College of Optometrists v. SHS Optical,

• Jurisdiction: Ontario
• Judge: Feldman, MacFarland and Watt, JJ.A.
• Neutral Citation: 2008 ONCA 685
• Citation: (2008), 241 O.A.C. 225 (CA),2008 ONCA 685,93 OR (3d) 139,300 DLR (4th) 548,[2008] OJ No 3933 (QL),241 OAC 225,241 O.A.C. 225,300 D.L.R. (4th) 548,(2008), 241 OAC 225 (CA),[2008] O.J. No 3933 (QL),93 O.R. (3d) 139
• Date: 10 October 2008
• Court: Court of Appeal (Ontario)

College of Optometrists v. SHS Optical (2008), 241 O.A.C. 225 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. OC.046

The College of Optometrists of Ontario (applicant/respondent in appeal) v. SHS Optical Ltd., Dundurn Optical Ltd. and John Doe, all carrying on business under the name Great Glasses, Joanne Marie Bergez and Bruce Bergez (respondents/appellants in appeal)

(C46386; 2008 ONCA 685)

Indexed As: College of Optometrists (Ont.) v. SHS Optical Ltd. et al.

Ontario Court of Appeal

Feldman, MacFarland and Watt, JJ.A.

October 10, 2008.

Summary:

In Ontario, licensed opticians like Bergez could only dispense glasses and contact lenses under a prescription from an optometrist or physician. Bergez, operating "Great Glasses" stores, dispensed glasses and contact lenses without prescriptions, using a machine (Eyelogic System) to measure refractive error to prescribe the necessary lenses. In 2003, following an application under s. 87 of the Health Professions Procedure Code by the College of Optometrists (Ont.), a judge ordered Bergez and others involved to comply with the provisions of the Regulated Health Professions Act. Bergez and the others were prohibited from prescribing and dispensing glasses and contact lenses without a prescription from an optometrist or physician. Bergez continued business as usual and, in fact, expanded by selling franchises. More than three years later, the College applied to have Bergez and the others found in contempt for their continued disobedience of the court order.

The Ontario Superior Court, in a judgment reported [2006] O.T.C. 1199, found Bergez and the others in contempt, imposed a $1,000,000 fine and made several consequential and ancillary orders. Bergez and the others appealed both the finding of contempt and the penalty imposed.

The Ontario Court of Appeal dismissed the appeal.

Contempt - Topic 503

What constitutes contempt - General principles - Civil and criminal contempt distinguished - The Ontario Court of Appeal discussed what had to be proven to establish civil or criminal contempt and distinguished between the two - See paragraphs 66 to 71.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - In Ontario, licensed opticians like Bergez could only dispense glasses and contact lenses under a prescription from an optometrist or physician - Bergez, operating "Great Glasses" stores, dispensed glasses and contact lenses without prescriptions, using a machine (Eyelogic System) to measure refractive error to prescribe the necessary lenses - In 2003, following an application under s. 87 of the Health Professions Procedure Code by the College of Optometrists (Ont.), a judge ordered Bergez and others involved to comply with the provisions of the Regulated Health Professions Act - Bergez and the others were prohibited from prescribing and dispensing glasses and contact lenses without a prescription from an optometrist or physician - The order was not appealed - Bergez continued business as usual in open defiance of the court order and, in fact, expanded by selling franchises - More than three years later, the College applied to have Bergez and the others found in contempt for their continued disobedience of the court order - The trial judge found Bergez and the others in contempt - Bergez and the others appealed on procedural and substantive grounds - The Ontario Court of Appeal dismissed the appeal, rejecting the grounds of appeal advanced - In spite of some procedural flaws, Bergez and the others had no defence to liability - This was a case of "intransigent and unremitting refusal to obey the law".

Contempt - Topic 3315

Punishment - Fines - In Ontario, licensed opticians like Bergez could only dispense glasses and contact lenses under a prescription from an optometrist or physician - Bergez, operating "Great Glasses" stores, dispensed glasses and contact lenses without prescriptions, using a machine (Eyelogic System) to measure refractive error to prescribe the necessary lenses - In 2003, following an application under s. 87 of the Health Professions Procedure Code by the College of Optometrists (Ont.), a judge ordered Bergez and others involved to comply with the provisions of the Regulated Health Professions Act - Bergez and the others were prohibited from prescribing and dispensing glasses and contact lenses without a prescription from an optometrist or physician - The order was not appealed - Bergez continued business as usual in open defiance of the court order and, in fact, expanded by selling franchises - More than three years later, the College applied to have Bergez and the others found in contempt for their continued disobedience of the court order - The trial judge found Bergez and the others in contempt and imposed a $1,000,000 fine - The Ontario Court of Appeal dismissed an appeal from the penalty imposed - The "Great Glasses" business operated in open defiance of the court order, earning revenues exceeding $3 Million in the 3.5 years since the order - There was a singular need for punishment and the fine had to be significant enough so as not to be seen as a licence fee for further disobedience - The court stated that the "penalty imposed here, including the manner in which it may be enforced, justifiably emphasized not only specific and general deterrence, but also denunciation of [Bergez's] intransigent and unremitting refusal to obey the law" - See paragraphs 100 to 108.

Contempt - Topic 5002

Practice - General proceedings - Nature of a contempt hearing - The Ontario Court of Appeal stated that "as a general rule, the procedure followed on contempt hearings reflects the burden of proof imposed and the essential elements of contempt. The prosecutor's case on liability proceeds first, thereafter any defence offered. Where liability is established, the contemnor is usually offered an opportunity to purge his or her contempt before the penalty or punishment phase of proceedings begins. ... While it may not be wrong per se to conduct a single hearing involving both liability and penalty, it is essential that the procedure followed be free of error and fair to the parties, especially the alleged contemnor. ... Any assessment of the effect of conflating the issues of liability and penalty in a single hearing on the finding of liability must begin with an acknowledgment that the form of hearing is left largely to the discretion of the presiding judge. There is no per se rule that a hearing must proceed in two steps, liability first, then penalty if liability has been established. That a two-step procedure is preferable in most cases where liability is in issue can scarcely be disputed. Likewise, most would agree that the two-step procedure ensures that evidence or other material irrelevant to liability, but relevant to penalty, does not contaminate the determination of liability." - Bergez and others were found guilty of contempt and fined in a single hearing where some evidence relevant only to penalty was introduced at the hearing which included liability - However, the Ontario Court of Appeal held that the consolidated hearing did not vitiate the finding of contempt - The evidence relevant to penalty was not used to determine liability and did not compromise Bergez's position on liability - The court noted that, in practical terms, Bergez and the others had no defence on the issue of liability, the only real issue was penalty - See paragraphs 73 to 84.

Contempt - Topic 5103

Practice - Hearing - Procedure - [See Contempt - Topic 5002 ].

Courts - Topic 589

Judges - Duties - To self-represented party - Bergez and others were found in contempt for disobeying a court order - Bergez was self-represented by choice - Bergez appealed on the ground that the judge failed to give him adequate assistance in conducting the proceedings - The Ontario Court of Appeal dismissed the appeal - Bergez was a mature adult, an experienced businessman and had no articulated language deficiencies - Any time Bergez asked for help, the judge provided it - The proceedings were fairly conducted - Bergez obtained a fair hearing - The court noted that "fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability." - The fact that the judge could have done more to assist Bergez was not determinative - Bergez was entitled to, and received, a fair hearing - See paragraphs 49 to 60.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - Self-represented persons found guilty of contempt for disobeying a court order appealed, raising an issue not advanced at the contempt hearing - The Ontario Court of Appeal stated that "while the failure to raise these issues at first instance may not be tallied against the self-represented to the same extent as against a litigant who appeared with counsel, the principles underlying the general rule retain their vitality. Irrespective of the nature of the representation at first instance, the prejudice to the respondent from the lack of opportunity to complete the record remains a constant, likewise the insufficiency of the record upon which to make findings of fact essential to an informed ruling on the issue on appeal." - See paragraph 94.

Cases Noticed:

Berge v. Hughes Properties Ltd., [1988] B.C.J. No. 353 (C.A.), refd to. [para. 45].

Distillery, Brewery, Soft Drink and Allied Worker's Union 604 v. British Columbia Distillery Co. (1975), 57 D.L.R.(3d) 752 (B.C.S.C.), refd to. [para. 45].

United Steelworkers of America, Local 663 v. Anaconda Co. (Canada) Ltd. (1969), 3 D.L.R.(3d) 577 (B.C.S.C.), refd to. [para. 45].

Dare Foods (Biscuit Division) Ltd. et al. v. Gilles et al., [1973] 1 O.R. 637 (H.C.), refd to. [para. 45].

Sheppard and Sheppard, Re (1976), 12 O.R.(2d) 4 (C.A.), refd to. [para. 46].

Davids v. Davids (1999), 125 O.A.C. 375 (C.A.), refd to. [para. 57].

Director of Child and Family Services (Man.) v. J.A. et al. (2004), 190 Man.R.(2d) 298; 335 W.A.C. 298 (C.A.), refd to. [para. 58].

Poe v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, refd to. [para. 67].

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 67].

Bhatnager v. Minister of Employment and Immigration, [1990] 2 S.C.R. 217; 111 N.R. 185, refd to. [para. 71].

R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 21 O.A.C. 62 (C.A.), refd to. [para. 76].

Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R.(2d) 585 (H.C.), affd. (1975), 11 O.R.(2d) 167 (C.A.), refd to. [para. 88].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 90].

A.A. v. B.B. et al. (2007), 220 O.A.C. 115 (C.A.), refd to. [para. 90].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 91].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 91].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 92].

R. v. Fitt (S.E.) (1995), 139 N.S.R.(2d) 186; 397 A.P.R. 186 (C.A.), affd. [1996] 1 S.C.R. 70; 192 N.R. 38; 148 N.S.R.(2d) 399; 429 A.P.R. 399, refd to. [para. 96].

Kopyto v. Clarfield (1999), 118 O.A.C. 130 (C.A.), refd to. [para. 97].

Ali v. Triple 3 Holdings Inc. et al., [2002] O.A.C. Uned. 306 (C.A.), refd to. [para. 97].

Forget v. Sutherland (2000), 134 O.A.C. 117; 188 D.L.R.(4th) 296 (C.A.), refd to. [para. 104].

Counsel:

Louis Frapport and Heather C. Devine, for the appellants;

Roy E. Stephenson and Brian P.F. Moher, for the respondents;

Robert Cosman and Charles A. Toth, for the intervenor and respondent in appeal, College of Opticians (Ont.).

This appeal was heard on Feburary 5, 2008, before Feldman, MacFarland and Watt, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Watt, J.A., and released on October 10, 2008.