Canada: "But I'm A Lawyer…" Supreme Court Of Canada Clarifies Mental Element Necessary For Contempt

Last Updated: May 12 2015
Article by Mark E. Fancourt-Smith

On April 16, 2015, the Supreme Court of Canada released its Reasons for Judgment in the case of Carey v. Laiken, 2015 SCC 17, clarifying that a specific intention to breach a court order is not necessary for a finding of contempt, and clarifying when a Court can and cannot revisit a finding of contempt that it has previously made.

Mr. Carey was counsel for Mr. Sabourin and his companies in a case involving offshore investments that had gone poorly. Ms. Laiken had invested heavily with Mr. Sabourin and his group of companies. The money was lost and, after Mr. Sabourin sued Ms. Laiken for $364,000, alleging a deficit in her margin account, she counterclaimed for $800,000 claiming that he had defrauded her.

During the proceedings, the Ontario Superior Court of Justice issued a Mareva injunction, freezing the assets of Mr. Sabourin and his companies pending trial. As is customary in Mareva injunctions, the order prohibited not only the respondents, but also anyone with knowledge of the order, from disposing or otherwise dealing with any of Mr. Sabourin's assets.

A few months after the initial order, Mr. Carey received a cheque for $500,000 from Mr. Sabourin, with no explanation or instructions, and deposited it into his trust account. After first instructing Mr., Carey to use the money to try and settle with unrelated third party creditors (instructions that were wisely declined) Mr. Sabourin told Mr. Carey to use the funds to try and settle with Ms. Laiken instead, something within the injunction's scope.

However, after failing to reach a settlement with Ms. Laiken's counsel, during which time Mr. Carey did not mention the existence of the trust funds, Mr. Carey agreed to return the balance of the funds to Mr. Sabourin – after deducting a further amount for future legal fees, given that the parties had agreed that the injunction did not prohibit payment of fees. Mr. Carey accordingly re-transferred $440,000 to Mr. Sabourin. A month later, Mr. Sabourin told Mr. Carey he was terminating the retainer, went out of business, and disappeared.

Meanwhile, other creditors of Mr. Sabourin obtained judgment against him and put his assets and companies into receivership. The receiver learned of the funds that Mr. Carey had at one time held, and demanded an accounting. By then, only $6,000 remained. After Ms. Laiken obtained summary judgment dismissing Mr .Sabourin's initial claim and granting her counterclaim, she obtained an order holding Mr. Carey in contempt of court for breaching the Mareva injunction by releasing the funds to Mr. Sabourin.

At a subsequent hearing to determine the penalty for the contempt, however, the motions judge revisited her decision. Mr. Carey now testified that he thought that he had been acting in accordance with his professional obligations, simply returning the money that was in excess of what was required for legal fees, and that did not count as a "transfer" of the funds. He also claimed that he thought he had an obligation, arising out of solicitor-client privilege, not to alert counsel for Ms. Laiken to the existence of the funds at the time, and that extended to justifying their release. The motions judge reversed herself, deciding that the terms of the order may not have been clear to Mr. Sabourin and doubting whether or not Mr. Carey's interpretation of it was deliberately and wilfully blind.

The Ontario Court of Appeal unanimously allowed the appeal and restored the initial contempt finding. While it accepted that Mr. Carey did not specifically desire to breach the order, that was not a necessary element to establish in order to find him liable for civil contempt. Mr. Carey knew of a clear court order and committed an act that violated it: that was all that need be shown. Mr. Carey appealed.

There were two issues before the Supreme Court of Canada:

  1. What is the required intent necessary to find contempt?
  2. Was the motions judge permitted to revisit the initial decision finding Mr. Carey in contempt?

Mr. Carey argued that where someone a) could not purge the contempt in question, b) is a lawyer, or c) is a third party to the order, then to find contempt, a Court must find that the person specifically intended to disobey the order, i.e.: they intended to be in contempt. In contempt cases, the alleged contemnor is often given the chance to "purge" their contempt, i.e.: to undo the action that has breached the court order, or to comply with the order, before punishment for the contempt is imposed. Here, there was no way for Mr. Carey to get the money back, and he argued that he thought he was acting in accordance with professional obligations.

The Court rejected this wholeheartedly, reaffirming that the elements for civil contempt are as follows, to be proved beyond a reasonable doubt:

  1. There must be an order that states clearly and unequivocally what must or must not be done;
  2. The party alleged to have breached the order must have had actual knowledge of it; and
  3. The party allegedly in breach must have acted intentionally, in doing what the order prohibits, or not doing what it requires.

The Court held that to create a heightened requirement for the mental element of civil contempt where the contempt could not be purged, or where a lawyer felt he or she had a conflicting legal duty, was neither consistent with the jurisprudence nor with the goals of civil contempt: securing compliance with court orders and protecting the integrity of the administration of justice. There was no logic or justice in requiring a higher standard, and no reason to "treat with special charity" people whose own actions had made further compliance with the order impossible.

The Court also held that requiring a specific intent to breach a court order would put the test too high and make the mental element of contempt dependent on the type of order alleged to have been breached. It would open the door to mistakes of law as defences, with the perverse result that mistakes of law "become a defence to an allegation of civil contempt but not to a murder charge."

Mr. Carey's plea that lawyers should be held to a different standard fell on deaf ears. There was no reason to treat lawyers differently than others in determining the mental element of contempt. Given that reliance on legal advice does not shield parties from a finding of contempt, there was no reason to depart from that principle just because the legal advice the contemnor was relying was his own. Mr. Carey's argument that the "repayment of excess fees" was not a "transfer" as prohibited in the order was dismissed out of hand. He was aware that the order prohibited transfers and giving the money back to Mr. Sabourin was clearly a transfer. If he had doubts as to his obligations, or obligations with respect to disclosure of the funds' existence, he could have left the money in his trust account while they were clarified.

The Court held that the motions judge had erred by revisiting her original decision finding Mr. Carey in contempt. The starting point is that, in contempt proceedings, where an initial finding of contempt has been made at the first stage of a two-part proceeding on guilt and penalty, it is usually final. Where a party purges its contempt or complies with the order, or – in exceptional cases — if new evidence comes to light, then a court may revisit the original finding. However, in this case, the motions judge allowed Mr. Carey to relitigate the original contempt finding by offering evidence as to his intentions. In doing so, she erred, and erred further in setting her original decision aside.

While Carey does not break new legal ground, it is an important reaffirmation of the goals and elements of civil contempt, and shows the Court's reluctance to allow exceptions, or to create different classes of alleged contemnors. Its reluctance in this respect extended most of all to lawyers who should know the paramount importance of complying with court orders and protecting the administration of justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Mark E. Fancourt-Smith
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions