Canadian Transit Co. v. Parent et al.
Indexed as: Canadian Transit Co. v. Parent
67 O.R. (2d) 187
 O.J. No. 2039
District Court of Ontario
December 16, 1988.
Constitutional law -- Courts -- Motion in District Court requesting punishment of defendants for criminal contempt because of non-compliance with injunction -- Supreme Court having exclusive jurisdiction to punish for criminal contempt committed ex facie -- Constitution Act, 1867, ss. 96, 129.
Contempt of court -- Jurisdiction -- Motion in District Court requesting punishment of defendants for criminal contempt because of non-compliance with injunction -- Supreme Court having exclusive jurisdiction to punish for criminal contempt committed ex facie -- Constitution Act, 1867, ss. 96, 129 -- Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 35(2).
The defendants did not comply with an injunction which ordered them not to enter upon the plaintiff's property or to use its premises. The defendants held a rally on that property despite the injunction. The plaintiff then brought a motion that the defendants be held in criminal contempt for their wilful refusal to comply with the order.
Held, the motion should be stayed. The matter should be referred to the Attorney-General with the request that he make the proper application to the Supreme Court.
The allegation in the motion, if true, went beyond civil contempt and amounted to criminal contempt, for the relief requested was punitive in nature and the court itself, in a public way, had been treated in such a manner as to bring the administration of justice into scorn. The District Court has no jurisdiction to punish for criminal contempt committed ex facie as that is within the exclusive jurisdiction of the Supreme Court of Ontario. It may be referred to that court by the District Court for enforcement. Section 35(2) of the Courts of Justice Act, 1984, S.O. 1984, c. 11, which permits the District Court to punish wilful contempt of or resistance to its process, is a valid legislative enactment of the provincial legislature in the area of civil contempt. It gives the District Court the power to punish for civil contempt committed ex facie to ensure compliance with its valid orders and directions.
Canadian Broadcasting Corp. v. Cordeau (1979), 101 D.L.R. (3d) 24, 48 C.C.C. (2d) 289,  2 S.C.R. 618, 14 C.P.C. 60, 28 N.R. 541 sub nom. C.B.C. v. Quebec Police Com'rs, folld
Other cases referred to
Tony Poje v. A.-G. B.C.,  2 D.L.R. 785, 105 C.C.C. 311,  2 S.C.R. 516, 17 C.R. 176; Canada Metal Co. Ltd. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585, 48 D.L.R. (3d) 641, 19 C.C.C. (2d) 218; affd 11 O.R. (2d) 167, 65 D.L.R. (3d) 231, 29 C.C.C. (2d) 325; Reference re Jurisdiction of Magistrate's Court (Que.) (1965), 55 D.L.R. (2d) 701,  S.C.R. 772; R. v. Vermette (1987), 38 D.L.R. (4th) 419, 32 C.C.C. (3d) 519,  1 S.C.R. 577,  4 W.W.R. 595, 77 A.R. 372, 52 Alta. L.R. (2d) 97, 57 C.R. (3d) 340, 74 N.R. 221
Statutes referred to
Constitution Act, 1867, ss. 91(27), 96, 129 (amended by the Statute of Westminster, 1931 (U.K.), c. 4)
County Courts Act, C.S.U.C. 1859, c. 15, s. 23
County Courts Act, R.S.O. 1877, c. 43, s. 33
County Courts Act, R.S.O. 1887, c. 47, s. 33
County Courts Act, R.S.O. 1897, c. 47, s. 45
County Courts Act, S.O. 1910, c. 55, ss. 35, 48
County Courts Act, R.S.O. 1914, c. 59, s. 35
County Courts Act, R.S.O. 1927, c. 91, s. 32
County Courts Act, R.S.O. 1937, c. 103, s. 32
County Courts Act, R.S.O. 1950, c. 75, s. 33
County Courts Act, R.S.O. 1960, c. 76, s. 32
County Courts Act, R.S.O. 1970, c. 94, s. 27
County Courts Act, R.S.O. 1980, c. 100 (repealed 1984, c. 11, s. 168), s. 27
Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 35(2)
Judicature Act, R.S.O. 1887, c. 44
Revised Statutes of Canada, 1886, Vol 2, App. I
MOTION for an order that the defendants are in criminal contempt of court.
T. Crljenica, for plaintiff.
R. Colautti, for defendants.
MCMAHON D.C.J.:-- This matter was brought before the court by way of motion on November 22nd requesting an order that:
Don Dube Jr.
are in contempt of court for their wilful refusal to comply with the order of the Honourable Judge Kenneth G. Ouellette dated December 30, 1987, in that on or about 1:30 p.m. on Saturday, January 2, 1988, each individual named herein entered upon the property of the plaintiff Canadian Transit Company and further did interfere with the plaintiff's operation and use of its premises known as the "Ambassador Bridge" contrary to the said order.
It also requests an order that Gary Parent wilfully refused to comply with the order of the Honourable Judge Kenneth G. Ouellette dated December 30, 1987, in that he failed to advise or take reasonable steps to advise other persons to comply with the order of Judge Ouellette as requested by the said order.
The motion requests that the named persons be committed to jail for a period of 30 days for his or her contempt or such other penalty as this court may deem just.
It would not be proper for this court at this point to dwell unduly on the factual situation that gives rise to the application since some of the allegations may be in dispute.
It may however safely be recorded for the purpose of this decision the following facts.
In December of 1987 or earlier, Mr. Parent, the president of the Windsor District Labour Council, Mr. Girard, the president of Local 144 Canadian Automobile Workers and others formulated the Essex County-Windsor Coalition against Free Trade. As the name might suggest the organization was and is passionately opposed to the pending free trade agreement between Canada and the United States. On December 14, 1987, the formulation of this group was announced at a press conference. A rally was organized to take place on January 2, 1988, as a means of speaking out against the free trade agreement. This rally was intended to take place on the property of the Canadian Transit Company, the owner and operator of the Ambassador Bridge, as a symbolic gesture. This bridge is a major link between the City of Windsor and the City of Detroit and is used mainly by vehicular traffic both private and commercial and to a minimal extent by pedestrian traffic. Together with the bridge spanning the Detroit River there is the plaza area on which are located toll booths, administration buildings, customs booths and buildings for use by Canada Customs and Immigration. The president of Canadian Transit Company refused to permit the property to be used for the purposes of the rally. There is some question raised in the responding material concerning Mr. Parent's attempts on January 2nd, to direct the rally from the bridge property.
On Wednesday December 30, 1987, an ex parte motion was made to the Honourable Judge Kenneth G. Ouellette for an injunction enjoining and prohibiting Mr. Parent, Mr. Girard and any other persons having knowledge of the order from entering onto the premises of Canadian Transit Company for the purpose of holding a gathering or a rally. It also prohibited advising, counselling, suggesting or recommending such action. Other paragraphs in the order were to a similar effect.
On January 2, 1988, the rally was held. At that time copies of the injunction were posted on the bridge property and announcements were made from police vehicles by loud speakers advising the gathering of the issuance of the injunction and its effect. Despite this a crowd estimated by various sources from 1,000 persons to 2,000 persons marched onto the property and continued to the centre of the bridge over the Detroit River to the international border.
It is this factual situation which give rise to the application before this court on November 22, 1988. Upon reading the material in the motion record this court decided that the allegation had gone beyond mere civil contempt and amounted, if true, to criminal contempt and counsel for the applicant Canadian Transit and the defendants were so advised.
The distinction between civil and criminal contempt in many instances is difficult to determine.
In Robert J. Sharpe's text, Injunctions and Specific Performance (Toronto, Canada Law Book, 1983), the author at p. 495 states:
At one time much emphasis was placed upon the distinction between civil and criminal contempt. The leading Canadian case dealt with a protracted labour dispute. The parties to the action had actually settled their differences and the court itself had instituted contempt proceedings because there had been a flagrant and well-publicized breach of an injunction. The Supreme Court of Canada adopted a textbook definition of criminal contempts as being those "which tend to bring the administration of justice into scorn ...".
In other words where contempt involves a public injury or offence. The case referred to by the learned author is Tony Poje v. A.-G. B.C.,  2 D.L.R. 785, 105 C.C.C. 311,  2 S.C.R. 516 (S.C.C.).
In considering this case and other authorities, I find that the two elements necessary to constitute a criminal contempt are:
(1) That the relief requested is punitive in nature as opposed to being coercive as in this case in civil contempt. The court is not being asked to protect the rights of one party as against the other and to enforce those rights. The courts is being asked to punish the offender for a breach of the court order. In this case the court is not being asked to coerce the defendants from continuing to occupy the bridge premises. In fact the action giving rise to the injunction was terminated on January 6, 1988, since any continuation would be merely academic.
(2) The court itself in a public way has been treated in such a manner as to bring the administration of justice into scorn. This activity prior to, during and after the rally of January 2nd received tremendous coverage not only by the print media but on television. Some examples may be pertinent.
On December 14, 1987 the headlines on the third page of the Windsor Star read: "Bridge rejects anti-free trade protest blockade."
On December 23, 1987, the Windsor Star contained a headline on p. 5: "Labour group vows to shut Bridge."
The day following the issuance of the injunction on Thursday, December 31, 1987, the headline on p. 3 of the Windsor Star read: "Injunction won't hurt rally, Parent says."
Subsequent to the rally the news media was replete with pictures and articles chronicling the event.
There were articles of a similar nature in the Chatham Daily News, the Amherstburg Echo, and the Detroit Free Press. Television coverage also occurred.
These articles are of course hearsay with reference to any quotes alleged against specific individuals who are defendants in this application. However they are direct evidence of the public nature of the activity and its obvious resultant effect on the court itself.
In Canada Metal Co. Ltd. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585 at p. 613, 48 D.L.R. (3d) 641, 19 C.C.C. (2d) 218 (H.C.J.), Mr. Justice O'Leary stated:
To allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn. Daily, thousands of Canadians resort to our Courts for relief against the wrongful acts of others. If the remedies that the Courts grant to correct those wrongs can be ignored, then there will be nothing left but for each person to take the law into its own hands. Loss of respect for the Courts will quickly result in the destruction of our society.
It was for the foregoing reasons that when this matter was first brought formally to the attention of the court on November 22, 1988, that I directed that it must, in the public interest, proceed as an application for criminal contempt and not merely civil contempt.
Having determined the nature of the proceedings the court was then faced with a jurisdictional problem. Stated succinctly the question raised is this:
Does a Judge appointed to the District Court of Ontario pursuant to section 96 of the British North American Act 1867 and amendments thereto, now the Constitution Act 1982, have the jurisdiction to punish an act of criminal contempt committed ex facie -- out of the face of the Court?
This has become a grey area in judicial interpretation. For this reason I adjourned this application to December 8, 1988, for arguments on the question of jurisdiction. There is no question that justices of the Supreme Court have such inherent jurisdiction arising from the common law. There is also, I believe, no question that judges appointed pursuant to provincial legislation, for example the judges of the Provincial Court of Ontario, do not have such jurisdiction. It is also clear, I believe, that administrative tribunals, for example the Quebec Police Commission, cannot be endowed with such jurisdiction by provincial legislation. However, neither this court nor counsel have been able to discover any direct authority concerning the jurisdiction of a s. 96 judge appointed to the District Court of Ontario, formerly the County Courts. I wish at this point to commend counsel for the thorough and at times inventive arguments presented on this issue. Both counsel for the applicant and counsel for the defendant submitted that this court does, in law, have such jurisdiction.
The issue requires a review of both the statutory authority for such jurisdiction and also whether such jurisdiction may be found in the common law.
Section 96 of the British North America Act, 1867, now the Constitution Act, 1867, provides:
96. The Governor General shall appoint Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.
Section 129 of the Constitution Act, 1867 provided:
129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under the Act.
What power, then, was vested in the County Courts, the predecessor of the District Court of Ontario at the time of Confederation.
In the County Courts Act, C.S.U.C. 1859, c. 15, s. 23 provided:
23. The several County Courts shall have and exercise the same powers to enforce their rules, regulations and directions as the Superior Courts of Common Law possess, and may punish by fine or imprisonment, or by both for any wilful contempt or resistance to their regular process, rules or orders, but such fine shall in no case exceed one hundred dollars, nor such imprisonment exceed six months.
At the time of Confederation therefore it is arguable that in the field of criminal contempt the County Court had the "same powers" as the superior courts of common law to punish for contempt including, if the powers are the same, to punish for contempt ex facie -- out of the face of the court.
This power was continued in the County Courts Act, R.S.O. 1877, c. 43, s. 33.
In the County Courts Act, R.S.O. 1887, c. 47, s. 33, the wording was changed to read:
33. The several County Courts shall have and exercise the same powers to enforce their rules, regulations and directions as the High Court possesses ...
The term "Superior Courts of Common Law" was replaced by the term "High Court" presumably to accord with the Judicature Act, R.S.O. 1887, c. 44. This amendment however would have no effect on the essence of the power. The power remained the same between the two courts.
That power remained unchanged in the R.S.O. 1897, c. 47, s. 45; however, in the County Courts Act, S.O. 1910, c. 10, which was a complete revision of the County Courts Act, the wording became in s. 35:
35. Every County and District Court may punish by fine or imprisonment, or by both, for any wilful contempt of or resistance to its process, rules or orders; but the fine shall not in any case exceed $100, nor shall the imprisonment exceed six months.
It is therefore noted that the reference to the powers of the High Court has been deleted.
The same wording was used in R.S.O. 1914, c. 59, s. 35; R.S.O. 1927, c. 91, s. 32; R.S.O. 1937, c. 103, s. 32; R.S.O. 1950, c. 75, s. 33; R.S.O. 1960, c. 76, s. 32; R.S.O. 1970, c. 94, s. 27; and R.S.O. 1980, c. 100, s. 27.
In 1984 the present Courts of Justice Act, 1984, S.O. 1984, c. 11, came into force. The present s. 35(2) states:
35(2) The District Court may punish by fine or imprisonment, or by both, a wilful contempt of or resistance to its process, rules or orders, but the fine shall not in any case exceed $10,000 nor shall the imprisonment exceed six months.
It is noted that the monetary penalty was increased from $100 to $10,000.
I would find that the power of the legislature to increase the penalty would fall within the ambit of the decision in Reference re Jurisdiction of Magistrate's Court Act (Que.) (1965), 55 D.L.R. (2d) 701,  S.C.R. 772. In that case the Supreme Court of Canada held that provincial legislation in Quebec increasing the monetary jurisdiction of Magistrate's Court was valid and did not infringe the jurisdiction of the Parliament of Canada under s. 96 of the Constitution Act, 1867.
It was submitted by counsel that the jurisdiction created by the statute of 1859 enacted prior to Confederation has never been withdrawn. That is, in the opinion of the court, not correct. The power was continued until the Act of 1910 when it was removed. Section 48 of that Act states:
48. The County Courts Act and all Amendments thereto ... are repealed.
This came into effect August 1, 1910.
If the Act of 1859 applying to Upper Canada is now to be construed as legislation falling within the constitutional power of the provincial legislature after Confederation then it could be repealed by the legislature pursuant to s. 129 of the Constitution Act, 1867 aforesaid.
In other words did s. 23 in the statute of 1859 granting to the then County Court the same powers as the superior courts of common law create a criminal jurisdiction in criminal contempt or did it merely confer a like power of the superior court in the field of civil contempt? If it created a power of criminal contempt ex facie, then can such power only be repealed or removed by an Act of Parliament as opposed to an Act of the provincial legislature after the passage of the Constitution Act, 1867? In that Act, of course, criminal law became within the exclusive jurisdiction of the Parliament of Canada -- s. 91(27).
Such an interpretation would render the 1910 statute of Ontario, c. 55, s. 35 in so far as it removed that specific criminal jurisdiction from the County Courts over the common law offence of criminal contempt ultra vires of the provincial legislature.
In Canadian Broadcasting Corp. v. Cordeau (1979), 101 D.L.R. (3d) 24, 48 C.C.C. (2d) 289  2 S.C.R. 618, the Supreme Court of Canada was considering the power of the legislature of the Province of Quebec to confer on the Quebec Police Commission, the jurisdiction to punish for contempt committed ex facie during its investigation of organized crime. At p. 42 D.L.R., p. 307 C.C.C., Mr. Justice Beetz stated:
A provincial Legislature may not, without infringing s. 96 of the British North American Act, 1867, confer on a tribunal or a Court the members of which are not appointed by the Governor-General a jurisdiction which in 1867 was reserved to the superior Courts.
The principle has been applied so often that it does not need demonstration.
If the provincial legislature cannot confer such jurisdiction then the corollary must obviously apply. The provincial legislature cannot remove a jurisdiction which in 1867 was reserved to the superior courts and perhaps to the County Courts by virtue of the statute of 1859 whose judges are also s. 96 judges.
At this point I should point out that since this constitutional question was to be argued, both the Attorney-General of Canada and the Attorney-General of Ontario were served with the requisite notice but neither chose to appear.
What then is the proper construction to be placed on s. 23 of the statute of 1859 -- did it confer superior court jurisdiction in the field of criminal contempt ex facie or was it meant to be restricted to the area of civil contempt?
In arriving at this decision the court has considered the situation that existed in the then Canada after the Act of Union. The civil law of Upper Canada was founded in the common law as amended by statute. The civil law of Lower Canada was based on the Napoleonic Code. The Act of 1859 is entitled "Classified table to the Consolidated Statutes which apply to Upper Canada only". This would tend to support the construction that s. 23 was only intended to apply to civil jurisdiction and therefore by extension to the County Courts of superior jurisdiction in civil contempt.
The court also reviewed the contemporary legislation enacted by the Parliament of Canada with reference to the County Courts after 1867 to 1912 to determine if the statute of 1859 had been the subject of Parliamentary revision.
In the Revised Statutes of Canada, 1886, Vol. 2, App. I deals with the history and disposal of Acts relating to
Consolidated Statutes, Upper Canada, 1859
. . . . .
15 County Courts......... Ss. 10, 11, 12, superseded by 36 V., c. 31, s. 10(D), and, with s. 3, recommended for repeal. Remainder provincial.
It is apparent therefore that s. 23 of the 1859 statute was considered by the Parliament of Canada to be a matter of provincial jurisdiction and therefore the County Courts Act of 1910 was valid legislation of the provincial legislature of Ontario.
The court therefore finds that there does not exist at this time any statutory jurisdiction in the District Court of Ontario to determine a case of criminal contempt committed ex facie out of the face of the court.
This decision is in accordance with every judicial decision of the appellate courts on the issue. Again there is no decision directly on point where the power of a s. 96 judge in the District Court was considered. However, although the statements made may be in a sense obiter dicta, the court would require very strong and compelling reasons to disregard them.
In the Canadian Broadcasting case already referred to, Mr. Justice Beetz stated at p. 41 D.L.R., p. 306 C.C.C.:
Accordingly, I think it is fair to conclude that the Anglo-Canadian authorities on the power to punish for contempt committed ex facie curia have been firmly established for more than 200 years. According to these authorities, this power is enjoyed exclusively by the superior Courts.
Such a rule is moreover justified in principle by the following considerations. The power to punish for contempt committed ex facie is liable to result in inquiries which may well involve a lower Court in areas which are practically impossible to define in terms of jurisdiction and completely foreign to its own area of jurisdiction, which by definition is limited. Such an obstacle does not arise in the case of a Court like the Superior Court, which is a Court of general jurisdiction (C.C.P., art 31) with a priori jurisdiction, or Courts sitting in appeal from decisions of the Superior Court, which may in general render the decisions which the latter would have rendered. Moreover, the power to punish a contempt committed ex facie is necessarily bound up with the superintending and controlling power which only a superior Court may exercise over inferior Courts. This controlling power could become illusory if, in the case of a contempt committed ex facie, an inferior Court has a right to go beyond its own particular field. There would also be the danger of conflict between the superior and inferior Courts, of the kind that formerly existed in England between the common law and equity Courts. Finally, the inferior Courts are not without any means of ensuring that their lawful orders are observed: as Dorion C.J., notes in Denis [  Que. S.C. 467], the superior Courts may come to their aid ...
In the same judgment at p. 33 D.L.R., p. 298 C.C.C., Mr. Justice Beetz stated the following proposition.
1. At common law the power to conduct an inquiry into a contempt committed ex facie and to punish such contempt is enjoyed exclusively by the superior Courts
This proposition derives from the apparently unanimous long standing and consistent opinion of a great many Judges and commentators. The opinions of the Judges are for the most part obiter, but the reason for this is that in English and Canadian decisions of the last 200 years, of which there have been a great many concerning contempt of Court, there is so far as I know virtually no precedent in which a Court of inferior jurisdiction has claimed the power to punish for contempt committed ex facie, and I have found none in which such a Court has exercised it with the approval of a superior Court.
The other members of the court concurred although Chief Justice Dickson refrained from commenting on the position of the court if faced with a clear and unambiguous statutory provision investing ex facie contempt powers in an inferior tribunal. Perhaps s. 35(2) of the Court of Justice Act, 1984 is such a provision.
In R. v. Vermette (1987), 38 D.L.R. (4th) 419 at p. 423, 32 C.C.C. (3d) 519,  1 S.C.R. 577, another decision of the Supreme Court of Canada, Mr. Justice McIntyre stated:
... the jurisdiction of the inferior courts was limited to contempt in the face, or in the presence, of the court. The superior courts, in addition to the power to convict and punish for contempt in the face of the court, had exclusive jurisdiction concerning the trial and punishment of contempts ex facie, that is, contempts committed not in the face of the court.
There are other decisions of appellate courts upholding the exclusive jurisdiction of the superior courts in contempt ex facie.
Bound by these decisions I find that the present power of the District Court to punish for contempt is as follows:
(a) The court has and has always had inherent jurisdiction to punish for contempt committed in the face of the court summarily or otherwise. This of course is a necessary ancillary power to ensure the peaceful and effective conduct of its proceedings and decorum in the court.
(b) Section 35(2) is a valid legislative enactment of the provincial legislature in the area of civil contempt. Therefore the District Court has the power to punish for civil contempt committed ex facie out of the face of the court to ensure compliance with its valid orders and directions. This, in my view, is the practice followed by the court today particularly in the area of family law, i.e., the enforcement of custody and access orders or orders for support.
(c) Punishment for criminal contempt committed ex facie falls within the exclusive jurisdiction of the Supreme Court of Ontario and may be referred to that court by the District Court for enforcement.
In these circumstances I have decided that the proper procedure is to stay these proceedings and to refer the matter to the Attorney-General with the request that he make the proper application to the Supreme Court.
Accordingly the motion will be stayed with a reference by this court to the Attorney-General of Ontario for the appropriate action. In view of the issues involved there will be no order as to costs.