Wednesday, August 28, 2013

Civil contempt is the intentional doing of an act which is prohibited by court order

Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530 holds that, to constitute civil contempt, it is not necessary to show that an act was deliberately contumacious; civil contempt is committed by the intentional doing of an act which is in fact prohibited by court order:


[57]       It is well-established that while the act that contravenes a court order must be intentional to constitute civil contempt, it is not necessary to show that the act was deliberately contumacious.  This is not a case of criminal contempt where public defiance of the court's authority is an essential element and, as held in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 933, it must be proved beyond a reasonable doubt that "the accused defied or disobeyed a court order in a public way (the actus reus), with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea)." This is a case of civil contempt where "[a] person who simply breaches a court order ... is viewed as having committed civil contempt": United Nurses, at p. 931.


[58]       In TG Industries Ltd. v. Williams, 2001 NSCA 105, 196 N.S.R. (2d) 35, bolstered by a thorough review of what he described, at para. 19, as the "long line of authority for the view that intention to disobey is not an element of civil contempt", Cromwell J.A. (then a member of the Nova Scotia Court of Appeal), explained the governing principle in the following way, at para. 17:


[I]n civil contempt, it is important to distinguish between an intentional act and knowledge that the act is prohibited.  The core elements of civil contempt are knowledge of the order and the intentional commission of an act which is in fact prohibited by it.  The required intention relates to the act itself, not to the disobedience; in other words, the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt.


[59]       As Cromwell J.A. pointed out, at para. 11, to hold that a party could only be found in contempt "if it intentionally and wilfully acted contrary to the requirements of the order" would put the test for civil contempt "too high" as "[i]f accepted, this view would mean that mistakes of law would be a defence to an allegation of civil contempt but not to a murder charge."


[60]       This court applied the same principle in Sheppard v. Sheppard (1975), 12 O.R. (2d) 4, at p. 8:


[I]n order to constitute a contempt it is not necessary to prove that the defendant intended to disobey or flout the order of the Court.  The offence consists of the intentional doing of an act which is in fact prohibited by the order. The absence of contumacious intent is a mitigating but not an exculpatory circumstance.


[61]       Similarly, it has been held that even a party who acts on legal advice may be found in contempt if the conduct violates terms of a court order: see Re Tyre Manufacturers' Agreement, [1966] 2 All E.R. 849, at p. 862; Canada Metal Co. Ltd. v. C.B.C. (No. 2) (1974), 48 D.L.R. (3d) 641, at p. 661, aff'd 65 D.L.R. (3d) 231 (Ont. C.A.). Sabourin could not have avoided a finding of contempt by relying on Carey's erroneous legal advice and neither should Carey because of his erroneous interpretation of the order.



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