Contempt of a Tribunal Order (General)

Canada (Human Rights Commission) v. Warman, 2011 FCA 297 (CanLII), [2013] 3 FCR 109

[1] This is an appeal by the Canadian Human Rights Commission (the Commission or the appellant) from a decision of Harrington J. of the Federal Court (the Federal Court Judge) wherein he dismissed the contempt proceedings brought against Terry Tremaine (the respondent or Mr. Tremaine) based on his alleged failure to abide by the cease and desist order issued against him by the Canadian Human Rights Tribunal (the Tribunal).

[2] Although the Federal Court Judge found that Mr. Tremaine acted in contempt of the order of the Tribunal, he held that contempt could only be pronounced for a deliberate breach of an order of the Federal Court and that as at the material time Mr. Tremaine was not advised that the Tribunal order had been registered in the Federal Court, he could not be found in contempt. The appellant contends that in so holding, the Federal Court Judge committed a number of legal errors.

[3] For the reasons which follow, I am of the view that the appeal should be allowed and that Mr. Tremaine should be found in contempt for having defied the order of the Tribunal.

[11] The Federal Court Judge first questioned whether the case before him was one of criminal or civil contempt. He proceeded to conduct his analysis on the basis that civil contempt was being alleged (reasons, para. 9).

[12] The Federal Court Judge adopted the tripartite test for civil contempt set out in Prescott-Russell Services for Children and Adults v. G.(N.), (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 [Prescott-Russell]. Focusing on the second element of that test, i.e. that there must be a deliberate breach of an order, the Federal Court Judge identified Mr. Tremaine’s “overriding defence” as follows (reasons, para. 23):

… he did not know the Tribunal’s order had been registered with this Court until August 2010, when he was specifically so served. He had no intention of defying this Court. …

The Federal Court Judge later identified March 2009 rather than August 2010, as the date on which Mr. Tremaine was made aware of this registration, a finding which is not being challenged in this appeal (reasons, para. 25).

[44] It is now settled law that decisions of lower Tribunals can be enforced on their own account through contempt proceedings because they, like decisions of the superior Courts, are considered by the legislator to be deserving of the respect which the contempt powers are intended to impose. This is what section 57 achieves with respect to orders made by the Tribunal under sections 53 and 54 of the Act.

Cheng et al. v. Tarrion Warranty Corporation, 2015 ONSC 1347 (CanLII)

[1] The applicants, Stephen Cheng and Sannie Lee ("the applicants") seek an order finding that the respondent, Tarion Warranty Corporation ("Tarion ") is in contempt of the Order of the Licence Appeal Tribunal ("the Tribunal") dated November 19, 2012.

[12] The Superior Court of Justice has inherent jurisdiction to punish for contempt of court where such contempt consists of a violation of a court order. Fundamental to a contempt order is maintenance of respect for the court and the rule of law. While criminal contempt is more concerned about punishment, in civil contempt, the court’s emphasis is on attempting to obtain compliance with the court order.

[13] A finding of contempt of court is a serious matter that is quasi-criminal in nature. The bar for civil contempt is high. A finding of civil contempt must be made on a criminal standard "beyond a reasonable doubt": Chiang (Re), 2009 ONCA 3.

[14] Pursuant to established jurisprudence, the tripartite test for a finding of contempt of court is as follows:

1. The Order that was breached must state clearly and unequivocally what should and should not be done;

2. The party who disobeyed the Order must do so deliberately and wilfully;

3. The evidence must show contempt beyond a reasonable doubt.

[15] Any doubt must be resolved in favour of the person alleged to have breached the Order.

[16] Based on the evidence before me, and on the settled jurisprudence regarding contempt and the tripartite test set forth at paragraph 3, supra, I find that the applicants/moving parties have not satisfied the three-pronged test for contempt.

[24] However, despite the fact that this Court has not found any contempt, this Court exercises its discretion to make the following Orders as regards the follow-up work as recommended by Tarion, in order to give effect to the Licence Appeal Tribunal decision.

[25] As had been suggested by Tarion following the Tribunal's decision, I Order that the proposed waterproofing contractor attend at the subject premises by April 30, 2015 to conduct further investigation and testing of the subject premises. I further Order that the recommendations of the contractor as regards investigations, testing and repairs required be followed and that the repairs be effected. The homeowners are to allow access to Tarion and the contractor for these purposes.

[26] While I am of the view that the additional testing ordered at paragraph 25, above, as suggested by Tarion, gives full effect to the Tribunal Order, in the event that nothing is able to be determined as a result of the above ordered procedure, and the leaks continue, I make the following additional Order. The engineer's observations made in his Report of December 18, 2013, suggested some further testing which may identify the source of the leak, although it does not appear that this was certain to do so. It suggested prolonged wetting or some form of depressurization of the attic. I do note that prolonged wetting in the gables was done, as well as some depressurization of the home, in the form of the Blower Door Test. In the event that these above-noted tests are different from the tests mentioned in the December 18 Report, I order that the additional testing as recommended by the engineer in the above referenced Report, namely prolonged wetting and depressurization of the attic should be undertaken with the supervision of the engineer.

[27] Beyond these Orders, I make no further Order to give effect to the Tribunal Order. Tarion has made full and reasonable attempts to satisfy the Tribunal's Order.

United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 SCR 901

Held (Lamer C.J. and Sopinka and Cory JJ. dissenting): The appeal should be dismissed.

Per La Forest, Gonthier, McLachlin and Iacobucci JJ.: The union may be held liable for a criminal offence (including criminal contempt) at common law. Further, unions are societies for the purposes of the Criminal Code. The provincial legislation defining societies clearly implies that there may be societies that are not incorporated under the Societies Act. Since a union, as a society, may be prosecuted under the Criminal Code, it should also be subject to prosecution for a criminal offence at common law. Unions therefore have the status to be found in criminal contempt.

Denial of liberty resulting from criminal contempt is effected in accordance with the principles of fundamental justice. The absence of codification does not in itself violate the principle that there must not be crime or punishment except in accordance with fixed, pre‑determined law. Nor is the crime of criminal contempt so difficult to distinguish from civil contempt that it violates these principles. The distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt. To establish criminal contempt the Crown must prove beyond a reasonable doubt that the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea). When the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at least reckless as to whether the authority of the Court would be brought into contempt. On the other hand, if the circumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the necessary mens rea would not be present and the accused would be acquitted, even if the matter in fact became public. While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt. An accused can predict in advance whether his or her conduct will constitute a crime. Criminal contempt does not therefore violate ss. 7, 11(a) or (g).

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Another way of looking at the matter is to ask whether s. 142(7) offends because it permits a superior court to enforce orders other than its own. In a sense, the superior court is not merely enforcing the order of the tribunal; it is also finding a criminal offence to have been made out. But accepting that it is merely enforcing the tribunal order, this amounts not to a diminution of the superior court's powers, but rather a grant to it of additional powers. Nor is anything taken from the inferior tribunal which does not have the power of enforcement by contempt.

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This argument is not one of jurisdiction, but of policy. It questions whether the legislature should enact that breach of a tribunal order is subject to the same consequences as breach of a court order. The power of the legislature to do this cannot be questioned; legislatures routinely make changes in the law which empower or require federally appointed judges to impose certain remedies. Thus the question is one of policy; policy moreover, which can be debated. Against the argument that the contempt power is so serious that it should only be available for breaches of orders actually made by s. 96 judges, can be raised the argument that in reality important portions of our law are administered not by s. 96 judges but by inferior tribunals, and that these decisions, like court decisions, form part of the law and deserve respect and consequently the support of the contempt power. Similarly, against the argument that labour disputes should be settled by civil remedies, can be raised the argument that these disputes, when they threaten public respect for orders of law, transcend private concerns and properly become the subject of criminal remedies, as this Court has held in Poje, supra, and B.C.G.E.U. v. British Columbia (Attorney General), supra. Whatever the answers to these difficult issues, where the legislature has acted properly within its jurisdiction, it is not open to the courts to substitute their views on the proper policy of the law for the views of the legislature.

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