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Civil Procedure - Contempt

Susin v Susin (Ont CA, 2014)

In this case the Court of Appeal characterized the test for civil contempt as follows:
[21] The test for civil contempt where breach of a court order is in issue is three-fold: (a) the order that is said to have been breached must be clear and unequivocal; (b) the party who is alleged to have breached the order must be found to have done so deliberately and wilfully; and (c) the evidence must prove contempt beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G.(N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85 (CanLII), 94 O.R. (3d) 614, at para. 21.

[22] Dorino argues that the bringing of the present motion did not constitute disobedience of the previous orders requiring all estate matters to be dealt with in Welland and therefore that the motion judge had no authority to make a contempt order in the circumstances. The previous orders did not “[require Dorino] to do an act, other than the payment of money, or to abstain from doing an act,” he submits; therefore a contempt order could not be made to enforce them under rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[23] While this may be technically so at one level, I see no practical difference between failing to obey the orders and failing to recognize and accept the validly-made previous orders, in these circumstances. They are tantamount to the same thing. Substantively they have the same destructive effect on the integrity of the administration of justice. In any event, breach of a prior court order is not the only type of conduct that will justify a finding of contempt.

[24] The classic definition of contempt at common law comes from The Queen v. Gray, [1900] 2 Q.B. 36, at p. 40, quoted in R. v. Cohn (1984), 1984 CanLII 43 (ON CA), 48 O.R. (2d) 65 (C.A.), at p. 78, leave to appeal to S.C.C. refused, [1985] 1 S.C.R. vii:
Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke L.C. characterised as “scandalising a Court or a judge.”

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