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Civil Contempt - General

. Sakab Saudi Holding Company v. Saad Khalid S Al Jabri [for numbered case cites, see the main link]

In Sakab Saudi Holding Company v. Saad Khalid S Al Jabri (Div Court, 2023) the Divisional Court engages in an interesting review of the basics of contempt of court and - more fundamentally - general enforcement of orders powers:
[20] The motion judge began his analysis by summarizing legal principles relating to contempt motions in civil actions.[6] He identified the following principles derived from the jurisprudence:
a. The Rule of Law is dependent on the power of the court to enforce its process and to maintain its dignity and respect.[7]

b. The contempt power is an ancient one, traceable back to the 12th century English common law.[8]

c. The deliberate failure to obey a court order strikes at the very heart of the administration of justice.[9]

d. Remedies for contempt of court are of particular importance in the enforcement of Mareva orders, where the order is made to protect against rogue behaviour flouting the court’s process.[10]

e. A civil contempt motion is quasi-criminal in nature. Both the process used to issue a declaration of contempt and the sanction bear the imprint of criminal law.[11]

f. Procedural protections afforded to an alleged contemnor faced with civil contempt include:
(1) the right to be provided with particularized allegations of the contempt;

(2) the right to a hearing;

(3) the right to be presumed innocent until such time as guilt is proved beyond a reasonable doubt;

(4) the right to make full answer and defence, including the right to retain and instruct counsel, the right to cross-examine witnesses, and the right to submit or call evidence; and

(5) the right not to be compelled to testify at the hearing.[12]
g. The Charter applies to a civil prosecution for contempt of court.[13]
[21] I see no legal error in this summary of principles. I would add to them the following additional observations. As has been said many times before, court orders are not “suggestions” or “guidelines”. They are orders. They must be obeyed. However, not every transgression of an order should be met with an allegation of contempt of court. The contempt power is but one arrow in the quiver of remedies available to the court when faced with alleged non-compliance. “The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders….”[14]

[22] Second, the jurisprudence distinguishes between “coercive” enforcement measures, and “punitive” ones. The line between the two may be hazy, but the broad spectrum of possible non-compliance is easily grasped. Missing a court-ordered deadline by one day to provide answers to undertakings may provoke no response from the court at all (but may, perhaps, be relied on later in the process as part of a pattern of consistent non-compliance). Breaching a final order not to cut down a disputed tree, by destroying the tree, may leave nothing to do but punish the contempt: the non-compliance and its consequences cannot be undone.

[23] The power to enforce court orders is applied on this spectrum. Where the issue arises as part of the ongoing process of a case, enforcement should be aimed at facilitating the ongoing process. The court is not required to pursue a contempt motion where, in the court’s opinion, the alleged non-compliance does not appear to merit that sort of response. This is inherent in the contempt power itself: it arises from the court’s inherent jurisdiction to control its own process and to see to the enforcement of its orders.

[24] Third, there is an established line of authority about how to respond to these issues where a civil or administrative process may also involve criminal or quasi-criminal prosecution. Plaintiffs may rely upon administrative enforcement authority until the matter has become, in its true nature, a criminal prosecution. Where this has happened, plaintiffs are not thereafter frozen in their tracks, but rather are restricted to investigative techniques involving judicial oversight and Charter protections for a person accused with an offence, as described in R. v. Jarvis.

[25] Finally, the court has the inherent jurisdiction to see to enforcement of its orders, and this includes the power to compel a party to demonstrate compliance to the satisfaction of the court. This principle is reflected in the terms of Mareva orders generally, and the Mareva order granted in this case: it freezes Dr Saad’s assets and requires him to disclose those assets and demonstrate his ongoing compliance with the order. These requirements, in a case where a Mareva order has been made, do not preclude the court from relying on information compelled under the Mareva order to assess whether the order has been complied with.


[42] If the respondents had brought a motion seeking a remedy for “non-compliance” with, rather than “contempt” of, the Mareva order, perhaps some of the current difficulties – and resulting litigation delay– could have been avoided. As noted by Steele J. in McClure (at p. 3 of 6), many enforcement proceedings, including a civil contempt motion “are not penal but are coercive proceedings with respect to orders and judgments of the court to allow the court to enforce its process.” Not all non-compliance rises to the level of contempt of court, and even where it may, obtaining current and ongoing compliance is often the predominant goal.

[43] I appreciate that there are circumstances where “non-compliance” may justify a finding of contempt and a custodial sentence, because of the nature of the non-compliance and its impact on the court’s ability to do justice at the end of the case, or to the ongoing process of the litigation. Currently, in this case, the issue is a question of the extent to which the appellants may use resources to fund Dr Saad’s day-to-day expenses and legal costs, and the oversight of the court in respect to those questions. The contempt motion, at this stage in the case, is towards the “coercive” rather than the “penal” end of the spectrum of civil contempt proceedings.

[44] Further, even in contempt proceedings at the “penal” end of the spectrum, a moving party is not precluded from building their case for contempt after they have commenced a contempt motion. In the administrative context, where an investigation has become predominantly “criminal” rather than “administrative”, the state’s administrative investigative powers may be curtailed, but recourse to search and seizure authorized by a warrant is still available. In the context of a civil contempt motion, where the court concludes that the matter is predominantly “penal” and protections against self-incrimination and the right to silence preclude further compelled disclosure, alternative means for gathering evidence may still be available, such as an Anton Piller order or an order for third party production. It is not the case that a moving party’s ability to assemble evidence is brought to a halt by commencing a contempt motion.
. Foxgate Development Inc. v. Jane Doe

In Foxgate Development Inc. v. Jane Doe (Ont CA, 2021) the Court of Appeal considered the nature of civil contempt:
(1) The finding of contempt

[31] The court’s contempt authority is procedurally and substantively distinct from its authority to make a finding of abuse of process.

[32] The hearing of a motion for contempt is usually bifurcated, with a first hearing to consider whether contempt is established, and a second hearing to determine the appropriate sanction for the contempt (if the contempt is not purged in the interim): see College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, 300 D.L.R. (4th) 548, at para. 73, leave to appeal refused, [2008] S.C.C.A. No. 506.

[33] The nature and criteria for a contempt order were set out by this court in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614:
[20] A finding of contempt of court is a serious matter that is quasi-criminal in nature. It is "first and foremost a declaration that a party has acted in defiance of a court order": Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, at para. 35. The potential penal sanctions facing a contemnor underscore the seriousness of such a finding. As the Supreme Court of Canada has observed, "[t]he penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of 'public law', in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue": Pro Swing, at para. 34, citing Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, at p. 1075 S.C.R. This court has recently reaffirmed these principles in Chiang (Trustee of) v. Chiang (2009), 93 O.R. (3d) 483, [2009] O.J. No. 41, 2009 ONCA 3, at paras. 10-11. It is for these reasons that motions for contempt are often said to be strictissimi juris, i.e., that all proper procedures must be strictly complied with: see Dare Foods (Biscuit Divisions) Ltd. v. Gill, 1972 CanLII 506 (ON SC), [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.); Toronto Transit Commission v. Ryan (1998), 1998 CanLII 14635 (ON SC), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen. Div.).

[21] The three constituent elements of the test for civil contempt were summarized by this court in Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686, [2006] O.J. No. 2488 (C.A.), at para. 27:
The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order (citations omitted).
See also with respect to the substantive criteria of contempt, Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35.
. North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited

In North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited (Ont CA, 2021) the Court of Appeal considered basics of civil contempt law:

[43] Civil contempt consists of the intentional doing of an act which is prohibited by a court order: Carey, at para. 26. As summarized in Carey, at paras. 32 to 35, civil contempt has three elements that must be established beyond a reasonable doubt:
(i) the order alleged to have been breached must state clearly and unequivocally what should and should not be done. An order may be found to be unclear if: it is missing an essential detail about where, when or to whom it applies; it incorporates overly broad language; or external circumstances have obscured its meaning;

(ii) the party alleged to have breached the order must have had actual knowledge of it. Actual knowledge may be inferred from the circumstances or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine; and

(iii) 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. All that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Carey, at para. 38. Contumacy – the intent to interfere with the administration of justice – is not an element of civil contempt and lack of contumacy is therefore not a defence: Carey, at para. 29.
[44] With civil contempt, where there is no element of public defiance, the purpose of a contempt order is seen primarily as coercive rather than punitive, with the court attempting to obtain compliance with its order: United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 943, per Sopinka J., in dissent; Chiang (Re), 2009 ONCA 3, 93 O.R. (3d) 483, at para. 11. To that end, r. 60.11 of the Rules of Civil Procedure contemplates that a judge may set aside a finding of contempt if 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, at paras. 62, 64 and 66.

[45] As the contempt power is discretionary, courts have consistently discouraged its routine use to obtain compliance with court orders. It should be used cautiously and with great restraint; it is regarded as an enforcement power of last, not first, resort. So, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt. As well, a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case: Carey, at paras. 36-37.

[46] As a procedural matter, the party seeking a finding of contempt must clearly specify the act or omission that constitutes the contempt. The usual requirement is that the notice of motion set out the particulars of the alleged contempt: Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85, 94 O.R. (3d) 614, at paras. 17, 20 and 42-45; Rocca Dickson Andreis Inc. v. Umberto Andreis, 2013 ONSC 5508, 111 W.C.B. (2d) 587 (Div. Ct.), at para. 20; and Dare Foods (Biscuit Division) Ltd. v. Gill, 1972 CanLII 506 (ON SC), [1973] 1 O.R. 637 (H.C.), at p. 639.


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