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Contempt - General

. North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited

In North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited (Ont CA, 2021) the Court of Appeal considered basics of civil contempt law:

[43] Civil contempt consists of the intentional doing of an act which is prohibited by a court order: Carey, at para. 26. As summarized in Carey, at paras. 32 to 35, civil contempt has three elements that must be established beyond a reasonable doubt:
(i) the order alleged to have been breached must state clearly and unequivocally what should and should not be done. An order may be found to be unclear if: it is missing an essential detail about where, when or to whom it applies; it incorporates overly broad language; or external circumstances have obscured its meaning;

(ii) the party alleged to have breached the order must have had actual knowledge of it. Actual knowledge may be inferred from the circumstances or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine; and

(iii) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. All that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Carey, at para. 38. Contumacy – the intent to interfere with the administration of justice – is not an element of civil contempt and lack of contumacy is therefore not a defence: Carey, at para. 29.
[44] With civil contempt, where there is no element of public defiance, the purpose of a contempt order is seen primarily as coercive rather than punitive, with the court attempting to obtain compliance with its order: United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 943, per Sopinka J., in dissent; Chiang (Re), 2009 ONCA 3, 93 O.R. (3d) 483, at para. 11. To that end, r. 60.11 of the Rules of Civil Procedure contemplates that a judge may set aside a finding of contempt if 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, at paras. 62, 64 and 66.

[45] As the contempt power is discretionary, courts have consistently discouraged its routine use to obtain compliance with court orders. It should be used cautiously and with great restraint; it is regarded as an enforcement power of last, not first, resort. So, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt. As well, a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case: Carey, at paras. 36-37.

[46] As a procedural matter, the party seeking a finding of contempt must clearly specify the act or omission that constitutes the contempt. The usual requirement is that the notice of motion set out the particulars of the alleged contempt: Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85, 94 O.R. (3d) 614, at paras. 17, 20 and 42-45; Rocca Dickson Andreis Inc. v. Umberto Andreis, 2013 ONSC 5508, 111 W.C.B. (2d) 587 (Div. Ct.), at para. 20; and Dare Foods (Biscuit Division) Ltd. v. Gill, 1972 CanLII 506 (ON SC), [1973] 1 O.R. 637 (H.C.), at p. 639.


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