Susin v. Susin, (2014) 327 O.A.C. 61 (CA)

• Judge: Hoy, A.C.J.O., Feldman and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 29, 2014
• Jurisdiction: Ontario
• Citations: (2014), 327 O.A.C. 61 (CA);2014 ONCA 733

Susin v. Susin (2014), 327 O.A.C. 61 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. OC.024

Dorino Susin (moving party/appellant) v. Fermino Susin (defendant/respondent)

(C58399; 2014 ONCA 733)

Indexed As: Susin v. Susin

Ontario Court of Appeal

Hoy, A.C.J.O., Feldman and Blair, JJ.A.

October 29, 2014.

Summary:

Nine siblings were involved in protracted and contentious estate litigation. One faction, led by Dorino Susin, initiated most of the proceedings. There were repetitious attempts to change the venue from Welland to Brampton. Seven Superior Court judges affirmed that Welland was the proper venue for all estate proceedings, including the passing of accounts. In spite of those rulings, and a clear warning to Dorino of the prospect of imprisonment, Dorino moved to have the estate accounts passed in Brampton. Dorino was found in contempt. His punishment was three days' imprisonment, a $10,000 fine payable to the estate and a prohibition against any further steps in this proceeding or any other proceeding in which two of his siblings were parties. Dorino appealed. He argued that technically, there was no court order requiring the passing of accounts in Welland, so he could not be found in contempt of a court order. He also argued that he was not personally served with the cross-motion to find him in contempt and that the order prohibiting him from further proceedings was too broad.

The Ontario Court of Appeal allowed the appeal in part. The court affirmed that Dorino was in contempt of court for disobedience of a court order or, alternatively, at common law for conduct intended to, or likely to, interfere with or obstruct the fair administration of justice. The lack of personal service of the contempt cross-motion and supporting materials was not fatal where actual knowledge was proved or inferred. However, the motions judge erred in making a fine for civil contempt payable to the estate rather than the Provincial Treasurer. The court set aside the fine, as three days' imprisonment (already served) was sufficient to meet the goal of deterrence and stress the need for respect for the court's process. The court also varied the order that Dorino be prohibited from taking any further steps in the proceeding or any other proceeding in which two of his siblings were parties by adding "without leave of the court".

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - [See Contempt - Topic 1005 ].

Contempt - Topic 1005

What constitutes contempt - Legal process - Impeding or frustrating orderly administration of justice - Nine siblings were involved in protracted and contentious estate litigation - One faction, led by Dorino Susin, initiated most of the proceedings - There were repetitious attempts to change the venue from Welland to Brampton - Seven Superior Court judges affirmed that Welland was the proper venue for all estate proceedings, including the passing of accounts - In spite of those rulings, and a clear warning to Dorino of the prospect of imprisonment, Dorino moved to have the estate accounts passed in Brampton - Dorino was found in contempt - His punishment was three days' imprisonment, a $10,000 fine payable to the estate and a prohibition against any further steps in this proceeding or any other proceeding in which two of his siblings were parties - Dorino appealed - He argued that technically, there was no court order requiring the passing of accounts in Welland, so he could not be found in contempt of a court order - He also argued that he was not personally served with the cross-motion to find him in contempt and that the order prohibiting him from further proceedings was too broad - The Ontario Court of Appeal allowed the appeal in part - Dorino was in contempt of court for disobeying a court order or, alternatively, at common law for conduct intended to, or likely to, interfere with or obstruct the fair administration of justice - The lack of personal service of the contempt cross-motion was not fatal where actual knowledge was proved or inferred - However, the motions judge erred in making a fine for civil contempt payable to the estate rather than the Provincial Treasurer - The court set aside the fine, as three days' imprisonment (already served) was sufficient to meet the goal of deterrence and stress the need for respect for the court's process - The court also varied the order that Dorino be prohibited from taking any further steps in the proceeding or any other proceeding in which two of his siblings were parties by adding "without leave of the court".

Contempt - Topic 3302

Punishment - Dismissal of pleadings, action or appeal or bar to further proceedings - [See Contempt - Topic 1005 ].

Contempt - Topic 3315

Punishment - Fines - [See Contempt - Topic 1005 ].

Contempt - Topic 3324

Punishment - Imprisonment - General - [See Contempt - Topic 1005 ].

Contempt - Topic 5023

Practice - Notice - Service of - [See Contempt - Topic 1005 ].

Cases Noticed:

Services aux enfants et adultes de Prescott-Russell v. N.G. et al. (2006), 214 O.A.C. 146; 82 O.R.(3d) 686 (C.A.), refd to. [para. 21].

Prescott-Russell Services for Children and Adults v. G. (N.) et al. - see Services aux enfants et adultes de Prescott-Russell v. N.G. et al.

Bell ExpressVu Limited Partnership v. Torroni et al. (2009), 246 O.A.C. 212; 94 O.R.(3d) 614 (C.A.), refd to. [para. 21].

R. v. Gray, [1900] 2 Q.B. 36, refd to. [para. 24].

R. v. Cohn (1984), 4 O.A.C. 293; 48 O.R.(2d) 65 (C.A.), leave to appeal denied [1985] 1 S.C.R. vii; 58 N.R. 160, refd to. [para. 24].

Dickie v. Dickie (2006), 206 O.A.C. 257; 78 O.R.(3d) 1 (C.A.), revd. [2007] 1 S.C.R. 346; 357 N.R. 196; 2007 SCC 8, refd to. [para. 34].

Bhatnager v. Minister of Employment and Immigration, [1990] 2 S.C.R. 217; 111 N.R. 185, refd to. [para. 35].

Scaffidi v. Scaffidi (1998), 78 O.T.C. 370; 41 R.F.L.(4th) 166 (Gen. Div.), refd to. [para. 35].

SNC-Lavalin Profac Inc. v. Sankar et al., [2009] O.A.C. Uned. 655; 94 O.R.(3d) 236; 2009 ONCA 97, refd to. [para. 39].

Boily et al. v. Carleton Condominium Corp. No. 145 et al., [2014] O.A.C. TBEd. AU.004; 2014 ONCA 574, refd to. [para. 41].

Royal Bank of Canada et al. v. Yates Holdings Inc. et al., [2007] O.T.C. Uned. 471; 33 C.B.R.(5th) 268 (Sup. Ct.), refd to. [para. 45].

Merck & Co. et al. v. Apotex Inc. (2001), 206 F.T.R. 51; 12 C.P.R.(4th) 456; 2001 FCT 589, varied (2003), 305 N.R. 68; 227 D.L.R.(4th) 106; 25 C.P.R.(4th) 289; 2003 FCA 234, leave to appeal denied [2003] S.C.C.A. No. 366; 329 N.R. 198, refd to. [para. 45].

Counsel:

Robert Klotz, for the appellant;

Margaret A. Hoy, for the respondent.

This appeal was heard on September 8, 2014, before Hoy, A.C.J.O., Feldman and Blair, JJ.A., of the Ontario Court of Appeal.

On October 29, 2014, Blair, J.A., released the following judgment for the Court of Appeal.