Rule of Enforcement (Civil Contempt)

Pintea v. Johns, 2017 SCC 23 (CanLII), [2017] 1 SCR 470

[1] Karakatsanis J. — The common law of civil contempt requires that the respondents prove beyond a reasonable doubt that Mr. Pintea had actual knowledge of the Orders for the case management meetings he failed to attend.

[2] The case management judge failed to consider whether Mr. Pintea had actual knowledge of two of the three Orders upon which she based her decision. The respondents concede that the requirements of Rule 10.52(3)(a)(iii) of the Alberta Rules of Court, Alta. Reg. 124/2010, were not met with respect to these two Orders.

[3] As a result, the finding of contempt cannot stand.

[4] We would add that we endorse the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

[5] The appeal is allowed, the action is restored and the costs award vacated.

Criminal Code (R.S.C., 1985, c. C-46)

127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

(2) Where the order referred to in subsection (1) was made in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government, any proceedings in respect of a contravention of or conspiracy to contravene that order may be instituted and conducted in like manner.

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

60.05 An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11. R.R.O. 1990, Reg. 194, r. 60.05.

60.11 (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made. R.R.O. 1990, Reg. 194, r. 60.11 (1).

(2) The notice of motion shall be served personally on the person against whom a contempt order is sought, and not by an alternative to personal service, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 60.11 (2).

(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit. R.R.O. 1990, Reg. 194, r. 60.11 (3).

Warrant for Arrest

(4) A judge may issue a warrant (Form 60K) for the arrest of the person against whom a contempt order is sought where the judge is of the opinion that the person’s attendance at the hearing is necessary in the interest of justice and it appears that the person is not likely to attend voluntarily. R.R.O. 1990, Reg. 194, r. 60.11 (4).

Content of Order

(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property. R.R.O. 1990, Reg. 194, r. 60.11 (5).

Where Corporation is in Contempt

(6) Where a corporation is in contempt, the judge may also make an order under subrule (5) against any officer or director of the corporation and may grant leave to issue a writ of sequestration under rule 60.09 against his or her property. R.R.O. 1990, Reg. 194, r. 60.11 (6).

Warrant of Committal

(7) An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60L). R.R.O. 1990, Reg. 194, r. 60.11 (7).

Discharging or Setting Aside Contempt Order

(8) On motion, a judge may discharge, set aside, vary or give directions in respect of an order under subrule (5) or (6) and may grant such other relief and make such other order as is just. R.R.O. 1990, Reg. 194, r. 60.11 (8).

Order that Act be done by Another Person

(9) Where a person fails to comply with an order requiring the doing of an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge. R.R.O. 1990, Reg. 194, r. 60.11 (9).

(10) The party enforcing the order and any person appointed by the judge are entitled to the costs of the motion under subrule (9) and the expenses incurred in doing the act ordered to be done, fixed by the judge or assessed by an assessment officer in accordance with Rule 58. R.R.O. 1990, Reg. 194, r. 60.11 (10).

R. v. Gibbons, 2009 CanLII 31598 (ON SC)

[15] The Trial Judge delivered oral reasons immediately following the submissions of counsel. It is apparent from his reasons that he adopted a pragmatic approach to the issue. What was determinative, in his view, was that the appellant was alleged to have breached a civil court order. In those circumstances, the Trial Judge held it should be civil, not criminal, proceedings that are utilized to impose sanctions. He concluded that since rules 60.11 and 60.12, on a plain reading, expressly provide for dealing with someone who is alleged to be in breach of a civil court order, and provide for a penalty, the appellant cannot be dealt with by way of s. 127.

[17] The respondent submits that because the Ontario rules are far more detailed than the Manitoba rules which were under consideration in Clement, the Trial Judge was not bound by Clement. She submits that this position is supported by subsequent decisions of courts across the country. Additionally, she submits that on a purposive interpretation of s. 127 of the Criminal Code, its application must be exempted from the facts of this case.

[27] I agree with the respondent’s submission that the phrase “unless punishment or other mode of proceeding is expressly provided by law” must be read disjunctively. However, following the reasoning in Clement, neither the punishment nor the mode of proceeding in rules 60.11 and 60.12 satisfy the exemption from the application of s. 127.

[29] The respondent relies on rule 60.12, submitting that the fact that it allows for ‘case specific’ remedies means that it meets the exempting qualifications in s. 127. In my view this rule does not meet the requirements of expressly providing a punishment or mode of proceeding any more than does rule 60.11. Both rules are a product of the inherent power of the court to control its own process. Neither rule contains an expressly provided punishment, as defined in Clement.

[30] Finally, a purposive approach to the availability of s. 127 in these circumstances supports its use. In considering s. 127, a number of courts have dealt with the question of whether it serves a purpose distinct from contempt provisions in the civil rules of practice. They have concluded that the section is intended to be used where the effect of the breach of a court order extends beyond the parties to the proceedings.[11] The section’s use has been found to be particularly appropriate in the context of breaches of injunctions, as the willful disobeying of injunctions engages the issue of the public interest in ensuring that orders of its courts are obeyed by all members of the public.[12] On that basis, s. 127 is the preferred mode of response to the alleged contempt by the respondent.

[31] In my view, the Trial Judge erred in failing to apply the decision in Clement.

[32] The appeal is granted. The decision to quash the information is set aside and a new trial is ordered.