Docket:
A-554-12
Citation: 2013 FCA 214
CORAM:
TRUDEL J.A.
STRATAS J.A.
MAINVILLE J.A.
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BETWEEN:
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PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
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Appellant
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and
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IRENE J. BREMSAK
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Respondent
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REASONS
FOR JUDGMENT
TRUDEL J.A.
[1]
The Professional Institute of the Public
Service of Canada (the Institute or bargaining agent) appeals from the November
29, 2012 Order of the Federal Court in which Lemieux J. (the Judge) established
a remedy against the Institute for being in contempt of an order of the Public
Service Labour Relations Board (the Board) dated August 26, 2009 (2009 PSLRB
103) (2009 Decision). The Board had ordered the reinstatement of Ms. Irene
Bremsak (the respondent) as an elected and appointed official of the Institute,
and the Institute failed to comply with this Order.
[2]
The Federal Court had made its finding of
contempt in a decision dated February 16, 2012 (2012 FC 213)
(Contempt Reasons or Contempt Order). The Institute’s appeal of the Contempt
Order was denied (2012 FCA 147).
[3]
As a remedy for the contempt, the Federal Court
ordered the Institute to pay a fine of $400,000 within 30 days of its decision.
However, if a settlement could be reached between the Institute and Ms.
Bremsak, the fine could be reduced by the amount of the settlement (2012
FC 396) (Remedy Reasons or Remedy Order).
[4]
While it now recognizes its guilt for contempt,
the Institute alleges that the Judge committed several errors leading to the
imposition of a demonstrably unfit sentence. More particularly, it states that
the Judge erred:
A.
in considering that the breach had continued for
several years,
B.
in considering the violation of the Board’s
Order as an aggravating factor,
C.
in failing to consider mitigating factors,
D.
in fashioning a remedy to provoke a negotiated
settlement, and
E.
in imposing a disproportionate penalty.
[5]
By way of cross-appeal, the respondent seeks a
variation of the Remedy Order as to costs since none were awarded by the Judge.
Ms. Bremsak seeks costs assessed on a solicitor-client basis or, alternatively,
costs at the usual scale to be assessed under the highest column in Tariff B.
She estimates her costs under column V at approximately $14,000.
[6]
Ms. Bremsak’s cross-appeal came to this Court by
way of a motion record for an order granting her an extension of time to file
her notice of cross-appeal. The motion was heard at the outset of the hearing
of this appeal and was taken under advisement. I shall discuss it after dealing
with the appeal. I intend to proceed as follows:
A) The
Appeal
I) Background
and Procedural History
II)
The Contempt Order
III) Analysis
1) Role
of an Appellate Court
1.1 Criminal Context
1.2 Civil Context
2) Whether the Sentence Imposed is Demonstrably Unfit
2.1 The
Breach Persisted for Several Years
2.2 The Breach of the Board’s Order is an Aggravating Factor
2.3 Failure
to Consider Mitigating Factors
2.3.1 The Institute’s Partial Compliance and Good Faith
i)
Modification of the Policy
ii)
Posting an Announcement
2.3.2 Reliance
on Legal Advice
2.3.3 Balancing
the Interests and Legal Rights of Members
2.3.4 The Board’s Decision to Uphold the 5-year Suspension
2.4 Fashioning a Contempt Remedy to Promote Settlement
2.5
Whether the Penalty is Disproportionate
IV) Conclusion
on the Appeal
B) The
Cross-Appeal
C) Conclusion
A) The
Appeal
[7]
“[A]bsent an error in principle, failure to
consider a relevant factor or an overemphasis of the appropriate factors” our
Court will not intervene to vary a remedy fashioned by a judge in a contempt of
court proceeding unless the sentence is demonstrably unfit (9038-3746 Quebec
Inc. v. Microsoft Corporation, 2010 FCA 151, leave to appeal to S.C.C.
refused, 33835 (December 23, 2010) at paragraph 4 [Microsoft], citing to
R. v. M. (C.A.)., [1996] 1 S.C.R. 500 at paragraph 90).
[8]
I propose to allow the appeal and to vary the
sentence. The Institute has persuaded me that the sentence is demonstrably
unfit, as the Judge failed to address mitigating factors in his reasons, and
provided a disproportionate remedy in light of the effects of the breach and prior
jurisprudence.
I) Background
and Procedural History
[9]
The following background information is
necessary to better understand the sentencing Order. The parties have an
acrimonious relationship that has been further marred by their engagement in
numerous legal proceedings. To date, the Board has issued 7 decisions in the
dispute between Ms. Bremsak and the Institute and other individual members of
the bargaining agent: 2008 PSLRB 49 (request for interim relief is
denied); 2009 PSLRB 103 (the 2009 Decision ordering reinstatement); 2009 PSLRB
159 (the Board orders that the 2009 Decision be filed with the Federal Court);
2010 PSLRB 126 (Ms. Bremsak’s request for reconsideration of the 2009 Decision
dismissing her first complaint is denied); 2011 PSLRB 95 (Ms. Bremsak’s
additional complaints and request to obtain the Board’s consent to prosecute
members of the Institute are dismissed); 2013 PSLRB 22 (Ms. Bremsak’s
complaints following the harassment complaints filed against her by fellow
members of the bargaining agent – which led to her 5-year suspension and her
request to obtain the Board’s consent to prosecute – are dismissed); 2013 PSLRB
28 (Ms. Bremsak’s request for reconsideration of the previous decision is
dismissed); and Bremsak v. North Shore Investigations and Mattern,
2011 PSLRB 56 (one decision following a complaint of unfair labour practices
against the independent investigator hired by the Institute to investigate
complaints of harassment mentioned above).
[10]
In the Federal Court, the file (T-2049-09) was
opened in December 2009. The summary of recorded entries in the Federal Court’s
proceedings includes well over 200 entries. The parties also paid several
visits to our Court before the hearing of this appeal (2012 FCA 147 (appeal
from Contempt Order is dismissed); 2012 FCA 91 (judicial review of the Board’s
decision in 2011 PSLRB 95 is dismissed); 2011 FCA 258 (the stay imposed by
the Judge during contempt proceedings is lifted); 2009 FCA 312 (request by the
Institute for a stay of the Board’s orders is denied)).
[11]
In these reasons, I will focus only on the
decisions and orders relevant to the Remedy Order starting, of course, with the
2009 Decision ordering reinstatement.
[12]
The respondent was employed by Health Canada. She was a member of the Institute, which represents approximately 55,000 Government
of Canada employees holding various professional positions. She also held a
number of elected and appointed positions within the Institute. Although the
membership is the Institute’s ultimate decision-making authority, its
activities are supervised by a Board of Directors as well as Regional Councils.
[13]
In June 2007, two positions on Regional Councils
were to be filled. An issue arose about regional representation and the
election of a particular representative for Victoria, B.C. The respondent was
unhappy with the way this representative handled herself and shared her opinion
with a number of people within the bargaining agent. From then on, several
events prompted the parties to withdraw to their trenches and to initiate
litigation.
[14]
In its 2009 Decision, the Board aptly summarizes
Ms. Bremsak’s first two complaints:
2 The
complaints allege violations of paragraph 188(c) and subparagraph 188(e)(ii)
of the [Public Service Labour Relations Act, S.C. 2003, c. 22, s.2] (“the Act”).
Paragraph 188(c) prohibits an employee organization from taking
disciplinary action or imposing “any form of penalty” on an employee by
applying the employee organization’s standards of discipline to that employee
in a discriminatory manner. Paragraph 188(e) prohibits discrimination
against a person with respect to membership in an employee organization. It
also prohibits intimidation or coercion of a person, or the imposition of “a
financial or other penalty on a person”, because the person made an application
under the Act.
3 The
first complaint [dated November 16, 2007] started with an email sent by the
[respondent] involving a controversy over a local election within the
bargaining agent. The [respondent] was concerned that another member, who was
selected as a successful candidate based on regional representation, did not
step aside because of “ethical” issues and “a lack of morals”. The person who
had not stepped aside made a complaint to the president of the bargaining agent
alleging that the [respondent]’s comments were harassing and defaming. The
bargaining agent’s Executive Committee agreed with the complaint and wrote to
the [respondent] on September 12, 2007, requesting that she apologize. The
[respondent] declined to apologize and the bargaining agent’s Board of
Directors apologized on the [respondent]’s behalf. The [respondent] then filed
a complaint dated November 16, 2007 with the [Board] alleging that this was a
form of penalty and discipline and it was done in a discriminatory manner
contrary to paragraph 188(c) of the Act.
4 The
second complaint is dated April 11, 2008 (but was filed with the Board on July
8, 2008) and it relates to a decision by the bargaining agent to issue a
[Policy Relating to Members and Complaints to Outside Bodies (Policy)]… The
Board was included as an outside body under that policy. The effect of the
policy is that, “...where a member … refers a matter which has been or ought to
have been referred to the Institute’s internal procedure to an outside process
or proceeding for consideration, that member … shall automatically be
temporarily suspended …” from any elected or appointed office. On April 9,
2008, the [respondent] was advised by the bargaining agent’s acting president
that, pursuant to that policy and because of her complaint to the Board, she
was temporarily suspended from four positions to which she was either elected
or appointed. She was also advised that the temporary suspension would cease
once the outside procedures had been finally terminated for any reason. The
[respondent] submits that the policy and its application amount to
discrimination against her with respect to her membership in an employee
organization, it is intimidation and coercion, and imposes a financial or
“other penalty” on her because she made an application to the Board, contrary
to subparagraph 188(e)(ii) of the Act.
(2009 Decision, joint book of authorities,
volume 1, tab 6 at pages 48-49.)
[15]
In its 2009 Decision, the Board denied the first
complaint but allowed the second one:
143 The
bargaining agent is directed to rescind the application of its [Policy] to the
[respondent].
144 The
bargaining agent is directed to amend its [Policy] to ensure that it complies
with the Act.
145 The
bargaining agent is directed to restore the [respondent]’s status as an elected
official of the bargaining unit and to advise its members and officials, in the
form described in paragraph 131 of this decision, that she has been reinstated
to all of her elected and appointed positions subject to the normal operation
of the constitution and by-laws of the bargaining agent.
(Ibidem at page 84.)
[16]
The Order made at paragraph 145 cited above is
at the core of the contempt proceedings. Despite the Order, the respondent was
never reinstated to any of her elected or appointed positions. Moreover, while
the respondent was attempting to enforce compliance with the 2009 Decision, the
Institute’s Executive Committee, on October 20, 2009, suspended her from
membership for five years following an independent investigation of harassment
complaints made against Ms. Bremsak by other Institute members. As a result,
Ms. Bremsak was disqualified from holding office in the Institute. The
respondent’s terms of office then expired in September 2010.
[17]
The respondent, as summarized above, filed
complaints with the Board, arguing that the harassment complaints were filed
against her in retaliation for her pursuing her rights under the Act. This
matter was still pending at the time the Judge issued his Order. However, the
Board’s decision was filed with this Court (2013 PSLRB 22, joint book of
authorities, volume 1, tab 16 at pages 218-392). At paragraphs 497 and 498 of
its reasons, the Board wrote:
[497] In
my view, there was a rational reason for the five-year suspension from
membership in the Institute that was connected to Ms. Bremsak’s misconduct. She
behaved in a harassing manner towards other Vancouver Executive members over a
period of more than a year. Her conduct escalated over time. A cooling-off
period was required. I find that Ms. Bremsak received no discriminatory
treatment, or even arbitrary or otherwise unreasonable treatment, in the
harassment investigations or in the application of the 2009 Dispute
Resolution Policy to her.
[498] I
therefore dismiss the five-year suspension complaint and the related
application for consent to prosecute.
[18]
Upon reconsideration, the Board upheld its
decision, declaring that the respondent’s application for reconsideration was
an abuse of process (2013 PSLRB 28, joint book of authorities, volume 1, tab
17, page 414 at paragraph 42).
[19]
I will come back later to some of these facts
when discussing mitigating factors. For now, however, I turn to the Contempt
Order.
II) The
Contempt Order
[20]
The Contempt Order has its own history which
sheds light on the Judge’s objectives in fashioning the Remedy Order.
[21]
The Contempt Order is dated February 16, 2012
and was issued almost three years after the respondent filed her motion record
for an order for contempt (Summary of Recorded Entries, document #4, December
18, 2009).
[22]
The contempt hearing was held on October 20,
2010, several weeks after it was originally set down for hearing. Hoping for an
out of court settlement, the Judge had imposed an adjournment sine die, which
explains the rescheduling. The Institute declined the Judge’s offer to act as
mediator. This chain of events occurred after the Judge had issued an oral
direction stating that “from a review of the parties’ correspondence, it
appears that they are too far apart to schedule a mediation” (ibidem,
document #80, October 1, 2010). Still, the Judge persisted in urging the
parties to compromise and to settle their differences.
[23]
The Judge was well aware of the parties’
on-going appearances in front of the Board. As a result, on April 1, 2011, he
postponed the issuance of his Contempt Order pending the Board’s decision on
the 5-year suspension. On appeal from that Order, our Court, on September 19,
2011, lifted the stay and returned the matter to the Judge for a decision on
the basis of the record before him (See 2011 FCA 258 cited above at
paragraph [10]).
[24]
On November 16, 2011, the Judge once again
expressed his view that it was “in the interest of both parties to attempt to
settle this matter between themselves” (Summary of Recorded Entries, document
#111, November 16, 2011). No settlement ensued.
[25]
On February 16, 2012 the Judge therefore found
the Institute in contempt and ordered:
…
that the parties attempt to resolve the appropriate remedy to the contempt
finding between themselves within six (6) weeks … such settlement to be
approved by [the Federal] Court …
(Contempt Order (2012 FC 213), joint book
of authorities,
volume 1, tab 14 at page 209.)
[26]
The Institute was unsuccessful in challenging
the Contempt Order on appeal (2012 FCA 147, joint book of
authorities, volume 2, tab 30 at pages 667-686). The Judge once again invited
the parties to settle the matter out of Court and directed that a mediation
conference take place on October 30, 2012 (Summary of Recorded Entries, document
#167, October 30, 2012). The mediation failed. The Judge followed up on his
efforts, seeking information detailing each party’s last settlement offer. The
Institute was not prepared to waive its settlement privilege. Finally, on
November 29, 2012, the Judge issued the impugned Order and Remedy.
[27]
The Judge was obviously hoping for a settlement,
despite his first comment that the parties were too far apart to resolve the
matter out of Court. This is, in all likelihood, why he gave the Institute a
chance to purge its contempt by achieving a settlement for all or part of the
amount of the fine. I shall come back to this part of the Order, as the
Institute alleges that the Judge erred in fashioning a remedy intended to
promote settlement.
III) Analysis
1) Role
of an Appellate Court
[28]
Before turning to the issues identified by the
Institute (see above at paragraph [4]), a few general remarks are in order
about the role of an appellate court in matters of sentencing, both in criminal
and civil contexts.
1.1 Criminal
Context
[29]
The Federal Court of Appeal has stated that the
usual principles of sentencing apply to cases of civil contempt (Microsoft;
Canada (Human Rights Commission) v. Canadian Liberty Net, [1996] 1
F.C. 787 at page 801 (C.A.) [Liberty Net], affirmed on the finding of
contempt, [1998] 1 S.C.R. 626). Accordingly, principles of sentencing
in the criminal context are applicable to the case at bar.
[30]
A test known as the “demonstrably unfit” test
was developed in the context of criminal contempt sentencing. It refers to the
circumstances in which it is appropriate for an appeal court to intervene and
vary a sentence imposed by a trial judge. Leading cases on this test in the
criminal sentencing context are R. v. Shropshire, [1995] 4 S.C.R. 227 [Shropshire]
and R. v. M.(C.A.), [1996] 1 S.C.R. 500 [M.(C.A)]. In the latter
case, the Supreme Court of Canada admonished the British Columbia Court of
Appeal for inappropriately reducing the accused’s sentence. The Court stated:
Put
simply, absent an error in principle, failure to consider a relevant factor, or
an overemphasis of the appropriate factors, a court of appeal should only
intervene to vary a sentence imposed at trial if the sentence is demonstrably
unfit
(at paragraph 90).
[31]
Due to the highly contextual nature of
sentencing, an appellate court owes considerable deference to the trier of fact
when reviewing the fitness of a sentence. Thus, “an appellate court may not
vary a sentence simply because it would have ordered a different one” (R. v.
L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paragraph 14). Rather,
a “variation in the sentence should only be made if a court
of appeal is convinced it is not fit. That is to say, that it has found the
sentence to be clearly unreasonable” (Shropshire at paragraph 46).
[32]
A trial judge does not commit an error in
principle simply because, in the opinion of the appellate court, the trial
judge gave too much weight to one factor or not enough weight to another. The
Supreme Court has stated:
The
weighing of relevant factors, the balancing process is what the exercise of
discretion is all about. To maintain deference to the trial judge's exercise of
discretion, the weighing or balancing of relevant factors must be assessed
against the reasonableness standard of review. Only if by emphasizing one
factor or by not giving enough weight to another, the trial judge exercises his
or her discretion unreasonably should an appellate court interfere with the
sentence on the ground the trial judge erred in principle.
(R.
v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paragraph 46 [Nasogaluak],
citing R. v. McKnight (1999), 135 C.C.C. (3d) 41 at paragraph 35 (Ont.
C.A.))
[33]
The principle of proportionality is central in
criminal sentencing. In Nasogaluak at paragraph 43, the Supreme Court
provided the following guidance as to what constitutes a “fit” sentence:
The
determination of a "fit" sentence is, subject to some specific
statutory rules, an individualized process that requires the judge to weigh the
objectives of sentencing in a manner that best reflects the circumstances of
the case (R. v. Lyons, [1987] 2 S.C.R. 309; M. (C.A.); R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps
the others and it falls to the sentencing judge to determine which objective or
objectives merit the greatest weight, given the particulars of the case. The
relative importance of any mitigating or aggravating factors will then push the
sentence up or down the scale of appropriate sentences for similar offences.
The judge's discretion to decide on the particular blend of sentencing goals
and the relevant aggravating or mitigating factors ensures that each case is
decided on its facts, subject to the overarching guidelines and principles in
the [Criminal Code] and in the case law.
[34]
Thus, the jurisprudence establishes that
appellate court interference with a trial judge’s sentence in criminal cases should
happen only when it is “not fit”, based on the circumstances of the case.
1.2 Civil
Context
[35]
As already mentioned, the test for appellate
court interference with regard to criminal sentencing also applies in relation
to civil matters. Moreover, as with the criminal cases cited above, there is no
single correct approach to weighing aggravating and mitigating factors when
determining a sentence for civil contempt. Federal Courts
case law has developed a number of guiding principles for judges to consider.
For example:
- The trial judge should consider “the gravity of the
contempt in the context of the particular circumstances of the case as
they pertain to the administration of justice" (Baxter Travenol
Laboratories of Canada, Ltd. v. Cutter Canada, Ltd., [1987] 2 F.C. 557 at page 562 (C.A.) [Baxter Travenol];
Lyons Partnership, L.P. v. MacGregor (2000), 186 F.T.R. 241
at paragraph 21 (T.D.));
- Aggravating factors include the objective gravity
of the contemptuous conduct, the subjective gravity of the conduct (i.e.
whether the conduct was a technical breach or a flagrant act with full
knowledge of its unlawfulness), and whether the offender has repeatedly
breached orders of the Court (Canada (Minister of National
Revenue) v. Marshall, 2006 FC 788 at paragraph 16 [Marshall]);
- In the case of corporate offenders, the trial judge
should also consider the size, scale and nature of the offender’s
operations and the premeditation and deliberation involved in committing
the offence (Apotex Inc. v. Merck & Co. Inc., 2003 FCA 234 at
paragraph 83 [Apotex v. Merck]);
- The fine must not be a mere token amount, but must
reflect the ability of the person found in contempt to pay the fine (Wanderingspirit
v. Salt River First Nation 195, 2006 FC 1420 at paragraph 4 [Wanderingspirit];
Desnoes & Geddes Ltd. v. Hart Breweries Ltd., 2002 FCT 632
at paragraph 7);
- Mitigating factors might include good faith attempts
to comply (even after the breach), whether there was an apology or
acceptance of responsibility, or whether the breach is a first offence (Marshall at paragraph 16);
- The judge can consider whether an order
subsequently issued has somewhat changed the situation of the contemnor or
an order violated by him has been found by the Court to be invalid (R. v.
Bernier, 2011 QCCA 228; R. v. Emmelkamp, 2013 ABCA 71; Liberty
Net at paragraph 27.
[36]
There is nothing in the case law to suggest that
the factors listed above are exhaustive. Again, a trial judge has wide
discretion when determining the appropriate sanction for
civil contempt, based on the circumstances.
2) Whether
the Sentence Imposed is Demonstrably Unfit
2.1 The
Breach Persisted for Several Years
[37]
In his Remedy Order, the Judge justified the
amount of the fine based on his finding that the Institute’s breach of the
Board’s Order had continued for several years. The Institute had argued that
the breach only lasted six weeks running from the date of the 2009 Decision to
the date of the five-year suspension. During the course of the proceedings, the
Institute also argued that the breach could not have lasted more than one year
running from the 2009 Decision to September 2010 when all of Ms. Bremsak’s
terms of office had expired.
[38]
At best, the length and timing of the breach is
a mixed question of fact and law subject to deference. The Judge had been
required to decide whether the breach of the Order to reinstate the respondent
continued to exist despite the fact that the remedy initially ordered could no
longer be implemented because the respondent’s terms of office had expired (as
of September 2010) and because her membership had been suspended for five years
(in October 2009).
[39]
As a matter of law, court orders continue to
exist and must be obeyed until they are set aside by legal process or an
equally effective order is secured to the effect that it need not be obeyed (Canada
(Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at pages 87-88; Paul
Magder Furs Ltd. v. Ontario (Attorney General) (1991), 52 O.A.C. 151, 85
D.L.R. (4th) 694 at paragraph 13 (C.A.); MacMillan Bloedel Ltd.
v. Simpson (1994), 90 B.C.L.R. (2d) 24, 43 B.C.A.C. 1,
113 D.L.R. (4th) 368 at paragraph 49 (C.A.), affirmed
on other grounds, MacMillan Bloedel Ltd. v. Simpson, [1995]
4 S.C.R. 725, 14 B.C.L.R. (3d) 122).
[40]
Moreover, a court order cannot be impeached by a
party affected by it on the basis of his own opinion as to the order’s validity
(Newfoundland (Treasury Board) v. N.A.P.E., (1986), 59 Nfld. &
P.E.I.R. 93, 39 A.C.W.S. (2d) 149 (NFCA)). Our Court also applied this
principle sitting on the appeal of the Contempt Order (2012 FCA 147),
as the Institute had raised a similar argument. Writing for a unanimous panel,
our colleague Sharlow J.A. stated, at paragraph 8:
The
Institute has also asserted that it would be unreasonable to hold it in
contempt of the Reinstatement Order before October 28, 2009, the date on which
its two stay applications were determined by this Court. It is convenient to
deal with that submission at the outset because it is so obviously devoid of
merit. As a matter of law, merely taking proceedings to stay an order cannot
excuse non-compliance with the order, although in certain circumstances
non-compliance with an order while a stay application is pending may be a
mitigating factor in determining the consequences of non-compliance.
[41]
The record shows that the Institute effectively
decided the matter for itself. It never applied to the Board or to the Federal
Court for an order finding that it was no longer in breach and need not obey
the Reinstatement Order made by the Board and subsequently affirmed by our
Court. Consequently, the Institute remained in contempt of the Board’s Order,
despite Ms Bremsak’s five-year suspension and the expiration of her terms of
office.
2.2 The
Breach of the Board’s Order is an Aggravating Factor
[42]
The Judge wrote: “[t]he contempt by the
Institute is particularly severe because it disobeyed an order of the Board”
(Remedy Order at paragraph 1). The Institute opines that there is “absolutely
no basis in law or in logic for finding that a breach of an order of one
administrative tribunal is any more serious than a breach of an order
from another tribunal or the Court” (Institute’s memorandum of fact and law at
paragraph 32). I disagree with the Institute’s interpretation of the Judge’s
Order on this point.
[43]
The Board, as found by the Judge in the Remedy
Reasons, is the supervisory body of the Institute. Its mandate is to ensure compliance
with the federal statute governing labour relations between the bargaining
agent and its members (Remedy Reasons at paragraph 12). The Judge’s words must
be read in that context.
[44]
As well, contempt does not only arise through
breach of an order of an administrative tribunal or court, but may arise
through a range of actions which obstruct justice. By way of example, Rule 466
of the Federal Courts Rules (SOR/98-106) [Rules] states that a person
may be found guilty of contempt where, inter alia, he or she fails to
maintain a respectful attitude, remain silent or refrain from showing approval
or disapproval of the proceeding at a hearing; disobeys a process or order of
the Court or acts in other ways which interfere with the orderly administration
of justice or impair the authority or dignity of the Court. In other
circumstances, failure to produce documents or to submit to examinations for
discovery may similarly constitute contempt. Within this framework, an action
which amounts to defiance of a court or tribunal order may well be considered
more serious and an aggravating factor.
2.3 Failure
to Consider Mitigating Factors
[45]
The Institute complains that the Judge failed to
consider even a single mitigating factor. In its view, three mitigating factors
should have been considered: the Institute partially complied with the Contempt
Order; the Institute honestly but mistakenly relied on legal advice; and the
Institute was trying to balance the interests and legal rights of its members.
[46]
The respondent counters that these factors were
not put to the Judge in the written submissions and should not be brought
forward at this point. I found no clear evidence in the record substantiating
Ms. Bremsak’s position. The transcript reveals that the Institute raised these
factors at the contempt hearing in order to convince the Judge that he should
not, on proof beyond a reasonable doubt, make a finding of contempt against it
(book of transcripts at page 13 and ff).
[47]
I do note, however, that the words “mitigating
factor” are absent from the Judge’s Remedy Reasons and Order. As a result, I
cannot detect whether or not the Judge considered these factors or others when
he imposed his sentence. Indeed, the Judge did appreciate the sentencing
objectives of specific deterrence, denunciation and protection of the public,
and, in addition to these objectives, compliance with the Board’s Order (Remedy
Reasons at paragraph 10). The Judge clearly identified the factors that he
considered to be aggravating under the circumstances. However, nowhere in his
reasons did he identify and discuss mitigating factors which might result in a
lesser sentence. The Judge seems to have relied heavily on the nature of the
contempt itself, i.e. the Institute’s defiance of the Board’s Order.
[48]
I am therefore of the view that the exercise of
his discretion remained incomplete. It lacked a discernable and proper
balancing exercise, which was required to achieve a fit sentence.
[49]
This is regrettable since both the parties and
the Court are unable to assess the legal process underlying the Remedy Order.
It is possible that the Judge had these factors in mind when he fashioned the
remedy. As a general rule, an appellate court tends to proceed on the basis
that the first judge knows the law and applied the correct legal test even if
he did not express it clearly in his reasons.
[50]
However, this is a sentencing order which
carries heavy consequences for the contemnor. The Judge’s failure to discuss
potential mitigating factors in his Remedy Reasons and Order, combined with the
amount of the fine ordered, lead me to believe that he overlooked this part of
the test. I conclude that the sentence is therefore unreasonable.
[51]
As a result, I have examined anew the
Institute’s arguments on this issue and I conclude that they militate in favour
of a lesser sentence. Moreover, I give some weight to the Board’s recent
decision wherein it found that the 5-year suspension was justified.
2.3.1 The
Institute’s Partial Compliance and Good Faith
[52]
The Institute states that it partially complied
with the Contempt Order by modifying its Policy and by posting an announcement
regarding Ms. Bremsak’s reinstatement. The Institute argues that these actions
demonstrate good faith attempts to comply with the Contempt Order and are in
line with the principles enunciated in Marshall, cited above.
i) Modification
of the Policy
[53]
Indeed, the Policy was amended to the
satisfaction of the Board (see 2009 PSLRB 159, December 4, 2009, joint book of
authorities, volume 1, tab 7, page 96 at paragraph 27) although not only as a
result of the 2009 Decision but also because of extrinsic reasons. While the
parties were completing their written submissions to the Board in anticipation
of the 2009 Decision, the Board ruled, in an unrelated file involving the bargaining
agent, that the Policy violated the Act and the principles of natural justice (Veillette
v. Professional Institute of the Public Service of Canada and Rogers,
2009 PSLRB 64, May 29, 2009). There were, as a result, reasons other
than the dispute with Ms. Bremsak and the Board’s 2009 Decision for the
bargaining agent’s action. I am also mindful that the original Policy imposed a
form of penalty on a member because it removed that person from her elected
position if she exercised her legal right to make an application to the Board
or another body, such as a Canadian court, outside of the bargaining agent. I
conclude that this is not a factor calling for a lesser sentence.
ii) Posting
an Announcement
[54]
With regard to the appellant’s efforts to post
an announcement informing its membership of the respondent’s reinstatement, the
Judge was clearly sceptical as to whether this could be determined to be an
effort to comply with the August 2009 Order. He pointed to the fact that Ms.
Bremsak was never reinstated and no attempt was made to achieve that result
(see Contempt Reasons at paragraph 87). The Court repeatedly questioned the
appellant’s counsel on the wording of the announcement and whether it was in
fact accurate (book of transcripts at pages 119-120). Further, in his show
cause motion decision (2010 FC 661, joint book of authorities, volume 1, tab 9
at page 120), Prothonotary Lafrenière drew the following conclusion at
paragraph 30:
[30] The
Institute clearly did not comply with the Board’s Order
to publish the announcement in a prominent place “in the next edition of one of
its regular and significant publications to the membership”. The requirement to
comply with the Board’s Order crystallized on December 8, 2009, when the Board
decision became a Court Order. Although an announcement was published by the
Institute on December 22, 2009, there was a two week delay in doing so. The
announcement was placed at the bottom of the Institute website over the winter
holiday period, when few members would be accessing the site. It also
included a disclaimer. On the evidence before me, I conclude that the placement
of the announcement and disclaimer, combined with the unexplained delay in
posting it on-line, did not comply with the terms and intent of the Court
Order.
This factor does
not help to mitigate the Institute’s sentence. To the contrary, it demonstrates
the Institute’s reluctance to comply swiftly and fully with the Board’s Order.
2.3.2 Reliance
on Legal Advice
[55]
The Institute states that it “consistently
attempted to comply with what it perceived to be its legal obligations"
(Institute’s memorandum of fact and law at paragraph 46). It relied on legal
advice on several fronts: (1) when it chose not to comply with the Board’s
Order awaiting the Judge’s decision on the stay, because it believed that
otherwise it could not argue that it would suffer irreparable harm from the
Board’s Order; (2) when it set the start of the “contempt clock” at the date of
filing of the Board’s Order with the Federal Court (certificate of filing
issued on December 8, 2009); and (3) when it relied on Ms. Bremsak’s 5-year
suspension imposed on October 20, 2009 for its decision not to reinstate her.
[56]
In his Contempt Reasons, the Judge considered
these arguments. First, regarding the Institute’s decision not to comply, he
wrote:
[79]
… That is why [the Institute] sought to stay the operation of the Board’s order
at a time when its harassment investigation was well advanced; indeed draft
reports were in circulation.
[80]
In this context, it is unreasonable for the Institute to interpret the Board
order as permitting a subsequent event such as a suspension of membership which
would nullify the reinstatement. The terms of this order were clear. Reinstate
now! If disciplinary issues arose later to warrant action, the Institute could
do so at that time.
[57]
On the clock-ticking argument, he found that in
appropriate circumstances, a contempt finding could be based on events prior to
a Board’s decision being filed with the Federal Court. He concluded, at
paragraph 85, that "the facts giving rise to a contempt finding can be
based on the terms of the very Board order which is sought to be enforced –
immediate reinstatement".
[58]
Regarding the 5-year suspension, the Judge
questioned its validity. He raised several concerns, ranging from procedural
equity and the authority of the Executive Committee to suspend the respondent,
to the proportionality of the sanction. In his Contempt Reasons, he wrote:
[83] By
raising these questions, I
must not be taken as having decided the merits of the Institute’s decision. The
Institute had the right to investigate and to discipline Ms. Bremsak. The
allegations against her and her husband were serious. The question is whether
they amounted to harassment, and whether the penalty and its timing were
reasonable and proportioned.
[84] In the circumstances on the
evidence before me, I am not satisfied the Institute met its evidentiary burden
of establishing lawful excuse.
[59]
The fact that all these findings by the Judge
supported his decision to issue the Contempt Order does not mean, however, that
one or all of these factors could not have militated in favour of a lesser
sentence in the remedy portion of the proceedings. But once again, mitigating
factors are absent from the Remedy Reasons and Order.
[60]
Nonetheless, I do not find that the Institute’s
reliance on legal advice constitutes a mitigating factor in the circumstances.
The record is thin on this point and makes it difficult to assess the nature of
the legal advice, the extent to which the Institute relied upon it, the
objective reasonableness of the Institute’s reliance and the subjective
evidence relating to the appellant’s decision to rely on legal advice. (See Blair
v. Consolidated Enfield Corp., [1995] 4 S.C.R. 5; Dockside Brewing Co.
v. Strata Plan LMS 3837, 2007 BCCA 183, leave to appeal to SCC refused,
32060 (September 27, 2007).
[61]
It is also useful to note that this Court has
determined that where a party relies on legal advice to nourish an action or to
support a defence, the party opposite should have disclosure of that advice.
Otherwise, a party could try to rely on legal advice to justify its conduct
without having to disclose the substance of this advice. “This could be unfair
to the other side and, if so, a finding that the privilege has been impliedly
waived by the party's conduct may be justified” (Mid-West Quilting Co. v.
Canada, 2007 FC 735 at paragraph 8, citing Apotex Inc. v. Canada
(Minister of Health), 2003 FC 1480, [2004] 2 F.C.R. 137, affirmed 2004
FCA 280) [Apotex v. Canada]. On appeal, Evans J.A. upheld the Federal
Court’s conclusion in Apotex v. Canada that “relying on the fact of
taking legal advice … puts in issue the communications between the Minister's
officials and her legal advisors in such a way that it would be unfair to
shield those communications from disclosure” (Apotex v. Canada, 2004 FCA
280, 34 C.P.R. (4th) 289 at paragraph 2). As a result, I conclude that reliance
on legal advice under the present circumstances is not a mitigating factor.
2.3.3 Balancing the Interests and Legal Rights of Members
[62]
I do not accept the Institute’s argument that
its actions “must be taken as a genuine, though eventually mistaken, attempt to
act in the interests of its members within the confines of the law”
(Institute’s memorandum of fact and law at paragraph 57). Ms. Bremsak was also
a member of the bargaining agent, albeit a more demanding and uncompromising
member, in view of the context. Nonetheless, it seems to me that the Institute
made choices without showing that it had considered Ms. Bremsak’s rights
following the 2009 Decision. Although she won in front of the Board, she has
nothing to show for it, not even a letter of apology. As stated by the Judge at
the Contempt Hearing “… when somebody has got an order of reinstatement and is
never reinstated, you have to dig…You have to dig hard to see what went wrong,
and whether it’s justified” (book of transcripts at page 190, line 15 and ff).
Consequently, I conclude that this does not constitute a mitigating factor.
2.3.4 The
Board’s Decision to Uphold the 5-year Suspension
[63]
We now know that the Board upheld the Executive
Committee’s decision to suspend the respondent for 5 years and found that she
(and her husband who represented her) had been harassing other Vancouver
Executive members for more than a year. Ms. Bremsak is challenging the Board’s
decision by way of an application for judicial review filed with our Court on
April 11, 2013 (file A-131-13). She alleges no less than 51 legal and factual
errors on the part of the Board.
[64]
It is my view that this recent decision by the
Board gives weight to the Institute’s explanation as to why it did not
reinstate the respondent following the 2009 Decision. I therefore afford some
importance to this sequence of events as a mitigating factor.
2.4 Fashioning
a Contempt Remedy to Promote Settlement
[65]
The Institute’s position is expressed at
paragraphs 33 to 37 of its memorandum of fact and law:
33. Before
his reasons on remedy were issued, Lemieux J. was very concerned with provoking
a settlement between the parties. … [O]n November 26, 2012, three days before
his reasons were released, [the Judge] sent a direction to the parties which
read:
What
I want to know is the last offer of settlement made by each party and what was
the basis of the offer. I am available any time for a phone conference, or the
parties can write to me.
I
am about to issue my judgment. I need this information by the end of the day on
Wednesday, November 28, 2012 at the latest. (Direction of Lemieux J., 26
November 2012, appeal book, tab 13 at page 30.)
34. The
Institute’s representative wrote to [the Judge] on November 27, indicating that
it was “not prepared to waive settlement privilege”, and requesting “that no
adverse inference be made based on the fact that the Respondent has exercised
its right to maintain the privilege surrounding settlement communications” (ibidem,
tab 14 at page 31). On November 28, Ms. Bremsak’s husband, John Lee, wrote on
her behalf to the Court, indicating that she “did not make a final last offer
of settlement on the basis that she felt under the circumstances, no doable
settlement offer was possible or achievable” (ibidem, tab 15 at page
32).
35.
In his reasons on remedy, released the next day,
[the Judge] commented:
This
case should have been settled a long time ago. The Court attempted to do so
before the contempt hearing began. In its order finding the Institute in
contempt this Court ordered that the parties attempt to resolve the matter
between themselves. It made numerous efforts to encourage the parties to
settle and this as recently as a few weeks ago. Intransigence between the
parties is the order of the day. [Emphasis added in the original.]
[the
Judge] found that Ms. Bremsak was entitled to be compensated, but found that
this required evidence “which this Court does not have” and saw a “negotiated
settlement [assisted by a Prothonotary] as most appropriate in the
circumstances”. [Footnote omitted.]
36. Based
on his Direction of November 26 and his reasons, the Institute can only presume
that a central motivation underlying the severe fine that [the Judge] imposed
was to provoke a settlement. His remedy acknowledged that Ms. Bremsak should be
compensated, but awarded her no compensation. In contrast, the Institute was
levied a very substantial fine, presumably in order to motivate it to reach a
settlement with Ms. Bremsak. In effect, as a response to the failure of the
parties to agree on a mutual settlement, [the Judge] punished the Institute.
Indeed, by the terms of the order itself, the Institute had no incentive to
reach a settlement, as it was still liable to pay the remainder of the $400,000
fine over the amount of any settlement.
37. With
respect, [the Judge]’s approach on the question of remedy - to apparently
provoke a negotiated settlement – was inappropriate. The Ontario Court of
Appeal has noted that contempt is “an offense against the authority of the
court and the administration of justice,” which does not have “the function of
a civil action in tort or for breach of contract”, (SNC – Lavalin Profac
Inc. v. Sankar, 2009 ONCA 97 at paragraph 14).
[66]
With respect, the Institute’s argument fails to
acknowledge the range of objectives that the Court may properly pursue in
fashioning a remedy for contempt as set out in the case law, as well as the
range of remedies available to the Court pursuant to Rule 472 of the Rules.
Canadian jurisprudence holds that civil contempt has both private and public
aspects and emphasizes that the objectives to be considered when imposing a
penalty for contempt include inter alia:
•
Repairing “the depreciation of the authority of
the court” (International Forest Products Ltd. v. Kern, 2001 BCCA 48 at
paragraph 20),
- Enforcing court orders (Marshall at paragraph 16; Majormaki
Holdings LLP v. Wong, 2009 BCCA 349 at paragraph 27 [Majormaki]),
•
Specific or general deterrence (Marshall
at paragraph 16; Apotex v. Merck at paragraphs
83-89),
•
Denunciation or punishment (Majormaki at
paragraphs 27-28), and
•
Compensation (Saskatchewan Health-Care
Assn. v. Saskatchewan Union of Nurses, [1999] 12 W.W.R. 240, 182 Sask. R. 248 at paragraphs 39-42 (Sask. Q.B.) [Saskatchewan Health-Care Assn]).
[67]
When the Institute alleges that the Judge erred
in law by imposing such a severe fine in an attempt to promote settlement, it
presumes that the quantum of the fine would have been less had settlement not
been a primary objective of the Trial Judge. In my view, an appeal court should
be wary of overturning a discretionary decision of a trial judge on the basis
of such a presumption. Paragraph 1 of the Remedy Order, in which the Judge
states his justifications for the quantum, makes no mention of settlement.
[68]
The case law does not deal directly with the
issue of whether it is open to a trial judge to fashion a contempt remedy to
promote settlement. However, in Pro Swing Inc. v. Elta Golf Inc.,
2006 SCC 52, [2006] 2 S.C.R. 612 at paragraph 35, Madam Justice Deschamps,
writing for the majority, held as follows:
In
Canadian law, a contempt order is first and foremost a declaration that a party
has acted in defiance of a court order. Consequently, a motion for contempt of
court cannot be reduced to a way to put pressure on a defaulting debtor or a
means for an aggrieved party to seek indemnification.
[69]
Similarly, in Wanderingspirit, (see above
at paragraph 35) the applicants wanted the fine imposed to equate to the amount
of money that was allegedly siphoned from the Salt River First Nation (SRFN)
accounts by cheques issued in contravention of Court orders. Snider J. (at
paragraph 8) rejected this approach on the ground that penalties for civil
contempt were not a way for the applicants to recover funds that they believed
were effectively stolen from the SRFN. The penalty should be designed to
restore the reputation of the Court and to deter the contemnors from any
further breaches of orders.
[70]
However, the Institute has acknowledged that in
cases where it is impossible for the contemnors to comply with the original
order, there is precedent to support a trial judge allowing the contemnor an
opportunity to purge its contempt through other means. For example, in British
Columbia Public School Employers Assoc. v. British Columbia Teachers Federation,
2005 BCSC 1490 [British Columbia Teachers Federation] at
paragraph 24, Brown J. endorsed the general principle that in ordering payment
of a fine in civil contempt, “the court may permit, by imposition of
appropriate conditions, the contemnor to satisfy the fine in alternative ways,
such as payment to a charity or the provision of free services to the persons
harmed by the continuance of the contemptuous behaviour.”
[71]
In Saskatchewan Health-Care Assn, this
approach was followed. The Union was found in contempt for striking illegally
and failing to adhere to back to work legislation. The Court imposed a $120,000
fine. However, the fine was suspended for a period of 30
days in order to allow the Union to purge its contempt by paying donations in
the amount of $120,000 to various hospital foundations throughout the province.
[72]
This case is particularly
interesting because the amount of the fine and the amount of donations were
equal. This means that there was no particular incentive for the Union to pay
the donations, as opposed to paying the fine, beyond the general desire of the
Union to “demonstrate to the people of Saskatchewan that they do and will
continue to respect their lawful obligations” (Saskatchewan Health Care Assn
at paragraph 38).
[73]
Similarly, in the case at
bar, there was no particular financial incentive for the Institute to settle
with Ms. Bremsak because the total amount paid would have been the same.
However, it is possible that the Judge was attempting to give the Institute an
opportunity to demonstrate its respect for its lawful obligations as well. In fact,
before this Court, the Institute acknowledged that “it may be appropriate for
this Court to direct that all or a portion of any fine imposed against the
Institute be paid to Ms. Bremsak or a charity of her choosing” (Institute’s
memorandum of fact and law at paragraph 38).
[74]
The Institute cited no
authority for the proposition that the Judge erred in law by fashioning his
remedy in such a way that promoted settlement. In Nasogaluak at
paragraph 43, the Supreme Court stated that “no one sentencing objective
trumps the others and it falls to the sentencing judge to determine which
objective or objectives merit the greatest weight, given the particulars of the
case.” This proposition may be less true in cases of civil contempt because
Courts have repeatedly stated that the enforcement of court orders should be
the primary objective of sanctions. However, here the Judge had observed that
(1) Ms. Bremsak was entitled to be compensated but it took evidence which the
Court did not have (Remedy reasons, paragraph 13), and (2) compliance
with the initial order was impossible. Under those circumstances, it was open
to the Trial Judge to offer the contemnor the opportunity to purge its contempt
through settlement. I do not believe this amounted to an error of law.
2.5 Whether
the Penalty is Disproportionate
[75]
The Institute’s position is well explained at
paragraph 58 of its memorandum of fact and law:
58. …
the Institute submits that the $400,000 fine imposed by [the Judge] as a
penalty for the contempt was grossly disproportionate. The Institute’s contempt
in this case stemmed from its failure to reinstate Ms. Bremsak to voluntary
positions on some of the Institute’s constituent bodies. As the [Board] noted
with respect to her suspension for harassment, it “does not affect Ms.
Bremsak’s right to work, to be represented by the Institute in grievances with
the employer or to participate in all the benefits that a bargaining agent
secures for its members”. Rather, the failure to reinstate Ms. Bremsak has
affected only her ability to participate in the Institute’s internal
activities. The Institute does not seek to diminish the significance of its
contempt on Ms. Bremsak personally. But the penalty imposed must be
proportionate…
59. It
is notable that [the Judge] did not make reference to comparable decisions in
his reasons. The Institute would submit that had he done so, it would have
revealed the inappropriateness of the sanction he imposed.
[76]
In his Remedy Reasons, the Judge comments on the
parties’ suggestions as to the appropriate fine. He finds their positions
“totally unreasonable” (at paragraph 9). Ms. Bremsak was suggesting a fine
ranging from $500,000 to $2,000,000 with the funds going to legal aid, while
the Institute proposed a fine of $5,000.
[77]
The parties cited case law in support of their
respective positions. These cases and others appear in a chart, annexed to
these reasons.
[78]
The quantum of the penalty is ultimately
a discretionary decision based on the circumstances of each case. The Institute
argues that in the case of Baxter Travenol, this Court stated that the
penalty must be “appropriate to indicate the severity of the law and yet
sufficiently moderate to show the temperance of justice” (Baxter Travenol at
paragraph 11). In that case, the Court also noted that to significantly reduce
the penalty or to levy only a “token” fine would be “inconsistent with the
gravity of the issue” and “might serve to encourage others” to flout the law if
it is to their advantage to do so (at paragraph 17).
[79]
In cases involving unions, courts have
considered the size of these organizations, and their significant resources, in
setting penalties for contempt. For example, in British Columbia Teachers
Federation at paragraphs 30-31, the Court found as follows:
This
Court must impose a sanction that recognizes the gravity of the contempt,
deters this party from continuing contempt and deters others from similar
conduct. The BCTF has approximately 38,000 members. It has net assets of more
than $30 million. Its collective bargaining defence fund was $14,644,000 as of
June 30, 2005. […] The number of members and the extent of the assets of the
BCTF are such that a fine akin to that levied against the HEU would be trivial,
the equivalent of approximately $4.00 per union member”.
The Court set a
penalty of $500,000 for contempt, in response to the union’s defiance of an
order against a strike, which lasted 10 days.
[80]
However, jurisprudence demonstrates that while a
fine ought to reflect the contemnor’s means and needs to be more than a “cost
of doing business” in order to ensure future deterrence, the fine also ought to
reflect the severity of the breach, its implications for the public and ought
to be consistent with fines previously issued in cases of civil contempt. For
example, in Apotex Fermentation Inc. v. Novopharm Ltd. (1998), 162
D.L.R. (4th) 111, [1998] 10 W.W.R. 455 at paragraph 320, a fine for contempt
issued by the trial judge was reduced from $1.25 million to $100,000 on the
grounds that it went “farther than is necessary to reflect the public interest”
and went far beyond civil contempt fines provided in prior jurisprudence.
[81]
Moreover, as already discussed, fines ought to
have been crafted with both mitigating and aggravating factors in mind in order
to be considered proportionate and just.
[82]
The range of fines imposed in cases of civil
contempt is broad. However, a fine of $400,000 is on the high end of the range.
[83]
As the Institute has pointed out, its failure to
reinstate Ms. Bremsak has affected her participation in elected and appointed
positions within the bargaining unit, but it has not affected her right to work
or to enjoy the other protections and benefits of membership.
[84]
Comparable remedies or smaller fines have been
issued in cases which had greater implications with regard to the public
interest than the case at hand. For example, in British Columbia (Health
Employers Assn.) v. Facilities Subsector Bargaining Assn., 2004 BCSC 762,
31 B.C.L.R. (4th) 124, the British Columbia Supreme Court issued a fine of
$150,000 (current value of $175,547.10) for hospital employees refusing to obey
a labour board’s order to return to work. As already mentioned, in British
Columbia Teachers Federation a fine of $500,000 (current value of
$574,304.02) was ordered for teachers similarly disobeying a labour board’s
order to return to work. In Saskatchewan Health-Care Assn, the
Saskatchewan Court of Queen’s Bench imposed a fine of $120,000 (current value
of $158,800.52) for failing to end a strike following an injunction. Moreover,
in Syndicat canadien des communications, de l’énergie et du papier v. Métro
Média Inc., [1996] F.C.J. No 1605, 67 A.C.W.S. (3d) 899 [Métro Média],
the Federal Court ordered the defendant to pay a penalty of $5,000 (current
value of $6,910.11) for failing to obey an order to reinstate the plaintiff to
the employment position she held prior to her unjust dismissal.
[85]
It seems that in light of this case law,
a fine of $400,000 goes far beyond what is needed to reflect the public
interest and the gravity of the contempt; however, a fine comparable to that
issued in Métro Média ($5,000) would also be inadequate in light of
other factors on the record.
[86]
Here, the record lacks information as to the
Institute’s assets; it only states that the bargaining agent represents approximately
55,000 members. However, given the Institute’s size, the fine needs to be more
than a token amount for its members.
[87]
In addition, the fine ought to reflect the
aforementioned aggravating factors, such as the length of time of the breach,
as well as mitigating factors, such as the Board’s decision to uphold Ms
Bremsak’s 5-year suspension.
IV) Conclusion
on the Appeal
[88]
Having considered all the facts of this case and
weighed the relevant factors identified in these reasons, I am of the view that
the fine imposed on the Institute should be reduced to the amount of $250,000
payable within sixty-five days from the date of the judgment to issue. Pursuant
to Rule 149 of the Rules, I note that the Institute has already tendered
payment in this Court in the amount of $400,000.
[89]
At this point in time, I see no reason to
maintain paragraphs 2 and 3 of the Remedy Order where the Judge was giving the
Institute the opportunity to purge its contempt by reaching a settlement with
Ms. Bremsak. I accept that mediation is a valid option for parties to attempt
to resolve their differences, but there comes a point where judicial optimism
must give way to reality. The parties have been fighting each other in court
since 2007. The Board, the Federal Court and our Court have all come to the
same conclusion: intransigence on one side has been met by defiance from the
other (2012 FCA 91 at paragraph 4). Intransigence between the parties is the
order of the day (Remedy Reasons at paragraph 6).
B) The
Cross-Appeal
[90]
I now turn to the cross-appeal. Although
launched outside the delay provided for in the Rules, the cross-appeal was
fully argued at the hearing and Ms. Bremsak’s continuing intention to pursue
this matter is supported by the record. I see no valid reason why it should not
be entertained now. The issue is straightforward and the parties’ submissions
are before us. There is no prejudice to the Institute and it is in the interest
of the parties that this contempt matter comes to an end without further
proceedings or delay. Therefore, I propose to allow the motion to extend the
delay to file this cross-appeal, to accept for filing the notice of the
cross-appeal as it appears in Ms. Bremsak’s motion record (Appendix A at page
4) and to dispose of the cross-appeal.
[91]
In his Contempt Order, the Judge reserved the
question of costs for later determination. Two months later, while his Contempt
Order was under appeal, he directed the parties to file their written
submissions as to the appropriate remedy. However, he also stated that costs
would not be adjudicated upon at that moment, being dependent upon the decision
to issue from our Court (respondent’s motion record for the cross-appeal, page
23, at paragraph 3). He then issued his Remedy Order which is silent on the
issue of costs.
[92]
Following the Remedy Order, Ms. Bremsak
contacted the Federal Court in relation to this alleged omission. By then, the
Judge had retired and Martineau J. issued a direction dated February 11, 2013
in file T-2049-09. In its relevant portion, it reads:
It
appears that the matter of remedy was finally disposed by Justice Lemieux in
his Judgment of November 29, 2012. Despite the fact that the Judgment of
February 16, 2012 mentions that “[C]osts [are] reserved for later
determination”, it is apparent that the issue of costs should have been raised
by the applicant to Justice Lemieux prior to the making of his final Judgment.
Considering that Justice Lemieux’s final Judgment in the contempt proceeding
does not award costs and denies “all remedies” sought other than those
specifically noted, this Court is now functus officio and does not have
the power to order special costs in favour of the applicant.
Accordingly,
the Court declines to make any order with respect to costs.
[93]
Of course, no appeal lies from a direction and
Ms. Bremsak is now left with her notice of motion in this Court to extend the
delay to cross-appeal on the costs issue. Ms. Bremsak seeks special costs to
cover the costs of the contempt trial, the show cause hearing, and Ms. Isabelle
Roy’s cross-examination (to include $727.13 for transcript and reporting
services). Ms. Bremsak was already awarded a lump sum of $7,000 for the appeal
on the Contempt Order. The Institute argues that Ms. Bremsak is entitled to her
disbursements incurred during the hearing before the Protonothary and the
Judge, but not to additional costs. The Institute adds that there is no
evidence of any remunerative activity foregone by Ms. Bremsak due to her
involvement in these proceedings.
[94]
There is no doubt that Ms. Bremsak spent time
and energy to defend the 2009 Decision ordering her reinstatement.
Self-litigants may be entitled to some form of compensation “particularly when
that party is required to be present at a hearing and foregoes income because
of that” (Air Canada v. Thibodeau, 2007 FCA 115 at paragraph 24, citing Sherman
v. Canada (Minister of National Revenue), [2003 FCA 202, [2003] 4 F.C.
865]). Here, can the costs awarded amount to $14,000 as proposed by Ms.
Bremsak? No. Considering, inter alia, the nature of the proceedings in
the Federal Court; the one-day hearing on the contempt; the request by the
Judge for supplementary submissions and subsequent communications with the
Federal Court regarding costs and the lateness of the filing of this
cross-appeal, I propose to allow the cross-appeal without costs in this Court
and to set the costs payable to Ms. Bremsak for the Federal Court contempt
proceedings at $4,000 inclusive of disbursements and tax.
C) Conclusions
[95]
In summary, I propose
a) to allow the appeal, to set aside the Remedy Order, to
order the Institute to pay a fine of $250,000 within sixty-five (65) days of
the date of the judgment to issue;
b) to award costs to the Institute in this appeal in the
amount of $4,000 inclusive of disbursements and tax;
c) to accept the filing of the motion to extend the delay to
file a cross-appeal; and
d) to allow the cross-appeal with no costs in this Court but
with costs in favour of Ms. Bremsak for the Federal Court contempt proceedings
in the amount of $4,000 inclusive of disbursements and tax.
"Johanne Trudel"
“I agree
David
Stratas J.A.”
“I agree
Robert M. Mainville J.A.”
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