The Plaintiff signed a real estate purchase contract for nine parcels of forested land. The Plaintiff was interested in the lands and the timber located on the lands. An Action was brought by the Plaintiff seeking specific performance, or damages in lieu thereof, with respect to the real estate sale transaction which the Defendant refused to close. The lawyer performing the closing was named as a Third Party by the Defendant. The Defendant subsequently sold all the wood products to another party, kept the proceeds, and started to remove gravel product from the subject lands. Multiple attempts were made, including two court Orders, to compel the Defendant to answer Undertakings necessary to address the issue of damages. The Defendant still failed to provide answers. The Plaintiffs brought an Application for Contempt pursuant to Rules 10.52 and 10.53.

Lee J. noted that it was significant in relation to the Application that the two prior Court Orders referred to the same Undertakings. The standard of proof in civil contempt is proof beyond a reasonable doubt and is comprised of both the required action and the required mindset, i.e. an actus reas and mens rea. The requirements for finding civil contempt are:

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 without adequate excuse.

Upon review of the two Court Orders to compel Answers to Undertakings, the history of the delays, as well as a review of the Undertakings and the answers in conjunction with the orders, Lee J. held that, pursuant to Rule 10.52, the alleged contempt was made out as it was clear that the Defendant had not answered the Undertakings in dispute.

In determining the appropriate remedy for the contempt, in accordance with Rule 10.53, Lee J. reviewed the basic nature of the claim. He held that a fine was not appropriate given that it would not achieve the answers to the questions sought. Nor was it appropriate to strike the Defence as the Plaintiff would still be in the current position of having to proceed to an Assessment Trial to prove its damages. Lee J. held that the appropriate remedy for contempt in this case was to require the Defendant to pay all fees and costs associated with the Application incurred by the Plaintiff and the Third Party on a solicitor-client basis.