A sallow prisoner has come up, in custody, for the half-dozenth time, to make a personal application “to purge himself of his contempt;” which…he is not at all likely ever to do.
Charles Dickens, Bleak House
What if a litigant refuses to participate in the litigation process, despite the court ordering them to? As one defendant recently learned, it can mean jail.
This situation recently played out in 180 University Management Inc. v Khan, 2023 ONSC 1621.
180 University Management Inc. v Khan
The underlying lawsuit in this case is a large piece of litigation involving multiple parties, with millions of dollars at stake. Mr. Khan, a defendant, refused to be examined for discovery. A plaintiff brought him before Associate Justice Jolley for an Order compelling his examination, which was granted – and to which Mr. Khan consented.
Failure to Attend Court Ordered Examination
Despite this, Mr. Khan still did not attend his examination. The matter returned before the Court in January 2023, this time before Justice Myers. Justice Myers struck Mr. Khan’s Statement of Defence and found that Mr. Khan’s refusal to obey the earlier Order formed the elements of contempt of court. Mr. Khan’s counsel somehow prevailed on Justice Myers to not hold Mr. Khan in contempt and Justice Myers gave him another chance, ordering Mr. Khan to appear to be examined before the end of February 2023. To be safe, Justice Myers also established a process for counsel to set dates for this examination.
Mr. Khan still did not appear – his counsel advised the Plaintiffs’ counsel several days after Justice Myers’ Order that Mr. Khan would not be appearing to be examined. The matter returned before Justice Myers to address Mr. Khan’s ongoing contempt of these Orders.
Justice Myers noted that the Court had already imposed consequences on Mr. Khan for his refusal to participate in the case. As his defence has been struck all assertions in the Statement of Claim were deemed admitted (including that he stole millions of dollars from the Plaintiffs) and that this was no longer at issue.
Instead, Justice Myers indicated that the matter then before the Court was Mr. Khan’s flouting of the rule of law, which went to the underlying stability of the legal system generally.
His Honour described Mr. Khan’s actions as having “manipulated the process to delay, cause unnecessary costs to mount, and to avoid accountability”. To address this Justice Myers stated, “There must be denunciation of behaviour that violates court orders and punishment is required to promote the principles of specific and general deterrence.”
After considering sentencing guidelines for contempt, Justice Myers sentenced Mr. Khan to 60 days in jail and a $10,000.00 fine. His Honour also held that Mr. Khan could vary the sentence by appearing to be examined in line with the initial Order. Finally, Justice Myers ordered that Mr. Khan appear before the Court again on the 59th day of his incarceration and that if he had not complied with the Order by this point, the Court would order a further term of incarceration. In other words, Mr. Khan will remain in jail until the Court orders him to be released, and not before.
Finally, Mr. Khan was ordered to pay the Plaintiffs’ costs of the motion on a substantial indemnity basis, in the amount of $170,000.00.
Takeaways
A Judge’s power to hold a party in contempt and impose sanctions including a custodial sentence and/or a fine date back centuries, and along with contempt of Parliament, is the only common law offence left in Canada (everything else is in the Criminal Code). It is rarely imposed and is reserved for parties whose actions are not only disrespectful to other parties in litigation, but to the legal system itself.
Mr. Khan now has two choices – he can either appear to be examined for discovery, or he can remain in jail until a judge orders him set free. The decision notes that Mr. Khan is in Florida, so the Plaintiffs may have to take further steps to enforce the judgment, but it exists, and is not going anywhere.
The lesson to take away from this: refusing to participate in the litigation process is not an option, and the Court will penalize anyone whose actions make a mockery of the legal system. At the very least, your pleading can be struck out, essentially nullifying your position. At worst, you can end up in jail and in debt. The Judiciary not only metes out justice, but it also guards the system itself.
At Rudner Law, we have experience representing both employees and employers in litigation. Explore our website to learn more about employee-side litigation and employer-side litigation.
If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.
