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Ontario Superior Court Confirms the Test and Penalties for Contempt Sentencing

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In a recent high-profile decision, the Ontario Superior Court of Justice has explained and confirmed the factors to be considered in determining an appropriate sentence for contempt of court. The ruling reminds litigants that, even if a modest penalty is imposed, the court can still impose a hefty costs award.

In Town of Aurora v Lepp, 2019 ONSC 5430, the Defendant, Mr. Lepp, was held to be in contempt for repeatedly violating a court order. Mr. Lepp was the plaintiff in several actions he had commenced against the Town of Aurora, its mayor and council, and some of its employees. The order prohibited Mr. Lepp from communicating with certain defendants pending the outcome of a vexatious litigant application that had been commenced against him.

Despite the order, Mr. Lepp persisted in communicating with the defendants by sending them letters. The court noted that while this behaviour does not fall on the more serious end of the spectrum, it remains serious. It was also noted that an appropriate sentence for a contempt finding must be levied in order to achieve compliance with the order, as well as to foster respect for the judicial process.

The Court began its analysis by reviewing Rule 60.11(5) of the Rules of Civil Procedure. Where a finding of contempt is made, this rule permits the judge to make such order as is just, including an order for imprisonment, to pay a fine, to do or refrain from doing an act, to pay costs, and to comply with any other order the judge considers necessary.

In determining an appropriate sentence for contempt, the following six factors are taken into consideration:

  1. The proportionality of the sentence of the wrongdoing;
  2. The presence of mitigating factors;
  3. The presence of aggravating factors;
  4. Deterrence and denunciation;
  5. The similarity of sentences in like circumstances; and
  6. The reasonableness of a fine or incarceration.

With respect to proportionality, the court will consider the severity of the sentence compared with the gravity of the conduct. Despite the focus on deterring contempt of court, custodial sentences are rarely imposed. With respect to fines, the jurisprudence has established a range of $1,500 to $5,000 in most cases.

The Court emphasized that efforts to purge one’s contempt will be a mitigating factor.  In this case, it was emphasized that Mr. Lepp had not taken any efforts to purge his actions, nor had he offered an apology, despite having the opportunity to do so.

In holding Mr. Lepp in contempt of Court, it was decided that this was an appropriate case for a fine and costs, rather than prison time. Consideration was given to the fact that Mr. Lepp had no history of contempt of court. He also has a history of community service which weighed in his favour. However, through his litigation against the Town of Aurora, Mr. Lepp inserted himself as a busybody and was unrelenting in his attempts to address perceived injustices.

On the whole, the Court did not find Mr. Lepp apologetic and he was therefore denied the benefit of mitigation. In order to achieve the objectives of deterrence and respect for the justice system, the Court held that a fine plus a substantial cost order would send the necessary message to Mr. Lepp and others similarly situated.

The Court also considered Mr. Lepp’s financial situation, and, finding him able to pay, held that a fine of $1,500, payable over six months, would be appropriate. While it is on the lower end of the scale, the Court gave consideration to the fact that Mr. Lepp is retired and did not have any steady sources of income.

Finally, the Court referred to Rule 60.11(5), stating that costs are included as a component of the potential penalty package. The general rule is that costs are payable on a substantial indemnity basis where contempt is found. Additionally, the Court did not believe that the taxpayers of the Town of Aurora should have to bear the financial burden of having to take steps to enforce an order that Mr. Lepp refused to obey. Therefore the Court made a costs award of $10,000, payable within 30 days.

This case serves as a reminder that, when it comes to contempt, prison sentences are rare and fines are relatively low, but cost awards can still be significant.

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Vince Siciliano, BDO Canada Limited