“This motion is brought under Rule 60.11 of the Rules of Civil Procedure R.R.O. 1990, Reg 194. The test for civil contempt was set out in Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at paras. 32-35 (“Carey”):
a. The order alleged to have been breached states clearly and unequivocally what should and should not have been done;
b. The party alleged to have breached the order had actual knowledge of it; and,
c. The party allegedly in breach intentionally failed to do the act the order compels.
The standard of proof to establish civil contempt is “beyond a reasonable doubt,” (Prescott-Russell Services for Children and Adults v. G. (N.) et al. (2007) 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27).
Contempt proceedings are bifurcated so that if a finding of contempt is made, a second sentencing stage for the party in contempt will be appropriate (Carey, at para. 18).
In Carey, Cromwell J. described a court’s contempt power in civil litigation settings (at para. 36),
The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders …As this Court has affirmed, contempt of court cannot be reduced to a mere means of enforcing judgments” … Rather, it should be used “cautiously and with great restraint”: … It is an enforcement power of last rather than first resort.
Cromwell J. confirmed that a mental element or intent is not relevant to the initial determination of whether a party is in contempt, though it may play a role in the second stage of a contempt proceeding, dealing with the sentencing of a party in contempt.
Cromwell J. also confirmed that contempt remains available as a remedy to address non-compliance with a court order even where a party is no longer able to purge the contempt, either because the act that constituted the contempt cannot be undone or because a conflicting legal duty prevents compliance with the order, However, in Carey, the Court considered a context where the party’s own actions made compliance with the court order impossible (in that case, having expended funds that were to be held in trust pursuant to a Mareva order).”