ASTOLFI v STONE CREEK RESORTS INC

The Plaintiff sought a declaration, pursuant to Rule 10.52, that the Defendant was in Civil Contempt for not complying with a Court Order (the “Mason Order”) to produce certain email records in their native electronic format. The Plaintiff also asked the Court for clarification on the Defendant’s obligations pursuant to the Mason Order and/or Rule 5.14.

The issue previously before Applications Judge Mason was that some of the records produced by the Defendant were seemingly corrupted. The Mason Order directed the Plaintiff to request specific Records in their “original electronic format” and for the Defendant to provide those to the Plaintiff on a memory stick “in the form they exist in the Defendant’s data base.”

In its analysis of Rule 10.52 the Court noted that Civil Contempt has two goals, securing compliance with Court Orders and protecting the integrity of the administration of justice. Justice Marion relied on Rule 10.52(3) in support of the requirements of a finding of Contempt.

In applying the test for Civil Contempt, Marion J. first considered if the Mason Order clearly and unequivocally set out what the Defendant was to do, ultimately finding that the Order relied on Rule 5.14 and was clear.

Secondly, the Court considered if the Defendant had actual knowledge of the Mason Order, finding that they did.

Third, Justice Marion considered if the Defendant intentionally failed to comply with the Mason Order, finding at least partial non-compliance. The Plaintiff had been able to prove beyond a reasonable doubt that at least some of the USB records were not from the Defendant’s database or systems.

Fourth, the Court considered if the noncompliance was conducted without a reasonable excuse. Marion J. found that the Defendant used a “sufficient degree of diligence” to locate the Records and had therefore met the burden of diligently trying to obey the Mason Order. Ultimately, the Court held that the facts of this case did not warrant a finding of contempt.

Justice Marion went on to consider the foundational Rule, 1.2, along with Rules 4.1, 4.2, and 5.1, and advised that typically production and discovery disputes should be resolved through cooperation and expeditious Applications to Applications Judges. Marion J. reminded the parties of their obligations to manage litigation and provide proper Disclosure, stating “contempt should not be the first response or a litigation tactic.”

Fifth, the Court considered Rules 5.14(a) and 5.14(b) to decide if it should reconfirm and/or enforce the Mason Order. In considering the lens of proportionality pursuant to Rule 5.3, Marion J. dismissed the Plaintiff’s Rule 5.14 Application. Ultimately, Justice Marion determined that the Plaintiff had the material information required and when balancing the suspicions of the Plaintiff against further delay and cost, the Court favoured moving this matter to resolution or Trial expeditiously. With this in mind, Marion J. encouraged the parties to settle Costs pursuant to Rules 10.29 and 10.31 amongst themselves and return to Court only if they are unable to do so.