April 8, 2024

The notion of having an individual cited or declared in contempt of Court is something litigants may hear about, but the nuances of obtaining a contempt order are worth reviewing.

Generally, a motion for contempt may be brought when a person has failed to comply with the terms of a Court order. In particular, Rule 60.11(1) of the Ontario Rules of Civil Procedure, R.R.O. 1990 provides: “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 only on motion to a judge in the proceeding in which the order to be enforced was made.” Contempt orders are not used to force an individual to pay a cost order (there are other remedies for that).

The Rules go on to state that contempt motion materials must be served personally, and 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.

The test for civil contempt is set out in the 2015 Supreme Court of Canada case Carey v. Laiken, 2015 2 SCR 79 (SCC). In that case, the Court held that for a party to be in contempt, three elements must be established: (a) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (b) the party alleged to have breached the order must have actual knowledge of that order; and (c) the party alleged to have breached the order must have intentionally failed to carry out an action that the order compels or intentionally carried out an action that the order prohibits.

A finding of civil contempt is a quasi-criminal offence which carries the possibility of imprisonment, as discussed below. As a result, the moving party bears the onus of proving all elements of contempt beyond a reasonable doubt. If reasonable doubt exists, then the Court will decline to make a finding of contempt (Greenberg v. Nowack, 2016 ONCA 949).

There are situations where the reasons for a breach of a Court order provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the Court order (Auciello v. Yao, 2023 ONSC 5188)

In addition, a contempt order is meant to be coercive, not punitive. The aim is to make the contemnor purge his or her contempt, rather than merely punishing him or her for the past conduct. To that end, and importantly, if a finding of contempt is made, the contemnor will typically be provided with an opportunity to purge his or her contempt. In other words, the contemnor will be given time to comply with the terms of the Court order alleged to have been breached and/or take other steps to purge the contempt.

If the 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. 

A declaration of contempt is a serious remedy, with serious penalties. It is important to be aware of what factors the Court will consider on such a motion, and whether moving for contempt will practically bring about compliance with the Court order in question.