Civil Contempt

GENERAL


1. The Test for Civil Contempt
   
2. Civil Contempt and the Rules of Civil Procedure
   
3. Conduct of the Contempt Hearing
   
4. Contumacious Intent (Stubbornness) in Civil Contempt
   
5. Reticence to Find Civil Contempt
   
   PENALTY
   
   
6. Purpose of Penalty for Civil Contempt
   
7. Factors Relevant to Determing Penalty for Civil Contempt
   
8. Range of Penalty for Civil Contempt
   
9. Jail Sentences in Civil Contempt
   
   APPEALS
   
   
10. Appellate Deference to Penalty
    
    MISCELLANEOUS
    
    
11. Where Underlying Order Become Ineffective
    
12. Where Court Order Not Yet Taken Out
    
13. Civil Contempt and Family Law
    
14. Distinction Between Civil and Criminal Contempt
    
15. Effect of Reliance on Legal Advice

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General

1. The Test for Civil Contempt

There is a three-part test for a judge to find civil contempt Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 32.:

• the order that is said to have been breached must be clear and unequivocal;
  
  Courts tend to find an order unclear on one of three possible bases: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 54:
  
  
  • 1. The order is missing an essential term about where, when or to whom the order applies.
    
    
  • 2. The order employs unclear or overly broad language.
    
    
  • 3. The external circumstances obscure the meaning of the order.
  
  
• the party who is alleged to have breached the order must be found to have done so deliberately; and
  
  
• the evidence must prove contempt beyond a reasonable doubt.

The three elements of civil contempt must be established beyond a reasonable doubt:
Carey v Laiken (SCC, 2015), para 32-35:

• the order involved must state clearly and unequivocally what should and should not be done;
  
  
• the party must have actual knowledge of the order, but that knowledge may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine;
  
  
• the party must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

"The elements of contempt, which must be established beyond a reasonable doubt, are the following: (a) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (b) the party alleged to have breached the order must have had actual knowledge of it; and (c) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels": Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 17.

2. Civil Contempt and the Rules of Civil Procedure

Procedures for civil contempt are governed by R60.11 of the Rules of Civil Procedure. The court can have reference to the Criminal Code for guidance (here in imposing a conditional sentence), but the Criminal Code provisions are not binding: Astley v Verdun (Ont CA, 2015).

CONTEMPT ORDER

Motion for Contempt Order

60.11 (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

(2) The notice of motion shall be served personally on the person against whom a contempt order is sought, and not by an alternative to personal service, unless the court orders otherwise.

(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit.

Warrant for Arrest

(4) A judge may issue a warrant (Form 60K) for the arrest of the person against whom a contempt order is sought where the judge is of the opinion that the person’s attendance at the hearing is necessary in the interest of justice and it appears that the person is not likely to attend voluntarily.

Content of Order

(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

Where Corporation is in Contempt

(6) Where a corporation is in contempt, the judge may also make an order under subrule (5) against any officer or director of the corporation and may grant leave to issue a writ of sequestration under rule 60.09 against his or her property.

Warrant of Committal

(7) An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60L).

Discharging or Setting Aside Contempt Order

(8) On motion, a judge may discharge, set aside, vary or give directions in respect of an order under subrule (5) or (6) and may grant such other relief and make such other order as is just.

Order that Act be done by Another Person

(9) Where a person fails to comply with an order requiring the doing of an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.

(10) The party enforcing the order and any person appointed by the judge are entitled to the costs of the motion under subrule (9) and the expenses incurred in doing the act ordered to be done, fixed by the judge or assessed by an assessment officer in accordance with Rule 58.

3. Conduct of the Contempt Hearing

There is no set procedure for a contempt hearing, but they are usually bifurcated into liability and penalty phases. The main factor on penalty is whether the party has since purged their contempt between the two stages (ie. since complied with the order). The reasons for bifurcation are due to the criminal purpose of the hearing, that having a single hearing runs the "risk that evidence relevant, material and admissible to liability, will be improperly applied to penalty or vice versa.": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 121-127.

"The Rules do not prescribe the form of contempt proceedings. However, as a general rule, proceedings are bifurcated into a liability phase — where the case on liability proceeds and a defence is offered — and, if liability is established, a penalty phase. In contempt proceedings, liability and penalty are discrete issues ..." Carey v Laiken (SCC, 2015), para 18.

"Without exhaustively outlining the circumstances in which a judge may properly revisit an initial contempt finding, I agree with the Court of Appeal that he or she may do so where the contemnor subsequently complies with the order or otherwise purges his or her contempt or, in exceptional circumstances, where new facts or evidence have come to light after the contempt finding was made." Carey v Laiken (SCC, 2015), para 66.

"Ordinarily, the period between a finding of contempt and the penalty hearing gives the contemnor an opportunity to purge his or her contempt. At the penalty hearing, if the contemnor has purged his or her contempt, as Belobaba J. noted, this is a significant mitigating factor with respect to the penalty imposed." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 86.

4. Contumacious Intent (Stubbornness) in Civil Contempt

Contumacious intent, or to intent to interfere with the administration of justice, is not a necessary requirement of the mental element. The mens rea is lower than that, but contumacious intent can go to heighten penalty: Carey v Laiken (SCC, 2015), para 38-39.

5. Reticence to Find Civil Contempt

The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders to avoid cheapening the role and authority of the courts. It is an enforcement power of last resort. Carey v Laiken (SCC, 2015), para 36-37.

Penalty

6. Purpose of Penalty for Civil Contempt

The purpose of a penalty for civil contempt is "to enforce compliance with a court order and to ensure societal respect for the courts": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 79.

"The court must assess the seriousness of the disrespect of the court, not the severity of any resulting harm.": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 129-130.

The purpose of contempt of court proceedings is to uphold the court's dignity, respect and process: Carey v Laiken (SCC, 2015), para 30.

"Because civil contempt engages issues of public law and the need to condemn acts which undermine the authority and dignity of the court, punishment has been recognized as a secondary purpose for sentencing in such cases." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 81.

7. Factors Relevant to Determing Penalty for Civil Contempt

These following factors are relevant to determining the appropriate sentence for civil contempt: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 90:

• the proportionality of the sentence to the wrongdoing;
  
  
• the presence of mitigating factors;
  
  
• the presence of aggravating factors;
  
  
• deterrence and denunciation;
  
  
• the similarity of sentences in like circumstances; and
  
  
• the reasonableness of a fine or incarceration.

The sentence must be proportional to the wrongdoing: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 91.

The most important factor in determining a penalty of civil contempt is deterrence, both specific and general: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 105.

"One such factor is the particular contemnor’s ability to pay lest the amount either be trivial or unduly punitive: ...": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 133.

8. Range of Penalty for Civil Contempt

Normal fines range for civil contempt from $1,500 to $5,000. Custodial sentences are rare and Canadian courts tend to be lenient, even where there the contempt involves substantial amounts of money. There are a few instances of fines of $100,000 or more involving large corporations in egregious situations, or unions with a large membership. Contempt motivated by personal gain is also an aggravating factor. In recent cases a "lengthy course of disobedience and where the contemnors have not purged their contempt" have resulted in more substantial penalties for contempt: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 108-111.

"At the penalty phase of a contempt hearing courts have a wide discretion. Rule 60.11(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the court may make such order as is just, including that the judge may order the contemnor:

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 74.

9. Jail Sentences in Civil Contempt

"In civil cases, incarceration is rare. Ordinarily, a finding of contempt, together with a fine or some other order in relation to the litigation, is sufficient to gain compliance and restore the authority of the court." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 82.

"I would add that, in cases of serious breaches of court orders, the Canadian Judicial Council recognized that jail was an appropriate sanction. At page 39 the Council stated:

If the contempt has not been purged and the contempt is a serious one, or if there has been a deliberate disobedience of a court order accompanied by violence or other flagrant misconduct then imprisonment or heavy fines become more likely, but care must be taken to ensure that the disposition of the proceedings does not appear to be bullying or vengeful. [Citation omitted.]

...

Imprisonment should be imposed only in cases of serious deliberate disobedience, violence or wilful interference with the course of justice. Repeated breaches of a restraining order would justify imprisonment, as would a single breach of an order if the breach were a serious one." [Emphasis added.]

Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 84.

"A wilful flagrant breach of a single court order that shows a callous disregard for the court’s authority, or that causes significant prejudice to the other party may attract a jail sentence" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 87.

"While each case is fact specific, incarceration has been imposed in numerous cases for failure to produce documents or corporate records" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 88.

"Because incarceration is ordinarily a penalty of last resort, the court must also consider whether any other penalty short of incarceration would be a sufficient sanction for the gravity of the contempt, taking into consideration the sentencing principles applicable to civil contempt." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 89.

Appeals

10. Appellate Deference to Penalty

On appeal "considerable deference" should be given to the lower court penalty for contempt: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 78:

The role of an appellate court in reviewing a sentence for contempt should be limited to intervening only where there has been an error in principle in arriving at the sentence or the sentence is clearly unfit.

Miscellaneous

11. Where Underlying Order Become Ineffective

Where the underlying order becomes 'ineffective', the course of action is not to disobey the contempt order, but to move for directions as soon as the problem becomes apparent or appeal: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 39.

"Where, as here, the impossibility of purging the contempt is a situation of the contemnors’ own making, it is not a mitigating factor" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 86.

12. Where Court Order Not Yet Taken Out

In Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 59, the court stated as follows on the fact that no formal order had yet been taken out:

[59] I start by noting an unusual factor in this case – that the contempt in issue is defiance of a directive contained in an endorsement rather than one that has been formalized through an issued court order. In my view, since the conduct in issue took place during a period of time when no order had been taken out in relation to the 2011 Endorsement, this court must assess the clarity of the term in issue (that the Courtyard be restored to the Original Design) in the context of the entire endorsement. I find support for this proposition in the authorities that have arisen out of situations in which allegedly contemptuous conduct takes place after reasons have been released but before a formal court order is issued. One such case is Baxter Travenol Laboratories of Canada Ltd., v. Cutter (Canada) Ltd., 1983 CanLII 30 (SCC), [1983] 2 S.C.R. 388 in which, at p. 8, Dickson J. held that “[o]nce reasons for decision have been released, any action which would defeat the purpose of the anticipated injunction undermines that which has already been given judicial approval. Any such action subverts the processes of the Court and may amount to contempt of court.”

13. Civil Contempt and Family Law

It is generally considered exceptional to find contempt in family law situations, but in extreme cases it will be ordered: Godard v Godard (Ont CA, 2015).

14. Distinction Between Civil and Criminal Contempt

Criminal contempt has an element of public defiance which civil contempt lacks. Civil contempt is primarily coercive rather than punitive, however it does punish breach of a court order to deter both the contemnor and others. Carey v Laiken (SCC, 2015), para 31.

"A deliberate breach of a court order may constitute either a civil or a criminal contempt. A criminal contempt requires, in addition to a deliberate violation of a court order, an element of public defiance calculated to lessen societal respect for the courts." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 76.

15. Effect of Reliance on Legal Advice

Reliance on legal advice does not shield a party from a finding of contempt. Carey v Laiken (SCC, 2015), para 44.

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Source Links

• R60.11
  
• Boily v Carleton Condominium Corporation 145 (Ont CA, 2014)
  
• Astley v Verdun (Ont CA, 2015)
  
• Godard v Godard (Ont CA, 2015)
  
• Carey v Laiken (SCC, 2015)
  
• Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017)

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Cases to be integrated

- McNaught v TTC 74 OR (3d) 278 (Ont CA, 2005)

Contempt - Dismissal of Action for Non-payment of Cost Awards

Lee v. McGhee (Ont CA, 2019)

------------------ Contempt / further sanctions on breach of court order

[11] Furthermore, the court was pointed to no authority for the requested relief. On the assumption that Rushlade was relying on the dissenting judgment of Laskin J.A. in Dickie v. Dickie, (2006), 2006 CanLII 576 (ON CA), 78 O.R. (3d) 1 (C.A.), at para. 87, affirmed by the Supreme Court of Canada: [2007] 1 S.C.R. 346, 2007 SCC 8 (CanLII), at para. 6, the test set down in that authority had not been met. According to Dickie, the court has a discretion to refuse to hear a litigant, who has wilfully breached a court order, until the litigant has cured the breach. Even if Dr. Gerber’s breach of the LaForme J.A. order was wilful, he cured it by filing his factum (albeit past the specified deadline).

------------------ Contempt / leading case on CRIMINAL contempt of court

- [CCC s.9]: used to punish lawyers to screwing up badly re missed dates, etc [R v Glasner (Ont CA, 1994)]
https://www.canlii.org/en/on/onca/doc/1994/1994canlii3444/1994canlii3444.html