One would hope that civil contempt proceedings are rare (which they are). The suggestion that someone is in contempt of a court order is, to say the least, a serious allegation and one that requires considerable care before launching. An Ontario Court recently considered the procedural protections to be afforded to defendants in these cases in Vale v.USWA Local 6500, et al..
After noting that "Civil and criminal contempt have enjoyed something of a renaissance in recent years" (a frightening comment), the Court quoted from Bell ExpressVu Limited Partnership v. Torrini noted that:
"A finding of contempt of court is a serious matter that is quasi-criminal in nature. It is “first and foremost a declaration that a party has acted in defiance of a court order”: Pro-Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, at paragraph 35. The potential penal sanctions facing a contemnor underscore the seriousness of such a finding. As the Supreme Court of Canada has observed, “the penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of ‘public law’, in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue”: Pro-Swing, at para. 34, citing Videotron Ltee v. Industries Microlec Produits Electroniques Inc., 1992 CanLII 29 (S.C.C.), [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, at p. 1075 S.C.R. This court has recently reaffirmed these principles in Chiang (Trustee of) v. Chiang 2009 ONCA 3 (CanLII), (2009), 93 O.R. (3d) 483, [2009] O.J. No. 41, 2009 ONCA 3, at paras. 10-11. [page 621] It is for these reasons that motions for contempt are often said to be strictissimi, i.e., that all proper procedures must be strictly complied with: see Dare Foods (Biscuit Divisions) Ltd., v. Gill, [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.); Toronto Transit Commission v. Ryan reflex, (1988), 37 O.R. (3d) 266, [1988] O.J. No. 51 (Gen. Div.)."
Strictissimi? I like it.
Anyway, the Court outlined the following five (5) protections afforded to the alleged contemnor:
- The right to be provided with particularized allegations of the contempt;
- The right to a hearing;
- The right to be presumed innocent until such time as guilt is proved beyond a reasonable doubt;
- 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
- The right not to be compelled to testify at the hearing.
In looking at these issues, the Court will engage in a balancing of interests analysis. On the one hand we have the contemnor's right to make full answer and defence. On the other hand:
... is to be balanced the interests of the administration of justice in ensuring that allegations of non-compliance with orders of the court are dealt with expediently, particularly when the dispute between the litigants is ongoing and the court’s decision may have an effect on the conduct of the parties.
The nature and extent of disclosure must be assessed by looking at:
- The relief being sought by the party bringing the motion for contempt. If the motion is brought essentially for the purpose of ending the unlawful conduct that is one thing; if the motion is brought with a request for significant penal sanction, that is another thing entirely;
- Whether the alleged contempt is ongoing, resulting in an urgent need to preserve order and protect the authority of the court;
- If the alleged contempt is not ongoing, whether the relationship between the parties is such that the impugned conduct might reasonably be expected to resume without timely intervention by the court;
- The nature of the conduct alleged; and
- The nature and extent of the materials of which disclosure is sought and the time expected to produce it.
In addition, the court will consider whether the purpose for which disclosure is sought are legitimate (i.e. is the underlying reason to delay the proceedings or as a tactic to disuade the plaintiff from pursuing the matterr by making the request so onerous) and whether the ends of justice would be achieved by making the requested order. The Court found that the defendants request for disclosure was reasonable and made the appropriate order and imposed a timetable.
Again, Civil contempt proceedings are rare (though, as I said earlier, the judge noted that they "have enjoyed something of a renaissance in recent years"). Fairness will dictate the result when it comes to disclosure, while balancing interests. It should be expected that overly broad requests for disclosure or requests that are so onerous as to be unreasonable or suggestive of a tactic to delay the proceedings will not be allowed or will be restricted.
