Civil Contempt of Court

Contempt of court refers to conduct that defies or disrespects the authority and dignity of the court¹. Such conduct can disrupt the administration of justice and may occur in both civil and criminal contexts. The primary focus of this article is on civil contempt.

The law on civil contempt

Interlocutory versus final orders

At the outset, practitioners should remember that there are two types of court orders, interlocutory and final. The difference of the two will have an impact on the kind of remedies one can obtain for one’s aggrieved clients.

Certain orders, which, though granted at the conclusion of a motion, have the effect of finally disposing of the action or application from which the motion arose, may also be considered a final order. A common example is the order made at the conclusion of a summary judgment motion. The determination as to whether an order is interlocutory or final in nature is also critical when the party that is dissatisfied with it and wishes to appeal it. That is a discussion for another day.

Civil versus criminal contempt

The Court of Appeal decision in Chiang (Re)² summarizes the law on contempt in Ontario and distinguishes civil contempt and criminal contempt, as follows:

1. A person who breaches a court order, other than an order for payment of money, commits civil contempt of court³.
2. Where the breach is accompanied by an element of public defiance or public depreciation of the court’s authority, the contempt becomes criminal⁴. Specifically, the moving party must prove that the accused defied or disobeyed a court order in a public way and with the intent, knowledge, or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court. Satisfaction of the latter, mens rea requirement may be inferred from the circumstances.

Civil contempt and criminal contempt have a common root: only by having the ability to exercise the power of contempt can judges maintain respect for our courts and for the rule of law. Even in purely private litigation, the breach of a court order and the resulting sanction for contempt invariably reflect public disrespect for the authority of the court. As the Honourable Justice McLachlin observed in United Nurses of Alberta v. Alberta (Attorney General), “the rule of law is directly dependent on the ability of the courts to enforce their processes and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt”⁵.

Legal test for civil contempt

The contempt motion is quasi-criminal a proceeding within the context of a civil action. Civil contempt bears the imprint of the criminal law, in that the court may order that the contemnor be imprisoned for such period and on such terms as are just⁶. All three parts of the test for civil contempt must thus be made out to the criminal standard of proof of beyond a reasonable doubt⁷:

1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
2. The alleged contemnor must have had actual knowledge of the order;
3. The alleged contemnor must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels⁸.

The contempt motion

The rules governing motions for contempt orders in Ontario are Rules 60.11 and 60.12 of the Rules.

Procedural requirements and possible penalties under the Rules

To obtain a declaration of contempt, the moving party shall bring a motion before a judge in the proceeding in which the order to be enforced was made⁹. Unlike other motions, the contempt motion must be served on the contemnor personally and not by an alternative to personal service, unless the court orders otherwise¹⁰. A judge may issue a warrant for the arrest of the alleged contemnor if the judge of the opinion that the person’s attendance at the hearing is necessary in the interest of justice and it appears that the person is not likely to attend voluntarily¹¹.

Where a corporation is in contempt, the judge may make an order against any director or officer of the corporation and may grant leave to issue a writ of sequestration under Rule 60.09 against his property¹².

Where the order sought to be enforced is an interlocutory order, the court may, in addition to other sanctions provided by the rules, stay the party’s proceeding, dismiss his proceeding or strike out his defence, or make such other order as is just¹³.

The bifurcated approach

When sanctioning civil contempt, the court’s goal is coercive, with the objective being to compel compliance with court orders¹⁴. Sanctions are typically remedial in nature rather than punitive, allowing the contemnor to purge her contempt by complying with the order.

The granting of civil contempt orders is a serious matter and one therefore subject to stringent procedural and substantive law requirements¹⁵. A bifurcated approach, separating the “liability” phase from the “penalty” phase, is ordinarily taken with contempt proceedings as to allow the court to determine whether the contempt proceeding has the desired effect of enforcing compliance with the order¹⁶.

In the liability phase, even if all three parts of the test for contempt have been proven beyond a reasonable doubt, the court may nonetheless exercise its discretion to decline making such a declaration where it would be unjust to do so¹⁷. This is because courts have consistently discouraged routine use of the contempt power to obtain compliance with court orders, as resorting to such power too easily may ultimately cheapen the role and authority of the very power a finding of civil contempt seeks to protect. Contempt power is therefore wielded by the court cautiously and with great restraint, as an enforcement power of last resort¹⁸.

In the penalty phase, the court’s goal is again first coercive then punitive. The general substantive principles governing sentencing in the criminal law context, including those found in sections 718, 718.1, 718.2, and 724(3) of the Criminal Code, R.S.C. 1985, c.C-45 are applied by analogy when determining the penalty of a contemnor¹⁹. A finding of contempt, together with a fine without incarceration is ordinarily sufficient to gain compliance and restore the authority of the court. Custodial sentences are rare and should only be ordered in cases of serious deliberate disobedience, violence, or wilful interference with the course of justice²⁰.

With respect to the imposition of fines against a contemnor, the court will consider the means of the contemnor in determining the quantum of the fine, as well as whether there has been a lengthy course of disobedience and the whether the contemptuous conduct was motivated by personal gain²¹.

The court’s bifurcated approach effectively means that the liability phase will be dealt with on the first return date, with the penalty phase being adjourned to a later date. As well, analogous to the criminal context, the judge making a contempt declaration in the liability phase will be seized of the matter in the penalty phase²².

Summary

Practitioners should entertain and execute contempt proceedings with utmost caution. Clients are understandably frustrated when their hard-earned orders are disregarded and disobeyed by the parties opposite, wondering what the point of a court order is if it can be flouted with impunity. In such circumstances, counsel may recommend a contempt motion but should also carefully advise the client of the court’s disinclination for the exercise of its contempt power. The competing policy considerations in the law of civil contempt mean that, even in cases of obvious and wilful contempt, the client’s evidence and counsel’s advocacy skills shall be put to a most rigorous test. The quasi-criminal nature of contempt proceedings demands nothing less.

1. Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 (CanLII), at para. 81
2. 2009 ONCA 3 (CanLII)
3. Rule 60.11(1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”)
4. United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901
5. Ibid., para. 931
6. Rule 60.11(5)(a)
7. Carey v. Laiken, 2015 SCC (CanLII), para. 32
8. Ibid., paras 32~35
9. Rule 60.11(1)
10. Rule 60.11(2)
11. Rule 60.11(4)
12. Rule 60.11(6)
13. Rule 60.12
14. Carey, supra, para. 31
15. Sigerson v. Sigerson, 2025 ONSC 212, para. 7
16. Gonzalez v. Singh, 2024 ONSC 4385, para. 10
17. Greenberg v. Nowack, 2016 ONCA 949 (CanLII), para. 46
18. Carey, supra, para. 36
19. Sigerson v. Sigerson, supra, para. 10
20. Ibid.
21. Ibid.
22. Ibid., para. 12