



COURT OF APPEAL FOR ONTARIO

CITATION: Oliveira v. Oliveira, 2022 ONCA 218

DATE: 20220317

DOCKET: M52988 (C69619)

van Rensburg, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Jack
    Oliveira and Luis Camara on their own behalf and on behalf of all

members of Labourers
    International Union of North America, Local 183

Plaintiffs (Responding Parties)

and

Mario Oliveira

Defendant (Moving Party)

Mario Oliveira, acting in person

Youssef Kodsy and Michael D. Wright,
    for the responding parties

Heard: March 7, 2022 by video conference

REASONS
    FOR DECISION

[1]

This is a motion to review the order of a single
    judge of this court under s. 7(5) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43. The moving party/appellant, Mario Oliveira, commenced an
    appeal in this court. He purported to appeal several orders and endorsements of
    a motion judge of the Superior Court (the SCJ motion judge). At the forefront
    is an order dated February 26, 2021 (the Contempt Order), finding him in
    contempt of two earlier orders of the SCJ motion judge. The appellant also
    seeks to appeal other orders that preceded and followed the Contempt Order,
    including an order dated April 29, 2021 sentencing him to a period of
    incarceration, with the term to be determined, and a costs order dated June 25,
    2021.

[2]

The appellant did not perfect his appeal within
    the requisite time. On the day following the perfection deadline, he brought a
    motion before a single judge of this court (the chambers judge), seeking an
    extension of time to perfect his appeal and other relief. The chambers judge (1)
    refused to grant an extension of time to perfect the appeal; (2) refused to
    stay the appellants sentencing for contempt; and (3) ordered sealed a document
    that was included in the appellants motion materials in violation of the
    deemed undertaking rule.

[3]

The appellant has since been sentenced for
    contempt. On January 14, 2022, he was sentenced by the SCJ motion judge to a
    period of incarceration of 89 days to be served intermittently when Ontario
    jails permit. That order is the subject of another appeal to this court. On
    consent, Pardu J.A. made an order on March 1, 2022, extending the time to
    appeal and staying the order pending appeal. She also directed case management
    of that appeal, the appeal in C70060, and the present panel motion and appeal.
    She explained that either party may seek an appointment with a case management
    judge.

[4]

The appellant brought a motion before this panel
    to review the chambers judges order. In particular, he asserts that the
    chambers judge erred in refusing to extend time for his appeal and in ordering
    a document contained in his materials (which he has refiled in his materials on
    this review motion) to be sealed.

[5]

A panel may interfere with the order under
    review under s. 7(2) of the
Courts of Justice Act
if the motion judge
    failed to identify the applicable principles, erred in principle, or reached an
    unreasonable result:
Hillmount Capital Inc. v. Pizale
, 2021 ONCA 364, 462
    D.L.R. (4th) 228, at para. 18.

[6]

In our view, the refusal of the chambers judge
    to extend time to appeal the Contempt Order reflects such an error. Applying
    the justice of the case test, and considering all of the relevant factors, we
    grant the extension of time for the appellant to appeal the Contempt Order, and,
    in the circumstances, certain other orders that are related to the contempt
    proceedings. We do not see any error in the decision to order sealed a document
    that was subject to the implied undertaking rule, and we make the same order in
    respect of the same document which has been filed in this review motion.

[7]

The parties have been involved in several legal
    actions, some of which are ongoing. The orders the appellant seeks to appeal
    were made in the context of a breach of confidence action commenced by the
    respondents as a result of the appellants threat to disseminate certain information
    to a confidential list of contact addresses that he allegedly obtained through
    his former employment with the respondent union. The SCJ motion judge made an
    order dated December 23, 2020, requiring the return of the confidential list,
    prohibiting the appellants use and retention of the confidential list, and
    appointing a forensic inspector to examine the appellants devices and accounts
    to confirm that the confidential list was permanently and irrevocably deleted. She
    made a subsequent order on January 28, 2021, requiring compliance with the
    December 23 order.

[8]

On February 26, 2021, on motion by the respondents,
    the SCJ motion judge found the appellant in contempt of the December 23 and
    January 28 orders and made the Contempt Order. She deferred sentencing to
    permit the appellant the opportunity to purge his contempt. In an endorsement
    dated April 16, 2021 (reported at 2021 ONSC 2856), she refused the respondents
    request to stay an action pending in another court as part of the sentencing
    for contempt. On April 29, 2021, the SCJ motion judge issued Reasons for
    Sentence, concluding that she would order a term of incarceration to be served
    once the Covid-related circumstances subside. On June 25, 2021, she ordered costs
    of the contempt proceedings to the respondents and fixed the amount.

[9]

On July 7, 2021 the appellant served and filed a
    notice of appeal (which has since been amended) and a Certificate Respecting
    Evidence purporting to appeal the various orders and endorsements of the SCJ
    motion judge, including the Contempt Order. In the months that followed, the appellant
    served and filed other documents in connection with his appeal, including an Exhibit
    Book and a Factum. Although the appellant also prepared and served an Appeal
    Book and Compendium, it was not accepted for filing because it did not include
    the signed and entered orders under appeal. The respondents served and filed a Respondents
    Certificate Respecting Evidence.

[10]

After the court refused the appellants filing, he
    brought a motion before the chambers judge for an extension of time to perfect
    his appeal and other relief.

[11]

In denying an extension of time to appeal the
    Contempt Order, the chambers judge noted two concerns: first, there was a
    substantial delay between the date of the order and the date on which the appellant
    filed his first notice of appeal; and second, and more importantly, the appeal
    was without merit. The chambers judge stated that nothing in the appellants
    submissions pointed to any error in the SCJ motion judges decision or
    suggested any basis for the court to intervene on appeal. He observed that [t]he
    appellant asserts that he has complied with the order to provide his devices
    for forensic inspection even though he acknowledges that he destroyed them, and
    so precluded that inspection permanently: at para. 8. In these circumstances,
    the chambers judge concluded that the appellant failed to establish that the
    justice of the case required an extension.

[12]

The chambers judge concluded that the appeals
    from the other orders lay to the Divisional Court, such that an extension of
    time would inevitably result in the appeals being quashed for want of
    jurisdiction. He therefore declined to grant an extension to perfect the appeal
    in respect of these other orders.

[13]

In our respectful view, the chambers judge erred
    in principle in refusing an extension of time to appeal the Contempt Order on
    the basis that the appeal lacks merit.

[14]

In a motion to extend time to appeal, the
    overriding issue is whether it is in the interests of justice in the particular
    circumstances to extend time:
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, r. 3.02(1);
2363523 Ontario Inc. v. Nowack
, 2018 ONCA 286,
    at para. 4. Among the relevant factors, the court may consider whether the
    appeal has so little merit that the court could reasonably deny the important
    right of appeal:
Duca Community Credit Union Ltd. v. Giovannoli
(2001), 142 O.A.C. 146 (C.A.), at para. 14. Other factors include whether the
    appellant intended to appeal during the appeal period; the length of and
    explanation for the delay; and prejudice to the opposing party:
Denomme v.
    McArthur
, 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 7. Consideration
    must be given to all factors relevant to the circumstances of the case:
Leighton
    v. Best
, 2014 ONCA 667, 20 C.B.R. (6th) 326, at para. 14.

[15]

The challenge here is that, while the Contempt
    Order was made in open court on February 26, 2021, the SCJ motion judge did not
    provide any written reasons or endorsement. According to the respondents counsel,
    she did provide oral reasons, however no transcript has been filed with this
    court. The respondents counsel submit that the SCJ motion judges reasons for
    making the Contempt Order can be gleaned from certain passages in her
    subsequent endorsements, and that this was a proper basis for the chambers
    judge to conclude that the appeal of the Contempt Order is without merit.

[16]

We disagree. A civil contempt order is a serious
    matter. The power to find an individual guilty of contempt is exceptional, and
    exercised as a last resort, only after finding that the necessary elements are
    made out, and after affording the alleged contemnor procedural fairness:

Carey
    v. Laiken
, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36;
Bell
    ExpressVu Limited Partnership v. Corkery
, 2009 ONCA 85, 94 O.R. (3d) 614,
    at para. 20; and
2363523 Ontario Inc. v. Nowack
, 2016 ONCA 951, 135
    O.R. (3d) 538, at para. 37, leave to appeal refused, [2017] S.C.C.A. No. 62.
    Without seeing the reasons for the Contempt Order, it is impossible to assess,
    even in a preliminary way, the merits of the proposed appeal. Moreover, a lack
    of reasons itself can be a ground of appeal. At the time the motion was heard
    by the chambers judge, the respondents had not even taken out a formal order.

[17]

In the circumstances, the chambers judge erred
    in dismissing the motion for an extension of time primarily on the basis that
    the appeal lacks merit. He also erred by failing to consider all the
    circumstances.

[18]

The only other factor referred to by the
    chambers judge with respect to an extension of time to appeal the Contempt
    Order was that the appellant was substantially late: the time to appeal the
    contempt finding was 30 days from February 26, 2021, and the appellants first notice
    of appeal was served several months later, in early July 2021. While it is no
    doubt true that there was a delay, the appellants confusion is at least partly
    explained by the fact that the decision was made orally, there were no written
    reasons, and the respondents had not taken out an order.

[19]

There are other relevant circumstances,
    including the seriousness of the finding of contempt that, as in the present
    case, can lead to a penalty of imprisonment. In addition, after filing his
    notice of appeal, the appellant continued to take steps with a view to
    perfecting his appeal, the respondents did not object to the late filing of the
    notice of appeal, and there was no assertion of prejudice.

[20]

In all the circumstances, we are satisfied that
    an extension of time to appeal the Contempt Order is warranted.

[21]

As for the other orders and endorsements
    referred to in the appellants notice of motion, we agree with the chambers
    judge that no extension is warranted in respect of an appeal of an order that
    is interlocutory. This precludes an extension of time in respect of the order
    dated April 16, 2021. We would, however, direct that the extension of time to
    perfect the appeal includes the orders of the SCJ motion judge dated April 29,
    2021 and June 25, 2021. The April 29, 2021 decision determined that a sentence
    of imprisonment was required, while the June 25, 2021 endorsement awarded costs
    of the contempt proceedings to the respondents and fixed the amount. In our
    view, it makes sense to grant an extension of time for the appellant to perfect
    his appeal to include the April 29 sentencing decision and to permit him to
    seek leave to appeal the costs order when he appeals the Contempt Order.

[22]

The appellant has included in his materials a
    certificate stating that he has ordered transcripts. Apparently, the
    transcripts he has obtained have not been prepared by a certified transcriptionist.
    The respondents indicated at the hearing before us that they will object to any
    such transcripts being used in the appeal. For their part, the Respondents
    Certificate Respecting Evidence lists a number of transcripts the respondents
    contend are necessary for the appeal. Arguably many of the transcripts from the
    various attendances before the SCJ motion judge and other judges may not be required
    for this appeal. As noted earlier, at the hearing of this motion, counsel for
    the respondents indicated that the SCJ motion judge gave oral reasons for
    finding the appellant in contempt on February 26, 2021. This transcript should
    be before the court in this appeal. Any directions respecting transcripts may
    be sought from the case management judge.

[23]

Finally, there is no basis to interfere with the
    decision of the chambers judge to seal a document that the appellant included
    in his motion materials. The appellant filed the same document in this review
    motion, notwithstanding that it has absolutely no relevance to the matters
    before us. There is no question that the appellant knowingly violated the
    deemed undertaking rule when he filed this document. The document, which is located
    at Volume 2, Tab 1 of his motion record, is not properly part of the court
    record and will be sealed.

[24]

For these reasons, the order of the chambers
    judge is set aside in part. An order will go extending time to perfect the
    pending appeal as it relates to the Contempt Order, the April 29, 2021
    sentencing decision and seeking leave to appeal the costs order dated June 25,
    2021, with the following directions:

a)

Counsel for the respondents are to provide the issued
    and entered Contempt Order that they had taken out to the appellant by March
    21, 2022;

b)

The appellant is to amend his Appeal Book and
    Compendium to include the issued and entered Contempt Order, and serve and file
    it by March 31, 2022; and

c)

The appeal will be considered perfected once the
    Appeal Book and Compendium is filed.

[25]

As was ordered by Pardu J.A. on March 1, 2022,
    either party may request an appointment with a case management judge should
    further directions be required.

[26]

There will be no costs of this motion.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.


