Appeal court provides guidance on contempt of court
The use of contempt of court in civil proceedings will likely diminish over time as judges begin to exercise discretionary powers to redress abuse of process under legislation originally designed to thwart SLAPPs, or strategic lawsuits against public participation, observed the Quebec Court of Appeal.
Contempt of court, an exceptional remedy given its quasi-criminal character and potentially grave sanctions, should be used sparingly and as a “last resort,” particularly since more suitable civil sanctions exist such as running the risk of losing the case on the grounds of abuse of process, dismissal of claims, the striking of allegations to institute proceedings, or even the possible forfeiture of funds held in deposit, advised the appeal court in a 24-page ruling.
“Viewing contempt as a last resort where there is an alternative remedy, better-tailored to the context, has the further advantage of reserving contempt for those cases of egregious behaviour that genuinely threaten the authority of the courts and merit the strong medicine of the quasi-criminal contempt sanction,” said Justice Nicholas Kasirer in a unanimous ruling.
The appeal court grappled with the notion of contempt in civil matters after a lower-court ruling found the owner of a large shopping centre in contempt of court after it failed to satisfy a case management order to disclose documents. The appeal court dismissed proceedings in contempt of court against Centre Commerciales Les Rivières Ltée in Trois-Rivières, which is managed by Ivanhoe Cambridge Inc., one of the world’s 10 largest real estate companies, after it held that there were other available remedies “far better suited” than contempt to redress the alleged failure to comply with the court order.
While the policy of ensuring that all other remedies are exhausted may not be required as a condition to contempt in all cases, Judge Kasirer said that “judges should inquire” on whether alternative remedies to contempt exist “in their evaluation of proportionality” between the quasi-criminal sanctions for contempt and the seriousness of the contemnor’s conduct and intent. Unlike other available remedies, civil contempt is treated as if it were a criminal offence, added Justice Kasirer. And unlike abuse of process, civil contempt is a mens rea offence.
“The exceptional character of the sanctions associated with a conviction for civil contempt required proof of the full mens rea for the offence based on a proper consideration of the nature and the context of the case management order,” said Justice Kasirer. “To do otherwise, in my respectful view, was to deploy contempt too readily in the circumstances.”
The ruling, though it urges judges to shy away from using contempt of court proceedings in all but exceptional cases, will not lead to more cases involving abuse of process, says Gérald Tremblay, who acted as counsel for Les Rivières Ltée before the Quebec Court of Appeal. “The sanctions the Quebec Court of Appeal recommends are drastic,” said Tremblay, the former batonnier of the Barreau du Québec. “When a case is thrown out, that is drastic. So I don’t think this ruling will lead to more abuse of process cases. A contempt of court proceeding creates a parallel proceeding that does not advance the case. It should be used as a last recourse not in a case management proceeding.”
Case management has become part and parcel of a “new judicial culture” in Quebec. The province, like other jurisdictions, has over the past few years embraced a gradual and evolving process in which parties are recognized as exercising a responsibility in the management of their cases and judges are empowered to make decisions to advance proceedings efficiently to trial as a “mean of promoting the social good of access to justice,” noted Justice Kasirer. The new culture, ensconced in the Code of Civil Procedure (Code), was designed to save time and money, limit unnecessarily bellicose discovery, and to open the door to a reconciliation of the parties’ positions.
But the scope of the relatively new amendments reach beyond SLAPP suits to include sanctions for abuse of process, points out Montreal lawyer François Viau, who represented Les Rivières shopping centre. “The amendments were introduced to fight SLAPPs but since then case law has evolved,” explained Viau. “It is a new way for the courts to step into the proceedings, and possibly impose sanctions, to stop improper use of procedure. Given that it is a relatively new section of the Code of Civil Procedure we are going to see it being used more and more.”
In fact, the failure to abide by principles of fair play and proportionality in litigation “may well lend themselves to civil sanctions for impropriety,” particularly since the advent of a “power to impose sanction for improper use of procedure” under section 51.4 of the new amendments, notes Justice Kasirer. “Indeed it is not unlikely that recourse to the contempt remedy will diminish over time as judges exercise their discretionary power to redress abuse under s.51.4 of the Code rather than resorting to the quasi-criminal sanction,” said Justice Kasirer.
