Regulators are increasingly obtaining restraining orders against illegal practitioners (particularly former members). As a result of these cases, the law of civil contempt has actually become clearer. Recently, in The Law Society of Upper Canada v Fingold, 2016 ONSC 5684, the Ontario Superior Court of Justice clarified the process for finding a person in contempt. Quoting the recent Court of Appeal case, Chirico, the Court said: “The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt….” The Court emphasized: “Most importantly, the Court of Appeal in Chirico reaffirmed the principle that the party subject to the court order must comply with ‘both the letter and spirit of the order’….” and “the days are long gone when someone subject to a court order can get away with circumventing it by relying on a benign technicality. To allow that to happen would be disrespectful of the order and of the administration of justice.” In this case, the Court rejected a circumvention scheme in which Mr. Fingold, a disbarred lawyer, hired paralegals to file the paperwork on his behalf.
The Court rejected any concern that the enforcement proceedings were initiated by the regulator and not the client in the transaction. The Court also approved the practice of separating the finding phase of the hearing from the penalty phase, to prevent the evidence that is relevant to one phase improperly tainting the other phase.