26 Sep 2012

Disobeying a case management order issued by a judge, while considered improper, does not reflect a party’s disrespect for the authority of the courts

By Ashley Kandestin
De Grandpré Chait S.E.N.C.R.L./LLP

In Centre Commercial Les Rivières ltée v. Le Jean Bleu, Justice Kasirer, writing on appeal from a Superior Court judgment declaring a party guilty of contempt of court, identifies exactly what distinguishes this exceptional punishment from an order under 54.1. The Civil Code of Procedure (hereinafter the “Code”), designed to reflect Quebec’s adoption of a judicial culture that embodies both the notion of access to justice and efficiency, has as its natural corollary the goal of limiting excessive pre-trial proceedings and undue delays. One need look no further than to the 2009 adoption of articles 54.1-54.6 – commonly known as the “abuse of procedure” articles – to find practical measures reflective of this spirit.

In the last three years, our judges have heard their fair share of motions under 54.1, and have made great use of their new powers which include ordering the striking of allegations and conclusions, cost advancements, the payment of an adversary’s extrajudicial fees, and the dismissal of whole actions against abusers of 54.1’s tenets. Despite their severity, these remedial tools, when juxtaposed with the more traditional powers found in the same chapter of the Code, entitled “Powers of Courts and Judges”, are fair and proportionate to the offences they resolve. By traditional powers, I specifically refer to article 49, which grants judges the ability to punish for contempt of court..

The litigation between the parties involves the resiliation of a commercial lease after the tenant, Le Jean Bleu, refused to continue rental payments arguing that the occupancy costs imposed by the landlord, Les Rivières, were unreasonably high. Various motions were made before trial whereby Le Jean Bleu sought the disclosure of certain documents in order to make the proper verifications as to the costs being levied from their rent. Access to the documents was continually delayed by Les Rivières, generally for reasons pertaining to confidentially. Finally, Les Rivières was found to be in contempt of court by Justice Matteau, after failing to respect an order to disclose the documents issued by Justice Mongeon a few months earlier.

Contempt of court is a severe and unusual remedy at the disposal of civil courts. It is widely seen to be a remedy of last resort, as a finding of contempt is treated as a criminal offence (sanctions include fines and imprisonment). What distinguishes civil contempt from other available remedies in the Code is its element of public policy, as “the respect for the role and the authority of the courts, one of the foundations of the rule of law, is always at issue[1]”. A punishment of civil contempt does not seek to remedy an infringement upon an opposing party’s rights – as would a punishment under 54.1 – but rather seeks to redress an “infraction contre l’administration de la justice[2]”.

A court sanction should never be disproportionate to the wrong it seeks to correct. A charge of contempt is severe, and an excessively harsh manner of remedying a procedural wrong, especially given that other, codified, remedies exist. Justice Kasirer’s judgment makes clear that a finding of civil contempt is an inappropriate way for courts to sanction violations of case management orders:

“[67] 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. This Court has rightly warned against the notion of contempt being debased if used where more suitable remedies exist. The problem of trivializing the seriousness of contempt through inappropriate or overzealous use – the risk of contempt becoming « galvaudé » – was highlighted by the Law Reform Commission of Canada which noted that « [t]here is a very serious danger that contempt might eventually turn against those using it, and in the final analysis, involving it too frequently might do more harm than good in the interests of justice ».

[68] I am inclined, at least on the basis of the facts of the present case, to see the exhaustion of other remedies less as a formal rule of law and more as a reflection of the proper exercise of judicial discretion undertaken pursuant to article 49 C.C.P. Indeed the discretionary and contextual character of a contempt order would suggest that exhausting remedies is best viewed as a sound judicial policy rather than as an unbending legal rule. A judge seized of a motion for contempt should inquire first whether there are other available remedies suitable for redressing a party’s disobedience of a court order, reserving punitive measures of contempt for quasi-criminal conduct that meaningfully impugns the authority of the courts. While exhausting remedies may not be required as a precondition to contempt in all cases, judges should inquire whether alternative remedies to contempt exist in their evaluation of the proportionality between, on the one hand, the quasi-criminal sanctions for contempt and, on the other, the seriousness of the contemnor’s conduct and intent.

[69] This judicial policy favouring the exhaustion of remedies is particularly apposite in respect of the alleged disobedience of a case management order such as the one that concerns us here.

[70] Certainly no one should have thought that the failure to satisfy the requirements of Mongeon, J.’s case management order was without moment. Such orders must be respected and failure to do so may well invite serious civil sanctions. If Les Rivières failed to produce the documents in R-4 ordered by the judge, the transgression of the case management order would expose the landlord to the risk of the dismissal of its claim for the unpaid rent. Les Rivières would then not be in a position to prove – given the missing justification that it had the burden to show under Article 4 of the lease – that the occupancy costs claimed were in fact due. In that circumstance, as plaintiff, Les Rivières ran the risk of losing its case on the grounds of abuse of process. Other sanctions short of contempt would also have been easy to imagine for the violation of the case management order: the striking of allegations in Les Rivières’ motion to institute proceedings, an unfavourable order as to costs, or even the possible forfeiture of the advantage of funds held on deposit in the Superior Court as stipulated in a safeguard order being among them.

[71] Importantly, in Jean Bleu’s motion under article 54.1 C.C.P. filed in the days following its demand for a special rule in contempt, some of these alternative sanctions were raised. Among the conclusions of that motion, cited above, was what amounted to a demand for the execution of the order of Mongeon, J. which would have given Les Rivières a last chance to release the documents. Jean Bleu itself proposed the dismissal of all or part of the claim for unpaid rent for abuse as a possible consequence of Les Rivières’ failure on August 20, 2009 to meet the terms of the order. Les Rivières should too have understood, in contemplating its letter in response to the case management order, that in the ordinary course of events it would risk sanctions such as a striking of allegations or even the dismissal of its action if it wrongly failed to produce the documents or a proper explanation. These remedies were among what this Court has called the « new remedial tools », better adapted to the new judicial culture, and made available by the legislature in the Code of Civil Procedure to the parties and to courts in order to correct a procedural wrong.

[72] Unlike abuse of process, civil contempt is a mens rea offence. Whatever the character of wrongdoing associated with improper proceedings under article 54.1 C.C.P., it is not the blame of criminal intent required for a conviction of contempt. The failure to abide by principles of fair play and proportionality in litigation may well lend themselves to civil sanctions for impropriety. The advent in particular of a « power to impose sanctions for improper use of procedure / pouvoir de sanctionner les abus de procédure » in articles 54.1 et seq. C.C.P., in the same chapter of the Code as the power to punish for contempt of court, brings the consideration of alternative remedies to the quasi-criminal sanction of contempt into focus. 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 article 54.1 C.C.P. rather than resorting to the quasi-criminal sanction.”

The decision is available here

[1] Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 2 S.C.R. 1065
[2] Denis Ferland and Benoît Emery, Précis de procédure civile du Québec, vol 1. 4th ed. (Cowansville : Éd Yvon Blais, 2003)  p. 116


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