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).