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Federal Court - Contempt. Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) [appeals/SOR]
In Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) (Fed CA, 2026) the Federal Court of Appeal considered seven appeals, all relating to "a dispute between the parties that dates from 2017 when Grain Workers’ Union Local 333 ILWU (the Union) filed two policy grievances alleging violation by Viterra Canada Inc. (Viterra) of the maximum work hours provisions of the Canada Labour Code".
Here the court considers the appellate SOR applicable to Fdderal Court contempt and other matters:[17] The appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33 (Housen), govern appeals of Federal Court decisions made in contempt proceedings: Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2024 FCA 136 at para. 27, leave to appeal to SCC refused, 41508 (April 17, 2025); Friedlander v. Claman, 2016 BCCA 434 at para. 52 (Friedlander). A finding of contempt is a question of mixed fact and law subject to review for palpable and overriding error: Simon v. Bacon St-Onge, 2022 FCA 168 at para. 11 (Bacon St-Onge FCA). .... . Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) [FCR s.470(2) 'testimony not compellable']
In Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) (Fed CA, 2026) the Federal Court of Appeal considered seven appeals, all relating to "a dispute between the parties that dates from 2017 when Grain Workers’ Union Local 333 ILWU (the Union) filed two policy grievances alleging violation by Viterra Canada Inc. (Viterra) of the maximum work hours provisions of the Canada Labour Code".
Here the court considers the contempt provision of FCR s.470(2) ['Testimony not compellable'], including a Charter s.11(c) ['self-incrimination'] argument [paras 95-100]:[78] Viterra’s motion focussed on Rule 470(2), as does this appeal. The Rule reads:Testimony not compellable
(2) A person alleged to be in contempt may not be compelled to testify.
Temoignage facultatif
(2) La personne à qui l’outrage au tribunal est reproché ne peut être contrainte à témoigner. [79] The Federal Court addressed as follows each of Viterra’s arguments challenging the Subpoenas:Rule 470(2) does not preclude an employee of a corporation from being compelled to testify whether or not the reference to "“person”" in Rule 470(2) includes corporations. A corporation is not compelled to testify when its employee is compelled to testify.
The two employees subject to the Subpoenas are compellable as witnesses and the Subpoenas are valid in this respect: Merck & Co. Inc. v. Apotex Inc. (T.D.), 1996 CanLII 4019 (FC), [1996] 2 FC 223 (Merck 1996), aff’d [1996] FCJ No. 1485, 1996 CanLII 21811 (FCA), leave to appeal to SCC refused, 25723 (July 9, 1997). The employees are not parties to the contempt proceeding or cited for contempt by the Union, and they are not officers of Viterra.
Although Merck 1996 was decided before Rule 470(2) was enacted, it remains good law. The introduction of Rules 466 to 472 codified the common law principles of contempt proceedings before the Federal Court: Warman at para. 21.
Viterra’s motion to quash the production of records was dismissed. The question of whether the Reports sought to be produced via the Subpoenas are admissible should be left to the presiding judge at the evidentiary hearing. [80] Viterra raises two over-arching arguments on appeal. Viterra argues first that the Federal Court erred in law in concluding that Rule 470(2) does not apply to corporations and that the employees to whom the Subpoenas were issued are compellable as witnesses. Second, Viterra argues that the Federal Court erred in law in failing to consider whether the issuance of the Subpoenas constituted an abuse of process.
[81] I find no error of law in the Federal Court’s interpretation of Rule 470(2) and no palpable and overriding error in the Court’s application of the Rule to the Subpoenas, the particular employees to whom they were issued and the production of corporate records.
(1) The Federal Court’s interpretation of Rule 470(2)
[82] Viterra relies on subsection 35(1) of the Interpretation Act, R.S.C. 1985, c. I-21 (the Interpretation Act), to submit that the Federal Court erred in law in the Second Subpoena Order in concluding that Rule 470(2) does not apply to corporations. In its view, the Rule extends the prohibition from being compelled to testify to corporations. Viterra submits on this basis that the Subpoenas issued to its employees effectively compel Viterra to testify against itself contrary to Rule 470(2) and must be quashed.
[83] The Federal Court initially left open in the Second Subpoena Order the question of whether a corporation is a person for purposes of Rule 470(2). Instead, the Court focussed on the application of Rule 470(2) to an employee who is compelled to testify via subpoena and their right, as an individual, to be protected from compelled testimony. For the Federal Court, the determinative question in the motion was whether, when an individual testifies as an employee in a proceeding involving their corporate employer, the employee testifies as or for the corporation or in their own right.
[84] The Federal Court found that employees of a corporation are compellable witnesses (Merck 1996) and that a corporation is not compelled to testify when its employees (as opposed to officers or persons who can be said to be "“directing minds”" of a corporation) are compelled to testify, citing: Regina v. Judge of the General Sessions of the Peace, Ex parte Corning Glass Works of Canada Ltd., 1970 CanLII 358 (ON CA), [1970] 3 O.R. 398, [1970] O.J. No 1729 (Corning Glass); R. v. N.M. Paterson & Sons Ltd., 1980 CanLII 227 (SCC), [1980] 2 S.C.R. 679 at p. 691 (Paterson); R. v. Amway Corp, 1989 CanLII 107 (SCC), [1989] 1 S.C.R. 21 (Amway); and Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425 at p. 544 (Thomson Newspapers). The Federal Court concluded that the Subpoenas were valid with respect to the two named employees.
[85] In Merck 1996 (at paras. 64-68), the Federal Court quashed a subpoena issued in the course of contempt proceedings to an officer of a corporation because he was named in the show cause order and could be cited for contempt personally. The Court refused to quash subpoenas issued to employees of the same corporation. Those employees were not named in the show cause order and could as a result be compelled to testify. The Federal Court also endorsed the production of the documents listed in the subpoenas issued to the employees and concluded (at para. 69):Whether any documents so directed to be produced are admissible in evidence at the continuation of the show cause hearing I decline to rule upon […] the admissibility of which may be questioned in the course of the proceedings. [86] Merck 1996 is consistent with the above-noted jurisprudence of the Supreme Court. A corporate employee testifies in their personal capacity and not on behalf of the corporation. In Thomson Newspapers, the Supreme Court stated (at p. 544):The reality is that once a person is compelled to give testimony, it makes no difference whether that person speaks on behalf of himself or herself, or on behalf of the corporation. So long as such persons are liable to subsequent prosecution they are susceptible, in the absence of sufficient protection, to the prejudice against which the right against self‐incrimination is intended to guard. This reality is one of the reasons this Court has on two occasions refused to accept the argument that testimony compelled from corporate officers in their representative capacity should be construed as the testimony of the corporation itself; see R. v. N.M. Paterson and Sons Ltd., 1980 CanLII 227 (SCC), [1980] 2 S.C.R. 679, at p. 691, and R. v. Amway Corp., supra, at pp. 37‐39.
[Emphasis added.] [87] The Federal Court turned to the question of whether Rule 470(2) applies to a corporation as part of its review of the jurisprudence regarding testimonial compulsion. The Court stated that those cases support a conclusion that the Rule does not apply to corporations, nor does it prevent a corporation’s employees from being compelled to testify: Second Subpoena Order at para. 42.
[88] Subsection 35(1) of the Interpretation Act provides that in every federal enactment, unless a contrary intention appears, "“""person, or any word or expression descriptive of a person, includes a corporation”" (emphasis in original)". "Rule 470(2), a federal regulation, uses the same word "“[a] person alleged to be in contempt may not be compelled to testify”". Viterra argues that subsection 35(1) necessarily leads to the conclusion that Rule 470(2) applies to corporations. In addition, Viterra notes the word "“person”" is used elsewhere in Rules 466-472 and argues the word must be interpreted to have the same meaning each time it is used, consistent with the common law presumption of coherence.
[89] Viterra’s focus on the text of Rule 470(2) ignores the modern principle of statutory interpretation that requires the Court to read the words of an act or regulation "“in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”": Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10. Thus, the text of Rule 470(2) must be considered in light of its purpose and context to determine its meaning. Viterra’s argument that the language must be taken as the polar star of interpretation, to the exclusion of a consideration of the context and purpose of the Rule, is not persuasive. A court’s statutory interpretation begins with the text of the provision in question but does not focus exclusively on the text devoid of context and purpose.
[90] Rule 470(2) was enacted in 1998 as part of amendments to the Rules to govern procedure in Federal Court contempt proceedings. The amendments were intended to codify the common law of contempt: Warman at para. 21; see Canadian Maritime Engineering Ltd. v. Ionada Incorporated, 2024 FC 878 at para. 59, citing "Lyons Partnership, L.P. v. MacGregor", [2000] F.C.J. No. 341 (QL), 2000 CanLII 14898 (FC). The purpose of Rule 470(2) was to parallel the common law principles and statutory provisions that protect an accused individual who risks incarceration from being compelled to testify in criminal or quasi-criminal proceedings. Contextually, its role as a central element of the Rules dealing with contempt and the potential for imprisonment supports this purposive interpretation. In Canadian Private Copying Collective v. Fuzion Technology Corp., 2009 FC 800 at para. 55, a decision addressing contempt allegations, the Federal Court stated that Rule 470(2) codified the constitutional protection against testimonial compulsion afforded by paragraph 11(c) of the Canadian Charter of Rights and Freedoms, Part I of the "Constitution Act, 1982", being Schedule B to the "Canada Act 1982" (UK), 1982, c. 11 ("Charter").
[91] Viterra argues that, in enacting Rule 470(2), Parliament is presumed to have intended to create a distinct form of protection for all persons charged with contempt, including corporations. Parliament is also presumed to know the common law. At the time Rule 470(2) was enacted, the decision in Amway had been released and the drafters of Rule 470(2) could have specified that corporations are excluded from the scope of the Rule. They did not and, Viterra argues, should therefore be taken to have intended to include corporations within the ambit of the Rule.
[92] I find the opposite interpretation of Parliament’s intention when enacting Rule 470(2) is equally persuasive. The legislative drafters would not have felt the need to specify that Rule 470(2) does not apply to corporations, relying on the Supreme Court’s conclusion that paragraph 11(c), which uses the word "“person”", does not apply to corporations: Amway at paras. 34-35. I agree with the Union that, if Parliament intended to contradict a line of jurisprudence and extend the protection against testimonial compulsion to corporations, it would have done so explicitly.
[93] Viterra submits that the current Rules are more stringent than the common law: Saugeen First Nation #29 v. Sebastian, 2003 FCA 28 at paras. 41-42 (Sebastian). This Court’s statement in Sebastian that the current Rules are more stringent than the Federal Court Rules, C.R.C. 1978, c. 663 (the Former Rules) was made in respect of the requirements for a show cause order under Rule 467(1) (Sebastian at para. 41). While the requirements of Rule 467(1) may differ from those imposed by the common law and the Former Rules, I am not persuaded that the Court’s acknowledgement of this difference provides authority for Viterra’s proposition that Rule 470(2) is more stringent than the common law and constitutional prohibition against compelling an individual accused to testify.
[94] I am also not persuaded by Viterra’s argument that the Federal Court made an error of law in concluding that Merck 1996 remained good law even though it was decided under the Former Rules. Merck 1996 is consistent with the cases cited by the Federal Court: Corning Glass, Paterson, Amway and Thomson Newspapers and the scope of the common law rule protecting the individual from testifying. The Supreme Court in Amway (at para. 35) referred to "“the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth”".
[95] Further, Viterra argues specifically that the Federal Court erred in interpreting Rule 470(2) by relying on the recent decision in Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 at para. 132 (Québec inc.) and the Supreme Court’s analysis of paragraph 11(c) of the Charter, the analogous constitutional provision. I do not agree.
[96] For ease of reference, paragraph 11(c) provides that any person charged with an offence has the right "“not to be compelled to be a witness in proceedings against that person in respect of the offence”".
[97] Well prior to its decision in Québec inc., the Supreme Court found that paragraph 11(c) of the Charter was intended to protect an individual against being compelled to testify "“out of his or her own mouth”" when charged (Amway at para. 35) and that "“a corporation cannot be a witness and therefore cannot come within s. 11(c)”": Amway at para. 35.
[98] In Québec inc., the majority of the Supreme Court agreed with the conclusion in Amway that corporations are not included in section 7 and paragraph 11(c) of the Charter, quoting Sopinka’s J.’s reference to the "“affront”" to an individual’s dignity and privacy should they be forced to testify and give evidence contrary to their own interests: Québec inc. at para. 132.
[99] The Federal Court did not err in finding support in the decision in Québec inc. for its conclusion that Rule 470(2) does not apply to a corporation and does not prevent its employees from being compelled to testify. A consideration of the Québec inc. case returns the Court to the text of Rule 470(2). Both the Rule and paragraph 11(c) use the word "“person”" and yet both provisions have been interpreted purposively to apply to individuals facing penal consequences. I acknowledge that paragraph 11(c), as a Charter provision, has a long interpretive history but the analogy to a court’s textual and purposive interpretation of Rule 470(2) is appropriate. It was open to the Federal Court to consider the analogous Charter protection cases in interpreting Rule 470(2): see, e.g., Canada v. BCS Group Business Services Inc., 2020 FCA 205 at paras. 25-32.
[100] Viterra makes much of the Federal Court’s statement that the concurring discussion by Justice Abella (as she then was) of paragraph 11(c) of the Charter "“offers a complete answer to”" Viterra’s argument. Viterra submits that this statement is an error of law because Rule 470(2) was not before the Supreme Court in Québec inc., Justice Abella’s conclusion was made in specific reference to Charter protections and no application under section 52 of the Charter was before the Federal Court. However, none of these factors precluded the Federal Court from looking to the Supreme Court’s treatment of paragraph 11(c) in interpreting Rule 470(2). Paragraph 11(c) of the Charter and Rule 470(2) use the same language and are directed at the same issue – the protection of the individual from being forced to testify when charged in a criminal or quasi-criminal proceeding, including civil contempt (Sutherland Estate v. Murphy, 2025 ONCA 227 at paras. 5, 30 et seq).
[101] In summary, I find no reviewable error in the Federal Court’s conclusion that the relevant case law, including Québec inc., supports the conclusion that Rule 470(2) does not apply to corporations. I would also make the finding that Rule 470(2) does not apply to corporations, consistent with the constitutional protection afforded to an individual in paragraph 11(c) of the Charter.
[102] It follows that I find no error of law or palpable and overriding error in the Federal Court’s conclusion in the Second Subpoena Order that employees and officers of a corporation can be compelled to testify as representatives of the corporation as long as they are not themselves subject to a contempt order in their personal capacity. In my view, Rule 470(2) did not alter the common law of contempt. The jurisprudence uniformly supports the Federal Court’s conclusion. . Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) [test for contempt]
In Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) (Fed CA, 2026) the Federal Court of Appeal considered seven appeals, all relating to "a dispute between the parties that dates from 2017 when Grain Workers’ Union Local 333 ILWU (the Union) filed two policy grievances alleging violation by Viterra Canada Inc. (Viterra) of the maximum work hours provisions of the Canada Labour Code".
Here the court considers the test for contempt under the Federal Court Rules:[64] ... The Federal Court correctly laid out the test and burden of proof placed on the Union to establish contempt in both the Preliminary Order (at para. 17) and the Contempt Order (at paras. 80-81, citing Carey v. Laiken, 2015 SCC 17 at paras. 32-35). In the Preliminary Order, the Federal Court stated:[17] Contempt proceedings in this Court are governed by Rules 466 to 472 of the Federal Courts Rules. The Rules reflect the serious and quasi-criminal nature of contempt proceedings. The party alleging contempt has the burden of proving an allegation of contempt beyond a reasonable doubt (Rule 469, Canadian Union of Postal Workers v Canada Post Corporation, 2015 FC 355 at para 9 [Canada Post]). Three elements must be established to prove contempt: (1) the existence of an order, (2) the respondent’s actual knowledge of the order, and (3) an intention to disobey the order (Rameau v Canada (Attorney General), 2012 FC 1286 at para 13, Orr v Fort McKay First Nation, 2012 FC 1436 at para 15, Canada (Minister of National Revenue) v Vallelonga, 2013 FC 115 at paras 18-19). . Musqua v. Bellegarde
In Musqua v. Bellegarde (Fed CA, 2024) the Federal Court of Appeal considers contempt penalties:[17] The Federal Court has discretion to choose from a wide range of penalties for a person found to be in contempt. They are set out in rule 472 of the Federal Courts Rules and include imprisonment (rule 472(a) and (b)), a fine (rule 472(c)), an order to refrain from doing any act (rule 472(d)), and an order to pay costs (rule 472(f)). The Federal Court must ultimately fashion a sentence that is proportional in the circumstances: Professional Institute of the Public Service of Canada v. Bremsak, 2013 FCA 214 at paras. 29 and 33. Sometimes a warning along with criticism in reasons for judgment is good enough. Not all of these penalties would constitute irreparable harm.
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