The Applicant applied to find the Respondents in civil contempt of a Court Order to retrieve and destroy solicitor-client privileged information improperly disclosed to third parties. Some of the Applicants also applied have the Respondent’s Statement of Claim struck.

The Court reviewed civil contempt cases and noted that, for each allegation of civil contempt, the Applicants must demonstrate beyond a reasonable doubt that:

• The Order stated clearly and unequivocally what the Respondent must do or must not do;
• The Respondent had actual knowledge of that requirement; and
• The Respondent intentionally failed to satisfy that requirement.

The Court noted that a Court Order requires a person to make all reasonable efforts to comply. This requirement is consistent with the wording of Rule 10.52(3), which allows a person to avoid a finding of civil contempt by demonstrating a reasonable excuse for non-compliance.

The Court found the Respondents in civil contempt. Among other things, the Respondents argued that the Court of Appeal placed privileged information on the public record and that constituted a reasonable excuse for failing to comply with the Court Order. The Court of Appeal addressed this issue and determined that privilege had not been lost. Justice Jeffrey noted that Rules 9.12-9.16 mean that a Court Order believed to be made in error continues to stand and be binding until it is set aside on appeal, lawfully quashed, or set aside by its author.

After finding the Respondents in civil contempt, Justice Jeffrey noted the broad discretion the Court has to impose a penalty for civil contempt under Rule 10.53. The Court invited the parties to arrange a second hearing to make submissions on the appropriate penalty.