Tuesday, September 11, 2012

Structure of a contempt hearing

Doobay v. Diamond, 2012 ONCA 580 has useful obiter as to the customary structure of a contempt hearing:

The Structure of the Contempt Hearing

[40]       A point not raised by the parties merits comment.  It involves the procedure the motion judge followed. While the procedure to be followed in contempt hearings is in the discretion of the motion judge, they are generally bifurcated - there is a liability phase and a penalty phase. This is to allow the contemnor an opportunity to purge his or her contempt: College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), 2008 ONCA 685, 241 O.A.C. 225, at para. 73.  The contemnor’s efforts to purge the contempt during the period between conviction and penalty are a relevant consideration in the determination of the appropriate penalty: Great Glasses, at para. 79.

[41]       Here, the motion judge determined liability and penalty at the same time.  As a result, prior to the determination of punishment, the appellant had no further opportunity to purge or at least attempt to purge the contempt found by the motion judge. 

[42]       As Watt J.A. noted in Great Glasses, in some circumstances a consolidated hearing may cause unfairness – it may not only deprive the contemnor of the opportunity to purge his or her contempt but also expose the contemnor to a situation where evidence relevant to penalty may affect the determination of liability.

[43]       Here, as noted, there was no challenge on this point.  Nor, in my view would one have been successful given that the contempt itself was effectively not in issue and that the history of the matter evidenced Mr. Diamond's intention to continue his contemptuous conduct. 


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