A-69-86
Debora Bhatnager (Appellant)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respon-
dents)
INDEXED AS: BHATNAGER v. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Court of Appeal, Urie, Mahoney and Hugessen
JJ.—Toronto, December 7, 1987; Ottawa, January
8, 1988.
Practice — Service — Order for production of visa file not
complied with — Appeal from trial judgment finding Minis
ters not guilty of contempt of court, based on common law
principles requiring personal service if service to be relied upon
as basis for knowledge of order — Respondents represented
by counsel — Copy of order served on counsel — Appeal
allowed — Trial Judge erred in applying common law princi
ples — Federal Court Rules providing comprehensive code for
manner of giving notice of court orders — Rules not requiring
personal service of order — Rules fully complied with by
pronouncement of order in open court in presence of counsel
and subsequent service — No rebuttal of presumption of
proper service as no evidence solicitor not authorized to act for
respondents Situation of being unable to rely on Rules as
to service on solicitors to be avoided.
Practice — Contempt of court — Order for production of
visa file — File not produced within time constraints Trial
Judge holding "those acting on behalf of" Ministers not
carrying out spirit or letter of order — Directions not given on
behalf of Ministers as required by order Court of Appeal
entitled, under Federal Court Act, s. 52, to render decision
Trial Division should have — Acts for which Ministers
responsible contumacious — Matter referred back to Trial
Judge for imposition of penalty.
This is an appeal from a judgment finding the respondents
not guilty of contempt of court. In the course of proceedings for
mandamus requiring the Minister of Employment and Immi
gration to process her husband's application for permanent
residence, the appellant sought production of the visa file. The
mandamus application was adjourned on consent and the
Associate Chief Justice ordered the respondents to produce the
file to ensure that the appellant could complete a proper
cross-examination of an immigration officer prior to the hear-
ing of the application which was scheduled for September 3,
1985. On August 19 the respondents' counsel was served with a
copy of the order for production. The sole initiative to obtain
the file from the Canadian High Commission in New Delhi,
India was taken by the Canada Employment and Immigration
Commission even though it was under the control of the
Department of External Affairs and the latter was named and
directed in the Associate Chief Justice's order to produce the
file. The original file had not arrived in Toronto on August 29
and the cross-examination proceeded using a photocopy of the
file. It soon became apparent, however, that there were docu
ments missing. The complete file was received in Toronto on
August 30, 1985. A show cause order was issued against the
respondents with respect to their failure to produce the file in
accordance with the order of the Associate Chief Justice. The
respondents were found not guilty of contempt of court. Affida
vits of employees of the respondent Ministers were ruled inad
missible as hearsay evidence as to the state of knowledge of the
respondents regarding the Court order. The Trial Judge also
rejected as hearsay, copies of telexes and the way bill for
shipment of the file from Ottawa to Toronto, holding that they
could not be admitted as business records, the requirements of
section 28 of the Canada Evidence Act not having been met.
The issues are whether service of the order for production on
the respondents' counsel was sufficient notice for the purpose of
Rule 355 to find the respondents in contempt; and if so,
whether the respondents were guilty of contempt of Court.
Held, the appeal should be allowed.
Both respondents were represented by counsel throughout the
proceedings, and counsel was clothed with the requisite author
ity to act on their behalf. The Rules do not require personal
service of an order for production. Normally service on the
solicitor of record pursuant to Rule 308 would suffice. How
ever, the Trial Judge relied upon common law principles to find
that the order must be served personally on the party if service
is later to be relied upon as the basis for knowledge by that
party of the order which he is alleged to have violated. The
Trial Judge erred in resorting to common law principles when
the Federal Court Rules provide a comprehensive code as to
the manner in which notice of court orders is to be effected.
Those Rules were fully complied with so that both the pro
nouncement of the order in open court in the presence of the
duly authorized representative of the respondents, and its sub
sequent service on him constituted notice to them as surely as if
they had been personally present and served. The presumption
of proper notice created by such presence and service could
only be rebutted if the respondents showed that the solicitor
was not authorized to act on their behalf in fact or in law. The
respondents held out and continue to hold out their solicitor as
having the authority to act for them. Ordinary agency princi
ples, and the authority provided by the Rules for the solicitor to
act for and to accept service on behalf of the respondents, is
sufficient to fix the respondents with the requisite notice.
Otherwise, parties could not rely on the Rules in serving
judgments and orders on solicitors of record as being good
service, thus bringing the Rules into disrepute.
It had to be remembered that actions in the Federal Court
are instituted all across the country. The Rules were formu
lated to avoid the difficulty geography imposes in ensuring
service on a busy Minister within time constraints which may
be imposed in a court order. Otherwise, the undesirable situa
tion of solicitors insulating their clients from possible contempt
citations by keeping them in ignorance of the existence of
judgments and orders and of the consequences flowing from
disobedience, could arise.
The Trial Judge correctly ruled as inadmissible affidavits of
employees of the respondent Ministers as to the state of knowl
edge of the Ministers. He also correctly refused to adjourn the
proceedings to allow the respondents to supplement their evi
dence. Having chosen the ground upon which to defend the
show cause motion and having failed on that ground, the
respondents should not be permitted to defend it on a different
one.
The Court of Appeal was entitled to render judgment under
section 52 of the Federal Court Act. Based on the findings of
the Trial Judge that those acting on behalf of the respondents
did not carry out either the letter or spirit of the order, the acts
for which the Ministers were responsible were contumacious in
character.
The matter should be referred back to the Trial Judge for
imposition of penalty as that had not been spoken to in this
Court.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 28.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 52.
Federal Court Rules, C.R.C., c. 663, RR. 2(1),
300(1),(3), 308, 311, 337(8), 355(4).
COUNSEL:
Clayton C. Ruby and Michael Code for
appellant.
John E. Thompson and Michael W. Duffy for
respondents.
SOLICITORS:
Ruby & Edwardh, Toronto, for appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
URIE J.: This is an appeal from a judgment of
Strayer J. of the Trial Division [[1986] 2 F.C. 3]
whereby he found the respondents not to be guilty
of contempt of court with respect to the alleged
failure to obey an order of the Trial Division
requiring production of a file or a copy of a file
relating to the appellant and her husband from the
Canadian High Commission in New Delhi, India.
The facts are important in the disposition of the
appeal and some are in dispute so that it will be
necessary to review them in some detail.
THE FACTS
On June 25, 1980 the appellant, a Canadian
citizen living in Canada, married Ajay Kant Bhat-
nager, a citizen of India. Mr. Bhatnager returned
to India and in July 1980 the appellant applied to
sponsor her spouse for permanent residence status.
According to the evidence, the original sponsorship
undertaking was not forwarded to the Canadian
High Commission in New Delhi. As a result, the
appellant submitted a second sponsorship under
taking in March 1981.
On or about June 5, 1985, the appellant filed a
notice of motion in the Trial Division [[1985] 2
F.C. 315] seeking a writ of mandamus requiring
the respondent Minister of Employment and
Immigration to process Mr. Bhatnager's applica
tion for permanent residence in Canada. On con
sent, the motion, which was stated to be returnable
on June 10, 1985, was adjourned to July 17, 1985
and again, on consent, to September 3, 1985 so
that it might be argued together with related
cases.
In April or May of 1985, counsel for the appel
lant had informed the solicitors for the respondent
that she intended to bring the mandamus proceed
ings. As a result on May 2 and on May 30, 1985,
the Toronto West Canadian Immigration Centre
sent telexes to the New Delhi visa office requesting
that the visa file be forwarded to Toronto. In reply
to the first telex, a copy of which was sent to the
Department of External Affairs, the visa office
replied that in light of the pending mandamus
application the file would be transferred to
Toronto. According to the evidence, normally it
requires 10 to 14 days for a file to be received in
Canada by diplomatic bag. The file did not arrive
within that time in this case.
On July 11, 1985, on the cross-examination by
counsel for the appellant on the affidavit of Lou
Ditosto, an immigration officer, counsel for the
appellant sought the production of Mr. Bhatnag-
er's visa file. Mr. Ditosto's affidavit had been filed
in response to the appellant's mandamus applica
tion. Since Mr. Ditosto could not answer many of
the questions put to him without reference to the
file, counsel for the appellant requested that the
cross-examination be put over to allow time for the
file to be produced and for Mr. Ditosto to review
it. As a result, the mandamus application was
adjourned to a special sitting of the Court on
September 3, 1985, on consent, so that it could be
argued together with other cases raising the same
issues.
On or about July 16, 1985, Jean Brisson, a case
officer employed by the Canada Employment and
Immigration Commission in Ottawa, received a
memo from Yvonne Beaupré requesting that he
obtain the appellant's file from New Delhi. Mr.
Brisson, by telex requested the file "immediately"
and asking the New Delhi office to keep a photo
copy of the file for its own purposes.
On the return of the adjourned mandamus
application on July 17, 1985, the respondent Min
ister of Employment and Immigration's counsel
advised the Associate Chief Justice that the file
had been requested and that he had been informed
that the file had been sent from New Delhi so that
it would be unnecessary to order its production at
that time. The Associate Chief Justice stated that
he was anxious that the delivery of the file be
expedited.
On July 22, 1985, Mr. Brisson received a telex
dated July 19, 1985 from the New Delhi office
which read as follows:
If you ret yr HQ file you will have long and convulted
background plus current status. Present standing is: case was
reopened 6 Feb 84 as result of Robbins decision and sponsors
withdrawal of our MOC refusal.
2. B with LO check was initiated which only now has been
passed 3 July 85. In interim we had determined subject had
provided fraudulent information on IMM8. We wished to refus
sub A9(3) for failing to provide truthful information which
would enable us to conduct meaningful background inquiries a
required A19PI(E)(F) and (G). In view of high profile we
sought HQ guidance on 1 Apr., 16 May, and 17 Jun.
3. With passed B, 3 Jul 85, case processing could be resumed
pending HQ direction which still has not/not been forthcoming.
As a result case pending concurrence for refusal.
4. Per yr instruction. Our file will be transferred.
Since the file had not yet arrived on August 8,
1985, Mr. Brisson sent a further telex to the New
Delhi office. He asked that the file be delivered
within a week's time and for reasons as to why the
New Delhi office had issued a Minister's permit to
Mr. Bhatnager on July 25, 1985 rather than an
immigration visa. He reminded New Delhi
authorities that the case was still before the Court
despite the issuance of the permit.
Mr. Brisson again dispatched a telex to New
Delhi since the file had not arrived by August 14,
1985 advising that "the situation now required
immediate attention". The same day, Mr. Bris -
son's supervisor, Mr. Labelle, also sent a telex
requesting a response from New Delhi before 8:30
a.m. the next morning.
On August 15, 1985 a motion was brought by
the appellant in the Trial Division for an order for
production of the file and, as well, adding the
Secretary of State for External Affairs as a party
respondent because overseas visa officers are his
employees.
On the return of the motion on August 15, 1985
Mr. Thompson of the Department of Justice
appeared as counsel for the respondents. He stated
that he was under the impression that the file was
on its way from New Delhi so that no order was
required. The Associate Chief Justice, however,
accepted the submissions of appellant's counsel
that an order was required to ensure that the file
was produced for the purpose of completing a
proper cross-examination of Mr. Ditosto in time
for the September 3, 1985 hearing. A draft order
was prepared by appellant's counsel for the regis
try office and approved as to form by Mr. Thomp-
son. The order, in part, reads as follows:
AND THAT the Secretary of State for External Affairs be added
as a party Respondent;
AND THAT the Respondents direct their officials to produce the
file or a copy of the file relating to the Applicant, Debora
Bhatnager and her husband, Ajay Kant Bhatnager, from the
Canadian High Commission in New Delhi, India, to Lou
Ditosto, an Immigration Officer of the Respondents, so that the
Applicant may complete cross examination on the affidavits
filed herein, forthwith and in time for the scheduled hearing of
this matter of September 3, 1985.
On August 15, 1985, Mr. Brisson received a
memorandum from the legal advisor to the
Canada Employment and Immigration Commis
sion with respect to the Associate Chief Justice's
order which memo read in part:
[Court ordered] the production of the file immediately and is
recommended that we put some urgency on this matter to avoid
having the Minister put into position of being in contempt of
Court for failing to produce file.
As a result, Mr. Brisson sent the following telex
to New Delhi:
If file is not produced at next hearing scheduled for Sept 3, he
[Secretary of State for External Affairs] and Minister for
CEIC could be cited for contempt. Please ensure that file is
sent by next dip bag to be here next Tuesday, Aug 20.
That telex elicited the following response also by
telex on August 16, 1985:
Further to telcon Davis/Numan Aug 16, have examined file
and am surprised that Eandiott seems unaware Min permit to
facilitate early admission pending Meds was issued to subj on
27 July 85 and mailed same day .... File was to have been
transferred to Ottawa in last weeks bag but was delayed due to
receipt of new attachments. File to be dispatched todays bag.
Interestingly, latest attachments are further detailed and, we
believe entirely credible letters from our unknown informant.
She advises that subj has received permit however he has been
advised by his brother in Cda not/not to use it but to stay and
complete medicals here so that visa can be obtained. Their fear
is that if he enters Cda on permit, his quote wife unquote, who
is apparently anxious to get this marriage of convenience over
with because she is living with boyfriend who she wishes to
marry, will divorce subj before he can be landed. If he ap
proaches us to undertake meds, we will advise you and we
would ask you and those on info line to note that further delay
will be of his making.
We recognize pressure that court decision is placing on you and
we are, therefore, complying but cannot/not emphasize too
strongly our belief this is MOC. Trust that if subj applies to
sponsor his Indian wife and children in a year or two CEIC will
be prepared to take appropriate inforcement action.
On August 19, 1985 representatives of counsel
for the appellant personally served respondents'
counsel, Mr. Duffy of the Department of Justice,
with a copy of the order of the Associate Chief
Justice. Mr. Duffy advised the representative that
he was already aware of the order and had
received a copy from the Registry. He accepted
service on behalf of the respondents.
When the file had not been received by him on
August 20, Mr. Brisson informed Mr. Labelle, his
supervisor, and sent a further telex to New Delhi
reading as follows:
Our first request of July 17 for the Bhatnager file and our
subsequent telexes have not hasten [sic] its delivery although it
was clear that it was urgently required to defend a court action.
We have now been informed that the file has not yet arrived in
Ottawa but might be here Aug. 27. Hearing by the Fed Court
is scheduled for Sept 3, in Toronto thus giving Justice no more
than two (2) clear days to prepare arguments in support of your
action. Further, Applicant may want to cross-examine affidavit
that had to be filed for the Commission. On Aug 15 the Court
did not appear impressed by our handling of this matter thus
making it more difficult for us to seek further delays due to our
tardiness in producing the file. We are not familiar with the
procedure you follow when sending files here but, to date,
except for this case, they have promptly arrived after our
request. Since your telex of Aug 16 lead us to believe that the
file would arrive this week we are wondering why it has not.
Please explain. May we please have your confirmation that the
report requested by OPSA with respect to the issuance of a
permit rather than a visa is with the file. If none has been sent.
Please telex one immediately.
A further telex was sent by Mr. Brisson to New
Delhi on August 21 requesting that a copy of the
file be sent by commercial international courier
with a 48-hour delivery service. New Delhi replied
by telex that it would send its only copy of the file
by courier on the evening of August 22, 1985.
In summary, it is fair to say that during this
time, in spite of the fact that the file was under the
control of the Department of External Affairs, Mr.
Brisson sought no help from them other than
making inquiries with their Mail Room. The
Department of External Affairs itself took no
initiative to obtain the file in time for the cross-
examinations, leaving the initiative entirely to
Immigration. This was in spite of the fact that
External Affairs was receiving copies of the telexes
and despite having been named and directed in the
Associate Chief Justice's order to produce the file.
On August 25 the respondents' counsel phoned
counsel for the appellant and advised her that the
file had not arrived but was expected to arrive by
August 29, the date set for the continuation of Mr.
Ditosto's cross-examination. A copy of the New
Delhi file was received in the Toronto regional
office of the Department of Justice on August 27,
1985. The original file arrived in Ottawa on
August 28, 1985. Mr. Brisson sent the file the
same day by bus to the respondents' counsel in
Toronto.
On August 29, 1985 the original file had not
arrived in Toronto for the cross-examination of
Ms. A. Zografos who had been substituted by the
respondents for Mr. Ditosto. The cross-examina
tion proceeded using the photocopy of the file but
it soon became apparent that it was not a complete
copy and a number of questions put by appellant's
counsel could not be answered. Counsel for the
appellant did not request an adjournment.
The original and complete file was received in
Toronto by Mr. Duffy on August 30, 1985. He
then telephoned appellant's counsel to discuss the
contents of the file. Counsel for the appellant did
not seek to re-open her cross-examination of Ms.
Zografos since there was insufficient time to
recommence the cross-examination, obtain tran-
scripts and prepare for the hearing on Tuesday,
September 3, 1985.
On September 3, 1985 Mr. Justice Strayer
heard the application for mandamus. At the hear
ing, counsel for the appellant requested that a
show cause order be issued against the respondents
with respect to their failure to produce the file in
accordance with the Associate Chief Justice's
order of August 15, 1985. Strayer J. agreed and
the show cause order was issued on September 4,
1985. On October 15, 1985 the learned Judge
granted the application for mandamus with costs
and gave reasons for order.
The show cause hearing before Strayer J. was
held on December 5 and 6, 1985, upon completion
of which judgment was reserved.
By order dated January 22, 1986, Mr. Justice
Strayer held that the respondents were not guilty
of contempt of court. In his reasons he held that
two affidavits submitted by the respondents were
inadmissible as hearsay evidence of the state of
knowledge of the respondents of the order of the
Associate Chief Justice. He also rejected as inad
missible hearsay evidence, copies of telexes
received from New Delhi and the way bill of the
alleged shipment of the file by bus from Ottawa to
Toronto. He held that they could not be admitted
as "business records" as the procedural require
ments of section 28 of the Canada Evidence Act
[R.S.C. 1970, c. E-10] had not been met and
neither party had waived those requirements.
THE ISSUES
There are only two issues taken by the appellant
with respect to the impugned judgment.
First, it was submitted that the learned Trial
Judge erred in law in holding that the respondents
could not be vicariously responsible for the con
tempt committed by their officials and delegates in
failing to produce the file and thereby failing to
obey the order of the Associate Chief Justice dated
August 15, 1985.
Secondly, it was submitted that the learned
Trial Judge erred in law in holding that in the
circumstances of the case, service of the order of
the Associate Chief Justice upon counsel for the
respondents was not sufficient notice for the pur
pose of Rule 355 of the General Rules and Orders
of the Federal Court [Federal Court Rules,
C.R.C., c. 663] to find the respondents in con
tempt of court.
Counsel for the respondents took issue with the
learned Judge excluding from evidence a copy of
telexes from New Delhi and the way bill for
shipment of the file from Ottawa to Toronto.
I would prefer to deal with the second issue first.
Notice to the Respondents
As the foundation for the argument on this
issue, I should first point out that, after a detailed
review of the evidence, the learned Trial Judge
made the following finding:'
I am therefore obliged to conclude, on the basis of the results
achieved with respect to the production of this file, the evidence
as to the inadequate directions given by Mr. Brisson, and the
lack of any evidence of directions having been given on the
behalf of the Department with control of the file, that direc
tions were not given on behalf of the respondents in the manner
required by the order of August 15. Nor was there effective
follow-up to ensure that the intended objective of the order was
achieved. [Emphasis added.]
He then expressed the view that "for a person to
be held personally responsible for his own con
tumacious acts, he must have had some opportu
nity to obey the court order in question or to see
that it was obeyed" 2 i.e. he must have had notice
of the order which allegedly he disobeyed.
Finally, he said: 3
. I believe that from the common law principles it must be
deduced that in such cases the order must be served personally
on the party if service is later to be relied on as the basis for
knowledge by that party of the order which he is alleged to
have violated. It is not, of course, necessary to prove service of
the order at all if one can otherwise prove that he had notice.
But I do not accept that mere knowledge by the solicitor alone
' At p. 18.
2 Atp.19.
3 At p. 20.
of the order is sufficient to affix his client with such knowledge
of the order as to render that client guilty of the quasi-criminal
offence of contempt of court. I believe it would be unjust to find
any party guilty of contempt where he had not been informed
by his solicitor that certain conduct otherwise lawful had been
enjoined by the court.
It should be noted that during the course of
argument before us, counsel for the respondents
admitted, apparently for the first time, that he had
not advised either respondent of the contents of the
order, supplied either of them with copies thereof
nor, of course, had he warned them of the necessi
ty of compliance therewith. It seems extraordinary
that counsel could, in such circumstances, continue
to represent the respondents unless, of course, he
was acting on instructions not to advise them of
any orders made against them.
Rule 311 of the General Rules and Orders of
the Court reads as follows:
Rule 311. (1) Service of a document, not being a document
that is required to be served personally, may be effected
(a) by leaving a copy of the document at the address for
service of the person to be served;
(b) by sending a copy of the document by registered mail in
an envelope addressed to him or the attorney or solicitor, as
the case may be, at his address for service (in deciding
whether to serve under this head. Rule 313(2) should be
considered); or
(c) in such other manner as the Court may direct.
(2) For the purposes of paragraph (1) if, at the time when
service is effected, the person on whom a document is to be
served has no "address for service", as that expression is
defined by Rule 2(1), his address for service shall be deemed to
be one of the following:
(a) in any case, the business address of the attorney or
solicitor, if any, who is acting for him in the proceeding in
connection with which service of the document in question is
to be effected;
(b) in the case of an individual, his usual or last known
address;
(c) in the case of individuals who are suing or being sued in
the name of a firm, the principal or last known place of
business of the firm within the jurisdiction; or
(d) in the case of a corporation, the registered or principal
office of the corporation.
Address for service is defined in Rule 2(1), the
relevant portion of which is paragraph (c) which
reads as follows:
Rule 2. (1) in these Rules, unless the contrary otherwise
appears,
"address for service", for the purpose of any proceeding means
(e) in the case of a party who has an attorney or solicitor on
the record,
(i) the business address of the attorney or solicitor on the
record as shown by the last document filed by him on
behalf of the party that shows his business address, unless
by a special document (which may be entitled "Change of
Address for Service") filed and served on interested par
ties, some other address in the jurisdiction has been desig
nated as the party's address for service, or
(ii) if such document has been filed, the address desig
nated thereby;
Authority for service of a copy of an order not
pronounced in open court, which was the case
here, is Rule 337(8) reading as follows:
Rule 337... .
(8) When a judgment or order is pronounced otherwise than
in open court, or a declaration of the Court's conclusions has
been given under paragraph 2(b), an appropriate officer of the
Registry shall, by letter sent by registered post, send forthwith
a certified copy thereof to all parties.
As was noted earlier, the Associate Chief Jus
tice's order made orally on August 15, 1985 was
not processed in the Court Registry as a written
pronouncement until August 19, 1985. On the
same day the respondents' counsel was served with
a copy thereof. He had, of course, been present
when the order was made orally, agreed in writing
on August 15 to the draft order as to form and
had, in fact, received from the Registry, a copy of
the order after its entry.
The only other Rules to which reference need be
made are Rule 300(1), Rule 300(3) and Rule 308
which read as follows:
Rule 300. (1) Subject to paragraph (2), any person who is not
under disability, whether or not he sues as a trustee or personal
representative or in any other fiduciary capacity, may begin
and carry on a proceeding in the Court by an attorney or
solicitor or in person.
(3) Subject to the other provisions in this paragraph, where
a party has taken any step in a proceeding by a document
signed by an attorney or solicitor, that person shall be deemed
to be the attorney or solicitor on the record for that party until
a change is effected in a manner provided for by this Rule.
Rule 308. A document that by virtue of these Rules is
required to be served on any person need not be served person
ally unless the document is one that, by a provision of these
Rules or by order of the Court, is expressly required to be so
served.
It is not disputed that both respondents were
represented by counsel throughout the proceedings
and that he was clothed with the requisite author
ity to act on their behalf. It is common ground that
there is nothing in the Rules which requires an
order such as that made by the Associate Chief
Justice which gave rise to Strayer J.'s show cause
order, to be personally served on the respondents
so that normally it would be expected that service
on the solicitor of record, pursuant to Rule 308,
would suffice. There are, of course, by way of
contrast, Rules such as Rule 355(4) which state
that personal service of a document is required. 4
Notwithstanding these Rules, Strayer J. was of
the view that:
... from the common law principles .... the order must be
served personally on the party if service is later to be relied on
as the basis for knowledge by that party of the order which he
is alleged to have violated.'
In light of this view it is rather interesting to
note that Mr. Justice Strayer in his show cause
order of October 4, 1985 ordered, inter alia, that
"the respondents named herein are hereby ordered
to attend personally or by agent before this Hon-
' Rule 355... .
(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. The 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. [Emphasis added.]
' At p. 20.
ourable Court" apparently feeling that if the
respondents were represented by counsel, it was a
valid reason within the meaning of Rule 355(4), to
exempt them from the personal service require
ment of that Rule.
That being said, I am of the respectful opinion
that the learned Judge erred in holding that resort
need be had to common law principles to deter
mine whether a finding of contumacious conduct
must be predicated on personal service of the order
said to have been disobeyed. In my opinion, the
Federal Court Rules cited above provide a compre
hensive code for the manner in which notice of
court orders is to be effected. On the evidence
there can be no doubt that those Rules were fully
complied with in this case so that both the pro
nouncement of the order in open court in the
presence of the duly authorized representative of
the respondents, and its subsequent service on him,
constituted notice to them as surely as if they had
been personally present and served therewith. The
presumption of proper notice created by such pres
ence and service could be rebutted by the respon
dents only if they adduced evidence to show that
although the solicitor of record may have held out
that he was authorized to act on their behalf, no
such authority existed in fact or in law. The
respondents adduced no admissible evidence to
enable them to make such an assertion nor, in fact,
did they adduce any admissible evidence that they
had no knowledge of the order in question. More
over, they held out and continue to hold out their
solicitor as having the authority to act for them.
That fact, on ordinary agency principles, coupled
with the authority provided by the Rules for the
solicitor to act for and to accept service of the
order on behalf of the respondents, is sufficient, in
my view, to fix the respondents with the requisite
notice of the order and thereby to provide the
foundation for the Court to determine, on proper
evidence, whether or not the respondents' conduct
was contumacious in relation to the order of the
Associate Chief Justice pronounced on August 15,
1985.
To hold otherwise would make the expeditious
conduct of litigation in this Court difficult to say
the least. When, for example, are the parties en
titled to rely on the Rules in serving judgments
and orders on solicitors of record for the parties as
being good service and when must they anticipate
disobedience or some other possibility making it
advisable to serve the other party personally? Pru
dently, I suppose, if Strayer J. is correct, they
should never rely on the Rules and always serve
the parties. Such a view, it would seem, would
bring the Rules into disrepute to the extent that so
far as service on solicitors is concerned they would
be little short of farcical.
The consequences of holding such a view, par
ticularly in respect of litigation in this Court, are
far reaching bearing in mind that litigation may be
instituted and conducted by parties and solicitors
in all parts of the country. How, practically, can a
solicitor in British Columbia or Newfoundland
hope to ensure personal service of an order made
in any part of those provinces on a Minister in
Ottawa when it is common knowledge how dif
ficult it is, even for those familiar with the govern
mental scene, to gain access to any Minister let
alone one who frequently is absent from the coun
try, within time constraints which may be imposed
by such order? The answer is, of course, he cannot.
Undoubtedly the Rules were promulgated, in part
at least, with such a difficulty in mind. To hold
otherwise enables solicitors to insulate their clients
from possible contempt citations by keeping them
in ignorance, not only of the existence of judg
ments or orders made against them, but of the
consequences flowing from disobedience thereof.
While, clearly, it is desirable for Ministers not to
be burdened with unnecessary information, the
undesirability of departmental officials preventing
litigants from enforcing valid judicial directions by
failing to inform their Ministers thereof, is so
manifest as to require no further comment.
It is equally unrealistic, it seems to me, to
suggest that there is an onus on a party to litiga
tion against a Minister that he should join as
parties the person or persons to whom the Minister
delegates responsibility for carrying out his
obligations.
In passing, it is not without significance that
although apparently counsel before us disagreed
with his view, Mr. Deschenes, the legal advisor to
the Canada Employment and Immigration Com
mission, felt that failing to immediately produce
the departmental file from New Delhi might
"[have] the Minister put into position of being in
contempt of court for failing to produce the file". 6
In finding as I do that the respondents had, by
service of the order on their solicitor, notice there
of, I have not lost sight of the many cases and text
books referred to by counsel, the relevant portions
of which I have read, setting forth the common
law principles to which Strayer J. referred. Some
categorically state that a person cannot be cited
for contempt of court successfully unless he has
been personally served with the order said to have
been disobeyed. Because of my opinion that the
Rules of this Court provide a comprehensive code
for the service of judgments and orders on solici
tors for parties, thereby fixing them with knowl
edge of the contents thereof, the authorities cited
are not all applicable to the situation in this case
so that no useful purpose would be served in
reviewing them for these reasons for judgment.
Vicarious Responsibility for Contempt
It is neither necessary nor desirable for me to
deal with this, the second issue raised on the
appeal, in view of my opinion that the liability of
the respondents for disobedience of the Court
order, arises from the knowledge of their duly
authorized representative thereof so that whether
or not they may be vicariously responsible is not an
issue requiring a decision in this case.
6 Supra, p. 177.
CONCLUSION
Having found that the respondents, on the facts
of this case, were properly before the Court on the
show cause proceeding, it must now be determined
whether, on the evidence, they were guilty of
contempt of court and, if so, how the matter
should be disposed of. Counsel for the appellant
argued, of course, that the evidence of their guilt
was overwhelming and that the matter should be
remitted to the Trial Judge for sentencing.
Counsel for the respondents, on the other hand,
argued that if we found that his clients were
properly before the Court, the matter should be
remitted to the Trial Judge for a new hearing on
the basis, as I understood it, that the respondents
had been denied a fair hearing by reason of the
exclusion of the evidence to show the lack of the
Ministers' culpability. In counsel's submission, to
show that they had not personally been guilty of
contumacious conduct, the respondents should be
given the opportunity to adduce new evidence in
support of that claim at a new hearing. I shall deal
with this submission first and the questions flowing
therefrom will follow.
(a) At the show cause hearing, Strayer J. ruled
as inadmissible the affidavits of the Chief of Staff
of the respondent Minister of Employment and
Immigration and of the Senior Departmental
Assistant in the office of the Secretary of State for
External Affairs, as to the state of knowledge of
the deponent's respective Ministers. He was cor
rect, in my opinion, in so holding. He also held
that it would not
... be just to the applicant to adjourn proceedings further to
allow counsel for the respondents to supplement their evidence
once the hearsay affidavits filed on their behalf had been
rejected.'
Again, I think that he correctly ruled on this
submission. However, we are now asked to remit
the matter to the learned Judge for the same
purpose, i.e., to permit the respondents to adduce
evidence to show why they had not been in con
' At p. 14.
tempt of court. As I see it, the respondents chose
the ground upon which they defended the show
cause motion and having failed on that ground
ought not then be permitted to defend it on a
different one.
(b) Is this Court entitled to render judgment on
the matter or must it be remitted to the Trial
Division for disposition? As I see it if there was
contumacious conduct for which the respondents
were responsible, we are entitled under section 52
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10], to render the decision which the
Trial Division ought to have given and should
exercise that right in this case.
(c) Was the order disobeyed? On that subject
Mr. Justice Strayer had this to say: 8
There is, of course, no evidence that the respondents personally
did anything to comply with the order. I have concluded,
however, that those acting on behalf of the respondents did not
carry out either the letter or the spirit of the order. I accept
that in contempt proceedings one must construe strictly the
order allegedly violated since a question of guilt or innocence is
involved.
Finally, for convenience sake, I repeat what the
learned Judge said in the excerpt earlier quoted: 9
I am therefore obliged to conclude, on the basis of the results
achieved with respect to the production of this file, the evidence
as to the inadequate directions given by Mr. Brisson, and the
lack of any evidence of directions having been given on the
behalf of the Department with control of the file, that direc
tions were not given on behalf of the respondents in the manner
required by the order of August 15. Nor was there effective
follow-up to ensure that the intended objective of the order was
achieved.
It appears clear that those findings show that
the acts for which I have found the Ministers were
responsible were contumacious in character in that
there had not been compliance with the directions
given in the order of the Associate Chief Justice
made on August 15, 1985.
8 At p. 16.
9 At p. 18.
(d) What, then, should the penalty be? Since no
representations were made in this Court by counsel
for any of the parties as to the nature of the
penalty to be assessed, the matter should be
referred back to Strayer J. for imposition thereof,
if any, after appropriate representations by the
parties.
In summary, I would allow the appeal and
would find that the respondents were in contempt
of court for failing to obey the order of the Associ
ate Chief Justice pronounced on August 15, 1985.
The matter should be referred back to Strayer J.
for assessment of penalty therefor. Given the cir
cumstances of the case, the appellant is entitled to
her costs both on the show cause proceedings in
the Trial Division and on her appeal to this Court,
on a solicitor and client basis.
MAHONEY J.: I agree.
HUGESSEN J.: I agree.
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.