Peter W. G. Carey v. Judith Laiken
(Ontario) (Civil) (By Leave)
Civil procedure - Contempt of court.
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Civil procedure - Contempt of court - Whether a judge should be allowed to revisit his or her finding of contempt at the penalty stage of the contempt proceedings - Whether it is necessary to show that an act was deliberately and willfully disobedient in order for it to constitute civil contempt.
The appellant, Mr. Carey, is a lawyer. While acting for one of his clients who was subject to a Mareva injunction obtained by the respondent, Ms. Laiken, he returned certain funds to his client from his trust account. Ms. Laiken and Mr. Carey’s client were involved in protracted litigation and she ultimately obtained judgment against him in the amount of $820,000.00. Mr. Carey’s client eventually went out of business and disappeared. Ms. Laiken brought a contempt motion against Mr. Carey, arguing that by returning the money to his client, he had violated the Mareva injunction which, by its terms, applied to monies held in trust. The motion judge initially found Mr. Carey in contempt and adjourned the matter pursuant to rule 60.11(5) and (8) of the Rules of Civil Procedure. When the matter resumed, the motion judge allowed Mr. Carey to reopen the contempt motion, and she found, on the basis of Mr. Carey’s testimony, that she was not satisfied beyond a reasonable doubt that Mr. Carey had deliberately violated the Mareva order or that his interpretation of it was willfully blind. Accordingly, she set aside her previous order. The Court of Appeal allowed the appeal and reinstated the contempt order for two reasons. First, it found that Mr. Carey should not have been permitted to re-open the finding of contempt. Second, it found that Mr. Carey knew of the Mareva injunction and violated it, and that while he did not desire or knowingly choose to disobey the order, contumacious intent is not an essential element of civil contempt.
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