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The Test for Civil Contempt

. James Henry Ting (Re)

In James Henry Ting (Re) (Ont CA, 2021) the Court of Appeal considered the service requirement of orders for which a contempt motion is made on non-compliance:
[11] The parties agree that the test for civil contempt was set by the Supreme Court in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at paras. 32-35. The moving party must prove beyond a reasonable doubt that: a) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; b) the party alleged to have breached the order must have had actual knowledge of it; and c) the party allegedly in breach must have intentionally done the act the order prohibits or intentionally failed to do the act the order compels. The governing precedent from this court on the issue of personal service, which dovetails with the Carey test, is Susin v. Susin, 2014 ONCA 733, 379 D.L.R. (4th) 308 per Blair J.A. at paras. 28–32 and 33–36. At para. 28, Blair J.A. noted:
Procedural protections on motions for civil contempt are generally strictly enforced. This includes the requirement that the materials be served personally on the party sought to be found in contempt: see Rules of Civil Procedure, r. 60.11(2). However, procedural protections that are meaningless in a particular case ought not to trump substantive compliance where the purpose of personal service has been met in the circumstances and there has been no substantial wrong or miscarriage of justice.
[12] In considering the Carey test, the motion judge noted, at para. 32:
I am also satisfied that the second prong of the test is met. The responding party had actual knowledge of the January 15, 2019 Order. Though the responding party may not have been served with the January 15, 2019 Order, actual knowledge may be inferred from the circumstances. The responding party’s counsel assisted in the drafting of the Order and consented to its form and content.
[13] She added, at para. 37: “Further, based on the email exchanges between counsel to the responding party and counsel to the Trustees, I am satisfied that the responding party had no intention of attending the examination, regardless of the pandemic.”

[14] Finally, the motion judge noted, at para. 39:
The Contempt Motion came to the attention of the responding party and he responded to it. Rule 60.11 is aimed at ensuring that the alleged contemnor has notice of the contempt proceeding. The rule does allow for an alternative to personal service by court order. Such court order was not obtained, but I am satisfied that the responding party had adequate notice of the Contempt Motion. [Emphasis added.]
[15] The motion judge knew, as she noted in para. 40, that the burden on the Trustees was to prove contempt beyond a reasonable doubt. To paraphrase Blair J.A. in Susin, there was substantive compliance here because the purpose of personal service has been met in the circumstances and there has been no substantial wrong or miscarriage of justice.
. Moncur v. Plante

In Moncur v. Plante (Ont CA, 2021) the Court of Appeal considered basic principles on civil contempt of court:
[10] The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:
1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) 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: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.

2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.

3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.
. Susin v Susin

In Susin v Susin (Ont CA, 2014) the Court of Appeal characterized the test for civil contempt as follows:
[21] The test for civil contempt where breach of a court order is in issue is three-fold: (a) the order that is said to have been breached must be clear and unequivocal; (b) the party who is alleged to have breached the order must be found to have done so deliberately and wilfully; and (c) the evidence must prove contempt beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G.(N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85 (CanLII), 94 O.R. (3d) 614, at para. 21.

[22] Dorino argues that the bringing of the present motion did not constitute disobedience of the previous orders requiring all estate matters to be dealt with in Welland and therefore that the motion judge had no authority to make a contempt order in the circumstances. The previous orders did not “[require Dorino] to do an act, other than the payment of money, or to abstain from doing an act,” he submits; therefore a contempt order could not be made to enforce them under rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[23] While this may be technically so at one level, I see no practical difference between failing to obey the orders and failing to recognize and accept the validly-made previous orders, in these circumstances. They are tantamount to the same thing. Substantively they have the same destructive effect on the integrity of the administration of justice. In any event, breach of a prior court order is not the only type of conduct that will justify a finding of contempt.

[24] The classic definition of contempt at common law comes from The Queen v. Gray, [1900] 2 Q.B. 36, at p. 40, quoted in R. v. Cohn (1984), 1984 CanLII 43 (ON CA), 48 O.R. (2d) 65 (C.A.), at p. 78, leave to appeal to S.C.C. refused, [1985] 1 S.C.R. vii:
Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke L.C. characterised as “scandalising a Court or a judge.”
. Boily v Carleton Condominium Corporation 145

In Boily v Carleton Condominium Corporation 145 (Ont CA, 2014) the court set out a three-part test for a judge to find civil contempt [para 32]:
  • the order that is said to have been breached must be clear and unequivocal;

    Courts tend to find an order unclear on one of three possible bases: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 54:

    • 1. The order is missing an essential term about where, when or to whom the order applies.

    • 2. The order employs unclear or overly broad language.

    • 3. The external circumstances obscure the meaning of the order.

  • the party who is alleged to have breached the order must be found to have done so deliberately; and

  • the evidence must prove contempt beyond a reasonable doubt.
. Carey v Laiken

In Carey v Laiken (SCC, 2015), the Supreme Court of Canada stated that the three elements of civil contempt must be established beyond a reasonable doubt [para 32-35]:
  • the order involved must state clearly and unequivocally what should and should not be done;

  • the party must have actual knowledge of the order, but that knowledge may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine;

  • the party must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
. Business Development Bank of Canada v. Cavalon Inc.

In Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017) the Court of Appeal states:
[17] The elements of contempt, which must be established beyond a reasonable doubt, are the following: (a) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (b) the party alleged to have breached the order must have had actual knowledge of it; and (c) 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: see Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35.
. Chong v. Donnelly

In Chong v. Donnelly (Ont CA, 2019) the Court of Appeal made these comments on the discretionary aspects of a finding of contempt:
[5] In finding the appellant in contempt, the motion judge referred to two leading cases on civil contempt, Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at paras. 32-35 and Greenberg v. Nowack, 2016 ONCA 949 (CanLII), 135 O.R. (3d) 525, at paras. 25-26, which set out the three elements that must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have actual knowledge of it; and (3) 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.

...

[8] Having found that the three elements for civil contempt were established, however, the motion judge erred in law by failing to consider whether she should exercise her discretion to decline to make a finding of contempt. It is this last, crucial step that is missing from the motion judge’s analysis.

[9] As the Supreme Court of Canada stated in Carey, at para. 36, “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders”. This power should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort”. The Court added, at para. 37, that “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.”

[10] There is no indication that the motion judge considered whether a finding of contempt was a last resort or whether she considered any alternatives to such a finding. Such alternatives might have included the court finding that the appellant had breached the order, while admonishing him that, despite his apparently good intentions in ensuring his children were fed, he should respect the respondent’s wishes when the children were with her and comply with the order.

[11] Nor does it appear that the motion judge considered the best interests of the children, which this court has stated is the “paramount consideration” when the issue raised in the contempt motion concerns access to children: Ruffolo v. David, 2019 ONCA 385 (CanLII), 25 R.F.L. (8th) 144, at para. 19. As this court stated in Ruffolo, it is in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily. Indeed, here, the motion judge herself encouraged the parties to continue working with a family mediator.



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