b. As noted above, the Respondent has actual notice of that Order made by Justice Moore.

c. As also noted above, the Respondent has failed to vacate the Reytan Boulevard property, and that failure is not by accident. The Respondent has indicated that he simply does not intend to vacate the property; i.e., that he is intentionally failing to do the act that the Order made by Justice Moore required him to complete.

Discretion and Adjournment

I nevertheless also thought it appropriate, in the exercise of my discretion, to decline making a formal finding of contempt this afternoon, and to adjourn the Applicant’s motion for two weeks on the terms set forth above, for reasons that included the following:

a. If I made such a contempt “liability” finding this afternoon, the appellate authority noted above indicates that any determination of “penalty” in that regard be adjourned to a later date; i.e., one that would clearly separate the notionally separate issues to be addressed and decided in that regard, provide the Respondent with an intervening opportunity to purge his contempt, and provide the court with an opportunity to receive additional relevant and required information; e.g., information concerning the resources available to the Respondent (in order to assist in determining the appropriate quantum of a fine (if any), to be imposed on the Respondent as one means of addressing any established contempt). However:

i. Consistent with the required application by analogy of principles governing imposition of sentence in the criminal context, a judge who makes a finding of “guilt” (in this case a finding of contempt), should also be the judge who imposes “sentence” (in this case a “penalty” or “penalties” for established civil contempt), on the defendant/contemnor. In effect, I would become formally seized of the matter.

ii. Knowing from other proceedings before the court that my schedule and already set dockets over the coming months are full, with very little ability of the trial co-ordinator to schedule additional matters before me during that period, my becoming formally seized of the matter (i.e., upon making a formal finding that the Respondent is in contempt), might delay any ensuing hearing of the required “penalty” phase of the contempt proceedings for many months. That in turn might have the unfortunate practical effect of denying the Applicant the relief he desperately seeks in order to ensure that contemplated sale of the property, pursuant to the negotiated Agreement of Purchase and Sale in that regard, is not frustrated.

b. Bearing in mind that the primary purpose of a contempt order is intended to be coercive rather than punitive, in my view the contempt sanctions contemplated by the Applicant’s motion (i.e., arrest, imprisonment and fining of the Respondent), extend far beyond the measures contemplated to ensure compliance with the Order made by Justice Moore. In particular, what the Applicant really wants, and what the relevant provisions of the Order made by Justice Moore required, was the Respondent’s removal from the Reytan Boulevard property. Once that goal has been accomplished, and the demands of Justice Moore’s order in that regard have been satisfied, any further arrest, imprisonment and/or fining of the Respondent will cease to be coercive (in terms of promoting respect for Justice Moore’s Order and compliance in that regard), and inherently become merely punitive. Moreover, as noted above:

i. The court generally should approach use of its contempt power with caution and great restraint, avoid use of that contempt power to obtain compliance with court orders where that can be avoided, and resort to use of that contempt power only as a “last rather than first resort”.

ii. The sanctions for civil contempt contemplated and requested by the Applicant (i.e., incarceration and a substantial fine in the amount of $25,000), generally are not ones readily imposed by our courts. Again, custodial sentences for civil contempt are “rare and extraordinary”, as are fines beyond the range of $1,500 to $5,000.

iii. Courts generally are to consider whether any measures, short of such sanctions, would be sufficient to address the situation.

c. In my view, the Order made by Justice Moore on August 24, 2024, already has addressed and prescribed what was and is to happen in the event of any failure by the Respondent to vacate the Reytan Boulevard property with his personal property in accordance with the provisions of paragraph 4 of the Order. In that regard:

i. In my view, the Order clearly contemplated that the Respondent was at that point to be forcibly removed from the property by the “police and/or Sheriff”, who were “authorized to forcibly remove the Respondent from the property”.

ii. That the Respondent still remains in the property seems entirely attributable to the indicated refusals of the police service in Pickering and the Enforcement Office of the Court in Oshawa to enforce the Order made by Justice Moore on August 24, 2024; i.e., by lending their assistance, as requested by the Applicant, to enforcement of Justice Moore’s Order and the Respondent’s removal from the Reytan Boulevard property.

iii. In fairness to those law enforcement officers, the wording of the Order requested by the Applicant and made by Justice Moore in that regard literally speaks in terms of “authorization” rather than “direction”; a consideration that might, on a fair reading, be interpreted as leaving the police and/or Enforcement Office (now entrusted with “Sheriff” responsibilities) with a discretion as to whether or not they would intervene to forcibly remove the Respondent from the property if he refused to leave it voluntarily. However, that interpretation effectively has led to a situation where the court now is being asked to make an even more Draconian order, which in turn would require even greater active involvement and intervention by the authorities; i.e., arrest, detention and prolonged imprisonment of the Respondent.

iv. The simple truth of the matter is that the court has no independent enforcement mechanisms of its own. Respect for court orders, ensuring that the rights and obligations declared by court orders will be followed in practice without any conflict and breach of the peace attendant on parties effectively feeling they have no choice but to take matters into their own hands, and the corresponding rule of law fundamental to our civilization, depends on “law enforcement” officers doing just that; i.e., enforcing the law.

v. In this case, I think the most sensible and appropriate approach to the current situation (i.e., one which will ensure that the outcome contemplated by the Order made by Justice Moore is secured, but without further unnecessary and essentially punitive sanctions having to be imposed on the Respondent), is the making of a further order clarifying that the relevant police and/or Enforcement Office authorities are not only authorized to forcibly remove the Respondent from the Reytan Boulevard property, but are directed and required to do so forthwith.

vi. As those police and Enforcement Office authorities nevertheless clearly would be affected by the making of such a further order, I nevertheless also think it would be inappropriate to grant that relief without those non-parties being put on notice that such an order is being contemplated, and without those non-parties being given an opportunity to be heard in that regard. For the reason, I directed the adjournment of the motion for two weeks, on the terms set forth in my handwritten endorsement and noted above.

Conclusion

Again, I nevertheless have made no formal finding or decision at this point that the Respondent is in contempt, and/or as to what further measures (if any) should be ordered by the court to address the situation.

Without limiting the generality of the foregoing, nothing herein is intended to bind the discretion of the presiding judge when the matter is before the court again on January 24, 2025.

Justice I.F. Leach
Date: January 10, 2025

Footnotes

[^1]: See College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, para 74. See also Carey v. Laiken, 2015 SCC 17, para 18. [^2]: See U.N.A. v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, para 35; and Carey v. Laiken, 2015 SCC 17, para 30. [^3]: See Korea Data Systems Co. v. Chiang, 2009 ONCA 3, para 11; and Carey v. Laiken, 2015 SCC 17, para 31. [^4]: See Carey v. Laiken, 2015 SCC 17, para 33. [^5]: See Chirico v. Szalas, [2016] O.J. No. 3907 (C.A.), paras 54, 58; and Greenberg v. Nowack, 2016 ONCA 949, para 25. [^6]: See Carey v. Laiken, 2015 SCC 17, para 34; and Greenberg v. Nowack, 2016 ONCA 949, para 25. [^7]: See Carey v. Laiken, 2015 SCC 17, paras 35, 38-39; and Greenberg v. Nowack, 2016 ONCA 949, paras 25, 27. [^8]: See Carey v. Laiken, 2015 SCC 17, para 44. [^9]: See R. v. Wilson, [1983] 2 S.C.R. 594; Paul Magder Furs Ltd. v. Ontario (Attorney General); Litterest v. Horrey, 1996 ABCA 13, para 14; and Carey v. Laiken, 2015 SCC 17, paras 58-59. [^10]: See Carey v. Laiken, 2015 SCC 17, paras 36-37; and Greenberg v. Nowack, 2016 ONCA 949, para 26. [^11]: See College of Optometrists (Ontario) v. SHS Optical Ltd., 2008 ONCA 685, paras 72-75; and Carey v. Laiken, 2015 SCC 17, para 18. [^12]: See Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, para 143. [^13]: See Niagara Regional Police Services Board v. Curran, para 20; Mercedes-Benz Financial v. Kovacevic, para 6; and Ceridian Canada Ltd. v. Azeezodeen, [2014] O.J. No. 3353 (S.C.J.), para 7. [^14]: See, for example, Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, paras 2-4, 89. [^15]: See, for example, Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, paras 129-130; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 90. [^16]: See, for example, Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, para 37; Korea Data Systems Co. v. Chiang, 2009 ONCA 3, para 11; Mercedes-Benz Financial v. Kovacevic, para 7; Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, para 79; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 77. [^17]: See Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, para 79. [^18]: See, for example, College of Optometrists (Ontario) v. SHS Optical Ltd., 2008 ONCA 685, para 106; Chiang (Trustee of) v. Chiang, 2009 ONCA 3, para 177; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 81. [^19]: See Korea Data Systems Co. v. Chiang, 2009 ONCA 3, para 11. [^20]: See, for example, Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, paras 34-35; and Korea Data Systems Co. v. Chiang, 2009 ONCA 3, para 11. [^21]: The summary of relevant factors that follows is drawn from authorities such as: Sussex Group Ltd. v. 3933938 Canada Inc., para 6; Mercedes-Benz Financial v. Kovacevic, para 11; Astley v. Verdun, 2013 ONSC 6734, para 16; Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, para 90; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 90. [^22]: See, for example, Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, paras 129-130; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 90. In assessing such proportionality, courts have had regard to matters such as: whether the contemnor’s defiance of the court order was deliberate, reckless and/or arrogant; whether the contemnor persisted in attempting to have his or her own way after receiving warnings from an opposing party and/or the court; whether the contemnor continued to add to aspects of their contempt over time; the length of time over which the contemnor continued or has continued to disobey the relevant court order; and whether the contempt was motivated by personal gain or vengeance. See, for example, Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, paras 96, 100-101. [^23]: See, for example, Cornwall Public Inquiry Commissioner v. Dunlop, para 48; Astley v. Verdun, 2013 ONSC 6734, para 19; Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, paras 105-107; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 91. [^24]: See, for example, Korea Data Systems Co. v. Chiang, 2009 ONCA 3, paras 50-52. [^25]: See, for example, Sussex Group Ltd. v. 3933938 Canada Inc., para 4; Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, para 108; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 82. [^26]: See, for example, CIT Financial Ltd. v. Western Waste Recyclers Inc., [2008] O.J. No. 2386 (S.C.J.), paras 6, 10; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 82. [^27]: See, for example, CIT Financial Ltd. v. Western Waste Recyclers Inc., [2008] O.J. No. 2386 (S.C.J.), paras 7, 10; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), paras 84-87. [^28]: See Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), para 89. [^29]: See West Lincoln (Township) v. Chan, [2001] O.J. No. 2133 (S.C.J.), para 39. [^30]: See, for example, British Methodist Episcopal Church v. Davis, [2010] O.J. No. 684 (C.A.), para 3. [^31]: See Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, para 108. [^32]: Ibid., para 110. [^33]: Ibid., para 109. [^34]: Ibid., para 111. [^35]: See, for example, Niagara Regional Police Services Board v. Curran, para 36; and Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, para 133. [^36]: See, for example, Sussex Group Ltd. v. 3933938 Canada Inc., para 13; SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, paras 13-17; and Langford (City) v. dos Reis, [2016] B.C.J. No. 2418 (C.A.), paras 23-26. [^37]: See, for example, West Lincoln (Township) v. Chan, [2001] O.J. No. 2133 (S.C.J.), para 40; and Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, para 112.