



COURT OF APPEAL FOR ONTARIO

CITATION: Astley v.
    Verdun, 2015 ONCA 225

DATE: 20150402

DOCKET: M44589 (C59749)

Simmons, Tulloch and Pardu JJ.A.

BETWEEN

Robert M. Astley

Plaintiff

(Respondent/Responding
    Party)

and

J. Robert Verdun

Defendant

(Appellant/Moving
    Party)

Elizabeth Roberts, for the appellant

Brian N. Radnoff, for the respondent

Heard and released orally: March 16, 2015

ENDORSEMENT

[1]

In our view, the motion judge erred in concluding that the contempt
    finding and sentence under appeal is merely a do-over of the original contempt
    finding and sentence, and that Mr. Verduns appeal does not raise a serious
    question to be argued warranting consideration of a stay pending appeal.

[2]

The contempt motion forming the subject matter of the current appeal was
    premised on Mr. Verduns failure to comply fully with the terms of the
    conditional sentence he received on the first contempt motion.  Having regard
    to the decision in
R. v. Casey
, [2000] O.J. No. 71 (C.A.) at para. 22,
    there is an arguable issue concerning whether Goldstein J. was entitled to
    proceed by further contempt motion rather than invoking enforcement mechanisms
    for breach of a conditional sentence.  In fairness to the motion judge, this
    issue was not raised before her.

[3]

Further, even assuming a further contempt motion was an available
    procedure, the quantum of the sentence imposed raises a serious question to be
    argued on appeal.  Having regard to the time served to date under the second
    conditional sentence, Mr. Verdun faces potential irreparable harm if a stay
    pending appeal is not granted.

[4]

We also conclude that the motion judge erred in holding there is any
    potential prejudice in these circumstances to Mr. Astley.  Unlike the first contempt
    motion, the second contempt motion was not about enforcing the original
    injunction.  Rather, it was about ensuring Mr. Verdun fulfilled precisely the
    terms of the conditional sentence imposed on the first contempt motion.  In
    these circumstances, the balance of convenience favours a stay.

[5]

As for the order for security for costs, even if the motion judge should
    not have considered outstanding costs awards under rule 61.06(1)(c), it was
    open to her to consider Mr. Verduns other conduct in the proceeding and to
    make an order for security costs having regard to that conduct.

[6]

In all the circumstances, we set aside the motion judges order
    dismissing the motion for a stay; we grant the motion for a stay; we vary the
    order for security for costs to $10,000; and we set aside the order dismissing
    the appeal for delay.  In addition, we direct that the security for costs be
    paid and the appeal be perfected within 30 days from today, failing which the
    appeal may be dismissed by the registrar for delay or for failing to pay the
    order for security for costs without further notice.  As success on this motion
    is divided, the order of the motion judge as to costs is set aside and there
    will be no order as to costs of the hearing before us.

[7]

On consent, this endorsement is amended to also provide that:

·

the appellants passport, currently being held by the Superior
    Court of Justice, shall be returned to him;

·

the appellant shall attend the appeal hearing at the Court of
    Appeal and shall surrender his passport to the Court of Appeal immediately
    prior to the appeal hearing;

·

that if the appeal is dismissed for failure to perfect the appeal
    or failure to pay the security for costs as provided in this endorsement, the
    order for a stay pending appeal is automatically terminated and the warrant of
    committal dated December 9, 2014 immediately continues in full force and
    effect, including the term requiring the surrender of the appellants passport.

Janet Simmons
    J.A.

M. Tulloch
    J.A.

G. Pardu J.A.


