Civil Procedure - Contempt
Carey v Laiken (SCC, 2015)
In this case the Supreme Court of Canada addressed the mental element required for a party to be found in civil contempt and (further below) procedures used in civil contempt proceedings:
(2) The Canadian Common Law of Civil ContemptOn the procedures used in contempt hearings the court stated:
 Contempt of court “rest[s] on the power of the court to uphold its dignity and process . . . . The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect”: United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC),  1 S.C.R. 901, at p. 931. It is well-established that the purpose of a contempt order 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),  2 S.C.R. 612, at para. 35, cited in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85 (CanLII), 94 O.R. (3d) 614, at para. 20.
 The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. The distinction, which the parties to this appeal accept, rests on the element of public defiance accompanying criminal contempt: see, e.g., United Nurses, at p. 931; Poje v. Attorney General for British Columbia, 1953 CanLII 34 (SCC),  1 S.C.R. 516, at p. 522. With civil contempt, where there is no element of public defiance, the matter is generally seen “primarily as coercive rather than punitive”: R. J. Sharpe, Injunctions and Specific Performance (2nd ed. (loose-leaf)), at ¶ 6.100. However, one purpose of sentencing for civil contempt is punishment for breaching a court order: Chiang (Trustee of) v. Chiang, 2009 ONCA 3 (CanLII), 305 D.L.R. (4th) 655, at para. 117. Courts sometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor’s continuing conduct and to deter others from comparable conduct: Sharpe, at ¶ 6.100.
 Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G. (N.) (2007), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists, at para. 71; Bhatnager v. Canada (Minister of Employment and Immigration), 1990 CanLII 120 (SCC),  2 S.C.R. 217, at pp. 224-25; Jackson v. Honey, 2009 BCCA 112 (CanLII), 267 B.C.A.C. 210, at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105 (CanLII), 196 N.S.R. (2d) 35, at paras. 17 and 32; Godin v. Godin, 2012 NSCA 54 (CanLII), 317 N.S.R. (2d) 204, at para. 47; Soper v. Gaudet, 2011 NSCA 11 (CanLII), 298 N.S.R. (2d) 303, at para. 23. These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11.
 The first element is that the order alleged to have been breached “must state clearly and unequivocally what should and should not be done”: Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. Indus Corp., 2004 CanLII 32262 (ON SC), 2004 CanLII 32262 (Ont. S.C.J.), at para. 40. This requirement of clarity ensures that a party will not be found in contempt where an order is unclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning: Culligan Canada Ltd. v. Fettes, 2010 SKCA 151 (CanLII), 326 D.L.R. (4th) 463, at para. 21.
 The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p. 226; College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine (ibid.).
 Finally, 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: Sheppard v. Sheppard (1976), 1976 CanLII 710 (ON CA), 12 O.R. (2d) 4 (C.A.). at p. 8. The meaning of this element is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily.
 The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders: see, e.g., Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect”: Centre commercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663 (CanLII), at para. 7. As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments”: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC),  2 S.C.R. 1065, at p. 1078, citing Daigle v. St-Gabriel-de-Brandon (Paroisse),  R.D.J. 249 (Que. C.A.). Rather, it should be used “cautiously and with great restraint”: TG Industries, at para. 32. It is an enforcement power of last rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182 (CanLII), 89 O.R. (3d) 81, at paras. 41-43; Centre commercial Les Rivières ltée, at para. 64.
 For example, 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: see, e.g., Morrow, Power v. Newfoundland Telephone Co. (1994), 1994 CanLII 9723 (NL CA), 121 Nfld. & P.E.I.R. 334 (Nfld. C.A.), at para. 20; TG Industries, at para. 31. While I prefer not to delineate the full scope of this discretion, given that the issue was not argued before us, I wish to leave open the possibility that 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.
(3) The Required “Intent”
 It is well settled in Canadian common law that 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: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25, Sharpe, at ¶ 6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” (2013 ONCA 530 (CanLII), at para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard and Sharpe, at ¶ 6.200.
 The appellant submits, however, that in situations in which the alleged contemnor cannot “purge” the contempt, is a lawyer or is a third party to the order, the intent to interfere with the administration of justice must be proved. I understand this to mean that “the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order” must be established: TG Industries, at para. 17. This is sometimes also referred to as “contumacious” intent.
 The appellant submits that the mental element of civil contempt must address at least one of the two goals of civil contempt: securing compliance with court orders or protecting the integrity of the administration of justice. Finding a party in contempt where he or she cannot purge (either because the act that constituted the contempt cannot be undone or because a conflicting legal duty prevents compliance with the order) furthers neither of these goals absent some heightened mental element for contempt. Only if the person is shown to have had the intent to interfere with the administration of justice would one of these purposes — protecting the integrity of the administration of justice — be served.
 I cannot accept this position. There is no principled reason to depart from the established elements of civil contempt in situations in which compliance has become impossible for either of the reasons referred to by the appellant. Where, as here, the person’s own actions contrary to the terms of a court order make future compliance impossible, I fail to see the logic or justice of requiring proof of some higher degree of fault in order to establish contempt. The appellant’s submission also overlooks the point that one of the purposes of the contempt power is to deter violations of court orders, thereby encouraging respect for the administration of justice. It undermines that purpose to treat with special charity people whose acts in violation of an order make subsequent compliance impossible. It seems to me that the existing discretion not to enter a contempt finding and the defence of impossibility of compliance provide better answers than a heightened degree of fault where a party is unable to purge his or her contempt for the reasons the appellant outlines: Jackson at para. 14; Sussex Group Ltd. v. Fangeat, 42 C.P.C. (5th) 274, at para. 56 (Ont. S.C.J.).
 The appellant correctly notes that civil contempt is quasi-criminal in nature, which he says justifies a higher fault element where contempt cannot be purged. But civil contempt is always quasi-criminal, so this provides no justification for carving out a distinct mental element for particular types of civil contempt cases. As I have already discussed, requiring contumacious intent would open the door to mistakes of law providing a defence to an allegation of civil contempt. It could also permit an alleged contemnor to rely on a misinterpretation of a clear order to avoid a contempt finding, which would significantly undermine the authority of court orders.
 Further, adopting the appellant’s proposal would in effect make the required mental element dependent on the nature of the order alleged to have been breached. Those who breach a prohibitory order would benefit from this heightened mental element disproportionately, due to subsequent impossibility of compliance, as compared to those who breach a mandatory order, with which the alleged contemnor will be able to subsequently comply absent a conflicting legal duty. I see no principled basis for creating this distinction.
 The appellant also submits that lawyers should benefit from a heightened fault requirement, but I do not agree. As the Court of Appeal recognized, reliance on legal advice does not shield a party from a finding of contempt: para. 61, citing Re Tyre Manufacturers’ Agreement,  2 All E.R. 849 (R.P.C.), at p. 862; Canada Metal Co. v. C.B.C. (No. 2) (1974), 1974 CanLII 835 (ON SC), 48 D.L.R. (3d) 641, at p. 661, aff’d (1975), 1975 CanLII 544 (ON CA), 65 D.L.R. (3d) 231 (Ont. C.A.). Still less should the law permit lawyers to escape a finding of contempt because they have, in effect, relied on their own legal advice.
 As for third parties, the appellant points to some authority in the United Kingdom and Australia to the effect that intent to interfere with the administration of justice is a prerequisite for finding a third party in contempt: e.g., Customs and Excise Commissioners v. Barclays Bank Plc,  UKHL 28,  1 A.C. 181, at para. 29; Attorney General v. Punch Ltd.,  UKHL 50,  1 A.C. 1046, at para. 87; Z. Ltd. v. A-Z,  2 W.L.R. 288, at p. 305 (C.A.); Baker v. Paul,  NSWCA 426 (AustLII), at para. 19. It has also been noted that “[i]t would appear that a higher degree of intention is required to make a non-party liable for contempt”: Sharpe, at ¶ 6.210.
 The short answer to this point is that, even accepting this line of authority, Mr. Carey is not in the same category as the third parties discussed in this line of authority. I would respectfully adopt as my own the following excerpt on this point from the reasons of Sharpe J.A. in the Court of Appeal:
The solicitor-client bond creates a community of interest between Carey and Sabourin that is plainly distinguishable from the situation of a stranger to the litigation who is apprised of the court order. As an officer of the court, a solicitor of record is duty-bound to take scrupulous care to ensure respect for court orders. . . . [A]s the solicitor of record in the case, Carey should be held to the same standard of compliance as his client who was a party. [para. 64]
 In Ontario, civil contempt proceedings are governed by Rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Under this Rule, a party may move to obtain a contempt order: Rule 60.11(1). A judge, in dealing with such a motion, can “make such order as is just” and, following “a finding” of contempt, he or she may order the contemnor to be imprisoned, pay a fine, do or refrain from doing an act, pay just costs, and comply with any other order the judge considers necessary: Rule 60.11(5). Upon motion, “a judge may discharge, set aside, vary or give directions in respect of an order under subrule (5) . . . and may grant such other relief and make such other order as is just”: Rule 60.11(8).
 The Rules do not prescribe the form of contempt proceedings. However, as a general rule, proceedings are bifurcated into a liability phase — where the case on liability proceeds and a defence is offered — and, if liability is established, a penalty phase. In contempt proceedings, liability and penalty are discrete issues: College of Optometrists (Ont.) v. SHS Optical Ltd., 2008 ONCA 685 (CanLII), 241 O.A.C. 225, at paras. 72-75.
 The starting point is that, in civil contempt proceedings, once a finding of contempt has been made at the first stage of a bifurcated proceeding, that finding is usually final. As the Court of Appeal stated, “[a] party faced with a contempt motion is not entitled to present a partial defence [at the liability stage] and then, if the initial gambit fails, have a second ‘bite at the cherry’” at the penalty stage (para. 32). This would defeat the purpose of the first hearing. This is what the judge at first instance erroneously permitted Mr. Carey to do.
 Without exhaustively outlining the circumstances in which a judge may properly revisit an initial contempt finding, I agree with the Court of Appeal that he or she may do so where 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.