



COURT OF APPEAL FOR
    ONTARIO

CITATION: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574

DATE: 20140806

DOCKET: C56885

Epstein, Lauwers and Pardu JJ.A.

BETWEEN

Danielle
    Boily,
Juan Escudero
, Lisa Backa-Demers, Kanta
    Marwah, Doug
    Cummings and Richard Maurel

Applicant (Respondent)

and

Carleton
    Condominium Corporation 145, Dan Litchinsky, Avis Miller, Jean-Guy
    Bourgeois and Carol Smale

Respondents (Appellants)

Janice B. Payne, for the appellants Dan Litchinsky, Avis
    Miller, Jean-Guy Bourgeois and Carol Smale

Antoni Casalinuovo and Patricia Elia, for the appellant,
    Carleton Condominium Corporation 145

Rodrigue Escayola and Jocelyn Duquette, for the respondent, Juan
    Escudero

Heard: December 9, 2013

On appeal from the judgment of Justice Robert N. Beaudoin of
    the Superior Court of Justice, dated March 8, 2013, with reasons at 2013 ONSC
    1467.

Epstein J.A.:

INTRODUCTION

[1]

Directors of a condominium corporation may believe they know the best
    course of action for the corporation.  However, as reasonable as that belief
    may be, it does not give them the right to act in defiance of a court order. 
    The central issue in this appeal is the appropriate sanction for a condominium
    corporation and its well-intentioned, but ultimately contemptuous, board
    members.

[2]

In 2011, as a result of having to perform extensive garage repairs, the
    landscaping outside a condominium complex that was built in the mid-1970s,
    required restoration.  The board of directors of the condominium corporation
    proposed a new landscaping design with features different than the design in
    place prior to the garage repairs.  Several condominium owners opposed the suggested
    new design.  They wanted the area restored to the way it was before the garage
    was repaired.  A dispute arose.  The dispute lead to litigation and a court
    order that the landscaping be restored to its original design.  In defiance of
    the order, the directors authorized the installation of landscaping containing
    some elements of the previous design and some elements of the design they had
    selected.  As a result of the violation of the court order, the condominium
    corporation and directors were found in contempt of court.  In sanctioning the
    contempt, the motion judge ordered that the area be restored to the original
    design and also ordered the directors to personally bear the substantial costs
    of the restoration.

[3]

The condominium corporation and the directors appeal the finding of
    contempt (the Contempt Order). In the alternative, the directors appeal from
    the penalty the motion judge imposed and, in particular, the order that they
    personally bear the costs of the restoration.

[4]

For the reasons that follow, I would dismiss the appeal from the finding
    of contempt and the order that the landscaping be restored as it was
    immediately prior to the garage repairs.  I would, however, allow the portion
    of the sanction in which the motion judge ordered the directors to pay the
    costs of restoration.  I would set aside that part of the sentence and replace
    it with a fine to be paid by each director to the condominium corporation.

THE FACTUAL BACKGROUND

[5]

The appellants are the four members of the board of directors at the
    material time (the Individual Appellants) and the condominium corporation,
    Carleton Condominium Corporation 145 (CCC 145) - collectively, the
    Appellants.  The respondent is sole remaining member of the group of owners
    who opposed the Appellants recommended design. I will refer to the respondent
    in the plural, (the Respondents) in order to be consistent with the history
    of this proceeding.

[6]

The condominium development consists of two multi-toned red and brown
    brick towers that house a total of 144 residential condominium units.  As
    originally designed and built, the exterior of the condominium buildings, known
    to the residents as the Podium, provided a barrier that shielded the
    residences from the two busy streets fronting the complex.

[7]

The Podium has two parts.  The inner area, referred to by the residents
    as the Courtyard, was enclosed by multi-level planters and contained a
    traffic circle with planters in the centre.  Numerous planters, made of
    aggregate concrete with a ceramic red and brown brick finish, filled with
    flowers and various forms of mature trees and shrubs, formed a significant part
    of the barrier the Podium provided between the streets and the complex.

[8]

As a result of slight modifications and the maturing of vegetation, the
    original landscaping changed somewhat in the 30 years from when the complex was
    first completed. However, the essentials of the original design remained.  I
    will therefore refer to the landscape design in place immediately prior to the
    start of the garage repairs, as the Original Design.

[9]

By 2007, it became clear that the nine-storey garage below the complex
    required extensive repairs. The repair work was carried out in 2010 and 2011 at
    a cost of over $2 million. In order to conduct the repairs, the Podium
    landscaping had to be removed. The Appellants retained an architectural firm,
    Artistic Landscape Design, to develop a landscape design and planting plan.  
    Artistic Landscape Design prepared a report for the Appellants (the Artistic
    Design) that contemplated changes from the Original Design including
    additional parking spaces, less vegetation, a modified traffic circle,
    differently designed planters and address sign, and grey limestone veneer
    courtyard walls in place of the previous multi-toned red and brown brick. In
    addition to being somewhat different aesthetically, the Artistic Design was
    less costly to install and maintain than the Original Design.

[10]

To
    inform the owners of the proposed new design and solicit feedback, the
    Appellants put the Artistic Design plan and site drawings on display in the
    lobby of the condominium complex from early March through late April 2011.  On
    May 4, 2011, in order to respond to owner feedback, the Appellants held an
    information session to allow the owners to meet with the design consultants.

[11]

At
    the information session, the Respondents expressed opposition to the Artistic
    Design and took the position that its implementation would constitute a
    "substantial change" to the common elements.  In order to make a
    substantial change, in accordance with s. 97(4) (5) and (6) of the
Condominium
    Act 1998
, S.O. 1998, c. 19 (the Act"), the corporation must have
    the  approval of 66 and 2/3 percent of the owners at a meeting called for the
    purpose of voting on the proposed change.

[12]

The
    Individual Appellants did not view the landscaping restoration as a substantial
    change.  They were of the view that the necessary landscaping work amounted to
    repairs and maintenance and therefore, under s. 97(1) of the Act, they could
    proceed with the Artistic Design without notice to the owners.

[13]

However,
    in an attempt to further address the Respondents concerns, the Individual
    Appellants put on display in the lobby a selection of three of the materials
    the consultants proposed to use for the planters.  The Appellants also sent out
    a notice that, pursuant to s. 46(1) of the Act, if 15% of the owners
    requisitioned a meeting, the Artistic Plan would be put to a majority vote of
    owners before being implemented.

[14]

The
    Respondents tried to work with the Individual Appellants to resolve the
    dispute.  The group ultimately attempted to requisition a Special Owners
    Meeting
[1]
at which to submit the Artistic Design to a 66 and 2/3 percent vote. Concerned
    that delays would lead to increased costs and potentially damage the repairs
    that had been completed, the Individual Appellants ignored this requisition and
    authorized the start of the landscaping work in accordance with the Artistic
    Design.  The Individual Appellants also called a meeting under s. 45(4) of the
    Act that allows the board of directors to call a meeting for the transaction of
    any business, to be held on June 22, 2011.  The stated purpose of the meeting was
    to submit the Artistic Design to a simple majority vote of the condominium
    owners who attended the meeting.

[15]

These
    actions prompted the Respondents to bring an application, issued June 22, 2011,
    coupled with an urgent motion for an order enjoining the Appellants from
    authorizing any work and from holding the owners meeting scheduled for that
    evening.

[16]

That
    day, the motion judge, Beaudoin J., granted an order enjoining the Appellants
    from holding its proposed meeting and from proceeding with any landscaping
    until further order.  The balance of the application for relief, including a
    determination of whether the changes to the courtyard/podium constituted a
    "substantial change", was adjourned to the following week.

[17]

Later
    that day, (June 22, 2011), the parties came to an agreement resolving all
    issues raised in the application, with the exception of costs. This agreement,
    incorporated into Minutes of Settlement, provided, among other things, that
    the question of whether to keep the existing hard landscape configuration or
    go with the Artistic Design will be put to a 66 2/3% of all owners vote.

[18]

In
    accordance with the Minutes of Settlement, a meeting was held that night.  The
    Artistic Design received the support of 60.5% of the condominium owners - 11
    votes short of the number needed for approval.

[19]

After
    the vote, the Individual Appellants challenged the Minutes of Settlement,
    arguing that as neither design had received the requisite 66 and 2/3 percent
    support of the owners, the parties were not bound by the agreement. The
    Individual Appellants sought to have the Artistic Design approved on a simple
    majority vote.

[20]

The
    Respondents moved to enforce the Minutes of Settlement.

[21]

In
    his endorsement of June 29, 2011, the motion judge, again, Beaudoin J., ruled
    that the terms of the Minutes of Settlement were clear and, given the outcome
    of the vote, ordered the Appellants to reinstate the Courtyard as it existed
    after the repairs to the garage.  The motion judge also provided that [i]f
    the parties require supplemental reasons, they are to contact me.  I will
    refer to this decision as the 2011 Endorsement because, for reasons that will
    later be explained, no order reflecting this endorsement was issued and
    entered.

[22]

In
    subsequent reasons, the motion judge awarded the Respondents their costs fixed
    on a substantial indemnity basis in the amount of $32,515.84. The motion judge
    ordered the Individual Appellants to personally pay $12,000, being his
    assessment of the portion of the costs related to the motion to enforce the
    settlement.

[23]

The
    restoration of the Podium proceeded.  However, various aspects of the work
    differed from the Original Design. In September 2011, one of the Respondents
    wrote to the Individual Appellants reminding them of the Appellants court-ordered
    obligation to restore the Podium to the Original Design.

[24]

The
    restoration work that resumed in the spring of 2012 revealed additional
    deviations from the Original Design.  These changes included features found in
    the Artistic Design, including a new street sign, a differently designed
    traffic circle containing a new lamp post, and a round instead of hexagonal
    centre planter area.  The Respondents again complained but the Individual
    Appellants continued to forge ahead with work that, in various ways, reflected
    their own views (incorporating some components of the Artistic Design) of how
    the Podium should be restored.  For example, different pavers were used in the
    traffic circle, different planters were installed and different types of
    vegetation were planted.

[25]

The
    Respondents retained counsel who approached the Appellants about a possible
    resolution of the dispute.  The Individual Appellants resisted, prompting
    counsel for the Respondents to advise the Appellants, by letter dated June 8,
    2012, that he had instructions to proceed with a motion for contempt. It was at
    this point that the Appellants sought legal advice.

[26]

On
    July 4, 2012, counsel for the Appellants wrote to counsel for the Respondents
    and attempted to justify the deviations from the Original Design. For example,
    counsel for the Appellants explained that the alterations to the turning circle
    were necessary to comply with municipal by-laws, the differences in the planter
    boxes were necessary to prevent water damage to the parking garage and exterior
    walls, and the newly designed address sign was necessary as the old sign had
    been damaged in the construction work and the new design was more visible from
    the street.

[27]

The
    Respondents proceeded with their motion for contempt and, to that end, sought
    to issue and enter the order arising out of the 2011 Endorsement.  The
    Appellants refused to approve the draft order on the basis that it was
    impossible for CCC 145 to reinstate the courtyard landscape  to the
    configuration and appearance that existed prior to the commencement of the
    repairs to the garage once such repairs have been completed.  Counsel for the
    Appellants requested that counsel for the Respondents seek an appointment with
    Beaudoin J. to discuss[] and resolve[] the impossibility of his order.
    Counsel for the Respondents took the position that it was too late for [the
    Appellants] to attempt to retroactively tweak the language of the order in
    order to cure [their] obvious breach.

[28]

The
    Respondents moved, again before Beaudoin J., to settle the terms of the order,
    for an order holding the Appellants  in contempt of the June 2011 Endorsement,
    and for related relief.


THE REASONS

(1)

Preliminary Argument as to Jurisdiction

[29]

The
    motion judge rejected the Appellants initial technical argument that since no
    order had been taken out to give effect to his 2011 Endorsement, there was no
    basis upon which to find contempt and therefore the motion could not proceed.
    The motion judge held, relying on rule 59.03(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194 and Jeffrey Miller,
The Law of
    Contempt in Canada
(Toronto: Carswell, 1997) (Miller), at p. 88, that an
    order exists from the time it is made and therefore conduct in violation of an
    order is contempt whether the order is issued and entered or not. The motion
    judge also noted that the Appellants were responsible for the fact that the
    order had not been issued and entered.

(2)

Contempt - Liability

[30]

After
    reviewing the history of the matter, of which he was, for obvious reasons,
    well-aware, the motion judge observed that the Appellants failure to rebuild
    the Podium as directed in his 2011 Endorsement, was not seriously in dispute.

[31]

The
    motion judge, at para. 13, referred to the photographs filed as exhibits, 
    acknowledged that new planting materials cannot be expected to replace the
    mature vegetation that existed prior to reconstruction, and found the
    following changes to be evident:

The traffic circle

The prior traffic circle consisted of seven modular
    hexagonal-shaped concrete planters, made of exposed aggregate concrete. The new
    traffic circle is different in terms of shape, size and colour and its facade
    consists of limestone veneer. A lamp post was installed in the center of the
    courtyard where none ever existed before. The Artistic Design provided for the
    replacement of the hexagonal-shaped traffic circle with a round one, covered
    with lime stone veneer, similar to what has been installed.

The removal of trapezoidal-shaped
    planters and significant reduction of the vegetation

The previous configuration presented three distinct
    transitional levels of vegetation around the property (at street level, in
    trapezoidal-shaped planters and in the brick planters). The former
    trapezoidal-shaped peripheral concrete planters had been replaced with
    different, much smaller rectangular standalone planters. They are different in
    shape and size and hold significantly less vegetation. There is no longer any
    vegetation at the street level, and there is significantly more interlock
    pavement on Queen and Albert Streets. These changes are the most dramatic in
    terms of the appearance of the courtyard and podium. The vegetation differs
    substantially in colour, shape, quantity, size and species from the prior
    design. This new configuration resembles the Artistic Design.

The address sign

The prior address sign was a copper-on-black metal and glass
    neon sign that sat above the brick wall. It was featured in the Corporation's
    letterhead. The new sign is a white-on-black sandstone sign that is embedded
    into the brick wall. This was also an element of the Artistic Design.

[32]

The
    motion judge then analyzed whether the Respondents had proven each element of
    the three-part test for civil contempt; namely, that (a) the order that is said
    to have been breached must be clear and unequivocal; (b) the party who is
    alleged to have breached the order must be found to have done so deliberately;
    and (c) the evidence must prove contempt beyond a reasonable doubt:
Prescott-Russell
    Services for Children and Adults v. G. (N.)
(2006), 82 O.R. (3d) 686
    (C.A.).

[33]

The
    motion judge first considered the Appellants argument that the Respondents
    could not satisfy the first part of the test as the 2011 Endorsement was
    unclear in two respects - whether it applied only to the Courtyard or to the
    entire Podium area and whether it applied only to hard landscaping" 
    meaning the construction materials used in landscape design, or to soft landscaping,
    meaning vegetation, as well.  Relying on
Sweda Farms Ltd. (c.o.b. Best
    Choice Eggs) v. Ontario Egg Producers
, 2011 ONSC 3650, affirmed, 2012 ONCA
    337,  leave denied, [2012] S.C.C.A. No. 291, and
Power v. Jackman
,
    2008 NSSC 389, 278 N.S.R. (2d) 31, the motion judge allowed that the
    interpretation of a court order should be approached contextually with a view
    to achieving the orders objective.

[34]

With
    this approach in mind, the motion judge noted that at all times, both before
    and after the commencement of litigation, the parties had treated the issue as
    being over the design, including the vegetation, of the entire exterior  the
    Podium. The motion judge observed that the wording in various documents
    attributable to the Individual Appellants  such as the notice of the June 22,
    2011 Special Owners Meeting, the proxy on the proposed Podium reinstatement
    plan, Mr. Litchinskys evidence in his cross-examination and the contents of
    the condominiums newsletter of September 7, 2011, describe the dispute as
    involving the design of the Podium.

[35]

The
    motion judge also observed that he had provided in his 2011 Endorsement that if
    the parties needed clarification, they should contact him.   The Appellants had
    plenty of time, including during the costs hearing, to seek clarification if
    they genuinely believed the decision was unclear.  The Appellants did not avail
    themselves of that opportunity.

[36]

Against
    this background, the motion judge concluded at para. 31:

The parties' obligations pursuant to the Decision were clear
    and unequivocal: submit the podium configuration to a vote and, absent a 2/3
    vote in support of the Artistic Design, the podium was to remain in its prior
    configuration and appearance. The [Appellants] lost that vote and tried to
    avoid the enforcement of the Minutes of Settlement. Having lost that decision
    when I addressed the issue of costs on February 24, 2012, the parties made no
    distinctions between the inner courtyard and the podium. The [Appellants] knew
    what [they] had to do.

[37]

The
    motion judge then turned to the second part of the test for contempt and held
    that the Appellants had breached the 2011 Endorsement wilfully and
    deliberately.  He found the evidence of the wilfulness of the breach to be
    strong  the Individual Appellants had, in fact, admitted that their actions
    were deliberate when they offered various explanations for why they deviated
    from the Original Design  explanations such as those contained in the
    affidavit sworn by Mr. Litchinsky, the president of the Board of Directors of CCC
    145, in his affidavit of October 4, 2012.

·

The access ramp part of the Courtyard needed to be widened to
    conform to accessibility regulations. He explained that the old turning circle
    had been damaged in a fire at the off-site storage facility where it was housed
    during the repairs, requiring creation of a new turning circle. The new turning
    circle had to conform to zoning bylaws, resulting in a somewhat different
    design.

·

The planter design had to be modified to prevent water damage to
    the Podium, and to dissuade homeless people from entering the courtyard and
    sleeping in plant material at street level.

·

The lighting arrangement in the Courtyard had to be modified to
    improve visibility and security for those entering and exiting the condominium
    complex.

[38]

The
    motion judge rejected the Appellants arguments that restoring the Podium to
    the Original Design was impossible and/or ill-advised.    He accepted the
    evidence of the Respondents experts, which was not contradicted by any other
    expert evidence.

[39]

In
    any event, relying on authorities such as
Sussex Group Ltd. v. 3933938
    Canada Inc. (c.o.b. Global Export Consulting)
(2003), 124 A.C.W.S. (3d)
    274 (Ont. S.C.)
(Sussex), Miller, and Garley v. Gabai-Maiato
, 2006
    ONCJ 28, the motion judge held that in circumstances in which the underlying
    order is considered  ineffective, the appropriate course of action is not
    disobedience.  The appropriate course of action is either to move for
    directions as soon as the problem becomes apparent, as the motion judge had expressly
    invited the parties to do, or appeal.  The Appellants did neither.

[40]

The
    motion judge also rejected the Individual Appellants independent arguments in
    defence of the contempt finding against them. These arguments were based on s.
    37, 97 and 17 of the Act, which set out some of the powers and duties of
    condominium corporation directors.  Section 17(1) empowers the corporation to
    manage the property and assetson behalf of the owners. Section 37(1)
    requires a director, while carrying out his or her responsibility pursuant to
    s. 17(1), to act honestly and in good faith and exercise the care diligence and
    skill of a prudent person in like circumstances. Section 37(3)(b) excuses a
    director from liability for breach of a duty if the breach arises as a result
    of the directors reliance in good faith on a professional opinion. Section
    97(2)(b) establishes that the board may make alterations to the common elements
    without notice to the owners where necessary to ensure the safety or security
    of persons using the property.

[41]

The
    Individual Appellants argued that they had conducted themselves honestly and in
    good faith and exercised the care diligence and skill of a prudent person in
    like circumstances.

[42]

The
    motion judge disagreed.  He summarized the Appellants conduct in para. 48 of
    his reasons, as follows:

I conclude that the [Appellants] acted neither honestly and in
    good faith, nor as a reasonably prudent person. In the spring of 2011, the
    parties disagreed as to whether the proposed Artistic Design constituted a
    substantial change requiring a 66 2/3 percent vote from the owners. When faced
    with an injunction that stopped them from proceeding with their meeting and
    from demolishing the podium, the [Appellants] entered into Minutes of
    Settlement by way of which they would submit the question of the reinstatement
    of the entire [P]odium to a 66 2/3 percent vote of approval by the owners. When
    the [Appellants] lost the vote, they immediately denied there was an agreement
    forcing the [Respondents] to bring a motion to enforce the Minutes of
    Settlement. The [Appellants] lost that motion and I ordered that the vote to
    reinstate the existing podium be respected. When, according to the [Appellants]
    themselves, it became apparent that the parties disagreed as to what needed to
    be reinstated, the [Appellants] chose not to communicate with the [Respondents]
    or with their lawyer, nor to seek directions from the court despite my
    invitation to do so. The [Appellants] adopted a narrow and self-serving
    interpretation of my order and chose to reinstate elements that they preferred,
    despite the decision of this Court.

[43]

The
    motion judge concluded that the fact that experts had prepared the Artistic
    Design did not afford the Appellants with a defence pursuant to s. 37(3)(b).
    The conduct in issue was the breach of the court order, not the merit of the
    Artistic Design.  There was no expert upon whom the Appellants relied to inform
    their decision to disobey the 2011 Endorsement.

[44]

The
    motion judge also held that the Appellants could not rely on s. 97(2)(b) of the
    Act as the record did not support a finding that safety or security issues
    justified any of the deviations from the Original Design.

[45]

Finally,
    the motion judge concluded that, since the impugned decisions involved
    violation of a court order, the Individual Appellants conduct was not
    authorized by s. 17(1).  As the motion judge observed, at para. 55, [t]o grant
    the deference sought by the [Individual Appellants] would be to allow Boards to
    disregard court orders, regulations and legislation.

[46]

The
    motion judge therefore found the Appellants to be in contempt of his 2011
    Endorsement.

(3)

The Remedy

[47]

After
    concluding that the Respondents had proven beyond a reasonable doubt that the
    Appellants were in contempt of the 2011 Endorsement, the motion judge turned to
    the issue of remedy.  He acknowledged the wide range of remedies available
    under rule 60.11(5) of the
Rules of Civil Procedure
and noted that
    rule 60.11(6) expressly provides that: [w]here a corporation is in contempt,
    the judge may also make an order under subrule (5) against any officer or
    director of the corporation

[48]

The
    motion judge held that, given the nature of the Individual Appellants conduct
    that caused CCC 145 to be in contempt of the 2011 Endorsement, an order pursuant
    to rule 60.11(6) was appropriate. He stated, at para. 56 of his reasons, that
    the Individual Appellants took a narrow and self-serving view of the courts
    order, and [failed] to seek advice from their counsel or further direction from
    the court before going ahead with their reinstatement plan.  The motion judge,
    relying on Sussex, at paras. 56-57, concluded that the Individual Appellants
    were personally in contempt.

[49]

The
    remedy the motion judge imposed on the Appellants was compliance with his 2011
    Endorsement to the extent that it ordered them to restore the Podium to the
    Original Design.  The motion judge went further and set out the specific steps
    necessary to give effect to this part of the endorsement.

[50]

The
    motion judge then dealt with the financial impact of the contemptuous conduct. 
    He singled out the Individual Appellants to personally bear the costs of
    restoring the Podium to the Original Design, reasoning at para. 56, as follows:

If the [Individual Appellants] were not held accountable for their
    contempt, the result would be to impose on all of the owners, through their
    common element fees, all of the costs of the work to be redone. Section 37(1)
    of the Act is of limited application. Directors of a Condominium Board of
    Directors can be held personally liable for their actions when they do not act
    honestly or in good faith, or when they fail to exercise the care, diligence
    and skill that a reasonably prudent person would exercise in comparable
    circumstances. I have already concluded that the [Individual Appellants] did
    not act in good faith and by taking a narrow and self-serving view of the
    court's order, and by failing to seek advice from their counsel or further
    direction from the court before going ahead with their reinstatement plan, the [Individual
    Appellants] did not exercise the care, diligence and skill of a reasonable
    person.

ISSUES

[51]

The
    Appellants raise the following issues in this appeal:

(i)      The motion judge erred by concluding that the terms of
    his 2011 Endorsement were sufficiently clear and unequivocal to justify a
    finding of contempt.

(ii)      The terms of the Contempt Order are overbroad because
    they order the Appellants to undertake repairs that go beyond the scope of
    repairs required in the 2011 Endorsement.

(iii)     The terms of the Contempt Order are incapable of
    performance.

[52]

The
    Individual Appellants also separately appeal the sanction.  They submit that
    the motion judge erred by ordering them to personally pay the cost of restoring
    the Podium to the Original Design.

ANALYSIS

A.

LIABILITY

(1)

Did the motion judge err in concluding that the terms of his 2011
    Endorsement were clear and unequivocal?

[53]     For the first part of the test for contempt to
    be satisfied, the parties must clearly understand what has to be done to comply
    with the order:
Bell ExpressVu Ltd. Partnership v. Torroni
, 2009 ONCA
    85, 94 O.R. (3d) 614, at para 22.

[54]

A
    review of the jurisprudence reveals that courts tend to find an order unclear
    on one of three possible bases.

1. The order is missing an essential term about where, when or
    to whom the order applies.

2. The order employs unclear or overly broad language.

3. The external circumstances obscure the meaning of the
    order.

See, for example:
Laiken v. Carey
, 2013 ONCA
    530, 367 D.L.R. (4th) 415, at para. 48;
Culligan Ltd. v. Fettes
, 2010
    SKCA 151, 326 D.L.R. (4th) 463, at para. 21.

[55]

The
    Appellants argue before this court, as they did before the motion judge, that
    the order that they reinstate the Courtyard as it existed after the repairs to
    the garage incorporates unclear language and is therefore ambiguous. The
    problem was created by the motion judges use of the words Courtyard and
    landscaping.

[56]

The
    Appellants contend that their interpretation of the endorsement was
    reasonable.  They interpreted the word Courtyard as encompassing just the
    inner courtyard not the entire Podium, and legitimately believed that the
    motion judges reference to hard landscaping excluded soft landscaping.

[57]

The
    Appellants further submit that the motion judge himself acknowledged a degree
    of uncertainty about the clarity of his reasons by suggesting the parties may
    need to return to him for further elucidation and by resorting to parole
    evidence to explain his 2011 Endorsement.

[58]

I
    find no merit in this ground of appeal.  In my view, by submitting that the
    2011 Endorsement is unclear, the Appellants are attempting to do what Lauwers
    J. refused to allow the contemnor to do in Sweda Farms, quoting from Beaudouin
    J.A. in
Zhang c. Chau
, 229 D.L.R. (4th) 298 (Q.C.A.) at para. 32  to
    hide behind a restrictive and literal interpretation to circumvent the order
    and make a mockery of it and of the administration of justice.

[59]

I
    start by noting an unusual factor in this case  that the contempt in issue is
    defiance of a directive contained in an endorsement rather than one that has
    been formalized through an issued court order.  In my view, since the conduct
    in issue took place during a period of time when no order had been taken out in
    relation to the 2011 Endorsement, this court must assess the clarity of the
    term in issue (that the Courtyard be restored to the Original Design) in the
    context of the entire endorsement.  I find support for this proposition in the
    authorities that have arisen out of situations in which allegedly contemptuous
    conduct takes place after reasons have been released but before a formal court
    order is issued.  One such case is
Baxter Travenol Laboratories of Canada
    Ltd., v. Cutter (Canada) Ltd.
, [1983] 2 S.C.R. 388 in which, at p. 8,
    Dickson J. held that [o]nce reasons for decision have been released, any
    action which would defeat the purpose of the anticipated injunction undermines
    that which has already been given judicial approval.  Any such action subverts
    the processes of the Court and may amount to contempt of court.

[60]

In
    authorizing certain aspects of the restoration that deviated from the Original
    Design, the Appellants undermined the purpose of the 2011 Endorsement  to
    force the Appellants to restore the exterior of the condominium complex to its
    Original Design.

[61]

From
    beginning to end, the dispute, as the motion judge observed, concerned the
    entire property, including the vegetation.  As the motion judge noted [t]hat
    is why there was an issue of whether the proposed reinstatement plan
    constituted a substantial change.

[62]

The
    record reveals that the parties at no point distinguished between the Podium
    and the Courtyard.  The motion that gave rise to the 2011 Endorsement was
    brought to enforce the Minutes of Settlement that required the Artistic Design
    to be subject to the approval of a 66 and 2/3 percent vote of all owners. The
    Artistic Design covered the entire outdoor area and included both hard and soft
    landscaping.  Moreover, the minutes of the owners meeting that took place
    further to the settlement demonstrate that everyone treated the matter as an
    all or nothing situation  either the entire exterior would be returned to the
    Original Design or the Artistic Design would be implemented.  Mr. Litchinsky
    himself, in his affidavit in response to the motion to enforce the Minutes of
    Settlement, described the owners meeting of June 22, 2011, as necessary to
    determine the podium hard and soft landscaping.

[63]

The
    only reasonable interpretation of the provision in issue that the Appellants
    reinstate the Courtyard as it existed after the repairs to the garage, is
    that the Appellants were required to restore the Podium landscaping, both hard
    and soft, to its state prior to the garage repairs.  To suggest that the 2011
    Endorsement might reasonably be interpreted as limiting the Appellants
    restoration obligations to a certain limited part of the exterior of the
    complex the courtyard- and to a certain  type of landscaping, is, in my view,
    not supported by the record and not logical.

[64]

While
    interpreting the restoration provision in the context of the 2011 Endorsement
    as a whole is sufficient to satisfy me that the obligations it imposed on the
    Appellants are clear and unambiguous, I add the following.

[65]

Until
    the Appellants were advised that the Respondents were bringing a motion for
    contempt, the Appellants conducted themselves as though they had no difficulty
    understanding the 2011 Endorsement. As the motion judge noted, the Appellants
    did not seek clarification of the decision  neither during the subsequent
    costs hearing nor at any other time, despite his explicit offer that the
    parties could return to him in the event they had any questions.

[66]

Furthermore,
    when challenged about their deviations from the Original Design, the
    Appellants initial response was not to express confusion over what the 2011
    Endorsement required of them but to attempt to justify the changes they had
    authorized.

[67]

Finally,
    in refusing to approve the draft order arising from the 2011 Endorsement, the
    Appellants did not take the position that the decision was unclear.   Rather,
    they took the position that it was not possible to reinstate the landscape to
    its appearance prior to the garage repairs.

[68]

In
    any event, it is important to note that even on the basis of the Appellants
    narrow interpretation of the 2011 Endorsement, they admit to having authorized
    work in violation of that decision.  I refer to changes that were to hard
    landscaping inside the Courtyard, such as those made to the traffic circle.

[69]

The
    record supports the motion judges finding that the Appellants clearly
    understood the obligations imposed on them by the 2011 Endorsement  to restore
    the entire exterior, including both hard and soft landscaping, to the Original
    Design.  In his words, in assessing the clarity of his decision arising out of
    circumstances in which he was involved, he held that the Appellants knew what
    they had to do.

[70]

The
    motion judges interpretation of his own decision is entitled to considerable
    deference.  I see no reason to interfere with the motion judges conclusion
    that his 2011 Endorsement was clear and unambiguous.

(2)

Did the Motion Judge err in finding that the remaining parts of the test
    for contempt were met?

[71]

The
    Appellants also challenge the motion judges conclusion that the Respondents
    met the two remaining parts of the test for contempt -  that the party who is
    alleged to have breached the order must be found to have done so deliberately;
    and that the evidence must prove contempt beyond a reasonable doubt.

[72]

I
    do not find it necessary to address these submissions as they are premised on a
    finding that the 2011 Endorsement is ambiguous  a premise I have rejected.

[73]

In
    my view the motion judges finding that the Appellants wilfully violated the
    clear obligations imposed on them under the terms of the 2011 Endorsement is
    unassailable.

(3)

Notwithstanding the 2011 Endorsement did the Appellants  have authority
    under the Act to deviate from the Original Design?

[74]

The
    Individual Appellants submit that the motion judge erred by failing to take
    into account various powers they, collectively as the Board, had under the Act.
    Specifically, the Individual Appellants argue that their statutory authority
    under s. 97 of the Act to make non-substantial changes and repairs to the
    common elements, cannot be displaced by court order.  They contend that they
    respected the 2011 Endorsement by not implementing the Artistic Design.  Beyond
    that, the Individual Appellants maintain that, as a Board, they had authority
    to authorize deviations from the Original Design - such as adding a lamppost,
    installing a different entrance sign, altering the turning circle by using
    limestone instead of concrete pavers, installing rectangular instead of
    trapezoidal planters, and planting different vegetation - as these items did
    not individually amount to substantial changes to the common elements.

[75]

I
    would not give effect to this argument essentially for the reasons set out
    above.  I have concluded that the 2011 Endorsement mandated the restoration of
    the exterior of the complex to its Original Design.  While the Individual
    Appellants authority, as a Board, to manage the common elements in accordance
    with the Act was otherwise unfettered, they had to comply with the 2011
    Endorsement.  That decision was clear.  It obligated the Appellants to restore
    the Podium to the Original Design.

B.

PENALTY

[76]

The
    motion judge, at para 57, found the Appellants to be in contempt of his 2011
    Endorsement.  There are two parts to that decision.  First, the motion judge
    explicitly ordered the Appellants to restore the Podium to the Original
    Design.  Second, since the motion judge made no mention of the financial
    obligations associated with the restoration costs, it was implicit in the
    endorsement that the costs would be borne by the condominium owners.

[77]

The
    sanction the motion judge imposed in his Contempt Order focused on securing
    performance of his 2011 Endorsement. The motion judge ordered the Appellants to
    return the landscape of the complex to the configuration and appearance in
    place prior to the 2011 demolition and provided details of what that would
    entail.  He also ordered the Individual Appellants to personally bear the
    costs.

[78]

The
    motion judges determination of the appropriate penalty for contempt must be
    given considerable deference. The role of an appellate court in reviewing a
    sentence for contempt should be limited to intervening only where there has
    been an error in principle in arriving at the sentence or the sentence is
    clearly unfit. See:
British Columbia Forest Products Ltd. v. Lawson
,
    [1988] B.C.J. No. 1619 (C.A.), per McLachlin J.A. (Chrs).

[79]

The
    purpose of a penalty for civil contempt is to enforce compliance with a court
    order and to ensure societal respect for the courts:
Vidéotron Ltée v.
    Industries Microlec Produits Électroniques Inc.,
[1992] 2 S.C.R. 1065, at
    1075.  The remedy for civil contempt is designed not only to enforce the rights
    of a private party (See:
Poje v. Attorney General (B.C.)
, [1953] 1
    S.C.R. 516 at 517;
Frontenac Ventures Corp. v. Ardoch Algonquin First
    Nation
, 2008 ONCA 534, 91 O.R. (3d) 1, at para. 37), but also to enforce
    the efficacy of the process of the court itself.  Justice McLachlin  powerfully
    expressed this broader purpose in
United Nurses of Alberta v. Alberta
    (Attorney General)
, [1992] 1 S.C.R. 901 at 931, stating:

[t]he rule of law is directly dependent on the ability of the
    courts to enforce their process and maintain their dignity and respect. To
    maintain their process and respect, courts since the 12th century have
    exercised the power to punish for contempt of court.

[80]

It
    is in the light of these two objectives - enforcing the rights of parties and
    respecting and preserving the process of the court, that I turn to the issue of
    remedy in the circumstances of this case.

(1)

The Order that the Appellants Restore the Podium to the Original Design

[81]

First,
    I observe that the order requiring the Appellants to restore the Podium to the
    Original Design was actually not necessary.  The motion judge had mandated that
    in his 2011 Endorsement and that decision was not appealed.

[82]

The
    only arguments the Appellants advance in relation to this aspect of the remedy
    are as follows.

[83]

First,
    they submit that the motion judge exceeded his jurisdiction in his Contempt
    Order by ordering completion of restoration work that was outside the scope of
    the 2011 Endorsement  since the Order directed work to be performed that went
    beyond the hard landscaping and Courtyard referred to in the decision.

[84]

The
    primary reason why, in my view, this argument must fail is that I have
    concluded that the 2011 Endorsement covers the entire Podium and includes both
    hard and soft landscaping.

[85]

Moreover,
    the Appellants, in their response to the contempt motion, asked the motion
    judge to provide very specific directions about the steps [they were] required
    to take to correct the situation.  The motion judge did exactly that.  And he
    had the jurisdiction under rule 60.11 (5) to do so.

[86]

Second,
    the Appellants argue that the Contempt Order includes a requirement that the
    motion judge explicitly acknowledged was incapable of performance.  The
    Appellants refer to the order that they "[r]einstate the three-levelled
    [sic] vegetation, using the same kind, species, size and quantity on multiple
    level, including the grade-level vegetation which has now been replaced with
    interlocking pavement, as it existed prior to the 2011 demolition."  The
    difficulty, the Appellants submit, arises out of the motion judges
    recognition, at para. 13 of his reasons, that it is obvious that new planting
    materials cannot be expected to replace the mature vegetation that existed
    prior to the reconstruction. The Appellants take this statement as an
    acknowledgement of the impossibility of reinstating the vegetation to its
    precise form in the Original Design.

[87]

I
    reject this argument.  No one realistically expected that compliance with the
    2011 Endorsement would require restoring the exterior of the complex to the
    identical state it was in just prior to the commencement of the garage
    repairs.  Everyone understood that the decision required the Appellants to use
    judgment and common sense and, to the extent reasonably feasible, restore the
    landscaping to the Original Design.  I note that the motion judge, both in his
    2011 Endorsement and in his contempt reasons, referred to the Appellants
    awareness that restoring the Podium to the Original Design would involve using
    materials that were the closest match.

[88]

In
    my view, the Contempt Order did not mandate the Appellants to perform the
    impossible. And, as previously indicated, in circumstances in which compliance
    with an order is impossible, the remedy is to appeal, not ignore the order.

[89]

As
    previously noted, rule 60.11(5), which expressly permits the court to make any
    order as is just, gives the court broad powers in responding to a finding of
    contempt.  The motion judge had authority to order the Podium to be restored to
    the Original Design.  I see no reason to interfere with this aspect of the
    remedy.

(2)

A Fit Sentence

[90]

The
    following are the factors relevant to a determination of an appropriate
    sentence for civil contempt:

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.

Echostar Communications Corp. v. Rodgers
, 2010
    ONSC 2164;
Sussex Group Ltd. v. Fangeat
, [2003] O.J. No. 3348, [2003]
    O.T.C. 781 at para. 67 (Ont. S.C.);
Builders Energy Services Ltd. v.
    Paddock
, 2009 ABCA 153, at para. 13. Megill, at pp. 7-8.

(i)

Proportionality

[91]

The
    principle of proportionality requires that the punishment fit the wrongdoing:
York
    (Regional Municipality) v. Schmidt
, [2008] O.J. No. 4915 (S.C.), at para.
    16. As Jeffrey Miller wrote in his leading textbook
The Law of Contempt in
    Canada
(Toronto: Carswell, 1997), at p. 131: [t]he fundamental principle
    in all sentencing, including sentencing for contempt, is that the sentence must
    be commensurate with or fitted to the gravity of the offence.

[92]

In
    order to put the Individual Appellants conduct into context it is important to
    recall how this dispute began.  The Podium needed to be restored once the
    garage repairs had been completed.   A landscape architect was retained to
    provide expert assistance.  The Appellants received a proposal, the Artistic
    Design, and, for legitimate reasons, preferred it.

[93]

As
    previously set out, the Appellants took appropriate steps to give the
    condominium owners full opportunity to examine, and provide feedback, on the
    Artistic Design.

[94]

The
    proposal was not embraced by all owners.  The Respondents took a stand in
    favour of restoring the Podium to the Original Design.  The settlement the
    parties entered into soon after the dispute arose demonstrates that, at least
    to that point, the Individual Appellants were prepared to cooperate.  The
    Individual Appellants did not give in happily.  That much is clear.  But they
    did agree to proceed on the basis proposed by the Respondents.

[95]

When
    the Artistic Design did not receive the support of 66 and 2/3rds percent of the
    owners, the Individual Appellants started to veer off course.  In my view they
    were ill-advised to question the settlement.  As a result, they found
    themselves faced with the 2011 Endorsement.

[96]

At
    this point the Individual Appellants conduct went from ill-advised to
    contemptuous.  They authorized landscaping work in deliberate defiance of the
    clear intent of the 2011 Endorsement.  The Individual Appellants ignored
    communication from the Respondents reminding them of their court-ordered
    obligations.  Stubbornly, they continued to try to have their own way. 
    Recklessly, they continued to add aspects of the Artistic Design to the
    newly-created Podium.  Even after Respondents counsel contacted the Individual
    Appellants with a view to persuading them to honour their obligations under the
    endorsement, they persisted in their contemptuous conduct.

[97]

Clearly,
    the Individual Appellants thought they knew what was best for CCC 145. Before
    the motion judge and this court they attempt to justify their conduct by
    pointing to evidence that their decisions were made in the best interests of
    the owners.  They say that there is less risk that the new planters will leak. 
    The driving circle is more manoeuvrable. The street sign is more visible. The
    costs of installation and maintenance of the landscaping, in general, are less.

[98]

The
    evidence may support these arguments.  However, the law does not.  As
    well-intentioned as the Individual Appellants may have been, demonstrating that
    their contemptuous conduct is in the best interests of CCC 145 is no defence.
    See, for example
1984 Enterprises Inc. v. Strider Resources Ltd.,
2013
    MBCA 100, 25 C.L.R. (4th) 219, at para. 54.

[99]

I
    summarize my view of the gravity of the Individual Appellants conduct as
    follows.

[100]

After having
    obtained and accepted a recommendation by experts as to the optimal landscaping
    design, the Individual Appellants simply could not accept being put in a
    position in which they had to implement a design they believed was not optimal
    for the condominium owners.  They therefore took matters into their own hands
    and, albeit for reasons they considered valid, defied a court order. The
    Individual Appellants arrogance led them to reckless and ultimately unlawful
    conduct.

[101]

Any contempt is
    serious.  This is no exception.  However, in my view, the Individual
    Appellants contemptuous conduct must be considered in the light of the fact
    that there is no evidence that it was motivated by personal gain, vengeance or
    any reason other than that they felt they knew best.

(ii)

Mitigating and Aggravating factors

[102]

In terms of
    mitigating factors, I note that there is no evidence that the Individual
    Appellants had previously defied any court order.

[103]

I consider as
    aggravating the Individual Appellants unremitting intransigence in conducting
    themselves in defiance of the 2011 Endorsement. They were simply unable to
    understand that their belief in the wisdom of following the Artistic Design and
    then their belief that they could get away with acting on that conviction would
    put them in breach of court-imposed and statutory obligations.

[104]

In addition, I
    consider the Individual Appellants failure to seek legal advice until they
    were told about a pending motion for contempt, as an aggravating factor.   
    They could and should have retained counsel as soon as the Individual
    Appellants opposed the Artistic Design.

(iii)

Deterrence

[105]

As set out
    above, deterrence, specific and general, is the most important objective of a
    contempt penalty.  Justice Quinn, in Niagara (Municipality), expressed the
    purpose of sentencing in contempt proceedings  as follows:

The primary purpose of sentencing in contempt proceedings is
    deterrence: both general and specific. The punishment for contempt 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.

See also:
Cornwall (Public Inquiry) v. Dunlop
    (2008)
, 290 D.L.R. (4th) 699 (Ont. S.C.) at para. 48;
Tilco Plastics
    Ltd. v. Skurjat et al.
(1966), 57 D.L.R. (2d) 596 (Ont. H.C.), affirmed
    [1967] 1 O.R. 609 (C.A.), leave to appeal to S.C.C. refused [1967] 1 O.R. 609.

[106]

In considering
    the issue of deterrence in the unique circumstances of this case, context is of
    particular importance.  This case engages the broader issue of the governance
    needs of condominium corporations.

[107]

The Individual
    Appellants are volunteer board members of a not-for-profit corporation.  It is
    clear that the penalty imposed in response to conduct that defies the authority
    of the court must be sufficient to deter those involved and other similarly
    situated individuals from like conduct. However, in the condominium context,
    the penalty should not be so onerous that it deters unit owners from serving on
    condominium boards.  Owners who voluntarily assume the often onerous and
    thankless duties as directors of condominium corporations are essential to the
    functioning of a growing residential population  those who live in
    condominiums.

(iv)

Range of Sentences

[108]

The Individual
    Appellants correctly point out in their factum that, in general, awards for
    civil contempt in Canada range between $1,500 and $5,000.  In
Chiang
    (Trustee of) v. Chiang
, [2007] O.J. No. 1409; partially rev'd on other
    grounds 2009 ONCA 3, at para. 20, this court observed that custodial sentences
    are rare and that Canadian courts tend to be lenient in their contempt
    sentences. Even in cases where contempt has involved the loss or misuse of
    substantial amounts of money, the fines imposed on individuals have remained
    low. See, for example
Chicago Blower Co. v. 141209 Canada Ltd. and
    Transregent Holdings Ltd. et al.
(1987), 44 Man.R. (2d) 241 (C.A);
Baxter
    Travenol Laboratories of Canada, Ltd. v. Cutter (Canada) Ltd.
, [1987] 2
    F.C. 557 (C.A.).

[109]

The few
    instances in which fines have been imposed at $100,000 or higher have been
    against unions with large membership (See:
British Columbia (Health
    Employers Assn.) v. Facilities Subsector Bargaining Assn.
, 2004 BCSC 762;
United
    Nurses of Alberta v. Attorney-General of Alberta
, [1992] 1 S.C.R. 901) or
    against large corporations in egregious circumstances (
Apotex Fermentation
    v. Novopharm
). It should be noted that in
Apotex
, the corporate
    entity of Novopharm had its fine reduced to $100,000 on appeal and no
    individual contemnor (the officers of the corporation) was fined more than
    $10,000.

[110]

Significant
    fines have been imposed only in particularly egregious cases and/or where the
    contemptuous conduct was motivated by personal gain (See, for example:
Imax
    Corp. v. Trotum Systems Inc.
, 2013 ONSC 743 at paras. 12-14 (fine of
    $50,000).)

[111]

However, I also
    note the observation of Brown J. in
Mercedes-Benz Financial v. Kovacevic,
[2009] O.J. No. 888, that some recent decisions in this province have shown a
    willingness to impose more substantial penalties for contempt, particularly in
    cases in which there has been a lengthy course of disobedience and where the
    contemnors have not purged their contempt.

[112]

In the end, the
    sentence imposed must be reasonable.

(3)

The Fitness of the Order made

[113]

Before
    addressing the merits of the financial penalty imposed by the motion judges
    sanction, I will first deal with two preliminary matters: 1) the Individual
    Appellants motion to adduce fresh evidence, and 2) issues resulting from the
    procedure followed at the contempt hearing.

(i)

The Fresh Evidence Motion

[114]

The Individual
    Appellants proposed fresh evidence provides specific information about the
    financial burden that paying the restoration costs would impose on each of
    them.  The proposed evidence estimates the cost of restoring the Podium from
    the state it was in at the time of the contempt hearing back to the Original
    Design to be in excess of $350,000.

[115]

The criteria for
    the admission of fresh evidence on appeal are well-established. The evidence:
    1) should not be admitted if, by due diligence, it could have been adduced at
    trial; 2) must be relevant in that it bears upon a decisive or potentially decisive
    issue; 3) must be credible in that it is reasonably capable of belief; and 4)
    must be such that if believed, it could reasonably be expected to have affected
    the result:
R. v. Palmer
(1979) 50 C.C.C. (2d) 193 (S.C.C.) at p. 205.

[116]

I find it
    unnecessary to deal with the first three
Palmer
criteria, as, in my
    view, the motion fails on the fourth ground.

[117]

The cost of
    restoring the Podium to the Original Design is relevant to the penalty part of
    the Contempt Order.  It puts the financial impact on the Individual Appellants
    in sharp focus.  However, the motion judge did not order the Individual
    Appellants to pay the restoration costs, unaware of the magnitude of the burden
    of his order. In the course of the hearing of the contempt motion, it was
    understood that the restoration costs would be in the range of several hundred
    thousand dollars.  I do not accept the Individual Appellants argument that had
    the motion judge known the size of the financial penalty [he] would never
    have made the order he did. In my view, the detailed estimates the Individual
    Appellants now seek to put before this court add nothing but specific
    evidentiary support for information of which the motion judge was aware when he
    made the order he did.

[118]

It follows that,
    in my view, the proposed fresh evidence could not reasonably be expected to
    have altered the motion judges decision to order the Individual Appellants to
    pay the restoration costs.

[119]

I would
    therefore dismiss the motion to adduce this fresh evidence.

(ii)

The Conduct of the Contempt Hearing

[120]

I make several
    observations about the procedure followed at the hearing.

[121]

There is no
    formally mandated process for contempt proceedings.  The procedure followed may
    vary.  However, contempt proceedings typically have two stages  the liability
    hearing and a subsequent hearing to determine penalty:
The College of
    Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses)
, 2008
    ONCA 685, 93 O.R. (3d) 139 at paras. 73-75, per Watt J.A.;
Echostar
    Communications Corp. v. Rodgers
, 2010 ONSC 2164, at paras. 34-36. If a
    contempt finding is made, the matter is adjourned to provide the contemnor an
    opportunity to purge the contempt and prepare for the sentencing portion of the
    process.  Any action undertaken by a contemnor to purge his or her contempt may
    serve as a mitigating factor in sentencing:
Echostar
, at para. 35.

[122]

There is good
    reason to bifurcate contempt hearings.  As in criminal prosecutions, in
    contempt hearings, liability and penalty are discrete issues. In a hearing in
    which liability and penalty are dealt with together, there is a risk that
    evidence relevant, material and admissible to liability, will be improperly
    applied to penalty or vice versa.
R. v. B.E.S.T. Plating Shoppe Ltd. and
    Siapas
(1987), 59 O.R. (2d) 145 (C.A.).

[123]

In this case,
    liability and penalty were combined into a single hearing.

[124]

I agree with the
    comments of Watt J.A. in
Great Glasses
where he said, at para. 74,
    that: a proceeding that considers both liability and penalty in the same
    hearing, may cause unfairness or be infected with legal error to such an extent
    to require a new hearing.   I also agree with his comments at para. 76, that
    the extent to which fairness is affected varies from case to case.

[125]

In my view,
    contempt proceedings should be bifurcated for the simple reason that
    bifurcation avoids risking the need for a new hearing.

[126]

I have come to
    the conclusion that in this case the motion judges failure to bifurcate caused
    or contributed to unfairness as; a) the evidence relevant to liability appears
    to have been considered in the penalty phase, b) the Appellants had no
    opportunity to take steps to attempt to purge their contempt, steps that may
    have been relevant to mitigation.
Great Glasses
, at para. 102, and c)
    the parties had no opportunity to prepare for the sentence hearing.

[127]

But, as Watt
    J.A. pointed out in
Great Glasses
, this error is not necessarily fatal. 
    In this case, I would not interfere with the financial aspect of the remedy on
    this basis alone.  I say this as there is no evidence that the Individual
    Appellants requested a bifurcated hearing or, at any time during the process,
    drew the problems associated with a combined hearing to the motion judges
    attention.  Moreover, the failure to bifurcate was not advanced as a ground of
    appeal.

[128]

It does,
    however, affect the degree of deference that this court should pay to the financial
    penalty the motion judge imposed.

(iii)

The Fitness of the Financial Penalty

[129]

In civil
    contempt, it is critical that the penalty respond to the conduct being
    sanctioned.  The relevant conduct is the wilful disregard of the authority of
    the court. The court must assess the seriousness of the disrespect of the
    court, not the severity of any resulting harm.

[130]

Civil contempt
    proceedings do not have and must not appear to have the function of a civil
    action in tort or for breach of contract:
Royal Bank of Canada v. Yates
    Holding Inc.
(2007), 33 C.B.R. (5th) 268, O.J. No. 2529 (Ont. S.C.), at
    para. 19. As MacKay J. stated in
Merck & Co. v. Apotex Inc.
, 2001
    FCT 589, vard 2003 FCA 234, 227 D.L.R. (4th) 106, at para. 11, [a]ny concern
    of the plaintiffs about injury to them caused by those activities ought to be
    recoverable in damages or profits claimed. The concern of the Court, in a case
    of civil contempt such as this is, must be the failure to respect the Court's
    process.

[131]

I begin with the
    purpose behind the motion judges order that the Individual Appellants pay the
    costs of restoration.

[132]

The reasoning
    behind the motion judges decision to order the Individual Appellants to pay
    the restoration costs is found in para. 56, set out above.  As I read that paragraph,
    the motion judge imposed this sanction on the basis of his view that it would
    be unfair to make the condominium owners bear the costs of the Appellants
    contempt of the 2011 Endorsement. The motion judge sought to prevent the unit
    owners from having to bear the expense associated with the incremental costs of
    changing the Podium from the amalgam of the Original Design and the Artistic
    Design, to the Original Design.  In effect, the motion judge, in sanctioning
    the Individual Appellants the way he did, focused on the costs that his
    restoration order would impose on the unit owners rather than on deterrence.  
    With respect, I am of the view that in doing so, he erred in principle.

[133]

Furthermore, the
    jurisprudence has established factors to be taking into account in deciding
    upon a fit sentence for civil contempt.  One such factor is the particular
    contemnors ability to pay lest the amount either be trivial or unduly
    punitive:
Niagara (Municipality) (Police Services Board) v. Curran
(2002), 57 O.R. (3d) 631, at para. 36. Where fines are imposed above an amount 
    necessary to reflect the public interest in the matter, an appellate court will
    be justified in intervening to reduce the amount:
Apotex Fermentation Inc.
    v. Novopharm Ltd.
(1998), 162 D.L.R. (4th) 111 (Man. C.A.), at paras.
    319-321.

[134]

Here, each
    Individual Appellant was fined approximately $100,000 without evidence that
    would have enabled the motion judge to assess the impact of having to pay such
    a significant amount of money.   The lack of evidence on this important factor
    severely interfered with the motion judges ability to assess the fitness of
    the sentence he imposed.

[135]

In the result, I
    conclude that the financial penalty imposed on the Individual Appellants was
    unfit and must be set aside, leaving it to this court to determine an
    appropriate penalty for the Individual Appellants contempt.

(iv)

A Fit Sentence

[136]

Based on my
    assessment of the gravity of the Individual Appellants contemptuous conduct
    and the mitigating and aggravating circumstances, set out above, a reasonable
    penalty that would achieve the necessary degree of deterrence, in the unique
    circumstances of this case, would be the imposition of a fine on each
    Individual Appellant of $7,500 to be paid to CCC 145.

(v)

Indemnification

[137]

The Individual
    Directors submit that, pursuant to s. 38 of the Act, CCC 145 ought to indemnify
    them for any financial penalty imposed.  Section 38 allows a condominium
    corporation to indemnify a director unless the director is adjudged to be in
    breach of the duty to act honestly and in good faith. The Individual
    Appellants, relying on
Bennett v. Bennett Environmental Inc.
, 2009
    ONCA 198, argue that the motion judge erred in concluding that they were not
    entitled to be indemnified.

[138]

I do not agree.

[139]

First, in
Bennett,
this court dealt with the issue of indemnification in an entirely different
    context - proceedings before the Ontario Securities Commission to which
    entirely different statutory language applied.
Bennett
has no
    application to this case.

[140]

Second, the
    motion judges adjudication that the Individual Appellants failed to act in
    good faith is unassailable.  How could their deliberate violation of a clear
    court order be accurately described other than as a failure to act in good
    faith?

CONCLUSION

[141]

This is a particularly
    unfortunate case.  I say this because if the Appellants had sought legal advice
    at the first sign of a dispute, needless consumption of time and money and
    needless acrimony could have been avoided.  Certainly, the use of the blunt
    instrument of contempt would not have been necessary.

[142]

The Individual
    Appellants, well-intentioned as they were, made the mistake not only of failing
    to retain counsel until it was too late but also of over-stepping their
    bounds.  They appeared not to appreciate that in doing so they breached their
    obligations to act in the best interests of CCC 145.

[143]

Of more
    significance, they appeared not to appreciate the serious implications of
    breaching a court order.  These implications have been forcefully described
    many times.  The rule of law requires that courts maintain their dignity and
    respect. Simply put, it comes to this.  To maintain respect, courts must
    enforce their process.  If court orders can be ignored, our system of justice,
    the foundation of our society, breaks down.

DISPOSITION

[144]

For these
    reasons, I would dismiss the appeal from the contempt finding.

[145]

I would allow,
    in part, the appeal as to penalty.  I would not interfere with the order that
    the Podium be restored to the Original Design but would set aside the order
    that the Individual Appellants pay the costs of the restoration and replace it
    with an order that each Individual Appellant pay a fine in the amount of $7,500
    to the credit of CCC 145.

[146]

This disposition
    would result in the following.  The order that the Appellants restore the
    Podium to the Original Design would remain in effect.  The current board of
    directors must guide CCC 145s compliance with that directive.  CCC 145 has
    $30,000 to apply toward the costs of compliance.

[147]

With the flow of
    time, the movement of owners in and out of the condominium, the extended
    opportunity to live with the amalgam of the Original Design and the Artistic
    Design, the maturing landscaping, and the changed composition of the board of
    directors, the circumstances are different. I remind the parties that at any
    stage of the proceedings, even in the face of an outstanding finding of civil
    contempt, they have the power to settle their differences on their own
    terms.

[148]

I would order
    CCC 145 to pay the costs of the motion before Cronk J.A. to the Respondents,
    fixed in the amount of $2,500 including disbursements and HST.

[149]

Given the
    divided success, I would make no order as to costs of the appeal.  If the
    parties wish to make submissions concerning the costs of the contempt motion, they
    may do so in submissions not to exceed eight pages.  Any such submissions must
    be submitted to Mr. John Kromkamp within 14 days of the release of these
    reasons.

Gloria
    Epstein J.A.

I agree P.
    Lauwers J.A.




Pardu J.A. (Dissenting):

[150]

I would allow
    the appeal and set aside the motion judges contempt finding. A finding of
    contempt can be justified only if the order alleged to have been breached was
    clear and unequivocal:
Bell ExpressVu v. Torroni
, 2009 ONCA 85, 94
    O.R. (3d) 614, at para. 21. The motion judges hand written endorsement, which
    was never embodied in an issued order, included a sentence, the Board is
    required to reinstate the Courtyard as it existed after the repairs to the
    garage. This was neither clear nor unequivocal.

Contempt is a quasi-criminal matter

[151]

A finding of
    contempt is a quasi-criminal matter. A conviction for contempt places an
    individuals physical liberty in jeopardy. Contempt proceedings thus engage
    rights and interests protected by the
Canadian Charter of Rights and
    Freedoms
.

[152]

This is why the
    elements of contempt must be proven beyond a reasonable doubt. This is why it is
    not permissible in this context to rely on the factual matrix of an order to
    try and repair an order that incorporates overly broad and unclear language (
Culligan
    Canada Ltd. v. Fettes
, 2010 SKCA 151, 326 D.L.R. (4th) 463) or that
    creates too much scope for confusion (
Bell ExpressVu
, at para. 28).

[153]

When individual
    liberties are at stake, it is not enough to say that the non-compliant person
    ought to have known what the judge meant, according to the background and
    context of the dispute.

[154]

Applying the test
    for contempt in this way does not give contemnors room to finesse their way
    out of court orders.
Sweda Farms Ltd. v. Ontario Egg Producers
, 2012
    ONCA 337, illustrates how this court has addressed such finessing without
    diluting the principle that an order should be clear and unequivocal before a
    contempt order may be made.

[155]

In
Sweda
    Farms
, the appellant was ordered to transfer to a supervising solicitor
    any and all other evidence or documents in his possession. The appellant
    retained copies of documents he transferred to the solicitor, and claimed that
    this did not demonstrate contempt because the order did not prohibit him from
    retaining copies. This court noted, at para. 3, that the appellants actions
    were contrary to the plain language of the order: [i]n our view, the copies
    that the appellant retained are clearly caught within the language in the
    order: any and all other evidence or documents.

[156]

It was
    unnecessary to look to the purpose of the order, the factual matrix underlying
    the order, or any extrinsic evidence to show contempt  the order was clear and
    unequivocal, the appellant had performed an intentional act that was contrary
    to that order, and contempt had been proven beyond a reasonable doubt.

Reinstate

[157]

The first reason
    I must disagree with the motion judge is because it was not clear what the motion
    judge meant by reinstate. All the parties and the motion judge accepted that
    this word should not be interpreted literally  that it could not have meant
    that the courtyard had to be reinstated exactly as it was before the
    construction.

[158]

For example, the
    motion judge acknowledged that the pre-existing mature vegetation could not be
    reinstated in its former arrangement.

[159]

All parties
    acknowledged that an access ramp had to be widened because of new regulatory
    requirements, and that some of the original bricks were no longer available.

[160]

The Respondents acknowledged
    in argument that the order did not contemplate that the pre-existing
    arrangement would be exactly replicated: that 30 year old concrete was not to
    be replaced with 30 year old concrete, and that since materials had changed over
    the intervening years, the Appellants would of necessity have to choose new
    materials, and exercise some judgment as to what was to be substituted.

[161]

Some of the
    pre-existing outside structures had caused damage to the garage, because their
    configuration led to leaking into the garage. When these were removed, it was
    discovered that the turning circle had depressed the surface asphalt, and was
    one of the causes of water penetration into the garage. The planters outside
    the courtyard walls had been installed without a back, and abutted brick
    cladding on the exterior of the courtyard walls. They did not have any
    waterproofing that separated the garage ceiling from the elements, and were a
    major factor in the water infiltration into the garage. The motion judge could
    not have contemplated that the structures that caused leakage into the garage
    were to be re-constructed in their defective form.

[162]

The Respondents
    submit that the order should have been interpreted so as to require
    construction of the entire exterior in a way that resembled the appearance and
    configuration of the previous exterior except for less mature vegetation, even
    if different materials were used.

[163]

In
Bell
    ExpressVu
, at para. 28, this court adopted the following observation by
    Cullity J. in
Jaskhs Enterprises v. 1444707 Ontario Ltd
., [2004]
    O.T.C. 859 (S.C.), at para. 40: a failure to comply with an order of the court
    will not be contempt if there are genuine, unresolved issues between the
    parties with respect to the manner in which it is to be carried into
    operation.

[164]

It seems to me
    that there were genuine, unresolved issues between the parties as to how the
    courtyard was to be reinstated to its former state. The motion judge placed
    the Board in the position of having to make judgment calls as to how to
    implement this very general instruction. The Appellants and Respondents could
    reasonably disagree over the merits of these judgment calls.

[165]

For that reason,
    the appropriate course for the Respondents was to ask the motion judge to vary
    his order to clarify the Boards obligations  not to skip straight to contempt
    proceedings.

The Board

[166]

Secondly, I note
    that the endorsement directed the Board to reinstate the courtyard. The
    Individual Appellants were found guilty of contempt because they were board
    members.

[167]

As noted above,
    an individual not named in an order could still be found in contempt if he,
    with knowledge of its existence, contravened its terms:
Baxter
, at
    pp. 396-97. I would adopt the following summary of the law of contempt as it
    applies to directors and officers of corporations, set out in
Telus
    Mobility v. Telecommunications Workers Union
, 2002 FCT 656, 220 F.T.R. 291,
    at p. 295:

[I]ndividuals, as officers and directors of a company which has
    been held in contempt, may not be held in contempt merely because they hold
    such positions, but rather there must be either an aiding and abetting, a
    standing idly by, or a failure to take steps which failure was causative of the
    breach. Conversely, where an officer or a director does what she or he can to
    avoid the breach, yet the breach occurred without fault on the part of the
    officer or director, there can be no individual liability for contempt.

[168]

The motion judge
    did not undertake any individualized assessment of what each of the Individual
    Appellants did or did not do that made these individuals guilty of contempt.
    Three of the individuals he convicted are not mentioned by name at all in his
    judgment, outside of the title of proceedings.

[169]

This is not
    enough in a quasi-criminal context.

Courtyard

[170]

Finally, the
    motion judge did not make clear in his initial order what he meant by
    Courtyard. On the contempt motion, the motion judge indicated that he meant
    the Courtyard to encompass the entire podium, including vegetation. By Podium
    he meant the entire area outside of the residential tower, including the area
    outside the actual courtyard walls, up to the property boundary abutting the
    sidewalk.

[171]

There is some
    ambiguity as to what the Courtyard included in the initial order. On the one
    hand, the Oxford English Dictionary defines courtyard as an unroofed area
    that is completely or partially enclosed by walls or buildings: OED 2
nd
ed. revised (Oxford University Press, 2005). Based on this definition, the Courtyard
    would not include the Podium. On the other hand, the motion judges discussion
    of the Podium and Minutes of Settlement that addressed the podium might have
    indicated to a reasonable person that the Courtyard extended to the Podium.

[172]

To resolve this
    ambiguity, the motion judge drew from the factual matrix giving rise to the
    order to show that, when he said Courtyard, he was referring to the Podium.
    In doing so, he relied on principles of contract law. An examination of
    objective evidence of the context in which an agreement is made is an integral
    part of interpretation of a contract. (
Dumbrell v. The Regional Group of
    Companies Inc.
(2007), 85 O.R. (3d) 616 C.A.) Different considerations
    apply to interpretation of an order for the purposes of contempt proceedings.

[173]

As Goudge J.A.
    noted in
SeaWorld Parks & Entertainment LLC v. Marineland of Canada
    Inc.
, 2011 ONCA 616, 282 O.A.C. 339, at para. 16:

[W]here the words of a contract are clear and unambiguous,
    extrinsic evidence cannot be used to alter their meaning.  Ambiguity is
    required before that is permitted.  This factual matrix is relevant not to
    alter the meaning of clear and unambiguous language but to assist the court to
    determine the meaning of the contract against its objective contextual scene.

[174]

And, as noted in
Eli Lilly & Co. v. Novopharm Ltd
., [1998] 2 S.C.R. 129, at para.
    50, it is unnecessary to consider any extrinsic evidence at all when the document
    is clear and unambiguous on its face.

[175]

If the order was
    clear and unequivocal, it would not have been necessary for the motion judge to
    refer to extrinsic evidence to show what it meant. The fact that he had to rely
    on this evidence, in my view, indicates that his order was not clear and
    unequivocal. This is not to say that context is irrelevant to the
    interpretation of an order for the purposes of contempt proceedings. Given the
    quasi-criminal nature of the proceedings, any doubt should be resolved in
    favour of the alleged contemnor.

[176]

There is a
    principled reason not to rely on extrinsic evidence, or the subjective
    intentions of the parties named in the order, in determining whether an order
    is clear and unequivocal. Unlike a contract, which is generally binding only on
    the parties to that contract, a court order is binding on everyone, even those
    without knowledge of the facts and circumstances that gave rise to that order.
    It has been held that anyone with knowledge of [the] existence of an order,
    who contravene[s] its terms, can be convicted of civil contempt:
Baxter
    Travenol Laboratories of Canada Ltd. v. Cutter (Canada) Ltd
., [1983] 2
    S.C.R. 388, at pp. 396-97.

[177]

This holding is
    tenable only if, as a prerequisite to conviction, it is necessary that the text
    of the order, read in light of its reasons, be sufficiently clear and
    unequivocal that anyone with knowledge of that order would understand how to
    act in accordance with that order, regardless of how much or how little that
    person knows about the background facts giving rise to that order.

[178]

For this reason,
    I conclude that the motion judge erred in turning to the factual matrix
    underlying his order to show what that order meant. In doing so, he implicitly
    accepted that his order was not clear and unambiguous. He implicitly accepted
    that there is a real risk that an individual reading his order would not have
    been able to understand it in the way he felt it should have been understood
    without having access to additional information regarding the background to the
    litigation.

[179]

I note that
    there are other contexts where the factual matrix underlying an order may be
    useful. For instance, if the Respondents had asked the court to vary the motion
    judges 2011 order in order to clarify the obligations imposed on the Board, it
    would have been appropriate for the motion judge to refer to this factual
    matrix in carrying out this task: see
Doucet-Boudreau v. Nova Scotia
    (Minister of Education)
, 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 81. Such
    clarification would have ensured that, moving forward, it would be manifestly
    clear to everyone what conduct would be necessary to avoid a conviction for
    civil contempt.

Conclusion

[180]

The contempt
    power is one to be used cautiously and only as a last resort. Implicit in its
    proper exercise is the principle of least intrusive means:
St. Elizabeth
    Home Society v. Hamilton (City)
, 2008 ONCA 182, 89 O.R. (3d) 81, at para.
    41 (
per
Sharpe J.A.); see also
Re Clements
, (1877) 46 L.J.
    Ch. 375 (Eng. C.A.);
R. v. Cohn
(1984), 48 OR (2d) 65 (C.A.);
Centre
    commercial Les Rivières ltée c. Jean bleu inc
., 2012 QCCA 1663, at para.
    7;
Rocca Dickson Andreis Inc. v. Umberto Andreis
, 2013 ONSC 5508 (Div.
    Ct.), at para. 37; Law Reform Commission of Canada,
Contempt of Court:
    Working Paper No. 20
(Ottawa: Ministry of Supply and Services, 1977), at
    p. 49.

[181]

Where an order
    is open to more than one reasonable interpretation, contempt proceedings are
    not the least restrictive means of ensuring parties comply with the purpose and
    spirit of that order. To the contrary, the Supreme Court of Canada has noted
    that a less restrictive means of achieving this goal would be to vary the order
    so as to make its terms clearer:
Doucet-Boudreau
, at para. 81.

[182]

This is one of
    the reasons why our law requires that an order be clear and unequivocal
    before a court can exercise its power to convict persons for civil contempt.

[183]

In my view, the
    motion judge committed a palpable and overriding error in concluding that his
    endorsement was clear and unequivocal. The order contained no details giving
    any guidance as to the many different decisions which would have to be made in
    the course of reconstruction of the exterior landscaping and structures.

[184]

As noted above,
    the Respondents had another, less drastic means of achieving their goal:
    seeking an order varying the judges initial order so as to state more clearly
    what the Appellants were obligated to do.

[185]

For these
    reasons, a Contempt Order is not justified here, and I would set aside the
    finding of contempt.

[186]

Given my
    conclusion that the Contempt Order must be set aside, it is not necessary for
    me to address the other issues addressed by the majority.

Released: August 6, 2014 (G.E.)

G. Pardu
    J.A.





[1]
The term Special Owners Meeting has been used by the parties in their
    correspondence, and in submissions to this court and the court below. However,
    the Act, pursuant to s. 45, does not create specific types of meetings.
    Accordingly, I refer exclusively to meetings.


