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Civil Contempt - Directions

. Njoroge v. Canada (Attorney General)

In Njoroge v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers the status of a court 'direction' - as opposed to a court order, here in the context of a contempt motion:
[10] While these reasons alone are sufficient to dispose of the contempt motion, I wish to briefly address the argument advanced by the AGC that contempt proceedings cannot arise from failure to comply with a direction. Although it is not necessary to decide the point, suffice to say that the failure to comply with a direction appears to constitute conduct amounting to contempt under three categories listed in Rule 466: Rule 466(b) ("“disobeys a process… of the Court”"); Rule 466(c) ("“interfere[s] with the orderly administration of justice”"); or Rule 466(d) ("“is an officer of the Court and fails to perform his or her duty”"). Indeed, this Court has emphasized that a finding of contempt may result from a broad range of actions with the effect of obstructing justice, and does not arise only upon breach of an order of a tribunal or court (Professional Institute of the Public Service of Canada v. Bremsak, 2013 FCA 214 at para. 44).

[11] Directions are not mere suggestions as to what might happen in the conduct of a case, but are the expectation of the Court as to what will happen. Directions carry the weight of judicial authority and entail sanctions for non-compliance (Fibrogen, Inc. v. Akebia Therapeutics, Inc., 2022 FCA 135 at para. 57). There are, however, many remedies short of contempt that are available where a party fails to comply with a direction. Those arise from the Court’s plenary jurisdiction to manage its own process and proceedings. Because of this, contempt in the context of failure to follow a direction is, necessarily, a rare occurrence.


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Last modified: 12-05-23
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