Action No. 0014-00322
JUDICIAL DISTRICT OF ST. PAUL
JUDICIAL DISTRICT OF ST. PAUL
- and -
BOARD OF TRUSTEES OF LAKELAND ROMAN CATHOLIC SEPARATE SCHOOL DISTRICT NO. 150, MAURICE CAMPEAU, AUDREY CAMPBELL, RENE CHAMPAGNE, MARY ANN PENNER, ROBERT GAUTHIER, WENDY MILLER, AND BERNADETTE PROVOST
MEMORANDUM OF DECISION
HONOURABLE MR. JUSTICE GERALD A. VERVILLE
Ms. Sandra M. Anderson, Field Atkinson Perraton
for the Applicant (Appellant)
Richard D. McNally, Alberta School Boards Association
for the Board of Trustees of Lakeland
Roman Catholic Separate School District No. 150
 Gerald Letal (“Letal”), from 1989, served his employer, Board of Trustees of Lakeland Roman Catholic Separate School District No 150 (“Lakeland”), as Principal of Ecole Notre Dame High School (“ENDH”) in Bonnyville, Alberta. Lakeland terminated his administrative designation on July 14, 1999. Letal appealed to the Minister of Learning pursuant to s.115 of the School Act, S.A. 1988, c.S-3.1 as amended. The Minister appointed a Board of Reference to hear the appeal which lasted five days.
 On May 18, 2000, the Board of Reference issued its decision. Certain findings were made and certain orders were issued against Lakeland which included the reinstatement of Letal’s contract and a direction that Letal resume principalship of ENDH effective July 1, 2000 and continue to the end of the 2000 - 2001 school year. The Order of the Board of Reference was filed in the Court of Queen’s Bench of Alberta, Judicial District of St. Paul on July 5, 2000 and became an order of this Court (the “Order”). Section 124 of the School Act establishes this mechanism. Lakeland has appealed the Order to the Court of Appeal.
 Lakeland purported to reinstate Letal’s contract and his principalship of ENDH, but then transferred Letal to the position of Principal of the Lakeland Catholic Virtual School (“Virtual School”) at Cold Lake, Alberta effective July 11, 2000. Letal once again embraced the protection of the School Act and has asked for another Board of Reference to decide whether his transfer to the Virtual School was proper. On July 14, 2000, Letal filed an Originating Notice of Motion to hold Lakeland, the Trustees that comprise it, and its Superintendent in contempt. On September 18, 2000, Sanderman J. heard a procedural application brought on behalf of the individual parties. He directed that they be removed from the present application.
 The party properly before the Court with respect to this contempt application is Lakeland.
THE BOARD OF REFERENCE DECISION
 In its decision the Board ordered:
1. Gerald Letal’s term contract is reinstated. Mr. Letal is to resume principalship of Ecole Notre Dame High School effective 1 July, 2000 or such other date as may be agreed, and continues to the end of the 2000 - 2001 school year. This order changes Mr. Letal’s contract of employment termination date, as I am authorized to do under section 120(b) of the School Act. The only reason I do not reinstate him as principal immediately is to avoid disruption in the school.
2. Gerald Letal is to be compensated and receive payment and benefits as principal from the date he ceased being paid as principal by the School Board to the date he is reinstated as principal, as if he had remained in that position throughout.
3. All material of whatever nature related to this appeal, documentation leading to the calling of the hearing by the School Board, Mr. Letal’s termination of designation, and any associated matter are to be removed from Mr. Letal’s personnel file.
 Lakeland knew of the contents of the Board of Reference Decision by May 19, 2000.
 The Order of the Board of Reference, which became an Order of this Court on July 5, 2000 and is the subject of the contempt application, states: IT IS HEREBY ORDERED THAT:
1. The School Board motion terminating Gerald Letal’s administrative designation is declared a nullity.
2. The School Board motion purporting to accept Gerald Letal’s resignation from his administrative designation is declared a nullity.
3. Gerald Letal’s term contract is reinstated.
4. Gerald Letal is to resume principalship of Ecole Notre Dame High School effective July 1, 2000 or such other date as may be agreed and continue to the end of the 2000 - 2001 school year.
5. Gerald Letal is to be compensated and receive payment and benefits as principal from the date he ceased being paid as principal to the date he is reinstated as if he had remained in that position throughout, with interest under the Judgment Interest Act to run from the date or dates from which payment should have been made.
6. All material of whatever nature related to this appeal, documentation leading to the calling of the hearing by the School Board, Mr. Letal’s termination of designation, and any associated matter are to be removed from Mr. Letal’s personnel file.
7. The School Board is to pay the full costs of Mr. Letal’s appeal before the Board of Reference and the jurisdictional challenges before the Board, with interest under the Judgment Interest Act, less the costs associated with preparing and participating in the two days of hearings on January 2 and 3, 2000, and the hearing on July 3, 2000.
8. The filing fee for the appeal shall be returned to Gerald Letal.
9. I reserve jurisdiction to resolve any issue arising out of this decision until August 31, 2000.
 The major issue in this application is what the Order requires of Lakeland. On its face, it is clear Lakeland is required to reinstate Letal at ENDH for the 2000 - 2001 school year and he is to continue there to the end of the 2000 - 2001 school year. Read plainly, this means that he cannot be transferred, but must remain as Principal at ENDH for the full school year.
 This interpretation was brought into question by the Board of Reference’s supplementary reasons issued July 3, 2000. It noted that Letal had a right to appeal to Lakeland with respect to the decision of Bernadette Provost, the Superintendent of Lakeland (“Provost”), to transfer him to the Virtual School and that no final decision had been made. (Lakeland, at a special meeting on the evening of July 10, 2000, confirmed the decision of Provost to transfer Letal to the principalship of the Virtual School). However, it went on to state: An order of reinstatement by a Board of Reference does not insulate the person reinstated from subsequent legitimate decisions of the Superintendent, or School Board, acting under the School Act. The legitimacy or otherwise of this transfer must, if the decision of the School Board is challenged, be judged in another forum. This Board of Reference has no jurisdiction to deal with the matter.
 After the Board of Reference made these comments, it did not change the plain words contained in the Order, filed with the Court on July 5, 2000. The Board of Reference was clearly cognizant of its supplementary reasons, however, as in paragraph 7 of the Order, it denied Letal costs for the July 3rd hearing.
 Perhaps the Board of Reference was concerned about its jurisdiction to make an order restricting a school board from transferring a principal for a school term. In any case, that is an issue for the Court of Appeal, and does nothing to change the words contained in the Order. Unless and until the Order is overturned on appeal, it must be obeyed.
 The clear wording of the Order governs and the Board is required by the Order to reinstate Letal to ENDH for the full school year. This means that, at least until the appeal of the Order is heard, even a legitimate transfer is not permitted. Therefore, it is unnecessary for me to consider whether or not the transfer was legitimate.
 For this reason, it is unnecessary for me to consider whether this application is premature as any decision of the next Board of Reference in relation to the transfer has no bearing on a finding of contempt.
 The issues to consider in this matter are as follows:
1. Is the application which was commenced by Originating Notice of Motion a nullity?
2. Is an application for contempt available where the Order in question became an Order of this Court pursuant to a provision in the School Act? 3. Is Lakeland in contempt?
EVIDENCE BEFORE THE COURT
 The parties did not call viva voce evidence, but rather relied on affidavit evidence, namely: two affidavits of Calvin Fraser, the Co-ordinator of Member Services for the Alberta Teachers’ Association filed July 14 and July 21, 2000; an affidavit of Darlene Gale Garnier the Principal of ENDH during the 1999-2000 school year filed July 14, 2000; four affidavits of Letal filed July 14, August 28, September 14 and September 25, 2000; two affidavits of Provost filed July 19 and July 21, 2000; and an affidavit of publication of Cheryl Foster, an employee of the Calgary Herald filed July 21, 2000.
 Subsequent to the application before Sanderman J., Garnier, Fraser, Letal and Provost were examined on their affidavits.
 As I did not hear viva voce evidence, findings of credibility cannot be made; where there is conflicting evidence, such evidence has been ignored. I am also mindful that a motion for contempt should be considered as a final order (and not an interlocutory order) and that hearsay evidence must be ignored (Kulyk v. Wigmore (1987), 53 Alta. L.R. (2d) 44 (C.A.)).
 The Board of Reference decision recites, in detail, the facts of Letal’s termination. The circumstances of the termination and Lakeland’s conduct were such as to attract strong opprobrium from the Board of Reference which, in its findings, stated:
The School Board, on its own repeated admission did not have just cause to terminate Mr. Letal’s administrative designation as principal of Ecole Notre Dame High School. Yet the School Board disregarded some of the most basic of procedural protections afforded to teachers when it decided to consider terminating Mr. Letal’s designation. The School Board sought to end a 30 year career because Mr. Letal could not convince the School Board that the Superintendent had acted in bad faith or that the Superintendent had somehow otherwise been unfair. The onus was put on Letal, while at the same time those advising the School Board declined to give reasons for what was described as the Superintendent’s lack of confidence in him as principal.
I am shocked at how the School Board and Superintendent have conducted themselves. Their actions fall well below the standard expected and required of school board’s [sic] in this Province.
Every step the School Board took against Mr. Letal was flawed, wrong, and unreasonable in the circumstances. The School Board made gross substantive and procedural errors, any one of which would have been sufficient to declare the motion to terminate Mr. Letal’s designation a nullity. The process discredits the School Board and the administration who were part of it. . . . .
. . . the whole resignation contention appears to me to be a concoction: a bad faith attempt to deprive Letal of his principalship and avoid paying him compensation.
 After the Board of Reference issued its decision, Provost handed three letters to Letal on June 22, 2000, one of which was dated June 21, 2000 notifying him that he was being transferred to the principalship of Virtual School effective July 11, 2000. It provided that if Letal chose to appeal Provost’s decision, Lakeland had set aside the 10th of July at 7:00 p.m. to deal with that appeal.
 A second letter dated June 22, 2000 stated that in accordance with the direction of the Board of Reference, Letal was reinstated to the principalship of ENDH effective July 1, 2000. It further advised that Lakeland had decided to appeal the decision of the Board of Reference.
 In the supplementary decision dated July 3, 2000, the Board of Reference stated:
I express grave concern over the evidence I have that the Superintendent on the one hand issues a letter of reinstatement to Letal and on the other in effect prevents him from performing any of the functions as principal of Ecole Notre Dame High School.
No sensible explanation was provided for the Superintendent’s actions.
However, the implementation and enforcement of an order of a Board of Reference is provided for under section 124 of the School Act. Once filed an order of a Board of Reference has the same force and effect as if the order were an order of the Court of Queen’s Bench.
Enforcement of the Order of the Board of Reference is now an issue for judicial process.
 The Board of Reference sent the Order by fax to the Clerk of the Court of Queen’s Bench, Judicial District of St. Paul, where it was filed as an Order of this Court on July 5, 2000. Lakeland was served through counsel with a copy of the Order on July 6, 2000 together with a demand that it comply forthwith with its terms.
 Letal did not perform any duties as Principal of ENDH during the period July 1 to July 11, 2000. His evidence is that it was his normal practice as Principal and consistent with normal expectations of Lakeland to attend to matters such as staffing and time tabling for the next school year during the first week in July. Provost’s evidence is that high school principals were required to have such matters attended to by the end of June, and that there were no duties for Letal to perform as at July 1, 2000.
 The Virtual School did not exist on June 22, 2000 when Provost handed Letal the transfer letter dated June 21, 2000. At a special meeting of Lakeland on July 7, 2000, the Virtual School was created effective July 6, 2000. This was one day after the Board of Reference decision became an Order of this Court.
 On July 10, 2000 Lakeland heard Letal’s appeal with respect to the transfer. After hearing strong representations as to the impropriety of such a course of action, the Minutes of the special meeting indicate that it took Lakeland all of four minutes to confirm Letal’s transfer to the Virtual School.
 Lakeland caused the position of principal of ENDH to be advertised in the Calgary Herald, Edmonton Journal and Edmonton Sun on July 15, 2000. In August, Lakeland appointed a Mr. Prather to the position of Principal of ENDH for the first part of the 2000 - 2001 school year to January 31, 2001. The Vice-Principal, Mr. Fortin, has been appointed to the position of Principal effective February 1, 2001 for the balance of the school term. Mr. Prather was given a fixed term contract and Mr. Fortin will be given a fixed term contract.
 Letal has co-operated with his employer on a “without prejudice” basis and on about August 22, 2000, in his capacity as Principal of the Virtual School, was assigned a space to work in the Assumption Catholic Church Rectory in Cold Lake, Alberta. He received keys on September 6, 2000. The office is a converted bedroom and as at September 20, 2000, consisted of a desk, two chairs, a wastepaper basket, a shelf, and nothing more. He did not have a telephone or computer at that time but was informed by Provost on September 15, 2000 that a computer had been ordered on September 13, 2000.
 At the time of this application, Letal was continuing, without staff or students, to work in his capacity as Principal of the Virtual School in the office in Cold Lake, Alberta. On October 10, 2000, Letal was given a letter confirming his assignment for the 2000 - 2001 school year as Principal of the Virtual School.
 Pursuant to the School Act, Lakeland is a corporation (s.217), the Trustees are in the position of Directors of the corporation (s.217), and Provost, as Superintendent, is the Chief Executive Officer of the corporation (s.94(2)).
Issue #1 - Is the application which was commenced by Originating Notice of Motion a nullity?
 Lakeland argues that contempt applications are matters strictissimi juris, citing Re Retail, Wholesale & Department Store Union, Local 955 and Morris Rod Weeder Co. Ltd. et al. (1973), 38 D.L.R., (3d), 419 (Sask. Q.B.) in which Disbery J. states:
When a party to a civil proceeding seeks to deprive another person of his liberty by having him imprisoned it is not too much to ask that such litigant, when moving for a committal, strictly comply with the Rules and such litigant should not expect the Court on such an application to assist him to get such other person into prison.
 There is no denying this principle. However, it should be noted that the rationale for such an approach rests on the fact that contempt involves the liberty of the subject. Therefore, one might question whether it would have any application in a situation where an entity such as a Board of Trustees, and not its individual members, is alleged to be in contempt.
 Further, the comment of the Newfoundland Court of Appeal in Iron Ore Co. of Canada v. Dwyer (1979), 20 Nfld. & P.E.I.R. 27 (C.A.); leave denied (1979) 22 Nfld. & P.E.I.R. 360 n (S.C.C.), is helpful in understanding the purpose behind the strictissimi juris rule:
While the principle of "strictissimi juris" undoubtedly applies, what it means in this particular instance is that the Court must be scrupulous in ensuring that the alleged contemnors, once brought before it, are fully aware of the charges against them which they are required to answer and, further, are given every opportunity to answer such charges. In the absence of any rules in our civil or criminal procedure dealing with contempt of court, this in my view is the way in which the "strictissimi juris" principle must be applied to proceedings of this nature.
 Lakeland relies on the principle of strictissimi juris to argue that proceeding for contempt by Originating Notice, which creates a new action, is not authorized by the Rules (Rule 410). Lakeland argues that the motion for contempt should have been brought within the action in which the Order was filed with this Court.
 It is by no means certain that Letal’s manner of proceeding was incorrect in this case. In Mathieson v. Mathieson,  5 W.W.R. 453 (Alta. S.C.A.D.) at 464-465, Allen J.A. stated:
In other cases of contempt not committed in the face of the Court the most appropriate procedure appears to be . . . in the case of civil contempt either to permit the party affected or aggrieved by the contempt to move by Originating Notice or a Notice of Motion or to direct the Attorney General to take the matter in hand and proceed in such manner as he may see fit in the circumstances of the case.
(Cited with approval in Handford v. Emery (1984), 120 A.R. 156 (C.A.)).
 In any event, it is important to note that since the style of cause on the judicial review/contempt pleadings differed from that of the Board of Reference matter, it was not possible to file those pleadings in the same action. As it turned out, Sanderman J. held that the individual Board members were not properly named as Respondents in the contempt application and, therefore, consolidation of the two actions may be in order.
 At most, I view this circumstance as an irregularity which is covered by Rule 558. Further, it does not affect Lakeland’s awareness of the charges which it is required to answer nor its opportunity to answer those charges. I adopt the reasoning of Armstrong J. in United Food and Commercial Workers (UFCW), Local 1400 v. F.W. Woolworth Co. (c.o.b. Woolco),  2 W.W.R. 657 (Sask. Q.B.):
[E]ven if one accepts that the applicant failed to comply with any or even all of such rules, such procedural deficiencies as there may have been and such failure to comply had no effect whatsoever on the ability of the respondents to know fully the case being alleged against them by the applicant and had no effect whatsoever on the respondents’ ability to respond nor did the respondents argue to the contrary. That there must be strict compliance with the Rules I do not question but I do, however, say that the strict compliance should mean strict compliance wherever anything less than strict compliance might in any way prejudice the respondent.
 Lakeland also relies on the strictissimi juris nature of contempt applications to argue that the Amended Originating Notice in this case did not attribute any action to Lakeland with the degree of particularity required. Lakeland submits that a party alleging contempt must define the “offence” with particularity: Northwest Territories Public Service Association et al. v. Commissioner of the Northwest Territories et al. (1979), 107 D.L.R. (3d) 458 (N.W.T.C.A.). In this case, Laycraft J.A. cited, inter alia, Re Pollard (1868), L.R. 2 P.C. 106 at 120:
. . . no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him, and . . . in the present case their Lordships are not satisfied that a distinct charge of the offence was stated. . . .
 Having reviewed the Amended Originating Notice, I can only conclude that the grounds stated therein are sufficient to apprise Lakeland of the case alleged against it. Paragraph 6 of the Originating Notice of Motion clearly refers to the alleged nominal reinstatement and illegitimate transfer, as well as the retention of documents on Letal’s personnel file.
 Lakeland’s argument is that the alleged acts refer to group activities without specifying what Lakeland has done, and also refers to an act which Lakeland was unable to perform. This argument ignores two crucial points: (a) Lakeland was responsible for ensuring that the Order was complied with, and (b) Lakeland, as a corporation, acts through, and is bound by the actions of its Trustees and its Chief Executive Officer, the Superintendent. I am satisfied that Lakeland had sufficient notice of the case it had to meet.
Issue #2 - Is an application for contempt available where the Order in question became an Order of this Court pursuant to a provision in the School Act?
 The School Act provides:
124(1) A copy of an order made by the Board of Reference under section 120, 122, or 123 shall be filed with the clerk of the Court of Queen’s Bench in the judicial district in which the cause of the proceedings before the Board of Reference arose.
(2) On the filing of a copy of an order with the Clerk of the Court of Queen’s Bench pursuant to subsection (1), the order of the Board of Reference has the same force and effect as if the order were an order of that Court. (Emphasis added)
 In United Nurses of Alberta v. A.G. Alberta (1992), 89 D.L.R. (4th) 609, the Supreme Court of Canada considered whether the nurses’ union could be found in criminal contempt for breach of an order of the Labour Relations Board filed with the Court of Queen’s Bench under 142(7) of the Labour Relations Code, S.A. 1988, c.L-1.1. That section stated that a directive of the Labour Relations Board may be filed with the Court and is thereupon “enforceable as a judgment or order of the Court”. McLachlin J., for the majority, concluded that this section engaged the criminal contempt power; the union was not disputing that the section engaged the civil contempt power.
 In so doing, McLachlin J. rejected the union’s argument that s.142(7) merely deems the order to be an order of the Court, but does not actually convert the order into an order of the Court. She agreed with the decision of Blair J.A. in the Ontario decision, Re Ajax & Pickering General Hospital and C.U.P.E. (1981), 132 D.L.R. (3d) 270 that both the plain and ordinary meaning of the words and the Legislature’s clear intent was to establish a method of enforcing the Board’s orders.
 I find that the wording of s.124 of the School Act cannot be distinguished from the wording of s.142(7) of the Labour Relations Code so as to effect a different result. An order having “the same force and effect as if the order were an order of that Court” should engage the Court’s process as much as an order which is “enforceable as a judgment or order of the Court”.
 Moreover, the legislative scheme here demonstrates an even stronger intent that the Courts be involved in the statutory scheme. First, unlike the Labour Relations Board, whose decisions are protected by a stringent privative clause, the decisions of the Board of Reference are subject to a broad appellate power in the Court of Appeal, and the possibility of a trial de novo before this Court. Second, filing the Order with the Court is mandatory, rather than permissive as in the Labour Relations Code. What was the Legislature's intent in not only providing that an order may be filed with the Court, but that it must be filed with the Court, if there was no intention that the decision of the Board be enforceable? Clearly, s.124 of the School Act engages the civil contempt power.
 Lakeland suggests that only an order that “finally settles the rights of the parties” can be enforced by contempt proceedings, and cites the decision of the Manitoba Court of Appeal in Manitoba Government Employees’ Association v. Health Services (1991), 71 Man. R. (2d) 252 (Man. C.A.) at paragraphs 14 and 15. Lakeland then suggests that the distinction between an “order of the Court” and a “judgment of the Court” discussed in Thompson v. Alberta Racing Commission (1997), 56 Alta. L.R. (3d) 387 (Q.B.) means that an “order of the court” does not finally determine the rights of the parties and, therefore, an “order” of the Court cannot be enforced by contempt proceedings.
 This argument is rejected for two reasons. First, it is indisputable that a finding of contempt may issue, not only to enforce final determinations, but also to enforce interlocutory and interim orders, such as an interim injunction (Canada (Human Rights Commission) v. Canadian Liberty Net,  1 S.C.R. 626), or an order for production of documents (Rule 703). Further, the Court can, and does, issue orders, as opposed to judgments, that finally determine the rights of parties. An application for judicial review is finally settled by order; an application under Rule 129 may be finally settled by an order to stay or dismiss the action; a trial of an issue under Rule 220 may finally resolve the action and, if so, the Court, under Rule 221, may dismiss the proceeding or make such other order as it considers proper.
 Manitoba Government Employees’ Association, supra dealt with the Civil Service Commission’s decision to overturn the Health Services Commission’s decision to award a civil service position to a candidate outside the civil service. The Court held that the decision was not suitable for entry as “a judgment of the court” (the language of the appropriate Manitoba legislation) because the written reasons were not settled in the form of a formal judgment, the written reasons did not contain sufficient particularity and clarity, and the nature of the decision was not the kind of decision contemplated by the legislation. Philp J.A. noted that the decision was “declaratory and not mandatory”; it was this declaratory nature that the Court found would be impossible to enforce as a judgment. That is not true of the Order here.
 Here, a formal order was drafted and approved. It is sufficiently clear and unambiguous. It is not declaratory, but is mandatory, and even if it were necessary that it finally resolve the issues between the parties, it does so. Paragraph 4 orders that Letal resume the principalship of ENDH and continue to the end of the 2000 - 2001 school year.
 I also reject the assertion that Thompson and Alberta Racing Commission, supra holds that orders do not finally determine the rights of parties, while judgments do. The excerpt referred to by Lakeland deals not with finality of orders and judgments for the purposes of enforcement, but compares the perfection of orders by formal filing with judgments which operate from the time of pronouncement.
Issue # 3 - Is Lakeland in contempt?
 Letal argues that Lakeland continues to be in contempt of paragraph 4 and has been in contempt of paragraph 6 of the Order.
 Rule 703(1)(a) provides that:
703(1) Every person is in civil contempt that:
(a) fails, without adequate excuse, to obey an order of the court, other than an order for the payment of money. . . .
 The elements which must be proven are (a) that there is an existing order of the Court; (b) that the person alleged to be in contempt had notice of the order; and (c) the person alleged to be in contempt breached that order. The contempt must be proven beyond a reasonable doubt.
Contempt of Paragraph 4 of the Order
 Paragraph 4 of the Order provides:
4. Gerald Letal is to resume principalship of Ecole Notre Dame High School effective July 1, 2000 or such other date as may be agreed and continue to the end of the 2000 - 2001 school year.
 In this case, Letal has proven, beyond a reasonable doubt, that Lakeland had notice of and failed to obey paragraph 4 of the Order. While there is a dispute as to whether Letal was ever properly reinstated as Principal, it is undisputed that he is no longer Principal at ENDH.
 Lakeland argues that a necessary element of the mens rea of civil contempt is to have deliberately disobeyed an order of the Court. This is not correct. Côté, J.A., in Michel v. Lafrentz (1998), 219 A.R. 192 (C.A.) comments at paragraphs 21 and 24:
It must not be thought that contempt of court always requires an intent to disobey the court, or even an intent to do an act which is in fact forbidden. Where someone is ordered by the court to do something, he or she must use a sufficient degree of diligence to perform, or to have the act performed.
. . .
An order of a court to do an act requires reasonable care in doing the act personally, or in delegating the matter to suitable responsible persons, and then checking to see that it has been carried out in a prompt and proper fashion. (Citations omitted)
Despite finding that Dr. Lafrentz had “no intent to flout the court’s order”, Côté, J.A. found him to be in contempt for his negligent approach to the Court’s order.
 The required mental elements are that the contemnor knew that the order existed, understood its substance, and intentionally did the act prohibited. A misunderstanding of the legal implications of the order is not a defence, nor is it a defence that the contemnor misunderstood the order.
We are all of the view, therefore, that in order to constitute a contempt it is not necessary to prove that the defendant intended to disobey or flout the order of the Court. The offence consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance. The agreement to lease to a new tenant constituted a breach of the order restraining the appellant from "leasing" the premises and the appellant's misinterpretation of the order cannot afford an excuse for its breach: Oswald, Contempt of Court, 3rd ed. (1910), p. 108 (Re Sheppard and Sheppard, (1976), 67 D.L.R. (3d) 592 (Ont. C.A.) at 595-96).
 While a misinterpretation is generally insufficient to prevent a finding of contempt, it could be argued that an alleged contemnor has an adequate excuse for failing to obey an order if its misinterpretation is triggered by the very person who issued the order.
 In this case, the argument fails since the evidence is clear that Lakeland had interpreted the Order as allowing a transfer before the supplementary reasons were released, despite the clear wording of the Order. The letters of transfer and reinstatement dated June 21 and June 22 respectively were given to Letal by Provost who was acting on behalf of Lakeland on June 22, 2000, some 11 or more days before the supplementary reasons were released.
 In the circumstances, I find that Lakeland is in contempt of paragraph 4 of the Order.
Contempt of Paragraph 6 of the Order
 Paragraph 6 of the Order reads:
6. All material of whatever nature related to this appeal, documentation relating to the calling of the hearing by the School Board, Mr. Letal’s termination of designation, and any associated matter are to be removed from Mr. Letal’s file.
 On July 19, 2000, Provost, in response to affidavits by Fraser and Letal, deposed in her affidavit that Letal’s file conformed to the Order:
The interpretation I have given to the Order of the Board of Reference is that the Applicant’s personnel file is to be in such condition that anyone looking at it would not know that there had been a School Board hearing regarding possible termination of designation nor any appeal to or proceedings of the Board of Reference. The file is and always has been in that condition even prior to the Order of the Board of Reference.
(Para. 10(c) of July 19, 2000 Provost affidavit).
 Letal asserts that there were four documents in the file that should have been removed under the terms of the Order: performance appraisals for 1997-98 and 1998-99, and two letters from Provost to Letal dealing with the termination of his designation and his transfer to a teaching position.
 The 1997-98 Performance Evaluation was an Exhibit at the Board of Reference hearing, and the 1998-99 Performance Evaluation covered the period leading up to the appeal. They are both, therefore, “material of whatever nature related to this appeal”, and I find that they should not have been retained on the file.
 At paragraphs 16 and 17 of his July 13, 2000 affidavit, Fraser deposes that the performance evaluations for 1997-98 and 1998-99 were produced by Provost at the July 10, 2000 transfer appeal on July 10, 2000, five days after the Order was filed with the Court. Letal confirms that Provost produced the performance evaluations at the hearing (paragraph 6 of Letal’s Supplementary Affidavit, filed August 28, 2000). While Provost’s affidavit disputes some paragraphs in Fraser’s affidavit, it does not dispute Fraser’s assertion regarding the performance evaluations, or that she produced them for use at the hearing. In fact, her only sworn testimony as to the performance evaluations is an oblique reference that:
It has come to my attention that there was some material on the file that should not have been there and attached hereto as Exhibit “A” is a letter from me to the Applicant detailing the events which have occurred and having attached the material that was found on the file which has as of the afternoon of July 19, 2000 been removed. (Para. 3 of Provost’s Supplementary Affidavit, filed July 21, 2000).
 Exhibit “A” is a letter to Letal that purports to explain the documents’ presence in the file. These explanations are not sworn, and I give them no weight.
 Lakeland does not dispute that the two letters found in the file fall within the terms of the Order.
 Provost’s July 21 Supplementary Affidavit notes that she had been in error when she deposed in her first affidavit that the file conformed to the terms of the Order. Her only explanation for the presence of the two letters is detailed in Exhibit “A” and in her Examination on Affidavit at pp.280, 11.3-19, she was alerted to the fact that there might be relevant documents in the file when Letal attended at the office on July 19 and asked to see his file. She had not examined the file before that date.
 In examination on her affidavit, Provost stated that she did not search, or ask anyone else to search Letal’s file for any material that would come within the terms of paragraph 6 of the Order until July 19 when it was brought to her attention that Letal had been into the office to ask to see his file. She deposed that it was her intention to keep all materials relevant to the Board of Reference out of the personnel file. In Provost’s examination, she was asked about the search she made of the file on July 19, 2000:
Q. That was the first occasion which you had searched the file for that purpose.
A. There was no need to search the file, as there was nothing, to my knowledge, put on the file.
Q. Subsequent to the issuance of the decision of the Board of Reference on May 18th, I take it, then, that you didn’t cause a search of the personnel file to be made?
A. There was no need to.
 There is an onus on a party ordered to do something by the Court to exercise a sufficient degree of diligence to ensure that the act is performed (Michel v. Lafrentz, supra at 145).
 Lakeland, through its Officer, Provost, did not take reasonable care to do the act ordered – remove all material related to this appeal. Nor did she delegate that responsibility to anyone else. She says she assumed that there would be nothing in the file, since those had been her instructions.
 But she did not remove the performance appraisals from the file and, in fact, chose to rely on them in the transfer appeal before the Board of Trustees. She has not sworn to any explanation for this breach.
 Further, the failure to even briefly review the file or ask someone else to review it for material related to the appeal, is not justified by her assertion that she thought there was no need to check.
 Provost did not exercise any diligence, let alone sufficient diligence, to ensure that the Order had been complied with.
 In the circumstances, I find that Lakeland is in contempt of paragraph 6 of the Order.
 I find that Lakeland was, is and continues to be in contempt with respect to paragraph 4 and was in contempt with respect to paragraph 6 of the Order until July 19, 2000, when it appears that its contempt was purged by removal of the documents. In both cases, Lakeland has intentionally done an act which is clearly prohibited by the Order.
 Although it purged its contempt with respect to paragraph 6, I find that Lakeland deliberately disobeyed or flouted the Order until that date.
 With respect to the breach of paragraph 4, while I have serious misgivings concerning the course of conduct followed by Lakeland, I am prepared to give Lakeland the benefit of the doubt, and accept that it may have misinterpreted the Order. This misinterpretation would indicate an absence of contumacious intent, and would constitute a mitigating, although not an exculpatory circumstance. For this reason, it is inappropriate to impose a substantial fine at this time.
 I impose a fine of $5,000.00 for the contempt of paragraph 6 and the contempt of paragraph 4 up to the date of this Decision.
 Lakeland will have two weeks from the date of this Decision to reinstate Letal pursuant to the clear wording of the Order, failing which I direct that it pay a fine of $5,000.00 per week for each and every week from the date of this Decision until Letal is reinstated, or June 30, 2001, whichever first occurs.
 Letal will have costs on a solicitor client basis.
HEARD on the 17th day of October, 2000.
DATED at Edmonton, Alberta this 9th day of November, 2000.