August 13, 2024
Penalties for contempt vary greatly, but it is extremely rare to see a “death penalty” where a case is dismissed. It is a central principle of our legal system that wherever possible, cases should be determined on their merits, not based on procedural considerations.
ISSUE
Something as simple as failure to attend a medical examination that a judge has ordered may lead to dismissal of a Plaintiff’s case.
THE CASE
It even happened in Thunder Bay.
In Steinberg v Adderley, the continued and intentional refusal of an injured Plaintiff to travel to Toronto for a defence medical examination despite a court order and repeated warnings led to that result.
The Plaintiff thought he had good reasons not to travel to Toronto, but these were rejected on a motion, and on a second attempt. The fact that the Plaintiff had travelled distances by car negated this argument. As the judge on the contempt motion said, “Mr. Steinberg travels where he wants when he wants.”
The defence suggested a hefty fine as a penalty for contempt. They suggested as an alternative that the action should be dismissed. It was this alternate suggestion that the judge ordered. He was satisfied that after four refusals to attend the examinations, the Plaintiff would never agree to do so. It was necessary to send a message that court orders matter.
The Ontario Court of Appeal upheld this extraordinary result, after offering a last chance to purge the contempt, which the Plaintiff was only prepared to do if special conditions were met. That response did not impress the court.
The penalty for contempt is discretionary and attracts deference on appeal. Though a lesser penalty might be appropriate in other cases, the motions judge’s finding further opportunity to comply would be futile made his decision reasonable on the facts of this case.
This was a more severe result than in a 2021 decision where the Court of Appeal set aside a default judgment against a defendant in contempt, and suggested that punishment for contempt might proceed in stages of increasing punishment for persistent refusals. However, in Steinberg, the Plaintiff had many opportunities to relent.
TAKEAWAYS
- Court orders must be obeyed.
- This includes routine matters such as attendance at defence medicals.
- The penalty for non-compliance may vary.
- The penalty in a situation of persistent intentional refusal may be dismissal of an action.
WHAT WEILERS LLP CAN DO FOR YOU
Contempt of court is a serious issue. It requires advice and representation by lawyers who are serious about understanding the process and who have credibility with and an understanding of the local judges. In Thunder Bay, this makes the litigation team at Weilers LLP an outstanding choice.