Contempt of Court Orders

Milne Estate v Milne 2014 BCSC 2423 has a summary of the law relating to how the Courts deal with people who refuse to obey court orders- those in contempt of courtContempt of Court.
It is generally speaking an expensive and not very satisfying process for one civil litigant to try and get the courts to strongly condemn civil contempt of court orders in the form of servious sancions or penalties.
45      Contempt must be proven beyond a reasonable doubt, even in cases of civil contempt: North Vancouver (District) v. Sorrenti, 2004 BCCA 316 (B.C. C.A.) at para. 10 [Sorrenti]
46      As set out in Gorman at para. 28, the elements of civil contempt for breach of a court order include:
(a) the existence of a court order;
(b) the alleged contemnor knew of the existence of the order and its terms; and
(c) the alleged contemnor did one or more acts amounting to the disobedience of the terms of the order.
47      The alleged contemnor must know with precision what he or she is required to do or abstain from doing, based on the wording of the order: Jackson v. Honey, 2009 BCCA 112 (B.C. C.A.) at paras. 12-13. The order alleged to have been breached must be clear, precise, and unambiguous in direction. The alleged contemnor is entitled the most favourable interpretation of the order: Gurtins v. Panton-Goyert, 2008 BCCA 196 (B.C. C.A.) at para. 14 [Gurtins].
48      It is not necessary to prove the alleged contemnor “intended to disobey or flout the order of the Court. The offence consists of the intentional doing of an act which is in fact prohibited by the order”: Sorrenti, at paras. 12, 14. In Topgro Greenhouses Ltd. v. Houweling, 2003 BCCA 355 (B.C. C.A.), at para. 6, the BC Court of Appeal held:
[6] To knowingly breach a court order is to commit a contempt of the court. All that is necessary to establish the contempt is proof of deliberate conduct that has the effect of contravening the order; an intent to bring the Court into disrepute or to interfere with the due course of justice or with the lawful process of the Court is not an essential element of civil contempt: R. v. Perkins (1980), 51 C.C.C. (2d) 369 at 370-71 (B.C.C.A.). The appellant says that his only purpose in entering the plaintiffs’ land and communicating with Mr. Breederland was to advise him of the death of a neighbour. If believed, that would not afford a defence in the face of the appellant’s admitted conduct.
49      The jurisprudence also establishes, however, as argued by the respondent, that the court’s contempt jurisdiction is discretionary and should be exercised with restraint. A key guiding principle for the exercise of the contempt power is that whenever possible, contempt proceedings should be avoided. The contempt power is to be used cautiously and only as a last resort based on the principle of least intrusive means: St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182 (Ont. C.A.) at paras. 40-41 [St. Elizabeth Home Society].
50      In Free Estate v. Jones, 2004 ABQB 486 (Alta. Q.B.), at para. 6, the Court notes:
Despite the contumacious behaviour of the co-respondents, because the contempt here is civil contempt – which does not threaten the proper administration of justice in the same way as does criminal contempt – and because, as between the parties, the Free Estate has the capacity to effect its objective of removing Ms. Jones and [her] co-respondents from the land without invoking the contempt power, the court declines to exercise its jurisdiction to sanction the contempt of Ms. Jones and her co-respondents. The court’s contempt powers must be exercised with restraint to achieve a proper balance between ensuring respect for court orders and needless “piling on” of remedies.
51      The Ontario Court of Appeal in Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.), at para. 3, held that the civil contempt remedy is a remedy of last resort:
Moreover, in our view, the civil contempt remedy should not have been sought in the circumstances revealed by the record. The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed”: see K.(L). v. G.(T), [2006] W.D.F.L. 2571 (Ont. S.C.), at para. 58. See also Fisher v. Fisher, [2003] O.J. No. 976 (S.C.); and Martinez v. Martinez, [1984] O.J. No. 721(Ont. Prov. Ct. (Fam. Div.)).
52      Lastly, in R. v. CHEK TV Ltd. (1985), 23 C.C.C. (3d) 395 (B.C. S.C.), at 405 , aff’d (1987), 33 C.C.C. (3d) 24 (B.C. C.A.):
On the basis of the criteria derived from these authorities I find the respondent liable and guilty of contempt of court. I have done so in full awareness that the jurisdiction of the court to find a person or corporation guilty of contempt is discretionary and that the finding should only be made where there are serious grounds for its exercise and that it “is a weapon to be used sparingly, and always with reference to the interests of the administration of justice”.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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