Wednesday, November 23, 2016

Judge Orders Lawyer and Client Jailed For Contempt

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.





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