COURT OF APPEAL FOR ONTARIO
CITATION: Steinberg v. Adderley, 2023 ONCA 725
DATE: 20231102
DOCKET: COA-22-CV-0335
van Rensburg, Hourigan and Favreau JJ.A.
BETWEEN
Rudolf Steinberg, Jakob Steinberg and Amanda Steinberg minors by their Litigation Guardian, Rudolf Steinberg
Plaintiffs (Appellant)
and
Pamela Adderley
Defendant (Respondent)
Mark Stoiko, for the appellant
Katy Commisso and Alex W. Demeo, for the respondent
Heard: October 20, 2023
On appeal from the orders of Justice F. Bruce Fitzpatrick of the Superior Court of Justice, dated September 29, 2022 and October 26, 2022, with reasons reported at 2022 ONSC 5551.
REASONS FOR DECISION
A. Introduction
[1] The appellant, Rudolph Steinberg, appeals an order finding him in contempt and dismissing his action. The appellant claims that the motion judge erred by failing to treat contempt as an order of last resort and by failing to accept that he had a legitimate excuse for not complying with the court’s previous orders.
[2] We do not accept that the motion judge made any errors in finding the appellant in contempt and in exercising his discretion to dismiss the appellant’s action.
B. background
[3] The appellant was involved in a motor vehicle accident on October 29, 2011. He commenced his action in January 2013.
[4] The appellant lives in a rural area near Thunder Bay.
[5] In support of his claim, in 2017, the appellant’s counsel served numerous expert medical reports. In response, the respondent’s counsel scheduled two medical examinations in Toronto for November 2018. The appellant, through his counsel, originally agreed to attend these medical examinations. However, in September 2018, his counsel cancelled the examinations stating that, for medical reasons, the appellant was not able to travel to Toronto.
[6] The respondent brought a motion to compel the appellant to attend the medical examinations. The motion proceeded before Shaw J. There were many procedural steps before the motion was decided, including several case conferences and a medical examination mandated by the court to assess the appellant’s fitness to travel to Toronto. Ultimately, on November 26, 2021, Shaw J. made an order requiring the appellant to attend medical examinations in Toronto. However, he qualified this order by stating that it was without prejudice to the appellant’s right to bring a future motion to modify or set aside the order because of COVID-19. In his decision, Shaw J. found that the appellant was able to travel to Toronto for the medical examinations. He based this finding on medical evidence that the appellant was able to travel to Toronto by air, train or car for long distances, and on the fact that the appellant had driven himself to distant locations since refusing to attend the medical examinations, such as from Thunder Bay to Alberta. Shaw J. further found that he was not able to adjudicate the issue of whether COVID-19 should affect the requirement that the appellant attend medical examinations in Toronto because this issue was raised “at the last hour” by the appellant.
[7] The appellant brought a subsequent motion seeking to set aside Shaw J.’s order on the basis of COVID-19. The motion was heard by Fitzpatrick J., the motion judge whose order is under appeal. The motion judge found that there was an insufficient evidentiary basis for the appellant’s position that he should not be required to travel to Toronto due to COVID-19. On April 27, 2022, the motion judge made an order requiring the appellant to attend medical examinations in Toronto in May 2022.
[8] Despite this second order, the appellant refused to attend the medical examinations. On May 6, 2022, his lawyer wrote a letter to the respondent’s lawyer advising that the appellant did not intend to attend the defence medical examinations.
[9] The respondent brought a motion for contempt. In response, the appellant brought a cross-motion seeking an order that he was not in contempt and that the medical examinations take place in Thunder Bay. On the motions, the appellant continued to take the position that he should not be compelled to travel to Toronto because of his medical condition. His evidence on the motion consisted of an affidavit by his chiropractor stating that the appellant’s condition had worsened since 2017 and that long-distance car travel could pose a risk to his life. The appellant also swore an affidavit stating that he had not driven further than Thunder Bay since 2021 and that he had reduced his participation in various “high-risk” activities since then due to his medical condition.
[10] The motion judge rejected the appellant’s position, finding that the appellant’s evidence did not establish that his condition had worsened since the orders made in 2021 and 2022, nor did it establish that he could not travel by air or by train. He also found that the appellant’s attempt to move the medical examinations to Thunder Bay was an improper collateral attack on the court’s two previous orders.
[11] The motion judge granted the respondent’s motion for contempt, on the basis that all requirements for contempt were made out beyond a reasonable doubt. The motion judge further decided that the appropriate remedy in this case was to dismiss Mr. Steinberg’s action with costs. In making this order, the motion judge relied on Rule 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that when a party fails to comply with an interlocutory order, the court has the power to dismiss the proceeding. The motion judge decided that this was an appropriate remedy for several reasons, including that the appellant “will never travel to the GTA as ordered to attend defence medicals no matter how many more chances he is given to purge his contempt” and that his “paradoxical behaviour” of seeking a large monetary award while refusing to comply with the court’s clear orders was contemptuous conduct that should not be rewarded.
C. analysis
[12] The appellant’s primary arguments on appeal are that the motion judge failed to consider that a finding of contempt is a remedy of last resort and that the evidence on the motion showed that he was not able to travel to Toronto for the medical examinations and therefore incapable of complying with the orders.
[13] We reject these grounds of appeal.
[14] First, we see no error in the motion judge’s finding of contempt. It is clear from the record that the appellant deliberately failed to comply with two previous court orders. We agree with the appellant that contempt orders are not to be made routinely and they are meant to be orders of last resort: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at para. 36. However, in this case, the motion judge’s finding of contempt was well-supported by his finding that the appellant’s conduct showed that he was aware of the orders, that their terms were clear, that he deliberately chose not to comply with them and that he had no intention of complying with them in the future. While the motion judge did not explicitly state that contempt is a remedy of last resort, it is evident from his decision that he did not make this finding lightly. Rather, he based the finding of contempt on the appellant’s persistent refusal to comply with the orders, including on the motion where he maintained his refusal to do so.
[15] Notably, at the argument of the appeal, we gave the appellant the chance to advise whether he would now be willing to travel to Toronto for the medical examinations if he was given one last chance to do so. After consulting with the appellant, his counsel advised the appellant would be willing to travel to Toronto for the medical examinations if the respondent arranged special medical air transportation and paid for someone to look after his animals during his absence. There was no evidence below or before us that special air travel arrangements were required. More importantly, the opportunity to purge a contempt does not include an entitlement to seek changes to the original terms of the order at issue. Through this response, the appellant demonstrated his persistent refusal to comply with the court’s previous orders.
[16] We also reject the appellant’s argument that the motion judge should have found that there was a change in circumstances justifying the appellant’s failure to comply with the orders. The motion judge rejected this position based on his review of the evidence. His evidentiary findings are entitled to deference and are supported by the record. The chiropractor’s evidence, even if it was admissible as expert evidence, refers to the appellant’s condition worsening since 2017 but does not establish a change in circumstances since 2022. As found by the motion judge, in the absence of evidence of a change in circumstances, the issue of whether the appellant is able to travel to Toronto for the medical examinations had already been decided by Shaw J. and the motion judge, and the appellant’s attempt to relitigate this issue is an improper collateral attack on those earlier orders.
[17] Finally, we see no error in the motion judge’s decision that the appropriate penalty in this case was to dismiss the action. The penalty for a finding of contempt is discretionary and entitled to deference: Susin v. Susin, 2014 ONCA 733, at para. 53. As noted by the motion judge, the penalty in this case is consistent with the court’s powers under Rule 60.12 of the Rules of Civil Procedure. The motion judge was well placed to determine that, in the circumstances of this case, which again included the appellant’s persistent refusal to attend medical examinations in Toronto, it was appropriate to dismiss the action without giving the appellant another opportunity to attend the medical examinations. In other cases, it may be appropriate for the court to impose a lesser punishment or to give a contemnor an additional chance to comply. But in this case, the motion judge made an express finding that it would be futile to do so. This was confirmed before us. We see no reason to interfere with his decision.
D. disposition
[18] Accordingly, the appeal is dismissed.
[19] As agreed between the parties, the respondent is entitled to costs in the amount of $12,500 all inclusive.
“K. van Rensburg J.A.”
“C.W. Hourigan J.A.”
“L. Favreau J.A.”