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Contempt - Appeal of Dismissal of Contempt Motion

The Catalyst Capital Group Inc. v. Moyse (Ont CA, 2015)

In this case the court discusses the appeal route for contempt motions
[9] Mr. Moyse argues that an order dismissing a contempt motion is interlocutory for the purpose of an appeal, and therefore lies to the Divisional Court, with leave, under s. 19(1)(b) of the Courts of Justice Act. He relies on this court’s brief endorsement in Simmonds v. Simmonds, 2013 ONCA 479, which was an appeal from an order of a motion judge dismissing a motion for a finding of contempt against the respondent’s spouse in a family dispute. There, the motion judge found that the respondent had complied with the disclosure order in question. In Simmonds, this court accepted the respondent’s argument that while an order finding contempt is final, the dismissal of the motion for contempt was interlocutory: the motion judge’s finding was not binding on the trial judge. The court rejected the conclusion to the contrary found in Pimiskern v. Brophey, [2013] O.J. No. 505 (S.C.).

[10] Catalyst argues that the ruling precedent is this court’s decision in Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530 (CanLII), in which the court heard an appeal from a decision dismissing a contempt motion. That case was about the possible breach of a Mareva injunction. I observe that the court did not advert to the interlocutory/final distinction or to the question of jurisdiction at all. The issue appears not to have been argued.

[11] In fairness to the parties, this court’s decisions on the final/interlocutory distinction have not been models of clarity. Much ink has been spilled, and court and counsel time wasted in exploring the nuances. But the root principle that all can and do accept was expressed by Middleton J.A in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675:
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the applications, but it is interlocutory if the merits of the case remain to be determined.
[12] This important case is one to which this court frequently returns. See, for example, Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53 (CanLII), MacFarland J.A. at para. 22. On the Hendrickson v. Kallio test, there can be no doubt that the dismissal of the contempt motion is interlocutory. The merits of the case remain to be determined.

[13] But Catalyst drills deeper and argues that in this case the outcome of the motion is effectively final in a significant dimension. It submits that the important point for the court to keep in mind is that it would not be open to a party who was unsuccessful in a contempt motion to revisit the contempt motion at trial. Counsel argues that the motion judge’s decision that Mr. Moyse’s conduct did not contravene the order is res judicata, and Mr. Moyse’s conduct in deleting the browser history, for example, “can’t be re-litigated even in cross-examination.” It is therefore final in the sense contemplated by the Courts of Justice Act.

[14] I disagree. The motion judge’s findings are clear. He simply concluded that Catalyst had not proven, beyond a reasonable doubt, that Mr. Moyse breached Firestone J.’s order. There is nothing in the motion judge’s decision that would prevent Catalyst from exploring, in Mr. Moyse’s cross-examination at discovery or at trial, what he did with his computer, when he did it, why he did it, who assisted him (if anyone), how he did it and for what purpose or purposes. While the finding that Mr. Moyse was not in contempt may not itself be re-litigated, barring some new revelation, all of the factual issues between the parties may be fully and exhaustively explored at any discovery and at the trial.

[15] In the circumstances of this appeal, the principle in Simmonds applies. The order dismissing the contempt motion against Mr. Moyse is interlocutory, and therefore appealable to the Divisional Court, with leave, under s. 19(1)(b) of the Courts of Justice Act.

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