Can You Go to Jail for a Civil Case?

Like Congressman Devin “Secret Depositions” Nunes dodging Maria Bartiromo’s pointed question about his recent sojourn in definitely-not-Vienna to dig up political dirt on the Bidens, the answer to the above question isn’t quite so straightforward as we’d all like.

In this instalment of the Sutherland Law Blog, the answer to that question is generally no. But it depends! You could go to jail for a civil case… but most likely you won’t. Alas, if it were up to me to phrase the titles for these blog posts, it should properly read, “Enforcement of Judgments: Mechanisms to Ensure Compliance and Preserve the Proper Functioning and Administration of the Civil Justice System”. But, then again, I’m not being paid by the word to author this blog post.1

To ensure that court orders made in the context of civil law proceedings are complied with, an uncommon route that aggrieved parties pursue is civil contempt. Civil contempt is quasi-criminal in nature, which means that it carries with it certain distinguishing qualities one would see in a criminal matter.2What this also means is that the penalties involved, where a finding of civil contempt is made, include fines and even imprisonment in certain circumstances.

The saga of Francis Mella, an unassuming bookkeeper who committed substantial fraud against his employer, provides a useful illustration of the escalating steps a court can take in order to compel compliance with its orders. The facts of Mr. Mella’s case aren’t quite so material to this discussion, but what is relevant is that he was subject to a court order restricting his monthly household expenditures.3

An application was brought by the plaintiff seeking to hold Mr. Mella in contempt when it discovered that he repeatedly overspent that judicially allotted monthly figure. Mr. Mella was found in contempt and ordered to make certain payments to the plaintiff to purge his contempt. Mr. Mella again failed to purge his contempt and was then brought back before the Court to purge his contempt by paying certain monies to both the plaintiff and the court, failing which he would be required to show cause as to why he should not be imprisoned pending purging his contempt. Of course, as fraudulent bookkeepers are wont to do, Mr. Mella failed to comply with both Court orders and was eventually sentenced to three months’ imprisonment.

With that being said, however, it’s important to bear in mind that civil contempt proceedings are extremely rare in the Canadian legal experience, particularly that of civil lawyers in Vaughan.

In Carey v. Laiken, 2015 SCC 17, the Supreme Court of Canada had the opportunity to set down authoritative guidance setting out when a finding of civil contempt is warranted: The order alleged to have been breached must state clearly and unequivocally what should and should not be done; The party alleged to have breached the order must have had actual knowledge of it; and The party alleged to have breached the order must have intentionally done the prohibited act or failed to do the act required.4

The Supreme Court of Canada then went on to caution in no uncertain terms that “contempt of court cannot be reduced to a mere means of enforcing judgments”. And further, “[I]t should be used ‘cautiously and with great restraint’… . It is an enforcement power of last rather than first resort”. A “heightened” standard of proof of beyond a reasonable doubt is also required to be met for there to be a finding of civil contempt.5

This neatly brings us back to the prolixity at the top of this page. A court considering a civil contempt proceeding retains final discretion in determining whether a contempt finding should be made and what sort of remedy should be fashioned to address the contempt. There is no set-in-stone answer to respond to the infinite circumstances when a court may decide that imprisonment is an appropriate penalty to impose. What seems to have caused the Mella Court to throw the book at Mr. Mella was his repeated intentional and flagrant defiance of court orders by taking active efforts to impede their enforcement.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of Sutherland Law's Lawyers by email or telephone.