The Ontario Court of Appeal recently set aside an order committing an estate trustee to 15 days in jail, to be served on weekends, for contempt of an order requiring the estate trustee to pass his accounts.
In Ross v. Ross, 2019 ONCA 724 (CanLII), the estate trustee was a lawyer, 73 years of age, with no prior convictions or findings of contempt. At the time of the appeal, the estate trustee had purged his contempt.
At the hearing below, the judge found that the contempt arose from “a failure to understand and appreciate or to ignore the need for, and importance of, complying with the order within the specified time or within a reasonable time.” The Court of Appeal held that this finding meant that the estate trustee’s actions did not amount to a callous disregard for the court’s authority. Accordingly, a jail sentence was not appropriate.
For other cases on contempt and sentencing, see our blog, here and here. In the first blog, reference is made to a case where an 88 year old litigant with health issues was sentenced to 30 days in jail for contempt. In the second blog, we discuss a case where an attorney for property failed to pass accounts as required by court order. He was fined $7,000.
Finally, consider the case of Canavan v. Feldman, 2004 CanLII 4787 (ON SC). This was a claim by an estate trustee against his former lawyer. There, the estate trustee, 67 years old, spent 35 days in jail for contempt of court orders relating to a passing of accounts, and was only released when new counsel put further evidence before the court. The estate trustee’s prior lawyer had consented to an order of contempt without the estate trustee’s knowledge. The lawyer told the estate trustee that he had “nothing to worry about”. At a sentencing hearing, the lawyer did not attend. The estate trustee was sentenced to 6 months in jail. The estate trustee was awarded general damages of $200,000 and punitive damages of $100,000 against his prior lawyer.
Thanks for reading.
A litigant in his late 80’s was recently sentenced to 30 days in jail for contempt of a Court order.
The litigant was found to be a vexatious litigant in 2008. The Vexatious Litigant Order precluded him from commencing or continuing any judicial proceeding or motion without leave of a judge of the Superior Court. Further, the litigant was not permitted to seek leave against certain named parties unless certain outstanding costs awards were paid in full.
The litigant was found to be in contempt of this 2008 Order on October 20, 2017. The penalty phase of the motion was heard on January 4, 2018, and reasons were released on January 5, 2018.
In the penalty phase decision, the motions judge reviewed the court’s power when determining a penalty for contempt. The court may order that the person in contempt:
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with the terms off 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.
The judge went on to set out the principals of sentencing, which are similar to those found in criminal law. The underlying purpose of contempt orders is to “compel obedience and punish disobedience”, and “the contemnor must be deterred from further acts of contempt. Perhaps more importantly, respect for our courts must be maintained and violations punished adequately in order to deter future violations”.
The court went on to consider
- Any mitigating or aggravating factors;
- Whether the sentencing objectives could be accomplished without a period of sentencing, and if so, how; and
- If the answer to 2 was no, what period of jail time was appropriate.
As an aggravating factor, the court noted that since the 2008 Vexatious Litigant Order was made, the litigant has carried on in complete disregard of that Order. The litigant was previously found in contempt of the 2008 Order, but because of his age (he was 81 at the time), he was not jailed. Further, there was no apology or expression of remorse from the litigant.
The court accepted that a fine was not appropriate, as the imposition of a fine would only make it less likely that any costs awards would ever be paid by the litigant. The court also noted that the litigant was previously warned by a judge that if he was subsequently found in contempt, he could well face jail time. Additionally, the litigant had previously been committed to prison overnight for a separate act of contempt.
In light of the nature of the contempt, the court considered a sentence of 6 to 9 months. However, due to the litigant’s age (“either 88 or 89”) and alleged health issues, a sentence of 30 days was determined to be appropriate. Costs were awarded against the litigant on a substantial indemnity basis in the amount of $15,280.50.
(As an aside, the litigant has brought a motion to discharge, set aside, vary or give directions with respect to the finding of contempt, which is scheduled to be heard on January 12, 2018. Accordingly, the sentence is to begin on January 12, 2018 at 4 pm, unless the judge hearing the motion to vary, etc. orders otherwise.)
Have a great weekend.