Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture we will talk about the remedy of civil contempt in Ontario. We will explain what civil contempt is; we will explain the test to get an Order for civil contempt and will give you some examples in which the court has awarded civil contempt or may award civil contempt. We will explain to you what kind of remedies you will get under an Order of civil contempt.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Civil contempt is a private injury.  It arises from a private injury in a litigation where one party has disobeyed a court Order or disobeyed a court process.  It is an injury / private injury because this is a civil contempt.  If you are a litigant and the court has issued an Order to the other party and the other party has disobeyed it—obviously you have suffered harm because the other party has not obeyed the court Order.  You, in certain cases can seek this remedy of civil contempt.  Similarly, if there is a specific process that a party needs to follow under that litigation and the party has failed to do so or has refused to comply with that process, then you may be entitled to a remedy of civil contempt.

We will explain this further by way of examples.  It will be a bit clearer. What is the circumstance in which a civil contempt may not apply?  

There is one circumstance where there is an Order for payment of money.  For example, if you were successful at trial and received a judgment against the other party, if the other party refuses to pay that judgment that will not be a scenario in which you will be able to get a contempt Order. There are many other remedies that you may have available at your disposal where you can enforce that Order but the contempt Order is not one of the remedies that you will get. 

I believe this comes from the past practice centuries ago where in civil cases most of the people who were incarcerated were people who had not complied with the judgment Orders against them.  That was the majority of people—debtors were the majority of people who were incarcerated in the civil context in court and common law and our jurisprudence has given [moved] away from that approach.  Failure to or refusal to pay judgment is really not a cause for seeking the remedy of civil contempt.

Now it gets a bit complicated.  For example, if the Order is to pay the fines into court, then you may be able to seek a contempt Order if a party refuses to pay that money into court or if the Order asks the party to hold money in trust and the party has refused to do that, then these could be circumstances in which remedy of contempt Order may be available. Another example could be where the court has ordered that the proceeds from the sale of a matrimonial home needs to be paid into court and the other party has refused to do that—that may be another circumstance.  Generally speaking what you want to remember is that Orders relating to payment of money are a bit more complicated and may not usually fall into the category of contempt.

Let’s get into some of the examples of civil contempt. In one case a party refused to answer the undertakings that they had provided and refused to answer questions that were posed at an “examination in aid of execution”.  An “examination in aid of execution” used to be called a Judgment debtor examination, in which you have received an Order—you have received the judgment against a party and now you’re trying to figure out what kind of assets the other party has.  You can go ahead and enforce that judgment and in that process you conduct an examination which is called an examination in aid of execution.  The party had refused to answer questions in that examination and the court ordered a 60 day jail sentence to that party.

Similarly, in one case a party repeatedly refused to attend at examinations and produce financial information.  In that case one of the reasons for the failure to comply with that was provided by that party was that his father had passed away—which was a lie. The court ordered a 90 days sentence against the party.

Concealing or dispensing property to defeat or defraud creditors is another example where there’s a court Order and a party tries to hide its assets or dispense them in any other way, so that the Order is not complied with. That would be a contempt situation. Hiding your income or your assets is also another example of being uncooperative or unresponsive or untruthful in an examination in aid of execution.  For example you have been issued summons to attend, for example, a court at a trial and a party disobeys those summons then the party can be held in contempt..

What is the test for establishing contempt? It’s a 3 part test  (1) Number one: Did the Order alleged to have been breached—did it clearly and unequivocally state what should and should not be done?  The court will look at the specific Order and determine if the Order is clear.  If it is clear, then you have met the 1st test but if the Order itself is not very clear then you may not be able to show contempt.

(2) Second part of the test is that the party who has been alleged to have breached the Order; did that party have actual knowledge of that Order? If they did not have that knowledge then you may not be able to obtain a contempt Order.

(3) Finally, that the party actually have the intention to do the act that the Order prohibits or did he or she intentionally fail to do the act the Order compels—whatever the Order says, is there an intention not to do that?  Just remember that it’s not the intention to disobey the court Order; it is the intention to disobey the Order given in that particular Order.  It’s the act (intention behind the act is what matters not the intention to disobey the court Order or the court process)

What is a Contempt Order? How do you obtain it?  You obtain it by bringing a motion to a judge.  The motion is brought in the very proceeding in which you are trying to have that Order enforced.  It’s the same court file in which the proceeding, the original Order was issued.

What you want to remember is that the contempt motion is quasi-criminal in nature. What does that mean? The elements of the 3 part test that I just described to you—you have to prove that the party breached all those 3 parts of the test on a balance of beyond reasonable doubt. The test you have to show is that on a beyond reasonable doubt basis that the party breached all those parts of the test. The test is not the civil test which is balance of probabilities more likely than not.  That’s not the test. The burden is much higher. You have to show on a beyond reasonable doubt basis that the other party is really in contempt.

What are some of the remedies for contempt? The court can award imprisonment. I gave you some examples where the court can award imprisonment. The court can award a fine.  The court can issue another Order asking the party to do something or refrain from doing an act. The court can order costs against the party.  A judge can abort any other Order that the judge believes that’s necessary under the circumstances.

The court’s jurisdiction is inherent. It has been available to the courts for centuries (in respect of awarding contempt orders).  There are some relevant Rules in the Rules of Civil Procedure that you want to check out. Rules 60.05, 60.11 and 60.18 are the 3 Rules that relate to contempt orders that you may want to look at to get more information.

The takeaway is that contempt orders is considered the big stick of litigation. This remedy is really the last resort remedy.  Have you done everything possible to ensure that the other party has obeyed the court order that you are alleging that they didn’t and you want that party to be held in contempt, if they have not and you have tried everything else possible and you’re still not able to have the other party comply with a court Order, only then you should be able to seek the court’s Order with respect to contempt—as a last resort remedy.  That is how you should treat it.  If you’re seeking a contempt order then you should keep that in mind because the court will not very readily dispense these contempt orders. The purpose, as you could tell by now, of the contempt order is that the court wants to make sure that everyone respects the law and follows the court orders; otherwise the court will lose its power and authority.  It is also important for the administration of justice that everyone is complying with the court orders.

Hopefully that gives you a sense of what a contempt Order is and in what circumstances you are able to obtain a contempt order against a party.

Thank-you for watching.