Civil contempt: Québec Court of Appeal says yes to the Charter, no to Jordan Civil contempt: Québec Court of Appeal says yes to the Charter, no to Jordan

Recognizing that the application of the Canadian Charter of Rights and Freedoms^[1] or of R. v. Jordan^[2] to contempt proceedings has serious implications for the civil justice system, the Québec Court of Appeal established the applicable law on this novel issue in Québec touching on fundamental rights, in City of Montreal c. Gestion Tasa inc.^[3]

The Court of Appeal held that a person accused of civil contempt must benefit from the right to be tried within a reasonable time under section 11(b) of the Charter, but that it was not appropriate to import into the civil law sphere the principles arising from the ruling of the Supreme Court of Canada in Jordan.^[4] The Court of Appeal instead found that civil contempt called for the application of the principles set out in Morin,^[5] the leading decision on delay before the reform introduced by Jordan.

Facts and the decision at first instance

On August 27, 2018, the Superior Court of Québec granted an application to cease use and for a permanent injunction filed by the City of Montréal (the appellant) against Gestion Tasa inc. and La Maison Sami T.A. Fruits inc. (the respondents), ordering them, among other things, to comply with section 5.48 of the zoning bylaw limiting retail sales to 15% of the total floor area of the premises.^[6]

On November 9, 2021, the City of Montréal filed an Application for an Order to Issue a Summons for Contempt of Court, alleging that the respondents had failed to comply with the orders on nine occasions. On September 30, 2022, the City of Montréal filed a second Application for an Order to Issue a Summons for Contempt of Court, alleging three further breaches of the orders. The respondents pleaded not guilty to both contempt proceedings.

Following several adjournments, case management conferences, various motions and other procedural incidents preventing the file from progressing, the respondents filed a motion to stay proceedings on July 23, 2024, invoking section 11(b) of the Charter and the 18- and 30-month ceilings established in Jordan.

In the decision at first instance, the Superior Court summarily concluded that section 11(b) of the Charter and the Jordan decision apply to civil contempt, while emphasizing that each case is unique and requires a contextual analysis. In the case under review, given the impossibility of a sentence of imprisonment, the Superior Court concluded that the applicable ceiling was 18 months.^[7] As that ceiling had been exceeded, and in the absence of exceptional circumstances justifying the delay, the Superior Court ordered a stay of proceedings in respect of both summons for contempt.

The Court of Appeal’s analysis

Several issues were raised on appeal, the most important being whether the trial judge erred in law in applying section 11(b) of the Charter and the framework set out in Jordan.

The Court of Appeal first reiterated the quasi-penal nature of contempt under Québec civil law, noting that it is the only civil proceeding that can result in imprisonment, that the accused cannot be compelled to testify and benefits from the right to silence and that the essential elements of the offence must be proven beyond a reasonable doubt.^[8]

The Court of Appeal went on to affirm that the Charter’s guarantees apply to contempt proceedings in civil matters. The Court of Appeal noted that the Supreme Court of Canada had already ruled on the applicability of the right to silence under section 11(c) of the Charter to civil contempt proceedings, given the penal consequences of contempt charges.^[9] The Court of Appeal therefore concluded that, logically, the right to be tried within a reasonable time under section 11(b) of the Charter must also benefit a person accused of civil contempt.^[10] It stated:

Nothing justifies distinguishing among the various paragraphs of section 11, such that a person is or is not “charged with an offence” depending on which right they seek to invoke, except for those paragraphs that are simply not relevant to civil contempt. To draw such a distinction would amount to saying that a person has the right to silence conferred by the Charter because contempt carries penal consequences, but not the right to be tried within a reasonable time, despite those very same consequences.^[11]

Having affirmed the applicability of section 11(b) of the Charter to civil contempt proceedings, the Court of Appeal then turned to the question of whether Jordan’s presumptive ceilings apply to that same situation. It concluded that “it is not appropriate to import into the civil law sphere the principles arising from the Jordan decision.”^[12]

Several grounds were put forward in support of this conclusion. In particular, the Court of Appeal noted that the Jordan framework is a direct response by the Supreme Court of Canada to a “culture of complacency” observed in the handling of criminal matters in Canada, a systemic problem specific to the criminal justice system for which no evidence of equivalent systemic delays exists in civil or contempt matters.^[13]

Moreover, the 18- and 30-month ceilings are explicitly designed based on factors specific to the criminal justice system, some of which have no relevance in civil matters.^[14] At the same time, several features specific to civil procedure make the mechanical application of Jordan incoherent, such as the attribution of delays connected with a third party’s voluntary intervention (virtually absent in criminal matters) and the ability to appeal interlocutory judgments, which does not exist in criminal matters.^[15]

Thus, to determine whether the delay related to a civil contempt proceeding is unreasonable within the meaning of section 11(b) of the Charter, the Court of Appeal turned to the principles set out in Morin:

1. the length of the delay, meaning the time elapsed between the issuance of the summons for contempt of court and the anticipated conclusion of the trial on guilt
2. the waiver of certain periods in the calculation
3. the reasons for the delay, including delays attributable to each of the parties, delays inherent to the nature of the case and to the justice system, and any other reason for the delay
4. the prejudice suffered by the accused, which may be inferred from the length and reasons for the delay as follows: “in exceptional cases where the delay is manifestly excessive, the trial judge may infer that the individual has suffered prejudice by the very fact of the delay. In all other cases, it will be up to the person charged with the offence to demonstrate prejudice.”^[16]

Finally, a balancing of the interests of the accused and those of society is required to determine whether a stay of proceedings is appropriate.^[17]

The Court of Appeal’s conclusion

Applying the legal framework it developed, the Court of Appeal confirmed the dismissal of the first summons for contempt but reinstated the second.

With respect to the first summons for contempt of November 9, 2021, the Court of Appeal endorsed the trial judge’s finding of a 930-day delay, holding that there was no palpable and overriding error in this respect and noting that such delays were simply unreasonable, notwithstanding the fact that the trial judge conducted his analysis based on Jordan. The Court of Appeal’s intervention was therefore not warranted with respect to the first summons for contempt; the stay of proceedings in that regard was confirmed.

However, with respect to the second summons for contempt of September 30, 2022, the Court of Appeal found that the trial judge committed a palpable and overriding error in using the same starting point for calculating the delay, and consequently the same delay, as for the first summons. The Court of Appeal found that the total delay was instead 560 days, which did not appear unreasonable in the circumstances and did not infringe the respondents’ rights under section 11(b) of the Charter. This second summons for contempt was therefore reinstated.

A debate that persists across Canada

Québec is not the only Canadian jurisdiction to have considered the applicability of section 11(b) of the Charter and the appropriate analytical framework for assessing the reasonableness of delay in the context of civil contempt of court. Indeed, like Québec, Alberta and British Columbia have also considered the question.

In British Columbia, in Potratz,^[18] which predates Jordan, the Supreme Court of that province held that section 11(b) of the Charter applied, and that the applicable analytical framework was the one developed in Morin.

In Alberta, the Court of Appeal recently considered these questions in Lymer^[19] and concluded that section 11(b) of the Charter does not apply to civil contempt of court. In that case, the Court of Appeal set aside the Jordan analytical framework and instead opened the door to the considerations from the Supreme Court of Canada’s decision in Blencoe^[20] (reaffirmed in Abrametz^[21]), which are rooted in administrative law.

We anticipate further guidance from the Supreme Court of Canada on this issue in the context of the Lymer case, for which leave to appeal was granted on July 9, 2026.

Finally, it should be noted that an application for leave to appeal to the Supreme Court of Canada could be filed in Gestion Tasa, in which the Québec Court of Appeal confirmed the application of section 11(b) of the Charter to civil contempt of court proceedings and reverted to the test developed in Morin in 1992.

---

[1] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter).

[2] R. v. Jordan, 2016 SCC 27 (Jordan).

[3] City of Montreal c. Gestion Tasa inc., 2026 QCCA 954 (Gestion Tasa).

[4] Gestion Tasa, paras. 64 and 70.

[5] R. v. Morin, [1992] 1 S.C.R. 771 (Morin).

[6] Gestion Tasa, para. 7.

[7] Gestion Tasa, paras. 19 and 27.

[8] Gestion Tasa, paras. 54–57.

[9] Gestion Tasa, para. 64.

[10] Gestion Tasa, paras. 61 and 65.

[11] Gestion Tasa, para. 66, translated from the original French.

[12] Gestion Tasa, paras. 69–70, translated from the original French.

[13] Gestion Tasa, paras. 71–72.

[14] Gestion Tasa, paras. 75–76.

[15] Gestion Tasa, para. 78.

[16] Gestion Tasa, paras. 81–93, translated from original French.

[17] Gestion Tasa, para. 94.

[18] Potratz v. Potratz, 2015 BCSC 1608 (Potratz).

[19] Lymer v. Jonsson, 2025 ABCA 423 (Lymer).

[20] Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (Blencoe).

[21] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (Abrametz).