Contempt - Civil
Boily v. Carleton Condominium Corporation 145 (Ont CA, 2014)
In this case the Court of Appeal made the following useful comments relating to civil contempt:
 The motion judge then analyzed whether the Respondents had proven each element of the three-part test for civil contempt; namely, that (a) the order that is said to have been breached must be clear and unequivocal; (b) the party who is alleged to have breached the order must be found to have done so deliberately; and (c) the evidence must prove contempt beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G. (N.) 2006 CanLII 81792 (ON CA), (2006), 82 O.R. (3d) 686 (C.A.).
 In any event, relying on authorities such as Sussex Group Ltd. v. 3933938 Canada Inc. (c.o.b. Global Export Consulting) (2003), 124 A.C.W.S. (3d) 274 (Ont. S.C.) (“Sussex”), Miller, and Garley v. Gabai-Maiato, 2006 ONCJ 28 (CanLII), 2006 ONCJ 28, the motion judge held that in circumstances in which the underlying order is considered “ineffective”, the appropriate course of action is not disobedience. The appropriate course of action is either to move for directions as soon as the problem becomes apparent, as the motion judge had expressly invited the parties to do, or appeal. The Appellants did neither.
 For the first part of the test for contempt to be satisfied, the parties must clearly understand what has to be done to comply with the order: Bell ExpressVu Ltd. Partnership v. Torroni, 2009 ONCA 85 (CanLII), 2009 ONCA 85, 94 O.R. (3d) 614, at para 22.
 A review of the jurisprudence reveals that courts tend to find an order unclear on one of three possible bases.
1. The order is missing an essential term about where, when or to whom the order applies.See, for example: Laiken v. Carey, 2013 ONCA 530 (CanLII), 2013 ONCA 530, 367 D.L.R. (4th) 415, at para. 48; Culligan Ltd. v. Fettes, 2010 SKCA 151 (CanLII), 2010 SKCA 151, 326 D.L.R. (4th) 463, at para. 21.
2. The order employs unclear or overly broad language.
3. The external circumstances obscure the meaning of the order.
 I start by noting an unusual factor in this case – that the contempt in issue is defiance of a directive contained in an endorsement rather than one that has been formalized through an issued court order. In my view, since the conduct in issue took place during a period of time when no order had been taken out in relation to the 2011 Endorsement, this court must assess the clarity of the term in issue (that the Courtyard be restored to the Original Design) in the context of the entire endorsement. I find support for this proposition in the authorities that have arisen out of situations in which allegedly contemptuous conduct takes place after reasons have been released but before a formal court order is issued. One such case is Baxter Travenol Laboratories of Canada Ltd., v. Cutter (Canada) Ltd., 1983 CanLII 30 (SCC),  2 S.C.R. 388 in which, at p. 8, Dickson J. held that “[o]nce reasons for decision have been released, any action which would defeat the purpose of the anticipated injunction undermines that which has already been given judicial approval. Any such action subverts the processes of the Court and may amount to contempt of court.”
 The motion judge’s determination of the appropriate penalty for contempt must be given considerable deference. The role of an appellate court in reviewing a sentence for contempt should be limited to intervening only where there has been an error in principle in arriving at the sentence or the sentence is clearly unfit. See: British Columbia Forest Products Ltd. v. Lawson,  B.C.J. No. 1619 (C.A.), per McLachlin J.A. (Ch’rs).
 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 (CanLII), 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:
[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 (CanLII), 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 (CanLII), 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 CanLII 10382 (ON SCDC), (2008), 290 D.L.R. (4th) 699 (Ont. S.C.) at para. 48; Tilco Plastics Ltd. v. Skurjat et al. (1966), 57 D.L.R. (2d) 596 (Ont. H.C.), affirmed  1 O.R. 609 (C.A.), leave to appeal to S.C.C. refused  1 O.R. 609.
(iv) Range of Sentences
 The Individual Appellants correctly point out in their factum that, in general, awards for civil contempt in Canada range between $1,500 and $5,000. In Chiang (Trustee of) v. Chiang,  O.J. No. 1409; partially rev'd on other grounds 2009 ONCA 3 (CanLII), 2009 ONCA 3, at para. 20, this court observed that custodial sentences are rare and that Canadian courts tend to be lenient in their contempt sentences. Even in cases where contempt has involved the loss or misuse of substantial amounts of money, the fines imposed on individuals have remained low. See, for example Chicago Blower Co. v. 141209 Canada Ltd. and Transregent Holdings Ltd. et al. reflex, (1987), 44 Man.R. (2d) 241 (C.A); Baxter Travenol Laboratories of Canada, Ltd. v. Cutter (Canada) Ltd., reflex,  2 F.C. 557 (C.A.).
 The few instances in which fines have been imposed at $100,000 or higher have been against unions with large membership (See: British Columbia (Health Employers Assn.) v. Facilities Subsector Bargaining Assn., 2004 BCSC 762 (CanLII), 2004 BCSC 762; United Nurses of Alberta v. Attorney-General of Alberta, 1992 CanLII 99 (SCC),  1 S.C.R. 901) or against large corporations in egregious circumstances (Apotex Fermentation v. Novopharm). It should be noted that in Apotex, the corporate entity of Novopharm had its fine reduced to $100,000 on appeal and no individual contemnor (the officers of the corporation) was fined more than $10,000.
 Significant fines have been imposed only in particularly egregious cases and/or where the contemptuous conduct was motivated by personal gain (See, for example: Imax Corp. v. Trotum Systems Inc., 2013 ONSC 743 (CanLII), 2013 ONSC 743 at paras. 12-14 (fine of $50,000).)
 However, I also note the observation of Brown J. in Mercedes-Benz Financial v. Kovacevic,  O.J. No. 888, that some recent decisions in this province have shown a willingness to impose more substantial penalties for contempt, particularly in cases in which there has been a lengthy course of disobedience and where the contemnors have not purged their contempt.
(ii) The Conduct of the Contempt Hearing
 I make several observations about the procedure followed at the hearing.
 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 (CanLII), 2008 ONCA 685, 93 O.R. (3d) 139 at paras. 73-75, per Watt J.A.; Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164 (CanLII), 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 CanLII 4056 (ON CA), (1987), 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.
(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 CanLII 23601 (ON SC), (2007), 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 (CanLII), 2001 FCT 589, var’d 2003 FCA 234 (CanLII), 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.”
 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 CanLII 49405 (ON SC), (2002), 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 CanLII 4886 (MB CA), (1998), 162 D.L.R. (4th) 111 (Man. C.A.), at paras. 319-321.