Civil Contempt - Penalty. Oliveira v. Oliveira
In Oliveira v. Oliveira (Ont CA, 2023) the Court of Appeal considers (and allows) an appeal of a sentence for contempt, here one of incarceration (which is unusual):
(6) The Appropriate Sentence for Contempt. Bell Canada v. Adwokat
 The sentencing phase of the contempt proceeding occurred in two stages because of the COVID-19 pandemic. In reasons delivered April 29, 2021, based on a motion in writing, the sentencing judge outlined the factors from this court’s decision in Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, 416 D.L.R. (4th) 269, at para. 90, leave to appeal refused,  S.C.C.A. No. 407, that a court should consider when deciding the sentence after a finding of civil contempt:
(a) Proportionality of the sentence to the wrongdoing – a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender;....
(b) Deterrence and denunciation – the sentence should denounce unlawful conduct and promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders;
(c) Presence of aggravating and mitigating factors;
(d) Similarity of sentence in like circumstances;
(e) Reasonableness of a fine or incarceration.
 The issue for this court is whether the sentencing judge erred in her approach to imposing an appropriate and fair sentence for the appellant’s contempt. In Boily v. Carlton Condominium Corp. 145, 2014 ONCA 574, 121 O.R. (3d) 670, this court set out 6 relevant factors to determine an appropriate sentence for civil contempt:
(a) The proportionality of the sentence to the wrongdoing; Although the sentencing judge referred to a similar list from Business Development Bank of Canada, which this court drew from Boily, after listing the factors, the sentencing judge did not discuss how any of them applied to the facts of this case, or undertake any further analysis. In addition, she made her decision to incarcerate in April 2021 before she had received any submission from the appellant.
(b) The presence of mitigating factors;
(c) The presence of aggravating factors;
(d) Deterrence and denunciation;
(e) The similarity of sentences in like circumstances; and
(f) The reasonableness of a fine or incarceration.
 In my view, because of these errors, the decision to incarcerate the appellant as the penalty for contempt must be set aside. It then falls to this court to impose the appropriate sentence.
 The first factor is proportionality. The appellant’s conduct is serious and constitutes deliberate disobedience of court orders. While the list of union members’ contact information does not contain serious confidential personal information, the problem in this case was the appellant’s threatened use of the Confidential List to disseminate defamatory allegations and his subsequent disregard for court orders. As I indicated earlier, although the appellant chose his own way to comply with the orders, thereby thwarting the ability to examine his devices, there is no suggestion that he in fact retained the Confidential List.
 The second factor is deterrence and denunciation. The appellant has had his action struck out, has outstanding costs orders and a defamation judgment against him. These facts will inform the method for imposing a deterrent and denunciatory sentence.
 The aggravating factors are clear. The appellant has exhibited a disregard for court processes and has been subject to a contempt order for a prolonged period. The mitigating factors are the appellant’s financial, health and family responsibility circumstances.
 Although the court is to consider similar sentences in like circumstances, this case has the unique feature that the appellant has had his Wrongful Dismissal Action against these respondents struck out with costs. That fact must be factored into any consideration of like circumstances.
 Finally, the court should assess the reasonableness of imposing a period of incarceration rather than another penalty. In my view, the imposition of a term of incarceration in this case was not a reasonable penalty in all the circumstances.
 The sentencing judge was considering a period of house arrest under a conditional sentence as appropriate. Her reason for rejecting that option was flawed. While the population was under a form of quarantine during the COVID-19 pandemic, that quarantine is not equivalent to house arrest, which is a punitive sentence that forbids leaving the house except under strict conditions. As recognized by the Supreme Court in R. v. Proulx, 2000 SCC 5,  1 S.C.R. 61, at para. 22, a conditional sentence is a “punitive sanction capable of achieving the objectives of denunciation and deterrence.” A conditional sentence is a sentence of imprisonment: it is intended to be punitive, but also addresses rehabilitative objectives.
 In addition, the sentencing judge failed to consider the totality of the circumstances which had become clear by January 2022. The appellant had his action struck and had numerous substantial costs awards against him. The sentencing principle referred to as the totality principle should have been considered and applied in this case: Poulie v. Johnston, 2022 ONSC 5186, at para. 47. The court is not to impose a crushing sentence, but a proportional one.
 Conditional sentences align with the dual purpose of civil contempt orders. The primary objective is to coerce and persuade people into obeying court orders, while punishment serves as a secondary goal: Ontario (Attorney General) v. Paul Madger Furs Ltd. (1993), 1993 CanLII 8585 (ON SC), 12 O.R. (3d) 72 (Gen. Div.). This court has previously recognized the appropriateness of conditional sentences for civil contempt: Astley v. Verdun, 2015 ONCA 543, 70 C.P.C. (7th) 142, leave to appeal refused,  S.C.C.A. No. 332. In contrast, incarceration for civil contempt is rare and is a penalty of last resort: Business Development of Canada, at para. 82. It was necessary to consider whether any other penalty short of incarceration would be a sufficient sanction for the gravity of the contempt, taking into account this purpose and the principles set out above: Business Development Bank of Canada, at para. 89.
 A conditional sentence is appropriate in these circumstances. The appellant’s actions were serious. His actions reveal a disregard for the court’s authority. However, a penalty short of incarceration is sufficient. The appellant attempted to purge his contempt in his own way by destroying his devices, which did not serve any personal or financial advantage, and there is no suggestion that he in fact retained the Confidential List. His conduct has led to the dismissal of the Wrongful Dismissal Action and substantial financial and costs awards against him. Further, the appellant has health concerns, family responsibilities, and no criminal record. A carceral sentence is not necessary or proportionate in light of these circumstances.
 Having regard to all of the circumstances, I would impose a conditional sentence of 14 days on the following conditions:
(a) Mr. Oliveira will be under house arrest for 14 days. He will be required to remain in his residence except for medical appointments or medical emergencies involving himself or his family, shopping trips to purchase groceries or other necessary items of less than two hours duration twice per week, and activities directly related to compliance with Ferguson J.’s December 23, 2020 order and the costs orders in this case;
(b) Mr. Oliveira will keep the peace and be of good behaviour;
(c) Mr. Oliveira will carry a copy of the conditional sentence order with him whenever he leaves his residence, for the duration of the conditional sentence order.
In Bell Canada v. Adwokat (Fed CA, 2023) the Federal Court of Appeal considered the deference accorded to contempt of court penalties on appeal:
 In Simon v. Bacon St-Onge, 2023 CAF 1,  A.C.F. n° 17 (QL) [Simon], this Court recently outlined the bounds of permissible appellate review of penalties for contempt, noting that the principles from the criminal sentencing context are applicable and thus that great deference is to be accorded to a sentencing judge. Hence, an appellate court cannot intervene simply because it might have imposed a different penalty or might have weighed the relevant factors differently. Instead, absent an extricable error of law, intervention is only warranted where an appellate court is convinced that the penalty is demonstrably unfit or clearly unreasonable (Simon at paras. 6-12).. Caledon (Town) v. Darzi Holdings Ltd.
 In R. v. Lacasse, 2015 SCC 64,  3 S.C.R. 1089 , the majority of the Supreme Court of Canada underscored at paragraph 12 that, "“… if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts.”" Thus, appellate courts must be deferential in cases such as the present.
In Caledon (Town) v. Darzi Holdings Ltd. (Ont CA, 2022) the Court of Appeal considered the determination of the quantum of a contempt fine:
 We also rejected the submission that the sentencing judge erred by equating the fine he selected with the profit earned. He did not do so. He found that the profit exceeded $1,000,000 by an undetermined amount. He instead used the profit earned as a “benchmark”, as he was entitled to do. We agree with the observation made by Akbarali J. in The Corporation of the Township of King v. 11547372 Canada Inc. et al, 2022 ONSC 2261, at para. 26 that “when determining a fit fine, the court should consider the economic circumstances of the contemnor, and the amount of fine that will have enough of an impact on the contemnor to induce future compliance with the court’s orders”. This, of course, includes consideration of whether the needs of sentencing can be met without requiring disgorgement through a fine of all or a significant part of the profit attributable to the breach.. Hicks v. Ontario Ombudsman
 Finally, we rejected the submission that the fine imposed in this case was unfit. The sentencing judge reasonably found the appellants’ disobedience of the court order to be flagrant, protracted, deliberate and profitable. He clearly reasoned that the appellants would not be deterred from future breaches if permitted to profit from their conduct, given the history of this matter. Certainly, the fine imposed by the sentencing judge outstrips the civil contempt fines imposed in the vast majority of cases but it is neither unprincipled nor unprecedented. An identical fine was upheld by this court in College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, 93 O.R. (3d) 139. To be sure, the facts of SHS Optical are not on all fours with the facts of this case, but the underlying principles and the seriousness of the contempt are comparable. We were unpersuaded, in the circumstances of this case, that the fine imposed was unfit.
In Hicks v. Ontario Ombudsman (Div Ct, 2020) the Divisional Court briefly reviewed events in a rare case where incarceration resulted from a finding of civil contempt. The case is interesting as it shows how contempt incarceration is truly criminal in nature.
. Boily v Carleton Condominium Corporation 145
In Boily v Carleton Condominium Corporation 145 (Ont CA, 2014) the Court of Appeal stated on the penalties 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: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC),  2 S.C.R. 1065, at 1075. The remedy for civil contempt is designed not only to enforce the rights of a private party (See: Poje v. Attorney General (B.C.), 1953 CanLII 34 (SCC),  1 S.C.R. 516 at 517; Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, at para. 37), but also to enforce the efficacy of the process of the court itself. Justice McLachlin powerfully expressed this broader purpose in United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC),  1 S.C.R. 901 at 931, stating:. Business Development Bank of Canada v. Cavalon Inc.
[t]he rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.....
 The following are the factors relevant to a determination of an appropriate sentence for civil contempt:
a) the proportionality of the sentence to the wrongdoing;Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164; Sussex Group Ltd. v. Fangeat,  O.J. No. 3348,  O.T.C. 781 at para. 67 (Ont. S.C.); Builders Energy Services Ltd. v. Paddock, 2009 ABCA 153, at para. 13. Megill, at pp. 7-8.
b) the presence of mitigating factors;
c) the presence of aggravating factors;
d) deterrence and denunciation;
e) the similarity of sentences in like circumstances; and
f) the reasonableness of a fine or incarceration.
 The principle of proportionality requires that the punishment fit the wrongdoing: York (Regional Municipality) v. Schmidt,  O.J. No. 4915 (S.C.), at para. 16. As Jeffrey Miller wrote in his leading textbook The Law of Contempt in Canada (Toronto: Carswell, 1997), at p. 131: “[t]he fundamental principle in all sentencing, including sentencing for contempt, is that the sentence must be commensurate with or ‘fitted to’ the gravity of the offence.”
 As set out above, deterrence, specific and general, is the most important objective of a contempt penalty. Justice Quinn, in Niagara (Municipality), expressed the purpose of sentencing in contempt proceedings as follows:
The primary purpose of sentencing in contempt proceedings is deterrence: both general and specific. The punishment for contempt should serve as a disincentive to those who might be inclined to breach court orders. Our legal system is wounded when court orders are ignored. The sentence must be one that will repair the wound and denounce the conduct.See also: Cornwall (Public Inquiry) v. Dunlop (2008), 2008 CanLII 10382 (ON SCDC), 290 D.L.R. (4th) 699 (Ont. S.C.) at para. 48; Tilco Plastics Ltd. v. Skurjat et al. (1966), 1966 CanLII 235 (ON SC), 57 D.L.R. (2d) 596 (Ont. H.C.), affirmed 1966 CanLII 517 (ON CA),  1 O.R. 609 (C.A.), leave to appeal to S.C.C. refused  1 O.R. 609.
 There is no formally mandated process for contempt proceedings. The procedure followed may vary. However, contempt proceedings typically have two stages – the liability hearing and a subsequent hearing to determine penalty: The College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), 2008 ONCA 685, 93 O.R. (3d) 139 at paras. 73-75, per Watt J.A.; Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164, at paras. 34-36. If a contempt finding is made, the matter is adjourned to provide the contemnor an opportunity to purge the contempt and prepare for the sentencing portion of the process. Any action undertaken by a contemnor to purge his or her contempt may serve as a mitigating factor in sentencing: Echostar, at para. 35.
 There is good reason to bifurcate contempt hearings. As in criminal prosecutions, in contempt hearings, liability and penalty are discrete issues. In a hearing in which liability and penalty are dealt with together, there is a risk that evidence relevant, material and admissible to liability, will be improperly applied to penalty or vice versa. R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 1987 CanLII 4056 (ON CA), 59 O.R. (2d) 145 (C.A.).
 In this case, liability and penalty were combined into a single hearing.
 I agree with the comments of Watt J.A. in Great Glasses where he said, at para. 74, that: “a proceeding that considers both liability and penalty in the same hearing, may cause unfairness or be infected with legal error to such an extent to require a new hearing.” I also agree with his comments at para. 76, that the extent to which fairness is affected varies from case to case.
 In my view, contempt proceedings should be bifurcated for the simple reason that bifurcation avoids risking the need for a new hearing.
 I have come to the conclusion that in this case the motion judge’s failure to bifurcate caused or contributed to unfairness as; a) the evidence relevant to liability appears to have been considered in the penalty phase, b) the Appellants had no opportunity to take steps to attempt to purge their contempt, steps that may have been relevant to mitigation. Great Glasses, at para. 102, and c) the parties had no opportunity to prepare for the sentence hearing.
 But, as Watt J.A. pointed out in Great Glasses, this error is not necessarily fatal. In this case, I would not interfere with the financial aspect of the remedy on this basis alone. I say this as there is no evidence that the Individual Appellants requested a bifurcated hearing or, at any time during the process, drew the problems associated with a combined hearing to the motion judge’s attention. Moreover, the failure to bifurcate was not advanced as a ground of appeal.
 It does, however, affect the degree of deference that this court should pay to the financial penalty the motion judge imposed.
(iii) The Fitness of the Financial Penalty
 In civil contempt, it is critical that the penalty respond to the conduct being sanctioned. The relevant conduct is the wilful disregard of the authority of the court. The court must assess the seriousness of the disrespect of the court, not the severity of any resulting harm.
 Civil contempt proceedings do not have “and must not appear to have the function of a civil action in tort or for breach of contract”: Royal Bank of Canada v. Yates Holding Inc. (2007), 2007 CanLII 23601 (ON SC), 33 C.B.R. (5th) 268, O.J. No. 2529 (Ont. S.C.), at para. 19. As MacKay J. stated in Merck & Co. v. Apotex Inc., 2001 FCT 589, var’d 2003 FCA 234, 227 D.L.R. (4th) 106, at para. 11, “[a]ny concern of the plaintiffs about injury to them caused by those activities ought to be recoverable in damages or profits claimed. The concern of the Court, in a case of civil contempt such as this is, must be the failure to respect the Court's process.”
 I begin with the purpose behind the motion judge’s order that the Individual Appellants pay the costs of restoration.
 The reasoning behind the motion judge’s decision to order the Individual Appellants to pay the restoration costs is found in para. 56, set out above. As I read that paragraph, the motion judge imposed this sanction on the basis of his view that it would be unfair to make the condominium owners bear the costs of the Appellants’ contempt of the 2011 Endorsement. The motion judge sought to prevent the unit owners from having to bear the expense associated with the incremental costs of changing the Podium from the amalgam of the Original Design and the Artistic Design, to the Original Design. In effect, the motion judge, in sanctioning the Individual Appellants the way he did, focused on the costs that his restoration order would impose on the unit owners rather than on deterrence. With respect, I am of the view that in doing so, he erred in principle.
 Furthermore, the jurisprudence has established factors to be taking into account in deciding upon a fit sentence for civil contempt. One such factor is the particular contemnor’s ability to pay lest the amount either be trivial or unduly punitive: Niagara (Municipality) (Police Services Board) v. Curran (2002), 2002 CanLII 49405 (ON SC), 57 O.R. (3d) 631, at para. 36. Where fines are imposed above an amount necessary to reflect the public interest in the matter, an appellate court will be justified in intervening to reduce the amount: Apotex Fermentation Inc. v. Novopharm Ltd. (1998), 1998 CanLII 4886 (MB CA), 162 D.L.R. (4th) 111 (Man. C.A.), at paras. 319-321.
In Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017) the Court of Appeal stated on the penalty phase on contempt:
 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.
 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. In Chiang, this court observed, at para. 90:
Custodial sentences for civil contempt are rare. Lengthy custodial sentence are even rarer. Canadian courts have tended to punish contempt of court leniently. Ordinarily the mere conviction for contempt together with a modest fine suffices to obtain compliance and to protect the court’s authority. Ordinarily incarceration is a sanction of last resort. [Citation omitted.] With respect to the observation that Canadian courts have tended to punish contempt of court leniently, Brown J. (as he then was) stated in Mercedes-Benz Financial, at para. 10:
I suspect this observation was based on the commentary contained in the document published in May, 2001 by the Canadian Judicial Council entitled, "Some Guidelines on the Use of Contempt Powers", where, at page 40, the following statements are found: 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:
In Canada punishment for contempt has been quite moderate, reflecting the courts' usual view that a conviction for contempt and a modest fine is usually sufficient to assert the courts' authority, to protect their dignity or to ensure compliance. Often these sentences are imposed after the contemnor has apologized and purged his or her contempt which substantially mitigates any punishment that might otherwise be imposed.
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.] More recently, Belobaba J. commented in Ceridian Canada Ltd. v. Azeezodeen, 2014 ONSC 4162, 69 C.P.C. (7th) 29, aff’d 2014 ONCA 656, 69 C.P.C. (7th) 40, at para. 24:
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.]
This court has imposed jail sentences ranging from five days to one year in cases of civil contempt. Each of the custodial cases have two things in common: one, the defendant’s breach, like here, was knowing and deliberate; and two, the length of the jail term was a function of the continuing nature of the contempt discounted by the degree of remorse or apology on the part of the defendant…. In my view, where the breach of a court order is knowing and deliberate, continues over several days, and the only response from the defendant is defiance without remorse, a jail sentence is appropriate. 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. Where, as here, the impossibility of purging the contempt is a situation of the contemnors’ own making, it is not a mitigating factor: see Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164, 97 C.P.C. (6th) 177, at para. 45.
 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: see Mercedes-Benz Financial, at para. 35.
 While each case is fact specific, incarceration has been imposed in numerous cases for failure to produce documents or corporate records: see Sussex Group Ltd. v. Sylvester (2002), 2002 CanLII 27188 (ON SC), 62 O.R. (3d) 123 (S.C.), at para. 85 (6 months); Nelson Barbados Group Ltd. v. Cox, 2010 ONSC 569, at para. 35 (3 months and a fine of $7500); Cellupica v. Di Giulio, 2011 ONSC 1715, 105 O.R. (3d) 687, at para. 49 (90 days); Sussex Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 49334 (ON SC),  O.T.C. 683 (S.C.), at para. 15 (2 months); Nowack, at para. 114 (1 month).
 As noted above, serious violations of court orders – even if only one order or one instance – can warrant a jail sentence. In determining whether a jail sentence is needed to adequately vindicate the due administration of justice, the context in which the contempt occurs is an important consideration: see Langston v. Landen, 2011 ONCA 242, at para. 1. 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.
(c) Sentencing principles applicable to civil contempt
 The factors relevant to a determination of an appropriate sentence for civil contempt were set out by Epstein J.A. in Boily, at para. 90. The factors can be summarized as follows:
(a) Proportionality of the sentence to the wrongdoing – a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: see also Chiang, at para. 86; Mercedes-Benz Financial, at para. 12. Epstein J.A. concluded that specific and general deterrence are the most important sentencing objectives in civil contempt cases. Other courts have also noted the principles of deterrence to be the primary sentencing principle in cases of civil contempt. The British Columbia Court of Appeal endorsed a similar view in Majormaki Holdings Ltd. v. Wong, 2009 BCCA 349, 97 B.C.L.R. (4th) 64, at para. 28.
(b) Presence of aggravating and mitigating factors: see also Chiang, at paras. 50-51, 87-89; Sussex Group Ltd. v. Fangeat,  O.T.C. 781 (S.C.), at para. 67.
(c) Deterrence and denunciation – the sentence should denounce unlawful conduct and promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders: see also Chiang, at para. 91; Fangeat, at para. 67.
(d) Similarity of sentence in like circumstances.
(e) Reasonableness of a fine or incarceration: see generally Chiang.