Civil Procedure - Civil Contempt
2363523 Ontario Inc. v. Nowack (Ont CA, 2016)
This case, along with the concurrent and related case of Greenberg v Nowak, sets out useful dicta on motions for civil contempt, here in particular the relationship between intentionality (in disregard of a court order) and 'contumacy' (roughly, obstinacy):
(1) Did the Motion Judge Properly Consider and Apply the Test for Civil Contempt?
 A party seeking to establish civil contempt must prove that: (a) the order alleged to have been breached states clearly and unequivocally what should and should not have been done; (b) the party alleged to have breached the order had actual knowledge of it; and (c) the party allegedly in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels: Carey v. Laiken, 2015 SCC 17 (CanLII),  2 S.C.R. 79, at paras. 33-35. A judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are 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. The burden on a party seeking a contempt order is to establish the above elements by proof beyond a reasonable doubt: Carey v. Laiken, at para. 32; Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85 (CanLII), 94 O.R. (3d) 614, at para. 29; Chiang (Re), 2009 ONCA 3 (CanLII), 93 O.R. (3d) 483, at paras. 11 and 50.
 Thus, what the motion judge had to decide was whether Mr. Nowack intentionally failed to do what the orders compelled. This requirement is distinct from proving whether an alleged contemnor intended to disobey the order in question. Contumacy, or lack thereof, is not an element of civil contempt: Carey v. Laiken, at para. 38. Additionally, it was for the motion judge to determine if it was appropriate to exercise his discretion to decline to make a contempt order in the circumstances: Carey v. Laiken, at para. 37.
 In Torroni, this court held that the reasons for a contempt order need not analyze the application of the three-part test to the facts of the case in great detail, but that the judge “must at a minimum turn his or her mind to the test and apply the elements of the test properly”: at para. 23. This court set aside a finding of contempt because the motion judge had failed to consider whether the terms of the underlying order were clear and unequivocal and whether the record established a finding of contempt beyond a reasonable doubt: at paras. 27-29. The motion judge’s consideration of whether the alleged contemnor “deliberately and wilfully” disobeyed the order was not sufficient to ground a finding of contempt in the absence of considering the other elements of the test for civil contempt: at para. 30.
 Mr. Nowack says that Torroni mandates that a judge deciding a contempt motion must explicitly set out the three elements for contempt as well as the burden of proof. I disagree. While a judge deciding a contempt motion must turn his or her mind to the test for contempt and apply the elements correctly, Torroni does not require the judge to set out the test expressly in his or her reasons. In Torroni, the orders at issue were not clear. They permitted the plaintiff to enter the premises of the defendant to access computer files. The parties engaged in an email debate as to what specific premises the orders referred to and where the computer access should take place: at para. 25. In the motion judge’s reasons finding contempt, there was no indication that he dealt with this ambiguity, or considered the part of the test for contempt requiring the order to be clear.
 Section 7 of the Charter of Rights and Freedoms applies to civil contempt proceedings because they are penal in nature: R. v. Cohn (1984), 48 O.R. (2d) 63 (C.A.), at p. 76, leave to appeal refused,  1 S.C.R. vii. Contempt proceedings must therefore afford an alleged contemnor “all necessary safeguards”: Toronto Transit Commission v. Ryan (1998), 1998 CanLII 14635 (ON SC), 37 O.R. (3d) 266 (Ct. J. (Gen. Div.)), at p. 270; Torroni, at para. 20. The proceeding must preserve the principles of fundamental justice by safeguarding the right to be presumed innocent and the right to make full answer and defence: R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 1987 CanLII 4056 (ON CA), 59 O.R. (2d) 145 (C.A.), at p. 150.