“This is not a case where a contemnor was deprived of the opportunity to purge his contempt . . .”
“Contemnor” — Now there’s a word your don’t run across every day. Garner’s Dictionary of Legal Usage (American) tells us that because the correlative “contemnee” is “exceedingly rare”, the spelling “contemner” is generally preferred. But whether -or or -er, it’s someone guilty of contempt, typically contempt of court, of course. And if you’re curious about what such a person might do to earn this label, you need look no further than the very recent Ontario Court of Appeal case of Doobay v. Diamond 2012 ONCA 580.
For just under five years Anthony Diamond wriggled and prevaricated and motioned and appealed in order to avoid the execution of a default judgment against him of $854,924.21. (Perhaps it was the picky precision of the 21 cents that made him go all passive aggressive. Perhaps not.) Indeed somewhere along about half way through the ordeal he was found in contempt of court for failing to meet the terms of a Master’s orders and after more than six months of further writhing actually served 21 days in jail.
Lesson not learned, however — and contempt not purged. The long tale gets longer, but at a time nearer the present Mr. Diamond is again found guilty of contempt, sentenced to 42 days in jail and ordered to pay an additional $40,000. Now, over a year later Diamond, still kicking against the pricks, has lost an appeal to the Court of Appeal. The panel affirmed the conviction and the sentence, observing at one point “The coercive tool of civil contempt must have teeth.”
The question now is whether the appellant Diamond will seek to get a hearing at the Supreme Court. Or whether he will come to terms with the respondent and settle. Or, indeed, whether he will continue to resist and do his six weeks in stir. There is, alas, no prospect, because there are no means, of his being required to pay back to the public weal the cost of his recalcitrance.