Introduction
In Estate of Nordby,[1] the penalty for a finding of contempt pursuant to Rule 60.11[2] was addressed in a passing of accounts case where patience with the responding party had clearly worn thin.
Pursuant to Rule 60.11, a contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on a motion to a judge in the proceeding in which the order to be enforced was made. This notice must be served personally and not by an alternative to personal service and should include an affidavit in support.
Background
The Applicant, the Office of the Children’s Lawyer (the “OCL”), is litigation guardian for a minor child, the grandson of H.N., (the “Respondent”).
The Respondent’s daughter died in 2013. Her will appointed the Respondent as estate trustee and named her two children as beneficiaries.[3] The Respondent obtained a Certificate of Appointment of Estate Trustee with a Will on October 30, 2013. Despite multiple requests from the OCL, the Respondent failed to provide an accounting of estate assets.[4]
In April of 2017, the OCL obtained an order requiring the Respondent to file accounts of the estate and bring an application to pass accounts within 60 days of the order being served on him. However, by November, the Respondent had not complied. As a result, the OCL brought a motion for contempt.
The Respondent evaded service of the contempt motion and on August 11, 2022, the Honourable Justice W.D. Newton granted an order for substituted service of the contempt motion.[5] The Respondent was served and failed to appear, and thus, was found in contempt.[6] However, Newton J. ruled that the Respondent may purge his contempt by filing the application to pass accounts within 60 days of service of the order.
By December, the Respondent had not purged his contempt and the OCL moved for a penalty. The Respondent appeared this time and the penalty hearing was adjourned to allow him to seek and retain legal counsel. On January 26, counsel appeared on behalf of the Respondent and sought an extension of 60 days to allow their client to purge his contempt by perfecting and filing his application to pass accounts.[7] The OCL sought a penalty of 30 days imprisonment and costs of the motions.
The Law
The central issue in this case surrounded a failure to pass accounts and the subsequent contempt order that followed, which is dealt with in the Rules of Civil Procedure:
Rule 60.11(5) provides that where a finding of contempt is made, the court may order that the person in contempt:
a) be imprisoned for such period and on such terms as are just;
b) be imprisoned if the person fails to comply with a term of the order;
c) pay a fine;
d) do or refrain from doing an act;
e) pay such costs as are just; and
f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
His Honour also looked at authoritative case law on the matter, including the decisions in Poulie v Johnston[8] where a sentence of four months imprisonment for contempt was imposed and Langston v Landen[9] where the Honourable Madam Justice Greer sentenced an estate trustee to 14 months imprisonment for contempt of various orders including failing to pass accounts.
In Poulie, the court applied legal principles for a finding of contempt, noting that one of the key principles to be applied in a sentence, even for civil contempt, is deterrence. In Poulie, LeMay J. cited McLachlin J. (as she then was) in United Nurses of Alberta v Alberta (Attorney General)[10] who noted that “[b]oth civil and criminal contempt of court rest on the power of the court to uphold its dignity and process … the rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.”[11]
The decision in Langston held that:
[p]roper penalties make the public sit up and take notice. The word goes out into the community that the Court will not tolerate disobedience of its Orders. In this case, the “community” is specific as well as general in nature. The specific community is that of estate trustees and other trustees, as well as persons in positions as fiduciaries, persons acting under powers of attorney or other positions of trust.[12]
The Langston decision is illustrative of some of the most egregious conduct demonstrated by an executor. In that case, a rogue executor failed to probate a will and embarked on a campaign of fraud and deceit, depleting millions of dollars from an estate worth over $24 million. Over the course of seven years, the executor helped himself to estate assets, purchasing a mansion in Toronto’s Forest Hill neighborhood, leasing luxury cars for all of his family members, purchasing season’s tickets to the Toronto Maple Leafs and Raptors, and living an extravagant lifestyle at the expense of the estate. The fraud was discovered in 2004 when the Ontario Securities Commission investigated the executor for insider trading involving a company owned by the estate. At the time of discovery, there was less than $1 million left.
On October 14, 2010, Justice Greer found the executor in contempt of four Orders.[13] The executor’s conduct was described by Her Honour as “sociopathy … such that all his actions appeared to be a deliberate course of greed.” Her Honour then went on to state that, “This was no single incident and no slip from otherwise honest behavior.”[14]
The executor made an oral apology to the Court at the end of the sanctions hearing, however, Justice Greer stated that, “[i]n the face of all of this, I find no sincerity in Landen’s apology. I do not consider it to be a mitigating factor in this case.”[15] Justice Greer carefully noted that had the executor committed such fraud in any other position, someone would have reported the crime to the police. Taking all factors into account, Her Honour determined that the appropriate sentence was imprisonment for a period of 14 months. On the completion of this sentence, the executor was to return to the Superior Court of Justice to explain what he did with the balance of the estate assets.
On his return to court, Justice Greer determined that the executor did not purge his contempt. He filed no Affidavit, no letter of apology, and did not provide the court with a reasonable explanation. Justice Greer reluctantly concluded that it would not serve the public’s interests to sentence the executor to another 6 months in prison and withdrew the Order to have the executor Pass his Accounts in the Estate, describing that as “an impossible task for him.”[16] The matter concluded with the executor no longer bound to the Court and the Contempt Order and avoiding another prison sentence.[17]
Analysis
As the court noted in this decision, there has been a long-standing breach of a court order. The OCL has been requesting an accounting of estate assets for over five years. The Respondent had not taken adequate steps to discharge his duty. What’s more, only when the fire hit the pan did the Respondent finally act. As His Honour notes, “[i]ndeed, on the return of the motion before me on January 26, 2023, it was apparent that [the Respondent] had only retained counsel two days before the motion was heard.”[18]
His Honour clearly outlined that the Respondent “… is an estate trustee. He has been advised of his obligation to pass accounts and he has ignored that obligation. His actions show a complete disregard to his obligation as an estate trustee and a willful disregard for a court order.”[19]
Disposition
While the court was satisfied the Respondent’s conduct was not as egregious as that found in the line of authoritative cases, it still concluded that a fine was not appropriate in this case as “imprisonment is a punishment that will make [the Respondent] and the public “sit up and take notice””[20]
The penalty which His Honour deemed appropriate in this matter was imprisonment for a term of five days. His Honour signed a warrant of committal[21], however, granted the Respondent’s request to file passing of accounts within 60 days and obtain a date for the hearing of the passing of accounts.[22]
Costs were awarded to the OCL in the amount of $2500, all-inclusive, to be paid from the Respondent’s own personal funds and not from the estate.
Conclusion
This case illustrates a valuable lesson to those who are appointed to the position of estate trustee. An estate trustee is a fiduciary who has a duty to the estate and its beneficiaries. One of the obligations of an estate trustee is to pass accounts of the estate assets upon request. This is not a duty to be taken lightly or, as was the case here, to be disregarded entirely. There are serious consequences for a breach of a fiduciary duty. The same can be said for disregarding a court order. The court has the authority and discretion to impose a term of imprisonment in the face of contempt and as this decision illustrates, courts will impose a jail sentence in the face of egregious conduct.
—
[1] 2023 ONSC 821 [Nordby].
[2] Rules of Civil Procedure, RRO 1990, Reg 194, r. 60.11.
[3] Nordby, supra note 1 at para. 5.
[4] Ibid., para. 7.
[5] See Simon Sigler and Kimberley Chew Leung, Rules of Civil Procedure Chapters, Service, Rule 16 – Service of Documents in Civil Procedure and Practice in Ontario, Noel Semple (ed.), Canadian Legal Information Institute, 2021 CanLIIDocs 2022, where the authors write that pursuant to Rule 16.04, the court can order substituted service (which is service that is effected in a way other than through personal service or alternatives to personal service) or order that service be dispensed altogether. Courts will make this kind of order only when it is very difficult or even impractical to provide proper service.
[6] See Nordby, supra note 1 at para. 15 where His Honour held that “I was satisfied beyond a reasonable doubt that that the order alleged to have been breached clearly and unequivocally states what is required, that [the Respondent] had actual notice of the order, and that [the Respondent] intentionally failed to do what was ordered.
[7] Ibid., at para. 19.
[8] 2022 ONSC 5186 [Poulie].
[9] 2010 ONSC 6993 [Langston].
[10] 1992 CanLII 99 (SCC), [1992] 1 SCR 901.
[11] Poulie, supra note 9 at 45.
[12] Langston, supra note 8 at para. 43.
[13] The Orders included: a Mareva Injunction Order dated March 2, 2005; a Passing of Accounts Order April 7, 2006; a July 7, 2006 Order to provide the Court with an up-dated Affidavit respecting the up-dated values of the assets listed in the Mareva Injunction; and a February 27, 2009 Order to attend at an Examination in-aid-of-execution. There were also other Orders and Endorsements over the five years of litigation.
[14] Langston, supra note 8 at para. 29.
[15] Ibid., at para. 30.
[16] Langston et al. v. Landen, 2012 ONSC 7290, para. 36.
[17] At the time of the decision, Her Honour describes the executor as “living alone in a friend’s house and is said to be in receipt of social assistance. His life has become a narrow existence in comparison to the salad days of living in Forest Hill, attending the Leaf’s games, and driving luxury cars, all on other people’s money.”
[18] Nordby, supra note 1 at para. 29.
[19] Ibid., para. 30.
[20] Ibid., para. 33.
[21] See Rules of Civil Procedure, RRO 1990, Reg 194, r. 60.11(7) which states that “An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60L)”
[22] Ibid., para. 35.
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Written by: WEL Partners
Posted on: April 10, 2023
Categories: Commentary, WEL Newsletter
Introduction
In Estate of Nordby,[1] the penalty for a finding of contempt pursuant to Rule 60.11[2] was addressed in a passing of accounts case where patience with the responding party had clearly worn thin.
Pursuant to Rule 60.11, a contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on a motion to a judge in the proceeding in which the order to be enforced was made. This notice must be served personally and not by an alternative to personal service and should include an affidavit in support.
Background
The Applicant, the Office of the Children’s Lawyer (the “OCL”), is litigation guardian for a minor child, the grandson of H.N., (the “Respondent”).
The Respondent’s daughter died in 2013. Her will appointed the Respondent as estate trustee and named her two children as beneficiaries.[3] The Respondent obtained a Certificate of Appointment of Estate Trustee with a Will on October 30, 2013. Despite multiple requests from the OCL, the Respondent failed to provide an accounting of estate assets.[4]
In April of 2017, the OCL obtained an order requiring the Respondent to file accounts of the estate and bring an application to pass accounts within 60 days of the order being served on him. However, by November, the Respondent had not complied. As a result, the OCL brought a motion for contempt.
The Respondent evaded service of the contempt motion and on August 11, 2022, the Honourable Justice W.D. Newton granted an order for substituted service of the contempt motion.[5] The Respondent was served and failed to appear, and thus, was found in contempt.[6] However, Newton J. ruled that the Respondent may purge his contempt by filing the application to pass accounts within 60 days of service of the order.
By December, the Respondent had not purged his contempt and the OCL moved for a penalty. The Respondent appeared this time and the penalty hearing was adjourned to allow him to seek and retain legal counsel. On January 26, counsel appeared on behalf of the Respondent and sought an extension of 60 days to allow their client to purge his contempt by perfecting and filing his application to pass accounts.[7] The OCL sought a penalty of 30 days imprisonment and costs of the motions.
The Law
The central issue in this case surrounded a failure to pass accounts and the subsequent contempt order that followed, which is dealt with in the Rules of Civil Procedure:
Rule 60.11(5) provides that where a finding of contempt is made, the court may order that the person in contempt:
a) be imprisoned for such period and on such terms as are just;
b) be imprisoned if the person fails to comply with a term of the order;
c) pay a fine;
d) do or refrain from doing an act;
e) pay such costs as are just; and
f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
His Honour also looked at authoritative case law on the matter, including the decisions in Poulie v Johnston[8] where a sentence of four months imprisonment for contempt was imposed and Langston v Landen[9] where the Honourable Madam Justice Greer sentenced an estate trustee to 14 months imprisonment for contempt of various orders including failing to pass accounts.
In Poulie, the court applied legal principles for a finding of contempt, noting that one of the key principles to be applied in a sentence, even for civil contempt, is deterrence. In Poulie, LeMay J. cited McLachlin J. (as she then was) in United Nurses of Alberta v Alberta (Attorney General)[10] who noted that “[b]oth civil and criminal contempt of court rest on the power of the court to uphold its dignity and process … the rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.”[11]
The decision in Langston held that:
[p]roper penalties make the public sit up and take notice. The word goes out into the community that the Court will not tolerate disobedience of its Orders. In this case, the “community” is specific as well as general in nature. The specific community is that of estate trustees and other trustees, as well as persons in positions as fiduciaries, persons acting under powers of attorney or other positions of trust.[12]
The Langston decision is illustrative of some of the most egregious conduct demonstrated by an executor. In that case, a rogue executor failed to probate a will and embarked on a campaign of fraud and deceit, depleting millions of dollars from an estate worth over $24 million. Over the course of seven years, the executor helped himself to estate assets, purchasing a mansion in Toronto’s Forest Hill neighborhood, leasing luxury cars for all of his family members, purchasing season’s tickets to the Toronto Maple Leafs and Raptors, and living an extravagant lifestyle at the expense of the estate. The fraud was discovered in 2004 when the Ontario Securities Commission investigated the executor for insider trading involving a company owned by the estate. At the time of discovery, there was less than $1 million left.
On October 14, 2010, Justice Greer found the executor in contempt of four Orders.[13] The executor’s conduct was described by Her Honour as “sociopathy … such that all his actions appeared to be a deliberate course of greed.” Her Honour then went on to state that, “This was no single incident and no slip from otherwise honest behavior.”[14]
The executor made an oral apology to the Court at the end of the sanctions hearing, however, Justice Greer stated that, “[i]n the face of all of this, I find no sincerity in Landen’s apology. I do not consider it to be a mitigating factor in this case.”[15] Justice Greer carefully noted that had the executor committed such fraud in any other position, someone would have reported the crime to the police. Taking all factors into account, Her Honour determined that the appropriate sentence was imprisonment for a period of 14 months. On the completion of this sentence, the executor was to return to the Superior Court of Justice to explain what he did with the balance of the estate assets.
On his return to court, Justice Greer determined that the executor did not purge his contempt. He filed no Affidavit, no letter of apology, and did not provide the court with a reasonable explanation. Justice Greer reluctantly concluded that it would not serve the public’s interests to sentence the executor to another 6 months in prison and withdrew the Order to have the executor Pass his Accounts in the Estate, describing that as “an impossible task for him.”[16] The matter concluded with the executor no longer bound to the Court and the Contempt Order and avoiding another prison sentence.[17]
Analysis
As the court noted in this decision, there has been a long-standing breach of a court order. The OCL has been requesting an accounting of estate assets for over five years. The Respondent had not taken adequate steps to discharge his duty. What’s more, only when the fire hit the pan did the Respondent finally act. As His Honour notes, “[i]ndeed, on the return of the motion before me on January 26, 2023, it was apparent that [the Respondent] had only retained counsel two days before the motion was heard.”[18]
His Honour clearly outlined that the Respondent “… is an estate trustee. He has been advised of his obligation to pass accounts and he has ignored that obligation. His actions show a complete disregard to his obligation as an estate trustee and a willful disregard for a court order.”[19]
Disposition
While the court was satisfied the Respondent’s conduct was not as egregious as that found in the line of authoritative cases, it still concluded that a fine was not appropriate in this case as “imprisonment is a punishment that will make [the Respondent] and the public “sit up and take notice””[20]
The penalty which His Honour deemed appropriate in this matter was imprisonment for a term of five days. His Honour signed a warrant of committal[21], however, granted the Respondent’s request to file passing of accounts within 60 days and obtain a date for the hearing of the passing of accounts.[22]
Costs were awarded to the OCL in the amount of $2500, all-inclusive, to be paid from the Respondent’s own personal funds and not from the estate.
Conclusion
This case illustrates a valuable lesson to those who are appointed to the position of estate trustee. An estate trustee is a fiduciary who has a duty to the estate and its beneficiaries. One of the obligations of an estate trustee is to pass accounts of the estate assets upon request. This is not a duty to be taken lightly or, as was the case here, to be disregarded entirely. There are serious consequences for a breach of a fiduciary duty. The same can be said for disregarding a court order. The court has the authority and discretion to impose a term of imprisonment in the face of contempt and as this decision illustrates, courts will impose a jail sentence in the face of egregious conduct.
—
[1] 2023 ONSC 821 [Nordby].
[2] Rules of Civil Procedure, RRO 1990, Reg 194, r. 60.11.
[3] Nordby, supra note 1 at para. 5.
[4] Ibid., para. 7.
[5] See Simon Sigler and Kimberley Chew Leung, Rules of Civil Procedure Chapters, Service, Rule 16 – Service of Documents in Civil Procedure and Practice in Ontario, Noel Semple (ed.), Canadian Legal Information Institute, 2021 CanLIIDocs 2022, where the authors write that pursuant to Rule 16.04, the court can order substituted service (which is service that is effected in a way other than through personal service or alternatives to personal service) or order that service be dispensed altogether. Courts will make this kind of order only when it is very difficult or even impractical to provide proper service.
[6] See Nordby, supra note 1 at para. 15 where His Honour held that “I was satisfied beyond a reasonable doubt that that the order alleged to have been breached clearly and unequivocally states what is required, that [the Respondent] had actual notice of the order, and that [the Respondent] intentionally failed to do what was ordered.
[7] Ibid., at para. 19.
[8] 2022 ONSC 5186 [Poulie].
[9] 2010 ONSC 6993 [Langston].
[10] 1992 CanLII 99 (SCC), [1992] 1 SCR 901.
[11] Poulie, supra note 9 at 45.
[12] Langston, supra note 8 at para. 43.
[13] The Orders included: a Mareva Injunction Order dated March 2, 2005; a Passing of Accounts Order April 7, 2006; a July 7, 2006 Order to provide the Court with an up-dated Affidavit respecting the up-dated values of the assets listed in the Mareva Injunction; and a February 27, 2009 Order to attend at an Examination in-aid-of-execution. There were also other Orders and Endorsements over the five years of litigation.
[14] Langston, supra note 8 at para. 29.
[15] Ibid., at para. 30.
[16] Langston et al. v. Landen, 2012 ONSC 7290, para. 36.
[17] At the time of the decision, Her Honour describes the executor as “living alone in a friend’s house and is said to be in receipt of social assistance. His life has become a narrow existence in comparison to the salad days of living in Forest Hill, attending the Leaf’s games, and driving luxury cars, all on other people’s money.”
[18] Nordby, supra note 1 at para. 29.
[19] Ibid., para. 30.
[20] Ibid., para. 33.
[21] See Rules of Civil Procedure, RRO 1990, Reg 194, r. 60.11(7) which states that “An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60L)”
[22] Ibid., para. 35.
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