Majormaki Holdings LLP v. Wong, (2009) 274 B.C.A.C. 278 (CA)

• Judge: Prowse, Mackenzie and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 17, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 274 B.C.A.C. 278 (CA);2009 BCCA 349

Majormaki Holdings LLP v. Wong (2009), 274 B.C.A.C. 278 (CA);

    463 W.A.C. 278

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. AU.028

Majormaki Holdings LLP (respondent/plaintiff) v. William James Wong (appellant/defendant)

(CA035947; 2009 BCCA 349)

Indexed As: Majormaki Holdings LLP v. Wong

British Columbia Court of Appeal

Prowse, Mackenzie and Groberman, JJ.A.

August 19, 2009.

Summary:

In 2006, in a civil action against Wong and others, Majormaki Holdings obtained an ex parte order that included a Mareva injunction. On December 15, 2006, a further order was directed at Wong.

On December 3, 2007, the British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. G46, found Wong in contempt of the December 15, 2006, order. Wong filed an appeal.

On April 1, 2008, the British Columbia Supreme Court sentenced Wong to serve 21 days in custody. Wong filed an appeal and obtained an interim stay of the sentence. He applied for directions as to whether leave to appeal the sentence was required, an order granting leave, if necessary, a stay of the sentence and an extension of time for filing the appeal record and transcript.

The British Columbia Court of Appeal, per Levine, J.A., in a decision reported at [2008] B.C.A.C. Uned. 70, held that leave was not required, granted the stay of sentence and refused an extension of time to file the appeal record and transcript. Wong had to file his appeal record and transcript by June 2, 2008, and his factum and appeal book by July 2, 2008. He failed to do so. Majormaki applied to have the stay dissolved and the appeal dismissed as abandoned. On October 3, 2008, Wong moved for an extension of time up to and including November 17, 2008.

The British Columbia Court of Appeal, per Frankel, J.A., in a decision reported at (2008), 261 B.C.A.C. 212; 440 W.A.C. 212, granted Wong's motion. Majormaki was entitled to its costs of both applications. The appeal proceeded.

The British Columbia Court of Appeal dismissed the appeal.

Contempt - Topic 503

What constitutes contempt - General principles - Civil and criminal contempt distinguished - The plaintiff commenced an action alleging that Wong and others had fraudulently induced it to pay $3.5 million to purchase a company - The plaintiff obtained a Mareva injunction freezing Wong's assets and requiring him to account for the $3.5 million - Wong was found to be in contempt of those orders and was sentenced to 21 days' imprisonment for the contempt - He appealed, asserting, inter alia, that the chambers judge had treated the matter as if it were a criminal contempt, rather than civil, and thereby fell into error - The British Columbia Court of Appeal dismissed the appeal - The difference between civil and criminal contempt was that criminal contempt required an additional element of public defiance - Wong's contempt was clearly civil contempt - His breaches of court orders were covert, rather than public, and were not intended to diminish public respect for the justice system - The chambers judge recognized the difference - The court rejected Wong's argument that the chambers judge's use of the phrase "conduct which transcends the interests of private litigants" suggested criminal contempt - The chambers judge wished to emphasize the subversive nature of Wong's conduct and the necessity to impose a penalty that would serve as a message to Wong and others that asset-freezing and disclosure orders were to be respected - See paragraphs 12 to 25.

Contempt - Topic 505

What constitutes contempt - General principles - Civil contempt - [See Contempt - Topic 503 ].

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - [See Contempt - Topic 503 ].

Contempt - Topic 690

What constitutes contempt - Judgments and orders - Injunctions - Disobedience of - [See Contempt - Topic 503 ].

Contempt - Topic 1002

What constitutes contempt - Legal process - Injunctions - Violation of - [See Contempt - Topic 503 ].

Contempt - Topic 3301

Punishment - General (incl. considerations) - The plaintiff commenced an action alleging that Wong and others had fraudulently induced it to pay $3.5 million to purchase a company - The plaintiff obtained a Mareva injunction freezing Wong's assets and requiring him to account for the $3.5 million - Wong was found to be in contempt of those orders and was sentenced to 21 days' imprisonment for the contempt - He appealed, asserting, inter alia, that the chambers judge had erred by misdirecting himself as to the principles that applied to penalties for civil contempt, particularly that sanctions for civil contempt were meant to coerce compliance rather than punish transgressors and that incarceration should be seen as a penalty of last resort - The British Columbia Court of Appeal dismissed the appeal - Denunciation and deterrence were factors to be considered in appropriate civil contempt cases - The chambers judge had not erred in treating those factors as important ones - Further, the chambers judge had concluded correctly that, in this case, incarceration was the only penalty that would meet the court's objectives and mark the seriousness with which the court viewed violations of its orders - See paragraphs 26 to 31.

Contempt - Topic 3305

Punishment - Mitigation - The plaintiff commenced an action alleging that Wong and others had fraudulently induced it to pay $3.5 million to purchase a company - The plaintiff obtained a Mareva injunction freezing Wong's assets and requiring him to account for the $3.5 million - Wong was found to be in contempt of those orders - Prior to the sentencing hearing, Wong provided an affidavit to the court in which he stated that he "unconditionally apologized" for the failure to comply with the Mareva injunction - The action was settled - Wong was sentenced to 21 days' imprisonment for the contempt - He appealed, asserting, inter alia, that the chambers judge had erred in rejecting his apology as not being genuine and having been tendered solely for the purpose of seeking a more lenient penalty for contempt - The British Columbia Court of Appeal dismissed the appeal - The chambers judge, as case management judge, was intimately familiar with the case's progress and with Wong's "track record" - It was not appropriate for the court to interfere with the chambers judge's assessment of the apology - See paragraphs 32 and 33.

Contempt - Topic 3325

Punishment - Imprisonment - When appropriate - [See Contempt - Topic 3301 ].

Cases Noticed:

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. 13].

Law Society of British Columbia v. Hanson, [2004] B.C.T.C. 825; 2004 BCSC 825, refd to. [para. 15].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 18].

Everywoman's Health Centre Society (1988) v. Bridges - see R. v. Bridges.

R. v. Bridges (1991), 54 B.C.L.R.(2d) 273; 78 D.L.R.(4th) 529 (C.A.), refd to. [para. 19].

Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516; 105 C.C.C. 311, refd to. [para. 20].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General) (No. 2) (1992), 57 O.A.C. 145; 94 D.L.R.(4th) 748; 10 O.R.(3d) 46 (C.A.), refd to. [para. 21].

North Vancouver (District) v. Sorrenti (2004), 198 B.C.A.C. 282; 324 W.A.C. 282; 29 B.C.L.R.(4th) 214; 2004 BCCA 316, refd to. [para. 22].

T.L.F. v. E.J.F. (2008), 250 B.C.A.C. 57; 416 W.A.C. 57; 289 D.L.R.(4th) 337; 2008 BCCA 2, refd to. [para. 23].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al. (1998), 129 Man.R.(2d) 161; 180 W.A.C. 161; 162 D.L.R.(4th) 111 (C.A.), refd to. [para. 27].

Roumanis v. Scott (1998), 113 B.C.A.C. 144; 184 W.A.C. 144; 60 B.C.L.R.(3d) 29; 167 D.L.R.(4th) 157 (C.A.), refd to. [para. 31].

Larkin v. Glase - see Glase v. Glase.

Glase v. Glase (2009), 274 B.C.A.C. 1; 463 W.A.C. 1; 2009 BCCA 321, refd to. [para. 31].

Counsel:

H.A. Mickelson, Q.C., and J.A. Manson, for the appellant;

J.D. Hughes, for the respondent.

This appeal was heard at Vancouver, British Columbia, on February 17, 2009, by Prowse, Mackenzie and Groberman, JJ.A., of the British Columbia Court of Appeal. On August 19, 2009, Groberman, J.A., delivered the following judgment for the court.