Contempt Of Court And The Impact Of The Nadeau-Dubois Case On Labour Law

When negotiating individual employment contracts, employers and employees often agree to include clauses whose effects continue once the contractual relationship has ended. Such clauses generally cover confidentiality, non-competition, or even non-solicitation of employees or clients.

Provided the clauses are reasonable1, an employer who discovers that one of these obligations has been breached by an employee may institute any appropriate action before the relevant civil courts.

Employers will seek provisional or interlocutory injunctions to force an employee to comply with a non-competition or non-solicitation clause. Once such an order has been obtained, the employee will then have the additional obligation of complying with the court order.

These orders may also be issued against any unionized workplace association. Orders can be issued during an illegal strike to restore the industrial peace at a company2. Moreover, and while on many occasions the jurisprudence has recognized a union's freedom of expression, that right is not absolute, particularly with respect to defamation. In such a situation, the employer is entitled to apply to the courts to have said defamation towards an employee, an executive, the president, or even the company itself, cease3.

Every year, many employers expend considerable effort in obtaining Court orders to prevent unions or staff from harming their organization.

In some cases additional proceedings are required to ensure compliance with the original order. This text therefore discusses the nature of the burden of proof on an employer seeking a contempt of court order to ensure compliance with orders issued against various entities or individuals.

Obligation to comply with court orders

Under section 58 of Quebec's new Code of Civil Procedure4 (hereinafter the "Code"), a person who disobeys a court order or injunction or acts in such a way as to interfere with the orderly administration of justice or undermines the authority or dignity of the court is guilty of contempt of court. The section also provides that where the order issued is an injunction, a person not named in an injunction [...] who disobeys that injunction [...] is guilty of contempt of court only if the person does so knowingly.

Pursuant to section 62 of the Code, contempt of court is punishable by a fine not exceeding $10,000 or community work, to which a term of imprisonment up to a maximum of one year may be added. The sanction for such...