Montreal blue collar union fined $100,000 for contempt of court

Montreal’s blue collar union and its controversial president and executives were sentenced to pay $103,000, the maximum fine allowable, for contempt of court after organizing an illegal one-day strike in spite of an injunction issued by a labour tribunal the previous day.

The stern ruling, one of only a handful over the past decade that have found Quebec unions guilty of contempt of court, is intended to send a harsh warning to the labour movement that the courts will not tolerate willful blindness, according to labour lawyers.

“The respect of an order from the Quebec Labour Relations Board is paramount in a democratic society,” said Quebec Superior Court Judge Michel Déziel after agreeing to a joint recommendation made by both sides of the case over the amount of the fine. “The actions taken by the union and its president cannot be tolerated and must sanctioned severely.”

Labour lawyers remain unconvinced however that the substantial fine will have much of an impact on unions. “Time will tell if the union will have understood the message,” remarked Louis-Philippe Bourgeois, a Montreal labour lawyer with Dunton Rainville. “In the past, awards of damages against a union following an illegal strike have had much more of an impact than fines for contempt of court.”

Even Nathalie-Anne Béliveau, a Montreal employment and labour lawyer with Fasken Martineau DuMoulin LLP who successfully plead the case, is hedging her bets. “It’s a harsh decision, with a hefty fine, and perhaps it will lead unions to ask questions about willful blindness.”

In late 2015, amid bitter contract negotiations between the City of Montreal and the blue-collar union, the city discovered that the union was planning to hold a “special general assembly” during work hours. The city petitioned the Quebec Labour Relations Board, now known as Administrative Labour Tribunal, for an injunction against the assembly, which it obtained. The union nevertheless forged ahead with the assembly.

In its defence the union and its executives asserted that they never received the notice of the injunction. But Judge Déziel dismissed the argument. Evidence revealed that the city had emailed and faxed copies of the injunction to the union and its executives. Further, a bailiff left a copy of the injunction in the union’s office, and several media outlets reported news about the injunction. Judge Déziel also noted that the union and its executives should have known from past legal battles that the city would have sought an injunction against the assembly during work hours. And that’s aside from the evidence culled from social media postings and out-of-court admissions made by the president, Chantal Racette.

“I believe that the union underestimated the evidence of actual knowledge,” said Béliveau. “They relied on the importance of receiving notice of the injunction personally and on personally receiving papers by the bailiff.  This case demonstrates that actual knowledge can be achieved through other means. That’ll like compel unions to adopt other strategies.”

Judge Déziel found in Montréal (Ville de) c. Syndicat des cols bleus regroupés de Montréal (SCFP, section locale 301) 2016 QCCS 5052 that the union and its executives acted with willful blindness by “turning a blind eye” to the existence of the injunction so they could plead that they had no knowledge of the court order. Heeding guidance from the Quebec Court of Appeal in Chartier c. Chamandy 2016 QCCA 501, Judge Déziel underlined that an “absence of intention” to disobey a court order is not a means of defence. In other words, a party that intentionally fails to respect a clear injunction that they knew about is sufficient evidence to prove mens rea.

“It is well established by jurisprudence that in matters dealing with contempt of court a party cannot plead that they had no intention of committing an offense,” noted Claude Leblanc, a Quebec City labour lawyer with Philion Leblanc Beaudry Avocats. “It is not like in criminal law where the court attempts to decipher intention.”

Following recommendations made by both parties, Judge Déziel ordered the union and its president to each pay a $50,000 fine, and three other union executives $1,000 each. It is not clear whether Racette will pay the fine herself or whether the union will cover it. Jacques Lamoureux, the union’s legal counsel, declined to comment. Judge Déziel ordered that $50,000 of the total amount of the fines be donated to Accueil Bonneau, a charitable organization based in Old Montreal that helps the homeless. The balance will be paid to the Fonds consolidé du revenu du Québec, a provincial government organization that normally handles fines levied by Quebec courts.

“It does not happen often nowadays for unions to be found guilty of contempt of court,” said Leblanc who represents unions. “Today unions or union representatives do not need this decision or others to remind them that they cannot overlook the conclusions rendered by a court. These situations are the exception.”

This story was originally published in The Lawyers Weekly.

Former student leader acquitted of contempt of court

A former Canadian student activist best known for his role during the 2012 Quebec student protests won an appeal reversing his contempt of court conviction after the Quebec Court of Appeal held that individuals have the right to hold strongly held convictions even in the face of a court order.

Gabriel Nadeau-Dubois, the former spokesman of the major student organization CLASSE, was found guilty three years ago of inciting students during a television interview to strike and ignore a court order that guaranteed students access to their classrooms during the student conflict in the spring of 2012 when thousands took to the streets to protest planned tuition fee increases. He was sentenced to 120 hours of community service, which was thrown out.

“Now we have a ruling which says that one of the things to be considered when it comes to verbal contempt of court is whether freedom of expression is threatened, and it is particularly important in matters where a person expresses disagreement with a judgment,” said Julius Grey, a leading civil libertarian and human rights advocate, who represented the Canadian Civil Liberties Association which was an intervenor in the case. “That is a major achievement, and extremely important.”

In its 17-page ruling in Nadeau-Dubois v. Morasse 2015 QCCA 78, the Quebec Court of Appeal underlines the exceptional nature of contempt of court procedures, stressing that it is a legal remedy that should be used “sparingly.” In a case of civil contempt, the appeal court reiterated that certain elements must be established beyond a reasonable doubt: the terms of the order must be clear and unambiguous, proper notice must be given to the contemnor of the terms of the order, there must be clear proof that the contemnor intentionally committed an act prohibited by the terms of the order, and mens rea must be proven. While the order was clear and unambiguous, none of the other elements were proven in Nadeau-Dubois’ case. The appeal court held that it was not proven, “let alone proved beyond any reasonable doubt,” that Nadeau-Dubois knew about the injunction at the time of the interview. The appeal court noted that the injunction was not served to him personally and that he was not aware of its contents or scope. “Even if such knowledge had been proved, the appellant should nevertheless be acquitted because it was not demonstrated that he violated the order,” wrote Quebec Court of Appeal Justice Jacques Dufresne in a unanimous ruling.

The appeal court held that Nadeau-Dubois neither encouraged civil disobedience nor anarchy but rather exercised his right to freedom of expression by publicly defending his controversial position. His “strong encouragement” during the interview to maintain pressure tactics through picketing did not constitute a violation of the order, added Justice Dufresne. “The right to inform as many members of the public as possible of one’s strongly held convictions in a conflict falls within the scope of freedom of expression as protected by the Canadian Charter of Rights and Freedoms and the (Quebec) Charter of human rights and freedoms, as well as the underlying right to information,” said Justice Dufresne in a key passage that will likely cited by lawyers defending individuals accused of civil contempt.

The appeal court decision is reassuring because it makes a clear distinction between incitement to civil disobedience of a court order and public disagreement with a court decision, said Pierre Trudel, a law professor with the Public Law Research Centre at the Université de Montréal. In order for the courts to conclude that an individual incited civil disobedience of a court order, the remarks must be clear and unequivocal, added Trudel. “If the lower court ruling would have been upheld, it would have created a dangerous precedent that would have limited the right to freedom of expression because it implied that publicly disagreeing with a judgment is tantamount to inciting civil disobedience of a court order, said Trudel.

The ruling also warns that in cases where one is accused of making remarks that infringe a court order, the courts must be even more prudent to infer incitement, noted Rebecca Laurin, a Montreal lawyer who helped to successfully defend Nadeau-Dubois. For a person to be found guilty of contempt of court, the person must have committed an illegal act (actus reus) and had the required state of mind (mens rea) for the criminal offence. Both elements of the offence, the actus reus and the mens rea, must be proven beyond a reasonable doubt, added Laurin. “The appeal court ruling states that the courts must be even more prudent in such cases because the actus reus will be demonstrated by the interpretation of the remarks, and opinions are protected by the freedom of expression provisions in the Charter and the Quebec Charter,” said Laurin. “Interpreting the remarks too liberally risks paralysing the right to freedom of expression.”

But Maxime Roy, who represented Jean-François Morasse, a student who lodged the complaint that Nadeau-Dubois encouraged students to ignore the court injunction, forcefully argues that the ruling has created a “perilous precedent” that will make it far more difficult to find someone guilty of contempt of court. “This is not a case about freedom of expression but incitement,” said Roy, a Quebec City criminal lawyer with Thibault, Roy Avocats. “The ruling has given weapons to people to be more easily acquitted. It is a poorly founded judgment that runs against jurisprudence. Freedom of expression does not allow to acquit someone who incites (others) to not respect a court order.

“I have the impression that the appeal court reappropriated the facts, the trial. In my opinion, there was no error of law in the decision of the judge of first instance. The role of an appeal court is not to change the verdict because they think it should have been something else. That’s what I think they did.”

Morasse intends to file an application for leave to appeal before the Supreme Court of Canada.

This story was originally published in The Lawyers Weekly.

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.

As part of this new culture, the Quebec government sanctioned on June 2009 “An Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate, Canada’s only anti-SLAPP legislation. SLAPPs are lawsuits, usually defamation actions, initiated against individuals or public interest groups to stifle criticism. The purpose behind SLAPPs is to limit the freedom of expression of the defendants by resorting to the courts to intimidate them and deplete their resources.

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.