2012 QCCA 1663, 2012 QCCA 1663

Centre commercial Les Rivières ltée c. Jean bleu inc. 2012 QCCA 1663 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020958-104 (500-17-047870-095) DATE: SEPTEMBER 19, 2012 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. CENTRE COMMERCIAL LES RIVIÈRES LTÉE APPELLANT – plaintiff – respondent v. LE JEAN BLEU INC.

RESPONDENT – defendant – petitioner JUDGMENT [ 1 ] On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Lise Matteau), rendered on July 22, 2010, which declared the appellant guilty of contempt of court. [ 2 ] For the reasons of Kasirer, J.A., with which Rochette and Wagner, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the trial judgment; [ 5 ] DISMISSES the proceedings in contempt of court; [ 6 ] With costs throughout. LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A.

Mtre François Viau GOWLING LAFLEUR HENDERSON For the appellant Mtre Gérald R. Tremblay McCARTHY TÉTRAULT Legal adviser for the appellant Mtre Bernard Lévy-Soussan Mtre Alexandre Rousseau NBL LEGAL INC. For the respondent

Date of hearing: April 24, 2012 REASONS OF KASIRER, J.A. [ 7 ] It is often said that contempt of court is an exceptional proceeding to which courts should turn only "sparingly" and as a "last resort".

When presented with an apparent violation of a court order, judges have expressed this in different ways: by insisting, for example, that the requirements for civil contempt are strictissimi juris , that other remedies be exhausted before holding a party in contempt, that the underlying court order suffer from no ambiguity, or that the complainant bear the burden of proof, beyond reasonable doubt, for the actus reus and the mens rea of this quasi-criminal offence.

All of these concerns reflect the seriousness of the charge of contempt and the reality that the contemnor is potentially exposed to the rare sanction of imprisonment in civil matters. But they also rest on a right posture of judicial policy.

If a finding of contempt comes too easily – if the use of contempt is not "most jealously and carefully watched and exercised", [1] as was once famously said – a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect. [ 8 ] The ruling of contempt in this appeal tests the idea of the remedy of last resort where contempt is based on the alleged failure of a party to satisfy a case management order to disclose documents.

Like some other jurisdictions, Quebec has embraced a "new judicial culture" in which parties are recognized as exercising a responsibility in the management of their cases and judges are empowered to make decisions to advance proceedings efficiently to trial as a means of promoting the social good of access to justice. [2] Where a party transgresses an order issued by a judge to produce documents as a pre-trial measure of case management, is he or she in contempt of court where other avenues of redress were plainly available?

I FACTS AND PROCEEDINGS [ 9 ] The conviction for contempt in this case arose against the background of a longstanding dispute between the parties to a commercial lease. [ 10 ] Centre commercial Les Rivières ltée is the owner of a large shopping centre in Trois-Rivières, Quebec, managed by Ivanhoe Cambridge Inc. Le Jean Bleu inc. is a tenant in the Les Rivières’ shopping centre. At the time of the lease, Jean Bleu's retail outlet was one of eight stores it rented in various Ivanhoe-managed shopping centres. [ 11 ] Jean Bleu's lease stipulated that it was "fully net to the Landlord".

Article 4.03 provided that the rent included "Occupancy Costs", notably a share of common area costs and taxes.

Article 4.08 required the landlord to calculate the occupancy costs and prepare, in sufficient detail, a "Statement" for the tenant of what was owed.

Article 4.08(

c) set out a procedure to be followed in the event of a dispute over the amount due. The same clause allowed for the appointment of a mutually acceptable expert to resolve disagreements relating to the occupancy costs. [ 12 ] Jean Bleu has long argued that the common area costs claimed by its landlord Les Rivières were unreasonably high.

As early as June, 1995 under a previous lease, Jean Bleu had sought the relevant documents from Les Rivières – electricity bills, accounting policies and practices, and the like – that would allow it, as tenant, to verify whether the correct amounts had been levied. [ 13 ] For a time, Jean Bleu continued to pay its share of the common area costs under protest, while reserving its right to contest the charges.

The parties exchanged letters and emails over the course of 2007 and 2008 – some cordial, some less so – but, in the end, Jean Bleu remained unsatisfied with the explanations and documents it received from Les Rivières. [ 14 ] In late 2008, Jean Bleu stopped paying the rent. It took the view that it was owed somewhere between $100,000 and $300,000 in overpayments for the common area costs wrongly charged to it by the landlord. [ 15 ] On January 20, 2009, Les Rivières instituted proceedings against Jean Bleu for $76,327.71 in unpaid rent through January 2009.

It also sought resiliation of the lease and a further sum of $78,252.69, representing accelerated rent due in the event of breach. (Subsequent to the commencement of the action, the lease was terminated and Jean Bleu is no longer a tenant in the Les Rivières' shopping centre). [ 16 ] The matter of the proper amount of the occupancy costs as part of the rent is thus the nub of the dispute in the main action pending before the Superior Court.

Jean Bleu's on-going demand for documents explaining the occupancy costs has been a focus in pre- trial proceedings. [ 17 ] On March 4, 2009, Jean Bleu filed a "Motion to Appoint an Expert" pursuant to

Article 4.08(

c) of the lease. Les Rivières countered with a motion for particulars calling on Jean Bleu to state its claim in more precise terms. The parties eventually agreed that Jean Bleu would name its own accountant, Gerald Bernstein, who, together with the accountants of the landlord, would review the various calculations relating to the occupancy costs for 2007. On March 26, 2009, Hébert, J. of the Superior Court postponed the hearing of the two motions sine die and reserved the parties’ rights under the lease for 2008 and 2009. [ 18 ] Acting for Jean Bleu pursuant to this arrangement, Mr.

Bernstein moved quickly to obtain documents from the landlord relating to the occupancy costs. In April 2009, he was asked to sign a confidentiality agreement by the landlord's accountants in which he would undertake not to use the information obtained beyond what was necessary for his mandate under the lease. Mr. Bernstein refused to sign and Jean Bleu brought a motion on April 30, 2009 to obtain the required documents, denying that it had any obligation to keep them confidential.

[ 19 ] Once again the parties arrived at an agreement, this time allowing Mr. Bernstein to attend the premises of Ivanhoe in order to copy the materials he needed. He undertook to sign a document that would record all materials copied or scanned for the purposes of his mandate. On May 15, 2009, Beaugé, J. of the Superior Court ratified the agreement. [ 20 ] On May 21, 2009, Mtre. François Viau, counsel for Les Rivières, wrote to Jean Bleu to say that Mr.

Bernstein could proceed with the verifications pursuant to the agreement, adding that Les Rivières needed time to "mettre en place le nécessaire afin de pouvoir l'accueillir". On May 26, 2009, Castonguay, J. of the Superior Court ordered Les Rivières to allow Mr. Bernstein access to the documents referred to in the judgment of Beaugé, J. no later than June 5, 2009. [ 21 ] In June, Mr. Bernstein undertook the necessary verifications at Ivanhoe, and was provided access to the "General Ledger" of business accounts.

He then presented a list of written questions to Les Rivières, including some relating to other leases and salaries of employees. The landlord replied by letter dated June 25, 2009, providing some of the requested materials "dans l'unique but d'éviter des interrogatoires avant ou après défense fastidieux", while refusing others. [ 22 ] Still unsatisfied with the documents made available to its accountant, Jean Bleu filed a "Requête en vue de se conformer à une ordonnance et obtenir des documents", alleging that Les Rivières had failed to respect

Article 4.08(

c) of the lease and had wrongly denied Mr. Bernstein access to the necessary documents ordered by Castonguay, J. on May 26, 2009. Jean Bleu sought a further order requiring that Les Rivières remit the documents identified by Mr. Bernstein in a letter dated July 3, 2009 (referred to as exhibit “R-4”). Some of the documents and materials requested from Les Rivières and its manager Ivanhoe were precisely identified, but in other respects "all supporting documentation" was requested.

In the letter R-4, the accountant listed all documents he thought relevant to the calculation of occupancy costs including, for example, information on employees and their salaries. [ 23 ] The hearing on the motion lasted some forty minutes before Mongeon, J. in the practice division of the Superior Court. In its representations before the motions judge, Les Rivières raised, without further detail, the confidential character of some of the documents sought by Jean Bleu but did not, at that time, secure an order to have that confidentiality protected.

Counsel for Les Rivières otherwise consented to releasing the documents mentioned in Mr. Bernstein's letter R-4. [ 24 ] On July 13, 2009, Mongeon, J. issued the following order by oral judgment which, as later events would have it, became the focus of these contempt proceedings: Le Tribunal ordonne la production des documents faisant l'objet de la liste R-4, devront être produits d'ici le 20 août 2009 ou un affidavit attestant de leur non disponibilité devra être produit.

Frais à suivre. [ 25 ] On August 20, 2009 – the last day of the period fixed by Mongeon, J. for production of the documents – an explanatory letter was sent to Jean Bleu by Mtre. Viau’s law firm, in the latter's absence. This letter, which was not in the form of a sworn affidavit, provided the landlord's answer to various requests in Mr. Bernstein’s list of documents referred to in the order of July 13, 2009. Some further materials were furnished but disclosure of others was denied because they were said to be confidential, not available or already provided.

In two instances, the letter stated that the documents requested were not relevant. [ 26 ] Jean Bleu took the position that Les Rivières had failed to satisfy the terms of the order issued by Mongeon, J. [ 27 ] On August 27, 2009, Jean Bleu filed a motion ex parte for a special rule ordering Les Rivières to appear before the Superior Court to face charges of contempt of court. In its motion, Jean Bleu submitted that Les Rivières had failed to obey to the order issued by Mongeon, J. in that it did not properly disclose documents requested in Mr.

Bernstein's list (R-4) or supply an explanatory affidavit for undisclosed materials. Downs, J. granted the motion for a special rule that day. [ 28 ] On September 10, 2009, Jean Bleu filed a separate motion to dismiss Les Rivières’ action to recover the unpaid rents, invoking articles 2, 20, 46 and 54.1 C.C.P. The allegations were broadly similar to those of the motion to obtain a special rule for contempt filed and granted two weeks earlier. The motion to dismiss alluded to the contempt proceedings.

Alleging further that the refusal by the landlord to disclose documents rendered a proper defence against the latter's claim impossible and that this conduct was the cause of excessive and unfair delay, Jean Bleu sought the dismissal of the main action as an improper proceeding and, in the alternative, asked once more for the documents on Mr. Bernstein's list.

Specifically, the motion invited the following principal and alternate conclusions: REJETER l'action de la demanderesse [Les Rivières]; SUBSIDIAIREMENT, AJOURNER la requête pour rejet d'action de la défenderesse [Jean Bleu] au mardi 29 septembre 2009, date à laquelle il y sera fait droit advenant le défaut de se conformer à l'ordonnance continue ci-après, soit; ORDONNER à la demanderesse [Les Rivières] de communiquer aux procureurs de la défenderesse [Jean Bleu], au plus tard cinq (5) jours du jugement à être rendu sur la présente requête, la totalité des documents et/ou informations ayant fait l'objet de l'ordonnance (R- 1) du 13 juillet 2009 émise par l'Honorable juge Robert Mongeon, j.c.s.; SUBSIDIAIREMENT, AUTORISER la défenderesse [Jean Bleu] à récupérer le dépôt de CENT VINGT MILLE DOLLARS (120 000,00$) ayant été effectué au dossier de cette Honorable Cour […]. [ 29 ] The hearing of the motion to dismiss was suspended pending the outcome of the contempt proceedings by order of de Grandpré, J. on October 19, 2009. [ 30 ] On July 22, 2010, Matteau, J. of the Superior Court found Les Rivières to be in contempt of court for its failure to obey Mongeon, J.'s order.

II JUDGMENT OF THE SUPERIOR COURT

[ 31 ] The trial judge provided a fulsome discussion of the background leading to the special rule citing Les Rivières for contempt. She then presented the law applicable to civil contempt, placing emphasis on its exceptional character and the importance that its elements be made out beyond reasonable doubt.

The judge set out a four-step analysis to determine whether the order had been disobeyed "en fonction tant de sa lettre que des circonstances l’entourant" (para [26]). [ 32 ] In the first step of her analysis, the trial judge concluded that Mongeon, J.’s order had the plain purpose of obliging Les Rivières to furnish documents that justified the occupancy charges it levied. She examined the terms of the order, exchanges between Mongeon, J. and counsel for Les Rivières, and the list provided by Mr. Bernstein for Jean Bleu in exhibit R-4 as to what precisely it needed.

She concluded that the order issued by Mongeon, J. "n’est susceptible d’aucune interprétation" and characterized it as evincing "une clarté exemplaire" (para [36]). [ 33 ] The judge then embarked on a second stage of analysis bearing on the evidence of a breach of the order as constituting the actus reus of contempt. While Les Rivières did respond to Jean Bleu within the time period stipulated by Mongeon, J., the trial judge was of the view that Les Rivières did not satisfy either the terms or the spirit of the July 13, 2009 order of the Superior Court.

Notwithstanding the undertaking by counsel before Mongeon, J., Les Rivières did not provide all documents and information set forth in exhibit R-4. Moreover, Les Rivières failed to provide an affidavit explaining why the materials were not available. Jean Bleu had thus met its burden of demonstrating that the order had not been respected. [ 34 ] In the third step of her analysis, the trial judge considered whether Les Rivières had properly raised grounds for not respecting the order.

Considering in particular evidence given at trial by Linda Froncioni, a regional director in the finance department of Ivanhoe, the judge decided that no proper justification was given for the absence of an affidavit. She then reviewed the proposed explanation that the documents required by R-4 were either imprecisely identified, irrelevant or confidential. She concluded that Les Rivières reasons for its conduct were insufficient. [ 35 ] Lastly, the judge considered whether Jean Bleu had demonstrated beyond a reasonable doubt that Les Rivières had the requisite mens rea for contempt of court.

She decided that Les Rivières never had the intention to comply with the requirement that the non- availability of documents and information be attested in an affidavit. The judge noted that Les Rivières did not appeal Mongeon, J.'s order. She added that while the landlord may have answered the better part of Jean Bleu’s requests for documents, those it did furnish did not allow for the verification of the amount of occupancy costs owed that Jean Bleu had been seeking for many months.

For the judge, Les Rivières’ conduct reflected its flagrant intention to disobey the order issued on July 13, 2009. [ 36 ] The trial judge accordingly held Les Rivières in contempt and set a later date for representations on sentence. [ 37 ] On August 20, 2010, Les Rivières filed an inscription in appeal.

Jean Bleu brought a motion to dismiss the appeal, which motion was dismissed by a panel of this Court on November 15, 2010. [3] The conclusions of the judgment read as follows: POUR CES MOTIFS, LA COUR : REJETTE la requête en rejet d’appel, frais à suivre; ORDONNE que l’instance se poursuive en première instance, à l’exception des procédures en outrage; SUGGÈRE aux parties de s’adresser au juge en chef pour qu’il désigne un juge coordonnateur pour la gestion de l’instance. [ 38 ] While it does not bear directly on the present appeal, it is nevertheless worthy of mention that the Chief Justice of the Superior Court did later designate a special case management judge as suggested by this Court. [ 39 ] On or about September 13, 2010, Les Rivières filed a motion for the issuance of a confidentiality order and other case management measures based on articles 2, 20 and 46 C.C.P.

This motion specifically requested that certain documents referred to by Mongeon, J. in his order be communicated to Jean Bleu in a manner that would protect their confidential character. [ 40 ] On January 24, 2011, the case management judge Gibeau, J. granted Les Rivières’ motion. Noting that Mongeon, J. did not rule on the confidentiality of the documents mentioned in exhibit R-4, Gibeau, J. applied the principles of Lac d'Amiante , [4] by analogy, in the circumstances.

She held that a confidentiality order would not preclude Jean Bleu from evaluating the relevant materials and the tenant could not use the documents for a purpose other than the dispute under the lease. Several days later, Les Rivières’ counsel remitted documents under seal to Jean Bleu. III ARGUMENTS OF THE PARTIES [ 41 ] Les Rivières submits that the trial judge erred in failing to ensure that Jean Bleu had exhausted all other remedies before undertaking proceedings in contempt.

Specifically, it contends that the Mongeon, J.’s order was one of case management, the violation of which should have, at worst, given rise to sanction for abuse of process rather than contempt.

For Les Rivières, the availability of a distinct remedy under art. 54.1 C.C.P., recognized by Jean Bleu itself, served as a bar to a finding of contempt. [ 42 ] Secondly, Les Rivières argues that the judge was mistaken in holding that the order of July 13, 2009 was perfectly clear such that its conduct could not constitute the actus reus of civil contempt. [ 43 ] Finally, Les Rivières says that its substantial compliance with the order was incompatible with a finding that it had the requisite mens rea for contempt. [ 44 ] Jean Bleu answers that the judge’s analysis satisfied all the requirements established by law before a ruling of contempt.

It says there is no formal necessity to exhaust all remedies for a finding of civil contempt under articles 49 et seq. C.C.P. In this case, Les Rivières plainly transgressed the court order of Mongeon, J. It did so with the full intention of withholding documents clearly identified in the order and was mindful that its letter of August 20, 2009 neither met the disclosure requirements ordered by the judge nor offered

an explanation for non-compliance by way of a sworn statement. Given that the essential elements of the quasi-criminal offence were proven beyond a reasonable doubt, Jean Bleu says the judge was right to hold Les Rivières in contempt. IV ANALYSIS [ 45 ] In many respects, the trial judgment provides a model account of the procedure to be followed in trying a case of civil contempt based on the breach of a court order.

The judge quite rightly, for example, began her analysis with a reminder, drawn from the Vidéotron [5] case, that civil contempt is an exceptional remedy given its quasi-criminal character and potentially grave sanctions. The judge aptly quoted from Daigle [6] regarding the relevant steps of analysis, including the following passage that highlights the importance of context to evaluating the allegedly transgressed order: Lorsqu'il s'agit d'une allégation de la non-exécution d'un ordre du tribunal, le juge saisi d'une demande en déclaration d'outrage doit, à mon avis, procéder par étapes.

Il lui faut d'abord examiner attentivement les termes du jugement auquel, selon le requérant, l'intimé n'aurait pas obéi. Ces termes impliquent non seulement le sens des mots utilisés mais aussi l'esprit dans lequel l'ensemble de la décision a été conçu par celui qui l'a rédigé. […]. [Emphasis added.] [ 46 ] I am most respectfully unable to agree, however, with the judge's view that a violation of Mongeon, J.'s order should have given rise to a finding of contempt in the circumstances.

I find this especially so when one considers the nature and context of the order as suggested in the above-quoted passage from Daigle . Mongeon, J. issued a case management order dealing with an unresolved dispute relating in part to the confidentiality of documents. In my view, there were other available remedies far better suited than contempt for redressing Les Rivières alleged failure to comply with this court order. It was thus wrong for the judge to hold that a violation by Les Rivières' of the case management order merited the quasi-criminal sanctions for contempt.

And while some of the strategy of counsel for Les Rivières may well have exposed the landlord to sanction for abuse of process, when the whole of the context is taken into account, I also find myself unable to agree that proof beyond reasonable doubt was made that Les Rivières had the intention required for contempt. [ 47 ] I propose to consider the parties’ respective arguments under four headings: (

a) the nature and context of the order; (

b) the relevance of other available remedies; (

c) proof of the actus reus ; and (

d) proof of the mens rea . (

a) The nature and context of the order [ 48 ] What then was the nature of the order issued by Mongeon, J. and the context in which it was issued? [ 49 ] First, it is useful to observe that Mongeon, J. did not order the landlord to perform a substantive obligation under the lease, such as, say, the delivery of the written statement setting out the occupancy costs required under

Article 4. Instead, the order was emphatically procedural in character: it was one of a series of pre-trial motions by which Jean Bleu sought, and Les Rivières resisted, the disclosure of documents as a means to determine whether or not the rent claimed in the principal action was justified. [ 50 ] The list of documents referred to by Mongeon, J. was itself prepared following an agreement, ratified by a judge in an earlier case management decision, on what documents would be released.

The list emerged in fits and starts, as part of a laborious process of back and forth between the parties, punctuated by the intervention of judges who sought to help manage this unruly case. During this period, Jean Bleu developed increasingly precise demands for documents. Les Rivières released some materials but not others and, over time, the landlord made the scope and basis for its objections more precise. The parties thus managed the ongoing demands for disclosure of documents in part by themselves.

When Mongeon, J. was called in – like Hébert, J., Beaugé, J. and Castonguay, J. before him – he took on that active stance promoted by the rules of the Code of Civil Procedure for managing the case onto an efficient path to trial. In short, the parties and the judge worked within the framework of the "new judicial culture" for managing the dispute pursuant to

article 4.1 C.C.P. [ 51 ] Mongeon, J.'s order may thus fairly be styled as one of "case management" (an ordonnance de gestion de l’instance ). [7] His exchanges with the parties and eventual decision bearing on disclosure fit the model of case management exactly.

It was part of a gradual and evolving process that followed the design of the new culture of the Code of Civil Procedure , put in place to save time and money, to limit unnecessarily bellicose discovery, and to open the door to a reconciliation of the parties' positions. [8] The whole was undertaken in a manner tailored to the circumstances, in the spirit of values recognized by the legislature of proportionality and fair access to the courts. [9] [ 52 ] Equally key to understanding the context that served as background to the case management order was a longstanding allegation, made by Les Rivières, that some of the material sought by Jean Bleu was confidential.

Confidentiality of documents is of course a common preoccupation in commercial disputes where parties may claim – often legitimately, sometimes less so – that the materials sought by an adversary, if revealed without special precautionary measures, would disclose commercial or other secrets unfairly.

When the whole of the narrative prior to the order of Mongeon, J. is taken into account, it is plain that Les Rivières regularly, if not always effectively, raised confidentiality as a source of its hesitation to release certain materials to Jean Bleu. [ 53 ] Indeed, as early as April, 2009, Jean Bleu’s expert Bernstein refused to sign a confidentiality agreement that, for Les Rivières, would have allowed the landlord to disclose the necessary documents without imperilling what it appears to have considered confidential commercial information.

Soon thereafter, Jean Bleu called on the Superior Court to manage the matter, moving on April 30, 2009 for disclosure of all documents and claiming that there was no right to confidentiality under the lease. Confidentiality was also apparently a concern at the time of the agreement between the parties ratified by Beaugé, J. on May 15, 2009. That "consent" imposed upon the accountant Bernstein the obligation to sign a document recording all the materials photocopied or scanned for the purposes of his mandate.

[ 54 ] The confidentiality issue was again aired, however inconclusively, before Mongeon, J. on July 13, 2009. The following exchange involving lawyers for Les Rivières and Jean Bleu is highly suggestive that Mongeon, J. understood that the landlord's claim to confidentiality would need to be fully addressed through further management of the case: LA COUR : Alors, messieurs, s'il s'agit simplement de voir si tout le problème va être réglé en donnant accès à ces documents-là.

Puis je regarde ça là, on veut des factures puis la méthode d'allocation des différentes dépenses au centre d'achats, qui sont des montants regroupés. Me FRANÇOIS VIAU [Les Rivières]: Je pense qu'il veut avoir des listes de salaires aussi. LA COUR : Oui. Me FRANÇOIS VIAU : On rentre dans des choses qui sont… Vous savez, Votre Seigneurie, quand tu fais faire une vérification par évidemment des vérificateurs, c'est évidemment pour se mettre entre les… tu ne peux pas divulguer évidemment à une

partie demanderesse les salaires des employés, des choses comme ça évidemment. Tu peux le faire au niveau d'un poste général au niveau des salaires, mais si on veut savoir combien qu'il est payé par année, combien qu'il fait de l'heure, et cætera, c'est des choses comme ça évidemment qui vont faire l'objet d'un interrogatoire, pour s'assurer qu'on puisse protéger les droits des gens. LA COUR : Mais, maître, il y a moyen de protéger les droits des gens. Me FRANÇOIS VIAU : Absolument . LA COUR : Assoyez-vous puis notamment là pour ça.

Prenez la liste des salaires, puis vous caviardez les adresses ou les noms, parce que ce n'est pas les noms dont on a besoin, c'est la fonction puis la charge, le montant que ça coûte, vu que vous les facturez en vertu de votre clause d'escalation de frais d'opérations. Ça se fait ça. Me FRANÇOIS VIAU : Votre Seigneurie, encore une fois, on n'a pas d'objection qu'on fasse un interrogatoire avant défense. Et dans le cadre de l'interrogatoire qu'on pose ces questions-là. LA COUR : De deux choses l'une, messieurs, ou bien vous vous entendez sur la liste des documents.

Si vous ne pouvez pas vous entendre, entendez-vous sur la date de l'interrogatoire puis qui va être interrogé. Me FRANÇOIS VIAU : Voilà. Me BERNARD LÉVY-SOUSSAN [Jean Bleu]: Mais on n'a pas à interroger à ce stade-ci, on veut ces documents, monsieur le juge. LA COUR : Mais maître… Me BERNARD LÉVY-SOUSSAN : Je veux pouvoir compléter mon expertise. LA COUR : Mais maître, ce qu'on vous dit là, c'est qu'on n'est pas prêt à vous donner accès à ces documents-là. Me BERNARD LÉVY-SOUSSAN : Alors, que la Cour décide si on doit avoir accès ou non. LA COUR :

Ou encore que la Cour vous dise faites un interrogatoire puis demandez-les. Il va y avoir une objection, puis on va débattre de l'objection. Me BERNARD LÉVY-SOUSSAN : Mais on est là, je présente cette liste de documents. Il faut comprendre, c'est pour ça que monsieur Bernstein est là. Il faut que la Cour comprenne les réponses qu'on a obtenues à ces questions pour comprendre l'illogisme de ces réponses. Et c'est la raison pour laquelle on présente cette demande. Pour la quatrième fois, on veut avoir accès à des documents.

Entre autres, on nous dit : « Voici les – c'est la pièce R-3, la réponse de mon confrère – voici l'allocation qui vient de Ivanhoé », avec un chiffre, bang, quatre chiffres : 102 000; 235 000. Pour un total de 86 000. Ce n'est pas comme ça qu'on va pouvoir vérifier. On ne peut pas avoir une vérification qui a du sens quand on me lance quatre chiffres en l'air. C'est la pièce R-3. Alors, on demande d'avoir des précisions sur ces documents.

Me FRANÇOIS VIAU : Votre Seigneurie, je ne suis pas en mesure aujourd'hui à la pièce… LA COUR : Maître, les précisions sur les documents, est-ce que ça va être d'autres documents ou si ça va être une explication lors d'un interrogatoire quand vous allez dire : « Mais vous avez des frais d'administration de 32 000 $, allocation directeur régional. » Me BERNARD LÉVY-SOUSSAN : Alors, on veut avoir les justificatifs. Ça fait

partie des dépenses d'opérations, on veut avoir les justificatifs. Parce que c'est ce que la première ordonnance nous a donné, de pouvoir vérifier ces chiffres-là. On ne nous donne pas accès à ces chiffres pour deux raisons, soit on ne les a pas, soit on veut les cacher. Mais ça ne peut qu'être ça. Pourquoi nous refuse-t-on certains documents? Et c'est la raison pour laquelle, pour la quatrième fois, on s'adresse à la Cour. Nous avons fait une requête pour nommer un expert. LA COUR : Et cette liste-là, vous ne l'avez pas vue encore? Me FRANÇOIS VIAU : Je ne l'ai pas vue encore.

Et Votre Seigneurie, ma cliente évidemment est une personne sérieuse. On ne cache rien. Le dossier va se faire en bonne et due forme. On accepte de les regarder à la pièce les demandes. Si les demandes sont justifiées, nous lui remettrons. Si elles ne le sont pas, nous allons nous objecter et le Tribunal tranchera.

On accepte tout ça. [Emphasis added.] [ 55 ] Following this exchange, counsel for Les Rivières agreed to communicate documents in the list R-4 "dans la mesure où les documents sont disponibles" and not, as the judge warned him, "dans la mesure où la cliente est d'accord". [ 56 ] Mongeon, J. proceeded to issue the order for disclosure.

He did not rule on confidentiality that day, but the exchange suggests that the matter remained open – unfinished business, of sorts – when he managed the case on July 13, 2009. [ 57 ] This ongoing debate on confidentiality was thus necessarily part of the context against which the alleged violation of Mongeon, J.’s case management order must be understood – part of "l'esprit dans lequel l’ensemble de la décision a été conçue par celui qui l’a rédigée", to revert to the idea explained in Daigle .

The order was issued in a manner that would allow Les Rivières to come forward at a later time, if necessary, to ask the Superior Court for a separate sealing order, allowing the landlord to accede to the request for documents without compromising confidentiality. In keeping with the task of case management at hand, Mongeon, J. gave Les Rivières sufficient time to comply with the order – five weeks – as well as the opportunity to explain in the manner he specified, by the same deadline, why compliance would not be possible if that proved to be the case.

In other words, Mongeon, J. foresaw the possibility that some materials could be disclosed subject to later procedural steps undertaken to protect confidential material. [ 58 ] Mongeon, J.’s order was consonant with the often fluid case management process that evolves with, and accommodates, the changing circumstances of proceedings. The transcript of hearing indicates that Les Rivières left open the possibility of securing protection of the confidential documents by way of further case management.

Had this occurred, Mongeon, J.'s order would have been narrowed, just as his own order narrowed the scope of that of Castonguay J., which in turn specified the date of the order previously issued by Beaugé, J., which in turn built upon the first intervention by Hébert, J.

The case management order at issue on contempt, when considered against the backdrop of the whole of the pre-trial debate on disclosure, did not settle the confidentiality issue once and for all. [ 59 ] This is not to say that a case management order, even taken as part of an evolving process such as this one, is something inherently less than an interlocutory judgment that, theoretically at least, is susceptible of appeal in the event that the requirements of articles 29 and 511 C.C.P. are satisfied.

But here, the trial judge's criticism of Les Rivières in paragraph [63] of her reasons for not appealing the Mongeon, J. order seems misplaced.

In the circumstances, it is unlikely that this highly discretionary case management ruling could have been the subject of a successful application for leave to appeal, especially since Mongeon, J. ordered nothing that could not be later undone. [ 60 ] When the time came to determine whether Les Rivières' conduct amounted to civil contempt, the fact that the order was one of case management in an evolving setting needed to be considered before deciding that contempt and its sanctions were appropriate in the circumstances.

This is not to say that a party's failure to abide by a case management order is always immune from a citation for contempt. But the requirement that the contemnor defy the order in a manner deserving of sanction is difficult to establish unless this aspect of the context is fully weighed.

[ 61 ] Before considering how the nature and context of the case management order affected the appreciation of the essential elements of the offence of contempt here, I turn next to the connected issue of the other remedies available in the circumstances. (

b) The relevance of other available remedies [ 62 ] Was the fact that Jean Bleu had not exhausted other avenues of redress a bar to holding Les Rivières in contempt for disobeying the case management order? [ 63 ] Les Rivières submits that the trial judge should not have found it in contempt because more fitting remedies for abuse of process had not been exhausted.

It states the point boldly, arguing that the requirement of exhausting all other remedies is what makes contempt a "last resort" and, as a result, should be seen as a legal precondition to a valid order of contempt. [ 64 ] Courts and learned authors have, on occasion, pointed to the importance that the party seeking a contempt order demonstrate an "épuisement des recours" under articles 49 et seq.

C.C.P. [10] The point is regularly made, for example, that contempt is not a means of obtaining the execution of judgments. [11] The argument that all available remedies should first be exhausted is often presented forcefully in Quebec and elsewhere in the family context where criminal sanctions for contempt can prove particularly ill-suited to the violation of a court order, but the claim is not limited to that field. [12] I find particularly instructive the findings of a recent New Zealand government report, including its mention of case management orders under applicable law, prepared by Dean A.T.H.

Smith, a leading common law authority on contempt: Contempt of court as a "last resort" 1.32 The courts have emphasised, time and again, that the use of the

summary powers of contempt should be seen as a matter of last resort 42 particularly in the context of family disputes. There are generally other methods of enforcing compliance with case management rulings and orders than the sanction of contempt, such as costs orders. The courts also frequently remind themselves that the weapon is one that must be used "sparingly". In the words of Lord Goddard CJ in Parashuram Detaram Shamdasani v The King Emperor , [ [1945] A.C. 264 , 270]: Their lordships would once again emphasise what has often been said before, that this

summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised. 1.33 This approach has significantly reduced the practical ambit of the law of contempt. [13] [ 65 ] The policy of ensuring that all other remedies are exhausted reflects the seriousness of the charge of contempt. Unlike many other available remedies, civil contempt is treated as if it were a criminal offence. The Supreme Court has made plain in its

interpretation of the Code of Civil Procedure that all forms of contempt, including civil contempt ex facie based on the disobedience of a court order, involve an interference with the orderly administration of justice that strikes at the heart of the rule of law. Writing on the definition of contempt in

article 50 C.C.P., Gonthier, J. observed in Vidéotron [14] : The definition clearly establishes the characteristics common to all types of contempt covered by the Code of Civil Procedure , characteristics which may be unduly masked by too great an insistence on the distinction between civil contempt and criminal contempt.

The penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of "public law", in a sense, because the respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue . [Emphasis added.] [ 66 ] Gonthier, J. explained further that this public law aspect of contempt is reflected in the criminal law sanctions attached to civil contempt, which include meaningful fines and, for some, imprisonment.

To that one might add the stigma that a person, natural or legal, must bear following conviction for the quasi-criminal offence of civil contempt.

It is of course true in this case that Les Rivières, a legal person, cannot itself be imprisoned, but a conviction for the offence of contempt brings this stigma of the criminal law, along with potential fines and forfeiture of property. [15] This quasi-criminal setting moved the House of Lords to remark that there is "an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity". [16] As authors Denis Ferland and Benoît Emery have written, citing Vidéotron and like cases, " [l]'expression 'outrage au tribunal' identifie ainsi une 'infraction contre l’administration de la justice'". [17] [ 67 ] Viewing contempt as a last resort where there is an alternative remedy, better-tailored to the context, has the further advantage of reserving contempt for those cases of egregious behaviour that genuinely threaten the authority of the courts and merit the strong medicine of the quasi-criminal contempt sanction.

This Court has rightly warned against the notion of contempt being debased if used where more suitable remedies exist. [18] The problem of trivializing the seriousness of contempt through inappropriate or overzealous use – the risk of contempt becoming "galvaudé" – was highlighted by the Law Reform Commission of Canada which noted that "[t]here is a very serious danger that contempt might eventually turn against those using it, and in the final analysis, involving it too frequently might do more harm than good in the interests of justice". [19] [ 68 ] I am inclined, at least on the basis of the facts of the present case, to see the exhaustion of other remedies less as a formal rule of law and more as a reflection of the proper exercise of judicial discretion undertaken pursuant to

article 49 C.C.P. Indeed the discretionary and contextual character of a contempt order would suggest that exhausting remedies is best viewed as a sound judicial policy rather than as an unbending legal rule. A judge seized of a motion for contempt should inquire first whether there are other available remedies

suitable for redressing a party’s disobedience of a court order, reserving punitive measures of contempt for quasi-criminal conduct that meaningfully impugns the authority of the courts.

While exhausting remedies may not be required as a precondition to contempt in all cases, judges should inquire whether alternative remedies to contempt exist in their evaluation of the proportionality between, on the one hand, the quasi-criminal sanctions for contempt and, on the other, the seriousness of the contemnor’s conduct and intent. [ 69 ] This judicial policy favouring the exhaustion of remedies is particularly apposite in respect of the alleged disobedience of a case management order such as the one that concerns us here. [ 70 ] Certainly no one should have thought that the failure to satisfy the requirements of Mongeon, J.’s case management order was without moment.

Such orders must be respected and failure to do so may well invite serious civil sanctions. [20] If Les Rivières failed to produce the documents in R-4 ordered by the judge, the transgression of the case management order would expose the landlord to the risk of the dismissal of its claim for the unpaid rent. Les Rivières would then not be in a position to prove – given the missing justification that it had the burden to show under

Article 4 of the lease – that the occupancy costs claimed were in fact due. In that circumstance, as plaintiff, Les Rivières ran the risk of losing its case on the grounds of abuse of process. Other sanctions short of contempt would also have been easy to imagine for the violation of the case management order: the striking of allegations in Les Rivières' motion to institute proceedings, an unfavourable order as to costs, or even the possible forfeiture of the advantage of funds held on deposit in the Superior Court as stipulated in a safeguard order being among them. [ 71 ] Importantly, in Jean Bleu’s motion under

article 54.1 C.C.P. filed in the days following its demand for a special rule in contempt, some of these alternative sanctions were raised. Among the conclusions of that motion, cited above, was what amounted to a demand for the execution of the order of Mongeon, J. which would have given Les Rivières a last chance to release the documents. Jean Bleu itself proposed the dismissal of all or part of the claim for unpaid rent for abuse as a possible consequence of Les Rivières' failure on August 20, 2009 to meet the terms of the order.

Les Rivières should too have understood, in contemplating its letter in response to the case management order, that in the ordinary course of events it would risk sanctions such as a striking of allegations or even the dismissal of its action if it wrongly failed to produce the documents or a proper explanation.

These remedies were among what this Court has called the "new remedial tools", [21] better adapted to the new judicial culture, and made available by the legislature in the Code of Civil Procedure to the parties and to courts in order to correct a procedural wrong. [ 72 ] Unlike abuse of process, civil contempt is a mens rea offence. Whatever the character of wrongdoing associated with improper proceedings under

article 54.1 C.C.P., it is not the blame of criminal intent required for a conviction of contempt. The failure to abide by principles of fair play and proportionality in litigation may well lend themselves to civil sanctions for impropriety. [22] The advent in particular of a "power to impose sanctions for improper use of procedure / pouvoir de sanctionner les abus de procédure" in articles 54.1 et seq. C.C.P., in the same

chapter of the Code as the power to punish for contempt of court, brings the consideration of alternative remedies to the quasi-criminal sanction of contempt into focus. Indeed it is not unlikely that recourse to the contempt remedy will diminish over time as judges exercise their discretionary power to redress abuse under

article 54.1 C.C.P. rather than resorting to the quasi-criminal sanction. [ 73 ] Jean Bleu instituted contempt proceedings, in part, to coerce Les Rivières into producing the still missing documents and not merely as a means of punishing its disobedience of the ruling. Jean Bleu’s subsequent Motion to Dismiss, including its subsidiary conclusion renewing the demand for documents, makes this plain. Alerted to this during the contempt proceedings, the trial judge should have noted that Jean Bleu allegations of contempt were an inappropriate means of forcing the execution of the original order.

A finding of contempt in the presence of other well-suited remedies cannot be said to be a sparing use of the quasi-criminal sanction. Under

article 49 C.C.P., courts "may / peuvent" condemn a person who is guilty of contempt but they are not bound to do so when circumstances suggest that recourse to be disproportionately harsh. The judge in this case should have been wary to use her discretion to condemn Les Rivières here because that quasi-criminal sanction was out of proportion to the wrong for which lesser, civil remedies were appropriate. [ 74 ] In the instant case, the nature of the case management order meant that the public law dimension spoken to in Vidéotron was not obviously in play.

The context in which Mongeon, J. issued the order meant that the imposition of a criminal sanction when other civil sanctions were available was incongruous. The trial judge analyzed the conduct of Les Rivières without reference to the character of the order as one of case management. In this case, the failure to respect the case management order – assuming it was not respected – did not undermine the administration of justice in the manner spoken to in Vidéotron but more properly exposed the landlord to the risk of a better-tailored sanction for abuse of process.

Judicial powers set out by the legislature in articles 54.1 et seq. C.C.P. were available to remedy precisely the kind of misconduct that Jean Bleu had alleged and the tenant had contemporaneously imagined sanctions for abuse of process as a suitable avenue of redress. The trial judge should have explained more plainly why the quasi-criminal sanction was necessary here. [ 75 ] Applying the idea that the consideration of alternative remedies is a sound judicial policy to the present case, I am respectfully of the view that the trial judge should have dismissed the motion for contempt.

She should have noted that a sanction such as striking allegations or even dismissing Les Rivières action would have been better suited and more proportional in the circumstances. Indeed recourse to contempt here – for the alleged violation of a case management order dealing with the availability of documents – ran the risk of decrying conduct as contempt when the role and authority of the court ran little or no risk of being devalued. [ 76 ] I turn now to Les Rivières’ arguments that the actus reus and mens rea of contempt were not properly demonstrated in the circumstances. (

c) Proof of the actus reus for civil contempt [ 77 ] Jean Bleu says that the judge made no mistake in holding that the actus reus of civil contempt was made out beyond reasonable doubt. The judge was categorical in her conclusion that the order was clear and, in particular, that the documents and information were listed unambiguously in Mr. Bernstein's letter.

Furthermore, she held there was no mistaking that Les Rivières failed to produce either the required documents or an explanation, in the form of an affidavit, by the August 20, 2009 deadline identified by the motions judge. [ 78 ] Les Rivières attacks the trial judge's analysis of the actus reus for contempt by arguing that she erred in deciding that the order

was free from ambiguity. In point of fact, says the appellant, the language used by Mr. Bernstein in his letter R-4, and incorporated by reference by Mongeon, J. in his order, defies proper execution. In his letter, Jean Bleu's accountant demanded, for example, "all supporting documents" in reference to nine different heads of information he claimed necessary to verify properly the amount charged as occupancy costs. In four other instances, Mr. Bernstein called for documents "including but not limited to" specified examples in a list.

Given the great number of documents involved, Les Rivières says this evokes conduct that is too imprecise to be transgressed. Citing Daigle [23] and Zhang , [24] the appellant argues that there was an ambiguity in the order that meant it could not be reliably executed.

Les Rivières submits that non-disclosure of documents improperly identified cannot be considered as the actus reus of contempt here. [ 79 ] It is true that circumstances do exist where language such as the "all supporting documents" incorporated into the order might well be interpreted as being insufficiently precise to support a finding of contempt. I am nevertheless not inclined to disturb the judge's finding that the order was clear in the circumstances. The judge had before her evidence from Ms. Froncioni of Ivanhoe who, notwithstanding the open-textured wording of Mr.

Bernstein's letter, claimed to understand exactly the documents Jean Bleu would need to verify the calculations of the occupancy costs. The judge considered the evidence and found that Les Rivières and Ivanhoe were in a position to know what was asked of them in Mr. Bernstein's letter based in large part on her appreciation of Ms. Froncioni’s testimony. Les Rivières had made practically identical arguments regarding the ambiguous character of the order at trial that were rejected. It now seeks to retry this point on appeal.

It has not convinced me that the judge made a reviewable error that would justify the intervention of the Court on this point. [ 80 ] Moreover, the actus reus of contempt was proven in another respect. While Les Rivières may have gone a way to comply with the order by providing further documents and answering certain of Mr. Bernstein's questions in his letter, the landlord failed to present the affidavit specifically ordered by Mongeon, J. The trial judge fixed on this as part of the violation she described as the actus reus of the offence in paragraph [42] of her reasons.

In this respect alone, Jean Bleu met its burden of proving wrongful conduct. (

d) Proof of mens rea for civil contempt [ 81 ] The judge held that Jean Bleu had demonstrated, beyond all reasonable doubt, that Les Rivières had the flagrant intention to disobey Mongeon, J.'s order. She decided that the landlord never intended to provide its explanation for withholding documents in the form of an affidavit, adding that the evidence at trial showed that it had displayed an "insouciance grossière" in respect of this aspect of the order (paras. [51] and [52] of the trial judgment). Moreover, she held that Les Rivières knew the documents it had sent to be incomplete.

The landlord's refusal to furnish the materials listed in R-4 on the grounds that they were confidential, unnecessary or irrelevant further demonstrated, in the judge's view, that it had no intention of complying with the order. In deciding on its own that the information was not available, Les Rivières had shown its deliberate intention to defy Mongeon, J.'s ruling, both in letter and in spirit (para [64]).

She described Les Rivières' conduct as evincing a "désinvolture totale à l'égard d'une ordonnance de cette Cour" (para [65]). [ 82 ] Before the trial judge, and again on appeal, Les Rivières argued that at the time it sent the August 20, 2009 letter, it had the firm conviction that it had complied with the spirit of the order. It does not deny, for example, that its answer to Jean Bleu was not in the form of an affidavit, but contends that at the time it believed that it had substantively met the requirements of Mongeon, J.’s order and that, accordingly, an answer by affidavit was not due.

Les Rivières says that the judge erred in finding the requisite mens rea by reason of her failure to consider the case management context, the whole of the evidence and the availability of other remedies. [ 83 ] Discerning mens rea , including when intention can be inferred from conduct, is a matter ordinarily left to the trier of fact in criminal matters and, absent a palpable and overriding error, a court of appeal should not disturb that finding.

I am however respectfully of the view that the trial judge did not properly consider the impact of Les Rivières' position that it had substantively complied with the order on the proof of mens rea . In measuring mens rea , the trial judge fixed unduly on what she understood to be Les Rivières' material failure to provide an affidavit and to disclose certain documents on the list R-4 as a means of inferring intent. She paid insufficient attention, in my view, to the testimony of the representative of the landlord, Linda Froncioni, who believed that Les Rivières had substantively met Mongeon, J.'s demands.

The judge thereby left room for a reasonable doubt as to whether Les Rivières had the intention to defy the court order when it sent its letter on August 20, 2009. [ 84 ] More specifically, was the judge right to decide that Les Rivières declined to forward documents on the list R-4 with the intention to defy the order of Mongeon, J.? [ 85 ] Ms. Froncioni testified at length concerning the meaning of the August 20, 2009 letter sent on behalf of the landlord by counsel for Les Rivières, noting that it had been prepared by her with the assistance of Mtre.

Viau, Les Rivières lawyer, and another lawyer who worked in-house for Ivanhoe. Ms. Froncioni explained at trial that she believed that Les Rivières had complied with the order in that all the documents identified on the list R-4 necessary to ascertain occupancy costs had either been forwarded to Jean Bleu or made available to Mr. Bernstein, its accountant. She may or may not have been mistaken as to whether that was the case, as a material fact, but she asserted it as her honest belief. [ 86 ] It should be noted that at no point in her reasons did the judge explicitly state that Ms.

Froncioni's evidence was not credible. Instead, the judge concluded from the August 20, 2009 letter and Ms. Froncinci's evidence at trial that documents were wrongly withheld on the grounds that they were irrelevant or confidential, and she inferred from that conduct that Les Rivières had done so intentionally. [ 87 ] The letter did appear to raise relevancy as an excuse to withhold documents.

The judge rightly noted that for certain documents relating to the media fund and the promotional fund, the August 20, 2009 letter states: "Puisqu'il s'agit d'une charge fixe, votre cliente ne devrait pas recevoir de crédit ou d'ajustement de sorte que nous ne voyons pas la pertinence de la demande". For the judge, Les Rivières could not refuse to disclose documents unilaterally – according to its "bon vouloir" as she wrote in para. [65] – without violating the order. [ 88 ] At trial, however, Ms. Froncioni explained this portion of the letter. On cross-examination by Jean Bleu's lawyer, Ms.

Froncioni noted that, in June 2009, these documents had been inadvertently withheld from Mr. Bernstein. Les Rivières acknowledged this in its letter sent to Jean Bleu on June 25, 2009, and agreed to make them available to Mr. Bernstein at that time. Mr. Bernstein never made an appointment to examine the documents. Ms. Froncioni explained: "Ils [the documents relating to the media fund and promotion fund]

sont disponibles, on attend toujours que monsieur Bernstein ou l'expert prenne rendez-vous pour venir les voir. On a les boîtes depuis le vingt-cinq (25) juin.". She was pressed on this point by Jean Bleu's lawyer who, citing the sentence quoted above from the letter, said: "Alors je comprends que ça n'a pas été fourni." Ms. Froncioni answered: "Ce n'est pas ce qu'on dit. On dit juste que pour nous, on ne voit pas la pertinence de la demande. Ça ne dit pas qu'on ne veut pas les fournir" (see MA 987-8). [ 89 ] In other words, this portion of the letter did not seek to explain the withholding of documents.

However irrelevant they were in the eyes of Les Rivières, the documents were not actually withheld. In this sense, the landlord could not have a criminal intent to withhold these documents. With respect, the judge was in error here. [ 90 ] While it is not always plain from the language employed in the letter of August 20, 2009, other documents referred to therein were also made available to Jean Bleu. These include documents in R-4 relating to the umbrella insurance policy, administrative services as well as maintenance and security wages.

On first reading, the tenor of the August 20, 2009 letter appears to suggest that all these documents were withheld but, in point of fact, as Ms. Froncioni testified, many of these documents were in fact communicated to Jean Bleu or made available to the accountant as part of the General Ledger that he consulted based on one of the earlier case management order. Ms.

Froncioni's position was that only those documents that Les Rivières considered to be confidential were actually withheld. [ 91 ] The trial judge indeed reproached Les Rivières for its intentional refusal to disclose documents that it considered to be confidential, including certain information relating to insurance contracts, salaries of named employees and the like. As the judge observed, Ms.

Froncioni freely admitted that Les Rivières refused to disclose those materials. [ 92 ] Did this mean that, at least in respect of its refusal to share confidential documents, Les Rivières had the criminal intention to defy the order? I think not, at least not according to the standard of beyond a reasonable doubt. [ 93 ] In this case, the nature of the case management order and context in which it was issued credits the view that, at the time, Les Rivières sought to take measures to protect the confidential character of materials it felt unable to share with Jean Bleu.

In the parties' exchanges with Mongeon, J., this was abundantly plain. Mongeon, J. conceived his order as one of case management; he crafted it, as we have seen, on the premise that the matter of confidentiality could be revisited. The letter sent by Les Rivières' legal counsel to Jean Bleu on August 20, 2009 did seek to respond to the order of the motions judge. New documents were conveyed to Jean Bleu, and an explanation was provided for those that were lacking.

In the opening paragraph of the letter, counsel states its understanding that the documents called for by Mongeon, J. were to be furnished "sous réserve de la confidentialité". This was Les Rivières' stated belief at this stage of the case management process. [ 94 ] The nature and context of the order, in particular the fluid character of the case management process to that time, and the unfinished business in respect of confidentiality, were not properly taken into account in the portion of the trial judge’s reasons devoted to mens rea .

Les Rivières said that it believed that it had substantially complied with the order in advance of further dealings relating to confidentiality. Its position was shaped by its understanding that Mongeon, J. had left the matter of confidentiality open until it was settled between the parties or by another judge. This argument goes to the existence of mens rea to defy the order and, with respect, it was not sufficiently answered in the judge’s reasons.

While the judge alluded to confidentiality in paragraphs [67] and [68] of the judgment, she did not consider the impact on intention of the possibility of further case management. Instead of giving proper consideration to whether Les Rivières’ conduct reflected an intent to defy the order, I am of the respectful view that the judge fixed unduly on its text – the call for an affidavit, for example, and the material absence of documents – and did not fully weigh the “spirit” in which the case management order was issued. [ 95 ] What about the affidavit?

Was the trial judge correct that Les Rivières showed a criminal intention to defy the order when it answered Jean Bleu on August 20, 2009 by ordinary letter rather than by sworn statement, as directed by Mongeon, J.? [ 96 ] Clearly from her testimony, Ms. Froncioni understood the affidavit requirement as did, needless to say, the two lawyers who assisted her in preparing the August 20, 2009 response. But at trial she explained her view that the affidavit was only required if Les Rivières did not comply with the order and that, in her estimation, Les Rivières had so complied on the deadline set of August 20.

The letter was intended, on this view, to explain that Les Rivières had complied with the order rather than to explain why it had not satisfied the requirements of the motions judge. [ 97 ] The issue is not whether, as a material fact, the letter was or was not presented in the form of an affidavit. The issue is whether in writing the letter as it did, Les Rivières allowed the trial judge to infer an intention to defy the order. That inference could not properly be made without disposing of Ms. Froncioni’s claim that she did not think the affidavit was necessary. Ms.

Froncioni may or may not have been acting under the sway of a mistake of fact, but that was the view she expressed. [25] Her testimony may or may not have been credible, but the trial judge did not address this point. At the very least, a defence to the allegation that she had deliberately defied the order in not providing the affidavit was properly raised. The judge did not consider this in the portion of her reasons devoted to the proof of mens rea . [ 98 ] The law’s treatment of civil contempt as a criminal offence and the risk of harsh sanctions attached to it are justified by proof of subjective intention.

It is certainly true that Les Rivières sent the explanation for withholding the documents on August 20, 2009 in the form of an ordinary letter and not, as Mongeon, J. had ordered, in an affidavit. It is true too that the letter did not explain the lack of disclosure of all documents mentioned in R-4. These failures to respect the terms of the order may well have constituted an abuse of process – that is a matter to be decided in a distinct proceeding that is pending before the courts.

But with due regard to the spirit in which the order was made and the whole of the evidence, it is not plain that this conduct translated into a criminal intention to defy the authority of the court in a manner consonant with civil contempt, as opposed to the otherwise available civil sanctions for abuse of process.

The possibility of a reasonable doubt as to the existence of a mens rea should have benefited Les Rivières. [ 99 ] The exceptional character of the sanctions associated with a conviction for civil contempt required proof of the full mens rea for the offence based on a proper consideration of the nature and context of the case management order. To do otherwise, in my respectful view, was to deploy contempt too readily in the circumstances. ***

[ 100 ] I would allow the appeal, set aside the trial judgment and dismiss the proceedings in contempt of court against Les Rivières, with costs throughout. NICHOLAS KASIRER, J.A.