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Law TiMes • March 16, 2009 FOCUS PAGE 13 That's right — you can get life for civil contempt BY JULIUS MELNITZER For Law Times L beside the sanctions available for criminal contempt may want to consider this: you can go to jail for life for civil contempt. That's right, civil contempt. "The breadth of penalties itigants of the view that the consequences for civil contempt of court pale available for civil contempt is enormous," says Ira Nishisato, a partner with Borden Ladner Gervais LLP. "The applicable Rule [of Civil Procedure] says merely that the sanctions may include fines or imprisonment." To be sure, it may be more ap- the chicken feed of sanctions. And if the $16-million fine for contempt endorsed by Ontario Court of Appeal's January deci- sion in College of Optometrists of Ontario v. SHS Optical Ltd. is any indication, there's no ques- tion that Ontario's courts are ramping up the seriousness with which they view civil contempt. "My sense is that defendants propriate to say that life impris- onment is technically available for civil contempt. Sentences such as the 15-month sentence imposed in December 2007 by Ontario Superior Court Justice Ruth Mesbur in Bell ExpressVu Ltd. Partnership v. Rodgers are about as harsh as they get. Yet 15 months in jail is hardly prone to disobeying court orders may take the view that contempt proceedings are purely civil, so there's nothing to worry about," Nishisato says. "And because it's not an issue that comes up that of- ten, counsel don't think that much about it. But boy can you get hammered these days, especially in cases involving extraordinary relief like Mareva injunctions or Anton Piller orders." In June 2003, Justice Raymond Harris barred SHS Optical and its principal, Bruce Bergez, from prescribing dispensing corrective lenses without a prescription from an optometrist or physician, as re- quired under the Optometry Act and the Opticianry Act. SHS had been offering to its customers free eye tests admin- istered by a machine known as the Eyelogic System. The system measured errors in a customer's vision and produced data allow- ing an employee to identify the lenses necessary to correct the error. But the system did not detect eye disease that might im- pair the customer's vision. Neither an optometrist nor a physician examined the custom- er or provided a prescription. Three-and-a-half years later, in November 2006, Justice Da- vid Crane of the Superior Court found SHS in contempt of Har- ris' order and imposed a $1-mil- lion fine. Crane also ordered SHS to purge its contempt in confor- mity with a series of manda- tory orders, failing which it and Bergez would be liable to pay a fine of $50,000 for each day they were not in compliance. SHS retained Louis Frapporti and Heather Devine, both part- ners at Gowling Lafleur Hender- son LLP's Hamilton office, and appealed Crane's order. But while the appeal was appellants had not purged their contempt and ordered them to pay the fine of $50,000 per day to the date of his judgment. The fine totalled $16 million. So SHS also appealed Fedak's order. In October 2008, the Court of Appeal dealt with the appeal from Crane's order. The court stated Crane's findings succinctly. "Crane J. found that the ap- pellants had continued in breach of the compliance order from the time it was made," wrote Justice David Watt on behalf of a unanimous bench composed also of Justices Kathryn Feldman and Jean MacFarland. "Nothing had changed." As Watt saw it, Crane had committed no error in principle in relation to the quantum of the $1-million fine. "The underlying purpose of $16 million were excessive, and sug- gested a fine of $25,000. The court saw no merit in that argument. "Obviously, the fine imposed is 'The breadth of penalties avail- able for civil contempt is enor- mous,' says Ira Nishisato. contempt orders is to compel obedience and punish disobedi- ence," he wrote. "In this case, there is a singular need for pun- ishment. It is essential that any monetary penalty imposed not be or appear to be a licence fee for further disobedience of a public health care statute." Bergez had ignored the statu- tory restrictions "and redrew the boundaries to suit his own crass commercial purposes." This was "flagrant, protracted, and delib- erate" disobedience. "It seems obvious that the appel- pending, the College of Optom- etrists, represented by Roy Ste- phenson and Brian Moher, part- ner and associate respectively with Lerners LLP's Toronto of- fice, sought enforcement of the mandatory terms of Crane's or- der. Justice Eugene Fedak of the Superior Court found that the lants, especially Bruce Bergez, have no intention of complying with the statute or the [court's] order," Watt noted. "This is not a case in which the conduct of the contemnors arose from some mistake or misun- derstanding about the application of the underlying order." The penalty "justifiably emphasized" deterrence and "denunciation of the appellants' intransigent and unremitting re- fusal" to obey the law. Both the fine and the enforcement orders were appropriate. "We cannot suffer the sacri- fice of the rule of law to the lure of lucre," Watt concluded. In January 2009, a panel composed of Justices Dave Do- herty, Karen Weiler, and Mac- Farland, heard the appeal from Fedak's order. Like the previous panel, the lants were fully aware of the fi- nancial risk their contempt would attract, but it did not deter them. "The $1-million fine imposed a very significant one," the court wrote. "However, the brazen na- ture of the appellants' contempt, its lengthy and ongoing nature, and the risk to the public health and safety posed by the appellants' conduct demanded a substantial fine that would act as a strong dis- incentive to the continuation of this kind of conduct." As the court saw it, the appel- by Crane J. was similarly inef- fective," the court wrote. "The appellants are business people. One can only assume that they judged the financial risk associ- ated with non-compliance and deemed that risk worth the po- tential financial gain occasioned by continued operation in viola- tion of the court order." To be sure, even a $16-mil- lion fine falls significantly short of life imprisonment. But the message is clear. "The courts may have paid court dismissed SHS's appeal. SHS argued that the daily fine of $50,000 and the total penalty of lip service to the need to obey civil orders in the past," Moher says. "But they're definitely put- ting their foot down now and taking it quite seriously." LT It's what's inside that counts! 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It's Your Choice! $3.55 • Vol. 17, No. 20 Inside This Issue 3 Strong Laws For Women 5 Climb Every Mountain 9 Focus On Real Estate Law Quote of the week "We can cope with this case so long as the federal and provincial government respond to the strains it creates. It's too early to tell how everything will play out, but the lengthier and more complex it gets, the more important it is that we have the resources." Covering Ontario's Legal Scene 1-800-653-0925 www.docudavit.com QUALITY DOCUMENT SCANNING Storage/Archive • Scan-to-File Litigation Support June 12, 2006 Batasar under fire from other lawyers T Colleagues say statements to press were irresponsible BY JULIUS MELNITZER For Law Times the media is puffery," the lawyer said. "I'm not saying there's not a place for it, but it should have been done in a context that tion of anonymity, was of the same mind. "Blurting out the government's theory to ment not only from defence counsel, but also from any human being," he told Law Times. "I find the statement made [about the beheading] quite disturbing." A top criminal lawyer, who spoke on condi- year-old student Saad Khalid and who has prac- tised criminal law for over 25 years, says he saw no reference to a beheading in the synopsis the Crown provided to him. "I would expect a far more responsible state- my way of doing business at such an early junc- ture in the proceedings," says Galati, who repre- sents another of the 17 accused. Arif Raza of Mississauga, who represents 19- the most experience in terrorism-related cases in Canada — questions tactics of this kind. "Reading unsubstantiated allegations is not ally indicated that he wanted to behead the prime minister of Canada," Batasar told media on June 6. But Rocco Galati — one of the lawyers with Chand, intended to take politicians hostage, mur- der them, and blow up the CBC's Toronto head- quarters as part of a massive terrorist plot, is under fire from his criminal law colleagues. "There's an allegation that my client person- he tactics of Gary Batasar, the lawyer who revealed Crown allegations that his client, 25-year old restaurant worker Steven 'These are extraordinary times and extraordinary allegations that call for an abnormal response,' says Gary Batasar, right, with lawyer Donald McLeod outside the Brampton courthouse. in these conditions. This is not a case that calls for hush-hush." dinary allegations that call for an abnormal response," he said. "Niceties have to go out the window when the charges against the accused are drawing global media to Peel Region. "Defence counsel should not just stay silent 1998, is adamant that he did the right thing. "These are extraordinary times and extraor- would not create the headlines that it did." For his part, Batasar, a criminal lawyer since remarks and the criticism of his action are "ridicu- lous." He points out that the issue first arose in the courtroom when he asked prosecutor Jim Leising whether he had any evidence to substan- tiate the sensational allegations in the synopsis. He says he had no choice but to respond to the media crush that followed outside the courtroom. Some well-known members of the defence bar, also speaking off the record, questioned why See No, page 2 Trademark holders must prove real connection BY MARK BOURRIE For Law Times of Canada ruled against toy-maker Mattel Inc., which had been appealing a lower court decision that permitted a three-outlet chain of Montreal-area restaurants to keep using Barbie in its name and design. The court also rejected a claim by the makers of Veuve Clicquot champagne that a similarly named group of women's clothing OTTAWA — Trademark lawyers representing companies that hold the rights to famous brands will have to prove a real connection between their marks and the prod- ucts of a company that infringes on the original trademark, say sen- ior Canadian IP lawyers. On June 2, the Supreme Court Federal Court, and the Federal Court of Appeal subsequently upheld the board's decision. The owners of Les Boutiques Cliquot were also successful at the Federal Court level. Mitchell B. Charness, an intel- lectual property lawyer and partner Opposition Board of the Canadian Intellectual Property Office accept- ed Barbie's Restaurant's argument that its use of the "Barbie" name since 1992 would not likely create consumer confusion with Mattel's dolls. Barbie's Restaurant has grown into a three-outlet chain in the Montreal area serving road- house-style food. Barbie's Restaurant won at the stores in Quebec and eastern Ontario infringed on its trademark. In 2002, the Trade-marks mark holder, it doesn't mean it's the end of protection of famous marks or that the famous mark holder can never stop anyone from using their trademark," Charness says. "What the cases mean is that we have to now look at how famous is the client's trademark and is there a connection or at least some possi- ble connection between the wares and services normally associated with the famous mark and whatev- er the third party is doing. "It's not enough to just be famous. That's not going to carry See Fame, page 2 in Ridout & Maybee LLP in Ottawa, says the decision does not give small businesses a free rein to hitch their business to a famous brand. "If our client is a famous trade- Batasar says the media's treatment of his The Supreme Court says con- sumers won't confuse Barbie dolls for nachos and steaks served in a Quebec roadhouse restaurant with the same name.