Docket: T-969-16
Citation:
2017 FC 592
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 16, 2017
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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SOCIÉTÉ DE
TRANSPORT DE L’OUTAOUAIS
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Applicant
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and
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SYNDICAT UNI DU
TRANSPORT
(LOCAL 591)
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
The Société de transport de l’Outaouais [the
STO] is requesting an order declaring the Syndicat uni du transport (Local 591)
[the Syndicat] guilty of contempt of Court for violating the enforcement order
rendered on September 6, 2016, by Mr. Justice Locke [the Order].
[2]
This judgment follows the show cause order
issued on November 23, 2016, by Mr. Justice Annis pursuant to rule 467 of the Federal
Courts Rules, SOR/98-106, which directed the Syndicat to appear before a
judge to hear the evidence of contempt of Court against it and be ready to
present a statement of defence.
[3]
In short, the Court concluded that the STO had
not discharge its burden of proof. The STO did not demonstrate that the Order
it cited, on the face of it, allowed the Syndicat to know the actions it needed
to take. Therefore, the Court rejects the allegation of contempt of Court
against the Syndicat.
II.
Background
[4]
The STO is a corporation providing an urban
public transportation system to the residents of the municipalities of
Gatineau, Cantley and Chelsea. The Syndicat is an accredited association of
employees as defined in the Canada Labour Code RSC 1985, c. L-2, that
represents the STO’s city drivers and maintenance employees.
[5]
The parties are bound by a collective labour
agreement that contains Appendix “H,” adopted
some thirty years ago, namely the “Entente relativement
à l’administration du programme de remplacement du revenu en cas d’invalidité
de longue durée” [Long-term disability income replacement program
administration agreement]. The wording of Appendix “H”
is presented in the appendix.
[6]
Appendix “H”
provides that the Syndicat purchase long-term disability insurance for its
members, underwritten by the SSQ-Life company until January 1, 2015. Appendix “H” also provides that the STO take responsibility for
a long-term disability income replacement program and lists the five tasks that
the STO must carry out.
[7]
However, on January 1, 2015, the Syndicat
changed insurance companies to purchase an insurance policy with Industrial
Alliance [IA] in place of SSQ-Life.
[8]
On March 5, 2015, the STO filed a grievance
alleging that the Syndicat violated the agreement and that, more specifically,
the Syndicat failed to carry out its obligations following a change in
insurance company, by acting as though Appendix “H”
was null and void.
[9]
On May 5, 2016, Arbitrator Renaud Paquet
reached a decision on the grievance. He declared that Appendix “H” of the collective agreement remained in effect
even if the insurer changed and ordered that the Syndicat take measures to
ensure that the STO be able, by May 20, 2016, at the latest, to fully perform
the tasks assigned to it by Appendix “H” of the
collective agreement.
[10]
On May 16, 2016, Charlène Auclair, on behalf of
the STO, sent the Syndicat the list of documents that STO deemed necessary to
receive for the Syndicat to carry out the tasks assigned to it under Appendix “H”;
[11]
On June 6, 2016, the STO asked the arbitrator to
supplement his decision by specifying which documents the Syndicat had to
provide to the STO for it to carrying out the tasks assigned under Appendix “H.”
[12]
On June 21, 2016, the Court issued a certificate
of a filing for the arbitration award pursuant to section 66 of the Canada
Labour Code and rule 423.
[13]
On August 31, 2016, Arbitrator Paquet responded
to the request made by the STO on June 6. He affirmed that he is functus
officio and therefore does not have the jurisdiction to list the documents
to which the STO is entitled. Moreover, the arbitrator noted that [TRANSLATION] “the real dispute between the parties has
absolutely nothing to do with the series of information that the Syndicat
should send the employer so that it can carry out its duties under Appendix
'H.'” Nothing in the documentation submitted to me at the hearing supports that
the parties do not agree on the information that should or should not be
submitted to the employer by the Syndicat. Rather, this documentation indicates
that the parties have not discussed the issue” (at paragraph 21).
[14]
On September 6, 2016, Locke J. granted the
motion for enforcement of the arbitration award presented by the STO in
accordance with rules 423 and 431. Locke J. takes no position with respect to
the list of documents required by the STO, indicating that these documents are
the STO’s interpretation of what the order requires and that it is neither
necessary nor appropriate to extend the scope of the order by adding a
reference to those documents (at paragraph 23). He granted the motion and ordered
the Syndicat [translation] “to immediately take the measures” to allow the STO to
fully perform the tasks assigned to it under Appendix "H."
[15]
On October 28, 2016, the STO presented a motion
to obtain an order under rule 467 requiring the Syndicat to appear before a
judge of this Court and be prepared to present a defence to the charges of
contempt of an order of this Court, an order served on November 23, 2016 by
Annis J.
[16]
On January 24, 2017, and January 25, 2017, the
Court heard the parties.
III.
Issue
[17]
The Court must determine whether the STO has
proved beyond reasonable doubt that the Syndicat was in contempt of Court.
IV.
Parties’ positions
A.
STO’s Position
[18]
The STO called three witnesses: (1) Charlène
Auclair, chief of human resources management at the STO; (2) Isabelle Roy, OHS
adviser at the STO; and (3) Nicolas Ribot, STO service representative and
Syndicat member.
[19]
In its argument, the STO referred to the facts
and stated the issue and applicable law. It maintained that it had proved
beyond a reasonable doubt the elements of the contempt of Court, namely: (1)
the existence of the Order; (2) the Syndicat’s knowledge of it; and (3) the
Syndicat’s deliberate failure to comply with it (Canadian Union of Postal
Workers v Canada Post Corporation, 2011 FC at paragraph 19).
(1)
The existence of the Order
[20]
The STO first stated that the existence of the
Order was proved beyond a reasonable doubt because: (1) the existence of
Arbitrator Paquet's arbitration award of May 5, 2016, has been proved (Exhibit
R-B); (2) the filing of the arbitration award in the Federal Court on June 21,
2016, has been proved (Exhibit R-F); and (3) the existence of Locke J.’s
September 6, 2016 Order has also been proved (Exhibit R-H).
[21]
The STO stated that the events which took place
before the Order are not merely contextual evidence but rather establish the
progression of measures taken before resorting to the motion for contempt, and
the continuity of the Syndicat’s behaviour with respect to the arbitration
award, which is essentially found in the Order.
[22]
Regarding the clarity and interpretation of the
Order, the STO agrees with the Syndicat’s proposal that the wording of an order
must be interpreted in their grammatical and ordinary sense, within the context
of the order.
[23]
The STO submits that the Court must consider the
particular context in which the Order was imposed, as well as its purpose and
intent, and that failure to respect the intent of the Order, just as its
literal provisions, constitutes contempt. Thus, the STO is relying on the
decision of the Competition Tribunal of Canada in Canada (Director of
Investigations and Research: Competition Act) v Chrysler Canada Inc.
(1992), 44 CPR (3d) 430.
[24]
However, in this case, the context of the Order
is clear: the STO is responsible for administering the long-term disability
income replacement program, in the overall framework of the Agreement, even if
the Syndicat is the policyholder. The purpose of Appendix “H” is clear and unequivocal: the STO has full
responsibility for administering the long-term disability income replacement
program. The intent of the Order concerns the plan’s administration.
[25]
Thus, according to the STO, the context of the
Order is not ambiguous: the parties have an enforcement order that was issued
in a context in which the Syndicat wilfully failed to carry out an arbitration
award for about four months.
[26]
The STO believes the terms of the Order were
succinct, imperative, clear and explicit. The Order refers explicitly to
Appendix “H” which has remained unchanged for 30
years and its interpretation has never posed a problem to the Syndicat before.
In that regard, the STO referred to the testimonies of Ms. Auclair and Ms. Roy
to the effect that Appendix “H” has been in
effect for a long time, which was also noted by Locke J. when he said: [TRANSLATION] “The order refers the respondent to
Appendix 'H,' which has existed between the parties for 30 years (through
several renewals of the collective agreement) with no indication of difficulty
of interpretation” (at paragraph 22).
[27]
Even assuming that there is a real problem with
the interpretation of the Order, which the STO expressly denies, the Syndicat
should at least comply with its obligations under Appendix “H,” such as: [translation]
“The Syndicat uni du transport (local 591) city drivers
and maintenance staff shall notify and authorize the insurer to send all
documents regarding claims and billing directly to the Société de transport de
l’Outaouais OSH and social benefits adviser and finance branch.”
[28]
Regarding the decision by Arbitrator Paquet on
August 31, 2016, the STO directed the Court to paragraph 23, in which the
arbitrator specifies: [translation]
“The real issue before me has nothing to do with the
clarifications to be made to my decision on May 5, 2016, but rather to the
Syndicat’s refusal to comply with it.” Therefore, contrary to the
Syndicat’s claims, the issue that was presented to the arbitrator was the
Syndicat’s refusal to comply with the decision.
(2)
The Syndicat’s knowledge of the Order
[29]
Second, the STO argued that the Syndicat’s
knowledge of the order was also proved beyond a reasonable doubt. According to
the STO, the Syndicat was aware of the arbitration award, its filing in Court
and Locke J’s Order on September 6, 2016.
[30]
In her letter dated May 16, 2016, to Félix
Gendron, Exhibit R-C, Ms. Auclair discussed only the arbitration award. Mr.
Gendron knew about it because he sent Ms. Auclair a letter dated May 20, 2016,
in which he said he wanted to challenge it with a judicial review (Exhibit
R-E).
[31]
Moreover, the arbitration award was filed with
the Court on June 21, 2016, and the certificate of a filing was reported to the
Syndicat by fax and its counsel by e-mail on June 29, 2016 (Exhibit R-G).
[32]
Lastly, the STO noted that the Syndicat found
out about the Order by Locke J. on September 6 or September 7, 2016, as Mr.
Gendron admitted during examination and cross-examination.
(3)
The Syndicat’s deliberate failure to comply with
the Order
[33]
Third, the STO argued that the Syndicat’s
failure to comply with the arbitration award and Order was proved beyond a
reasonable doubt.
[34]
The STO first referred to Mr. Gendron’s
testimony, in which he said that the information requested was not available;
then testified that he did not understand the arbitrator’s decision; and
finally indicated that he thought the Syndicat gave the STO all the long-term
disability files. However, the STO noted that Mr. Gendron had not produced
anything in writing to confirm his claims, and there is no evidence that the
Syndicat was actually confused about the situation, apart from Mr. Gendron’s
testimony. On the contrary, the STO submits that it made specific and detailed
demands of what it wanted from the Syndicat.
[35]
Moreover, the STO referred to Mr. Gendron’s
testimony that the STO does not need to receive billing documents, even though
it is clear in Appendix "H" that this is the STO’s task.
[36]
The STO drew the Court’s attention to Exhibit
R-M, where it is clear that Mr. Gendron refused to give the STO access to
billing documents from the insurer or otherwise; and to Exhibit R-T and Mr.
Gendron’s testimony in cross-examination, which reveal that the Syndicat has
authorization to let the insurer share all documents regarding claims and
billing directly with the STO. According to the STO, [translation] “the issue is not to
determine whether a particular document had to be sent [by the Syndicat to the
STO], based on its interpretation, but rather to determine whether [the
Syndicat] deliberately failed to immediately take the necessary measures for
the [STO] to administer this insurance.” (STO reply memorandum to
paragraph 41).
[37]
The STO noted that it was not until September
20, 2016, two weeks after the Order was given, that the Syndicat started to
take action, providing only the contact person’s contact information and a copy
of the insurance contract. However, although the Syndicat argued it did not
have enough time to act, the STO submitted that this argument should be
rejected because the Syndicat is free to choose its priorities, and its first
priority should have been to comply with the Order, especially because the
Order stated that the Syndicat was to act “immediately.”
Otherwise, the Syndicat could have asked the Court for more time, which it did
not do.
[38]
The STO also argued that there was no doubt that
the Syndicat had an agreement with IA that as of October 14, 2016, all
communications would be sent directly to the Syndicat instead of the STO, which
contradicts the terms of Appendix "H" to the effect that the Syndicat
must notify and authorize the insurer to send all documents regarding claims
and billing directly to the Société de transport de l’Outaouais OSH and social
benefits adviser and finance branch.
[39]
Thus, the STO referred to Ms. Roy’s testimony,
in which she set out that she had no way of knowing what information is sent to
her by the Syndicat and named two employees, Ms. Courville and Mr. Corbeil, for
whom the long-term disability files were not sent by the Syndicat.
[40]
The STO also drew the Court’s attention to Mr.
Ribot’s testimony. In this regard, the Syndicat argued that the letter sent to
the employees by Ms. Roy on October 14, 2016 (Exhibit R-W) was not valid and
that the Syndicat continued to administer the long-term disability insurance
plan. The STO considers that this testimony clearly illustrates the Syndicat’s
disobedience to the Order.
[41]
Regarding the Syndicat’s intentions, the STO
submitted that the Syndicat did not prove mens rea (Brilliant Trading
Inc v Wong, 2005 FC 1214 at paragraph 15 [Brilliant Trading]), but
rather a deliberate failure to comply with the Order. The issue of good faith
is not relevant in determining the Syndicat’s guilt either; it is only relevant
in terms of sentencing, if applicable (Brilliant Trading).
[42]
In this case, the STO maintains that the
evidence is unequivocal that the Syndicat acted deliberately and thoughtfully:
it chose not to act until two weeks after the Order was issued; it started to
carry out only part of its responsibilities on September 20, 2016; it made an
agreement with IA to use communications channels contrary to those required in
Appendix “H”; and it gave instructions to Mr.
Ribot between October 14 and 28, 2016, to the effect that Ms. Roy’s letter
(Exhibit R-W) was not valid. However, the evidence demonstrates that the
Syndicat knew these instructions were not consistent with the Order because it
instructed Julie Charbonneau to communicate directly with the STO regarding her
long-term disability claim, or there would be “contempt
of Court.”
[43]
Lastly, the STO addressed the alleged truce by
the Syndicat by initially asking the Court to be prudent in weighing the
credibility of Josée Moreau and the probative value of her testimony. It argued
that nothing in the evidence supports the conclusion that the truce Ms. Moreau
mentioned in her testimony dealt with suspending the execution of the Order and
that, even if that was the case, a court order remains in effect and must be
respected until it is set aside at the end of a judicial process, regardless of
any agreement between the parties.
[44]
In short, according to the STO, the evidence maintains,
beyond a reasonable doubt, that the Syndicat circumvented or possibly set aside
Appendix “H” and therefore deliberately
disobeyed the Order. Thus, the STO asked this Court to declare the Syndicat
guilty of contempt of Court pursuant to rule 466 of the Federal Courts Rules
and call the parties at a later date for the submissions on sentencing, with
costs.
B.
Syndicat’s Position
[45]
The Syndicat called three witnesses: Julie
Charbonneau, STO city bus driver; (2) Josée Moreau, barrister and solicitor for
the Syndicat; and (3) Félix Gendron, president of the Syndicat.
[46]
The Syndicat noted that this Court must
determine whether it has disobeyed the Order, all the elements prior to
September 6, 2016 were only contextual evidence, and claimed that (1) the Order
is not sufficiently specific; (2) the STO did not meet its burden of proving a
deliberate failure on the part of the Syndicat.
(1)
The Order
[47]
The Syndicat submitted that the order was not
sufficiently specific for it to know its exact obligations. Thus, the Syndicat
referred to this Court’s wording in its Canadian Union of Postal Workers v
Canada Post Corporation, 2015 FC 355 decision at paragraph 61:
I consider that the arbitration award does
not give any insight into whether and why the arbitrator interpreted the scope
of the deviations permitted by Appendix BB and that it does not clearly dictate
how the respondents were to interpret Appendix BB when they applied it to
employees who had actually cited individual circumstances. In the absence of a
specific reference in the reasons or the disposition of the arbitration award,
I find that the arbitration award is not sufficiently clear and precise to give
rise to a finding of contempt of court. There remains an ambiguity as to
whether or not the arbitrator dealt with the scope of the deviations permitted
when Appendix BB is applied. In addition, if the arbitrator dealt with it
implicitly, I consider that her award is not sufficiently precise in this
regard to ground a finding of contempt of court.
[48]
Furthermore, on June 6, 2016, the STO asked
Arbitrator Paquet to elaborate on his decision, as it appears in a second
arbitration award rendered by that arbitrator on August 29, 2016 (Exhibit I-1).
[49]
The Syndicat also referred to the documents
identified by the STO in its motion for enforcement and to Locke J. in that
regard, namely:
[translation]
It follows from the conclusions in the preceding paragraph that it is neither
necessary nor appropriate to extend the scope of the order by adding a
reference to the documents listed by the applicant. Those documents are
simply the applicant's interpretation of what the order requires, and I
will not take a position on this issue. It suffices to restate that I am not
convinced that the order, in referencing the specific text of Appendix
"H," is ambiguous. (Emphasis added)
[50]
Thus, the Syndicat cannot be found guilty of
contempt because it is entitled to the most favourable interpretation of this
Order (Rameau v Canada (Attorney General), 2012 FC 1286 at paragraph 19
[Rameau]) and it, at all relevant times, took the necessary measures in
good faith to comply, and the STO’s rigid interpretation of the information
needed to administer the plan according to Appendix “H”
cannot result in the unilateral imposition of obligations on the Syndicat that
could lead to a conviction of contempt of Court.
(2)
The Syndicat’s deliberate failure to comply with
the Order
[51]
The Syndicat submitted that, according to Mr.
Gendron’s testimony on September 20, 2016: the STO was already receiving all
the necessary documentation for administering the plan (for example, the wage
loss insurance forms); Mr. Gendron sent the contact person’s contact
information; he sent a copy of the insurance contract between the Syndicat and
IA.
[52]
Moreover, according to the Syndicat, the STO’s evidence
does not establish beyond a reasonable doubt that the Syndicat really did not
intend to comply with the Order. On the contrary, there is convincing evidence
that the Syndicat complied with the Order given based on its interpretation of
it. Thus, it is clear that the STO did not discharge its burden of proving a
deliberate failure on the part of the Syndicat.
[53]
If the Court concludes that on September 20,
2016, the Syndicat did not comply with the Order, the Syndicat submits that its
behaviour can be explained by the “truce” that
occurred and the Syndicat’s understanding of its scope. Thus, the Syndicat is
relying on Ms. Moreau’s testimony that the parties had agreed to set aside all
legal remedies on or around October 5, 2016.
[54]
In short, the Syndicat submitted that the STO
has not presented evidence that demonstrates beyond a reasonable doubt that the
Syndicat put itself in contempt of Court. On the contrary, the evidence and
particularly Mr. Gendron's uncontradicted testimony demonstrated that the Syndicat
complied with all its obligations under the Order. In the alternative, if the
Court had doubts about the possibility that the Syndicat put itself in contempt
of Court, the Syndicat claimed that there is reasonable doubt, so the motion
can be dismissed.
V.
Analysis
A.
Contempt of Court
(1)
General
[55]
The powers of courts with respect to contempt of
court are exceptional and must only be used as a last resort. Thus, “A conviction for contempt should only be entered where it is
genuinely necessary to safeguard the administration of justice” (Morasse
v Nadeau-Dubois, 2016 SCC 44 at paragraph 21).
[56]
In Carey v Laiken, 2015 SCC 17 [Carey],
Mr. Justice Cromwell discussed a judge’s discretion regarding contempt as
follows:
For example, where an alleged contemnor
acted in good faith in taking reasonable measures to comply with the order, the
judge entertaining a contempt motion generally retains some discretion to
decline to make a finding of contempt: see, e.g., Morrow, Power v.
Newfoundland Telephone Co. (1994), 121 Nfld. & P.E.I.R. 334 (Nfld.
C.A.), at para. 20; TG Industries, at para. 31. While I prefer not to delineate
the full scope of this discretion, given that the issue was not argued before
us, I wish to leave open the possibility that a judge may properly exercise his
or her discretion to decline to impose a contempt finding where it would work
an injustice in the circumstances of the case (at paragraph 37).
[57]
In accordance with rule 467, before a person may
be found in contempt of Court, the person shall be served with an order
requiring the person to appear before a judge, to be prepared to hear proof of
the act with which the person is charged and to be prepared to present any
defence that the person may have. A motion to that effect was presented by the
STO on October 28, 2016, and Annis J., who firmly believed this was a prima
facie case of contempt, served the order sought by the STO on November 23,
2016.
[58]
The next step is the contempt proceeding, in
which evidence shall be oral (rule 470(1)). In that regard, a person alleged to
be in contempt may not be compelled to testify (rule 470(2)). Given that civil
contempt is quasi-criminal in nature (Carey at paragraph 42), a finding
of contempt shall be based on proof beyond a reasonable doubt (rule 469) from
three elements that have been developed in the case law, namely: (1) proof of a
Court order; (2) proof of the respondent's knowledge of the order; and (3) a
deliberate flouting of the order (Angus v Chipewyan Prairie First Nation
Tribal Council, 2009 FC 562 at paragraph 35). The onus of proof is on the
applicant (Telecommunications Workers Union v Telus Mobility, 2004 FCA
59 at paragraph 4); the alleged contemnor may or may not adduce evidence (Canadian
Private Copying Collective v Fuzion Technology Corp., 2009 FC 800 at paragraph
69).
(2)
Proof of a Court order
[59]
First, the order which alleges the violation
must clearly and unambiguously state the conduct of the parties. According to
the terms of the Federal Court of Appeal in Canada (Human Rights Commission)
v Warman, 2011 FCA 297 [Warman], at paragraph 89:
The court will only enforce orders according
to their terms. The order the Court makes is the order to be enforced, not the
order which it could have made, nor even the order which it intended to make.
The person who is subject to a court order must be able to tell from the order
itself what he or she is to do or refrain from doing.
[60]
The Court can find that an order is not clear
if, for example, “it is missing an essential detail
about where, when or to whom it applies; if it incorporates overly broad
language; or if external circumstances have obscured its meaning” (Carey
at paragraph 33) or if the order is merely declaratory (Telecommunications
Workers Union v Telus Mobility, 2004 FCA 59 at paragraph 4).
[61]
In CUPW v the Canada Post Corporation
(1987), 16 FTR 4, the Court had determined that the order was too vague and
imprecise to serve an order to appear for a charge of contempt, concluding: “[TRANSLATION] in the absence of specific findings in the order under review, it is
not for this court to determine what the arbitration award could not
establish.” Thus, in those proceedings, no order
was served pursuant to the current rule 467.
[62]
The Federal Court of Appeal reiterated this
notion in Telecommunications Workers Union v Telus Mobility, 2004 FCA
59: “A finding of contempt of court cannot be based on
a court order that is ambiguous, or an order that is merely declaratory.” “It
must be clear on the face of the order what is required for compliance”
(at paragraph 4; also see Rameau at paragraph 19).
[63]
In Sherman v Canada (Customs and Revenue
Agency), 2006 FC 1121, after an order to appear was served to respond to
allegations of contempt, the case was brought before Madam Justice Hanson to
determine if contempt had taken place. He dismissed the motion, determining
that the order that had allegedly been violated was ambiguous because, although
it indicated that interest had to be paid, it did not specify the date on which
the interest had to be calculated. This decision illustrates that the issuance
of a show cause order does not always result in a finding that the respondent
is in contempt of Court. In fact, “the issuance of a
Show Cause Order does not reflect a finding that he is in contempt of Court”
(Canada (Canadian Human Rights Commission) v. Winnicki, 2006 FC 350 at
paragraph 10).
[64]
In this case, the wording of the Order is
general, requiring the Syndicat to [translation]
“immediately take the measures so that the employer can
fully perform the tasks assigned to it by Appendix 'H' of the collective
agreement.” However, the measures in question are not stated and the
Syndicat cannot tell from the Order itself what it must do for the STO to
perform its tasks under Appendix “H” (Warman
at paragraph 89).
[65]
Furthermore, it is worth noting that Arbitrator
Paquet, who was asked to clarify his arbitration award by the STO, specified
that the list of documents that these “measures”
might include was not presented to him.
[66]
According to the criteria established by the
case law, the Court cannot find that the Syndicat failed to provide documents
and was in contempt of an order of this Court unless there was first a clear
order directing the Syndicat to provide those documents. However, the Order
neither directs the Syndicat to provide documents nor lists the documents in
question; it directs the Syndicat to “immediately take
the necessary measures.”
[67]
Moreover, the Court cannot find that the
Syndicat should at least comply with its obligations under Appendix “H” because the Order does not provide any details in
that regard. The Order is limited to the measures that the Syndicat must take
to allow the STO to perform its tasks, but it does not address any of the tasks
that the Syndicat must perform irrespective of the STO’s tasks.
[68]
In short, the Order does not, on the face of it,
clearly and unambiguously state the actions the Syndicat must take for the STO
to perform its tasks under Appendix “H.” As
indicated, evidence of contempt must be based on the order served and not the
order that might have been served.
[69]
The fact that the Order refers to Appendix “H” or that Appendix “H”
has been in effect for a long time does not change the general nature of the
Order and presume the conduct imposed on the Syndicat with respect to contempt
of Court. Especially since the Court considers that the STO has not proved that
the requested documents were normally provided by the Syndicat in the past.
[70]
In light of the conclusion based on this
criterion, it is unnecessary to consider the other conditions required for
contempt of Court, namely knowledge of the order and the deliberate flouting of
the order.
VI.
Conclusion
In the absence of
proof beyond a reasonable doubt of a clear and unambiguous order directing the
conduct of the parties, the Court dismisses the STO’s motion to find the
Syndicat guilty of contempt of Court.
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