1. The Test for Civil Contempt
There is a three-part test for a judge to find civil contempt Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 32.:
Carey v Laiken (SCC, 2015), para 32-35:
2. Civil Contempt and the Rules of Civil Procedure
Procedures for civil contempt are governed by R60.11 of the Rules of Civil Procedure. The court can have reference to the Criminal Code for guidance (here in imposing a conditional sentence), but the Criminal Code provisions are not binding: Astley v Verdun (Ont CA, 2015).
3. Conduct of the Contempt Hearing
There is no set procedure for a contempt hearing, but they are usually bifurcated into liability and penalty phases. The main factor on penalty is whether the party has since purged their contempt between the two stages (ie. since complied with the order). The reasons for bifurcation are due to the criminal purpose of the hearing, that having a single hearing runs the "risk that evidence relevant, material and admissible to liability, will be improperly applied to penalty or vice versa.": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 121-127.
"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 ..." Carey v Laiken (SCC, 2015), para 18.
"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." Carey v Laiken (SCC, 2015), para 66.
"Ordinarily, the period between a finding of contempt and the penalty hearing gives the contemnor an opportunity to purge his or her contempt. At the penalty hearing, if the contemnor has purged his or her contempt, as Belobaba J. noted, this is a significant mitigating factor with respect to the penalty imposed." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 86.
4. Contumacious Intent (Stubbornness) in Civil Contempt
Contumacious intent, or to intent to interfere with the administration of justice, is not a necessary requirement of the mental element. The mens rea is lower than that, but contumacious intent can go to heighten penalty: Carey v Laiken (SCC, 2015), para 38-39.
5. Reticence to Find Civil Contempt
The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders to avoid cheapening the role and authority of the courts. It is an enforcement power of last resort. Carey v Laiken (SCC, 2015), para 36-37.
6. Purpose of Penalty for Civil Contempt
The purpose of a penalty for civil contempt is "to enforce compliance with a court order and to ensure societal respect for the courts": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 79.
"The court must assess the seriousness of the disrespect of the court, not the severity of any resulting harm.": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 129-130.
The purpose of contempt of court proceedings is to uphold the court's dignity, respect and process: Carey v Laiken (SCC, 2015), para 30.
"Because civil contempt engages issues of public law and the need to condemn acts which undermine the authority and dignity of the court, punishment has been recognized as a secondary purpose for sentencing in such cases." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 81.
7. Factors Relevant to Determing Penalty for Civil Contempt
These following factors are relevant to determining the appropriate sentence for civil contempt: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 90:
The most important factor in determining a penalty of civil contempt is deterrence, both specific and general: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 105.
"One such factor is the particular contemnor’s ability to pay lest the amount either be trivial or unduly punitive: ...": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 133.
8. Range of Penalty for Civil Contempt
Normal fines range for civil contempt from $1,500 to $5,000. Custodial sentences are rare and Canadian courts tend to be lenient, even where there the contempt involves substantial amounts of money. There are a few instances of fines of $100,000 or more involving large corporations in egregious situations, or unions with a large membership. Contempt motivated by personal gain is also an aggravating factor. In recent cases a "lengthy course of disobedience and where the contemnors have not purged their contempt" have resulted in more substantial penalties for contempt: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 108-111.
"At the penalty phase of a contempt hearing courts have a wide discretion. Rule 60.11(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the court may make such order as is just, including that the judge may order the contemnor:
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 74.
9. Jail Sentences in Civil Contempt
"In civil cases, incarceration is rare. Ordinarily, a finding of contempt, together with a fine or some other order in relation to the litigation, is sufficient to gain compliance and restore the authority of the court." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 82.
"I would add that, in cases of serious breaches of court orders, the Canadian Judicial Council recognized that jail was an appropriate sanction. At page 39 the Council stated:
If the contempt has not been purged and the contempt is a serious one, or if there has been a deliberate disobedience of a court order accompanied by violence or other flagrant misconduct then imprisonment or heavy fines become more likely, but care must be taken to ensure that the disposition of the proceedings does not appear to be bullying or vengeful. [Citation omitted.]Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 84.
"A wilful flagrant breach of a single court order that shows a callous disregard for the court’s authority, or that causes significant prejudice to the other party may attract a jail sentence" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 87.
"While each case is fact specific, incarceration has been imposed in numerous cases for failure to produce documents or corporate records" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 88.
"Because incarceration is ordinarily a penalty of last resort, the court must also consider whether any other penalty short of incarceration would be a sufficient sanction for the gravity of the contempt, taking into consideration the sentencing principles applicable to civil contempt." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 89.
10. Appellate Deference to Penalty
On appeal "considerable deference" should be given to the lower court penalty for contempt: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 78:
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.
11. Where Underlying Order Become Ineffective
Where the underlying order becomes 'ineffective', the course of action is not to disobey the contempt order, but to move for directions as soon as the problem becomes apparent or appeal: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 39.
"Where, as here, the impossibility of purging the contempt is a situation of the contemnors’ own making, it is not a mitigating factor" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 86.
12. Where Court Order Not Yet Taken Out
In Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 59, the court stated as follows on the fact that no formal order had yet been taken out:
 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.”
13. Civil Contempt and Family Law
It is generally considered exceptional to find contempt in family law situations, but in extreme cases it will be ordered: Godard v Godard (Ont CA, 2015).
14. Distinction Between Civil and Criminal Contempt
Criminal contempt has an element of public defiance which civil contempt lacks. Civil contempt is primarily coercive rather than punitive, however it does punish breach of a court order to deter both the contemnor and others. Carey v Laiken (SCC, 2015), para 31.
"A deliberate breach of a court order may constitute either a civil or a criminal contempt. A criminal contempt requires, in addition to a deliberate violation of a court order, an element of public defiance calculated to lessen societal respect for the courts." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 76.
15. Effect of Reliance on Legal Advice
Reliance on legal advice does not shield a party from a finding of contempt. Carey v Laiken (SCC, 2015), para 44.