



COURT OF APPEAL FOR ONTARIO

CITATION: 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951

DATE: 20161216

DOCKET: C62035

Strathy C.J.O., LaForme and van Rensburg JJ.A.

BETWEEN

2363523 Ontario Inc.

Plaintiff (Respondent)

and

Stephen Nowack
,
    Melissa Frishling,
John Doe 1 to 10, Jane Doe 1 to 10, and
Doe Corporations 1 to 10

Defendants (
Appellant
)

J. Thomas Curry and Laura E. Robinson, for the appellant

Norman Groot, for the respondent

Heard: October 14, 2016

On appeal from the orders of Justice Sean F. Dunphy of
    the Superior Court of Justice, dated January 8, 2016 and April 18, 2016, with
    reasons reported at 2016 ONSC 2518.

van Rensburg J.A.:

A.

Overview

[1]

The appellant, Steven Nowack, appeals an order
    dated January 8, 2016, finding him in contempt and an order dated April 18,
    2016, finding he had not purged his contempt and sentencing him to 30 days in
    prison. The contempt proceedings arose out of the efforts of the respondent,
    2363523 Ontario Inc. (236), to enforce a default judgment. Mr. Nowack
    contends that the motion judge:  failed to direct himself as to the required
    test for contempt and the associated burden of proof; erred in how he dealt
    with Mr. Nowacks documents that had been included in the Crown brief in his
    criminal proceedings (referred to here as the
Wagg
issue); and failed to provide Mr. Nowack with certain procedural
    safeguards.

[2]

For the reasons that follow, I would dismiss the
    appeal. As I will explain, the motion judge did not err in principle or law in
    finding Mr. Nowack in contempt. The elements of contempt were clearly made out
    on the evidence beyond a reasonable doubt. The motion judge did not err in
    dealing with the
Wagg
issue, which did not
    excuse Mr. Nowacks failure to produce documents and to perform the accounting
    required by the orders. Finally, there was no procedural unfairness: indeed,
    the procedure the motion judge adopted permitted Mr. Nowack, after 236 had
    made out a
prima facie
case of contempt, the
    full opportunity to explain himself. The motion judge also afforded Mr. Nowack
    the opportunity to purge his contempt before he was sentenced.

B.

Facts and decisions below

[3]

236 obtained default judgment against Mr. Nowack on September 16, 2015
    in an action for fraud, conversion, and breach of fiduciary duty (the
    Judgment). The Judgment, which was obtained in Mr. Nowacks presence, ordered
    him to pay 236 $3,000,000 in damages and $22,000 in costs. Paragraph 6 also required
    Mr. Nowack, within 30 days, to provide 236 with an accounting:

of any and all financial transactions completed by him using or
    in any way relating to [236s] funds, including producing bank statements, FXCM
    statements, and transaction documents including copies of wire transfers,
    cheques or other forms of transaction, from any of his accounts into and from
    which [236s] funds were deposited.

[4]

Mr. Nowack brought a motion to set aside the Judgment and was examined
    further to that motion on October 9, 2015. He ultimately abandoned the motion,
    but gave a number of undertakings during his examination.

[5]

In early November 2015, 236 brought a motion for contempt. 236 argued
    that Mr. Nowack had failed to comply with para. 6 of the Judgment and failed to
    answer the undertakings given at his examination. On November 26, 2015, when the
    contempt motion was initially returned before the motion judge, he ordered Mr. Nowack
    to attend at a judgment debtor examination on December 1, 2015, to bring with
    him the documents listed at para. 6 of the Judgment as described in 236s
    notice of examination, and to comply with the undertakings given at his October
    9 examination in advance of the December examination. This order was made on Mr.
    Nowacks consent, and the motion judge seized himself of any further motions
    arising from his order.

[6]

Mr. Nowack was late for his examination on December 1, 2015, and he did
    not bring any documents with him or answer any of his undertakings.

[7]

On January 8, 2016, 236s contempt motion was returned before the motion
    judge based on Mr. Nowacks failure to comply with para. 6 of the Judgment and the
    requirements of the motion judges order of November 26, 2015.

[8]

Mr. Nowack attended the hearing with his criminal counsel, Anthony Moustacalis,
    who explained that Mr. Nowack was due in another courtroom that day in respect
    of his criminal charges. He referred briefly to Mr. Nowacks position that
    certain documents he was required to produce may be part of the Crowns brief
    and subject to a deemed undertaking not to be produced. He then withdrew.

[9]

Mr. Nowack then brought in civil counsel, David Sloan, and the contempt
    hearing proceeded. 236 relied on affidavit evidence attaching the orders in
    question and stating that Mr. Nowack had failed to comply. Mr. Nowack gave
    evidence under oath, led by Mr. Sloan. He stated that he was the accused in a
    criminal prosecution for fraud arising from the same facts giving rise to the
    civil proceeding commenced by 236. He stated that the only financial documents
    he had in his possession were those that had been seized by the police as part
    of the prosecution and returned to him as part of the Crowns disclosure. He
    claimed that his criminal counsel (not Mr. Moustacalis) told him he was not
    permitted to produce such documents to third parties. This was his excuse for
    failing to produce documents to 236 in compliance with the underlying orders. He
    stated that he had provided authorizations to the plaintiffs in other judgment enforcement
    proceedings (the Greenberg Litigation), allowing them to seek transaction
    records from the relevant financial institutions. He then provided those
    authorizations to counsel for 236 during the hearing, stating that he did not
    have the money to obtain the records himself.

[10]

Mr. Nowack also provided the motion judge with a document purporting to
    be his answers to undertakings from the October 9 examination. In each case,
    the answer provided was a short refusal claiming that the question was not
    relevant.

[11]

The motion judge found Mr. Nowack in contempt and gave brief oral
    reasons. He rejected Mr. Nowacks claim that he could not produce the financial
    documentation that he was ordered to produce because it had formed part of the
    Crown disclosure for his criminal prosecution. The motion judge stated that the
    procedure Mr. Nowack should have taken to comply with the underlying orders was
    to collect the documents within his power, possession, or control and to supply
    them to the court under seal if necessary to get a ruling. The motion judge
    observed that Mr. Nowack was not prevented from using the information he had to
    provide an accounting even if it referenced documents he was unable to produce.
    The motion judge went on to find that Mr. Nowack failed to produce any of the documents
    he was ordered to produce, including income tax returns, bank books, statements
    of assets and liabilities, and statements of employment and other sources of
    income, in a timely way. The motion judge concluded that the orders were fairly
    straightforward and explicit. He found they had not been complied with, that excuses
    and promises of future compliance were not good enough, and that the contempt
    alleged had been made out on the evidence.

[12]

The motion judge scheduled a sentencing hearing for February 8, 2016 to
    give Mr. Nowack time to purge his contempt. The day before, on February 7, Mr. Nowack
    delivered to 236 an electronic disc containing extensive financial information
    (which had been in his possession for several months and had already been
    provided to counsel in the Greenberg Litigation). He also provided a sworn
    declaration of his assets and income to show that he owned nothing and had no
    income of any kind. The sentencing hearing was adjourned to permit 236 to
    review the information Mr. Nowack supplied.

[13]

236 examined Mr. Nowack again on March 23 and April 7, 2016. He gave a
    number of refusals at these examinations.

[14]

The sentencing hearing was returned before the motion judge on April 11,
    2016. The motion judge assessed whether Mr. Nowack had made a
bona fide
effort to purge his contempt. After hearing submissions from counsel for 236
    and Mr. Nowack, who was self-represented, the motion judge adjourned the
    proceeding until April 18, at which point he delivered written reasons finding Mr. Nowack
    had not purged his contempt and sentencing him to 30 days in prison. His
    reasons expanded upon the oral reasons for finding Mr. Nowack in contempt and
    provided reasons for his sentence.

[15]

While it was agreed that Mr. Nowack had purged his contempt regarding
    the undertakings given at his October 9, 2015 examination, the motion judge
    found that he had only partially complied with the orders requiring him to
    produce relevant financial information and to provide an accounting. The motion
    judge concluded that his efforts had been belated and half-hearted: at para.
    46. The motion judge found that, while providing account authorizations to 236
    was a mitigating factor regarding sentencing, Mr. Nowack had been ordered to
    perform an accounting himself. This obligation was therefore not discharged by
    telling 236 to complete an accounting instead. Moreover, the accounting Mr. Nowack
    claimed to have provided was utterly inadequate: at para. 59.

[16]

The motion judge concluded that incarceration was the only remedy that
    would adequately meet the sentencing objectives for civil contempt, namely
    coercion and punishment. A fine would have no impact on Mr. Nowack given his
    failure to pay outstanding judgments and costs awards. As he claimed to have no
    assets or income, a fine would be the equivalent of imposing no penalty at all.

[17]

Mr. Nowack had already served a 15-day sentence for contempt pursuant to
    an order of Morgan J. in the Greenberg Litigation. Nevertheless, Mr. Nowack had
    continued to resist disclosing his financial affairs. A sentence greater than
    15 days was therefore required to compel Mr. Nowack to perform his obligations.
    In all of the circumstances, the motion judge concluded that a custodial sentence
    of 30 days was appropriate. He further ordered that, within 45 days of Mr. Nowacks
    release, he was to perform an accounting and to produce all documents received
    through Crown disclosure in his criminal proceedings. Finally, the motion judge
    ordered Mr. Nowack to attend an examination and answer questions based on the
    financial records he produced.

[18]

The motion judge declined to stay the sentence to permit Mr. Nowack to
    appeal to this court. He was immediately incarcerated and served ten days of
    his sentence between April 18 and April 28, 2016. On April 28, this court
    stayed the warrant of committal pending this appeal.

C.

Issues

[19]

Mr. Nowack asserts that the motion judge erred in:

1.

Failing to direct himself as to the elements of the legal test and the
    reasonable doubt standard of proof for civil contempt, and failing to properly
    apply these elements;

2.

Requiring Mr. Nowack to produce documents that were included in the
    Crowns brief in his criminal proceedings; and

3.

Conducting the contempt proceeding in a manner that violated the
    principles of fundamental justice.

(1)

Did the Motion Judge Properly Consider and Apply the Test for Civil
    Contempt?

[20]

A party seeking to establish civil contempt must prove that: (a) the
    order alleged to have been breached states clearly and unequivocally what
    should and should not have been done; (b) the party alleged to have breached
    the order had actual knowledge of it; and (c) the party allegedly in breach
    intentionally did the act the order prohibits or intentionally failed to do the
    act the order compels:
Carey v. Laiken
, 2015 SCC 17, [2015] 2 S.C.R.
    79, at paras. 33-35. A judge retains an overriding discretion to decline to
    make a contempt finding where the foregoing factors are met where it would be
    unjust to do so, such as where the alleged contemnor has acted in good faith to
    take reasonable steps to comply with the relevant court order:
Carey v.
    Laiken
, at para. 37. The burden on a party seeking a contempt order is to
    establish the above elements by proof beyond a reasonable doubt:
Carey v.
    Laiken
, at para. 32;
Bell ExpressVu Limited Partnership v. Torroni
,
    2009 ONCA 85, 94 O.R. (3d) 614, at para. 29;
Chiang (Re)
, 2009 ONCA 3,
    93 O.R. (3d) 483, at paras. 11 and 50.

[21]

Mr. Nowack contends that the motion judge erred in failing to
    specifically articulate this three-part test in his brief oral reasons. He says
    that, because of the serious consequences flowing from a finding of contempt
    and the onus of proof beyond a reasonable doubt, it was necessary for the motion
    judge to specifically advert to the test and the burden of proof in his reasons.

[22]

Further, Mr. Nowack says that the motion judge erred by failing
    to make the necessary findings on each of the three elements. In that regard, he
    relies on a passage in the transcript of the contempt hearing where
the motion judge, after hearing submissions from the
    moving party, stated:

THE COURT: Okay. So this is your contempt motion.

MR. GROOT: Yes.

THE COURT: Were just  were pointing to the three aspects of
    the order that said do X, Y and Z.

MR. GROOT: Yes.

THE COURT: And youre saying that he hasnt done them.

MR. GROOT: Yes.

THE COURT: So, as far as thats concerned, thats your case.

MR. GROOT: That is my case.

THE COURT: So, do we need more?

MR. GROOT: No.

THE COURT: So lets hear why he hasnt done them and what hes
    proposing to do about it.

Mr. Nowack says that this excerpt demonstrates that
    the motion judge believed it was only necessary to find that he had violated
    the orders, and that the motion judge did not turn his mind to the first two elements
    of the test.

[23]

I would not give effect to these submissions. As Mr. Nowacks counsel
    acknowledged in argument on appeal, there was no real issue as to the first two
    elements of the test  that the orders in question were clear and unambiguous
    and that Mr. Nowack had notice of what he was required to do.

[24]

Thus, what the motion judge had to decide was whether Mr. Nowack
    intentionally failed to do what the orders compelled. This requirement is
    distinct from proving whether an alleged contemnor intended to disobey the
    order in question. Contumacy, or lack thereof, is not an element of civil
    contempt:
Carey v. Laiken
, at para. 38. Additionally, it was for the
    motion judge to determine if it was appropriate to exercise his discretion to
    decline to make a contempt order in the circumstances:
Carey v. Laiken
,
    at para. 37.

[25]

In
Torroni
, this court held that the reasons for a contempt
    order need not analyze the application of the three-part test to the facts of
    the case in great detail, but that the judge must at a minimum turn his or her
    mind to the test and apply the elements of the test properly: at para. 23. This
    court set aside a finding of contempt because the motion judge had failed to
    consider whether the terms of the underlying order were clear and unequivocal
    and whether the record established a finding of contempt beyond a reasonable
    doubt: at paras. 27-29. The motion judges consideration of whether the alleged
    contemnor deliberately and wilfully disobeyed the order was not sufficient to
    ground a finding of contempt in the absence of considering the other elements
    of the test for civil contempt: at para. 30.

[26]

Mr. Nowack says that
Torroni
mandates that a judge deciding a
    contempt motion must explicitly set out the three elements for contempt as well
    as the burden of proof. I disagree. While a judge deciding a contempt motion must
    turn his or her mind to the test for contempt and apply the elements correctly,
Torroni
does not require the judge to set out the test expressly in
    his or her reasons. In
Torroni
, the orders at issue were not clear.
    They permitted the plaintiff to enter the premises of the defendant to access
    computer files. The parties engaged in an email debate as to what specific
    premises the orders referred to and where the computer access should take
    place: at para. 25. In the motion judges reasons finding contempt, there was
    no indication that he dealt with this ambiguity, or considered the part of the
    test for contempt requiring the order to be clear.

[27]

By contrast, in this case, there was no dispute about the clarity of the
    orders and what they required. Nor was there any dispute that their terms had
    come to Mr. Nowacks attention. The only issue was whether Mr. Nowack had
    intentionally failed to perform the acts the orders compelled, or whether he
    had a reasonable explanation for his non-compliance. His counsel acknowledged
    that Mr. Nowack had no explanation or excuse for his failure to answer
    undertakings. As for the balance of what he was required to do, Mr. Nowack had
    the opportunity to explain his non-compliance and offered only the excuse (that
    he had made without success in the Greenberg Litigation) that he was unable to
    produce or use documents that had been seized and were part of the Crown
    disclosure in his criminal proceedings.

[28]

Reasons must be understood in context:
R. v. R.E.M.
, 2008 SCC
    51,

[2008] 3 S.C.R. 3. The motion judge gave brief oral reasons at the
    conclusion of the contempt hearing, as Mr. Nowack was due in another courtroom
    to deal with his criminal case. A reading of the oral reasons and the record of
    the contempt hearing demonstrates that the motion judge understood the test for
    contempt and that he applied the test correctly. Indeed, in his oral reasons, the
    motion judge stated: I have a motion for contempt alleging non-compliance with
    some fairly straightforward and explicit orders. At the contempt hearing, the
    motion judge also stated: [Mr. Nowack] was ordered to [do] a number of not
    vague and general things, but very specific things. Shortly thereafter, he
    stated: Convicted means that I am being asked to find that [Mr. Nowack] was ordered
    to do X, Y and Z, knowing that he was ordered to do it, he didnt do it, and so
    thats the issue before me today.

[29]

Further, the motion judge expanded upon his brief oral reasons for
    finding Mr. Nowack in contempt in his sentencing reasons. In paras. 18 and 21 he
    stated:

Mr. Nowacks breaches of the two orderswere clear. He had
    fully understood his obligationsThere was no serious question of the
    non-compliance being inadvertent or due to a misunderstanding. I concluded [at
    the contempt hearing] that Mr. Nowack had knowingly and deliberately breached
    both orders and was in contempt.

Later in his sentencing reasons, at para. 90, the
    motion judge stated: A finding of guilt requires that the thing required to be
    done was clear and the breach was both knowing and deliberate beyond a
    reasonable doubt. In finding Mr. Nowack guilty, I have found all of that to be
    true.

[30]

These additional reasons supplemented the brief oral reasons the motion
    judge initially provided and leave no doubt that he understood and correctly
    applied the test for contempt.

[31]

Mr. Nowacks counsel also argued that the motion judge failed to
    consider Mr. Nowacks partial compliance with the requirements of the orders in
    determining whether the third element  that Mr. Nowack had failed to comply 
    was met. There is no merit to this argument. At the time the contempt was
    found, Mr. Nowack had not complied with the specific paragraphs relied upon by
    236 from the Judgment and the motion judges order of November 26, 2015. There
    was no question that Mr. Nowack had failed to answer undertakings, that no
    excuse was offered, and that his only explanation for failing to comply with
    the balance was his
Wagg
excuse. In these circumstances, there was
    nothing by way of partial compliance for the motion judge to assess. At the
    sentencing hearing, it was acknowledged that Mr. Nowack complied with some
    terms of the orders, and had therefore purged certain aspects of his contempt.
    This was taken into consideration in his sentence.

(2)

Did the Motion Judge Err in Requiring Mr. Nowack to Produce Documents
    from the Crown Brief?

[32]

In his appeal, Mr. Nowack reiterates the argument made at his contempt
    hearing that he was unable to comply with the orders because the documents were
    part of the Crowns brief in his criminal proceedings. He says that documents
    he had received through Crown disclosure, even if they were his own documents
    that had been seized from him, ought not to have been ordered to be produced. He
    relies on this courts decision in
P.(D.) v. Wagg
(2004), 71 O.R. (3d)
    229 (C.A.), at para. 17, which outlines a three-step procedure to be followed
    before a litigant produces documents in his possession or control that form
    part of a Crown disclosure brief.

[33]

Mr. Nowack contends that the motion judges finding of contempt
    based on his failure to produce documents contained in a Crown brief was
    premised on a misapprehension of the obligations imposed on Mr. Nowack as a
    recipient of Crown disclosure. He says the motion judge erred in stating, in
    response to his
Wagg
concerns, that he ought to have produced the
    documents to the court under seal. Instead, he says it was incumbent on 236 to
    bring a motion to obtain the Crowns consent to have the documents produced.

[34]

In argument on appeal, Mr. Nowacks counsel acknowledged that it was
    possible for Mr. Nowack to have brought any
Wagg
motion that was
    required. He argued, however, that it was
sufficient
for Nowack to
    signal to 236 that he had documents that were part of the Crown brief.

[35]

I would not give effect to any of these arguments. The motion judge did
    not accept the
bona fides
of Mr. Nowacks excuse for failing to comply
    with his obligations. He referred to the fact that Mr. Nowack had raised the
    same arguments in the Greenberg Litigation without success. The motion judge
    was correct to note that Mr. Nowack had been ordered to produce documents and
    to use documents to prepare an accounting, irrespective of their source. Mr.
    Nowack was not a litigant involved in a discovery process, but a judgment
    debtor who had been ordered to produce documents that were in his possession
    and to use the documents to prepare an accounting. As the motion judge noted,
    if Mr. Nowack had concerns, he could have provided the documents to the court
    under seal. In other words, it was incumbent on Mr. Nowack to do something
    himself to address the concern, assuming it was legitimate, rather than to
    simply raise the argument as an excuse for his non-compliance. Indeed, as Mr.
    Nowack notes in his factum, after he was found in contempt and sentenced, he
    promptly sought and obtained the Crowns consent to release documents.

[36]

There was no error in the motion judges treatment of the
Wagg
issue,
    and I therefore would not give effect to this ground of appeal.

(3)

Were the Contempt Proceedings Consistent with the Principles of
    Fundamental Justice?

[37]

Section 7 of the
Charter of Rights and Freedoms
applies to
    civil contempt proceedings because they are penal in nature:
R. v. Cohn
(1984), 48 O.R. (2d) 63 (C.A.), at p. 76, leave to appeal refused, [1985] 1
    S.C.R. vii. Contempt proceedings must therefore afford an alleged contemnor
    all necessary safeguards:
Toronto Transit Commission v. Ryan
(1998),
    37 O.R. (3d) 266 (Ct. J. (Gen. Div.)), at p. 270;
Torroni
, at
    para. 20. The proceeding must preserve the principles of fundamental justice by
    safeguarding the right to be presumed innocent and the right to make full
    answer and defence:
R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas
(1987), 59 O.R. (2d) 145 (C.A.), at p. 150.

[38]

Mr. Nowack says that the contempt proceedings were inconsistent with
    these principles because he was denied the presumption of innocence.

[39]

Mr. Nowack points to the transcript of the hearing, just before he stepped
    into the witness box, and says that the circumstances were less than ideal
    because the motion judge communicated an expectation he would testify. Mr. Nowack
    says that he was denied the right to remain silent.

[40]

By the time Mr. Nowack entered the witness box, the evidence 236 had put
    forward was sufficient to meet all three prongs of the test for contempt: there
    was compelling evidence of Mr. Nowacks failure to comply with the orders that
    were clear and known to him. The motion judge was simply stating the obvious
    when he observed lets hear why he hasnt done [these things] and what hes
    proposing to do about it. While Mr. Nowack had the right to remain silent, as
    a practical matter some explanation was required if he had any chance of
    raising a doubt on the question of his contempt. Mr. Nowack had legal counsel.
    He was not forced to testify, nor did he indicate any unwillingness to do so.
    Rather, he used the available opportunity, in response to his counsels
    questions, to attempt to explain his conduct.

[41]

Mr. Nowack also asserts that the motion judge had already determined Mr.
    Nowacks non-compliance with the underlying orders in advance of the contempt
    proceeding. He points to the motion judges endorsement on November 26, 2015, adjourning
    the proceeding to January 8, 2015, in which he stated that Mr. Nowack had been
    unable to provide any evidence of his compliance with the underlying orders or
    any valid excuse for failing to attend a judgment debtor examination. To
    reinforce this conclusion, the motion judge made other comments at the January
    8 hearing to the effect that Mr. Nowack had to purge the contempt that he
    already committed.

[42]

There was no prejudging of the issue of contempt in this case. Contempt
    proceedings not infrequently involve multiple attendances, as their purpose is
    to secure compliance with an order. While a motion judge must tread carefully
    when expressing views regarding a partys contempt prior to having the benefit
    of evidence in a contempt hearing, the November 26 endorsement accurately
    reflected the absence of any evidence of Mr. Nowacks compliance before the
    judge at that time. Indeed, the adjournment provided Mr. Nowack further time to
    demonstrate his compliance. The motion judge clearly began the contempt hearing
    with the premise that he had to be satisfied of Mr. Nowacks contempt beyond a
    reasonable doubt, and he afforded him the full opportunity to explain his
    conduct.

[43]

Mr. Nowack also contends that the motion judge did not properly assess
    the relevance of the evidence that he attempted to adduce at his sentencing
    hearing. He argues that the contempt proceedings denied him the right to make
    full answer and defence. This right includes the right to submit or call
    evidence:
GM Textiles Inc. v. Sidhu
, 2016 ONSC 667, at para. 81. Mr. Nowack
    attempted to introduce emails exchanged between counsel for 236 and counsel for
    the plaintiffs in a related proceeding, and Mr. Nowack attempted to call the
    latter as a witness. He now argues that the motion judge erred in rejecting the
    relevance of this evidence based only on Mr. Nowacks submissions and without the
    motion judges own analysis as to admissibility after reviewing the emails and
    the proposed witnesss testimony.

[44]

I disagree. Mr. Nowack, even with the motion judges probing, was unable
    to explain how the emails or witness would be relevant to sentencing and
    whether he had purged his contempt. The motion judge concluded that the evidence
    Mr. Nowack sought to advance pertained to 236s alleged motives, which was not
    relevant to the purpose of the hearing. On appeal, Mr. Nowack did not attempt
    to put forward any other explanation of how the excluded evidence might have been
    relevant to the sentencing hearing.

[45]

Finally, I note that counsel for Mr. Nowack on appeal took issue with
    the motion judge sitting on a motion for contempt of his own order. He said
    that, as a general rule, a judge should not be permitted to hear a motion for
    contempt of his or her own order, as there could be a reasonable apprehension
    of bias. He relied on
Central Capital Corp. v. 819187 Ontario Ltd.
, 1993
    CarswellOnt 4447 (C.A.). I do not propose to address this argument in any
    detail except to say that I am not aware of any principled basis to adopt such a
    general rule.

[46]

In
Central Capital
a judge, in her reasons for summary
    judgment, expressed the view that the appellant was in contempt of an order of
    Eberle J.  This court held that the same judge ought not to have heard a
    subsequent motion for contempt of the order of Eberle J. There was a reasonable
    apprehension of bias in the circumstances, as a reasonable person might think
    that the judge had prejudged the issue of contempt. The conclusion was based on
    the particular facts of the case.

[47]

Central Capital
did not involve a judge sitting on a contempt
    motion from her own order, and the court did not articulate a general rule that
    a judge should never sit on a contempt motion from his or her own order. In my
    view, such a rule would be both impractical and inconsistent with the overall
    objective of contempt motions in securing compliance with orders. And the
    procedure adopted here, as well as in the Greenberg Litigation, where a judge
    seized himself with contempt proceedings, and then made a series of orders that
    gave Mr. Nowack the opportunity to avoid a finding of contempt could only serve
    to enhance the fairness of the process and did not in itself give rise to a
    reasonable apprehension of bias.

D.

Disposition

[48]

For these reasons, I would dismiss the appeal. I would
    extend the stay of the warrant of committal until December 27, 2016. I would
    award costs of the appeal to 236 on a partial indemnity basis. If the parties
    are unable to agree on costs, they may make written submissions to this court. 236
    shall have ten days from the date of release of these reasons to serve and file
    its submissions, and Mr. Nowack shall have ten days from receipt of such
    submissions to serve and file responding submissions. There shall be no reply
    submissions. Written submissions are to be limited to three pages in length,
    not including a bill of costs.

Released: K.M.v.R. December 16, 2016

K. van Rensburg
    J.A.

I agree G.R. Strathy
    C.J.O.

I agree H.S. LaForme
    J.A.


