The Plaintiff obtained an Order which stated, inter alia, that the Defendant, Postmedia, would preserve for disclosure and production all relevant and material records related to the Action. For a short period of time, Postmedia “automatically” deleted 30 day old logs, which occurred in their system as a matter of routine. The evidence demonstrated, however, that the records were available from another source.

The Plaintiff sought an Order declaring Postmedia to be in civil contempt. Sullivan J. reviewed Rule 10.52, and stated that, in order to make a finding of civil contempt, the Court must first find “(1) an existing requirement of the Court; (2) notice of the requirement to the person alleged to be in contempt; and (3) an intentional act (or failure to act) that constitutes a breach of the requirement”.

Upon reviewing the facts, Sullivan J. concluded that the Defendants acted “reasonably and with diligence to carry out the Order” and that there had “not been any intentional destruction of material upon which [Sullivan J.] could make a finding of contempt”.