I previously blogged about orders for contempt and the nuances associated with seeking and obtaining this declaratory relief. This blog will take the discussion a step further and look at what penalties may be imposed upon a contemnor; in particular, the discussion will centre upon the penalty of jail time or a custodial sentence (these terms will be used interchangeably) for civil contempt.
If a contemnor fails to purge his or her contempt, the next step is a hearing to address the matter of a penalty. Rule 60.11(5) outlines the Court’s broad powers in this regard. The Rule states: “In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt, (a) be imprisoned for such period and on such terms as are just; (b) be imprisoned if the person fails to comply with a term of the order; (c) pay a fine; (d) do or refrain from doing an act; (e) pay such costs as are just; and (f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
The following 6 factors are relevant to the determination of the appropriate sentence for civil contempt: (a) the proportionality of the sentence to the wrongdoing; (b) the presence of mitigating factors; (c) the presence of aggravating factors; (d) deterrence and denunciation; (e) the similarity of sentences in like circumstances; and (f) the reasonableness of a fine or incarceration.[1]
While jail time is typically a remedy of last resort, it may required as oftentimes, the payment of money or a fine is not practical or realistic given the contemnor’s past conduct (i.e. ignoring Court orders). Moreover, money paid under Rule 60.11(5) does not go to the moving party, but rather to the Provincial Treasurer.[2]
In the context of contempt in an estate litigation case and the penalties which may be imposed upon estate trustees found in contempt, the Court held in Estate of Paul Penna, 2010 ONSC 6993:
Proper penalties make the public sit up and take notice. The word goes out into the community that the Court will not tolerate disobedience of its Orders. In this case, the “community” is specific as well as general in nature. The specific community is that of estate trustees and other trustees, as well as persons in positions as fiduciaries, persons acting under powers of attorney or other positions of trust. When money held in trust disappears, the person who controls it has a legal obligation to account for its administration, if ordered to do so. Failure to so account is egregious conduct, since executors/trustees/guardians/attorneys all are obliged to keep proper accounts.[3]
By way of further estate litigation example, in Estate of Nordby, 2023 ONSC 821, the Children’s Lawyer obtained an order requiring an estate trustee to pass accounts relating to an estate for which the minor was a beneficiary; he did not do so and was subsequently found in contempt (despite service, the estate trustee did not appear on the contempt motion). The Court sentenced the contemnor to 5 days imprisonment and held:
He is an estate trustee. He has been advised of his obligation to pass accounts and he has ignored that obligation. His actions show a complete disregard to his obligation as an estate trustee and a willful disregard for a court order… I have considered whether a fine is appropriate but recognize that what is at issue here is accounting for funds that were to benefit his grandchildren. As I have no information before me as to the disposition of the estate assets or Mr. Nordby’s financial circumstances, I conclude that a fine is not appropriate.[4]
Generally, the Court has held that the punishment for contempt is intended to reflect denunciation, serve as a disincentive to those who might consider breaching Court orders in the future, and “repair the wound” to the legal system caused when Court orders are ignored.[5] Moreover, while some Courts have tended to punish contempt leniently, the Court in Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic, 2009 CanLII 9423 confirmed that sentences imposed in recent years do not display a tendency towards leniency, especially in cases where the contemnor has engaged in a lengthy course of disobedience and has not purged his/her contempt.
In considering what penalty to seek in civil contempt cases, it is important to consider the 6 factors referred to in Town of Aurora v. Lepp, 2019 ONSC 5430, as noted above, as they relate to the particular facts. The general principles regarding contempt and custodial sentences should also be reviewed. While a custodial sentence will not be ordered lightly, it may well be that there are specific circumstances which demand this extraordinary remedy.
[1] Town of Aurora v. Lepp, 2019 ONSC 5430, at para. 7.
[2] SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, 94 O.R. (3d) 236 (Ont. C.A.)
[3] Estate of Paul Penna, 2010 ONSC 6993, at para. 43.
[4] Estate of Nordby, 2023 ONSC 821, at paras. 30-32.
[5] Target Lumber & Logging Company LLC v. Snow Angel Venture 1 GP Inc. et al., 2019 ONSC 3005, at para. 39, citing Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574 .
