Contempt is the act of being disobedient to, or disrespectful of, a court of law and its Orders. In the civil law context, such as in a corporate commercial dispute, commercial real estate dispute, civil fraud matter, insurance dispute, or similar, it is most often the act of knowingly disobeying an order of the court.
Purpose of Contempt
The power to find contempt lies in the courts need to uphold its dignity and process. The rule of law is directly dependant on the court’s ability to control and regulate its process and maintain its dignity and respect. It must also be remembered that the courts represent the state, and the power and authority of the state must be observed in an orderly and civil society.
Ontario Rule 60
The Ontario Rules of Civil Procedure set out the steps to be taken when seeking to hold someone in contempt. The concept of contempt is not defined in the Rules. The method is by motion to the judge of the court that made the Order, the contempt of which is alleged, as follows:
60.11 (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained on a motion to a judge in the proceeding in which the order was made;
(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit.
A judge, in dealing with such a motion, can “make such order as is just” and, following “a finding” of contempt, he or she may order the contemptor to be imprisoned, pay a fine, do or refrain from doing an act, pay just costs, and comply with any other order the judge considers necessary.
The Format of Contempt Proceedings
The Rules do not set out the process for adjudicating a contempt motion. It is now established at common law that the proceeding is bifurcated or split into two parts. The first part deals with whether contempt has occurred, the second with the appropriate penalty based on the Ontario Court of Appeal (OCA) decision in College of Optometrists (Ont.) v. SHS Optical Ltd.
Legal Definition of Contempt
Civil contempt consists of the intentional doing of an act which is in fact prohibited by an order of the court. This is so even where the person breaching the order did not do so deliberately or willfully in the sense of doing so maliciously and/or with the intent to interfere with the administration of justice.
The elements of civil contempt demand a heightened standard of proof, the equivalent of beyond a reasonable doubt. This is because of the potential penal consequences of a finding of contempt. The elements required to be proven are found in many cases but maybe the best is the Supreme Court of Canadas (SCC) decision in Carey v Laiken. They are as follows:
- The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
- The party alleged to have breached the order must have had actual notice of the order; and
- The party alleged to have breached the order must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
The third element of intention is made out by proving the intentional act or omission. There is no need to establish an added element of an intention to disobey the order.
The power to find contempt is used sparingly. It is also not meant to be used to enforce judgments. The fear is that frequent use would cause it to lose its impact and deterrent power.
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