Rogacki v. Belz

Rogacki v. Belz et al. [Indexed as: Rogacki v. Belz]

67 O.R. (3d) 330

[2003] O.J. No. 3809

Docket No. C38522

Court of Appeal for Ontario

Abella, Borins and Armstrong JJ.A.

October 3, 2003

Civil procedure -- Discovery -- Deemed undertaking -- Defendant in libel action publishing newspaper article about his experiences upon being examined for discovery -- No breach of deemed undertaking rule -- Motion to have party found in contempt dismissed -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 30.1, 60.

Civil procedure -- Mandatory mediation -- Parties to libel action signing confidentiality agreement before mediation session -- Defendant in libel action publishing newspaper article about the mandatory mediation session -- Motion to have party found in contempt dismissed -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 24.1, 60.

Contempt -- Actus reus -- Disclosure of experiences at mandatory mediation session and at examinations for discovery -- Parties to libel action signing confidentiality agreement before mandatory mediation session under Rule 24.1 of Rules of Civil Procedure -- Defendant in libel action publishing newspaper article about the mediation session -- Defendant publishing second article about his experiences upon being examined for discovery -- Motion to have party found in contempt dismissed -- For actus reus, necessary to show that the articles had some significant adverse effect on the administration of justice.

ZB was the editor and publisher of Gazeta, a Polish language newspaper, and he was a defendant in the plaintiff ER's libel action concerning certain articles published in the newspaper. On January 15, 2002, a mediation session pursuant to Rule 24.1 of the Rules of Civil Procedure took place. Before the mediation session, the parties signed a mediation agreement that provided that everything said at the mediation was confidential and privileged. The next day, ZB wrote and published in Gazeta an article reporting that the mediation session had not yielded a reconciliation. On January 28, 2002, ZB was examined for discovery. Subsequently he wrote and published a lengthy article in Gazeta, in which he described his experience on the examination for discovery. On the basis of the two articles, the plaintiff ER moved for an order that ZB be found in contempt for breach of Rule 24.1, the confidentiality agreement, or Rule 30.1, the deemed undertaking rule. Brennan J. found ZB to be in contempt with respect to the first newspaper article but he found no contempt with respect to the second article. ZB appealed.

Held, the appeal should be allowed.

Per Borins J.A. (Armstrong J.A. concurring): ER, in seeking a contempt order against ZB, relied on Rule 60 of the Rules of Civil Procedure, which provides for the enforcement of an "order". However, neither Rule 24.1 nor the confidentiality provision in the mediation agreement was an order within the meaning of Rule 60, and neither was capable of enforcement under that rule by a contempt order. It was therefore necessary to consider whether Brennan J.'s contempt order was supportable under the court's inherent jurisdiction. In this regard, Brennan J. was incorrect in holding ER in contempt with respect to the first article. In the result, he was correct in dismissing the contempt motion respecting the second [page331] article. For ZB to be found in contempt in respect of either article, ER was required to prove that ZB did the relevant act (actus reus) with the necessary intent (mens rea). There was no doubt that ZB published the articles. However, to complete the actus reus, it was also necessary to show that the articles had some significant adverse effect on the administration of justice.

There was nothing in the record that would support a finding of contempt with respect to the two articles. There was nothing in either article that was prejudicial to ER and that could have compromised a fair trial. There was nothing in either article that even suggested a risk of serious, real or substantial prejudice to the administration of justice.

Brennan J. was correct in concluding that the deemed undertaking provided by rule 30.1(3) did not apply to the circumstances of this case. In publishing the article recounting his experience on being examined for discovery, ZB did not infringe Rule 30.1.

Per Abella J.A. (concurring): The appeal raised important policy questions about the mandatory mediation process. Although rule 24.1.14 does not create an enforceable guarantee of confidentiality, there were significant public policy reasons for keeping the mediation sessions confidential. Protecting confidentiality furthered the public policy goal of encouraging settlement discussions. Willful breaches of the confidentiality of a mediation is conduct that can create a serious risk to the full and frank disclosures the mandatory mediation process requires. Breach of confidentiality can significantly prejudice the administration of justice and, in particular, the laudable goal reflected in Rule 24.1 of attempting to resolve disputes effectively and fairly without the expense of trial. However, given the potential gravity of the consequences of a contempt finding, it should only be exercised when the circumstances are clear and beyond reasonable doubt. A contempt order was not appropriate in the immediate case.

APPEAL of an order holding the defendant in contempt.

Cases referred to Attorney General v. Times Newspapers Ltd., [1973] 3 All E.R. 54, [1974] A.C. 273, [1973] 3 W.L.R. 298, 117 Sol. Jo. 617 (H.L.); Bell Canada v. Olympia & York Developments Ltd. (1994), 17 O.R. (3d) 135, 111 D.L.R. (4th) 589, 26 C.P.C. (3d) 368 (C.A.); Bhatnager v. Canada (Minister of Employment & Immigration) (1990), 36 F.T.R. 91n, [1990] 2 S.C.R. 217, 71 D.L.R. (4th) 84, 111 N.R. 185, 43 C.P.C. (2d) 213; British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, 31 B.C.L.R. (2d) 273, 71 Nfld. & P.E.I.R. 93, 53 D.L.R. (4th) 1, 87 N.R. 241, [1988] 6 W.W.R. 577, 50 C.R.R. 397n, 44 C.C.C. (3d) 289, 30 C.P.C. (2d) 221, 88 D.T.C. 14,047 (sub nom. B.C.G.E.U. (Re)); Canadian Broadcasting Corp. v. Paul (2001), 2001 FCA 93, 198 D.L.R. (4th) 633, 274 N.R. 47, 9 C.C.E.L. (3d) 1, [2001] F.C.A. 93 (F.C.A.), revg in part 1998 9117 (FC), [1999] 2 F.C. 3, 158 F.T.R. 161, 168 D.L.R. (4th) 727, 39 C.C.E.L. (2d) 179; Forrest v. Lacroix Estate (2000), 48 O.R. (3d) 619, 187 D.L.R. (4th) 280, 34 E.T.R. (2d) 241, 8 R.F.L. (5th) 51 (C.A.), revg (1999), 46 O.R. (3d) 364, 30 E.T.R. (2d) 200 (S.C.J.); Goodman v. Rossi (1995), 24 O.R. (3d) 359, 125 D.L.R. (4th) 613, 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181 (C.A.), revg (1994), 21 O.R. (3d) 112, 120 D.L.R. (4th) 557, 7 C.C.E.L. (2d) 188, 34 C.P.C. (3d) 18 (Div. Ct.); O. (G.) v. H. (C.D.) (2000), 50 O.R. (3d) 82, 11 C.P.C. (5th) 302, [2000] O.J. No. 1882 (QL), [2000] O.T.C. 400 (S.C.J.); Orfus Realty v. D.G. Jewellery of Canada Ltd. (1995), 24 O.R. (3d) 379, 41 C.P.C. (3d) 148 (C.A.); Prudential Assurance Company v. Fountain Page Limited, [1991] 1 W.L.R. 756 (Q.B.); R. v. Bunn (1994), 97 Man. R. (2d) 20, 79 W.A.C. 20, [1994] 10 W.W.R. 153, 94 C.C.C. (3d) 57 (C.A.), revg 1993 14736 (MB PC), [1993] 8 W.W.R. 344 (Man. Prov. Ct.) (sub nom. R. v. Chippeway); R. v. Kopyto (1987), 62 O.R. (2d) 449, 24 O.A.C. 81, 47 D.L.R. (4th) 213, 39 C.C.C. (3d) 1, 61 C.R. (3d) 209 (C.A.); [page332] R. v. Vermette, [1987] 1 S.C.R. 577, 52 Alta. L.R. (2d) 97, 38 D.L.R. (4th) 419, 74 N.R. 221, [1987] 4 W.W.R. 595, 32 C.C.C. (3d) 519, 57 C.R. (3d) 340; Tanner v. Clark (2003), 63 O.R. (3d) 508, 224 D.L.R. (4th) 635, 34 M.V.R. (4th) 23, 30 C.P.C. (5th) 103, [2003] O.J. No. 677 (QL) (C.A.), affg (2002), 60 O.R. (3d) 304, 31 M.V.R. (4th) 91, 27 C.P.C. (5th) 52 (Div. Ct.), supp. reasons (2002), 24 C.P.C. (5th) 68 (Ont. Div. Ct.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 66(2)(s) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.03 "order", 24.1, 24.1.05, 24.1.13(2), 24.1.14, 30.1, 30.1.01, 34.15(2), 50.03, 60.05, 60.11, 69.14(9) Authorities referred to Boulle, L., and K. Kelly, Mediation: Principles, Process, Practice (Markham: Butterworths, 1998) Grey, O.V."Protecting the Confidentiality of Communications in Mediation" (1998) 36 Osgoode Hall L.J. 667 Hamilton, J.W."Protecting Confidentiality in Mandatory Mediation: Lessons from Ontario and Saskatchewan" (1999) 24 Queen's L.J. 561 Miller, J., The Law of Contempt in Canada (Scarborough, Ont.: Carswell, 1997) Vaver, D."Without Prejudice Communications -- Their Admissibility and Effect" (1974) 9 U.B.C.L. Rev. 85

Robert B. Bell, for respondent. Peter I. Waldmann, for appellant.

[1] BORINS J.A. (ARMSTRONG J.A. concurring): -- The appellant, Zbigniew Belz, appeals from an order of Brennan J. holding him in contempt of court in respect of a breach of confidentiality arising from a mandatory mediation conducted pursuant to Rule 24.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The mediation took place in the context of a libel action brought by the respondent concerning certain articles published in a Polish language newspaper known as Gazeta, of which the appellant was the editor and publisher. For the reasons that follow, I would allow the appeal.

The Facts

[2] The mediation session took place on January 15, 2002. The mediator was William R. McMurtry. The parties and their lawyers were present. Prior to the commencement of the mediation, counsel for the parties signed what the court was told was a standard form mediation agreement. Clause 4 of the agreement reads as follows: [page333]

4. CONFIDENTIALITY

The mediator will not disclose to anyone who is not a party to the mediation any information or documents submitted to the mediator, EXCEPT:

(a) to the lawyers, or any experts retained by the parties, as deemed appropriate by the mediator;

(b) where ordered to do so by judicial authority or where required to do so by law;

(c) with the written consent of all parties.

The parties agree that they will not require the mediator to testify in court, to submit any report for use in legal proceedings or otherwise to disclose any written or oral communication that has taken place during the mediation.

[3] Mr. McMurtry explained to the parties that it was fundamental to the mediation process that discussions forming part of it be kept confidential. At the end of the mediation agreement he added in handwriting the following clause, which was signed by the parties:

The parties agree that everything that is said or done in the mediation is strictly confidential and privileged, and no reference will be made to anyone other than the parties or their solicitors of anything that is said during the process.

[4] On January 16, 2002, the appellant wrote and published in Gazeta an article reporting on the mediation session which reads, in part, as follows (English translation):

No reconciliation was reached in the action brought against Gazeta and its Editors Alicja Gettlich and Zbigniew Belz.

After a mediation session that lasted for a few hours last Tuesday, Ms. Elzbieta Rogacka, the Plaintiff (let us refresh our memory: a private action taken, corporate money used) rejected the Gazeta editors' proposal which might have served as a basis for reconciliation of the parties.

[5] On January 28, 2002, the appellant was examined for discovery. Subsequently, he wrote and published a lengthy article in Gazeta in which he described his experience on being examined for discovery and recalled the content of some of the questions he was asked by the respondent's counsel. In addition, the appellant provided editorial comments concerning some of the questions.

The Contempt Motion

[6] On the basis of the two articles, the respondent moved for the following orders:

1. An order that the defendant, Zbigniew Belz, be found in contempt of court for breach of Rule 24.1.14 of the Rules of Civil Procedure and the Confidentiality Agreement which guard the confidentiality of Mediations; [page334]

2. An order that the defendant, Zbigniew Belz, be found in contempt of court for breach of the deemed undertaking rule.

She gave as grounds for her motion, rules 24.1.14, 30.1.01, 60.05 and 60.11 of the Rules of Civil Procedure and the "Confidentiality Provision" that Mr. McMurtry added to the mediation agreement. Rule 30.1 is the deemed undertaking rule.

[7] In his affidavit in response to the motion, the appellant discussed the two articles. In respect to the first article, he stated:

7. In the meantime a mediation was held on January 15, 2002, which lasted four hours. I was present, along with Mr. Czuma, Mrs. Gettlich, Mrs. Rogacki, two lawyers for Mrs. Rogacki and Mr. McMurtry, the mediator. A great deal was said during those four hours, some of it intemperate since the matters in issue provoked strong emotions on both sides. I did sign the Confidentiality Agreement, and whatever I did write, I did not include any details whatsoever about what was discussed, although a great deal was discussed, and the experience was a very emotional one for everyone concerned.

8. Gazeta is published five times a week, Monday to Thursday as a regular edition, and on Friday the weekly edition comes out, which includes a supplement. The mediation took place on January 15. The Article appeared in the next day's issue of Gazeta and consisted of a very brief report about the mediation, certainly nothing in terms of length with respect to details of what occurred. We were interested in settling the claim, and I was frustrated that it had not been settled. I do not believe that what I wrote is a contempt of court and was certainly never intended to be an insult to the court and, in my view, does not violate the Confidentiality Agreement.

[8] In respect of the second article, the appellant stated:

11. Prior to writing the article, I was completely unaware that I was unable to report on this part of the court proceeding. There was no confidentiality agreement signed in advance and neither Mr. Bell, nor my own lawyer, told me that I could not write about my experiences on the Examination for Discovery. I found it an interesting experience, which I thought might interest my readers, who have been following the progress of this law suit in our pages. Had I known that I should not write about it, I certainly would not have written about it and I will never do so again. I did not intend any insult towards the court. As far as I was aware it was a court proceeding, and it could be made public. If there was any offence in what I did, I certainly apologize to the court, but it was entirely unintended. Perhaps Mr. Czuma would not suspect that I would write such an article, but he certainly did not tell me that I could not write such an article. Since he has told me, I have certainly not written any other articles about what happens at the discovery, or released any other confidential information.

The Motion Judge's Reasons

[9] The motion judge found the appellant in contempt of court in respect to the first article, but not in respect to the second article.

[10] In his endorsement, the motion judge wrote:

Motion granted. I find the defendant Belz in contempt of court in respect of his breach of the confidentiality of the mediation process. The importance of [page335] maintaining that confidentiality is demonstrated by the content of the Rule, elevating "all communications at a mediation session" to (deemed) without prejudice discussions. Further emphasis of that importance should have been apparent to Belz from the fact that the mediator insisted on the parties signing an express agreement on the matter.

I am not satisfied that publication of information about his own examination for discovery falls within the prohibition found now in Rule 30.1 and the deemed undertaking rule as I accept the submission made on his behalf that he consents to its use as Rule 30.1.01(4) provides. Even if some of the information published about his examination does not fall within such consent, I am not satisfied of his wilfulness in that regard, as contempt relief would require.

As suggested by counsel I am limiting my decision at this point to the finding that Belz's conduct amounts to contempt of court and requires that the court exercise some control of his conduct relating to the process of the court in the future.

(Emphasis added)

[11] In a subsequent endorsement, the motion judge imposed the following sanction on the appellant to "remedy" his contempt:

To remedy his contempt I order that Mr. Belz conform with the confidentiality provisions of the Rules of Civil Procedure and that he cause to be published on the front page of Gazeta the following text, without comment. The Polish version is to be provided by a translator mutually acceptable to counsel, in accordance with their agreement at the hearing before me on June 11, 2002.

Rogacki v. Belz, Gazeta and Gettlich:

Publisher Belz found to be in contempt of court.

In the case of Rogacki v. Belz, Gazeta and Gettlich a motion was brought asking the court to find that Zbigniew Belz was in contempt of court. On May 29, 2002 the Superior Court of Justice granted the motion, finding that Mr. Belz was in contempt in allowing the publication of an article in Gazeta No. 11 on January 16, 2002 entitled "The case of the President of the National Council of the Canadian- Polish Congress v. Gazeta: No Reconciliation So Far". The court found that publication of the story was a willful breach of confidentiality requirements of its Rules of Civil Procedure.

Mr. Belz has been ordered to conform with the confidentiality provisions of the Rules of Civil Procedure and to pay court costs in the amount of $11,700.00 plus GST and disbursements to indemnify the plaintiff in respect of her costs of the motion.

(Emphasis added)

In addition, the motion judge ordered that the respondent be awarded costs on a substantial indemnity basis.

[12] The following paragraphs of the formal judgment of the court are also relevant:

1. THIS COURT ORDERS that the defendant Zbigniew Belz is in contempt of court in respect of breach of confidentiality of the mediation process. [page336]

2. THIS COURT ORDERS that the defendant Zbigniew Belz pay costs in the amount of $11,700.00 plus GST in the amount of $819.00 plus disbursements in the amount of $380.34 for a total of $12,899.34 to the plaintiff forthwith and in any event of the cause.

3. THIS COURT ORDERS that the defendant Zbigniew Belz cause to be published on the front page of the weekend edition of Gazeta the text attached as Schedule A hereto as translated into Polish, without comment.

4. THIS COURT ORDERS that the defendant Zbigniew Belz conform with the confidentiality provisions of the Rules of Civil Procedure.

Relevant Rules of Civil Procedure

[13] The following rules are relevant to this appeal:

Rule 24.1

24.1.14 All communications at a mediation session and the mediator's notes and records shall be deemed to be without prejudice settlement discussions.

Rule 30.1

30.1.01(1) This Rule applies to,

(a) evidence obtained under,

(ii) Rule 31 (examination for discovery),

(b) information obtained from evidence referred to in clause (a).

(3) All parties and their counsel are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.

Rule 60

60.05 An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.

60.11(1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

. . . . . [page337]

(5) In disposing of a motion under subrule (1) the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if he or she fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person's property.

(Emphasis added)

The Issues

[14] In the respondent's notice of motion for the contempt order she relied on Rule 60 of the Rules of Civil Procedure. In my view, the respondent's reliance on Rule 60 raises the issue of the availability of the contempt power in the circumstances of this case, primarily because of the language of rules 60.05 and 60.11(1), which are parts of Rule 60, which is entitled "Enforcement of Orders". Rule 60.05 provides for the enforcement of "an order requiring a person to do an act . . . or to abstain from doing an act . . . by a contempt order under rule 60.11". Rule 60.11(1) provides for a contempt order to enforce compliance with such an order "on [a] motion to a judge in the proceeding in which the order to be enforced was made". It is also apparent from the language of rule 60.11(5), which contains the sanctions that the court may impose where a finding of contempt is made, that the focus of the contempt power in Rule 60 is the failure of an individual to comply with an order made by the court. (Under rule 1.03 "order" includes a judgment.) In this case, no order had been made that was enforceable under Rule 60.

[15] In seeking the order under appeal, it was the respondent's position that in publishing the article reporting on the result of the mandatory mediation session, the appellant was in contempt of court because he was in breach of both rule 24.1.14 and the "Confidentiality Provision" that was added to the mediation agreement. Thus, the first issue to be decided is whether either rule 24.1.14 or the "Confidentiality Provision" is an order within the meaning of Rule 60 and, therefore, capable of enforcement under that rule by a contempt order. [page338]

[16] If, however, I am of the opinion that neither rule 24.1.14 nor the "Confidentiality Provision" is an order within the meaning of Rule 60, I think that the inherent jurisdiction of the court to invoke the contempt power should be considered if that jurisdiction forms a basis for the order under appeal, notwithstanding the fact that the respondent relied on Rule 60 and not on the inherent jurisdiction of the court. Although, as Morden J.A. pointed out in Forrest v. Lacroix Estate (2000), 48 O.R. (3d) 619, 187 D.L.R. (4th) 280 (C.A.), at para. 23, rule 60.11(1) "is intended to occupy the field in proceedings under the Rules of Civil Procedure relating to the enforcement of court orders which require an act to be done", the inherent jurisdiction of the court may be exercised to invoke the contempt power where the impugned conduct does not involve a failure to comply with a court order. See R. v. Bunn (1994), 97 Man. R. (2d) 20, 94 C.C.C. (3d) 57 (C.A.); R. v. Vermette, [1987] 1 S.C.R. 577, 38 D.L.R. (4th) 419. In the circumstances of this case, under the inherent jurisdiction of the court, the second issue then becomes whether the articles written and published by the appellant, or either of them, constitute a contempt of court as recognized by the Canadian authorities.

The Rule 60 issue

[17] In my opinion, Rule 60 was not available to the respondent as the foundation for a contempt order based on the article written and published by the appellant reporting on the result of the mandatory mediation session. Rule 60, and in particular rules 60.05 and 60.11(1), by their plain language provide for a contempt order to enforce a court order. There was no order of the court prohibiting the publication of the article. Indeed, in her notice of motion the respondent did not rely on the appellant's breach of a court order. The grounds for her motion were "breach of Rule 24.1.14 . . . and the Confidentiality Agreement" signed by the parties at the outset of the mediation session. The respondent has provided no authority that the breach of a rule of court or a private agreement is equivalent to an order of the court within the meaning of Rule 60, and I have been unable to locate any such authority. The Rules of Civil Procedure contain many sanctions where a party has failed to comply with a rule of court. In the few instances where a contempt order is provided as a sanction for failing to comply with a rule, as in rules 34.15(2) and 69.14(9), such sanction is expressly provided. Had the Civil Rules Committee, in the exercise of its powers under s. 66(2) (s) of the Courts of Justice Act, R.S.O. 1990, c. C.43, intended to provide that the contempt power may [page339] be used to enforce the obligations imposed on litigants under rule 24.1, it would have done so expressly.

[18] In my respectful opinion, the motion judge not only misapprehended the contempt power contained in Rule 60, but he also misinterpreted rule 24.1.14. As I understand his reasons, as reflected in para. 1 of the formal order of the court, the motion judge appeared to interpret rule 24.1.14 as providing for the "confidentiality of the mediation process". (A similar misapprehension of rule 24.1.14 is reflected in para. 5 of the order which required the appellant to "conform with the confidentiality provisions of the Rules of Civil Procedure".) This is not what rule 24.1.14 states, nor is there any other subrule within Rule 24.1 that addresses the confidentiality of the mandatory mediation process. By deeming "all communications at a mediation session and the mediator's notes and records . . . to be without prejudice settlement discussions", rule 24.1.14 codifies the principle that communications made without prejudice in an attempt to resolve a dispute are not admissible in evidence unless they result in a concluded resolution of the dispute. As such, rule 24.1.14 is a necessary ingredient of Rule 24.1 as it furthers the public interest in promoting free and frank settlement discussions by protecting communications for that purpose from compelled disclosure in subsequent proceedings involving the parties to the settlement discussions, such as discovery or trial, in circumstances where the mediation fails to resolve the litigation. In this regard, Clause 4 of the mediation agreement is consistent with the purpose of rule 24.1.14. Another rule which serves a purpose similar to rule 24.1.14 is rule 50.03, which precludes disclosure of communications made at a pre-trial hearing at a subsequent trial or motion. See Bell Canada v. Olympia & York Developments Ltd. (1994), 17 O.R. (3d) 135, 111 D.L.R. (4th) 589 (C.A.).

The inherent jurisdiction issue

[19] Having found that a motion for a contempt order under Rule 60 was not available to the respondent in respect of the article published by the appellant reporting on the result of the mandatory mediation session, I turn to whether the inherent jurisdiction of the court may be exercised to sanction the appellant for publishing the article. I will include within my analysis the second article, in respect of which the respondent had unsuccessfully sought a contempt order under Rule 60 on the ground that its publication was in breach of Rule 30.1, the deemed undertaking rule. In this article, the appellant discussed his experience when he was examined for discovery. Although there [page340] is no cross-appeal from the dismissal of the contempt motion respecting this article, in her factum the respondent suggested that the publication of the article infringed Rule 30.1. In my view the motion judge was correct in dismissing the contempt motion for reasons that I will outline subsequently.

[20] For the appellant to be found in contempt of court in respect of either article, the respondent was required to prove that the appellant did the relevant act (actus reus) with the necessary intent (mens rea). There is no doubt that the appellant published the articles. However, to complete the actus reus it was also necessary for the respondent to prove that the articles had some significant adverse effect on the administration of justice. If the respondent proved the actus reus, it would then be necessary for her to prove that the appellant published the articles with the necessary intent.

[21] There are many forms of contempt of court. The publication of the two articles comes closest to that form of contempt embraced by the sub judice rule, which seeks to avoid prejudicing the fair trial of pending litigation by precluding the publication of material that would have that effect. As such, the sub judice rule represents the intersection of two principles of fundamental importance: freedom of expression, and the rule of law which precludes interference with the administration of justice. As stated by Jeffrey Miller in The Law of Contempt in Canada (Scarborough, Ont.: Carswell, 1997) at pp. 101-02, the leading case in Canada on this subject remains Attorney General v. Times Newspapers Ltd., [1973] 3 All E.R. 54, [1974] A.C. 273 (H.L.), from which the author extracted the following principles to be considered in assessing an impugned pre-trial publication:

(1) The issues must not be prejudged in a manner likely to affect the mind of the trier of fact.

(2) Contempt exists only if there is a real risk of prejudice as opposed to a mere possibility of interference with the due administration of justice.

(3) The rule applies even if the litigation is in a quiescent stage, such as during protracted settlement discussions.

[22] Although civil contempts, as in this case, and criminal contempts take a variety of forms, it is important to emphasize that each involves an interference with the due administration of justice. Indeed, contempt of court, both civil and criminal, has existed for centuries. It is the mechanism used by the court to ensure compliance with its orders and to protect its process. As such, it is a sanction that serves the administration of justice in the public interest. [page341]

[23] It is helpful to repeat what was said by Dickson C.J.C. in British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, 53 D.L.R. (4th) 1, at p. 234 S.C.R.:

In some instances the phrase "contempt of court" may be thought to be unfortunate because, as in the present case, it does not posit any particular aversion, abhorrence or disdain of the judicial system. In a legal context the phrase is much broader than the common meaning of "contempt" might suggest and embraces "where a person, whether a party to a proceeding or not, does any act which may tend to hinder the course of justice or show disrespect to the court's authority""interfering with the business of the court on the part of a person who has no right to do so""obstructing or attempting to obstruct the officers of the Court on their way to their duties": see Jowitt's Dictionary of English Law, 2nd ed., vol. 1, at p. 441.

[24] I find nothing in the record that would support a finding of contempt with respect to either article. As for the first article, it reported that a mandatory mediation session had taken place that did not result in a settlement of the respondent's claim. The second article was concerned with the appellant's perception of his examination for discovery interspersed with some comments critical of the questions that he had been asked. Although it would have been better in the circumstances of this hotly contested litigation had the appellant not published the articles, as I have explained, I find nothing in Rule 24.1 that precluded him from publishing the first article. Nor, as I will explain, did Rule 30.1 preclude him from publishing the second article. As he explained in his affidavit, in writing the articles he did not intend an insult to the court. In my view, each article has not been demonstrated to constitute a contempt of court. There is nothing in either article that was prejudicial to the respondent and that could have compromised a fair trial. Indeed, the respondent presented no evidence to that end.

[25] Earlier I expressed agreement with the motion judge's dismissal of the contempt motion arising from the appellant's publication of the article about his own examination for discovery. However, in my view the motion judge was not correct in dismissing the motion on the application of rule 30.1.01(4) which, as I will explain, in the circumstances of this case does not apply.

[26] This motion was brought on the ground that the article was in "breach of the deemed undertaking rule", which is Rule 30.1. The motion judge dismissed the motion because he was of the view "that the appellant's publication of information about his own examination for discovery" did not fall "within the prohibition found now in Rule 30.1 and the deemed undertaking rule". [page342] He was further of the view that because the appellant "consented" to the "use" of the information, rule 30.1(4) permitted its use for purposes other than those of the proceedings in which the information was obtained.

[27] In my view, the motion judge was correct in concluding that the deemed undertaking provided by rule 30.1(3) did not apply in the circumstances of this case. The deemed, or implied, undertaking rule at common law was thoroughly discussed by Morden A.C.J.O. on behalf of this court in Goodman v. Rossi (1995), 24 O.R. (3d) 359, 125 D.L.R. (4th) 613 (C.A.). As explained in Rossi, there is an implied undertaking by the discovering party to a proceeding to whom testimony or documents are provided by the discovered party in the course of the discovery process that he or she will not use such information for purposes other than those of the proceeding in which the testimony or documents were obtained. Because the undertaking is to the court, its breach gives rise to direct sanctions that a court may impose, such as a finding of contempt of court, and can be relieved or modified by an order of the court. See, also, Orfus Realty v. D.G. Jewellery of Canada Ltd. (1995), 24 O.R. (3d) 379, 41 C.P.C. (3d) 148 (C.A.). Subsequent to the decision in Rossi, and based on it, the Civil Rules Committee introduced Rule 30.1.

[28] The documents and testimony obtained from the discovered party are protected by the deemed undertaking from improper use by the discovering party. Under Rule 30.1 the discovered party is not constrained from any use of his testimony or the documents elicited by the discovering party. It is the discovering party's use of information obtained from the discovered party for a purpose other than that of the litigation in which it was obtained that is precluded by Rule 30.1. See Tanner v. Clark (2003), 63 O.R. (3d) 508, 224 D.L.R. (4th) 635 (C.A.). It follows, as the appellant was the discovered party, that in publishing the article recounting his experience on being examined for discovery he did not infringe Rule 30.1. In the circumstances, therefore, rule 30.1.01(4) has no application. Nevertheless, the motion judge correctly dismissed the contempt motion based on the publication of the discovery article.

[29] I would apply the following passage from the reasons of Dubin J.A. in R. v. Kopyto (1987), 62 O.R. (2d) 449, 47 D.L.R. (4th) 213 (C.A.), at pp. 525-26 O.R. to the circumstances of this case:

It was essential for the Crown to prove that the statement made by the appellant was calculated to bring the administration of justice into disrepute. That is the actus reus of this offence. The mere fact that the words are capable of bringing the administration of justice into disrepute does not suffice. What must be shown is that, by reason of the statement made by the [page343] appellant, there was a serious risk that the administration of justice would be interfered with. The risk of prejudice must be serious, real or substantial.

[30] To this I would add the following passage written by Lord Reid in Times Newspapers Ltd., supra, at p. 60 All E.R., quoted with approval by Dubin J.A. in Kopyto, at p. 512 O.R.:

The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should in my judgment be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.

(Emphasis added by Dubin J.A.)

[31] I find nothing in either article that even suggests the risk of serious, real or substantial prejudice to the administration of justice.

[32] I conclude with the observation, found in many of the authorities, that it is a serious matter for a person to be found in contempt of court. Even in a case of civil contempt such as this, a contempt proceeding is punitive in nature with broad powers given to the court including the power to order imprisonment. Because of the criminal nature of contempt proceedings, the person who is its object has many of the safeguards accorded a person accused of a criminal offence. The onus is on the applicant to prove its case beyond a reasonable doubt. See Bhatnager v. Canada (Minister of Employment & Immigration), [1990] 2 S.C.R. 217, 71 D.L.R. (4th) 84. Given the gravity of a finding of contempt, the court's contempt power should be exercised with scrupulous care and only when the circumstances are clear and beyond reasonable doubt.

Result

[33] For the foregoing reasons, I would allow the appeal with costs, set aside paras. 1, 3, 4 and 5 of the order of the motion judge, and in their place make an order dismissing in its entirety the respondent's motion for contempt with costs. The parties are to address the costs of the motion and the appeal by way of written submissions. The appellant is to provide the Senior Legal Officer with his submissions on costs and his bill of costs within 15 days from the release of these reasons. The respondent may file her submissions within seven days after the receipt of the appellant's submissions. The appellant may respond within seven days thereafter. [page344]

[34] ABELLA J.A. (concurring): -- I have had the benefit of reading the excellent reasons of Borins J.A. While I agree with his conclusions, I think this appeal raises important policy questions about the mandatory mediation process.

[35] Rule 24.1 compels parties to attend a mediation and to exchange information. Rule 24.1.14 provides that the settlement discussions are "without prejudice".

[36] I agree with Borins J.A. that rule 24.1.14 does not create an enforceable guarantee of confidentiality, but that does not mean that there do not exist significant public policy reasons for keeping the mediation sessions confidential.

[37] The purpose of protecting confidentiality in the mandatory mediation process is to further the public policy goal of encouraging settlement discussions. The particular significance of upholding confidentiality in mandatory mediation within the legal system is explained by Jonnette Watson Hamilton in her article"Protecting Confidentiality in Mandatory Mediation: Lessons from Ontario and Saskatchewan" (1999) 24 Queen's L.J. 561 at p. 574 as follows:

In any process forced upon parties, they must have confidence in the integrity of the process and those who have a major role in it. One of the results of requiring mediators to testify or produce documents may be a perception that the mediator, the program or the process itself does not keep confidences. While such a perception might normally cause parties to avoid mediation, they cannot do so where it is mandatory. They might, however, treat mediation as a mere formality.

Treating mediation as a formality would frustrate the goals of annexing it to the legal system. The goals of mandatory mediation include efficiency improvements for court systems and administrators by relieving case load pressures and reducing delay and cost for litigants, qualitative improvements for participants through more satisfying or more appropriate procedures and outcomes, relationship preservation and improvement and community and responsibility building. Indeed, if participation in mediation becomes merely an empty gesture, then the legal system will become less efficient, and the parties less satisfied rather than more.

(Citations omitted)

(See also Canadian Broadcasting Corp. v. Paul (2001), 2001 FCA 93, 198 D.L.R. (4th) 633, 274 N.R. 47 (F.C.A.) at p. 643 D.L.R. per Sexton J.A.; Owen V. Grey"Protecting the Confidentiality of Communications in Mediation" (1998) 36 Osgoode Hall L.J. 667 at p. 677; David Vaver"Without Prejudice Communications -- Their Admissibility and Effect" (1974) 9 U.B.C.L. Rev. 85 at p. 94; and Lawrence Boulle and Kathleen Kelly, Mediation: Principles, Process, Practice (Markham: Butterworths, 1998)).

[38] The failure to protect confidentiality could profoundly prejudice the effectiveness of mandatory mediation. It is difficult to [page345] see how anyone would agree to be open and frank in discussions designed to effect settlement -- discussions they have no choice about participating in -- when there is no protection for the confidentiality of the process.

[39] A useful analogy can be made, it seems to me, with the implied undertaking found to be crucial to the integrity of the discovery process in Goodman v. Rossi (1995), 24 O.R. (3d) 359, 125 D.L.R. (4th) 613 (C.A.). This court held that much like an order, statutory rules for examinations for discovery require disclosure of relevant evidence, and as a result, the court can cite for contempt anyone who breaches an implied undertaking not to use discovery evidence for a collateral or ulterior purpose.

[40] At p. 370 O.R. of Goodman v. Rossi, Morden A.C.J.O. explained the basis for the implied undertaking rule and the availability of contempt to sanction its breaches. Citing Prudential Assurance Company v. Fountain Page Limited, [1991] 1 W.L.R. 756 (Q.B.), at pp. 764-65 per Hobhouse J., he said:

The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party's rights has to give way to the need to do justice between those parties in the pending litigation between them; it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes of that litigation then before the court between those parties and not for any other litigation or matter or any collateral purpose: see, for example, per Lord Keith of Kinkel in Home Office v. Harman, [1983] 1 A.C. 280, 308.

(Emphasis added)

[41] Again referring to Prudential, supra, at pp. 764-65 W.L.R., Morden A.C.J.O. aptly described the implied undertaking in connection with discoveries as follows, at p. 370 O.R.:

It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz. contempt of court) and can be relieved or modified by an order of the court.

[42] Morden A.C.J.O. emphasized the necessity of having a contempt of court order available as a remedy to protect confidentiality during the discovery process, at p. 371 O.R.:

I think that there would be a serious gap in the range of possible sanctions for breach of the obligation not to make improper use of documents disclosed on discovery, if it were not associated with an implied undertaking to the court and, therefore, capable of giving rise to a contempt of court order.

[43] This analysis is equally applicable to mandatory mediation, and, it seems to me, compels the same protection that the implied undertaking in discoveries affords. Just as parties to litigation [page346] are compelled by the discovery rules to disclose information they might not otherwise disclose, so too parties falling within the scope of Rule 24.1 are required to attend a mediation session and are required to submit certain information in the mediation process.

[44] It is true that the purpose of mandatory mediation is to settle a dispute outside of the court's process, and, as in discovery, it is not conducted by a judge. But it is also true that aspects of mandatory mediation directly engage the court's process. First and foremost, the fact that mediation is mandated by the commencement of a proceeding under the rules, directly implicates the mediation in the court's process. Rule 24.1.09 provides that the mediation session shall take place within 90 days after the first defence has been filed. Rule 24.1.10 provides that at least seven days before the mediation, each party is to prepare a form that identifies the factual and legal issues in dispute, briefly sets out the position and interests of the party making the statement and, requiring the "party making the statement [to] attach to it any documents that the party considers of central importance to the action".

[45] In addition, Rule 24.1 sets out what conduct constitutes non-compliance: failure to provide a copy of a statement of issues to the mediator and the other parties; failure to provide a copy of the pleadings to the mediator and failure to attend within the first thirty minutes of the scheduled mediation session. Upon the occurrence of any of these events, a party files a certificate of non-compliance with the mediation co-ordinator, who then refers the matter to a case management master or judge who in turn can convene a case conference and make a number of orders pursuant to rule 24.1.13(2) such as an order striking pleadings, to pay costs, or "any other order that is just".

[46] And while the mediation is mandatory, rule 24.1.05 provides that the court may make an order on a party's motion exempting its action from mandatory mediation, a course of conduct the courts have been rare to indulge. (See O. (G.) v. H. (C.D.) (2000), 50 O.R. (3d) 82, 11 C.P.C. (5th) 302 (S.C.J.), at p. 85 O.R.)

[47] Mandatory mediation is a compulsory part of the court's process for resolving disputes in civil litigation. Wilful breaches of the confidentiality it relies on for its legitimacy, in my view, represent conduct that can create a serious risk to the full and frank disclosures the mandatory mediation process requires. It can significantly prejudice the administration of justice and, in particular, the laudable goal reflected in Rule 24.1 of attempting to resolve disputes effectively and fairly without the expense of a trial.

[48] However, given the potential gravity of the consequences of a contempt finding, it should only be exercised, as Borins J.A. [page347] indicated"when the circumstances are clear and beyond reasonable doubt". In the absence of a Rule or legislative provision explicitly declaring what most lawyers and participants to the mandatory mediation process likely assume, namely, that is confidential, no such clarity exists at this time sufficient to justify attracting so powerful a remedy.

[49] I therefore agree with Borins J.A. that the appeal should be allowed.

Order accordingly.