Civil contempt of the court not reserved for the most severe cases

The Supreme Court of Canada recently refused an application for leave to appeal from an Alberta Court of Appeal judgment in Oommen v Capital Region Housing Corp. (Oommen).

The court in Oommen upheld the chambers judge’s decision finding the plaintiff to be in civil contempt of the court and ordering him to pay a $1,000 fine as well as costs for the civil contempt application on an accelerated basis. 

Background

In 2008, the self-represented plaintiff, Paul Oommen, filed an action against the defendant, Capital Region Housing Corporation, seeking damages for property losses and personal injury as a result of an alleged theft.

In 2014, the defendant brought an application before a master to compel the plaintiff to produce various undertakings arising from questioning for discovery in 2013. The master ordered the plaintiff to provide a complete answer to the undertakings on or before December 4, 2015 (the Master’s Order).

On December 4, 2015, the plaintiff provided documents to the defendant’s counsel. Upon review of the documents, the defendant filed an application to have the plaintiff declared in civil contempt for failing to comply with the Master’s Order.

Chambers’ decision

In chambers, the plaintiff “reluctantly agreed” he had failed to do what was required under the terms of the Master’s Order and the chambers judge found the plaintiff to be in civil contempt of court. While the chambers judge did not find that the plaintiff’s conduct could be characterized as “flagrant” or “aggravating,” it was found to be “deliberate and wilful.”

The chambers judge concluded that both general and specific deterrence were required in the circumstances and ordered a $1,000 fine payable at the conclusion of the action. A new deadline to comply with the Master’s Order was set, failing which the matter would be set down peremptorily for an application to strike the plaintiff’s statement of claim. The chambers judge also ordered the plaintiff to pay the costs of the civil contempt application on an accelerated basis.

Decision on appeal

The Court of Appeal upheld the lower court decision and dismissed the appeal. In reaching this decision, the court addressed three issues:

• Whether the chambers judge erred in finding the defendant met the burden of proof necessary to establish that the plaintiff was in civil contempt. The court referenced Rule 10.52(3)(a)(i) and outlined the three elements stipulated by the Supreme Court of Canada to establish civil contempt: (i) clarity, (ii) knowledge, and (iii) intent to disobey. The court found the terms of the Master’s Order were clear, the plaintiff was aware of the terms, and the plaintiff intended to disobey the terms. The court held it was satisfied the defendant had proven the three elements to establish civil contempt.

• Whether the chambers judge’s conduct constituted an abuse of process or, alternatively, created an apprehension of bias. The court reviewed the transcript from the chambers proceeding and held there was no substance to the argument that there was an abuse of process or an apprehension of bias.

• Whether the award of costs was unreasonable. The court held it is clear law that a chambers judge has broad discretionary powers in awarding costs. The court found the chambers judge did not proceed arbitrarily nor on the basis of a wrong principle or an erroneous view of the facts. The court dismissed this ground of appeal, noting the award of costs appeared “eminently reasonable.”

Take-away

We have previously reviewed civil contempt in our legal update that considered 336239 Alberta Ltd. v Mella (Mella). In Mella the defendant was sued for fraudulent misappropriation of funds. After failing to comply with two contempt orders, he was imprisoned for three months. The legal update concluded by asking whether courts would order similar punishment for conduct that was less severe than what had occurred in Mella.

Oommen suggests there is a spectrum of penalties that may be ordered when a party is found to be in civil contempt of the court. In Oommen, the court found that an order of fines and costs was an appropriate deterrent and punishment based on the plaintiff’s conduct.

Oommen may be of use to parties dealing with adverse parties who refuse to comply with court orders, in that it appears contempt orders are not reserved for only the most severe situations. If a party fails to act in accordance with a court order, applications for civil contempt may be used as a tool to enforce compliance, punish the contemptuous party, or even have the action struck or otherwise summarily dispose of the action.

The authors wish to thank articling student Hannah Buckley for her help in preparing this legal update.