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Civil Contempt - Civil versus Criminal. Business Development Bank of Canada v. Cavalon Inc.
In Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017) the Court of Appeal commented:[76] 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: see U.N.A. v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at para. 21. The choice of penalty for contempt must recognize the important distinction between civil and criminal contempt. . Carey v Laiken
In Carey v Laiken (SCC, 2015) stated:[31] 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), [1953] 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, 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.
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[44] 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, [1966] 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 (Ont. H.C.J.), 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.
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