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. Sakab Saudi Holding Company v. Saad Khalid S Al Jabri [for numbered case cites, see the main link]

In Sakab Saudi Holding Company v. Saad Khalid S Al Jabri (Div Court, 2023) the Divisional Court engages in an interesting review of the basics of contempt of court and - more fundamentally - general enforcement of orders powers:
[20] The motion judge began his analysis by summarizing legal principles relating to contempt motions in civil actions.[6] He identified the following principles derived from the jurisprudence:
a. The Rule of Law is dependent on the power of the court to enforce its process and to maintain its dignity and respect.[7]

b. The contempt power is an ancient one, traceable back to the 12th century English common law.[8]

c. The deliberate failure to obey a court order strikes at the very heart of the administration of justice.[9]

d. Remedies for contempt of court are of particular importance in the enforcement of Mareva orders, where the order is made to protect against rogue behaviour flouting the court’s process.[10]

e. A civil contempt motion is quasi-criminal in nature. Both the process used to issue a declaration of contempt and the sanction bear the imprint of criminal law.[11]

f. Procedural protections afforded to an alleged contemnor faced with civil contempt include:
(1) the right to be provided with particularized allegations of the contempt;

(2) the right to a hearing;

(3) the right to be presumed innocent until such time as guilt is proved beyond a reasonable doubt;

(4) the right to make full answer and defence, including the right to retain and instruct counsel, the right to cross-examine witnesses, and the right to submit or call evidence; and

(5) the right not to be compelled to testify at the hearing.[12]
g. The Charter applies to a civil prosecution for contempt of court.[13]
[21] I see no legal error in this summary of principles. I would add to them the following additional observations. As has been said many times before, court orders are not “suggestions” or “guidelines”. They are orders. They must be obeyed. However, not every transgression of an order should be met with an allegation of contempt of court. The contempt power is but one arrow in the quiver of remedies available to the court when faced with alleged non-compliance. “The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders….”[14]

[22] Second, the jurisprudence distinguishes between “coercive” enforcement measures, and “punitive” ones. The line between the two may be hazy, but the broad spectrum of possible non-compliance is easily grasped. Missing a court-ordered deadline by one day to provide answers to undertakings may provoke no response from the court at all (but may, perhaps, be relied on later in the process as part of a pattern of consistent non-compliance). Breaching a final order not to cut down a disputed tree, by destroying the tree, may leave nothing to do but punish the contempt: the non-compliance and its consequences cannot be undone.

[23] The power to enforce court orders is applied on this spectrum. Where the issue arises as part of the ongoing process of a case, enforcement should be aimed at facilitating the ongoing process. The court is not required to pursue a contempt motion where, in the court’s opinion, the alleged non-compliance does not appear to merit that sort of response. This is inherent in the contempt power itself: it arises from the court’s inherent jurisdiction to control its own process and to see to the enforcement of its orders.

[24] Third, there is an established line of authority about how to respond to these issues where a civil or administrative process may also involve criminal or quasi-criminal prosecution. Plaintiffs may rely upon administrative enforcement authority until the matter has become, in its true nature, a criminal prosecution. Where this has happened, plaintiffs are not thereafter frozen in their tracks, but rather are restricted to investigative techniques involving judicial oversight and Charter protections for a person accused with an offence, as described in R. v. Jarvis.

[25] Finally, the court has the inherent jurisdiction to see to enforcement of its orders, and this includes the power to compel a party to demonstrate compliance to the satisfaction of the court. This principle is reflected in the terms of Mareva orders generally, and the Mareva order granted in this case: it freezes Dr Saad’s assets and requires him to disclose those assets and demonstrate his ongoing compliance with the order. These requirements, in a case where a Mareva order has been made, do not preclude the court from relying on information compelled under the Mareva order to assess whether the order has been complied with.


[42] If the respondents had brought a motion seeking a remedy for “non-compliance” with, rather than “contempt” of, the Mareva order, perhaps some of the current difficulties – and resulting litigation delay– could have been avoided. As noted by Steele J. in McClure (at p. 3 of 6), many enforcement proceedings, including a civil contempt motion “are not penal but are coercive proceedings with respect to orders and judgments of the court to allow the court to enforce its process.” Not all non-compliance rises to the level of contempt of court, and even where it may, obtaining current and ongoing compliance is often the predominant goal.

[43] I appreciate that there are circumstances where “non-compliance” may justify a finding of contempt and a custodial sentence, because of the nature of the non-compliance and its impact on the court’s ability to do justice at the end of the case, or to the ongoing process of the litigation. Currently, in this case, the issue is a question of the extent to which the appellants may use resources to fund Dr Saad’s day-to-day expenses and legal costs, and the oversight of the court in respect to those questions. The contempt motion, at this stage in the case, is towards the “coercive” rather than the “penal” end of the spectrum of civil contempt proceedings.

[44] Further, even in contempt proceedings at the “penal” end of the spectrum, a moving party is not precluded from building their case for contempt after they have commenced a contempt motion. In the administrative context, where an investigation has become predominantly “criminal” rather than “administrative”, the state’s administrative investigative powers may be curtailed, but recourse to search and seizure authorized by a warrant is still available. In the context of a civil contempt motion, where the court concludes that the matter is predominantly “penal” and protections against self-incrimination and the right to silence preclude further compelled disclosure, alternative means for gathering evidence may still be available, such as an Anton Piller order or an order for third party production. It is not the case that a moving party’s ability to assemble evidence is brought to a halt by commencing a contempt motion.


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