Contempt and the Enforcement of Orders

Contempt and the Enforcement of Orders

July 29, 2020

By Brian Babcock

Obtaining a judgment or court order is only the first step toward satisfaction. The order must still be acted upon or enforced.

In Ontario, the Rules of Civil Procedure provide several mechanisms for collecting on a money judgment. These are distinct from the mechanism for enforcing an order for something other than money – such as an injunction, an order for the delivery of property, or to answer questions on an examination.

Civil Contempt is the courts’ method to enforce orders. There are other varieties of contempt which we will not address here.

The power to find someone in contempt is part of the Court’s inherent power to control its own process. The provisions of the Rules are merely enabling, to set out the method to address the issues.

Since Small Claims Court does not have the inherent powers of a superior court, this sort of contempt cannot be dealt with by a small claims judge (though they can deal with contempt in the face of the court).

Contempt is always a discretionary remedy. The Court of Appeal has recently released a series of decisions which point out that contempt ought not to be used routinely, but rather ought to be reserved for cases where the court wants to express it’s outrage. Contempt is not merely a means to enforce judgments.

The purposes of a contempt order are to:

  • maintain the rule of law
  • maintain court process
  • uphold the dignity and respect for the courts

The elements of contempt are:

  • the order alleged to have been breached “must state clearly and unequivocally what should and should not be done”
  • the party alleged to have breached the order must have had actual knowledge of it
  • there must be an intentional act of “wilful and deliberate conduct” (but not necessarily specific intent to bring court into disrepute)

A “beyond a reasonable doubt” standard of proof applies, which emphasizes how harsh a penalty contempt can be.

Because of the seriousness of a contempt finding, the court must consider whether there is a less coercive measure that is appropriate. The court will consider explanations for the conduct, efforts to comply, and whether compliance was prevented by obstacles not of the accused’s making.  Contempt is a finding “of last resort”.

The leading recent Court of Appeal case, Ruffolo v. David, is a family law case, and family law is an arena where the frequent conflict and high number of self-represented litigants often leads to orders not being followed. This decision is an example of the appeal court exercising a gatekeeper function to control what they perceived to be a trend to rush to court for contempt orders overly eagerly.

The penalty for contempt can range from a reprimand, to a further order to comply, to fines or even a jail sentence.

Although penalties are intended to be coercive not punitive, in a 2019 decision, the Court of Appeal upheld a one year jail term for contempt described as brazen and deliberate. Typical penalties are much less harsh.

It is the possibility of a jail sentence that makes contempt an inappropriate remedy for failure to pay a money judgment. In England, many debtors ended up in debtor’s prison until that practice was abolished after public outcry, in which Charles Dickens’ Pickwick Papers played a leading role. Although in Ontario debtor’s prisons do not exist, a witness on a judgment debtor examination in aid of execution may be held in contempt for refusal to answer questions, or even to produce documents. Even where payment is impossible, if you find yourself in that situation, you must comply with the rules.

If you need help enforcing an order, or are served with a Notice of Motion seeking a contempt order against you, Weilers lawyers have the experience to assist you.