



COURT OF APPEAL FOR ONTARIO

CITATION: Susin v. Susin, 2014 ONCA 733

DATE: 20141029

DOCKET: C58399

Hoy A.C.J.O., Feldman and Blair JJ.A.

BETWEEN

Dorino Susin

Moving Party (Appellant)

and

Fermino Susin

Defendant (Respondent)

Robert Klotz, for the appellant

Margaret A. Hoy, for the respondent

Heard: September 8, 2014

On appeal from the order of Justice James A. Ramsay of
    the Superior Court of Justice dated January 10, 2014.

R.A. Blair J.A.:

[1]

Dorino Susin appeals from the order of Ramsay J. declaring him in
    contempt and dismissing his request for a passing of accounts in his fathers
    estate to take place in Brampton.

The Factual Maelstrom

[2]

The Susin brothers and sisters have been squabbling over the estate of
    their late father, John Sr., since the death of their mother in 1998.

[3]

John Sr. died on December 16, 1983.  His will directed his trustees to
    permit his wife to reside in his house for life and, on her death, to sell the
    home and divide the proceeds equally among his nine children.  The residue of
    his estate he bequeathed to his wife absolutely.

[4]

After the mothers death, John Jr. claimed an equitable interest in the
    house, which is located in Niagara Falls.  The litigation and skirmishes
    spawned by that claim have kept the estate in limbo for years.  John Jr.s
    claim was decided by Turnbull J. in 2007, and John Jr. finally moved out of the
    house in June 2008.  Subsequently the house was sold for slightly more than $170,000. 
    About $80,000 remained in the estates account as of October 2013, the balance
    having been dissipated in the ongoing litigation.

[5]

The nine siblings are divided into two factions, one led by John Jr. and
    Dorino (supported by sisters Dianne, Esther and Theresa), and the other led by
    Fermino (supported by sisters Gloria, Stella and Anita).  The two factions have
    litigated, amongst other things  mostly at the instance of the John Jr./Dorino
    team  John Jr.s claim to an interest in the house; Turnbull J.s ruling on
    that claim; two proceedings in the Federal Court over mouldy papers John Jr.
    allegedly abandoned in the house; and a motion for relief based upon an
    improvident sale.  At one point the John Jr./Dorino team commenced contempt
    proceedings against Ms. Hoy, counsel for the estate and the trustees; in August
    2013 the motion was dismissed.  The John Jr./Dorino team also brought a
    repetitious series of motions seeking a change in venue from Welland or to have
    various matters dealt with elsewhere than in Welland.

[6]

Almost all the orders made against the interests of John Jr. and Dorino
    were appealed  none successfully  and there are numerous costs orders against
    them both that remain unpaid.

[7]

John Jr. was declared a vexatious litigant by Quinn J. in July 2008. 
    That order was upheld on appeal.

[8]

The venue dispute triggered the series of events leading to the present
    appeal.  The John Jr./Dorino faction objects to the estate matters being dealt
    with in Welland.  On March 29, 2010, however, Darla Wilson J. dismissed a
    motion heard in Toronto for a change in venue.  This Court quashed an attempt
    to appeal that order.

[9]

Since then, no fewer than seven Superior Court judges at different times
     in separate motions brought in Toronto, Newmarket and Brampton  have
    affirmed, in one fashion or another, that Welland is the proper venue for
    proceedings relating to the estate, including proceedings for the passing of
    accounts.  For example, in November 2012, Snowie J. ordered that all matters
    relating to John Sr.s estate be heard in Welland from [the date of the order]
    forward.

[10]

This
    did not prevent Dorino from bringing the present motion seeking a passing of
    accounts
in Brampton
.

[11]

Ferminos
    team had had enough.  They launched a cross-motion seeking to commit both
    Dorino and John Jr. for contempt of court.  They also sought an order pursuant
    to s. 140 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    declaring Dorino to be a vexatious litigant and ordering him not to commence
    any litigation against Fermino Susin or Habibur Rahman
[1]
except with leave of the court.

[12]

At
    a hearing in Welland, Ramsay J. dismissed Dorinos motion for the passing of
    accounts to be held in Brampton and allowed the cross-motion with respect to
    Dorino, finding him in contempt; he dismissed the contempt proceedings against
    John Jr.  Ramsay J. rejected a request that he recuse himself because, although
    he is not from Welland, he is a judge of the Central South Region of the
    Superior Court of Justice.

[13]

Dorino
    and John Jr. both attended and made submissions at the hearing before Ramsay J. 
    Both filed affidavits in response to the affidavit Fermino filed in support of
    the cross-motion.  Because of the vexatious litigant order against him, John
    Jr. was not allowed to make submissions on behalf of Dorino on the passing of
    accounts.  However, John Jr. made lengthy submissions in response to the
    contempt proceedings.  When asked for his submissions on that issue, Dorino
    (after a discussion with John Jr.) deferred to his brother, confining his
    remarks to the s. 140 vexatious litigant issue.

[14]

After
    dismissing the motion regarding the passing of accounts in Brampton, Ramsay J.
    found Dorino in contempt and ordered (a) that he be committed to prison for
    three days; (b) that he pay a fine to the estate in the amount of $10,000; (c) that
    he be prohibited from taking any further steps in this proceeding or in any
    proceedings to which Fermino Susin or Habibur Rahman are parties, except for an
    appeal from the present order; and (d) that he pay costs of the motions to the
    estate in the amount of $10,141.78 on a full indemnity basis.  Ramsay J.
    declined to declare Dorino a vexatious litigant.  Ramsay J. also ordered that
    no parties to any of the passings of the accounts of the estate or any related
    proceedings shall be represented by John Susin, nor shall John Susin be
amicus
    curiae
.
[2]

Discussion

[15]

Dorinos
    principal attacks on appeal related to the contempt finding and the sentence
    imposed.  As his sentence to imprisonment has been served, what the appeal from
    sentence is really about, as Mr. Klotz observed, is the $10,000 fine payable to
    the estate imposed by the motion judge.  Dorino contended as well, however,
    that the motion judge erred in failing to grant his request for an order
    directing the passing of accounts.  In oral argument, Dorino abandoned his argument
    that Brampton was the proper venue for the passing of accounts.

The Passing of Accounts

[16]

I
    see no basis for interfering with the motion judges exercise of discretion in
    refusing to order the passing of accounts at this stage.  He had two reasonable
    bases for doing so.  First, as the motion judge observed, the trustees could
    not pass the final accounts at that stage because there are still significant
    debts owing to the estate (including substantial outstanding costs awards
    against Dorino and John Jr.) and the estate was continuing to incur legal costs
    as the John Jr./Dorino team persisted in bringing further motions before the
    court. Secondly, Dorino sought a passing of accounts
to be held in Brampton
.
     The issue of venue, including the venue of the passing of accounts, had
    already been litigated repeatedly, and repeatedly Superior Court judges had
    held that the venue for dealing with matters relating to the estate was
    Welland.  This was another attempt to re-litigate the issue yet again.

[17]

I
    reject this ground of appeal.

Contempt

[18]

Mr.
    Klotz raised a number of issues on behalf of Dorino in oral argument.  The
    following need to be addressed:

a)

whether the finding of
    contempt is supported in the record;

b)

whether the contempt
    order should be set aside because Dorino was not personally served with the
    contempt cross-motion;

c)

whether the motion judge
    erred in imposing a fine of $10,000 payable to the estate as opposed to the
    province of Ontario; and

d)

whether the motion judges
    order prohibiting Dorino from taking any further steps in the proceeding or in
    any proceedings to which Fermino Susin or Habibur Rahman are parties (except
    for an appeal from his order) was too broad.

The
    Finding of Contempt

[19]

The
    motion judge dismissed the cross-motion for contempt against John Jr.  He did
    so because he was not satisfied beyond a reasonable doubt that John Jr. was
    simply putting Dorino forward as his proxy on the passing of accounts motion in
    order to avoid the consequences of the vexatious litigant order.

[20]

At
    the same time, the motion judge was satisfied beyond a reasonable doubt that
    Dorino was in contempt of court by bringing the present motion to have the
    passing of accounts heard in Brampton, having regard to the history and
    circumstances characterizing the estate litigation.  His reasons are summarized
    at paras. 14 and 15:

The trustees submit that John and Dorino are in contempt of
    court by bringing the present motion
in the context of this litigation
.
     Three times the court has pronounced that the matter must proceed in Welland.
[3]
On the last occasion a clear warning was given that misbehaving beneficiaries
    could face imprisonment if they continue their campaign of abusive motions.  In
    the face of that warning, the present motion, a fourth request to transfer the
    matter out of Welland, was brought.
In my view in the particular
    circumstances of this case this serious and repeated abuse of process rises to
    the level of contempt.  It subverts the administration of justice
by making
    ineffective the rules of procedure and basic concepts of fairness such as
res
    judicata
.

I have no doubt on the criminal standard of proof that Dorino
    Susin brought the present motion
intending to subvert the administration of
    justice, to show disrespect for the court and to harass the responding parties
.
Dorino Susins motives are purely vindictive.  He has no hope of
    recovering from the estate.  He owes the estate much more than his share of
    what remains.  I find him guilty of contempt of court.  [Emphasis added.]

[21]

The
    test for civil contempt where breach of a court order is in issue is
    three-fold: (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 wilfully; 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.), at
    para. 27;
Bell ExpressVu Limited Partnership v. Torroni
, 2009 ONCA 85,
    94 O.R. (3d) 614, at para. 21.

[22]

Dorino
    argues that the bringing of the present motion did not constitute disobedience
    of the previous orders requiring all estate matters to be dealt with in Welland
    and therefore that the motion judge had no authority to make a contempt order
    in the circumstances.  The previous orders did not [require Dorino] to do an act,
    other than the payment of money, or to abstain from doing an act, he submits;
    therefore a contempt order could not be made to enforce them under rule 60.11
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[23]

While
    this may be technically so at one level, I see no practical difference between
    failing
to obey
the orders and failing
to recognize and accept
the validly-made previous orders, in these circumstances.  They are tantamount
    to the same thing.  Substantively they have the same destructive effect on the
    integrity of the administration of justice.  In any event, breach of a prior
    court order is not the only type of conduct that will justify a finding of
    contempt.

[24]

The
    classic definition of contempt at common law comes from
The Queen v. Gray
,
    [1900] 2 Q.B. 36, at p. 40, quoted in
R. v. Cohn
(1984), 48 O.R. (2d)
    65 (C.A.), at p. 78, leave to appeal to S.C.C. refused, [1985] 1 S.C.R. vii:

Any act done or writing published calculated to bring a Court
    or a judge of the Court into contempt, or to lower his authority, is a contempt
    of Court. That is one class of contempt. Further, any act done or writing
    published calculated to obstruct or interfere with the due course of justice or
    the lawful process of the Courts is a contempt of Court. The former class
    belongs to the category which Lord Hardwicke L.C. characterised as scandalising
    a Court or a judge.

[25]

I
    agree with the motion judge that Dorinos conduct fell within the second class
    of conduct referred to above.  It constituted an act done that was intended to,
    or was likely to, interfere with or obstruct
the fair administration of
    justice
: see
Cohn
, at p. 71.  Here, even if Dorinos conduct did
    not amount to breach of a court order, it was open to the motion judge  as he
    recognized  to resort to the common law power to commit for contempt in the
    circumstances.

[26]

Looked
    at in isolation, Dorinos motion for the passing of accounts in Brampton could
    be taken as simply an abuse of process.  But in the circumstances here, it is
    more than that.  The facts outlined by the motion judge in the passages quoted above
    raise Dorinos motion to another level, in my view. As the motion judge found,
    Dorino brought the motion intending to subvert the administration of justice,
    intending to show disrespect for the court, and intending to harass the
    opposing beneficiaries, all for vindictive reasons and in the context of having
    been previously warned of the risk of imprisonment for contempt.

[27]

Dorino
    argues the motion judge misapprehended the evidence and by implication, that
    there is no basis in the record for those findings.  I disagree and can see no
    basis for interfering with the finding of contempt in these circumstances.

Personal
    Service

[28]

Procedural
    protections on motions for civil contempt are generally strictly enforced. 
    This includes the requirement that the materials be served personally on the
    party sought to be found in contempt: see
Rules of Civil Procedure
, r.
60.11(2).  However, procedural
    protections that are meaningless in a particular case ought not to trump
    substantive compliance where the purpose of personal service has been met in
    the circumstances and there has been no substantial wrong or miscarriage of
    justice.  I am satisfied that is the case here.

[29]

Dorino
    was not served personally with the cross-motion materials and it would have
    been preferable had the moving parties obtained an order for substituted
    service.  That said, I think it is inevitable such an order would have been
    granted, given the process servers evidence regarding his unsuccessful
    attempts at service and the fact that Dorinos son was served with Dorino quite
    likely on the premises at the time.  The process servers affidavit deposes to
    his belief that Dorino was in the house standing at the window watching what
    was happening when his son was served.

[30]

Moreover,
    it is evident that the rationale underlying the requirement for personal
    service in contempt proceedings  which are quasi-criminal in nature  has been
    satisfied in the circumstances.

[31]

Dorino
    and John Jr. had full knowledge of the terms of the previous orders determining
    that Welland was the proper venue for proceedings regarding the estate; those
    orders formed the framework for the contempt motion.  Dorino and John Jr. had full
    knowledge of the cross-motion and of the evidentiary basis for the allegations
    being made against them.  In fact, they each filed affidavits in response to
    Ferminos affidavit supporting the cross-motion.  John Jr.s affidavit
    responded in detail to the allegations and Dorinos adopted and relied upon
    that evidence.  In addition, the lengthy and hotly contested history of the war
    of attrition in which he and John Jr. were engaged  at great cost to the
    estate  left Dorino in no doubt of what the issues were.  Finally, Dorino and
    John Jr. both attended at the hearing and both argued, or had the opportunity
    to argue, the merits of the contempt proceeding  again, John Jr. made
    elaborate submissions and Dorino, when asked for his input, confined his remarks
    to the s. 140 issue.

[32]

In
    short, Dorino knew what he was facing and was provided with a full opportunity
    to be heard.  He knew as well of his potential exposure to imprisonment.  Before
    dismissing Dianne, Esther and Theresas attempt to cite Ms. Hoy for contempt,
    Price J. warned John Jr. and Dianne in open court that if they did not desist
    in their ways they risked imprisonment for contempt.  The motion judge found it
    was inconceivable that this warning did not come to the attention of Dorino.

[33]

In
    my opinion  whether the motion for contempt here is viewed as a motion
    pursuant to rule 60.11 relating to the breach of an order or as a common law
    motion for contempt in other respects  the fact that Dorino was not personally
    served with the notice of motion and supporting materials is not fatal to the
    finding of contempt made against him.  The court has authority under rule 2.03
    of the
Rules of Civil Procedure
to dispense with full compliance with
    the rules where the interests of justice require it.  I am satisfied that the
    proceedings leading up to the contempt finding afforded Dorino adequate
    procedural fairness and did not deprive him of a fair hearing.

[34]

In
    spite of the
strictissimi juris
approach to contempt proceedings where
    committal is sought, there are examples in the jurisprudence supporting the
    view that the strict compliance principle may not always carry the day.  In
Dickie
    v. Dickie

(2006), 78 O.R. (3d) 1 (C.A.), Laskin J.A. in dissent
    would have refused to hear Dr. Dickies appeal from a contempt finding until his
    contempt had been purged, but noted that, if the appeal were to be heard  as
    the majority concluded  he would have dismissed it in spite of the lack of
    personal service (at paras. 119-23).  Mrs. Dickie appealed to the Supreme Court
    of Canada, which allowed the appeal, stating that [o]n the appeal from the
    decision on the contempt motion, we are in substantial agreement with the
    reasons of Laskin J.A.:
Dickie v. Dickie
, 2007 SCC 8, [2007] 1 S.C.R.
    346, at para. 7.

[35]

Another
    example of relaxation of the
strictissimi juris
rule  albeit in a
    slightly different context  is
Bhatnager v. Canada (Minister of Employment
    and Immigration)
, [1990] 2 S.C.R. 217, where the Supreme Court of Canada affirmed
    that the order the contemnor has allegedly violated need not be served
    personally where actual knowledge is proven or can be inferred (at pp. 225-26). 
    See also
Scaffidi v. Scaffidi
(1998), 41 R.F.L. (4th) 166 (Gen. Div.),
    at paras. 12-14.

[36]

Such
    is the case here.  I would not give effect to this argument.

[37]

I
    do think, however, that when it came to the penalty phase of the proceedings,
    it would have been proper for the motion judge to have adjourned the
    proceedings to enable Dorino  a self-represented litigant, now exposed to the
    deprivation of his liberty  to obtain legal advice, and to consider his
    submissions as to sentence.  Instead, when the motion judge asked Dorino for
    submissions and Dorino appears to have become flustered  saying he intended to
    appeal and that he wanted to retain a lawyer for that purpose because he was
    desperate  the motion judge took that as his submissions and proceeded to
    impose the penalty.

[38]

That
    said, I do not think the motion judges failure to adopt this procedure makes a
    difference in these circumstances.  As counsel acknowledged, the real area of
    concern at this point with respect to the penalty is the $10,000 fine that was
    imposed.  For the reasons that follow, that fine must be set aside, in any
    event.

The Fine

[39]

Respectfully,
    in my view the motion judge erred in imposing a fine payable to the estate. 
    This Court has held, in
SNC-Lavalin Profac Inc. v. Sankar
, 2009 ONCA
    97, 94 O.R. (3d) 236, that a fine imposed for civil contempt of court ought not
    to be payable to a party in the action but, rather, to the Provincial
    Treasurer.  As Laskin J.A. explained, at paras. 14 and 15:

Contempt of court for breach of a court order is an offence
    against the authority of the court and the administration of justice.  As
    Cumming J. said in
Sussex Group Ltd. v. 3933938 Canada Inc. (c.o.b. Global
    Export Consulting)
, [2003] O.J. No. 2952, 2003 CanLII 49334  (S.C.J.), at para.
    13, It does not have,
and must not appear to have
, the function of a
    civil action in tort or for breach of contract.  See, also,
Royal Bank of
    Canada v. Yates Holding Inc.
, [2007] O.J. No. 1264, 2007 CanLII 23601 (S.C.J.),
per
Cumming J., at para. 19.  A fine for contempt of court, therefore,
    should not go to the plaintiff in the lawsuit.

Provisions of the
Criminal Code
, R.S.C. 1985, c. C-46 and
    the
Courts of Justice Act
, R.S.O. 1990, c. C.43 support this
    conclusion.  The
Criminal Code
is relevant because, although the
    appellants committed a civil contempt of court, civil contempt bears the
    imprint of the criminal law.  A person found in civil contempt may face any
    sanction available for the commission of a criminal offence.  A fine is one of
    those sanctions: see s. 734.1 of the
Criminal Code
;
Pro Swing Inc.
    v. Elta Golf Inc.
, [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52; and
Chiang
    (Trustee of) v. Chiang
, [2009] O.J. No. 41, 2009 ONCA 3.  [Emphasis
    added.]

[40]

As
    mentioned above, I see no material difference for these purposes between the
    breach of a court order and  as is the case here  the failure to recognize
    and accept the validity of previous orders by repeatedly launching
    unmeritorious motions seeking the same relief that was the subject matter of these
    orders and was denied.  And I see no reason why the principle in
SNC-Lavalin
would not apply equally where, as here, contempt at common law is made out. 
    Nor do I see any difference between the reference to the plaintiff in
SNC-Lavalin
and the estate in the present proceedings; both are parties to the proceedings.

[41]

Recently,
    in
Boily v. Carleton Condominium Corporation 145
,
2014 ONCA 574
,
this Court ordered a fine payable to a condominium corporation, one of the
    parties to the appeal.  The directors of the corporation had been found in
    contempt for refusing to implement the provisions of a court order concerning the
    restoration of certain portions of the garage and landscaping.  On appeal, this
    Court set aside a penalty provision requiring the individual directors to personally
    bear the costs of restoration, but replaced it with an order that the
    individual directors each pay a fine of $7,500 to the condominium corporation (at
    para. 145).

[42]

In
    its outcome,
Boily
appears to be in conflict with
SNC-Lavalin
.
     The majority in
Boily
ordered the directors who were found in
    contempt to pay a fine to another party, the condominium corporation.
SNC-Lavalin
established that if a fine is imposed for civil contempt the fine should be payable
    to the Provincial Treasurer.

[43]

In
Boily
, however, the principal issues were the quantum of the fine and
    the personal liability of the directors, and not the fact that the fine had not
    been made payable to the Provincial Treasurer.  Each director was fined
    approximately $100,000 payable towards the costs of restoration as a means of
    ensuring those costs were not shouldered by the individual unit owners. 
    Speaking for the majority, Epstein J.A. concluded that the fines imposed were
    unfit  they were above an amount necessary to reflect the public interest in
    the matter  and that the motion judge erred in focusing on the costs of his
    restoration order rather than on the central issue of deterrence (at para. 133). 
    She held that a fine of $7,500 imposed on each director would achieve the
    necessary degree of deterrence (at para. 136).

[44]

Although
    the Court in
Boily
made the fine payable to the condominium
    corporation, there does not appear to have been an argument about the propriety
    of a fine being made payable to a party, and the Court does not seem to have
    been referred to
SNC-Lavalin
.
SNC-Lavalin
was not cited in
    any of the parties facta, nor did any of the parties argue that making the
    fine payable to a party was problematic. It was not cited by the court below.

[45]

As
    noted above, the issues in
Boily
were quantum, liability, and
    deterrence.  Moreover, in arriving at her conclusion, Epstein J.A. reinforced
    the principles  as stated by this Court in
SNC-Lavalin
 that civil
    contempt proceedings are not to have the appearance of a civil action for the
    recovery of damages and that the courts concern in such circumstances is the
    failure to respect the courts process (at para. 130): see also
Royal Bank
    v. Yates Holdings Inc.

(2007), 33 C.B.R. (5th) 268 (S.C.), at para.
    19;
Sussex Group Ltd. v. 3933938 Canada Inc.
, [2003] O.J. No. 2952
    (S.C.), at para. 13;
Merck & Co. v. Apotex Inc.
,
2001 FCT
    589, 12 C.P.R. (4th) 456, at para. 11, vard 2003 FCA 234, 227 D.L.R. (4th) 106,
    leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 366.

[46]

I
    do not think that in these circumstances the outcome in
Boily
is of
    assistance.

[47]

In
    the result, I am satisfied that the motion judge erred in imposing a fine
    payable to the estate.  This opens the issue of a fine for reconsideration.

[48]

After
    consulting with her client, Ms. Hoy advised that if we were inclined to rule
    that payment of the fine to the estate was an error, the respondent would
    prefer that no fine be imposed.  The reason for this position is that a fine of
    $10,000 payable by Dorino to the Provincial Treasurer would have the effect of
    further diminishing Dorinos assets, thus making it even more unlikely that the
    estate will recover Dorinos outstanding liabilities.

[49]

While
    the preferences of a party are not necessarily persuasive in determining an
    appropriate penalty for civil contempt, I think that a fine was not necessary
    in this case to meet the goals of deterrence and the need to stress the
    importance of respect for the courts process.  The sentence of three days
    imprisonment underlined those points.  This is not a case where strengthening
    the message by doubling the sanction was necessary, in my view.

[50]

Accordingly,
    I would set aside the portion of the order compelling Dorino to pay a fine of
    $10,000 to the estate.

Scope
    of the Prohibition Order

[51]

Ferminos
    cross-motion also sought an order pursuant to s. 140 of the
Courts of
    Justice Act
, declaring Dorino to be a vexatious litigant and ordering him
    not to commence any litigation against Fermino Susin or Habibur Rahman except
    with leave of the court.

[52]

The
    motion judge declined to grant a vexatious litigant order, but nonetheless ordered
    that Dorino Susin is prohibited from taking any further steps in this
    proceeding or in any proceeding to which Fermino Susin or Habibur Rahman are
    parties, except for an appeal from todays Orders to the appropriate Appeal
    Court.  He does not appear to have made this order pursuant to his powers to
    deal with vexatious litigants under s. 140.  Instead, he stated at para. 17 of
    his reasons that the order prohibiting Dorino from filing further motions was
    imposed as part of the penalty for contempt.

[53]

A
    judge has a broad discretion in crafting the penalties on a finding of contempt
    of court.  It is not necessary to resort to s. 140 of the
Courts of Justice
    Act
to make such an order.  Under rule 60.11(5) the judge may make such
    order as is just and, where a finding of contempt is made, may order the
    person in contempt (d) to do or refrain from doing an act or (f) to comply
    with any other order that the judge considers necessary.  A judge has a
    similarly broad discretion when imposing a penalty for contempt at common law.  As
    well, a judges exercise of that discretion is entitled to considerable
    deference and should only be interfered with where there has been an error in
    principle or the sentence is clearly unfit.

[54]

For
    those reasons I would not interfere with the motion judges decision to impose a
    prohibition order in relation to further steps in these proceedings or in other
    proceedings to which Fermino or Habibur are parties.  However, the scope of the
    order goes beyond what is reasonably necessary in my view and constitutes an
    error in principle.

[55]

A
    review of the transcript indicates that what the motion judge initially
    intended to do was to make directions as to [Dorinos] further participation
    in the passing of accounts.  His ultimate order went further, however.  It
    prohibits Dorino from taking any further steps in this proceeding or in any
    proceeding to which Fermino Susin or Habibur Rahman are parties, except for an
    appeal from todays Orders to the appropriate Appeal Court.  I take no issue
    with the motion judges ultimate decision to broaden the order to encompass
    estate matters beyond the passing of accounts, but an absolute prohibition
    without any further recourse goes beyond what is reasonably necessary. 
    Accordingly, I would vary the order by adding the words without leave of the
    court.

Disposition

[56]

Accordingly,
    I would allow the appeal to the extent that the order of Ramsay J. dated
    January 10, 2014 is varied as follows:

a)

by deleting the
    provisions of paragraph 4; and

b)

by amending paragraph
    5 to add the words , without leave of the court, in line three after the
    words are parties and before the words except for an appeal.

[57]

I
    would dismiss the appeal otherwise.

[58]

As
    success has been divided, there will be no order as to costs on the appeal.  I
    would not interfere with the costs order below.

Released: October 29, 2014
(D.D.)

R.A.
    Blair J.A.

I
    agree, Alexandra Hoy A.C.J.O.

I
    agree, K. Feldman J.A.





[1]
Habibur Rahman is the husband of Anita (one of Ferminos supporters) and was
    appointed executor to replace Dorino by Turnbull J. in 2007.



[2]
This order arose because John Susin had made submissions before Justice Ramsay
    and had attempted to do so as
amicus curiae
for Dorino.  Ramsay J.
    cited Price J.s earlier finding that John Jr. had used his siblings as proxies
    in other proceedings in order to circumvent the vexatious proceedings order.



[3]
The motion judge referred to three, but by my count there were seven.  Darla
    Wilson J., Hoy J. (as she then was), Di Tomaso J., Snowie J., McCarthy J., Herold
    J., and Price J. have all made orders directly or indirectly confirming Welland
    as the venue for the hearing of the estate matters.


