A-275-86
Mackintosh Computers Ltd., Compagnie d'Élec-
tronique Repco Ltée/Repco Electronics Co. Ltd.,
Maison des Semiconducteurs Ltée/House of
Semiconductors Ltd., Chico Levy and Nat Levy
(Appellants) (Defendants)
v.
Apple Computer, Inc. and Apple Canada Inc.
(Respondents) (Plaintiffs)
A-276-86
115778 Canada Inc., carrying on business under
the firm name and style of Microcom and James
Begg and 131375 Canada Inc. (Appellants)
(Defendants)
v.
Apple Computer, Inc. and Apple Canada Inc.
(Respondents) (Plaintiffs)
INDEXED AS: APPLE COMPUTER, INC. V. MACKINTOSH COM
PUTERS LTD.
Court of Appeal, Thurlow C.J., Urie and Stone
JJ.—Toronto, May 19 and 21; Ottawa, June 8,
1987.
Practice — Contempt of Court — Injunctions restraining
appellants from selling computer programs infringing copy
right — Breach of injunctions — Contempt — Applications
by respondents to have appeals from injunction orders stayed
until contempt purged — Party not heard if contempt imped
ing course of justice — Whether other means available to
enforce Court's order — Effect of contempt on proper
administration of justice — Contempt herein not continuing
but arising out of single incident — Stay denied.
Practice — Stay of proceedings — Appellants in contempt
of injunction orders — Motion to stay appeals against injunc
tions until contempt purged — Party in contempt not heard if
contempt impeding course of justice and no other remedies
available to secure compliance with Court order — Contempt
herein not continuing but arising out of single incident —
Proper administration of justice not impeded — Applications
to stay dismissed.
In a judgment rendered on April 29, 1986 ([1987] 1 F.C.
173), Reed J. found that the appellants had infringed the
respondents' copyright in certain computer programs. Orders
were made enjoining the appellants from selling computers or
computer components under the name Mackintosh containing a
copy or a substantial copy of either of the literary works
"Autostart ROM" or "Applesoft". The appellants appealed
that decision. On January 30, 1987 ([1987] 3 F.C. 452), Reed
J. found House of Semiconductors Ltd. and 131375 Canada
Inc. guilty of contempt for having breached the injunctions.
Madam Justice Reed ordered the posting of security without
fixing a time limit. The respondents now apply to have the
appeals from the injunction orders stayed until the appellants
purge their contempt.
Held, the applications to stay the appeals should be
dismissed.
Per Urie J.: In determining whether a stay should be grant
ed, reference should be made to Hadkinson v. Hadkinson,
[1952] P. 285 (C.A.), the leading modern authority on the law
of civil contempt. In that case, the contempt was the disobedi
ence of a court order to return a child to the jurisdiction. It was
there said per Romer L.J. that every person in respect of whom
a court order has been made has the obligation to obey it; that
obligation "extends even to cases where the person affected by
an order believes it to be irregular or even void". In the same
case, Denning L.J. said that the court will refuse to hear a
party whose contempt itself impedes the course of justice and if
there is no other effective means of securing compliance.
The rule can be stated as follows: in the exercise of its
discretion to permit an appeal to proceed or not, a court must
have regard, inter alia, to the particular circumstances of the
contempt and its effect on the proper administration of justice,
i.e. whether it impedes the course of justice. In this case, the
contempt arose out of a single incident. The situation thus
differed from that in Hadkinson where the contempt continued
and where, unlike here, there were no other remedies available
to enforce the Court's order. In the present case, the course of
justice is not continuing to be impeded and for that reason, the
applications to stay should be refused.
There are numerous exceptions to the general rule that a
party guilty of contempt will not be heard. One of those
exceptions, as set out by Romer L.J. in Hadkinson, is that a
party "can appeal with a view to setting aside the order upon
which his alleged contempt is founded". The appellants' argu
ment, that they fell within that exception because the appeal is
from the very order—the injunction—upon which the contempt
is based, cannot be accepted. To construe so literally Lord
Romer's statement would constitute a complete fettering of the
Court's discretion to grant or refuse a stay. Furthermore, such
an interpretation would go against earlier authorities, such as
Gordon v. Gordon, [1904] P. 163 (C.A.).
Per Thurlow C.J.: The authority of the Trial Division or of
the Court of Appeal to enforce the injunction is not impeded by
the failure of the appellants to post security. The parties are
within the jurisdiction and it is open to the Trial Division to
deal with any further breach that may be brought to its
attention or to fix a time within which the security is to be
posted. Moreover, breach of the injunction is not shown to be
continuing, as it was in the Hadkinson case. The principle in
Hadkinson does not apply and the appellants should not be
prevented from proceeding with their appeal.
Per Stone J.: Although propounded in different circum
stances, Lord Denning's test in Hadkinson is flexible enough to
leave the Court a broad and ample discretion which may be
exercised having regard to the particular case. In the present
case, the contempt or the failure to purge does not betray an
attitude of defiance or indifference on the part of the corporate
appellants making it difficult to enforce the Court's orders.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 2500.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Hadkinson v. Hadkinson, [1952] P. 285 (C.A.); R. v.
Jetco Manufacturing Ltd. and Alexander (1987), 57
O.R. (2d) 776 (C.A.).
CONSIDERED:
Gordon v. Gordon, [1904] P. 163 (C.A.); Small v.
American Federation of Musicians (1903), 5 O.L.R. 456
(Div. Ct.); Copeland Chatterson Co. v. Business Systems
Limited (1907), 14 O.L.R. 337 (C.A.).
REFERRED TO:
Bettinson v. Bettinson, [1965] 1 All E.R. 102 (Ch.D.);
Midland Bank Trust Co Ltd v Green (No 3), [1979] 2 All
ER 193 (Ch.D.); Isaacs v Robertson, [1984] 3 All ER
140 (P.C.); Turner v. Turner and Eaman (1967), 58
W.W.R. 27 (B.C.S.C.); Whitehead v. Ziegler (1974), 50
D.L.R. (3d) 145 (Sask. Q.B.); Thatcher v. Thatcher
(1981), 11 Sask. R. 248 (C.A.); Vautour v. New Bruns-
wick, Province of (1982), 41 N.B.R. (2d) 304 (C.A.);
Kramer v. Kramer (1986), 4 R.F.L. (3d) 455 (B.C.S.C.);
Newfoundland (Treasury Board) v. Newfoundland Asso
ciation of Public Employees (1986), 59 Nfld. & P.E.I.R.
93 (Nfld. C.A.); Miluch v. Miluch (1967), 64 D.L.R.
(2d) 161 (Man. Q.B.).
AUTHORS CITED:
Borrie, G. and Lowe, N., The Law of Contempt, London:
Butterworths, 1973.
COUNSEL:
R. H. C. MacFarlane for appellants (defen-
dants).
A. Schorr and J. Etigson for respondents
(plaintiffs).
SOLICITORS:
Fitzsimmons, MacFarlane, Toronto, for
appellants (defendants).
Ivan Hughes, Concord, Ontario, for respon
dents (plaintiffs).
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: These proceedings are appeals
from judgments of the Trial Division pronounced
on or about April 29, 1986 [[1987] 1 F.C. 173],
which granted injunctions restraining the appel
lants from
... importing, selling or distributing computers or computer
components under the name Mackintosh or otherwise which
contain a copy or substantial copy of either of the literary
works "AUTOSTART ROM" Or "APPLESOFT", or in any other
way infringing the plaintiffs' copyright in those works.
and requiring them to
... deliver up to the plaintiffs all copies or substantial copies of
the plaintiffs' literary works "AUTOSTART ROM" or
"APPLESOFT" in whatever material form they might be and
which are in the possession, power, custody, or control of any of
the defendants including any contrivances or devices containing
such copies or substantial copies.
By further orders pronounced on January 30,
1987 [[1987] 3 F.C. 452 (T.D.)], and settled on or
about April 8, 1987, in proceedings for contempt
in having breached the injunctions, each of the
appellants, 131375 Canada Inc. and Maison des
Semiconducteurs Ltée/House of Semiconductors
Ltd., was ordered to post security in the amount of
$100,000 against any future infringement and to
pay the respondents' costs of the contempt pro
ceedings. The orders did not fix a time within
which the security should be posted. Neither order
has yet been obeyed. Appeals have been launched
against both orders. In the meantime, the appel
lants have in each of the appeals from the injunc
tion orders filed their memoranda of points to be
argued and have applied for an order fixing a date
for the hearing. In both cases the respondents have
asked for an oral hearing of that application and
have presented motions that the appeals be stayed.
It is admitted that James Begg is the sole share
holder and director of both 115778 Canada Inc.
and 131375 Canada Inc. and that the appellant,
Chico Levy, is the sole shareholder and director of
the appellants, Maison des Semiconducteurs Ltée
and Mackintosh Computers Ltd., and was a direc
tor of the appellant, House of Semiconductors
Ltd., of which the appellant, Nat Levy, his broth
er, is a director and shareholder. Whether or not
on the whole of the case Nat Levy and Repco
Electronics were or are in contempt and if not
whether their appeals should be stayed are not
matters that need to be addressed.
In support of their submission that a stay of the
appeals should be granted, the respondents invoke
the rule that for the purposes of enforcing compli
ance with an injunction the Court will refuse to
hear a party who is in contempt until the contempt
has been purged. However, as pointed out by
Romer L.J. in Hadkinson v. Hadkinson,' a case
on which counsel relied, the rule is subject to
exceptions, one of which is that a person in con
tempt "can appeal with a view to setting aside the
order upon which his alleged contempt is
founded".
I did not understand counsel for the respondents
to contend that the appellants' situation would not
fall within that exception as so broadly stated. On
the contrary, what was contended was that the
case falls within what may be called an exception
to that exception, an exception of which the Had-
kinson case is a prime example. There the appel
lant, who was in contempt in having taken her
child out of the jurisdiction in breach of an order
of the Court, sought the right to be heard in
1 [1952] P. 285 (C.A.).
support of her appeal against a subsequent order
that she return the child to the United Kingdom.
The Court refused to hear her appeal because the
child was still out of the jurisdiction and while that
situation continued the Court was being prevented
by the appellant's continuing contempt from exer
cising its quasi-parental powers in relation to the
child since orders it might make in relation to the
child could not be enforced while the child was
abroad.
Romer L.J. said [at page 292]:
It appears to me that this is the very kind of case in which
the ordinary rule should be applied in all its strictness. Disre
gard of an order of the court is a matter of sufficient gravity,
whatever the order may be. Where, however, the order relates
to a child the court is (or should be) adamant upon its due
observance (cf the recent case of Corcoran v. Corcoran
([1950] 1 All E.R. 495)). Such an order is made in the interests
of the welfare of the child and the court will not tolerate any
interference with or disregard of its decisions upon these mat
ters. Least of all will the court permit disobedience of an order
that a child shall not be removed outside its jurisdiction. The
reason for this is obvious. The court cannot exercise its quasi-
parental powers in relation to a child unless effect can be given
to its orders, and it cannot enforce its orders if the child is
taken abroad. Once a child is removed from the jurisdiction no
satisfactory means have ever been devised or ensuring or
enforcing its return.
Denning L.J. made the same point when he said
[at page 298]:
The present case is a good example of a case where the
disobedience of the party impedes the course of justice. So long
as this boy remains in Australia it is impossible for this court to
enforce its orders in respect of him. No good reason is shown
why he should not be returned to this country so as to be within
the jurisdiction of this court. He should be returned before
counsel is heard on the merits of this case, so that, whatever
order is made, this court will be able to enforce it.
Counsel for the respondents submitted that the
present case falls within the same category since
the purpose of the order requiring the posting of
security was to secure obedience to the injunction
and the failure to post the security impeded the
Court in enforcing it.
That argument might have had more weight if
the order had specified a time for the posting of
the security which had passed. There is nothing
before us on the subject as to why the security has
not yet been posted. On the other hand neither
does the record suggest that any breach of the
injunction has occurred since the order to post the
security was made.
Having regard to this and to the absence of a
fixed time limit for the posting of the security, I do
not think the authority of the Trial Division or the
Court of Appeal to enforce the injunction can be
said to be impeded by the failure of the appellants
up to the present time to post the security. The
parties are within and subject to the jurisdiction of
the Court and it is open to the Trial Division on
application to deal effectively with any further
breach that may be brought to its attention or to
fix a time within which the security is to be posted.
Moreover, the breach of the injunction is not
shown to be continuing, as it was in the Hadkinson
case. I do not think therefore that the principle of
the Hadkinson case applies and it seems to me to
follow that the appellants should not be prevented
from proceeding with their appeal.
I would dismiss the applications to stay the
appeals without costs.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: The applicants in these notices of
motion who are the respondents in each appeal and
who will hereinafter be referred to as such, seek
orders staying the appeals until the corporate
appellants 131375 Canada Inc. and Maison des
Semiconducteurs Ltée/House of Semiconductors
Ltd. purge their contempt as found in the order of
Reed J. in the Trial Division dated January 30,
1987 by compliance with the terms of the order.
They also seek such stays against the other appel
lants until they cause the corporate appellants to
purge their contempt.
For purposes of this application only a brief
reference to the history of this matter is necessary.
By judgment rendered on April 29, 1986 [[1987] 1
F.C. 173], following a lengthy trial of an action
brought by them against the appellants as defen
dants (together with a large number of other
co-defendants), for infringement of copyright of
certain computer programs when embodied in sili
con chips, Reed J. found the respondents' copy
right to have been infringed and, inter alia,
enjoined the appellants, their respective servants
and agents from "importing, selling or distributing
computers or computer components under the
name Mackintosh or otherwise which contain a
copy or substantial copy of either of the literary
works "AUTOSTART ROM" or "APPLESOFT", or in
any other way infringing the plaintiffs' [the
respondents'] copyright in those works". Following
the judgment, the appellants promptly appealed
the Trial Division judgment. No application for a
stay thereof was ever made. While the judgment
under appeal provided for the delivery up of
offending materials, it was agreed by the parties
that the appellants could retain possession thereof
and would provide the respondents with an inven
tory thereof.
As a result of a motion made pursuant to Rule
2500 of the Federal Court Rules [C.R.C., c. 663]
for a finding of contempt for the breach of the
injunction granted in the action as described
above, Reed J. on January 30, 1987 made an order
applicable in each case, the relevant part of which
reads as follows:
1. IT IS ORDERED that Michael Lee pay a fine in the amount of
$500.00, such fine to be paid from his own resources without
reimbursement directly or indirectly by his employer;
2. AND IT IS ORDERED that Norman Parent pay a fine in the
amount of $500.00 to be paid from his own resources without
reimbursement directly or indirectly by his employer;
3. AND IT IS ORDERED that the Maison Des Semiconducteurs
Ltée/House of Semiconductors Ltd. pay into Court the sum of
$100,000.00 by way of cash or such bond as may be approved
by the Registrar of this Court as security against any future
infringement;
4. AND IT IS FURTHER ORDERED that the Defendant 131375
Canada Inc. carrying on business as Microcom pay into Court
the sum of $100,000.00 by way of cash or such bond as may be
approved by the Registrar of this Court as security against any
future infringement;
As a result of the appellants' applications in
each appeal to fix a date for the hearing of the
appeals, the respondents moved in this Court to
stay the appeals until the appellants purge their
contempt of the January 30, 1987 orders. It is
those motions which are the subject-matter of
these reasons and orders.
It was admitted at the hearing of the motions
that Michael Lee and Norman Parent have paid
their fines in compliance with the contempt order.
Neither Maison des Semiconducteurs Ltée/House
of Semiconductors - Ltd. nor 131375 Canada Inc.
have complied with the order as against them.
Notwithstanding that the contempt was found to
have been committed only by those two entities in
this appeal, the respondents seek to have the
appeals of all the appellants stayed principally
because they are said to have aided and abetted
the contempt and are in a position of influence and
control of those appellants who were found to be in
contempt. Moreover, the respondents allege that
the contempt was not accidental or technical but
was deliberate and contumacious and was such as
to impede the course of justice.
During the course of the hearing, counsel for the
appellants made the following additional admis
sions:
1. The Appellant James Begg is the sole shareholder of and is a
director of both 115778 Canada Inc. and 131375 Canada Inc.
2. The Appellant Chico Levy in Court No. A-275-86 is the sole
shareholder and director of Maison des Semiconducteurs Ltée/
House of Semiconductors Ltd. and MacKintosh Computers
Ltd.
3. The Appellant Nat Levy in the latter appeal is a shareholder
and director of Compagnie D'Electronique Repco Ltée/Repco
Electronics Co. Ltd. and that Chico Levy had until an unspeci
fied date been a shareholder and director thereof.
4. The learned Trial Judge in Court No. A-276-86 had found
all three Appellants jointly responsible for the infringement of
copyright and, as well, in Court No. A-275-86 found all
Appellants jointly responsible for the infringement.
When questioned by the Court, counsel also
admitted that he had neither asked for nor
received instructions to proceed with the appeals of
only those appellants who were not found in con
tempt in the January 30, 1987 order. He also
admitted that although appeals had been filed
against the contempt orders, no applications for a
stay in respect thereto had been sought.
The starting point in the determination of
whether or not the requested stay of the appeals
should be granted is that it is fundamental in the
orderly administration of justice that it is the
obligation of
... every person against, or in respect of whom, an Order is
made by a court of competent jurisdiction, to obey it unless and
until that order is discharged. The uncompromising nature of
this obligation is shown by the fact that it extends even to cases
where the person affected by an order believes it to be irregular
or even void. 2
Disobedience of such an order if found to be civil
contempt may lead, inter alia, to an order being
granted that such a party cannot be heard or take
proceedings in the same cause until he has purged
his contempt. As will be seen there are exceptions
to the application of that rule. Before dealing with
the Hadkinson case as the leading modern author
ity on the law of civil contempt it may be useful
briefly to refer to some of the earlier authorities on
the subject referred to by counsel for the
appellants.
The following passage from the judgment of
Vaughan Williams L.J. in Gordon v. Gordon,
[1904] P. 163 (C.A.), at page 171 provides a
useful point of commencement:
What I mean is this—that, taking it generally, it has not been
disputed in the discussion before us that this rule, that a person
who is in contempt cannot be heard, prima facie applies to
voluntary applications on his part—when he comes and asks for
something, and not to cases in which all that he is seeking is to
be heard in respect of matters of defence. I do not for one
moment suggest that every matter of defence entitles a person
in contempt to be heard; for instance, if an order has been
made in the exercise of the discretion of the Court, and some
one who is oppressed, or thinks himself oppressed by that order,
appeals, saying that the Court has exercised its discretion
wrongly, that person he is in contempt cannot be heard to say
anything of the kind until he has purged his contempt. Garstin
v. Garstin (4 Sw. & Tr. 73) is an instance of that kind. But
when you come to the case of an order which it is suggested
2 Hadkinson v. Hadkinson, [1952] P. 285 (C.A.), at p. 288
per Romer L.J.
may have been made without jurisdiction, if upon looking at the
order one can see that that really is the ground of the appeal, it
seems to me that such a case has always been treated as one in
which the Court will entertain the objection to the order,
though the person making the objection is in contempt. It was
admitted, and could not be otherwise than admitted, that if the
objection was to the very order which had created the con
tempt, and the objection was one of the character which I have
described, the fact that the objector was in contempt would not
deprive him of the right to be heard. [Emphasis added.]
In Small v. American Federation of Musicians
(1903), 5 O.L.R. 456, a union appealed to the
Divisional Court upon the ground that a finding of
contempt against it for disobedience of an injunc
tion was made without jurisdiction because of a
defective order for substitutional service. A motion
was brought to stay its appeal. The Court held that
if the union was not capable of being sued or
served it is not capable of committing a contempt
"and as the very object of its appeal is to deter
mine whether it can be sued and served with
process, we can not determine whether a contempt
has been committed by it without hearing the
appeal". At page 458 Street J. said:
The rule is not a universal one that persons guilty of contempt
can take no step in the action: it is subject to several exceptions,
one of which is, that the party, notwithstanding his contempt, is
entitled to take the necessary steps to defend himself. Here the
defendants are ordered to appear within ten days to the writ of
summons on pain of having judgment signed against them: and
upon the authority of Fry v. Ernest (1863), 9 Jur. N.S. 1151,
and Ferguson v. County of Elgin, 15 P.R. 399, they appear to
have the right to shew, if they can, that the service upon them
is not permitted by the practice.
It is thus clear that where the question on the
appeal is whether or not the Court making the
contempt order had jurisdiction to do so, the
appeal will not be stayed.
Moss C.J.O. in Copeland Chatterson Co. v.
Business Systems Limited (1907), 14 O.L.R. 337
(C.A.) said at pages 337-338:
The defendants have not as yet been adjudged guilty of con
tempt for disobedience of the injunction, and this is not the
proper forum for now determining that question. Besides, even
if it were admitted that the defendants have been proven to be
in contempt, they are not thereby absolutely debarred from
taking any step. The rule that parties to an action guilty of a
contempt can take no step is subject to several exceptions. One
of these is that the party is entitled to prosecute an appeal from
the order or judgment awarding the injunction or containing
the order which it is alleged he has been guilty of disobeying.
The key fact in that decision is that the defen
dants had not yet been committed for contempt for
disobedience of the injunction. What was said,
therefore, in respect to the exceptions to the rule of
staying appeals where there has been contempt
found is pure obiter dicta and appears, moreover,
to be at variance with the exceptions as dealt with
in other cases as I will in due course show.
R. v. Jetco Manufacturing Ltd. and Alexander
(1987), 57 O.R. (2d) 776 (C.A.) has no applica
tion in my view because its basis was the failure to
discharge the onus of proof beyond reasonable
doubt in a criminal contempt case. The contempt
here in issue is civil. The same is true of two other
cases to which appellants' counsel referred.
I turn now to the principal case to which counsel
for the respondents referred, the Hadkinson case. 3
In that case a wife who had successfully petitioned
for divorce was given the custody of the only child
of the marriage but was directed not to remove the
child from the jurisdiction of the Court without its
approval. The former wife later remarried and
moved to Australia taking the child with her with
out the Court's approval. On a summons issued by
the father of the child, the mother was ordered to
return the child within the jurisdiction on or before
a given date. On an appeal brought by her against
the order, counsel for the father took the prelim
inary objection that the appeal should not be heard
because the mother had been at all times, and still
was, in contempt.
; Supra, [1952] P. 285 (C.A.).
The Court of Appeal unanimously agreed to
grant the stay but differed somewhat in their
reasons for so deciding. Somervell L.J. agreed with
Romer L.J. while Denning L.J. (as he then was)
wrote a separate opinion. I shall deal first with
what Romer L.J. had to say.
At pages 289 and 290 he dealt with the excep
tions to the general rule described by Vaughan
Williams L.J. in the excerpt from his judgment in
Gordon v. Gordon which I quoted earlier herein:
Is this case, then, an exception from the general rule which
would debar the mother, as a person in contempt, from being
heard by the courts whose order she has disobeyed? One of
such exceptions is that a person can apply for the purpose of
purging his contempt and another is that he can appeal with a
view to setting aside the order upon which his alleged contempt
is founded; neither of those exceptions is relevant to the present
case. A person against whom contempt is alleged will also, of
course, be heard in support of a submission that, having regard
to the true meaning and intendment of the order which he is
said to have disobeyed, his actions did not constitute a breach
of it; or that, having regard to all the circumstances, he ought
not to be treated as being in contempt. The only other excep
tion which could in any way be regarded as material is the
qualified exception which, in some cases, entitles a person who
is in contempt to defend himself when some application is made
against him (see, e.g., Parry v. Perryman (M.R., July, 1938),
referred to in the notes to Chuck v. Cremer (Cooper temp.
Cott. 205)). The nature and limits of this exception were
explained by this court in Gordon v. Gordon ([1904] P. 163).
The second of those exceptions it was said by
counsel for the appellants applied to this case
because the appeal is from the very order—the
injunction—upon which the alleged contempt was
based. I do not think that His Lordship meant his
statement to be taken so literally. I have this view
for several reasons. First, it is clear that whether to
grant a stay or not is in the exercise of a discretion.
If the rule is as categorical as he appears to have
said it is, no discretion could be exercised where
the appeal is from the very order said to be in
contempt. That would constitute a complete fetter
ing of that discretion. Second, it seems to be at
odds with earlier authorities, e.g. Gordon v.
Gordon, supra. Third, it is hard to imagine cir
cumstances in which, in the exercise of the discre
tion which undoubtedly exists, a stay could ever be
granted in such an appeal. The only time in which
it could be successfully sought would be in an
appeal relating to an entirely unconnected matter
from that which is the subject-matter of the order
said to be in contempt. It would be rare indeed for
the same parties to be involved in an appeal in an
unrelated matter at approximately the same time.
In that unlikely circumstance there is authority to
show that a stay would not be granted. 4 Fourth, in
the exercise of the Court's discretion, a stay was,
of course, granted in this appeal.
I turn now to the judgment of Denning L.J. The
learned author Borrie on The Law of Contempt,
London: Butterworths, 1973, at page 367 describes
the Denning judgment as "his classic exposition of
the history and development of this rule". After
his historical analysis Denning L.J. said this [at
page 298]:
Those cases seem to me to point the way to the modern rule.
It is a strong thing for a court to refuse to hear a party to a
cause and it is only to be justified by grave considerations of
public policy. It is a step which a court will only take when the
contempt itself impedes the course of justice and there is no
other effective means of securing his compliance. In this regard
I would like to refer to what Sir George Jessel M.R. said in a
similar connexion in In re Clements v. Erlanger ((1877) 46
L.J.Ch. 375, 383): "I have myself had on many occasions to
consider this jurisdiction, and I have always thought that,
necessary though it be, it is necessary only in the sense in which
extreme measures are sometimes necessary to preserve men's
rights, that is, if no other pertinent remedy can be found.
Probably that will be discovered after consideration to be the
true measure of the exercise of the jurisdiction." Applying this
principle I am of opinion that the fact that a party to a cause
has disobeyed an order of the court is not of itself a bar to his
being heard, but if his disobedience is such that, so long as it
continues, it impedes the course of justice in the cause, by
4 Bettinson v. Bettinson, [19651 1 All E.R. 102 (Ch.D.), per
Plowman J. quoting Oswald on Contempt of Court (3rd ed.), at
p. 248: "A plaintiff in contempt may, it seems, proceed in other
proceedings, even though they are between the same parties."
making it more difficult for the court to ascertain the truth or
to enforce the orders which it may make, then the court may in
its discretion refuse to hear him until the impediment is
removed or good reason is shown why it should not be removed.
[Emphasis added.]
Lord Justice Denning then proceeded to show
that in that case the course of justice was being
clearly impeded by the continuing failure by the
mother to return her son to the jurisdiction, in
defiance of the Court order, thus rendering the
Court powerless to enforce its own order. That
continuing defiance of the order constituted the
impediment to the course of justice which enabled
him to find that the order to stay the appeal should
be granted.
Lord Justice Romer, while expressing himself
differently, reached a similar conclusion as will be
seen from the following passage from his reasons
at page 292:
It appears to me that this is the very kind of case in which
the ordinary rule should be applied in all its strictness. Disre
gard of an order of the court is a matter of sufficient gravity,
whatever the order may be. Where, however, the order relates
to a child the court is (or should be) adamant upon its due
observance (cf. the recent case of Corcoran v. Corcoran
([1950] 1 All E.R. 495)). Such an order is made in the interests
of the welfare of the child and the court will not tolerate any
interference with or disregard of its decisions upon these mat
ters. Least of all will the court permit disobedience of an order
that a child shall not be removed outside its jurisdiction. The
reason for this is obvious. The court cannot exercise its quasi-
parental powers in relation to a child unless effect can be given
to its orders, and it cannot enforce its orders if the child is
taken abroad.
The Hadkinson case has been considered, distin
guished and applied in a number of cases both in
Britain and Canada since it was rendered. In some,
the dictum of Romer L.J. was relied upon while in
others it was that of Denning L.J. which was
preferred. In only a few, was no reference made to
that case. I do not intend to analyse each here.
Suffice it to say that I have read and considered
the following judgments, in which reference was
made to Hadkinson, in forming my views as to the
proper disposition of this application. Bettinson v.
Bettinson, [1965] 1 All E.R. 102 (Ch.D.); Mid
land Bank Trust Co Ltd y Green (No 3), [1979] 2
All ER 193 (Ch.D.); Isaacs y Robertson, [1984] 3
All ER 140 (P.C.); Turner v. Turner and Eaman
(1967), 58 W.W.R. 27 (B.C.S.C.); Whitehead v.
Ziegler (1974), 50 D.L.R. (3d) 145 (Sask. Q.B.);
Thatcher v. Thatcher (1981), 11 Sask. R. 248
(C.A.); Vautour v. New Brunswick, Province of
(1982), 41 N.B.R. (2d) 304 (C.A.); Kramer v.
Kramer (1986), 4 R.F.L. (3d) 455 (B.C.S.C.);
Newfoundland (Treasury Board) v. Newfoundland
Association of Public Employees (1986), 59 Nfld.
& P.E.I.R. 93 (Nfld. C.A.); Miluch v. Miluch
(1967), 64 D.L.R. (2d) 161 (Man. Q.B.).
From all of the foregoing I think it proper for
me to express the view that the preferable rule is
that, in the exercise of its discretion to permit an
appeal to proceed or to refuse to do so, a court
must have regard, inter alia, to the particular
circumstances of the contempt and its effect on the
proper administration of justice, i.e. whether it
constitutes an impediment to the course of justice.
Whether or not it will, of course, will be dependent
upon the facts of the contempt and the Court's
view of their effect. It should thus be borne in
mind that, in this case, the contempt arose out of a
single incident. Whether there were other incidents
of a similar kind we do not know. We must
presume that there will not be and ought not to
speculate that there will be additional acts of
contempt committed. The situation thus differs
from the factual situation in Hadkinson and other
cases like it where the contempt continued and
where, unlike here, there were no other remedies
available to enforce the Court's order. To para
phrase Denning L.J., the course of justice is not
continuing to be impeded. I would, therefore,
refuse the application for a stay.
However, while Reed J. in her orders imposed
no time limit for the payment of the cash or bond
as security by the two corporate defendants, I do
not think that this Court should order compliance
therewith before the appeals are heard for the
reasons I have given for not ordering a stay.
However, to demonstrate their stated respect for
the Court's orders it would be in the interests of al:''
if the security were posted before the hearing of
the appeals unless the orders are in the meantime
varied or stayed in the Trial Division. Whether
they accede to this suggestion or not, the appel
lants are directed to take all such steps as are
necessary to have the hearing of the appeals fixed
at the earliest dates convenient to the Court.
Accordingly, I would dismiss the applications
without costs.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: I have been able to read in draft the
reasons for judgment of my colleagues and should
simply like to express my preference regarding the
test to apply in the present case.
In Hadkinson v. Hadkinson, [1952] P. 285
(C.A.), Lord Justice Denning showed that the old
law on the right of a person in contempt to be
heard, a rule of the canon law adopted by the
Chancery Court and the ecclesiastical courts, has
become unduly complex and difficult of adminis
tration. This is also apparent from Mr. Justice
Urie's analysis of cases, both English and Canadi-
an. Lord Bacon's dictum that "they that are in
contempt are not to be heard neither in that suit,
nor in any other" has given birth not only to a
number of exceptions, but even to an exception to
an exception. Denning L.J. at page 298 points the
way to "the modern rule" as follows:
It is a strong thing for a court to refuse to hear a party to a
cause and it is only to be justified by grave considerations of
public policy. It is a step which a court will only take when the
contempt itself impedes the course of justice and there is no
other effective means of securing his compliance.
Although he propounded it in different circum
stances, I prefer to adopt his single test in these
cases. Its flexibility leaves the Court a broad and
ample discretion which may be exercised having
regard to the particular case.
As both my colleagues observe, the applications
herein are founded upon a single incident of con
tempt which is not required to be purged within a
stated period. The contempt judgments are being
attacked by way of appeal, but no attempt has
been made to stay or vary them. I fully agree that
this is not a case where the contempt or failure to
purge it impedes the course of justice. Nothing
here suggests that the contempt or the failure until
now to purge it betrays an attitude of defiance or
even of indifference on the part of the corporate
appellants toward compliance with court orders,
making it difficult to enforce them. Applying Den-
ning L.J.'s test in the manner proposed by Mr.
Justice Urie, I agree with my colleagues that the
present applications should be dismissed but with
out costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.