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)

[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.