January 27, 2023
THE ISSUE
No, not really a million-dollar parking ticket. Just a million dollar fine for civil contempt arising from a dispute about illegal parking. The hurt in your pocketbook would be just as painful.
THE CASE
In Caledon (Town) v. Darzi Holdings Ltd., the individual appellant’s construction company improperly stored vehicles on property owned by his holding company, and further committed trespass by storing vehicles on town land adjoining their property and constructing an illegal fence on town property.
The Superior Court judge granted an injunction ordering that the three parties – the individual and both corporations – stop trespassing, remove the fence, and remove the vehicles from the lands owned by the holding company.
The appellants were slow to comply and were found guilty of contempt. The motions judge hearing the contempt motion determined that the $1,000,000 fine would be proportionate and appropriate based upon his estimate of the profits earned by the appellants during the time within which they were not in compliance with the injunction.
On appeal to the Ontario Court of Appeal, the appellants sought to introduce fresh evidence, and argued that the judge failed to consider mitigating circumstances, erred in basing the fine on estimated profit while in contempt, and in finding that $1,000,000.00 was less than the profit.
The fresh evidence, related to efforts to comply, was not admitted. The test to admit fresh evidence on appeal is quite stringent, and the appellants could not meet the test. In particular, the appellants could not satisfy the Court as to why they did not have the evidence available at the contempt hearing. An appeal is not a fresh trial, and all available evidence should be brought to the trial.
The Court also decided that the appellants had exaggerated their compliance efforts that they relied upon in mitigation. Without the fresh evidence, that argument failed.
Which left the hefty fine. A fine is a discretionary decision of a judge who has heard or read all of the evidence. An appeal court will only vary a fine if it is totally out of line with the appropriate range. If appeal courts routinely substitute their own opinions for the original ruling, why have the original ruling? Part of the answer is that appeal courts have limited resources, so want to hear only the strongest appeals. By making a successful appeal unlikely, the cost of the appeal discourages many parties from trying for a second kick at the can.
Understanding this makes it easy to understand why the Court of Appeal decided that the original judge had not erred, Trial judge did nor err in estimating profit and setting fine accordingly, quoting an earlier Superior Court decision which said “when determining a fit fine, the court should consider the economic circumstances of the contemnor, and the amount of fine that will have enough of an impact on the contemnor to induce future compliance with the court’s orders”.
The Court of Appeal went on to say that the process of determining a fit fine “includes consideration of whether the needs of sentencing can be met without requiring disgorgement through a fine of all or a significant part of the profit attributable to the breach.”
THE RESULT
The appeal was dismissed, with costs payable by the appellants of over $120,000.00 on top of the million dollar fine.
TAKEAWAYS
- The best way to avoid a million-dollar fine is to not commit contempt in the first place. It is never smart to ignore or disobey a court order.
- Appeals are not fresh trials.
- If accused of civil contempt, you must put your best foot forward at the contempt hearing. Once found in contempt, you lose any chance of making a moral high ground argument for leniency.
- As part of putting that best foot forward, a thorough fact-finding process and wise choices of which facts to introduce is vital.
- You will be very unlikely to be permitted to bring out fresh evidence at the Court of Appeal.
- The million dollar fine in Darzi is noteworthy because it is unusually high, but the Court’s desire for deterrence may lead to more substantial fines in the future. In other areas of law, we see trends toward higher awards or fines start once a new high water mark is established.
- Contempt is a serious allegation, and you need a serious lawyer to represent you.
WHAT WEILERS LLP CAN DO FOR YOU
At Weilers law, we like to think of ourselves as being serious lawyers. We take bylaw offences and civil contempt seriously. So should you.
The City of Thunder Bay has indicated an intention to more aggressively enforce bylaws. The City is showing that it is serious by hiring more enforcement officers. Therefore, if you do not comply, you are at greater risk of prosecution. At Weilers LLP, we have significant experience in bylaw prosecutions. We will help you put your best foot forward the first time.
If convicted of course we recommend that you comply with any court orders. However, if you are accused of being in contempt, our litigation team has also has significant experience in contempt hearings and contempt sentencing.
We have the experience needed to represent municipalities in bylaw prosecutions or enforcement through injunctions and other remedies. Our experience in contempt hearings also makes us well suited to represent municipalities if there is continued noncompliance.
If you are involved in any sort of injunction or municipal law enforcement matter, Weilers LLP may be the right lawyers for you.