Civil contempt and successive orders imposing incremental penal sanctions

The Alberta decision in Re Braun (2006), 262 D.L.R. holds that it is improper in a civil contempt for a Court to make warrant successive orders imposing incremental penal sanctions. In effect, civil contempt is to be punished all at once and a “ladder” approach of increasing penalties intended to ensure compliance with the breached order is inappropriate.

Yesterday’s Ontario Court of Appeal decision in Chiang (Re), 2009 ONCA 3 rejected the approach in Braun and held that a civil contempt may well justify successive orders imposing incremental penal sanctions.

[44] We are reluctant to endorse the reasoning in Re Braun for two reasons. First, its reasoning seems at odds with the coercive purpose of civil contempt. To permit only one penal sanction for the ongoing breach of an order deprives the court of the ability to impose measured, but incremental, sanctions to obtain compliance with that order. In other words, if the court can impose only one period of incarceration for a civil contempt, then it cannot address, in any meaningful way, a contemnor's continuing defiance. If repeated penal sanctions are permitted, the court can always address a concern that these sanctions may become oppressive.

[45] Second, and equally important, Ontario’s Rules of Civil Procedure appear to provide more flexibility in sentencing for civil contempt than Alberta’s Rules of Court, Alta. Reg. 390/68. In Ontario, rule 60.11(5)(a) permits the court to impose a sentence of imprisonment “for such a period and on such terms as are just”. This flexibility is incorporated into rule 60.11(5)(b), which provides that a contemnor may “be imprisoned if the person fails to comply with a term of the order”.