The plaintiff municipality brought a motion seeking a declaration that the defendant was in civil contempt of court for failing to comply with an earlier order requiring removal of a berm constructed on his property that allegedly caused flooding in a municipal drainage ditch.
The court reviewed the three-part test for civil contempt requiring a clear order, deliberate and wilful disobedience, and proof beyond a reasonable doubt.
While the evidence indicated that the berm had not been fully removed and flooding continued, the court was not satisfied that the breach was deliberate or wilful.
Instead of a contempt finding, the court ordered the defendant to provide access to the property for surveying to determine the remaining berm and to facilitate compliance with the prior order.
