Executive Summary: Key Legal and Evidentiary Issues

• This appeal turns on whether the Canadian Charter's right to trial within a reasonable time governs civil contempt proceedings.
   
• Quebec's Court of Appeal held that section 11(b) applies to civil contempt but declined to import the Jordan framework's presumptive delay ceilings into civil procedure.
   
• A recurring evidentiary issue was how to attribute delay caused by a third party's unsuccessful attempt to intervene in the file.
   
• The panel also considered whether the appellant could raise a constitutional question for the first time on appeal without having given prior notice to the Attorney General at trial.
   
• Another disputed issue was whether two separate contempt citations against the same respondents should share a single starting date for calculating delay.
   
• Ultimately, the court split the outcome, confirming the stay of the first citation while restoring the second for trial.
   

Facts of the case

On August 27, 2018, the Superior Court granted the Ville de Montréal's application for a permanent injunction against Gestion Tasa inc. and La Maison Sami T.A. Fruits inc., ordering them to comply with article 5.48 of the city's zoning bylaw, which limited retail sales to 15% of the premises' total area. The Court of Appeal dismissed the respondents' appeal of that judgment on October 29, 2020, and the Supreme Court denied leave to appeal on April 15, 2021. On November 9, 2021, the city filed a first application for a contempt citation, alleging nine breaches of the injunction between August 6 and October 31, 2021; the respondents pleaded not guilty. A second contempt citation followed on September 30, 2022, alleging three further breaches between April 6 and June 2, 2022, to which the respondents again pleaded not guilty. Numerous adjournments, case-management conferences, and procedural motions delayed both files. On August 22, 2023, a third party, the Coopérative de consommateurs de biens et services à la famille du Québec, sought to intervene voluntarily; the motion was dismissed on December 1, 2023, and leave to appeal that dismissal was refused on January 29, 2024. The Superior Court joined the two contempt citations on November 15, 2023. A dispute also arose over a joint case-management form, which the respondents resisted on the basis that it infringed their right to silence; they prevailed at a hearing decided on March 6, 2024. On July 23, 2024, the respondents filed an amended motion to stay proceedings for unreasonable delay, invoking section 11(b) of the Canadian Charter and the presumptive ceilings set out in R. c. Jordan. A trial on both citations had been scheduled for January 20 to 24, 2025.

Policy and legislative provisions at issue

The case centres on section 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right to be tried within a reasonable time, and on the framework established in R. c. Jordan for assessing unreasonable delay in criminal proceedings. The Court of Appeal also examined articles 58 and 62 of the Code of Civil Procedure, which define contempt of court and limit available sanctions to a punitive payment (up to $10,000 for an individual or $100,000 for a legal person) or compensatory community work, with imprisonment available only in cases of injunction breaches and capped at one year. Articles 76 and 78 C.p.c., which require notice to the Attorney General of Quebec before a constitutional question can be raised, were also considered, since no such notice had been given at trial despite the proceeding involving a Charter-based claim against a municipality.

Reasoning and analysis

Writing for a unanimous panel, Justice Schrager first held that the appellant could raise the applicability of section 11(b) and Jordan for the first time on appeal, since the issue was a pure question of law that required no additional evidence and carried serious implications for the civil justice system. On the notice question, the court found that article 76 C.p.c. did require notice to the Attorney General at trial, since the claim was brought against a municipality, but that the Attorney General's participation on appeal was sufficient to permit the court to decide the issue on its merits, consistent with the Supreme Court's approach in Guindon c. Canada. Turning to the substantive Charter question, the court concluded that section 11(b) does apply to civil contempt, reasoning that the Supreme Court's decision in Vidéotron Ltée c. Industries Microlec Produits Électroniques Inc. already recognized the quasi-penal character of contempt and its potential penal consequences, and that no principled basis exists to apply some Charter protections to accused contemnors (such as the right to silence) while withholding others (such as the right to a timely trial). The court expressly declined to follow the Alberta Court of Appeal's reasoning in Lymer v Jonsson, which had required a state actor's presence before the Charter could apply, since Vidéotron itself involved a dispute between private parties. However, the panel held that Jordan's presumptive ceilings should not be transplanted into civil procedure, since they were calibrated to address a documented culture of delay specific to the criminal justice system, and several of Jordan's features — such as the attribution of delay caused by third-party interventions or the appealability of interlocutory judgments — do not translate meaningfully to civil proceedings. Instead, the court held that the four-factor framework from R. c. Morin, adapted to the civil contempt context, should guide the reasonableness analysis: the length of the delay, any waiver of specific periods, the reasons for the delay, and the prejudice to the accused. Applying this approach, the court agreed that the delay attributed to the first citation, calculated by the trial judge at 930 days, was unreasonable regardless of Jordan's ceilings, noting that a single motion to exclude evidence alone had caused a 21-month delay, and that prejudice could be inferred from the risk of lost defence evidence, the ongoing threat of a $100,000 fine, and mounting legal costs. On the fourth issue, the court found that the trial judge erred in treating the two contempt citations as sharing a single starting date, since the exception for "identical" or "closely related" charges relied upon below concerned withdrawn or replaced charges, not two citations arising from separate instances of ongoing non-compliance with an injunction, each of which constitutes a distinct offence. Treating the second citation independently, the court calculated a delay of 560 days after deducting periods attributable to respondents, waived periods, and delay linked to the Cooperative's intervention, and found this delay reasonable in light of the file's complexity and comparable contempt cases, while noting that no realistic prejudice to the respondents had been shown given the more recent nature of the alleged breaches.

Ruling and overall outcome

The Court of Appeal allowed the appeal in part. It confirmed the stay of the first contempt citation, filed November 9, 2021, finding no reversible error in the trial judge's underlying delay calculations and independently concluding that the resulting delay was unreasonable. It reversed the trial judge's decision to also stay the second contempt citation, filed September 30, 2022, restoring it so that it may proceed to trial. The court substituted a new disposition granting in part the respondents' amended motion to stay for unreasonable delay and quashing the first contempt citation, with costs at first instance; no specific dollar amount for those costs was stated in the judgment. Given the public interest nature of the question and the mixed result on appeal, the court ordered that each party bear its own costs of the appeal.