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Conduct of the Contempt Hearing

. Boily v Carleton Condominium Corporation 145

In Boily v Carleton Condominium Corporation 145 (Ont CA, 2014) the court stated:
[121] There is no formally mandated process for contempt proceedings. The procedure followed may vary. However, contempt proceedings typically have two stages – the liability hearing and a subsequent hearing to determine penalty: The College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), 2008 ONCA 685, 93 O.R. (3d) 139 at paras. 73-75, per Watt J.A.; Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164, at paras. 34-36. If a contempt finding is made, the matter is adjourned to provide the contemnor an opportunity to purge the contempt and prepare for the sentencing portion of the process. Any action undertaken by a contemnor to purge his or her contempt may serve as a mitigating factor in sentencing: Echostar, at para. 35.

[122] There is good reason to bifurcate contempt hearings. As in criminal prosecutions, in contempt hearings, liability and penalty are discrete issues. In a hearing in which liability and penalty are dealt with together, there is a risk that evidence relevant, material and admissible to liability, will be improperly applied to penalty or vice versa. R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 1987 CanLII 4056 (ON CA), 59 O.R. (2d) 145 (C.A.).

[123] In this case, liability and penalty were combined into a single hearing.

[124] I agree with the comments of Watt J.A. in Great Glasses where he said, at para. 74, that: “a proceeding that considers both liability and penalty in the same hearing, may cause unfairness or be infected with legal error to such an extent to require a new hearing.” I also agree with his comments at para. 76, that the extent to which fairness is affected varies from case to case.

[125] In my view, contempt proceedings should be bifurcated for the simple reason that bifurcation avoids risking the need for a new hearing.

[126] I have come to the conclusion that in this case the motion judge’s failure to bifurcate caused or contributed to unfairness as; a) the evidence relevant to liability appears to have been considered in the penalty phase, b) the Appellants had no opportunity to take steps to attempt to purge their contempt, steps that may have been relevant to mitigation. Great Glasses, at para. 102, and c) the parties had no opportunity to prepare for the sentence hearing.

[127] But, as Watt J.A. pointed out in Great Glasses, this error is not necessarily fatal. In this case, I would not interfere with the financial aspect of the remedy on this basis alone. I say this as there is no evidence that the Individual Appellants requested a bifurcated hearing or, at any time during the process, drew the problems associated with a combined hearing to the motion judge’s attention. Moreover, the failure to bifurcate was not advanced as a ground of appeal.
. Carey v Laiken

In Carey v Laiken (SCC, 2015), the court stated:
[18] 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, 241 O.A.C. 225, at paras. 72-75.

....

[66] 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.
. Business Development Bank of Canada v. Cavalon Inc.

In Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017) the court stated:
[86] 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. Where, as here, the impossibility of purging the contempt is a situation of the contemnors’ own making, it is not a mitigating factor: see Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164, 97 C.P.C. (6th) 177, at para. 45.
. Ruffalo v David

In Ruffolo v. David (Ont CA, 2019) the Court of Appeal set out the procedures to be followed when making a finding of contempt:
[5] The finding of contempt was made on April 8, 2016. For reasons that are not apparent from the record, the court has not yet held the sanction hearing. Although the appeal from a finding of contempt is governed by the timelines set out in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (see Kopaniak v. MacLellan (2002), 2002 CanLII 44919 (ON CA), 212 D.L.R. (4th) 309 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 263), the appeal is usually not heard until the sanction has been imposed. The appeal of the sanction, if one was imposed and is under appeal, is then joined with the contempt appeal. As explained by Sharpe J.A. in Sabourin and Sun Group of Companies v. Laiken, 2011 ONCA 757 (CanLII), 286 O.A.C. 273, at para. 9, a contempt proceeding has only come to a final conclusion once the sanction has been imposed. Until the motion judge has disposed of the motion, including the sanction, the appeal court will not know how serious the motion judge considered the contempt to be or how the judge intended to bring about compliance or punish the contemnor. In the words of Sharpe J.A., “[t]hese are elements integral to the nature and character of the contempt proceeding and essential to an appellate court’s full appreciation of the disposition under appeal”: at para. 9.

....

[8] In our view, civil contempt proceedings should generally not be heard until the sanction has been determined. Motion judges may, for good reason, decide to delay the sanction phase after a finding of contempt. In such a case, or for some other valid reason, a party found in contempt may consider that the interest of justice requires that the appeal of the contempt finding be heard even though the sanction has not yet been determined. In such a case, the appropriate procedure would be to bring a motion in this court seeking such relief.
....

[18] We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:
The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. 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.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]
[19] Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.



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