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How to deal with parties that disregard court orders

One of the most frustrating times for litigants is when a court issues an order against their adversary and it is ignored with impunity. In many cases, the non-compliant litigant is given several chances to adhere to the court’s order without facing sanctions. Watching your adversary flout the rules and treat court orders as suggestions can make the innocent litigant feel as if the court’s orders can be undermined or ignored. This angst gives rise to frustration, bewilderment and the question: is there a way to deal (effectively) with parties that disregard court orders?

An example of how frustrating it can be to enforce compliance by an adverse party is found in 2363523 Ontario Inc. v Nowack,1 where the defendant did not provide an accounting required by court judgment and failed to produce documents and answer undertakings given at his examination. After the plaintiff brought a contempt motion, it took five court appearances over a nearly year and a half year span before the defendant was ultimately sentenced for contempt.

Our office recently brought a successful contempt motion on behalf of a client in circumstances where the adverse party failed to comply with an order requiring him to re-attend for an examination in aid of execution and produce documents.2The court held the adverse party in contempt, ordered him to pay a fine of $5,000 in the event he did not purge his contempt by complying with the order, and awarded substantial indemnity costs in favour of our client.  In this blog, we have drawn on this success to offer some suggestions for successful contempt motions and address some of the challenges that may arise in establishing that a party has acted in contempt.

Contempt of Court

A finding of contempt is a declaration that a person has acted in breach of a court order. The purpose of contempt proceedings is to uphold the authority of the courts and the rule of law.

All contempt proceedings are quasi-criminal in nature, but broadly speaking there are two types of contempt: civil contempt and criminal contempt.

A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court’s process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal.3

Civil contempt has three elements:4

  1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
  2. The party alleged to have breached the order must have had actual knowledge of it; and
  3. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.

However, simply meeting the test above does not necessarily ensure a finding of contempt. The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. The remedy is to be used cautiously and as a matter of last resort.5

Procedural Protections Afforded to Alleged Contemnors

It is also important to note that due to the quasi-criminal nature of the remedy, the courts afford alleged contemnors a number of procedural protections that are not customary for most civil remedies. Some of these are set out below.

i. Standard of Proof

A case of civil or criminal contempt must meet the criminal standard of proof, that is, it must be proved beyond a reasonable doubt.6 This is unique in civil proceedings, where the standard of proof is normally the balance of probabilities.

ii. No contempt for non-payment of money

The contempt provisions cannot be used to hold someone in contempt of court who has not complied with an order to pay a sum of money, since imprisonment for debt has been abolished.

In Ontario, the Rules of Civil Procedure provide that a contempt order may only be obtained to enforce an order requiring a person to do an act other than the payment of money.7 However, if you take steps with your assets (including your money) that are in breach of a court order, that could still be considered contempt depending on the circumstances.

iii. Strict evidentiary requirements

The courts have been very strict with respect to the evidence establishing that the respondent was indeed subject to a court order.  Thus an arbitration award which merely recognizes a settlement reached by the parties does not constitute an order, the contravention of which could give rise to contempt of court.8

iv. Charter Protections

Section 7 of the Charter of Rights and Freedoms applies to civil contempt proceedings because they are penal in nature. Contempt proceedings must therefore afford an alleged contemnor “all necessary safeguards”. The proceeding must preserve the principles of fundamental justice by safeguarding the right to be presumed innocent and the right to make full answer and defence.9

Due to the application of the Charter to civil contempt proceedings, an alleged contemnor cannot be compelled to testify.10

v. Personal service

Under Rule 60.11(2) of the Ontario Rules of Civil Procedure, a notice of motion for a contempt motion must be served personally on the contemnor.

vi. Adequacy of Notice

On a motion for contempt the notice of motion must set forth concrete facts of a nature to identify the particular acts alleged to constitute contempt with sufficient particularity to permit the defendant to purge the contempt.11

Things to remember when seeking a contempt order

As shown above, obtaining a contempt order has its challenges in light of the serious nature of the remedy and corresponding procedural protections given to the respondent. A recent successful contempt motion that our office was involved in leads to the following reminders that may be helpful to counsel considering such a motion:

1. Schedule the hearing date with ample time to serve the respondent(s) personally

As stated above, a notice of motion for a contempt order must be personally served. Remember to leave sufficient lead-up time to the hearing of the motion to effect personal service, particularly in instances where the respondent does not have counsel and may be difficult to locate.

2. Be ready to make submissions on the appropriate sanction

The court may or may not schedule a separate hearing for sentencing/sanction in the event that the respondent is found in contempt. In the event that the court does not bifurcate the hearing and your client is successful on the contempt motion, it is advisable to be ready with submissions on the appropriate court sanction, possibly including the custodial sentence that you intend to seek. There is a large range of sanctions available for contempt, including fines, community service, or jail time up to five years (very rare).12

3. File a factum

Given the seriousness of the remedy, it is advisable to file a factum on the contempt motion even if the respondent is unresponsive.

4. Seek substantial indemnity costs

There is a rebuttable presumption that substantial indemnity costs are appropriate where a party is found liable for contempt.13 So don’t forget your costs outline!

Conclusion

Despite the challenges and frustrations that are so often part of dealing with a litigant that disregards court orders, a contempt motion can be an effective way to enforce compliance when handled correctly. We do caution you, however, that contempt proceedings are to be used as a last resort, and as such it is advisable to carefully consider the circumstances of your case with the assistance of knowledgeable counsel before bringing a contempt motion.

 

Peter Askew

Peter is a partner at Wagner Sidlofsky LLP and a member of the firm’s Estate and Commercial Litigation Groups.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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