No Contempt for the Fault of Another Person
Canadian Private Copying Collective v. Yeung 2009 FC 800 (Martineau, J.)

August 5, 2009

Madeleine Lamothe-Samson for the Applicant, Canadian Private Copying Collective (“CPCC”)
Igor Ellyn for the Respondent, Yeung

CPCC sought an order to hold Mickey Yeung (“Yeung”) in contempt of court under Rule 466(b) of the Federal Courts Rules (Rules) for disobeying an order of the Court in his failure to make the records of Fuzion available to CPCC’s auditor.
Yeung had resigned as a director of Fuzion and Fuzion was dissolved prior to the issuance of the Order for which CPCC is seeking contempt of court.

Civil contempt is criminal or quasi-criminal in nature because the penalty for contempt of court involves an element of public law given that the issues of respect for the role and authority of the courts, the rule of law, and proper administration of justice are engaged. Because of the possibility of deprivation of liberty, Section 7 of the Canadian Charter of Rights and Freedoms applies to contempt proceedings under the Rules. Rule 466(b) cannot create an absolute liability offence because of the potential of imprisonment. The alleging party has the burden of proof to show beyond a reasonable doubt that the alleged contemnor exhibited a prima facie case of willful and contumacious conduct, in that the alleged contemnor stubbornly and intentionally refused to comply with the order. In order to find civil contempt, it is necessary to show that the alleged contemnor had knowledge of the order and there was an intension to do or to refuse to obey the Court order. Personal service of the court order to the alleged contemnor proves actual knowledge of the Court order and permits the Court to infer that the breach was willful and deliberate. This inference must be weighed against any viva voce evidence given by the alleged contemnor at the hearing.

Where the evidence is clear that the director or officer did all he could to obey a court order and a breach occurred without the fault of the director or officer, the director or officer should not be held in contempt of court. Evidence of impossibility to comply or due diligence may be a legitimate excuse for not complying with the terms of an order or injunction.

The Court accepted Yeung’s defence of due diligence and impossibility to comply with the order and found that Yeung was not in contempt of court. The Court found that the failure to comply with the Order to provide Fuzion’s records was unintentional and that it was physically impossible for Yeung to comply with the Order because Yeung and his company had no property rights in Fuzion’s records. Yeung could not be found in contempt for the fault of another person.

By: Teresa Cheung, Wires Jolley LLP