Executive Summary: Key Legal and Evidentiary Issues

• Civil contempt findings stemmed from the defendant’s repeated non-compliance with post-judgment enforcement orders, including failure to meaningfully participate in examinations in aid of execution.
• Language barriers, limited education, and alleged memory and medical issues were raised but did not outweigh a sustained pattern of evasive and obstructive conduct.
• Unproven claims of the defendant’s death, supported only by an unaffidavited translated “death certificate,” were insufficient to stay the proceedings.
• Prior judicial findings of fraud and the defendant’s personal financial gain from those frauds were treated as important aggravating factors at sentencing.
• Applying the established five-factor framework for civil contempt, the court emphasized proportionality, deterrence, and consistency with sentences in comparable contempt cases.
• A short custodial term and a substantial indemnity costs award of $15,587.50 in favour of the bank were imposed to denounce the contempt and reinforce the authority of court orders.

Background and underlying dispute
The dispute arises from civil and commercial proceedings brought by Bank of Montreal (BMO) against 8156310 Canada Inc., operating as HD Kitchen and Services, and an individual defendant, Duc Hien (also known as Do Duc Hien). The bank is a judgment creditor seeking to enforce a prior judgment against Duc and the corporate defendant. While this decision does not set out the full terms or amount of the original judgment, it makes clear that Duc has not paid the judgment or earlier costs awards, prompting BMO to use enforcement mechanisms available under Ontario law to locate assets and compel financial disclosure.

Prior orders and findings of contempt
On July 10, 2023, Associate Justice R. Frank issued an order (the “Frank Order”) directing Duc to comply with post-judgment enforcement steps, including providing relevant documents and submitting to an examination in aid of execution. Duc failed to comply with those directions. As a result, on May 12, 2024, Justice Merritt found Duc in contempt of the Frank Order, concluding that he had deliberately disregarded the court’s authority and the enforcement process initiated by the bank. Instead of immediately moving to punishment, the court provided Duc an opportunity to purge his contempt.

Opportunities to purge contempt and partial compliance
To purge his contempt, Duc was ordered to attend an examination in aid of execution at Network North on June 10, 2025 and to deliver required financial and corporate documents to BMO by May 30, 2025. Duc did attend the June 10 examination. Because English is not his first language and no official interpreter was available, his daughter accompanied him and assisted with translation. Despite this, Duc could not or did not answer fundamental questions about his circumstances and the corporation’s affairs, including his prior residence before coming to Canada, the location of corporate books and records, the identity of corporate officers, and basic financial information about the company. This meant that, although he formally appeared, the examination yielded little meaningful enforcement information.

Language, education, and health issues raised in mitigation
On June 16, 2025, Duc appeared with counsel and sought an adjournment of sentencing to further purge his contempt. Counsel explained that Duc has only a grade seven education, faces a significant language barrier, and suffers from health and memory problems connected to a past fall and more recent medical issues, supported by some medical records. Justice Merritt acknowledged these as potentially mitigating factors but viewed them in context. The court adjourned sentencing and provided Duc another opportunity to either produce the necessary documentation and attend a further examination with appropriate interpretation support, or submit medical evidence demonstrating that he was genuinely incapable of answering the questions posed in an examination in aid of execution.

Failure to attend further examination and allegation of death
The court ordered Duc to attend another examination in aid of execution at Network North on August 29, 2025 with an official translator, or in the alternative to provide proper medical evidence showing that he could not participate. Duc did not attend the August 29, 2025 examination and did not provide persuasive medical proof of incapacity. When the matter returned to court, Duc did not appear. His counsel advised that he had left Canada for Vietnam and had since died, and produced a photocopy of a certified translation of documents said to be a death certificate. However, there was no supporting affidavit or other admissible evidence to prove death. Justice Merritt noted that, if Duc were in fact deceased, rule 11.01 would operate to stay the proceeding. In the absence of admissible evidence, the court proceeded on the existing contempt finding. Counsel for Duc—whether acting for him personally, his estate, or his family—did not oppose the prospect of a 10-day custodial sentence.

Legal framework for civil contempt sentencing
Justice Merritt relied on rule 60.11 of the Rules of Civil Procedure, which empowers the court, on finding contempt, to make any order that is just, including imprisonment, fines, coercive orders to do or refrain from specific acts, and costs. The court then applied the five-factor framework adopted by the Ontario Court of Appeal for civil contempt sentencing: (1) proportionality of the sentence to the seriousness of the contempt and the contemnor’s responsibility; (2) the presence of aggravating and mitigating factors; (3) deterrence and denunciation; (4) consistency with sentences in similar cases; and (5) the overall reasonableness of incarceration or a fine. In assessing proportionality, Justice Merritt found Duc’s contempt to be serious. He had persistently ignored the Frank Order and subsequent judicial directions, undermining the orderly enforcement of a valid judgment and the authority of the court.

Aggravating and mitigating factors considered by the court
The court accepted as mitigating that Duc apparently has limited formal education, significant language challenges, and asserted health and memory issues. These factors could make participation in detailed legal and financial proceedings more difficult. Nonetheless, Justice Merritt found that the aggravating features outweighed any mitigation. Those features included Duc’s ongoing defiance and multiple breaches of both the Frank Order and subsequent orders, his failure to meaningfully purge his contempt despite repeated opportunities, and his personal financial gain from frauds previously found by another judge in the underlying matter. The court also highlighted that Duc had not admitted his contempt or offered an apology, and that his apparent departure from Canada was consistent with a broader pattern of evasion rather than inadvertent non-compliance.

Deterrence, comparison to similar cases, and rejection of lesser sanctions
The judgment emphasizes that specific and general deterrence are the primary objectives in civil contempt sentencing. A meaningful sanction was necessary both to impress upon Duc that court orders must be obeyed and to signal to other litigants that deliberate obstruction of the enforcement process will not be tolerated. Justice Merritt considered prior decisions where repeat failures to attend examinations in aid of execution or to provide financial disclosure led to terms of imprisonment, sometimes longer than in this case. These authorities supported the conclusion that a custodial sentence here was consistent with sentences in comparable circumstances. The court determined that a fine alone would be inadequate, particularly given Duc’s failure to pay the existing judgment and prior cost awards, and the absence of any realistic prospect that an additional monetary sanction would be voluntarily satisfied. House arrest was also rejected as ineffective in light of indications that Duc had left the country and the inherent reliance of house arrest on an honour system that Duc’s conduct did not justify.

Outcome and total amount ordered in favour of the successful party
In the result, Justice Merritt ordered that a Form 60L Warrant of Committal issue for Duc’s arrest and detention in a provincial correctional institution for 10 days, reflecting a short but meaningful term of incarceration designed to punish and deter. The court also addressed the financial consequences of the contempt motion. After reviewing Bank of Montreal’s costs outline, Justice Merritt held that the time spent and hourly rates were reasonable and within the scope of what Duc could reasonably have anticipated. Costs were awarded to BMO on a substantial indemnity basis and fixed at $15,587.50, inclusive of HST and disbursements. Bank of Montreal is thus the successful party in this contempt sentencing decision, and the total quantified amount ordered in its favour in this judgment is $15,587.50. Any underlying judgment debt or previous cost awards in favour of BMO remain unpaid, but their precise amounts cannot be determined from this decision alone.