Penalty Decision

Court File No.: CV-23-694377-0000
Date: 2025-01-31
Ontario Superior Court of Justice
Application under Rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Between:
Ontario Public Service Employees Union/Syndicat des Employes de la Fonction Publique de l’Ontario, Applicant/Moving Party
– and –
Mark Mendl and Mark Mendl Law Professional Corporation, Respondents

Appearances:
Kristian Borg-Olivier and Janet-Lee Song, for the Applicant/Moving Party
Bryan Badali, for the Respondents

Heard: December 16, 2024
Released: January 31, 2025
Callaghan J.

Introduction

[1] This is the penalty phase of the contempt proceeding of Mr. Mendl (“Mendl”) who I have already found in contempt. This is my decision on penalty.

Brief History

[2] The facts giving rise to this contempt have been outlined in the reasons for contempt: OPSEU v. Mendl et al., 2024 ONSC 1904, 2024 CarswellOnt 19330. I will not repeat those reasons here.

[3] In short, Mendl was counsel to the Ontario Public Service Union (“Union”). The Union discovered, upon a change of leadership, that Mendl had received $3.7 million in funds for which there was no discernable explanation. When asked for an explanation and the records, Mendl refused to provide either. However, he acknowledged that he had both the information and documents sought by his client.

[4] An application was brought to compel production of the information and records. Mendl did not attend the return of the motion. On August 29, 2023, he was ordered to produce the records and his file by Justice Chalmers (“August 29 Order”). Mendl did not comply with the August 29 Order.

[5] The Union brought this motion for contempt. In seeking to schedule the contempt motion, Mendl and the Union were first ordered to attend before Justice Stinson for a case conference to ascertain if this matter could be resolved, or in the alternative, to set a schedule for the contempt motion. Justice Stinson met with Mendl and the Union and urged Mendl to comply with the August 29 Order. Mendl said that he would do so. In fact, he only produced a small portion of what was ordered. As a result, a return date for the contempt hearing was ordered.

[6] In the meantime, the Union brought a Norwich application to obtain a portion of the financial records that should have been produced by Mendl to ascertain what happened to the money.

[7] Mendl did not attend the return of the contempt proceeding. He was found in contempt on March 28, 2024. The penalty phase was set for April 18, 2024, which was scheduled to permit Mendl time to purge his contempt. He was ordered to attend the penalty phase in person. He neither purged his contempt nor did he attend on April 18, 2024. At that date, I adjourned the hearing to April 25, 2024, to permit Mendl another chance to attend the penalty phase. He did not attend on April 25, 2024. A bench warrant was then issued for his arrest (“Warrant of Arrest”).

[8] On April 30 at 1:23 pm, Detective John De Caire of the Toronto Police Service contacted Mendl by phone to request that he surrender himself in furtherance of the Warrant of Arrest. Mendl advised the Detective he would surrender himself on the morning of May 1, 2024.

[9] As Mendl did not attend to surrender himself as promised, the Detective again called Mendl on May 1 at 3:56 pm to ascertain his whereabouts. Mendl did not answer. The Detective left a message for Mendl at the same number he had reached Mendl the day before. In his message, the Detective advised Mendl that the penalty hearing would proceed on May 2, 2024, at 361 University Ave.

[10] The court convened at 10:00 a.m. on May 2, 2024. Mendl did not attend. The matter was adjourned pending the execution of the Warrant of Arrest.

[11] On May 27, 2024, Mendl was apprehended by the police and taken to Toronto South Detention Centre. He was brought before the court on May 29, 2024. He retained counsel and was released on the conditions that he remain in Ontario, he turns his passport over to his counsel, and that he deposit $30,000 as a bond to be held in his counsel’s trust account until further order of this court.

[12] On June 3, 2024, Mendl finally provided the Union with the remainder of the documents. He was examined under oath by the Union as to the documents and his information regarding the funds in issue. A copy of the transcript was filed in the penalty phase of the hearing.

[13] The Union has advised the court that it is satisfied that Mendl has now complied with the order of Justice Chalmers.

[14] Mendl’s counsel advised that he wished to have Mendl seen by a forensic psychiatrist and sought an adjournment for that purpose. The request was granted.

[15] In the meantime, the Law Society of Ontario sought an interim suspension of Mendl’s licence to practice law. The request was considered by the tribunal on August 21, 2024: Law Society of Ontario v. Mendl, 2024 ONLSTH 92. In doing so, the Law Society Tribunal (“Tribunal”) considered not only that Mendl had not only failed to return documents to his client or explain the receipt and disbursement of the Union’s $2.8 million but also that he had been found in contempt by this Court and was arrested and detained.

[16] Since November 2023, the Law Society had been investigating the following allegations regarding Mendl:

• May have misled
• May have failed to act with honour and integrity
• May have breached a Court Order
• May have failed to comply with obligations related to terminating a retainer
• May have used trust accounts for purposes not related to the provision of legal services.

[17] In applying the applicable test for an interlocutory suspension, the Tribunal found the test had been met. In doing so the tribunal opined:

[46] Lawyers are not above the rule of law; where they breach court orders, the regulator is within its authority to seek an interlocutory suspension or restriction of the licence, as is being done here.

[18] The Law Society proceeding remains outstanding.

[19] Consistent with the request by counsel, Mendl was seen by Dr. Rootenberg, a forensic psychiatrist. Dr. Rootenberg’s report was filed without objection by the Union for consideration in addressing penalty.

[20] As Mendl did not testify, the only information before the court was Dr. Rootenberg’s report. Dr. Rootenberg met with Mendl twice by Zoom. He also spoke with a social worker who met with Mendl, and he spoke with Mendl’s wife.

[21] As relayed to Dr. Rootenberg, Mendl’s family history was not remarkable. He is married with two children. His father is in long term care and his mother is deceased.

[22] As to his practice, it is reported that Mendl was a partner at Baker McKenzie until leaving in 2017 to set up his own practice. His firm ran into difficulty when the Union terminated its retainer. He is currently suspended from practice.

[23] The report speaks to Mendl’s abuse of alcohol and drugs. He reported that for the last five to six years that he consumed “8-9 tall cans of beer and a bottle of wine on a daily basis” plus one cannabis-infused drink. He said that he was already drinking heavily in July 2022 but that things “deteriorated significantly” after he lost his retainer with the Union, which had been lucrative.

[24] With the loss of the Union as his “anchor client”, Mendl began to “consume more alcohol, continued to use cannabis, and took his father’s Oxycontin pills when they were available”. He apparently retreated into his basement where he played videogames, and essentially “shut down”, stating that he felt “paralyzed”. According to Dr. Rootenberg, Mendl described that he stopped dealing with things, he pushed colleagues away, and hid the reality of his troubles from his wife. He told Dr. Rootenberg that he acted “just like a child would do, ignoring the problem”.

[25] When called by the police in respect of the warrant, he says he was dealing with his father-in-law who was diagnosed with cancer and died two months later. He says he visited his father-in-law every day.

[26] He told Dr. Rootenberg about his experience of being arrested, his time at Toronto South Detention Centre, and that he feared for his safety while in jail.

[27] Dr. Rootenberg also spoke with Mendl’s wife and the social worker. The social worker met Mendl eight times. She relays much of the same history as Dr. Rootenberg. She, too, identifies the alcohol as Mendl’s principal problem and she discussed certain interventions, such as scheduling a formal assessment at the Centre for Addiction and Mental Health or considering residential addictions treatment.

[28] In assessing Mendl, Dr. Rootenberg says that Mendl never experienced any mental difficulties prior to his work related issues with the Union. While Mendl suffered from symptoms of anxiety and depressed moods at the time of the assessment, Mendl does not meet the diagnostic criteria for a disorder of thought such as schizophrenia, or any other affective (mood) disturbance such as bipolar disorder. Similarly, he did not meet the diagnostic criteria for antisocial (or any other) personality disorder, which meant he was more amenable to therapeutic interventions.

[29] In the end, Dr. Rootenberg opined:

“Mr. Mendl currently meets criteria for an Alcohol Use Disorder, and he previously met criteria for the following substance use disorders: Cannabis Use Disorder; Hallucinogen Use Disorder; and Stimulant Use Disorder”. This abuse resulted in Mendl not being [able] to deal with his law practice effectively or in a timely manner. His shame, embarrassment and decreased self-esteem prevented him from seeking advice or help when he was dealing with the court orders. He also experience severe panic attacks which resulted in him isolating in his basement. The panic attacks “turned a relatively minor issue into something that spiraled out of control”.

[30] Dr. Rootenberg said that Mendl was at the low end of risk to “re-offend”, by which I understand him to mean that he believes Mendl will not disregard court orders in the future. In saying so, he commented:

“Mr. Mendl’s involvement with the legal system has been very sobering for him, and he clearly does not want to engage in any further conduct that brings him into contact with the judicial system. Although remorse is difficult to measure, his expressions of remorse appear quite genuine, and he is very upset with respect to his behavior wherein he failed to comply with OPSEU’s requests that he send them their files, as well as not complying with judicial orders.”

[31] At the time of the assessment in September 2024, Mendl continued to consume considerable amounts of alcohol every day. Dr. Rootenberg recommended that Mendl obtain “relapse prevention treatment regarding the alcohol”. Dr. Rootenberg was optimistic as Mendl had “taken tangible steps to address this problem by investigating outpatient and residential treatment options”.

[32] It is noteworthy that both Dr. Rootenberg and the social worker both recommended Mendl get treatment for his alcohol abuse. They said that if he did so, his prognosis would be optimistic. However, Mendl has not actually entered any treatment program nor was the court made aware of any concrete plans for him to do so.

[33] As to his current legal troubles, Mendl acknowledged to Dr. Rootenberg that the Union was entitled to the documents but that, “I delayed, obfuscated and did not respond, and ended up in jail”.

[34] As noted, Mendl did not testify and was not challenged on anything that Dr. Rootenberg reported. Nor did Mendl address the court to articulate any remorse directly.

The Parties’ Positions

[35] The Union has entered into an agreement with Mendl that Mendl will pay an amount in satisfaction of the outstanding cost awards and the cost of these proceedings. It points out that while contempt involves a public element, the genesis of the dispute was the Union’s entitlement to information, which has now been satisfied. The Union is principally concerned that any order of this Court does not adversely impact Mendl’s ability to meet his financial obligations to pay the Union the agreed upon amounts.

[36] Counsel for Mendl reviewed the criteria for imposing a civil contempt penalty in detail. In the end, he asserts that no further penalty is required. He does not downplay the seriousness of the contempt but says that Mendl has already been incarcerated for his actions, was subject to conditions on release, has purged his contempt by providing the information ordered, has settled his financial obligations for the Union’s costs, and has been subject to an interlocutory suspension by the Law Society with the “likely outcome his licence to practice law will be revoked”. There is also an ongoing civil lawsuit by the Union.

[37] Further, counsel points to the case law, which suggests that having purged the contempt that fines would be the most common penalty to denounce the conduct. However, counsel also points out that, in this case, Mendl’s ability to pay a fine, even a modest one, would constitute a hardship given his obligation to pay the Union, as he is not presently earning an income and, in any event, a fine is not necessary to promote respect for the court.

Penalty Discussion

[38] Contempt may be civil or criminal and the emphasis of the penalty will vary depending on which type of contempt is being considered. This matter proceeded as civil contempt. The primary purpose of a criminal contempt sentence is punishment. In contrast, the primary purpose of civil contempt is to coerce compliance and enforce the private rights of the parties: Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, para 77.

[39] However, even where there is civil contempt, the penalty must be “designed not only to enforce the rights of a private party… [cites omitted] ... but also to enforce the efficacy of the process of the court itself”: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, para 79. This has been described as the secondary purpose for imposing a penalty in civil contempt and it is intended to uphold the dignity of the court and to punish the contemnor: Development Bank of Canada, at para. 81; College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, para 106. Respect for and obedience to court orders is at the heart of our judicial system and is integral to a society based on the rule of law. As stated by Chief Justice McLachlin, “The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.”: United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 931. As the cases repeatedly make clear, contemptuous behaviour undermines the court’s authority and diminishes respect for the law.

[40] In respect of civil contempt, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provide for the various penalties that may apply. Under Rule 60.11(5), the Court may order a person in contempt to:

• (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

[41] In Boily, the Court of Appeal set out the following factors relevant to a determination of an appropriate sentence for civil contempt at para. 90:

• (a) the proportionality of the sentence to the wrongdoing;
• (b) the presence of mitigating factors;
• (c) the presence of aggravating factors;
• (d) deterrence and denunciation;
• (e) the similarity of sentences in like circumstances; and
• (f) the reasonableness of a fine or incarceration.

Aggravating / Mitigating Factors

[42] In this instance, there are both aggravating and mitigating factors.

[43] First, Mendl repeatedly ignored this court’s order to produce the documents in issue. He was ordered to produce the documents by Justice Chalmers. He was given several opportunities to purge his contempt by Justice Stinson and this Court. While the contempt relates only to the August 29 Order, his failure to heed the repeated requests not only added to the Union’s costs and this Court’s time but showed an unwillingness to abide by repeated opportunities to comply with the August 29 Order; making the defiance of that order deliberate and flagrant.

[44] Mendl later ignored this Court’s order to appear at the penalty phase. After promising to the officer to attend, he failed to do so, and he had to be forcibly brought before the court. His failure to abide by the August 29 Order was aggravated by this cat and mouse game that ensued.

[45] Mendl is a lawyer. He swore an oath upon becoming a “barrister and solicitor” to, among other things, “champion the rule of law”. In this instance, he failed. In Carey v. Laiken, 2015 SCC 17, which involved a contempt proceeding against a lawyer, the Supreme Court of Canada adopted Justice Sharpe’s observation that a lawyer, as an officer of the court, “is duty-bound to take scrupulous care to ensure respect for court orders”: at para. 46.

[46] In this case, as an officer of the court, Mendl actively and knowingly disregarded this Court’s order. It is an aggravating factor that a lawyer would disregard an order of the court. The administration of justice depends on the championing of the rule of law by those who are sworn to uphold it. As Justice McLachlin said, the rule of law is dependent on the court’s ability to enforce its process which is, in no small measure, dependent on lawyers meeting their obligation to champion the rule of law.

[47] On the mitigating side, Mendl has had no prior incidents of this kind. Dr. Rootenberg provides a mitigating explanation that Mendl was unable to cope and that he turned to alcohol and drugs which caused a downward spiral. While I am prepared to accept much of what Dr. Rootenberg said, Mendl never proffered his own explanation to the court, and it was never tested as the Union took no position. Mendl says he now has insight into his problems. However, this alleged insight is hard to square with his failure to seek the treatment that has been recommended by Dr. Rootenberg and the social worker and which is key to Dr. Rootenberg’s favourable prognosis for Mendl. While this diminishes the court’s view as to Mendl’s sincerity, the court accepts that there was a history of abuse with alcohol and drugs that played a part in this unfortunate saga.

[48] Although much too late, Mendl has now complied with the order of Justice Chalmers and has entered into an agreement to pay the costs incurred by the Union. Nonetheless, he has complied with the order which is a significant mitigating factor. The need for a penalty that would coerce compliance with the August 29 Order is no longer required.

[49] While Mendl expressed remorse to Dr. Rootenberg, he did not formally acknowledge remorse to the court. While I accept that Mendl now understands the severity of his actions, it is inexplicable why he did not apologize to the court in his own words. While I accept Mendl’s remorse as articulated to Dr. Rootenberg, I am of the view that a direct and sincere acknowledgement of remorse should ordinarily be made to the court, not to a third party.

Deterrence and Denunciation

[50] In terms of deterrence, the penalty should denounce the conduct and promote a sense of responsibility in the contemnor as well as deter others: Development Bank of Canada, at para. 90; Chiang (Re), 2009 ONCA 3, para 91.

[51] I accept that Mendl has acknowledged to Dr. Rootenberg that he has erred and that the cost to him of his actions has been significant, including time being incarcerated, financial recompense to the Union, the suspension of his law licence and his loss of standing in the community. As he advised the Union during his examination, he spent three unpleasant days in jail and, as a result, the Union had “his full attention and cooperation”, resulting in Mendl providing the ordered documents and information.

[52] However, I am not entirely convinced that Mendl will not spiral out of control again as he has failed to take the direction of Dr. Rootenberg to seek help for his alcohol problem. This may be a significant problem should he begin to practice again. Nonetheless, I accept Dr. Rootenberg’s opinion that Mendl is unlikely to disobey a court order for fear of repeating what has transpired these past months.

[53] In saying the above, I am cognizant that the Law Society investigation is outstanding. His interlocutory suspension is a relevant consideration when considering the appropriate penalty as it reflects a very real cost to Mendl for his contemptuous behaviour, and is an element of deterrence and denunciation which this court considers relevant: Development Bank of Canada, at para. 102. That process is ongoing.

[54] It is important to recognize that the Law Society has the statutory obligation to govern the legal profession in the public interest. This includes determining who is of good character such that they should be licenced to practice law. As Mendl’s counsel recognized, there is a likelihood that his licence will be revoked. It is for the Law Society, not this penalty hearing, to deal with his suitability to practice.

Similarity of Sentences, Proportionality, and Reasonableness

[55] Each case is to be determined on its own facts, but the court should have regard to similar cases and address penalty in a similar fashion.

[56] Only one case has been brought to my attention where a person who has purged the contempt was given a custodial sentence. In civil contempt cases, custodial sentences are the penalty of last resort and are rare: Chiang (Re) at para. 90. Justice Brown in Mercedes-Benz Financial v. Kovacevic, 308 DLR (4th) 562, found that there was no impediment, in the right case, to provide a custodial sentence where the order in question had been complied with. In that case, His Honour found the contemnor’s “defiance of Canadian law was palpable, unrepentant, and unremitting”: at para. 41. His Honour imposed a sentence of detention of five days.

[57] In other cases, custodial sentences have been ordered where there was no longer an ability to comply with the order. In such circumstances, coercion to have the contemnor comply with the order was not the motivating factor for the custodial sentence. In Business Development Bank of Canada, the contemnors, which included a lawyer, failed to abide by an order to produce certain documents. While the documents could no longer be produced, the Court of Appeal reduced the contemnors’ custodial sentences from 90 to 45 days. The Court acknowledged that jail sentences for civil contempt are rare, but a jail sentence was needed to send a message that the conduct engaged in would not be tolerated.

[58] I raise these cases as I accept that I have the power to impose a sentence of incarceration even though Mendl has complied with the order. To do so would be exceptional, particularly given the time he has already spent incarcerated, the recompense to the Union, and the suspension of his law licence. I do not believe that a custodial sentence would be proportionate or in line with most of the case law where the contemnor, albeit late, has abided by the order in question.

[59] In terms of a fine, Mendl’s counsel surveyed the case law, and most fines are modest in the $1,500-5,000 range. He further notes that the contemnor’s ability to pay is also a relevant factor: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, para 133.

[60] Mendl is not working and has a significant debt to the Union. It is unlikely that he can pay anything but the most modest fine. I do not see a modest fine as being an effective penalty.

[61] In short, Mendl has purged the contempt. He has been incarcerated. His law licence has been suspended and may yet be revoked. He carries with him the stigma of having been found in contempt as a lawyer. I do not see the point of any further penalty.

Disposition

[62] Accordingly, I do not impose any further penalty. I revoke my order of May 29, 2024, and Mendl’s passport and funds being held by his counsel may be returned.

[63] As the parties have their own arrangement, there will be no order as to costs.

Callaghan J.
Released: January 31, 2025