T-1349-86
Selection Testing Consultations International Ltd.
(Plaintiff) (Applicant)
v.
Humanex International Inc., Huma -Res Inc.,
Yvan-Marcel Boily, Claude Lortie, Michel Guay
(Defendants) (Respondents)
INDEXED AS: SELECTION TESTING CONSULTATIONS INTERNA
TIONAL LTD. V. HUMANEX INTERNATIONAL INC.
Trial Division, Rouleau J.—Ottawa, December 4,
1986 and February 20, 1987.
Practice — Contempt of court — Application for order of
committal under R. 2500 inappropriate for contempt determi
nation — Ordinary and summary procedure of R. 319, appli
cable to R. 2500 application, inappropriate in context of
committal for contempt as not affording proper protection —
Person cited for contempt `person charged" and entitled to
protection traditionally offered person charged with criminal
offence — Federal Court Rules, C.R.C., c. 663, RR. 319, 355,
2500, Form 71 — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 11(a).
In the context of copyright litigation, the applicant obtained
an interim injunction against the respondent, Humanex Inter
national Inc.
This is a motion pursuant to Rule 2500, following the
procedure prescribed by Rule 319, to have the Court find the
respondents guilty of contempt of court. The issue is whether
the applicant can proceed by way of Rule 2500 to have the
Court determine contempt and thus avoid the procedure pro
vided in Rule 355.
Held, the motion should be dismissed. Logic requires that the
procedure to be followed is that outlined in Rule 355.
Since Rule 2500 contemplates incarceration—which cannot
be enforced against corporate bodies—as the primary remedy
for contempt, the application must be dismissed as against
Humanex International Inc. and Huma -Res Inc.
Furthermore, the "ordinary and summary" procedure of
Rule 319, which applies to a Rule 2500 application, is totally
inappropriate in the context of committal for contempt of
court. A contempt of court motion is by no means an "ordi-
nary" motion. For such cases, the courts have always insisted
on a quasi-criminal procedure and on all the protections tradi
tionally offered to a person charged with a criminal offence.
In addition, the procedure under Rule 319 does not assure a
person accused of contempt with the usual fairness safeguards,
since it requires the person charged to disclose his evidence and
defence before the onus on the accusor has been discharged.
Also, the calling of viva voce evidence, a right under the
common law, is made discretionary by. Rule 319. And this rule,
which allows for only a brief recital of the alleged contempt
uous act, cannot be reconciled with the fundamental right to
know exactly the case one has to meet in order to present a full
and complete defence. Moreover, it is evident that Rule 2500
was meant only for enforcement proceedings once contempt has
been found.
CASES JUDICIALLY CONSIDERED
APPLIED:
Cotroni v. Quebec Police Commission, [1978] 1 S.C.R.
1048; R. v. Côté, [1978] 1 S.C.R. 8.
REFERRED TO:
Attorney General of Quebec v. Laurendeau (1983), 33
C.R. (3d) 40; 145 D.L.R. (3d) 526 (Que. S.C.); Regina v.
Cohn (1985), 15 C.C.C. (3d) 150 (Ont. CA.).
COUNSEL:
Alfred Schorr for plaintiff (applicant).
François Grenier for defendants (respon-
dents).
SOLICITORS:
Alfred Schorr, Toronto, for plaintiff (appli-
cant).
Léger, Robic & Richard, Montréal, for
defendants (respondents).
The following are the reasons for order ren
dered in English by
ROULEAU J.: By order dated June 20, 1986,
Collier J. granted the applicant an interim injunc
tion against one of the respondents, Humanex
International Inc. In the same order, the learned
Judge dismissed the application for an interim
injunction against the other respondents, Huma -
Res Inc., Yvan-Marcel Boily, Claude Lortie and
Michel Guay.
The applicant now brings a motion pursuant to
Rule 2500 [Federal Court Rules, C.R.C., c. 663]
for an order:
a) Of Committal for contempt of court as against Yvan-Mar-
cel Boily;
b) In the alternative, imposing a fine in the amount of $5,000
as against the said Yvan-Marcel Boily;
c) Making a finding of guilt of contempt of court as against
the defendants, Humanex International Inc. and Huma -Res
Inc.;
d) Requiring the defendants, Humanex International Inc. and
Huma -Res Inc. to pay a fine in the amount of $250,000
each as punishment for contempt of court;
e) In the alternative, requiring the defendants, Humanex Inter
national Inc. and Huma -Res Inc. to give security for their
good behaviour in the amount of $500,000 each;
f) For such further and other disposition as to the Honourable
presiding Judge may appear just.
In support of this motion, the applicant has
served and filed the affidavits of Leslie Reid and
Peter George Donnelly.
The motion came before me at Ottawa, Ontario,
on December 4, 1986.
At the outset of the hearing, counsel for the
respondents raised four preliminary objections as
to the form of the motion. Those objections are:
[TRANSLATION] (1) A motion under Rule 2500 is not the
proper means of determining whether a constructive contempt
of court has been committed.
(2) If Rule 2500 is the proper means of determining whether a
constructive contempt of court has been committed, the motion
is invalid as being definitely inappropriate for Huma -Res and
Humanex.
(3) If Rule 2500 is the proper rule for all the defendants, the
motion is nonetheless inadmissible in the case at bar as it in no
way identifies the offence committed in relation to the injunc
tion issued by the Court.
(4) If Rule 2500 is the proper rule for all the defendants, and is
sufficiently specific, the evidence presented is prima facie
insufficient to meet the standard of proof beyond all reasonable
doubt, or even to establish a prima facie case of contempt.
It was agreed then that the fourth objection
relates to the . merits and hence should not be
debated at this stage of the proceedings.
At the conclusion of the hearing on December 4,
1986, I ordered that the matter be adjourned sine
die to allow:
a) Counsel for the respondents to file and serve
written arguments on the preliminary objec
tions no later than December 12, 1986; and
b) Counsel for the applicant to file and serve his
reply no later than December 31, 1986.
I also ordered that should the parties desire further
oral presentation, they should file a joint applica
tion by January 9, 1987. In default, I had indicat
ed that I would render a decision on the prelim
inary objections.
The arguments and reply on the preliminary
objections have been filed and served. No further
oral hearing has been requested by either party
and I now propose to render my decision on the
three preliminary objections raised by counsel for
the respondents.
The general flavour of this procedural debate
can be gleaned from the following candid proposi
tion: can the applicant proceed by way of Rule
2500 to have the Court determine contempt and
thus avoid the procedure provided in Rule 355?
A careful reading of Rule 2500 contemplates
incarceration as the primary remedy for contempt
and I would without any hesitation dismiss the
application immediately as against Humanex
International Inc. and Huma -Res Inc. The remedy
can certainly not be enforced against corporate
bodies.
At first blush, one would tend to agree with
counsel for the applicant that, having followed
assiduously the procedure set out under Rule 319
and seq. for the bringing of a motion before the
Court, there was no reason not to proceed directly
on the merits of the within motion for committal
pursuant to Rule 2500. Paragraph (2) of Rule
2500 states as follows:
Rule 2500. .. .
(2) An application for an order of committal shall be made
by motion and there must be at least 8 clear days between the
service of the notice of motion and the day named therein for
the hearing. [My emphasis.]
The following is the procedure for the bringing of
a motion before the Court as prescribed by Rule
319:
Rule 319. (1) Where any application is authorized to be made
to the Court, a judge or a prothonotary, it shall be made by
motion.
(2) A motion shall be supported by affidavit as to all the
facts on which the motion is based that do not appear from the
record, which affidavit shall be filed; and an adverse party may
file an affidavit in reply.
(3) The party making a motion shall serve a copy of his
affidavits on other parties with the notice of the motion and an
affidavit filed by any other party shall be served on other
parties forthwith.
(4) By leave of the Court, or of a judge of the Court of
Appeal, for special reason, a witness may be called to testify in
open court, or before a judge of the Court of Appeal, in relation
to an issue of fact raised by an application. [My emphasis.]
I am of the view, however, that such "ordinary and
summary" procedure as outlined in Rule 319 is
inappropriate in the context of committal for con
tempt of court. I say so for several reasons.
Firstly, I agree with counsel for the respondents
when he says in his written notes (page 15) that:
[TRANSLATION] "... it cannot be argued that a
contempt of court motion is an `ordinary' motion.
Committal or substantial fines can be imposed if a
conviction results. Consequently, the courts have
always insisted that a quasi-criminal procedure be
strictly adhered to and that the accused be entitled
to all the protections traditionally offered to a
person charged with a criminal offence."
Secondly, and more importantly, the procedure
under Rule 319 does not assure a person charged
with the alleged contempt of the usual fairness
safeguards. If I accept the applicant's argument
that it strictly adhered to the letter of the law, the
requirements of Rule 319, i.e. an application for
an order of committal when made by a motion,
supported by affidavit "as to the facts on which
the motion is based that do not appear from the
record", and render any order under Rule 2500,
the person charged would be obligated to disclose
by way of affidavit his evidence and ultimate
defence before the onus on the accusor has been
discharged. This is contrary to all principles of
fundamental justice. In fact an alleged contemner
is under no obligation to respond; he may remain
absolutely silent until such time as the onus of
proving beyond a reasonable doubt has been met.
Thirdly, by proceeding by way of Rule 319, it
should be noted that it is discretionary on the part
of the Court to allow viva voce evidence (Rule
319(4)), whereas at common law under contempt
proceedings it was and still remains a right.
Fourthly, the procedure under Rule 319 allow
for only a brief recital of the alleged contemptuous
act. This cannot be reconciled with the principle of
fundamental justice of being deprived of the right
to know exactly the case one has to meet. Whether
contempt of court proceedings are characterized as
criminal or civil, the person charged shall always
be entitled to the unassailable bastion of common
law, that is the right to know the particulars of the
accusation and the right to remain silent until the
accusor has met and discharged the onus.
There appears to be considerable confusion in
the Rules of the Court when comparing the proce
dure set out under Rule 355 and that outlined
under Rule 319 to achieve the result contemplated
by Rule 2500. A cursory reading of Rule 2500(1)
appears to presume an already existing order or
finding of contempt.
Rule 2500. (1) The power of the Court to punish for contempt
of court may be exercised by an order of committal. [My
emphasis.]
I have come to the conclusion that it is evident
that Rule 2500 was meant only for enforcement
proceedings once contempt has been found. Fur
ther, why was it placed in the Rules of the Court
in the enforcement section if it was meant for
purposes other than enforcement?
Rule 2500(6) determines that a writ of attach
ment may issue:
Rule 2500. .. .
(6) By leave of the Court, a writ of attachment may issue
(Form 71) and a writ so issued shall be executed according to
the exigency thereof.
I now reproduce for the benefit of the parties
the exact wording of Form 71:
WRIT OF ATTACHMENT
(Titles of Court and Action—Forms 1 and 2)
ELIZABETH THE SECOND, by the Grace of God of the United
Kingdom, Canada and Her other Realms and Territories
Queen, Head of the Commonwealth, Defender of the Faith.
To the Sheriff of , Greeting:
We command you to attach C.D., so as to have him before
Us in Our Federal Court of Canada, wheresoever the said
Court shall then be, there to answer to Us, as well touching a
contempt which he, it is alleged, hath committed against Us, as
also such other matters as shall be then and there laid to his
charge, and further to perform and abide such order as Our
said Court shall make in this behalf and hereof fail not and
bring this writ with you.
Witness the Chief Justice of Our Federal Court of Canada,
at this day of in the year of Our
Lord, one thousand nine hundred and and in the
year of Our Reign.
Registry Officer
Should the applicant not have been bound in its
prayer for relief to seek a writ of attachment? A
careful analysis of Form 71 commands the appear
ance of the alleged offender to appear before the
Court to answer for his contemptuous behaviour,
which I must assume would have been previously
determined by the Court. This re-enforces my
belief that an application under Rule 2500 cannot
be the proper vehicle for the remedy being sought.
Further President Jacket, as he then was, wrote
The Federal Court of Canada: A Manual of Prac
tice, which is dated March 1971. In the table of
contents he refers to the various chapters and
divisions in the rules of practice and, when refer
ring to Rule 2500 in chapter 22 at page 89 of this
work, he discusses enforcement and advises that
these provisions are to be found in Part VII and
generally within Rules 1900 to 2500.
It would seem to me that logic requires that the
procedure to be followed is that which is outlined
under Rule 355:
Rule 355. (1) Anyone is guilty of contempt of court who
disobeys any process or order of the Court or a judge thereof,
or who acts in such a way as to interfere with the orderly
administration of justice, or to impair the authority or dignity
of the Court. In particular, any officer of justice who fails to do
his duty, and any sheriff or bailiff who does not execute a writ
forthwith or does not make a return thereof or, in executing it,
infringes any rule the violation whereof renders him liable to a
penalty, is guilty of contempt of court.
(2) Except where otherwise provided, anyone who is guilty of
contempt of court is liable to a fine, which in the case of an
individual shall not exceed $5,000 or to imprisonment for a
period not exceeding one year. Imprisonment, and in the case of
a corporation a fine, for refusal to obey any process or order
may be repeatedly inflicted until the person condemned obeys.
(3) Anyone who is guilty of contempt of court in the presence
of the judge in the exercise of his functions may be condemned
at once, provided that he has been called upon to justify his
behaviour.
(4) No one may be condemned for contempt of court com
mitted out of the presence of the judge, unless he has been
served with a show cause order ordering him to appear before
the Court, on the day and at the hour fixed to hear proof of the
acts with which he is charged and to urge any grounds of
defence that he may have. They show cause order issued by the
judge of his own motion or on application must be served
personally, unless for valid reasons another mode of service is
authorized. The application for the issuance of the show cause
order may be presented without its being necessary to have it
served.
(5) The procedure set out in paragraph (4) is without
prejudice to an application for committal under Division I of
Part VII. The two methods of proceeding are alternatives and
when one has been acted on, the other cannot be invoked. The
other provisions in this Rule are without prejudice to the
inherent powers of the Court; and both this Rule and the
inherent powers can be invoked on any appropriate occasion.
An applicant by following this procedure affords
the alleged offender the opportunity to appear
before the Court fully advised of the nature of the
acts which are alledged to be contemptuous, to
remain silent and not disclose his defence until
such time as the onus which rests with the appli
cant has been discharged, and has by right the
opportunity to testify viva voce on his own behalf.
Before concluding, I should like to deal briefly
with paragraph 11(a) of the Canadian Charter of
Rights and Freedoms (being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), which reads as follows:
11: Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific
offence; [Emphasis added.]
Neither counsel for the respondents nor counsel
for the applicant dealt with the Charter at any
length in the motion before the Court. Perhaps this
was because of the tendency of certain courts to
take an unduly cautious approach to the issue: the
Quebec Superior Court and the Ontario Court of
Appeal have arrived at diametrically opposed con
clusions on whether the Charter applies to pro
ceedings for contempt of court. In Attorney Gen
eral of Quebec v. Laurendeau (1983), 33 C.R.
(3d) 40 (Que. S.C.), at page 42—also available in
English at 145 D.L.R. (3d) 526, at page 528—
Rothman J. of the Quebec Superior Court held
that:
This is therefore not an "offence" in the ordinary sense of that
word, nor, in my opinion, in the Charter sense.
A proceeding for contempt ex facie must accord
ingly be excluded from application of the Charter
(at least from the provisions of section 11) because
such a charge does not involve an "offence".
On the other hand, in Regina v. Cohn (1985),
15 C.C.C. (3d) 150, at page 161, the Ontario
Court of Appeal held that a person cited for
contempt of court in facie is charged with an
offence within the meaning of section 11 of the
Charter:
. I am of the view that the citation for contempt of court
constitutes the charging of an offence within the meaning of
s. 11.
In any event, Ido not think I am bound to opt
for either of these schools of thought for the
purposes of the motion at bar. Suffice it to say that
whether contempt of court is an "offence" or not,
there is no doubt that at common law a person
cited for contempt of court is a "person charged".
The decision of the Supreme Court in Cotroni v.
Quebec Police Commission, [1978] 1 S.C.R. 1048,
indeed recognized that this was the position before
the Charter came into being. Thus, the majority of
the Supreme Court spoke of "charges of contempt
of court" (page 1054 of the judgment) and the
minority described the appellant Cotroni as being
"charged with contempt of court" (page 1062). It
is thus clear that, despite the Charter, a "person
charged" enjoyed and still enjoys (since in this
regard the Charter did not alter the law existing
prior to April 17, 1982) a whole range of rights
traditionally recognized by the common law. I will
not undertake to list these rights, but would agree
with de Grandpré J., speaking for a majority of the
Supreme Court in R. v. Côté, [ 1978] 1 S.C.R. 8,
at page 13, that:
... the golden rule is for the accused to be reasonably informed
of the transaction alleged against him, thus giving him the
possibility of a full defence and a fair trial.
It followed from this that failure to observe this
"golden" rule meant the proceedings initiated were
completely void. This is what Pigeon J. of the
Supreme Court emphasized at around the same
time in Cotroni v. Quebec Police Commission
(cited above), when he said at page 1057:
The fundamental rule is beyond question: a vague charge is a
fatal defect.
Professor Jean-Claude Hébert thus properly
observes, in an article on "L'incidence de la
Charte canadienne sur l'outrage au tribunal"
(1984), 18 R.J.T. 183, at page 197, that:
[TRANSLATION] One must conclude, in light of the decisions
of our highest court, that the legal guarantee contained in
section 11(a) of the Charter has been superimposed on that
already recognized by the court as available to any person
charged with contempt of court. [Emphasis added.]
In the case at bar, I am not persuaded that the
procedure followed by counsel for the applicant,
namely a notice of motion under Rule 319, allowed
the respondents to be reasonably informed of the
offence alleged against them, which a fortiori
prevented them from presenting a full and com
plete defence with full knowledge of the facts. As I
had occasion to observe at the start of my reasons,
the right of a person charged to be reasonably
informed of the offence with which he is charged is
one of the cornerstones of our legal system. In the
absence of a procedure safeguarding all the rights
recognized by both the Charter and the common
law as pertaining to a person charged, I have no
alternative but to allow the preliminary objections
of counsel for the respondents as to the form of the
contempt motion, and to dismiss with costs the
applicant's motion for an order of committal for
contempt pursuant to Rule 2500.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.