This blog will act as a “part 2” to Joanna Lindenberg’s previous blog post about contempt orders found here, and will serve as a broad overview on punishments for civil contempt.
When someone does find themselves in the ill-advised position of being cited or declared as in contempt of Court for disobeying a Court Order and failing to purge their contempt, a judge may order that a 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.[1]
Practically, there are four punishment options available: no punishment (usually where the contempt has been purged); a suspended sentence (perhaps conditional upon some act or event occurring); a fine; or imprisonment.
The big question then becomes, what is the appropriate sentence?
The factors relevant to the determination of the appropriate sentence for civil contempt include:
- The proportionality of the sentence to the wrongdoing;
- — a sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender
- The presence of mitigating factors;
- The presence of aggravating factors;
- — a sentence should be increased or reduced to account for aggravating or mitigating factors surrounding the contempt or the contemnor
- Deterrence and denunciation;
- — sentences should denounce unlawful conduct, promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders;
- The similarity of sentences in like circumstances; and
- — a sentence should be similar to sentences imposed in other comparable cases;
- The reasonableness of a fine or imprisonment.[2]
- — the court should consider whether a sanction other than imprisonment will achieve the objective of restoring the Court’s dignity and authority.[3]
In contrast to sentencing for criminal contempt, the main objective of sentencing for civil contempt is to coerce the contemnor (person in contempt) to comply with the Orders that they have breached. Because of this objective, imprisonment in civil cases is generally rare, as it may be more difficult for the person to comply with the Court Order while incarcerated. The secondary objective of sentencing in the civil context is punishment aimed at achieving both specific and general deterrence and denouncing the conduct in question.[4]
One of the more commonly imposed punishments in cases of civil contempt is a fine in the range of $1,500 – $5,000.[5] Although imprisonment is rare, as mentioned above, it is certainly not unheard of. While imprisonment is ordinarily a sanction of last resort, it may be appropriate where there has been a more repeated and serious record of non-compliance.[6]
Examples of when imprisonment was deemed as an appropriate punishment on the facts of the case include the following, among others:
“In Cellupica v Di Fuilio, the court stated that the terms of imprisonment can vary anywhere from 5 days to 12 months. In Mercedes-Benz, the penalty was 5 days imprisonment where the contempt was finally purged on the eve of the hearing, while in Kopyto, it was 10 days where the defendant did attend an examination that he was ordered to attend but did not bring all of the documents that were required to be brought. On the other side of the spectrum, in Chiang (Trustee of) v Chiang, the defendants received a sentence of 12 months imprisonment where they engaged in flagrant and pre-meditated breaches of orders flowing from two full- length trials, while in Sussex Group, the defendant received 6 months for deliberate and repetitive contempt.”[7]
Where imprisonment is not an appropriate punishment but something more than a fine is needed (for example, where the contemnor does not have the funds to pay a fine and it would likely remain unpaid), the Court may impose a conditional sentence on the contemnor. This punishment may be appropriate and proportionate in circumstances where the Court is seeking to reinforce the gravity of the contemnor’s behaviour while at the same time securing their compliance with Court Orders.[8]
As neatly summarized in Estate of Paul Penna, 2020 ONSC 6993 at paragraph 43:
“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.”
Punishments for a finding of civil contempt can vary widely, and a determination of the appropriate sentence will be largely dependent on the specific facts of the case and the conduct of the party found in contempt.
[1] Rules of Civil Procedure, RRO 1990, Reg 194, rule 60.11(5).
[2] Thrive Capital Management Ltd. v. Noble 1324, 2021 ONCA 722, at para 19.
[3] The Law Society of Upper Canada v. Hatzitrifonos, 2018 ONSC 3719 (“Hatzitrifonos”), at para 9.
[4] Hatzitrifonos, at paras 7-8.
[5] Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, at para 108.
[6] Chiang (Re), 2009 ONCA 3, at para 90; Target Lumber & Logging Company LLC v. Snow Angel Venture 1 GP Inc. et al., 2019 ONSC 3005, at para 42.
