





CITATION:
Sabourin and Sun Group of
      Companies v. Laiken, 2011 ONCA 757



DATE: 20111130



DOCKET: M40696 (C54546)



COURT OF APPEAL FOR ONTARIO



Sharpe J.A. (In Chambers)



BETWEEN



Sabourin and Sun Group Companies



Plaintiff/Defendant by Counterclaim



and



Judith Laiken



Defendant/Plaintiff
          by Counterclaim
(Respondent)

AND BETWEEN

Judith Laiken

Defendant/Plaintiff
          by Counterclaim
(Respondent)

and

Sabourin and Sun Group of Companies, Peter
          Sabourin, Sabourin and Sun Canada Inc., Sabourin and Sun
          Inc., a Bahamas Corporation, Sabourin and Sun BVI Trust,
          and Intervest Direct Inc., 1077472 Ontario Limited,
          Greg Irwin, Sabourin and Sun Inc. and 1061971 Ontario Limited

Defendants to
          Counterclaim



P.F.
          Schindler, for the moving party Peter Carey

Kevin D. Toyne, for the responding
          party Judith Laiken



Heard:
November 28, 2011



Sharpe J.A.:



[1]

The appellant, a lawyer, moves for a stay of an order finding him in
    contempt of court. The contempt finding arises from a
Mareva
injunction
    (the order) obtained by the respondent against the appellants client. After
    the order freezing the clients assets on strict terms had been made, the
    appellant received a cheque from his client for a very substantial sum. The
    appellant deposited the cheque in his trust account. He deducted his
    outstanding fees and, because he believed that following his clients
    instructions to use the remainder to settle some debts would violate the order,
    he instead returned the balance to the client.

[2]

The motion judge found that the appellants conduct constituted contempt
    of the order which,
inter alia
, ordered any person with knowledge of the
    order to prevent the withdrawal of monies held in the clients name in a trust
    account. The appellant seeks to reverse that finding, essentially on the grounds
    that the motion judge erred in her interpretation of the order and that the
    order was not sufficiently clear to forbid the course of action he took.

[3]

Upon giving her reasons for finding the appellant in contempt, the
    motion judge adjourned the matter pursuant to rule 60.11 (1), (5) and (8):

CONTEMPT ORDER

Motion
    for Contempt Order

60.11
(1)  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, may be obtained only on
    motion to a judge in the proceeding in which the order to be enforced was made.

Content of Order

(5)  In disposing of a motion under
    subrule (1), 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,

and may grant leave to issue a writ
    of sequestration under rule 60.09 against the persons property.

Discharging or
    Setting Aside Contempt Order

On motion, a judge may discharge, set aside, vary or give directions in
    respect of an order under subrule (5) or (6) and may grant such other relief
    and make such other order as is just.

[4]

The motion judge explained what she was doing as follows:

As a result, the parties
    shall appear before me for a hearing during the week of December 19, 2011 at
    361 University Avenue. Mr. Careys attendance is required at the hearing
    although he is not obliged to call any evidence or testify. At that hearing, if
    he wishes, Mr. Carey shall have the opportunity to present any further
    evidence, including
viva voce
evidence, and make any submissions that he
    wishes to make. The plaintiff shall also have the opportunity to file any
    further material, call evidence, cross-examine at the hearing, and make
    submissions. I shall take all of this into account in making any order under rule
    60.11(5) and (8) of the
Rules of Civil Procedure
.

[5]

The appellant submits that it would be appropriate for this court to
    stay the proceedings at this stage and to entertain his appeal from the
    contempt finding before allowing the motion judge to make her final disposition
    pursuant to rule 60.11(5).

[6]

For the following reasons, I am unable to accept the appellants
    submission.

[7]

In my view, it would be premature to grant a stay at this point
    in the contempt proceedings. A stay would interrupt the Superior Court proceedings
    and run a serious risk of fragmenting any appeals to this court. If the appeal
    from the contempt finding were to succeed, that would end the matter, but if it
    failed, the appellant would still have a right of appeal from any sanction the
    motion judge imposed. Appeals that interrupt a proceeding and risk a fragmented
    appeal are almost invariably discouraged. It is almost always preferable and
    more efficient for appeals to await the completion of proceedings in the trial
    court so that a complete record and disposition is presented on appeal: see,
    e.g.
Laudon v. Roberts
, 2009 ONCA 383, 308 D.L.R. (4
th
) 422,
    at para. 25: 
The time-honoured practice of reserving to
    the conclusion of trial the appeal of various rulings made during the
    proceedings is sound in that it preserves court time and costs.

[8]

The appellant cites
Bell ExpressVu Ltd. Partnership v. Torroni,
2009 ONCA 85, 304 D.L.R. (4
th
) 431, as a case where this court
    appears to have entertained an appeal from a finding of contempt before the
    sanction was imposed: see para. 19. However, as I read that case, the court
    entertained the appeal without any consideration of the point at issue here.
    Accordingly, I do not view
Bell ExpressVu
as authority to depart from
    the established rule against hearing appeals on a piecemeal basis or as
    authority for the proposition that appeals from contempt findings should
    ordinarily be heard before the sanction has been imposed.

[9]

To stay the contempt proceedings at this stage would also interfere with
    the design of the commonly followed procedure that is permitted, if not
    prescribed, by rule 60.11 (5) and (8), of dividing a contempt proceeding into
    two phases, the first dealing with the issue of whether the party is in contempt
    and the second dealing with the issue of sanction. Until the order has been
    made under 60.11 (5), the contempt proceedings have not come to their final
    conclusion. Until the sanction has been imposed, the judge has not expressed
    his or her final view of the case. It is clear from the passage quoted above
    from the motion judges reasons that she has not yet completed her adjudication
    of the contempt proceedings. Indeed, her specific reference to rule 60.11 (8)
    indicates that she remains open to a wide range of possible outcomes. Until she
    completes her work, this court will not know if the motion judge considered the
    contempt to be serious or trivial or how the judge intended to use the sanction
    of contempt to bring about compliance or to punish the contemnor. These are
    elements integral to the nature and character of the contempt proceeding and
    essential to an appellate courts full appreciation of the disposition under
    appeal.

[10]

Finally, even if I were to approach the matter solely from the
    perspective of applying the test for a stay, it is my view that the appellants
    request for a would stay fail.

[11]

I will assume for these purposes that the appellant can satisfy the
    first branch of the test and show that there is, as required by the
RJR
    MacDonald Inc. v. Canada
[1994] 1 S.C.R. 311 test, a serious issue for this
    court to decide, or, in the words of Finlayson J.A. in
Vassallo v. Mulberry
    Street Ltd.
(1995), 83 O.A.C. 386 at para. 15, that the merits of the
    appeal deserve the attention of the full court.

[12]

The appellant cannot, however, demonstrate either irreparable harm or
    that at this stage, the balance of convenience favours a stay.

[13]

Until the motion judge makes her order under rule 60.11 (5), we do not
    know what harm the appellant will suffer as a result of the finding of contempt
    and so we cannot say that the harm is irreparable. I do not accept the
    appellants submission that the mere risk that he will be sent to jail is
    sufficient to demonstrate irreparable harm. Indeed, the respondent has stated
    that she will not seek immediate committal at the sentencing hearing. If, at
    some point, the sanction of imprisonment is imposed, the appellant can move
    immediately for a stay and the court can then assess the merits of the stay
    application with a complete picture of the peril he faces. This would follow
    the practice used in criminal appeals where an appellant cannot seek judicial
    interim release until the appeal from conviction is heard until sentence has
    been imposed Furthermore, the appellant will almost certainly have an advantage
    over most criminal appellants as it is very unlikely that in a civil contempt
    proceeding he will be taken immediately to jail without the opportunity to seek
    a stay.

[14]

Nor, in my view, can the appellant show that the balance of interest
    favours granting a stay at this point in the proceedings. The balance of
    convenience can only be assessed in the light of the sanction the appellant
    seeks to avoid on appeal. And, as I have explained, the interests of justice
    strongly favour postponing the stay decision until after the motion judge has
    decided upon the appropriate sanction.

[15]

Accordingly, the motion for a stay is dismissed with costs to the
    respondent fixed at $3,000 inclusive of disbursements and HST.

Robert J. Sharpe J.A.

RELEASED: November 30, 2011


