Civil Procedure - Civil Contempt
Evidence - Testimonial - Unsworn Oral Testimony Given In Court
Greenberg v. Nowack (Ont CA, 2016)
This case is useful as a demonstration of the significant hurdles to be overcome by a party atttempting to have another held in civil contempt, here in the course of collection proceedings:
(1) Did the Motion Judge Err in Finding the Elements of Civil Contempt Were Not Proven?The motions judge below also accepted unsworn oral testimony from the respondent, advanced under the guise of legal submissions, a practice that the court criticized as follows:
 The test for civil contempt was articulated by the Supreme Court in Carey v. Laiken, 2015 SCC 17 (CanLII),  2 S.C.R. 79, at paras. 33-35:
1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
2. The party alleged to have breached the order must have had actual knowledge of it; and
3. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.
 Each element of civil contempt must be proven beyond a reasonable doubt: Carey v. Laiken, at para. 32. A judge has discretion to decline to make a contempt finding where the three-part test has been met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: Carey v. Laiken, at para. 37.
 In this case, at para. 48 of his reasons, the motion judge described the three-part as follows: first, whether the order clearly and unequivocally states what should and should not be done; second, whether the alleged contemnor disobeyed the order deliberately and wilfully; and third, whether the contempt was proven beyond a reasonable doubt. This is inconsistent with how the test is described in Carey v. Laiken. The question is not whether the alleged contemnor wilfully and deliberately disobeyed the relevant order. Rather, what is required is an intentional act or omission that breaches the order. “The required intention relates to the act itself, not to the disobedience; in other words, the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt”: Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, 4th ed. (Toronto: Canada Law Book, 2015), at para. 6.190 (citations omitted). Requiring the alleged contemnor to have intentionally disobeyed a court order would result in too high a threshold: Carey v. Laiken, at para. 38.
 Further, the motion judge referred to Mr. Nowack’s failures as “not flagrant or contumelious” (at para. 65). In Carey v. Laiken, at para. 29, the Supreme Court was clear that contumacy – meaning “the intent to interfere with the administration of justice” – is not an element of civil contempt, and that a lack of contumacy is correspondingly not a defence.
 Accordingly, the Greenbergs were not required to prove that Mr. Nowack intended to disobey the Prior Orders. Demonstrating that Mr. Nowack failed to comply with an act the Prior Orders compelled, namely the production of his financial documents and preparation of an accounting, would be sufficient. The Greenbergs put forward a prima facie case that Mr. Nowack intentionally failed to comply with the Prior Orders. In his decision of November 18, 2015, the motion judge invited the Greenbergs to move for a contempt order if Mr. Nowack failed to provide an accounting by December 18, 2015. There is no question that he failed to do so – indeed, the motion judge acknowledged this at para. 41 of his reasons.
 There did not seem to be any question in the contempt proceedings about the first two elements of the test – whether the orders were clear and unambiguous and that Mr. Nowack had actual notice of their requirements. The orders in question required Mr. Nowack to provide an accounting to the Greenbergs and to disclose documentation pertaining to his financial affairs. These requirements were clear and unambiguous. Mr. Nowack also had actual knowledge of the requirements of the orders which were made in his presence. Despite Mr. Nowack’s repeated attendances, he failed to produce documents and to provide an accounting, leading the motion judge to repeat these requirements, impose deadlines, and invite the Greenbergs to renew their contempt motion in the event of continued non-compliance.
 It is difficult therefore to understand the motion judge’s conclusion that the contempt motion failed all three prongs of the test for contempt. Indeed, the motion judge did not explain his conclusion, other than that he was unwilling to find contempt (and to imprison Mr. Nowack) in the context of the enforcement of a civil judgment. The conclusion may also stem from the motion judge’s finding that Mr. Nowack’s performance was not contumelious. In any event, as Blair J.A. stated in Bell ExpressVu Limited. Partnership v. Torroni, 2009 ONCA 85 (CanLII), 94 O.R. (3d) 614, at para. 23, a motion judge “must at a minimum turn his or her mind to the test and apply the elements of the test properly.” The motion judge failed to do so here.
 On a motion for contempt, it is proper for a court to emphasize the goal of engaging compliance rather than punishment: Chiang (Re), 2009 ONCA 3 (CanLII), 93 O.R. (3d) 483, at para. 11. Civil contempt is regarded primarily as coercive rather than punitive: Carey v. Laiken, at para. 31, citing Injunctions and Specific Performance, at para. 6.100. Contempt is not available to enforce the payment of a monetary judgment, however there is no question that breach of a court order requiring financial disclosure in the course of enforcement of a judgment debt can ground a finding of civil contempt. In Chiang, for example, where contempt proceedings arose out of a series of orders made in the course of the enforcement of a judgment for the payment of money, this court described the case as “one of the worst cases of civil contempt to come before [the] court”: at para. 1. See also Doobay v. Diamond, 2012 ONCA 580 (CanLII), 297 O.A.C. 190; GM Textiles Inc. v. Sidhu, 2016 ONSC 2055 (CanLII); Cellupica v. Di Giulio, 2011 ONSC 1715 (CanLII), 105 O.R. (3d) 687.
 For the foregoing reasons, I conclude that the motion judge did not properly turn his mind to the elements of the three-part test for civil contempt, when he concluded that the Greenbergs had not met any branch of the test, and dismissed the motion for contempt.
(2) Did the Motion Judge Err in Relying on Mr. Nowack’s Submissions as Evidence?
 The contempt hearing was conducted in a summary manner. The motion judge did not invite oral testimony. Mr. Nowack, who was self-represented, had filed no evidence. He did, however, make submissions as to why he failed to provide an accounting.
 Rule 39 requires evidence on a motion to be adduced by affidavit, cross-examination on an affidavit, the examination of a witness pending a motion, or by oral testimony at the hearing of a motion with leave.
 The motion judge adverted to the fact that no evidence had been put forward by Mr. Nowack in response to the contempt motion. He stated, at para. 43 of his reasons, “[b]efore the hearing, [Mr. Nowack] did not provide any affidavit evidence. At the hearing, Mr. Nowack, who had been sworn to tell the truth at earlier attendances, attempted to offer an explanation for his failure to provide the accounting.” The motion judge accordingly appears to have treated Mr. Nowack’s oral submissions as evidence.
 While the motion judge may well have been entitled to consider Mr. Nowack’s submissions as evidence, relying on the fact that he had previously been sworn as a witness, he ought to have informed the Greenbergs’ counsel that this was what he was doing, and afforded him the opportunity to cross-examine Mr. Nowack. I accept that the Greenbergs were taken by surprise by the motion judge’s apparent acceptance of Mr. Nowack’s brief explanation in his oral submissions as to why he had failed to comply with the outstanding orders. In these circumstances, to the extent that the motion judge relied on Mr. Nowack’s explanation to conclude that the Greenbergs had not met the test for contempt, he erred in doing so.