COURT OF APPEAL FOR ONTARIO

Transcription

1 BETWEEN COURT OF APPEAL FOR ONTARIO Doherty, Epstein and Miller JJ.A. CITATION: Chirico v. Szalas, 2016 ONCA 586 DATE: DOCKET: C60439 & M45948 Jim Chirico Medical Health Officer North Bay Parry Sound District Health Unit and Rob Szalas Christian Tremblay, for the appellant/responding party Jonathane Ricci, for the respondent/moving party Heard: February 4, 2016 Moving Party (Appellant/Responding Party) Responding Party (Respondent/Moving Party) On appeal from the order of Justice Paul U. Rivard of the Superior Court of Justice, dated April 7, Epstein J.A.: [1] The respondent, Rob Szalas, owns a Doberman Pinscher. The dog bit people on a number of occasions. After the fourth bite incident, Dr. Jim Chirico, Medical Health Officer, North Bay Parry Sound District Health Unit, ordered Mr. Szalas to relinquish the dog to the North Bay Humane Society (the Humane Society ) to be euthanized (the Euthanasia Order ). Mr. Szalas appealed the order and sought a stay. On consent, an interim order was made, (the Consent Interim Order ) allowing Mr. Szalas to keep the dog with him pending the appeal. file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 1/13

2 The order was subject to certain conditions designed to keep the public safe from the dog s aggression. Mr. Szalas was alleged to have breached the more serious of these conditions and, pursuant to the provisions of the Consent Interim Order, was required to turn the dog over to the Humane Society. Mr. Szalas refused to do so. [2] A further interim order (the Interim Order ) was made, giving Mr. Szalas a deadline for the return of the dog and providing that failure to comply with the deadline would result in the dismissal of his appeal. Mr. Szalas failed to comply with the deadline. His appeal of the Euthanasia Order was dismissed. [3] A representative of the Society for the Prevention of Cruelty to Animals (the SPCA ) came to Mr. Szalas residence to retrieve the dog to put it down. Mr. Szalas again refused to relinquish the dog. [4] The appellant brought a motion for contempt of the Euthanasia Order. The motion judge held that the evidence did not support a finding that Mr. Szalas failed to comply with the specific term relating to his obligation to relinquish the dog to the Humane Society, and dismissed the motion. [5] On appeal, Dr. Chirico submits that the motion judge erred by taking a formalistic approach to the issue of whether Mr. Szalas complied with the terms of the Euthanasia Order. Dr. Chirico argues that Mr. Szalas should be found in contempt for failure to comply with the intent of the order when he refused to turn the dog over to the SPCA. [6] Mr. Szalas moves to quash the appeal on the basis that the order dismissing the motion for contempt is interlocutory and accordingly this court lacks jurisdiction. If this court finds that it does have jurisdiction, Mr. Szalas submits that, on this record, there is no reason to interfere with the motion judge s conclusion that, given the wording of the Euthanasia Order, a finding of contempt is unavailable. [7] For the reasons that follow, I am of the view that the order under appeal is final and therefore this court has jurisdiction. [8] I am also of the view that the motion judge erred by failing to appreciate that an order for file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 2/13

3 contempt is available where the evidence supports a finding that the alleged contemnor failed to follow the spirit of the order. By not giving up possession of his dog to be euthanized, Mr. Szalas did just that. [9] I would therefore allow the appeal, find Mr. Szalas in contempt and remit the matter back to a local judge of the Superior Court, other than the motion judge, to permit Mr. Szalas to attempt to purge his contempt and then to determine the appropriate sanction. BACKGROUND IN BRIEF [10] Between February 22, 2013 and October 14, 2014, the dog bit four individuals. The bites were unprovoked. An order relating to each bite incident was served on Mr. Szalas. These orders required the dog to be quarantined for a period of time. Mr. Szalas did not appeal the orders. [11] Based on these orders, it was determined that the dog was a health hazard within the meaning of s. 1(1) of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the HPPA ). As a result, on October 30, 2014, Dr. Chirico signed the Euthanasia Order under s. 13 of the HPPA. The order required Mr. Szalas to relinquish the [dog] to the [Humane Society] to be euthanized. On the same day Dr. Chirico asked the Humane Society to seize and destroy the animal. [12] Mr. Szalas surrendered his dog to the Humane Society and appealed the Euthanasia Order. On December 18, 2014, Mr. Szalas and Dr. Chirico entered into the Consent Interim Order. This order provided, among other things, that pending the appeal the dog would be released to Mr. Szalas to be kept in his residence at all times except for three walks per day during scheduled time periods and during which the dog would be on a leash and muzzled. [13] Paragraph 12 of the Consent Interim Order provided that if a minor breach was proven, such as if the dog were being walked during an unauthorized time, the dog was to be returned to the Humane Society. However, in such circumstances, the appeal from the Euthanasia Order would still be heard notwithstanding the breach. The dog would be confined pending the hearing before the Board unless the motion alleging the breach was dismissed. In such case, file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 3/13

4 the dog would be returned to Mr. Szalas pending the Board s hearing of the appeal. [14] Paragraph 13 of the Consent Interim Order dealt with more serious breaches such as the dog being at large without a leash and without a muzzle. In the event that such a breach were proven, Mr. Szalas appeal would be dismissed and the dog would be destroyed. [15] The terms of the Consent Interim Order were approved by the Health Services Appeal and Review Board (the Board ) and incorporated into an Order for Stay dated December 19, [16] On December 22, 2014, the dog was observed with Mr. Szalas in a store in North Bay. The dog was not on a leash and was not muzzled. The person who saw the dog took photographs of the dog and provided them to Dr. Chirico, together with a sworn affidavit detailing what she saw. [17] On December 29, 2014, based on the breach of a serious term of the Consent Interim Order, Dr. Chirico moved for a dismissal of Mr. Szalas appeal and destruction of the dog. [18] Dr. Chirico requested the return of the dog pending the determination of whether the Consent Interim Order had been breached. Mr. Szalas refused to give up his dog. In fact he had arranged to have it taken to the United States. [19] As a result of Mr. Szalas failure to turn over the dog, the Board made the Interim Order on December 31, 2014 requiring Mr. Szalas to immediately return and/or surrender the dog to the care of the [Humane Society or the SPCA]. The order provided that failure to surrender the dog by 12:00 noon on January 2, 2015 may result in the dismissal of [Mr. Szalas appeal]. At the request of Mr. Szalas then lawyer, the Interim Order was later amended to require the dog s return no later than noon on January 3, 2015 (the Amending Order ). [20] Mr. Szalas did not surrender the dog in accordance with the Amending Order. As a result, on January 9, 2015, the Board ordered that Mr. Szalas appeal be dismissed (the Dismissal Order ). The Dismissal Order was served on Mr. Szalas on January 13, Mr. Szalas was also put on notice that failure to return the dog would result in the enforcement of the Euthanasia Order and a motion for contempt. file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 4/13

5 [21] The authorities were then told that the dog was no longer in the jurisdiction. [22] Dr. Chirico brought a motion for contempt of the Euthanasia Order. THE MOTION JUDGE S DECISION [23] The motion judge found that he had no doubt that Mr. Szalas was behaving in a wilful and deliberate way when he sent the dog to the States, as he alleges, and he did it to so as to avoid complying with the [Euthanasia Order]. [24] However, the motion judge found that the order was clear that Mr. Szalas was required to relinquish his dog to the [Humane Society]. He held that there was no evidence before the Court that [Mr. Szalas] was ever asked by the Humane Society to relinquish his dog. Rather, there was one approach made to him to relinquish his dog, but that was by the [SPCA]. [25] The motion judge reasoned that as there had not been proof beyond a reasonable doubt that Mr. Szalas had refused to relinquish his dog to the Humane Society as required by the [Euthanasia Order], an order for contempt was not available. On this basis the motion judge dismissed the motion. [26] The motion went on to say that he had no doubt that Mr. Szalas tried to circumvent the [Euthanasia Order] and in spite of the lack of proof beyond a reasonable doubt that I have referred to, I am satisfied on the material before me that Mr. Szalas was acting very deliberately and willfully in delaying the process to prevent being required to relinquish his dog to the Humane Society. The motion judge went on to admonish Mr. Szalas that the dismissal of the contempt motion should not be seen as a licence to have the dog brought back to North Bay, as the dog would continue to be subject to destruction orders. ISSUES [27] This appeal raises two issues: i. whether this court has jurisdiction over the appeal; and ii. if so, whether the motion judge erred in dismissing the contempt motion. file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 5/13

6 ANALYSIS 1. Does this Court have Jurisdiction over this Appeal? The Parties Positions [28] Dr. Chirico submits that the Euthanasia Order, which enables a health officer to direct the destruction of an animal, became final on January 9, 2015, when Mr. Szalas failed to challenge the dismissal of his appeal. Dr. Chirico contends that in these circumstances, an order disposing of a motion for contempt for failing to comply with such an order, whether by a finding of contempt or a dismissal of the motion, is final given there is nothing left to be determined between the parties. [29] Mr. Szalas, relying on this court s decisions in Simmonds v. Simmonds, 2013 ONCA 479, 117 O.R. (3d) 479, and The Catalyst Group Inc. v. Moyse, 2015 ONCA 784, 127 O.R. (3d) 625, argues that the dismissal of a motion for contempt is interlocutory. Thus an appeal lies to the Divisional Court, with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. General Legal Framework [30] The classic statement on the distinction between a final and interlocutory order appears in this court s decision in Hendrickson v. Kallio, [1932] O.R. 675, at p. 678: 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 application, but it is interlocutory if the merits of the case remain to be determined. [31] The court approved the following test for determining whether an order is final or interlocutory, at p. 680: It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made finally dispose of the rights of the parties? It if does, then I think it ought to be treated as a final order, but if it does not it is then, in my opinion, an interlocutory file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 6/13

7 order. [32] In Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), this court added a gloss to the distinction drawn in Hendrickson between a final and an interlocutory order. The court held that an order that does not finally dispose of the rights of the parties, but that finally disposes of an issue raised by a defence, and thereby deprives the defendant of a substantive right that could be determinative of the entire action (such as a statutory limitation period defence), is a final order. [33] The Hendrickson distinction between final and interlocutory orders was further refined in Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.). In that case, Morden A.C.J.O. held that an order disposing of an application under r. 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is a final order because it ends the particular proceeding before the court. This is so even if the order in question does not finally resolve the entire dispute between the parties. The critical question is whether the order resolves the matter in dispute in the application, and not some other proceeding that may be ongoing. [34] The character of an order is determined by its legal effect, rather than the nature of the motion that brought it about. Categorizing an order as final or interlocutory does not turn on the particular circumstances of the plaintiff or defendant who is affected by the order. As Morden A.C.J.O. explained in Laurentian Plaza Corp. v. Martin (1992), 7 O.R. (3d) 111 (C.A.), at p. 116: The question of categorization which determines access to appellate review must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case. As I have indicated, jurisdictional rules should be as clear as possible and their application should not be beset with factual disputes which themselves may be protracted and difficult to resolve. [35] An interlocutory motion may produce an order that is either final or interlocutory. Moreover, different motions can result in either a final or an interlocutory order. Contempt Motions file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 7/13

8 [36] It may be fair to say that this court s decisions relating to whether dispositions of motions seeking a contempt order are final or interlocutory are not a model of clarity. However, in my view, the order under appeal is a final order. I come to this conclusion based on the following review of this court s decisions on this issue. [1] [37] For context, I start with motions in which the court has found a party to be in contempt of court. [38] In Bush v. Mereshensky, 2007 ONCA 679, 229 O.A.C. 200, at para. 10, this court indicated that it had consistently held that a finding of contempt is a final order. Bush has since been relied upon for the principle that a finding of contempt is considered to be a final order (see Mantella v. Mantella, 2009 ONCA 194, 246 O.A.C. 386, at para. 17; Leeming v. Leeming, 2016 ONSC 1835 (Div. Ct.), at para. 16). [39] I now turn to orders, such as the one under appeal, in which the motion for contempt has been dismissed. [40] In International Beverage Dispensers Union, Local 280 v. Kilgoran Hotels Ltd., [1970] O.J. No. 389 (C.A.), a grievor, who had been fired from his job, obtained judgment from the arbitration board ordering his reinstatement to his prior position. The respondent hotel refused to reinstate him to that position. The appellant union s motion for an order finding the respondent in contempt was unsuccessful. The respondent appealed to this court. The question arose as to whether the order under appeal was final or interlocutory. [41] The court in Kilgoran determined that the order was final, stating, at para. 11: Applying what we understand to be the principles set out in the case of Hendrickson v. Kallio [1932] O.R. 675 and the comments thereon in Roblin v. Drake [1938] O.R. 711, we are all of the view that the order of Parker, J. determines the real matter in dispute between the parties in these proceedings; in other words, to use the language of Mr. Justice Middleton in the Hendrickson case, "the very subject matter of the litigation". It does not deal with a collateral matter as that term is used in cases. The order is not one which might be said to be a decision made during the course of proceedings but rather is one which finally disposes of the rights of the appellant to enforce the award which it claims to be entitled to enforce and we have come to file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 8/13

9 that conclusion without taking into account what other order might have been made by Mr. Justice Parker. On the present state of the authorities that probably is quite irrelevant. [Emphasis added.] [42] The case of Bassel s Lunch Ltd. v. Kick et al., [1936] 4 D.L.R. 106 (Ont. C.A.), also involved an appeal from the dismissal of a contempt motion. There, the appellant had alleged that the respondents had continued to picket the appellant s restaurant despite an injunction order restraining them from doing so. In deciding that the order in question was final as opposed to interlocutory, the court explained, at p. 110: This objection cannot be given effect to; such cases as Jarmain v. Chatterton (1882), 20 Ch.D. 493 and others discussed by the late Chancellor in Millar v. Macdonald (1892), 14 P.R. (Ont.) 499, effectually dispose of the question. Moreover the facts of the case plainly show that the order is final and not interlocutory. The respondents are not parties to the action; no proceedings are taken against them except one to stop their interfering with the plaintiff's business; the order appealed from denies the plaintiff this relief, finally and absolutely; there is nothing more to be done about it but to have the order reversed, so that the plaintiff may have the only relief sought. [Emphasis added.] Application [43] In my opinion, this court s decisions establish that whether an order disposing of a motion for contempt, either by dismissing the motion or finding contempt, is final or interlocutory depends on the circumstances surrounding the order. In cases where there are no ongoing proceedings and therefore the party seeking a contempt order has no other means of obtaining relief arising out of a failure to abide by the terms of an order, then an order disposing of a motion for contempt either a dismissal or a finding of contempt is a final order. [44] This conclusion is consistent with the approach taken in the decisions upon which Mr. Szalas relies in which orders dismissing a motion for contempt have been held to be interlocutory. A brief review of the context in those cases is helpful. [45] In Simmonds, at paras. 4 5, this court agreed with the respondent that because the file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 9/13

10 motion judge dismissed the motion for contempt, the motion judge s order is interlocutory and not binding on the trial judge. In that case, the appellant had sought to have the respondent held in contempt for failure to provide specified disclosure as to her income loss claim arising from a motor vehicle accident. [46] Similarly, in Catalyst Capital at para. 15, the court concluded that [i]n the circumstances of [that] appeal, the principle in Simmonds [applied]. Lauwers J.A. noted, at para. 14, that [w]hile the finding that Mr. Moyse was not in contempt may not itself by 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. In that case, Catalyst had contended that Moyse was in contempt of an interim consent order for injunctive relief. [47] What is significant is that in both Simmonds and Catalyst Capital, the contempt motion was dismissed during the course of proceedings that were ongoing. The disposition of the motion for contempt did not finally dispose of the rights of the moving party to enforce an order to which the party claimed to be entitled. Conclusion on jurisdiction [48] Here, unlike in Simmonds and Catalyst Capital, there are no longer any ongoing proceedings. The only outstanding issue is Dr. Chirico s right to enforce the Euthanasia Order. As such, in the circumstances of this case, I am of the view that the order under appeal, disposing of the motion for contempt, is final. This court has jurisdiction to hear the appeal. [49] I would therefore dismiss the motion to quash the appeal. 2. Did the Motion Judge Err in Dismissing the Motion for Contempt? The Parties Positions [50] Counsel for Dr. Chirico argues that the motion judge, in dismissing the motion for contempt, erred by relying on a technicality. The Euthanasia Order was clear Mr. Szalas was required to turn the dog over to the authorities so it could be euthanized. Under any interpretation of the order, Mr. Szalas failed to comply and should have been found in file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 10/13

11 contempt. [51] Mr. Szalas argues that the motion judge did not err in finding that the third branch of the test for contempt was not met. There was no proof beyond a reasonable doubt that Mr. Szalas refused to relinquish his dog to the Humane Society as required by the terms of the Euthanasia Order. This order was complied with both in letter and in spirit. The dog was initially surrendered pursuant to that order. Furthermore, the order does not bind Mr. Szalas in respect to the SPCA. General Legal Framework [52] The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para 32. [53] The test is not in issue. What is in issue is the manner in which the conduct of the alleged contemnor should be analyzed in relation to the requirements of the order. [54] This court has rejected a formalistic interpretation of the relevant order. It is clear that a party subject to an order must comply with both the letter and the spirit of the order: Ceridian Canada Ltd. v. Azeezodeen, 2014 ONCA 656, at para. 8. That party cannot be permitted to hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and the administration of justice : Boily, at para. 58; Sweda Farms Ltd. v. Ontario Egg Producers, 2011 ONSC 3650, at para. 21. Application [55] I will first deal with Mr. Szalas argument that he complied with the Euthanasia Order by relinquishing the dog to the Humane Society prior to entering into the Consent Interim Order. [56] It is true that Mr. Szalas did initially comply with the Euthanasia Order by turning the dog over to the Humane Society. However, that compliance does not immunize Mr. Szalas from the consequences of breaches of subsequent interim orders. Those breaches had the effect file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 11/13

12 of reinstating Mr. Szalas obligations under the Euthanasia Order. This required Mr. Szalas to relinquish the dog. His failure to do so was properly the subject of Dr. Chirico s motion for contempt. [57] I will next deal with the broader question of Mr. Szalas compliance with the letter and spirit of the Euthanasia Order. [58] With respect, I am of the view that the motion judge erred in approaching the motion for contempt in the narrow fashion that he did. As set out above, this court has rejected such a formalistic approach. Simply put, the days are long gone when someone subject to a court order can get away with circumventing it by relying on a benign technicality. To allow that to happen would be disrespectful of the order and of the administration of justice. [59] The Euthanasia Order was clear. Mr. Szalas had to give up his dog to be put down. The precise modality either by the Humane Society or the SPCA was unimportant. Despite the clarity of the intent of the order, Mr. Szalas did not bring the dog to the Humane Society to have it euthanized. He did not relinquish the dog to the SPCA when they attended at his home. As Dr. Chirico put it under any interpretation of the order, Mr. Szalas failed to comply with it. [60] In my view the motion judge erred by not finding contempt despite concluding that Mr. Szalas intent was to frustrate the intent of the Euthanasia Order, which was to arrange for the dog to be destroyed in order to protect the public. Mr. Szalas did in fact frustrate the order by having the dog moved out of the country. And Mr. Szalas conduct throughout, including his secreting the dog out of the reach of the authorities and then relying on a literal and narrow interpretation to avoid being held to account, displayed an utter disregard for the intent of the Euthanasia Order. [61] I would add that while Dr. Chirico only relied on the Euthanasia Order in support of his motion for contempt, in my view Mr. Szalas demonstrated blatant contempt for the administration of justice by ignoring repeated orders and demands to surrender the dog. DISPOSITION file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 12/13

13 [62] For these reasons, I would allow the appeal and set aside the order of the motion judge. I would find Mr. Szalas in contempt and remit the matter back to a local judge of the Superior Court to allow him to attempt to purge his contempt and to determine the appropriate sanction. [63] I would award Dr. Chirico his costs of this appeal. In accordance with the submissions of Dr. Chirico, I would fix costs of the appeal in the amount of $1500, including disbursements and applicable taxes. [64] If Dr. Chirico seeks costs of the motion, I would allow the parties to make brief submissions as to these costs, within 10 days. Released: DD (July 22, 2016) Gloria Epstein J.A. I agree Doherty J.A. I agree B.W. Miller J.A. [1] I note that counsel for Dr. Chirico relied on decisions from the British Columbia Court of Appeal in argument; however, the approach in British Columbia differs from that in Ontario. In my opinion, this province s jurisprudence is sufficient to establish that the order in question is final. file:///c:/users/jim.chirico/appdata/local/microsoft/windows/inetcache/content.outlook/8qxfimm0/c60439%20m45948%20rere.htm 13/13