In a sentencing decision released December 9, 2021 (discussed in more detail here) the Ontario Superior Court of Justice sentenced Darzi Holdings Ltd., Rafat General Contractor Inc., and Layth Rafat Salim aka Carlo Salim to a precedent-setting $1 million fine for contempt of court. As discussed here, they had been found in contempt respecting their ongoing and deliberate breach of an order requiring compliance with the municipal by-laws of the Town of Caledon. The contemnors appealed the sentencing order. In a decision dated November 21, 2022, a unanimous panel of the Court of Appeal for Ontario dismissed the appeal.
On appeal, the contemnors claimed that the sentencing judge misapprehended their evidence and ordered a sentence that was disproportionate to their contempt. Notably, the contemnors also sought to adduce fresh evidence based on their novel claim that their counsel at the liability phase of the contempt proceeding was ineffective by leaving the court with an “incomplete picture” of their efforts to comply with the order. This type of claim is typically reserved for criminal law matters, except in rare circumstances.
In dismissing the appeal, the Court of Appeal agreed it was not in the interests of justice to admit the fresh evidence because: 1. the finding of contempt was not appealed and the contemnors hired new lawyers for the sentencing phase – in other words, the lawyer that they claim provided ineffective assistance was not their lawyer for the decision on appeal; 2. much of the fresh evidence was put before the court or alternately was available to be put before the court but was withheld by the contemnors for tactical reasons; and 3. the remaining evidence was not relevant or not capable of altering the outcome of the sentencing decision in light of the sentencing judge’s finding that the contempt was “flagrant, protracted, deliberate and profitable.”
The Court of Appeal additionally agreed with the Town of Caledon’s argument that the sentencing judge made no palpable and overriding error in his decision, as the contemnors had “exaggerated their compliance efforts” and there was no basis to conclude that the judge failed to consider the contemnors’ efforts to comply with the court order.
Cassels represented the Town of Caledon.
A copy of the decision can be found here.