Business Development Bank of Canada v. Cavalon Inc. 2016
ONSC 6825
In this case, both a lawyer and his former
client were ordered to serve 90 day custodial sentences after being found in
contempt of an order of a judge of the Ontario Superior Court of
Justice.
These reasons arose out of the penalty phase of
contempt proceedings. In previous reasons, Justice Gray found Robert
Bortolon (“Bortolon”) and his former lawyer, Robyrt Regan (“Regan”),
in contempt of an order of Justice Lemay. The context involved an application commenced by the Business Development Bank of Canada ("Bank"). Justice Gray found that Regan
and Bortolon had made a deal under which a number of documents would be shipped to
Bortolon rather than being made available for inspection by the Bank. The
order had required Regan to make those documents available to lawyers for the Bank for inspection.
Justice Gray found that Bortolon and Regan agreed between
them that if Bortolon settled a dispute with Regan, the lawyer would ship a
number of incriminating documents to Bortolon. Justice Gray found that the agreement had been carried out.
At the penalty hearing, Bortolon argued that the court
should be sensitive to his "feelings of injustice" in arriving at the appropriate
penalty. Bortolon fixed most of the responsibility on his former lawyer
Regan. He sought a non-custodial penalty.
Regan filed material in which he took the position that he
did not intentionally violate Justice LeMay’s order. He said he was truly
sorry for writing a letter that could be, and indeed was, misunderstood. He
was also sorry for doing something that appeared to bring the administration of
justice into disrepute.
Bortolon did not offer an apology. Regan did, but it
was couched in terms similar to his affidavit, i.e. that he was sorry that his
conduct had the appearance of bringing the administration of justice into
disrepute.
Counsel for the Bank did not seek a penalty against
either Bortolon or Regan. Rather he sought an order striking the
responding material and in effect granting default judgment in the Bank’s
favour. The Bank argued that as a result of the actions of Bortolon
and Regan in concealing documents, it can no longer be assured of a fair
hearing.
Justice Gray agreed with the Bank. He found that there
could be "no doubt that highly relevant documents have disappeared" and would never
be made available to the Bank. The Bank would never be satisfied that it
could obtain a fair hearing because of the actions of Regan and
Bortolon. Accordingly, this is an appropriate case to strike the
responding material and to grant default judgment in favour of the Bank.
The judge then looked at factors for the
appropriate sanction for contempt. He found that as to mitigating factors,
he was not aware that either Bortolon or Regan had a criminal record.
There was no history of violating court orders.
An apology would ordinarily be a mitigating factor.
However, there was no apology from Bortolon and Regan’s apology was at best
equivocal.
A purging of contempt would ordinarily be a mitigating
factor however neither party had purged their contempt. As an aggravating
factor he found it an affront to the administration of justice that parties
believed that they could ignore a court order if there was a personal advantage
in doing so.
In the circumstances, he found that only a custodial penalty
would suffice. He ordered that Bortolon and Regan both serve 90 days in
custody.
I have been advised that the case is under appeal.
I have been advised that the case is under appeal.
Regards,
Blair
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