Canada: Contempt Of Court And The Impact Of The Nadeau-Dubois Case On Labour Law

Last Updated: February 21 2017
Article by Charles Wagner and Raphaël Buruiana

When negotiating individual employment contracts, employers and employees often agree to include clauses whose effects continue once the contractual relationship has ended. Such clauses generally cover confidentiality, non-competition, or even non-solicitation of employees or clients.

Provided the clauses are reasonable1, an employer who discovers that one of these obligations has been breached by an employee may institute any appropriate action before the relevant civil courts.

Employers will seek provisional or interlocutory injunctions to force an employee to comply with a non-competition or non-solicitation clause. Once such an order has been obtained, the employee will then have the additional obligation of complying with the court order.

These orders may also be issued against any unionized workplace association. Orders can be issued during an illegal strike to restore the industrial peace at a company2. Moreover, and while on many occasions the jurisprudence has recognized a union's freedom of expression, that right is not absolute, particularly with respect to defamation. In such a situation, the employer is entitled to apply to the courts to have said defamation towards an employee, an executive, the president, or even the company itself, cease3.

Every year, many employers expend considerable effort in obtaining Court orders to prevent unions or staff from harming their organization.

In some cases additional proceedings are required to ensure compliance with the original order. This text therefore discusses the nature of the burden of proof on an employer seeking a contempt of court order to ensure compliance with orders issued against various entities or individuals.

Obligation to comply with court orders

Under section 58 of Quebec's new Code of Civil Procedure4 (hereinafter the "Code"), a person who disobeys a court order or injunction or acts in such a way as to interfere with the orderly administration of justice or undermines the authority or dignity of the court is guilty of contempt of court. The section also provides that where the order issued is an injunction, a person not named in an injunction [...] who disobeys that injunction [...] is guilty of contempt of court only if the person does so knowingly.

Pursuant to section 62 of the Code, contempt of court is punishable by a fine not exceeding $10,000 or community work, to which a term of imprisonment up to a maximum of one year may be added. The sanction for such contempt is therefore penal, not civil. This is due to the fact that the purpose of a contempt order is to ensure that court orders are respected and that a party to a proceeding cannot breach an order with impunity. For example, the penalty for failing to comply with an order enjoining an ex-employee from competing against his former employer cannot be strictly pecuniary, representing solely the damages the former employer has incurred and will continue to incur. But what about an order issued not just against an individual, but against a group, such as a union or even a group of employees that is harming the employer?

That was the issue addressed by the Supreme Court of Canada on October 27, 2016, in Morasse v. Nadeau-Dubois, 2016 SCC 44. The facts in that case date back to the student protests in response to the provincial government's plan, at the time, to increase tuition fees. Some of you will remember these events as the "Maple Spring".

The respondent, Gabriel Nadeau-Dubois (hereinafter "Mr. Nadeau-Dubois"), represented a student association (the CLASSE) and the appellant, Jean-François Morasse (hereinafter "Mr. Morasse"), was a student who had obtained an injunction preventing the student associations from blocking access to classes and buildings at certain universities.

Mr. Nadeau-Dubois commented during a television interview that he believed it was [translation] "perfectly legitimate for students to take action to uphold the democratic choice that was made to go on strike. It's quite unfortunate that there's really a minority of students who're using the courts to circumvent the collective decision that was made". Mr. Morasse considered that Mr. Nadeau-Dubois was encouraging the protesters to contravene the decisions rendered by the courts, and instituted proceedings for contempt of court against Mr. Nadeau-Dubois.

The trial judge held Mr. Nadeau-Dubois in contempt of court because an association that had been served with the injunction was a member of the CLASSE. It could therefore be inferred that Mr. Nadeau-Dubois knew about the injunction. The Court of Appeal set aside the initial decision, holding that it was impossible to establish that Mr. Nadeau-Dubois had knowledge of the specific order issued by the trial judge or its content.

In a split decision, the Supreme Court of Canada dismissed the appeal and confirmed the decision of the Court of Appeal of Québec. The Supreme Court of Canada therefore concluded that when a particular order or injunction is at issue, the plaintiff must prove that the individual accused of contempt of court had actual or inferred knowledge of the content of the specific order, and that this knowledge cannot be inferred from the conduct of others, or from service of the order on other persons.

Given that the burden of proof was "beyond a reasonable doubt", the plaintiff also had to prove that the defendant:

  1. intentionally did the act that the order prohibited;
  2. interfered with the orderly administration of justice: or
  3. impaired the dignity of the court by encouraging others to breach the previously issued order.

Considering that no copy of the injunction had been personally served on the defendant, the Supreme Court of Canada concluded that he had no direct or inferred knowledge of that decision, and therefore could not have intended to breach the said order.

The dissenting judges were of the opinion that it was not necessary to prove specific knowledge of the injunction order. This recourse is justified when used to protect the integrity of the justice system and ensure that system's credibility in the eyes of the public. According to the minority, the application of the contempt criteria cannot and should not be so arduous as to render the recourse purely theoretical. Given the facts of the case, the dissenting judges concluded that Mr. Nadeau-Dubois knew of the existence of the order, or at the very least, of similar orders, and that he urged others to breach them. In so doing, his conduct impaired the authority of the court because (i) he knew of the existence of one or more orders and (ii) was in a position to know that his acts or words were contrary to those orders.

Impact of this decision on labour law

Although this decision was rendered in an educational context and appears unrelated to labour law, it is analogous to an order or injunction issued against a union or group of employees.

Where a court order is issued against and served on a union, it cannot be inferred that each union member has knowledge of such an order. Even though orders are often posted to the walls of the business to ensure that the workers have knowledge of that order, where it is breached by an employee, an employer will have to prove that the employee had specific knowledge of that order, which is often a difficult, if not impossible, burden of proof to satisfy.

That said, as was the case in the above-cited Morency, when the order applies to a relatively limited or easily identifiable group, the employer should serve each group member with the order to ensure that the knowledge criterion will be met when the time comes to institute an action in contempt of court.

Upon reading the Supreme Court's recent decision, employers would be justified in serving any order not only on union leaders, but also on any person that the employer believes makes, or can make, statements contrary to the issued order. While this may be possible for a small company, it is less so for a medium to large company where knowledge of the order by some will not prevent its being breached by others.

This article first appeared in the January 2017 issue of VigieRT – published by the Ordre des conseillers en ressources humaines agréés.


1 See the criteria listed in the second paragraph of article 2089 of the Civil Code of Québec (hereinafter the "C.C.Q.").

2 Gestion Iamgold-Québec inc. c. Corporation du conseil provincial des métiers de la construction (international), 2010 QCCS 7079.

3 Morency c. Syndicat des débardeurs, 2014 QCCS 5199.

4 CQLR c. C-25.01.

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.

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