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Contempt - Warrant of Committal. Di Nardo v. Nagy
In Di Nardo v. Nagy (Ont CA, 2025) the Ontario Court of Appeal considered several related motions to stay, including to stay pending appeal (of a warrant of committal to jail), this following from prior contempt findings:[4] .... I also advised Ms. Di Nardo that as a single judge, I had no jurisdiction to declare that the April 18, 2023 warrant of committal is void and of no further effect.
[5] Having dealt with these preliminary issues, the real focus of the motion was on the enforcement of the April 18, 2023 warrant of committal. In her notice of appeal, part of the relief requested by Ms. Di Nardo is that “all findings of contempt, costs, and personal liability be vacated”. With respect to the contempt findings, Ms. Di Nardo argued that the trial judge erred in failing to address her motion to vary or set aside the April 18, 2023 order and warrant of committal. Duty counsel submitted that the April 17, 2025 judgment dismissing Ms. Di Nardo’s application to pass her accounts amounts to a material change in circumstances with respect to the April 18, 2023 order and warrant of committal and that it is arguable that the April 18, 2023 order and warrant of committal are effectively spent because Ms. Di Nardo cannot purge her contempt for failing to pass her accounts because the trial judge dismissed her application to pass her accounts.
[6] Ms. Di Nardo has not separately appealed the April 18, 2023 order and warrant of committal. Instead, she has tried on several occasions to vary them or set them aside. The record demonstrates that her motions were never heard, largely because of deficiencies with service or the form and contents. She has scheduled November 19, 2025 as a motion date before the Superior Court to stay the April 18, 2023 order and warrant of committal pending the disposition of her appeal before this court. Ms. Di Nardo advised that she tried but could not obtain an earlier motion date.
[7] As the April 18, 2023 order and warrant of committal are not the subject of an appeal to this court, I do not have jurisdiction under r. 63.02(1)(b) of the Rules to stay them: Abuzour v. Heydary, 2015 ONCA 249, at para. 21. Nor do I read r. 60.11(8) as allowing a single judge of this court to “discharge, set aside, vary or give directions” in respect of a contempt order. Rather, my authority to stay the April 17, 2023 and warrant of committal derives from s. 134(2) of the Courts of Justice, R.S.O. 1990, c. C.43 (the “CJA”).
[8] The broad-based jurisdiction to make interim orders pending appeal under s. 134(2) of the CJA was described by this court in Waxman v. Waxman, 2003 CanLII 22440 (ON CA), [2003] O.J. No. 73 (C.A.), at para. 19: “The section addresses those situations for which no specific remedy has been provided by the CJA or the Rules of Civil Procedure, and some form of judicial intervention is necessary to prevent prejudice to a party to the appeal.” As an example of the effective use of s. 134(2), the court in Waxman, at para. 20, referenced the stay of a deportation order in Ahani v. Canada (Attorney General) (2002), 2002 CanLII 23586 (ON CA), 155 O.A.C. 1 (C.A.), noting that “[a]lthough the deportation order that Feldman J.A. stayed was not the subject matter of the appeal in Ahani, the appeal would been rendered nugatory had the deportation order been executed prior to the hearing of the appeal.”
[9] The purpose of s. 134(2) of the CJA is similar to a stay order: “it is to prevent a situation arising where an appellant is successful on its appeal but, in the meantime, either the subject-matter of the proceeding has disappeared or in some other way the litigation and its ultimate result have been rendered nugatory”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6956 (ON CA), 74 O.R. (2d) 161, at 163 (C.A.). Where the order sought under s. 134(2) is akin to an order imposing a stay, the principles applicable to that remedy should play a central role in deciding whether any remedy should be granted under s. 134(2): Waxman, at para. 21.
[10] I am satisfied that Ms. Di Nardo meets the well-known criteria for a stay set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199. She has raised an arguable issue about the effect of the dismissal of her application to pass accounts on the April 18, 2023 contempt order and warrant of committal. And she could suffer irreparable harm if the stay is not granted. As in Ahani, the April 18, 2023 contempt order and warrant of committal in this case are not under appeal as part of the appeal of the April 17, 2025 judgment of Dietrich J. However, as I earlier indicated, part of the relief that Ms. Di Nardo seeks in her appeal is directly related to the contempt order and warrant of committal. As a result, if the April 18, 2023 order and warrant of committal are not stayed pending at least the disposition of Ms. Di Nardo’s motion for a stay on November 19, 2025, part of Ms. Di Nardo’s appeal will be rendered moot. The balance of convenience therefore favours a stay.
[11] Given that Ms. Di Nardo has brought a stay motion in the Superior Court, it is not appropriate for me to preempt that motion and stay the April 18, 2023 contempt order and warrant of committal pending the resolution of Ms. Di Nardo’s appeal at this point. Accordingly, I order that the April 18, 2023 contempt order and warrant of committal be stayed pending the disposition of the November 19, 2025 motion in the Superior Court. Depending on the outcome of that motion, Ms. Di Nardo is at liberty to return to this court and request further relief.
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