2013 ONSC 2683, 2013 ONSC 2683

CITATION : Ryley v. Bowness, 2013 ONSC 2683 COURT FILE NO.: 01-3385/04 DATE: 20130507 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Catherine Ryley, Applicant AND: Teresa Bowness, Respondent BEFORE: Morgan J. COUNSEL: Michael Cochrane , for the Applicant Michael Czuma , for the Respondent HEARD: April 29, 2013 ENDORSEMENT [ 1 ] This Application was settled by the parties in 2005.

An Order embodying the terms of that settlement was issued by Sanderson J. on January 12, 2006. [ 2 ] Paragraph 3 of Sanderson J.’s Order states that, “[t]he Respondent, Teresa Bowness, shall abandon any appeal of the award of survivor benefits to the Applicant by CPP.” [ 3 ] Shortly after the Order was issued the Respondent did abandon her appeal of CPP’s award of survivor benefits to the Applicant. However, several years later she again applied to CPP to reconsider its award of survivor benefits to the Applicant, and when she was turned down in that application she appealed it.

The Respondent takes the position that while the Order of Sanderson J. required her to abandon her existing appeal, it did not prohibit her from abandoning her appeal and then starting up the identical appeal later. [ 4 ] In her Notice of Motion, the Applicant seeks an order a. Declaring the Respondent, Teresa Bowness, in contempt of the Order of the Honourable Justice Sanderson, dated January 12, 2006; b. Ordering the Respondent to abandon her appeal to the Review Tribunal forthwith; c.

That he Respondent pay a fine for her contempt to the Applicant, or in the alternative that the Respondent pay the fine to a charity of the Applicant’s choosing, or in the alternative that the Respondent pay the fine to the provincial coffers; d. That the Respondent be imprisoned if she should make any further attempts to review, appeal, vary, or make any other claim whatsoever to the Applicant’s entitlement to the CPP survivor benefits in dispute; e. Costs on a full indemnity basis; and f.

Such further and other Relief as this Honourable Court may deem just. [ 5 ] The parties generally agree on the test for contempt of court under Rule 60.11 of the Rules of Civil Procedure . In order to find the Respondent in contempt, the court must be satisfied that the Order was clear and unambiguous, that the Respondent deliberately and willfully disobeyed the Order, and that the evidence establishes the contempt beyond a reasonable doubt. Ontario Securities Commission v Hibbert , 2011 ONSC 6534 , at para 11 .

Respondent’s counsel also adds that the Respondent must be shown to have had notice of the terms of the Order. [ 6 ] The Respondent’s position that para. 3 of Sanderson J.’s Order required her to abandon her appeal but allowed her to re-start an application and appeal of the identical point at a later date is, frankly, untenable. [ 7 ] Mr. Czuma, on the Respondent’s behalf, argues that the Order must be read literally. However, the

interpretation he urges on the court is beyond literal; it is literalist in the most negative sense of that word. As Lord Diplock famously said in The Antaios Compania Neviera SA v Salen Rederierna AB [1985] 1 AC 191 , 201, “...if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.” The same can be said of the Respondent’s

interpretation of the settlement embodied by Sanderson J.’s Order. [ 8 ] The Applicant, who was the common law partner of Brian Bowness at the time of his death, gave up various claims in settling the underlying Application, in return for certain concessions by the Respondent, who was the ex-spouse of Mr. Bowness. One of those concessions was that the Respondent drop her appeal of the CPP decision to award Mr. Bowness’ survivor benefits to the Applicant. If the meaning of paragraph 3 of the Order was that the Respondent must abandon her existing appeal but is at liberty to challenge the same CPP decision at any later time, it would be a meaningless form of concession.

[ 9 ] Common sense dictates that the meaning of paragraph 3 is that the Respondent must stop appealing the CPP decision to award Mr. Bowness’ survivor benefits to the Applicant altogether, not just that she stop the one going on now only to start up a new one later. [ 10 ] The Respondent also takes the position that she did not have notice of the Order and its terms. However, it is apparent from the record that it was the Respondent’s own lawyer at the time, and not the Applicant, that suggested incorporating the terms of the settlement agreement into a court order. Mr.

Czuma contends that there is no evidence that the Respondent had properly instructed her lawyer to make that suggestion. With respect, that is not the way it works. One is presumed to have instructed one’s own lawyer and to have been properly advised by that lawyer, and the opposing party is entitled to rely on that presumption, unless there is evidence to the contrary. [ 11 ] The Respondent led no evidence here suggesting that she had not instructed and had not been advised by her lawyer to agree to the consent Order signed by Sanderson J.

The Respondent has never sought to set aside that Order, and it is valid and in force. [ 12 ] In appealing the CPP decision a second time, it appears to me that the Respondent willfully and deliberately flouted the clear meaning of paragraph 3 of Sanderson J.’s Order – an Order of which she had full notice and knowledge. That, however, is where the matter before me began, not where it ended. [ 13 ] This motion by the Applicant came up for a first appearance on May 17, 2012. The Respondent was not represented by counsel at that first appearance, and requested an adjournment.

An adjournment was granted by Chapnik J. until July 12, 2012, but the matter then ran into a succession of scheduling difficulties. It was again adjourned by Whitaker J. due to a medical emergency. The motion came up again on September 13, 2012 before Stewart J., who noted that, “[t]he materials filed by the moving party present a very compelling case to demonstrate that Ms.

Bowness has breached paragraph 3 of the Order of Sanderson J. dated January 12, 2006.” She then adjourned the motion to November 5, 2012 to be heard on its merits. [ 14 ] On November 5, 2012, the motion was again adjourned to estates scheduling court on December 7, 2012, as Stewart J. determined that it required a two day hearing with viva voce evidence. On December 7, 2012, it was set down for a full hearing on April 29 and 30, 2013. The motion was finally heard on its merits on April 29, 2013, with oral testimony by the Applicant, and with the Respondent, now represented by Mr.

Czuma as new counsel, opting not to call any evidence. [ 15 ] When the motion came up for the first time on May 17, 2012, it was only four days before the CPP Review Tribunal was scheduled to hold its hearing. In endorsing the record, Chapnik J. wrote, “[a]djourned at the request of the Respondent, Teresa Bowness to July 12, 2012 at 9:30 am, pending decision of Pension Review Tribunal on this matter and for Ms. Bowness to retain counsel.” Mr.

Czuma submits that this endorsement, in effect, granted the Respondent permission to continue with the CPP appeal. [ 16 ] By the time the matter came before me on April 29, 2013, the CPP Review Tribunal had ruled in the Respondent’s favour on June 13, 2012, at which point the CPP survivor benefits that the Applicant had been receiving were suspended. Nearly another year went by and then, still pending the full return of the within motion, the Pension Appeals Board overturned the Review Tribunal’s ruling and affirmed the Applicant’s right to the CPP survivor benefits on April 15, 2013.

At both stages of those CPP hearings, Mr. Cochrane, who has been the Applicant’s counsel throughout, raised the matter of paragraph 3 of Sanderson J.’s Order, but was told by the Review Tribunal and the Pension Appeals Board that the enforcement of that Order is for the Superior Court of Justice, not for them. [ 17 ] I do not read the May 17, 2012 endorsement by Chapnik J. as authorizing the Respondent to pursue her CPP appeal. In her short handwritten endorsement, Chapnik J. turned her mind to scheduling only. She did not address the substance of any of the issues in the motion.

Indeed, she specifically noted that she was adjourning the matter at the Respondent’s request as this was a serious matter alleging contempt of court and that the Respondent needs time to retain counsel. [ 18 ] That said, the timing of the adjournments and the fact that Chapnik J. acknowledged that the CPP appeal was going ahead shortly may have led the Respondent to think that the appeal she had untaken could proceed as a matter of course.

At the very least, the timing of the appeal and the initial endorsement of this court raise a doubt as to the “willful and deliberate” nature of the Respondent’s breach of Sanderson J.’s Order. [ 19 ] The Respondent should not have launched the CPP appeal, and should have known that she was not to launch that appeal given paragraph 3 of the Order. The Respondent’s appeal of the CPP decision to the Review Tribunal was a breach of paragraph 3 of Sanderson J.’s Order. It is nevertheless possible that she did not realize that she should not go through with the appeal once she read the endorsement of Chapnik J.

Given how the proceeding has been scheduled, I am not prepared to conclude that pursuing the appeal to its conclusion was contemptuous within the meaning of Rule 60.11. [ 20 ] On April 22, 2013, after receiving the ruling by the Pension Appeals Board in favour of the Applicant, Mr. Czuma wrote to Mr. Cochrane indicating that he has instructions from the Respondent to apply for judicial review of that decision. In my view, taking that step would indeed amount to contempt of court.

Paragraph 3 prohibited the appeal that led up to the Review Tribunal’s ruling of June 13, 2012, and which in turn led to the Pension Appeals Board’s ruling of April 15, 2013. The Respondent now knows that definitively. If she pursues judicial review of the Pension Appeals Board’s ruling it will be a continuation of the prohibited appeal, and there will be no doubt about the willfulness or deliberateness of her action. [ 21 ] The relief sought in paragraph “b” of the within Notice of Motion is granted, with the appropriate update given the passage of time and events.

The Respondent is hereby ordered to cease and desist from any and all appeals, applications, judicial review proceedings, administrative review proceedings, and any other procedure that seeks or that may lead to any form of reconsideration of any of the CPP survivor benefits which the Pension Appeals Board has now confirmed belong to the Applicant. [ 22 ] Turning to the question of costs, the Applicant complains that she has incurred over $50,000 in legal fees and related expenses in responding to the Respondent’s improper CPP appeals.

Much of this was incurred during the course of the Review Tribunal and Pension Appeals Board proceedings. Any claim for recovery of those expenses would require an action by the Applicant for damages for the Respondent’s breach of paragraph 3 of the Order of Sanderson J. Those expenses are not recoverable as costs of this

motion. [ 23 ] The Applicant does, however, deserve her costs of this motion. The Respondent may have raised a doubt about the willfulness and deliberateness of her breach of paragraph 3 of the Order, but she certainly breached paragraph 3 and it took a hearing of the motion to stop her from doing what she never should have been doing. [ 24 ] Mr. Cochrane has submitted a bill of costs indicating fees on a partial indemnity scale and disbursements totaling just under $35,000.

This strikes me as a bit high for a motion which, although it required a substantial record and several attendances to speak to adjournments, did not entail any pre-hearing cross-examinations. I note also that Mr. Czuma submitted a bill of costs that came to less than half of Mr. Cochrane’s bill. [ 25 ] The Respondent shall pay the Applicant costs in the total amount of $25,000, inclusive of disbursements and HST. Morgan J. Date: May 7, 2013