Court File and Parties

Court File No.: CV-23-00705638-0000 Date: 2025-08-11 Ontario Superior Court of Justice

Between:

WESTDALE CONSTRUCTION CO. LIMITED – Plaintiff

– and –

GLENDA AVAYIANOS aka GLENDA LEE aka GLENDA HEW aka GLENDA MALIGLIG, JOHN DOES 1-6, JANE DOES 1-6 and ABC COMPANY 1-6 – Defendants

Counsel

James Schacter and Neil Searles for the Plaintiff/Moving Party

Craig Aitken for Glenda Avayianos aka Glenda Lee aka Glenda Hew aka Glenda Maliglig, Defendant/Responding Party

Hearing and Decision

Heard at Toronto: July 10, 2025

Judge: J.K. Penman J.

Released: August 11, 2025 Revised: August 12, 2025

Reasons for Judgment on Penalty for Contempt

Overview

[1] Westdale Construction has brought an action against the defendant, Glenda Avayianos, a former employee, in respect of alleged theft and fraud totaling approximately $15 million. Westdale filed their Statement of Claim on September 7, 2023, and on September 12, 2023, Westdale sought and was granted a Mareva order.

[2] Mrs. Avayianos was served with the Statement of Claim and Mareva order on September 13, 2023. Mrs. Avayianos sought to vary the order to pay for "ordinary living expenses and legal advice and representation" and filed an affidavit in support of her motion. The order was granted on October 3, 2023, and permitted a maximum of $11,500.00 per month, from her Royal Bank of Canada ("RBC") account, to be used for daily living expenses.

[3] Concurrent with the Mareva order being issued, Certificates of Pending Litigation ("CPL") were placed on two properties owned by Mrs. Avayianos: 11 Ruden Crescent, Toronto, and 25 Fenelon Drive, Toronto.

[4] Mrs. Avayianos had two Scotia lines of credit worth approximately $950,000.00 secured against the two properties, ("the Lines of Credit"). On October 12, 2023, Mrs. Avayianos accessed her Lines of Credit for $10,000.00.

[5] In December of 2024, Westdale brought a motion to have Mrs. Avayianos found in contempt on the basis that she was in breach of the Mareva order by failing to disclose assets, dissipation of assets, misrepresentation of expenses, opening of new bank accounts without disclosing same, failure to disclose cryptocurrency and stock trading accounts, failure to disclose and the continued use of credit cards, failure to disclose overseas money transfers, including the failure to provide documentation related to these alleged overseas wire transfers, and withdrawals in excess of $950,000.00 from lines of credit secured against property.

[6] In an affidavit dated December 20, 2024, Mrs. Avayianos disclosed that between May and September of 2024, she had continued to access her Lines of Credit for all the available amounts, totaling approximately $950,000.00.

[7] Approximately $544,000.00 was taken from the Lines of Credit and sent to Braxton Wealth Management later known as Capital Clique. Mrs. Avayianos learned in January of 2025 that she had been the victim of a fraudulent scheme and that she had been defrauded of this money.

[8] In 2024, Mrs. Avayianos used the Lines of Credit to pay her CIBC Visa which totaled approximately $220,000.00. The remaining amount of $150,000.00 is unaccounted for, subject to Mrs. Avayianos evidence that it was used for expenses. Counsel acknowledges that the money is "gone".

[9] On April 14, 2025, I found Mrs. Avayianos in breach of the September 12, 2023, Mareva order by having drawn on the two Lines of Credit. The issue before me is the appropriate penalty for this contempt.

[10] Westdale seeks a penalty of imprisonment of 120-150 days on the basis that Mrs. Avayianos' contempt was wilful and that Westdale has suffered and continues to suffer prejudice because of the contempt. In addition, they argue that any fine or monetary punishment is of little to no consequence because the amounts Mrs. Avayianos is alleged to have stolen far exceed her known assets.

[11] Mrs. Avayianos submits that an appropriate sanction is the finding of contempt plus a fine of $5,000.00. Mrs. Avayianos argues that the context surrounding Mrs. Avayianos' conduct militates against incarceration, and that the contempt is "over" removing the need to enforce compliance.

[12] For the following reasons I am satisfied that the appropriate penalty in addition to the finding of contempt is a fine in the amount of $7,500.00.

What is the Appropriate Penalty?

[13] The overarching purpose of a contempt order is to enforce compliance with court orders and ensure respect for the rule of law: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574 at para. 79.

[14] A secondary purpose is punishment. As Watt J.A., stated in College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685 at para. 106: "The underlying purpose of contempt orders is to compel obedience and punish disobedience."

[15] The Court of Appeal in Thrive Capital Management Ltd. v. Noble 1324, 2021 ONCA 722 at para. 19, reaffirmed the following factors relevant to the determination of the appropriate sanction for civil contempt:

i) The proportionality of the sentence to the wrongdoing;

ii) The presence of mitigating factors;

iii) The presence of aggravating factors;

iv) Deterrence and denunciation;

v) The similarity of sentences in like circumstances; and

vi) The reasonableness of a fine or incarceration.

[16] I will deal with each of these in turn.

Proportionality

[17] Proportionality requires that the punishment be proportionate to the gravity of the offence and the degree of responsibility of the offender: Boily at para. 91; Chiang (Re), 2009 ONCA 3 at para. 86.

[18] To determine the degree of responsibility of Mrs. Avayianos in this case, it is important to look at the context of her conduct.

[19] Prior to the Mareva order and after her termination from Westdale, Mrs. Avayianos began trading in cryptocurrency to generate extra income. In August of 2023, she began investing in Braxton Wealth Management, later known as Capital Clique, an overseas trading account for cryptocurrencies and stocks.

[20] After the Mareva order was issued Mrs. Avayianos sought and was granted a variance allowing her access to $11,500.00 per month from her RBC account for the purposes of daily living expenses. That order was granted on October 3, 2023. On October 12, 2023, Mrs. Avayianos accessed her Line of Credit for $10,000.00.

[21] As early as November of 2023, Mrs. Avayianos was requesting of her counsel at the time, that steps needed to be taken to sell the 25 Fenelon property stating that, "My account is getting dangerously low and I'm very concerned about my monthly expenses going forward." By March of 2024, the funds in the RBC account were exhausted and the Fenelon property had not been sold.

[22] Between late 2023 and December of 2024, Mrs. Avayianos drew on the Lines of Credit, and borrowed money from family members to continue trading, paying fees, and investing in the various cryptocurrency platforms and stocks through Braxton/Capital Clique.

[23] By the end of 2024, Mrs. Avayianos believed she had been earning dividends from her crypto trading and that she had a total of USD $1,323,600.00 in her Capital Clique account. Mrs. Avayianos' intention was to use that money to pay off the Lines of Credit and deposit money into her RBC account.

[24] In January of 2025, Capital Clique stopped communicating with Mrs. Avayianos and she came to realize that she had been "scammed". Mrs. Avayianos reported the matter to the Toronto Police Services Financial Crime Unit.

[25] Westdale takes issue with the assertion that Mrs. Avayianos was ever involved in sending money to Capital Clique arguing that there is no evidence of any transfers. I have been provided with screenshots of what I understand to be Mrs. Avayianos' various cryptocurrency 'wallets', and statements from various cryptocurrency platforms. These are not traditional banking statements, nor do they clearly show money being transferred from Mrs. Avayianos to the different platforms.

[26] Mrs. Avayianos provided significant detail in her affidavit evidence and cross-examinations that outlined how she was tricked into believing that funds she was using were generating "guaranteed" investment income returns that could be used to meet her ordinary living expenses. To access these already existing investment income gains, she was required to extend new funds to cover, for example, the "protective capital agreement' insurance with JPMorgan that guaranteed the returns. I accept Mrs. Avayianos' evidence that she did send money, including money from the Lines of Credit, and that she appears to have been the victim of fraud.

[27] Although not to her credit, Mrs. Avayianos admits that she was using the money not just for "ordinary" living expenses, but to continue what can fairly be described as a lavish lifestyle.

[28] Another important context to Mrs. Avayianos' conduct is that she has an 87-year-old mother with Alzheimer's who she takes care of and lives with her. Mrs. Avayianos also has a 13-year-old son who she had always been able to send to private school and hoped to find a way to continue to do so.

[29] These are all important factors in the proportionality analysis.

Mitigating and Aggravating Factors

[30] There are several mitigating factors in this case. First, there is no evidence before the court that Mrs. Avayianos has a criminal record, nor that she has defied any other court order.

[31] In addition, Mrs. Avayianos offered an apology in court which I accept as sincere. She did not attempt to excuse her behaviour and it is evident in both her apology and her affidavits, that she feels genuine shame for her conduct.

[32] Westdale argues that Mrs. Avayianos is not remorseful but is instead blaming her situation on her previous lawyer, Westdale itself, and this alleged fraudulent scam. I am not persuaded by this submission.

[33] I repeat that the context of what took place is an important consideration in the sentencing phase because of the need to situate the moral blameworthiness of Mrs. Avayianos' conduct. Mrs. Avayianos was clear in her apology and in her affidavit evidence that she is not making excuses for her behaviour. I appreciate that Mrs. Avayianos was in part using the money to continue living a "big life" that involved travel and social expenditures. But Mrs. Avayianos does not deny that she was used to living a "big life", and that she hoped to continue to live some semblance of the life that she was used to. She acknowledges this was wrong and I am persuaded this is sincere. I also accept that she felt trapped by the Mareva order and the imminent exhaustion of her RBC account, her need to support her mother, and her desire to continue to provide for her son in a way he was used to.

[34] This does not change that the breach was serious, wilful, and flagrant. It is aggravating that Mrs. Avayianos repeatedly accessed the Lines of Credit knowing that she was in breach of the order and continued to do so over a period of months. The Lines of Credit were dissipated in the amount of approximately $950,000.00 which is serious in and of itself.

[35] A contemnor purging his or her contempt can constitute a significant mitigating factor. If the impossibility of purging the contempt is a situation of the contemnor's own making, it is not a mitigating factor: Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 at para. 86. It is acknowledged that the money is gone and there is no ability to purge the contempt. Mrs. Avayianos does not benefit from this mitigating factor.

Deterrence and Denunciation

[36] General and specific deterrence are the most important sentencing principles when determining an appropriate sanction for contempt. The contemnor must be deterred from any further acts of contempt. As Quinn J., said in Niagara (Regional Municipality) Police Services Board v. Curran, [2002] O.J. No 179 (S.C.J.) at para. 35:

The primary purpose of sentencing in contempt proceedings is deterrence: both general and specific. The punishment should serve as a disincentive to those who might be inclined to breach court orders. Our legal system is wounded when court orders are ignored. The sentence must be one that will repair the wound and denounce the conduct.

[37] This case is somewhat unusual because the contemptuous conduct was "over" by the time of the contempt hearing. This is not one of those cases in which a finding of contempt and accompanying penalty are for the purpose of gaining compliance.

[38] Any sentence imposed, however, must serve to not only denounce Mrs. Avayianos' conduct but also send a message that ignoring or flouting court orders will not be tolerated.

Similar Sentences in Like Circumstances

[39] Westdale argues that jail is the only reasonable option because Mrs. Avayianos does not have the ability to purge her contempt, nor does she have the funds to pay an appropriate fine. They also argue that her conduct has undermined the objective of the Mareva order by frustrating Westdale's right to recover funds they allege were defrauded from it by Mrs. Avayianos.

[40] Westdale relies on Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2022 ONSC 4081 where the developers were found in contempt for multiple failures to disclose their assets and to account for money paid in respect of real estate investments. The motion judge at first instance described the conduct as follows:

… blatantly ignored even the simplest of court orders, have forced the plaintiffs to court on numerous occasions to deal with their outright refusals to comply and have wasted scarce public resources in doing so. They have treated court orders as meaningless scraps of paper that could be used to tie the plaintiffs up in knots rather than as mandatory directives that form an essential part of basic social order.

See Thrive Capital Management Ltd. v. Michael Hyman et al., 2020 ONSC 4921 at para. 4.

[41] The sentencing judge at para. 65 found that:

Incarceration is the best remedy to achieve the sentencing objectives for civil contempt, of coercion and deterrence. The Developer Defendants do not appear to be incentivized to purge their contempt by the threat of incarceration, which has been hanging over them for the past two years. However, actually sending them to jail, rather than just threatening it, may cause them to take this matter more seriously and comply.

[42] In my view this is not the situation here. Westdale was not required to repeatedly return to court to gain Mrs. Avayianos' compliance. The contempt in this case is in respect of one order. It is also an important consideration that the contempt is "over", and Mrs. Avayianos is not currently in breach of the Mareva order. A jail sentence will not serve to gain Mrs. Avayianos' compliance.

[43] In addition, I accept that Mrs. Avayianos planned to pay down the Lines of Credit with the money she thought she had made, but was unable to do so given the fraudulent scheme she found herself in.

[44] Although Mrs. Avayianos knew that she was in breach of the Mareva order, I am unable to find that it was intended to be a "callous" flouting of the order as that term has been defined in other cases. I accept that Mrs. Avayianos found herself between a "rock and a hard place" and exercised extremely poor judgment by drawing on the Lines of Credit. I do not see her conduct, however, as one of "active public defiance".

[45] Westdale also relies on Sussex Group v. Sylvester, 2002 CarswellOnt 3893 which involved a refusal to produce documents over many months. The Court imposed a sentence of six months imprisonment on a first offender who failed to comply with multiple court orders requiring him to produce corporate records. The Court noted that the contempt was one which continued over a period of many months, the contemnor showed no remorse, and the contemptuous conduct threatened the assets of the company and the investments of investors.

[46] In Estate of Paul Penna, 2010 ONSC 6993 the contemnor was found in contempt of four court orders, and for refusing to pass accounts or probate a will, and deliberately filing a false affidavit to hide the fact that he was breaching the Mareva order. In total, almost the entirety of a $24,000,000.00 estate was missing because of the contemnor's actions.

[47] This was described by the sentencing judge as a "massive fraud", who went on to state that the length of the sentence, 14 months incarceration, was not a result of the valuation, but rather, "the act itself is the defiance of the justice system. Breaches of court orders cannot be said to be "lesser" or "greater", depending on the amount of money involved in the breach": see para. 32.

[48] In Trade Capital Finance Corp. v. Cook, 2017 ONCA 281, the Court of Appeal upheld the motion judge's findings that the appellants had intentionally and continually disobeyed multiple orders of the court including after the finding of contempt. The 90-day intermittent sentence was "expressly intended to facilitate compliance with disclosure obligations": see para. 50.

[49] In my view these cases are all distinguishable on their facts as involving repeated breaches of court orders, continuing non-compliance, no remorse and/or findings of callous disregard for the justice system.

[50] Counsel for Mrs. Avayianos relies on Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530 which involved a lawyer releasing $400,000.00 in trust funds to their client despite their knowledge of a Mareva order. The client then "disappeared without a trace, taking all of his assets with him." The Court of Appeal found that the contempt was an error in judgment rather than a deliberate disrespect of the court or its process and limited the penalty to the finding of contempt and costs on a partial indemnity basis: see paras. 53, 68 and 69.

[51] In my view SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97 is the most relevant and factually on point with this case. Sankar involved a husband and wife who had allegedly defrauded their employer, who had then obtained a Mareva order and Anton Piller order. A day after the Mareva order, the husband and wife transferred $400,000.00 from their account into an account controlled by a family member, who proceeded to dissipate most of those funds.

[52] In a separate incident a year later, the husband and wife entered into a new agreement to encumber lands in the amount of $110,000.00 and drew on accounts in excess of the ordered monthly living expenses amount. The motion judge found no mitigating circumstances and ordered a fine in the amount of $150,000.00. The Court of Appeal reduced the fine to $10,000.00 because the motion judge had not identified any public interest that would be served by imposing a large fine: see para. 18.

[53] The cases which Westdale relies on primarily involved fact patterns of continuous breaches up to and including at the time of the penalty hearing. The purpose of the contempt in those cases was to coerce compliance with a court order. That is not the situation in this case.

[54] Mrs. Avayianos' conduct was serious, wilful and resulted in the loss of a significant amount of money. But the conduct did not rise to the level of callous disregard for the justice system that would require a sentence of imprisonment for Mrs. Avayianos.

Reasonableness of a Fine or Incarceration

[55] A sentence must be reasonable whether it be in the criminal law or civil law context.

[56] In civil cases, incarceration is rare. Typically, a finding of contempt, together with a fine or some other order in relation to the litigation is sufficient to gain compliance and restore the authority of the court. As in the criminal law context, the court is required to consider whether any penalty short of incarceration would be a sufficient sanction in the circumstances: Cavalon at paras. 82 and 89.

[57] The Court of Appeal in Chiang, at para. 90 stated:

Custodial sentences for civil contempt are rare. Lengthy custodial sentences are even rarer. Canadian courts have tended to punish contempt of court leniently. Ordinarily the mere conviction for contempt together with a modest fine suffices to obtain compliance and to protect the court's authority. Ordinarily incarceration is a sanction of last resort.

[58] More substantial penalties have been imposed more recently in this province, typically in cases in which there has been a lengthy course of disobedience and where the contemnors have not purged their contempt. This includes jail sentences involving a wilful breach of a single court order that shows a callous disregard for the court's authority or causes significant prejudice to the other party: see Mercedez-Benz Financial v. Kovacevic, 2009 CarswellOnt 1142 at paras. 10 and 35.

[59] The cases demonstrate that each must be decided on its facts and necessitates consideration of the context in which the contempt occurred.

[60] As I have already stated, although Mrs. Avayianos' conduct was wilful, I would not describe it as a deliberate act of public defiance or callous disregard for court authority. Again, the context is that Mrs. Avayianos was running out of money in the RBC account and believing she had no choice began to draw on the Lines of Credit with a view, in part, to investing the funds to pay down the Lines of Credit. In my view this is an important factor that militates against the reasonableness of incarceration in this case: Cavalon at para. 89; Langston v. Landen, 2011 ONCA 242 at para. 1.

[61] While I am concerned with Mrs. Avayianos' ability to pay the fine, I am not prepared to impose a sentence of jail given the context of her contempt and her personal circumstances. In my view it is not appropriate to have Mrs. Avayianos incarcerated when this is not a case of enforcing compliance. Mrs. Avayianos has an ailing mother that she cares for and a young son at home. She does not have a criminal record, nor any indication of any breaches of other court orders.

[62] While I am satisfied that the appropriate sanction in addition to the finding of contempt is a fine, the question is quantum given Mrs. Avayianos' circumstances and her ability to pay. A contemnor's ability to pay must be taken into consideration to ensure that the amount not be either trivial or unduly punitive: Boily at para. 133. Mrs. Avayianos is seeking a fine in the amount of $5,000.00.

[63] A fine must have teeth to properly reflect the seriousness of the contempt. It would have no meaningful deterrent effect otherwise. Generally, fines for civil contempt in Canada range from $1,500 to $5,000. Significant fines are rare but have been imposed in cases that have involved unions with large membership or against large corporations in egregious circumstances: Boily at paras. 108 and 109.

[64] Notwithstanding this, where contempt has involved the loss or misuse of substantial amounts of money, the fines imposed on individuals have typically remained low: Boily at para. 108. In my view a significant fine is not warranted nor is it in the public interest given the particular circumstances of this case: see Sankar.

[65] A modest fine along with the finding of contempt, in my view, appropriately addresses the need to sanction Mrs. Avayianos for her contemptuous conduct, which was a wilful, serious breach of a court order. I am satisfied that the objectives of general and specific deterrence can be met with this combination of sanctions, which will serve to denounce Mrs. Avayianos' conduct and deter future contempt. Each case must be decided on its facts, and this case is unusual in that the contemptuous conduct is over. Notwithstanding that context, the sanction is proportionate to the wrongdoing in this case.

Disposition

[66] In addition to the finding of contempt, Mrs. Avayianos is ordered to pay a fine in the amount of $7,500.00.

Costs

[67] Section 60.11(10) of the Rules of Civil Procedure provides courts discretion to award costs that are just and fair. In exercising my discretion to fix costs, I must consider what is fair and reasonable for the unsuccessful party to pay in this proceeding and balance the compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council for the Province of Ontario at paras. 26 and 37.

[68] It is not unusual for substantial indemnity costs to follow a contempt order. However, it is also appropriate to consider what is fair and reasonable in the circumstances and the reasonable expectations of the parties. This is in keeping with the discretionary factors set out in rule 57.01: GM Textiles Inc. v. Sidhu, 2016 ONSC 2055 at para. 64.

[69] Westdale is seeking costs on a full indemnity basis in the amount of $130,008.00 plus HST and disbursements for a total of $159,439.84. I find this a somewhat surprising position given Westdale's position that Mrs. Avayianos should be incarcerated for 120-150 days because she has no ability to pay a significant fine.

[70] In my view the suggested cost award is also high because this is a case involving one defendant and one plaintiff. This is not a multi-party fraud action. The contempt proceedings were not complex and involved whether a single order had been breached and if so, how and whether it was continuing.

[71] While Westdale would not have incurred certain of their costs but for Mrs. Avayianos' conduct, a costs award in the range suggested by Westdale must be significantly tempered. In my view, in the particular circumstances of this case an appropriate cost award is $50,000.00 for the following reasons.

[72] Mrs. Avayianos acknowledged having drawn on the Lines of Credit, and details of that breach were disclosed within a month of the contempt motion being brought. Westdale, however, sought to have Mrs. Avayianos found in contempt for other alleged contemptuous conduct relating to ongoing disclosure requirements and breaches relating to generating income, and ordinary credit card and bank account activities, all of which I rejected as having ultimately been disclosed and purged. This is an important factor as but for Westdale's pursuit of the other alleged contemptuous conduct, the proceedings would have been significantly shorter.

[73] In addition, I have reviewed the transcripts of the various cross-examinations. The cross-examinations were not restricted to the specific allegations of contempt but appear to have in part been a substitute for discoveries, focused on the underlying merits of the case. This is also evident in the volume of undertakings and inquiries into third parties. This is another factor that tends against the award sought by Westdale.

[74] The actual legal rates and hours quoted by Westdale are high with 331.7 billable hours in relation to the contempt proceedings alone. I agree with counsel for Mrs. Avayianos that this is more in the range of what would be expected for conducting a medium-length trial. A total of 117.3 hours were spent on preparation for and attendance at cross-examinations and court appearances. I note that all the cross-examinations occurred after Mrs. Avayianos admitted having drawn on the Lines of Credit in her December 2024 affidavit.

[75] It is also unclear why two senior lawyers as co-counsel, as well as a junior were involved in all aspects of the proceedings. In my view, the attendances between the two senior lawyers at cross-examinations and hearings is excessive, and there appears to have been duplicated work done by the three counsel.

[76] For these reasons, I fix the costs of the motion at $50,000.00, inclusive of disbursements and HST, and order the defendant, Mrs. Avayianos, to pay that amount within 60 days of this Order.

[77] One final comment. I understand that Mrs. Avayianos' ability to pay the fine and costs order are tied to the assets currently frozen by the Mareva order. I understand there have been discussions about the sale of the 25 Fenelon property with the monies to be paid into court. If counsel wishes any assistance in this regard, they can contact my assistant to arrange a case conference before me.

J.K. PENMAN J.

Released: August 11, 2025 Revised: August 12, 2025