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Civil Contempt - Effect on Present Proceedings

Aside from the more traditional sanctions for contempt of fines and incarceration, courts also often sanction the contemnor's right to pursue present proceedings through refusal to hear their side of the case, striking pleadings, or quashing an appeal.

. Turmel v. Canada (Attorney General)

In Turmel v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an appeal from a frivolous litigant declaration order [under s.40 FCA], here with supplementary terms regarding outstanding cost orders and "aiding or abetting others to initiate proceedings before that Court":
[1] This is an appeal of a decision of the Federal Court, per Fothergill J. (the Application Judge), made pursuant to section 40 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act). In his decision (the Decision), the Application Judge declared the appellant to be a vexatious litigant and, as contemplated by paragraph 40(1) of the Act, prohibited the appellant from instituting new proceedings in that Court, or continuing previously instituted proceedings, except with leave of the Court. The Application Judge also saw fit to impose on the appellant additional measures to regulate his conduct before the Federal Court, such as requiring that any application for leave the appellant may bring to institute or continue a proceeding demonstrate that all outstanding costs awards made against him in the Federal Court have been paid in full, or prohibiting the appellant from aiding or abetting others to initiate proceedings before that Court.

[2] As pointed out by the Application Judge, the concept of vexatiousness within the context of section 40 of the Act does not have a precise meaning but as this Court stated, “it is best not to be precise” (Canada v. Olumide, 2017 FCA 42, at para. 32 (Olumide)). However, there is ample jurisprudential guidance – or hallmarks – as to what this concept entails. These “hallmarks”, which come in “many shapes and sizes”, include the following:
a) being admonished by various courts for engaging in vexatious and abusive behaviour;

b) instituting frivolous proceedings (including motions, applications, actions and appeals);

c) making scandalous and unsupported allegations against opposing parties of the Court;

d) re-litigating issues which have already been decided against the vexatious litigant;

e) bringing unsuccessful appeals of interlocutory and final decisions as a matter of course;

f) ignoring court orders and court rules; and

g) refusing to pay outstanding costs awards against the vexatious litigant.

(Olumide v. Canada, 2016 FC 1106 at paras. 9–10, cited in Olumide, at para. 34)
[3] Here, the Application Judge was satisfied that the appellant has exhibited all these hallmarks (Decision at para. 38). More particularly, he noted that the appellant “has instituted numerous meritless and repetitive proceedings before [the Federal Court], the Federal Court of Appeal, the Ontario Courts, and the Supreme Court of Canada”, “brought proceedings for improper purposes, frequently sought to re-litigate matters decided previously, made scandalous allegations against members of the courts and other parties, refused to follow the Federal Courts Rules, and failed to pay costs orders” (Decision at paras. 3, 5) [reference omitted].

[4] The Application Judge further noted that the appellant has instituted, since 1980, at least 67 court proceedings, that he did so on a wide range of issues (banking, elections, gaming, libel, cannabis and COVID-19), and that virtually all of them “have been dismissed as failing to disclose reasonable causes of action, as wholly unsupported by evidence, as attempts to re-litigate matters previously decided, or as otherwise frivolous and vexatious and abuses of process” (Decision at paras. 8–9).

[5] The Application Judge also pointed to the fact that since 2014, the appellant has prepared and distributed “litigation kits” comprising templates for initiating legal claims, that these kits were used by other litigants to file roughly 770 substantially identical claims challenging various aspects of Canada’s medical cannabis regulatory regime, that the appellant encouraged the use of his litigation kits to “flood the courts”, and that nearly all of them “have been dismissed or are in the process of being dismissed as failing to disclose reasonable causes of action, or as otherwise frivolous, vexatious or abuses of process” (Decision at paras. 25–28).


[12] Respecting the additional measures imposed on the appellant, the Application Judge correctly pointed out that the Federal Court has “plenary jurisdiction to impose additional requirements as may be necessary to prevent abuses of process” and that some litigants may require different measures and restrictions, including safeguards to “discourage them from finding other ways to continue their vexatious conduct” (Decision at paras. 49–50).

[13] There is again ample evidence on record supporting the Application Judge’s conclusion that additional restrictions were appropriate in the case at bar, be it the number of meritless claims advanced by the appellant, his tendency to re-litigate these matters, his failure to pay costs orders, his recruitment of others to “flood the courts” with his “litigation kits”, or his derogatory statements on members of the judiciary on social media.

[14] It is useful at this point, in order to put the Decision in its proper perspective, to remind what this Court said, in Olumide, about what section 40 of the Act strives to achieve:
[17] Section 40 reflects the fact that the Federal Courts are community property that exists to serve everyone, not a private resource that can commandeered in damaging ways to advance the interests of one.

[18] As community property, courts allow unrestricted access by default: anyone with standing can start a proceeding. But those who misuse unrestricted access in a damaging way must be restrained. In this way, courts are no different from other community properties like public parks, libraries, community halls and museums.

[19] The Federal Courts have finite resources that cannot be squandered. Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant. The unrestricted access to courts by those whose access should be restricted affects the access of others who need and deserve it. Inaction on the former damages the latter.
. Thrive Capital Management Ltd. v. Noble 1324

In Thrive Capital Management Ltd. v. Noble 1324 (Ont CA, 2021) the Court of Appeal considers contempt in relation to striking pleadings:
[19] The merits of an action may not be particularly relevant in determining what punishment is appropriate for contempt of court but are relevant to the issue of whether judgment should be granted. The purpose of a penalty for civil contempt is two-fold; not only do such penalties enforce the rights of a private party, but they also maintain respect for the authority of the courts. The factors relevant to the determination of the appropriate sentence for civil contempt include:
1. The proportionality of the sentence to the wrongdoing;

2. The presence of mitigating factors;

3. The presence of aggravating factors;

4. Deterrence and denunciation;

5. The similarity of sentences in like circumstances; and

6. The reasonableness of a fine or incarceration.
[20] None of these factors focuses on the merits of the proceeding: Boily v. Carleton Condominium, 2014 ONCA 574, 121 O.R. (3d) 670, at paras. 79, 90. A fine imposed for contempt is payable to the Crown and not to the opposing party: SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, 94 O.R. (3d) 236, at para. 14.

[21] The distinctions between the two distinct roles of a court imposing a sanction for contempt on the one hand and granting judgment on the other can be blurred if the analysis is not separated.

[22] There can be no doubt, however, that a statement of defence can be struck for contempt of court. Courts have denied contemnors the opportunity to deal with a claim on the merits. In iTrade Finance Inc. v. Webworx Inc., (2005) 2005 CanLII 24776 (ON SC), 255 D.L.R. (4th) 748 (Ont. S.C.J.), the court found that the defendant’s failure to comply with court orders was such that the remedy of striking its pleadings was appropriate. In Paul Magder Furs Ltd. v. Ontario (Attorney General), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188 (Ont. C.A.), at para. 14, the court observed that “it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force.” Section 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 gives the court express power to stay or dismiss a proceeding as an abuse of process. In Dickie v. Dickie (2006), 2006 CanLII 576 (ON CA), 78 O.R.(3d) 1, this court refused to hear a litigant who was abusing the processes of the court. By analogy, a court could bar a defendant in contempt from filing a statement of defence.

[23] Rule 60.12 provides explicitly that where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by the rules, stay the party’s proceeding, dismiss the proceeding, strike out the party’s defence, or make such other order as is just.

[24] Both rr. 60.11 and 60.12 deal with failures to obey court orders. Rule 60.11 focuses on the context of contempt proceedings. Either rule would allow a court to strike a statement of defence or bar a litigant from filing a defence.

[25] In determining whether to strike a pleading, even where judgment is not granted concurrently, there may be some analysis of the merits of the claims. In Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310, Brown J.A. discussed the factors to be considered when determining whether to strike a party’s claim for failure to produce documents under r. 30.08(2). This rule expressly permits a court to strike out a statement of defence from a party who fails to serve an affidavit of documents, produce documents for inspection, or comply with an order of the court under rr. 30.02 to 30.11, which deal with the various aspects of documentary discovery.

[26] Brown J.A. observed that the exercise of discretion to strike a pleading is not limited to a last resort, following multiple failures, but that a court would usually want to ensure that a party had a reasonable opportunity to cure the default before striking a pleading: Falcon Lumber Limited, at para. 50. Relevant factors would include whether the failure was deliberate or inadvertent, whether the failure was clear, whether there was a reasonable explanation for the default and a promise to cure it, whether the substance of the default was important, whether the default continued, and the impact upon the opposite party’s attempts to get justice: Falcon Lumber Limited, at para. 51. He went on to note that the court could also consider the merits of the defaulting party’s claim or defence, but that this might only play a limited role, as one would expect a party with a strong claim or defence to comply promptly with its disclosure obligations: Falcon Lumber Limited, at para. 52. Finally, he noted that a court must consider whether an order striking a pleading would constitute a proportional remedy to ensure that civil justice was proportionate, timely, and affordable: Falcon Lumber Limited, at para. 53. Has the defaulting party’s conduct increased the opposite party’s costs of litigating the action? Has the default delayed adjudication of the matter on the merits?: Falcon Lumber Limited, at para. 55.

[27] This analysis applies with equal force to motions under r. 60.12 to strike a statement of defence for failure to comply with an interlocutory order, as well as to the sanction of striking pleadings when sought for contempt. Where the remedy for contempt sought is an order barring a party from defending or an order striking a pleading, some assessment of the merits may be necessary to determine whether such an order is a proportionate response to the contempt alleged. Where, for example, the contempt is less serious, is likely to be cured, and it appears that a party has a defence of substance, it would be disproportionate to bar the defendant from participating in the action.

[28] Where a statement of defence is struck, there may well follow an unopposed motion for default judgment.

[29] While it may be tempting to collapse the issues of contempt and striking a defence on the one hand and a motion for judgment on the other hand into one proceeding, this may be false economy.

[30] It can turn motions to strike pleadings for failure to comply with orders, whether as a sanction for contempt or pursuant to r. 60.12, into something resembling summary judgment motions, thereby shifting the focus from the failure to comply to the merits of the action. When granting judgment on the claim, the merits must be addressed.

[31] While a judgment on the merits brings an action to an end, a court may subject a party in contempt to multiple sanctions hearings in order to compel compliance.

[32] The Ontario Rules of Civil Procedure do not explicitly provide that judgment may be entered against a party who has failed to comply with a court order. Rule 60.12 does allow a court to make any order that is just for failure to comply with an order. In contrast, r. 10.53(1)(d)(iii) of the Alberta Rules of Court, AR 124/2010, says that “judgment may be entered” as a penalty for contempt. Final judgment in the action is not directly available as a punishment for contempt of court in Ontario.

[33] This is not to say that in a given case, judgment may not be an appropriate remedy against a party who is in contempt or who has failed to comply with an interim order. There is no impediment in the Rules barring a party from moving for various and alternative relief. For example, a litigant could move under r. 60.11 for an order imprisoning a party for contempt, for an order striking their pleadings under either rr. 60.11 or 60.12, and for default judgment in the event the pleadings are struck. If the latter is included, the moving party should expect that there will be a more searching inquiry about the merits and that the respondent will be given an opportunity to respond to the merits.
. Abu-Saud v. Abu-Saud

In Abu-Saud v. Abu-Saud (Ont CA, 2020) the Court of Appeal comments of the quashing of an appeal as a sanction for contempt:
[4] It is common ground that the court has jurisdiction to quash or dismiss an appeal in the face of non-compliance with a support order: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(3); Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6; Brophy v. Brophy (2004), 2004 CanLII 25419 (ON CA), 180 O.A.C. 389 (C.A.), at para. 11; Siddiqui v. Anwar, 2018 ONCA 965, 22 R.F.L. (8th) 92, at para. 19. Moreover, this court has consistently refused to hear from the defaulting appellant or entertain the appeal where the record shows continuing disobedience with court orders: Cosentino v. Cosentino, 2017 ONCA 593, 98 R.F.L. (7th) 53, at para. 8.

[5] Quashing or dismissing an appeal for non-compliance is not automatic. Factors to be considered by the court in determining whether to exercise its discretion to quash an appeal include: the wilfulness of the breach; the amount of arrears; the excuse for the breach; and the efforts to correct the breach: Brophy, at paras. 9-15.


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Last modified: 02-10-23
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