Kent v. Martin, 2012 ABQB 467

Court of Queen ’ s Bench of Alberta Citation: Kent v. Martin , 2012 ABQB 467 Date: 20120718 Docket: 0801 08414 Registry: Calgary Between: Arthur Kent Plaintiff (Applicant) - and - Don Martin, the National Post Company, Canwest Publishing Inc., the National Post Company, Canwest Publishing Inc., National Post Holdings Ltd., 4514858 Canada Inc., Canwest Media Works Inc., 4514866 Canada Inc., William Lorne Motley and Postmedia Network Inc. Defendants (Respondents) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A.

Tilleman _______________________________________________________ Introduction [ 1 ] By way of background, the Plaintiff is a journalist with international prominence. Briefly, he alleges, inter alia , that the Defendants defamed him and/or were responsible for his failure to gain a political office in Alberta.

More background and facts are stated elsewhere [1] and I won’t repeat them here. [ 2 ] The purpose of the within applications are to have the Defendants, or some of them, cited in contempt of court. [ 3 ] The Plaintiff also seeks an Injunction to prohibit the Defendants from publishing certain allegedly defamatory articles. That application is the subject of a separate decision.

[ 4 ] To contextualize the contempt matter, the Plaintiff calls this case a unique case of defamation in that the dispute involves a journalist as both a Plaintiff and Defendant. All parties are prominent in Canada’s journalism family. Facts [ 5 ] At the heart of the contempt application is the assertion by the Plaintiff that Mr. Motley, Editor- in-Chief of the Calgary Herald, appeared unprepared at his examination. It was frustrating for the Plaintiff to have such an important corporate officer attend and instead of answering questions, he said he would undertake a number of enquiries and get back later. [ 6 ] Perhaps the best

summary of the contempt allegation is found in a table prepared by the Plaintiffs which I attach as my Appendix “A” [2] . [ 7 ] In

summary, the Plaintiff’s argument is that Mr. Motley did not review the material in advance notwithstanding the Order of the Court that all parties were to conduct the questioning, and complete the questioning, in a very tight time frame. [3] And, notwithstanding an exchange with Justice Clackson wherein he felt it would generally be intolerable not to have Motley prepared, he wasn’t as prepared as he should have been.

The Law [ 8 ] The rules for civil contempt are found at 10.52 of the Alberta Rules of Court : Declaration of civil contempt 10.52(1) Except when a person is before the Court as described in subrule (3)(a)(ii) or (v), before an order declaring a person in civil contempt of Court is made, notice of the application in Form 27 for a declaration of civil contempt must be served on the person in the same manner as a commencement document.

(2) If a lawyer accepts service of a notice of an application seeking an order declaring the lawyer's client to be in civil contempt of Court, the lawyer must notify the client of the notice as soon as practicable after being served.

(3) A judge may declare a person to be in civil contempt of Court if (

a) the person, without reasonable excuse, (

i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge, (ii) is before the Court and engages in conduct that warrants a declaration of civil contempt of Court, (iii) does not comply with an order served on the person, or an order of which the person has actual knowledge, to appear before the Court to show cause why the person should not be declared to be in civil contempt of Court,

(iv) does not comply with an order served on the person, or an order of which the person has actual knowledge, to attend for questioning under these rules or to answer questions the person is ordered by the Court to answer, (

v) is a witness in an application or at trial and refuses to be sworn or refuses to answer proper questions, or (vi) does not perform or observe the terms of an undertaking given to the Court, or (

b) an enactment so provides. [ 9 ] In support of these rules, and the situation involving a corporate representative, the Plaintiff cites Apex Safety Apparel Inc. v. Kel-Tek Safety Apparel , 2011 ABQB 406 at para. 7 : At the end of the day, the real issue is efficiency, meaning in this context the Court needs to feel comfortable that the corporate representative is fully informed and prepared for questioning. See Rule 5.4(2). From what I have read and heard, she will be and that is what her appointment accomplishes.

The Court’s point in Apex Safety is that the corporate representative needs to be fully informed. [ 10 ] Additionally, the Plaintiff refers the Court to its own responsibility as stated by our Appellate Division almost 100 years ago: Upon this situation two courses are open to this Court.

It can either abdicate its authority and functions and advise applicants to it for a redress of their wrongs and the protection of their legal rights that it is powerless, which, of course, means there is no power except that of force which can protect their rights, the consequence of which could scarcely mean anything less than anarchy or it may decide to continue to perform the duties with which it is entrusted for the purpose of guarding the rights of the subjects and not prove false to the oath of office which each member of it took when he "solemnly and sincerely promised and swore that he would duly and faithfully and to the best of his skill and knowledge exercise the powers and trusts reposed in him as a judge of the said Court. [4] Issues [ 11 ] First, within the context of a contempt motion, the question is how well informed does a corporate representative have to be under the Rules of Court ?

Second, this case calls for a combined

interpretation of Rules 5.4(2) and 5.30 as they relate to Rule 10.52. Response of the Defendants [ 12 ] The Defendants refer me to rule 5.4(2) of the Rules of Court which states this: Corporate representatives must (

a) inform themselves of relevant and material records and relevant and material information before being questioned under this Division,

(

b) if questioned under this Division, bring to the questioning any records likely to be required in respect of which there is no claim of privilege, and (

c) give appropriate evidence of the relevant and material records and relevant and material information. [ 13 ] The Defendants first point out this rule does not say that a corporate representative needs to be “ fully ” informed. Further, to the extent the test is one of a lower threshold–of being at least “reasonably” informed–the new rule 5.30 states:

(1) If, during questioning, a person answering questions (

a) does not know the answer to a question but would have known the answer if the person had reasonably prepared for questioning, or if as a corporate representative the person had reasonably informed himself or herself, or (

b) has under the person’s control a relevant and material record that is not privileged, the person must undertake to inform himself or herself and provide an answer, or produce the record, within a reasonable time.

(2) After the undertaking has been discharged, the person who gave the undertaking may be questioned on the answer given or record provided. (Emphasis added) In other words there is a new remedy under the new Rules and it is undertakings; if a corporate representative is not reasonably informed, the Defendants say the remedy is not contempt, it is to undertaking to inform himself. [ 14 ] But was Motley fully (or even reasonably ) informed? The Defendants state that he was as much as he could be given the corporate law confusion: Mr.

Motley’s ability to answer questions in February or April of this year was hampered by the fact that he could not arguably swear for companies that were bankrupt. Further, while the Applicant had initially sought that an insurance policy be produced (a disputed and related issue), the Defendants state that there was nothing in the Statement of Claim, or any pleadings, that mentioned insurance and that it should not be pursued further.

Subsequently, if there was a doubt about his ability as Editor-in-Chief to be adopted as an officer of the corporate representatives, that has now been cleared up. [5] [ 15 ] If there was contempt, the Defendants break it down into three potential categories: ​ November 21 st 2011 Order (my order setting a schedule) ​ General contempt under the Rules of Court ​ Contempt for breaching my Order of April 5, 2012 [ 16 ] As it relates to contempt for breaching the November 21 st , 2012 Order, the Defendants state that such breach was anticipatory because the day on which the matter was brought to me on April 5, 2012, was at least a couple of weeks before the Order expired by its terms.

Second, as it relates to my April 5, 2012 Order, it was more along the lines of a direction according to the Defendants. Finally, regarding contempt under the general Rules, the Defendants refer to the new Rule 5.30 and its new remedial reference to undertakings. (Discussed above.)

[ 17 ] What is left then is breaching the spirit of my Order. On that point, the Defendants argue that the Rules of Court do not speak to being in contempt of court for breaching the “spirit”. Contempt should not lie unless there is an obvious breach, meaning that the breach would be something that was certain. The Law [ 18 ] The current law regarding civil contempt is Koerner v.

Capital Health Authority , 2011 ABQB 191 (aff’d: 2011 ABCA 289 ) which summarizes as follows, at paras. 41-44: In my view, there is no appreciable difference between the new and old Rules dealing with civil contempt, at least as it relates to the failure to obey a Court Order. At para. 30 of 2010 ABQB 557 , I noted that the purpose of a court's civil contempt power is to achieve compliance with court orders and to uphold the court's authority ( Dreco Services Ltd. v. Wenzel , 2004 ABQB 517 at para. 66 ; S.W. v. K.T. , [2005] A.J. No. 479 (A.B.Q.B.) at para. 17 ; McInroy v. Burnstad , 2010 ABQB 375 at para.11.

I noted: The central idea is that courts have a right to protect the dignity of their own proceedings, and they are entitled to discipline any conduct that they feel tarnishes, undermines, or impedes the court's role in society as administrator of justice. The Court of Queen's Bench has an inherent power to find a person in contempt of court if they feel the proceedings are being disrespected. The requirements for finding civil contempt were outlined in Point on Bow Development Ltd. v. William Kelly & Sons Plumbing Contractors Ltd. , 2006 ABQB 775 , 405 AR.

I, where Rooke J. (as he then was) noted (at para. 19) that there must be: 1. An existing requirement of the court; 2. Notice of the requirement to the person alleged to be in contempt; and 3. An intentional act (or failure to act) that constitutes a breach of the requirement. This should be without adequate excuse, in accordance with Rule 703(1)(a). A judge must be satisfied beyond a reasonable doubt that each of these elements have been met in order to make a finding of contempt. Moreover, the decision to find a party in contempt is within the court's discretion ( Metropolitan Life Insurance Co. v.

Hover , 1999 ABCA 123 at para. 10 ). Analysis and Decision [ 19 ] I do agree with the Plaintiffs that Mr. Motley was not as well informed as he should have been, particularly in light of the exchange that took place between his counsel and Justice Clackson on May 17, 2010. Given the history of the matter, and what Clackson J., was told, Motley should have been more fully prepared.

Worse perhaps, after the hearing on April 5, 2012, the Plaintiffs had sent a letter to the Defendants that once again would have put him on additional notice to be better informed, and he wasn’t. [ 20 ] I also agree with the Plaintiffs that under Rule 5.4(2), the expectation with the history of this case is that the corporate representative will really be informed. A higher obligation than under the old rules is consistent with the foundational rules which speaks to more efficiency. Rule 1.2. It is consistent with the expectations of the Plaintiffs given the exchange with Clackson J.

[21] As well, I do not agree with the Defendants that a person cannot be held in civil contempt merely because he does notperfectly fit within the categories enumerated under 10.52(3)(a). As the Plaintiff has pointed out, contempt of court is an inherentremedy: Braun (Re), 2006 ABCA 23; R. v. Vermette (1983), 1983 ABCA 154 , 26 Alta. L.R. (2d) 1 (C.A.), aff’d (SCC), [1987] 1 S.C.R. 577. [22] The Supreme Court of Canada in R. v.

Vermette[6] said: The power to deal with contempt as part of the inherent and essential jurisdiction of the courts has existed, it is said, as long as the courtsthemselves (see Fox, The History of Contempt of Court (1972) p.1). This power was necessary, and remains so, to enable the orderlyconduct of the courts’ business and to prevent interference with the courts’ proceedings... . [23] On a case by case basis, civil contempt is governed by the Rules of Court. That means civil contempt can lie for a breach ofthe Rules.

Civil contempt can also lie for breach of a Court Order. [24] Thus contempt powers require compliance and its remedy protects the Court’s dignity and respect for its judicial process. It iseven true that one can be held in contempt even where there has not been a breach within the four corners of the Court’s Order. SeeCalgary v.

Powlowski, 2008 ABQB 267. [25] While the seminal case of Norton doesn’t really apply here, it is true that one of the purposes of contempt motion is to ensurea party doesn’t become a self-judge or self-assured interpreter of a Court Order. (Another purpose is to coerce compliance: see Koerner.)And where a corporation is involved in allegations of contempt, there is no doubt someone responsible for it is equally liable to ensurethe Court’s commands are met. [26] Contempt is a very serious remedy.

Because of that, and absent bad faith, if there were ambiguities in the Court Order, they should be resolved in favour of the alleged contemnor.

Also, if there is some reasonable explanation for the unpreparedness,[7] again,given the harshness of contempt, I think they should be resolved in favour of the alleged contemnor. [27] In my mind, when new Rules 10.52, 5.4(2) and 5.30 are read together, the Applicant in a contempt proceeding may succeedby showing a lack of diligence and commitment to fulfilling a court order, but to do so, the breach should be: (1) significant, meaning asubstantial non-compliance; (2) the failure to comply was not redressed forthwith and responsibly; (3) the failure to comply was clear;and (4) the Court Order was direct and unequivocal. [28] In the result, while it is possible for a corporate representative to be found in contempt of court for not complying with Rule5.4(2), or for not complying with Court Orders regarding scheduling of questioning, this is not that case, for a few reasons: First, theDefendants had not fully produced Motley on the day the contempt motion was filed because the scheduled day for questioning had notyet arrived.

Second, related to the anticipatory breach, I’m not sure the Defendant’s failure to comply with the Order was substantial orclear. Finally, related to the first two points, the Defendants redressed Motley’s failure forthwith and responsibly – in a matter of acouple of weeks. [29] While Mr. Motley as Editor-in-Chief of the Calgary Herald should have had answers in April questioning as opposed to thoseset out in his May 11 Affidavit, I do not find him or any of the Defendants in contempt.

The better remedy might be in the argument forcosts but that is for another day. [30] The Plaintiff did not meet its burden of proving the very serious remedy of contempt and the application is dismissed. Heard on the 24th day of May, 2012. Dated at the City of Calgary, Alberta this 18th day of July, 2012.

W. A. Tilleman J.C.Q.B.A. Appearances: Michael Bates for the Plaintiff (Applicant) G. Scott Watson for the Defendants

Before Justice Clackson May 17, 2010 THE COURT: But then -- at -- at that juncture then, as an officer, he would be familiar with the testimony of all the employees. MR WATSON: Correct. THE COURT: And all of the documents that the corporation has produced. MR. WATSON: Well, he ’ s going to have to be before he ’ s questioned. [8] THE COURT: I ’ ve sat - I ’ ve - I ’ ve presided over a lot of (INDISCERNIBLE) with an officer who shows up and hasn ’ t done anything - MR. WATSON: No. THE COURT: - - and it ’ s a matter of delay . And - and that kind of a situations intolerable.

Before Justice Tilleman April 5, 2012 I can give that order today because it would be reflecting exactly the rules, and it - thank you, 5.4(2) : (as read) Corporate representatives must ... I ’ ll give that order. It would parrot the rules. It echoes - well, I ’ ll quote it: (as read) ...inform themselves of relevant and material records and relevant and material information before questioning... And then an ellipsis: (as read) (

b) If questioned under this Division, bring to the questioning any records likely to be required in respect of which there is no claim of privilege, and Lorne Motley Questioning April 18, 2012 Myself, what have I reviewed? I have reviewed some transcripts of myself, and that ’ s about it. [9] I am assuming it would be the Calgary Herald that would own the copyright for that article, but I would need to look into that to give you the exact answer, so I ’ ll get back to you on that. [10] MR WATSON: Well, perhaps I can assist.

The reason why we ’ re giving you an undertaking is, it ’ s typical – and there is, I think, nine employees who have been examined in this matter. It ’ s typical to have an opportunity to review the transcripts of all the parties in their entirety in order ro provide a proper acknowledgement in accordance with the rules, and that ’ s what I was proposing. [11]

MR. WATSON: No. Mr.Motley is diligent in attending -- THE COURT: Good. MR. WATSON: - - theexaminations. THE COURT: Okay. MR. WATSON: And so thatisn’t going to be a problem...[12] MR. WATSON: ...of coursenothing really would prohibitMr. Motley from starting a littleearlier. So I don’t think there’sgoing to be a problem inhaving him prepared by Oct - the end of October.[13] (

c) Give appropriateevidence of the relevant andmaterial records and relevantand material information. Relevant and material alwaystakes its context from thepleadings. That he has to do.[14] Jaycock Post-Hearing FaxApril 5, 2012 I confirm that myunderstanding is that none ofthe “Media Defendants” arepresently dissolved and thatwe have obtained the consentof the Monitor/Trustee of theMedia Defendants to agreethat Lorne Motley will betheir CorporateRepresentative within themeaning of Rule 5.4 MR BATES: Mr. Kent is clearlyentitled to have the informationof the corporate mediaDefendants relevant to thisproceeding...

We’re sitting heretoday, in 2012, and no one cangive Mr. Kent the informationas to the editorial process thatoccurred from Mr. Martin’ssubmitting the

article and it firstbeing published. So I’m having some difficultywith why we’re even gatheredhere today, because this is a big waste of time. [15] MR WATSON: Well, in fairness,I think his evidence, he lookedinto it years ago, right. Hemade some inquiries a long timeago. He hasn’t done it recently, right. That’s what he said.[16] MR. WATSON: Well, youknow, it’s funny, because in myexperience, it’s not unusual,when you examine a corporateofficer, to obtain exactly the undertaking you’ve got, right.[17] [1] Kent v.

Martin, 2011 ABQB 416, paras. 1-2. [2] Tab 7, Plaintiff’s brief, April 27, 2012. [3] Some of the examples where it is argued Mr. Motley did not prepare himself were found in the March 29th Affidavit of Mr. Kent“Exhibit D”; also at p. 5, line 11 “where Motley did not review the questioning of the parties”. [4] Norton v. Alberta (Minister of Justice), [1918] A.J. No. 49 at para. 9. [5] Affidavit of Kent May14, 2012 lines 21 - 27. [6] (SCC), [1987] 1 S.C.R. 577, para. 6. [7] I refer to Mr. Watson’s statement about the bankrupt companies, for which no records, assets, directors, or employees existed.

Mr.Watson also pointed out the Plaintiff knew about the CCAA proceedings for some time and was a claimant in those proceedings. [8] May 17, 2010 transcript p. 14 lines 25 to 34. [9] Lorne Motley, Corporate Representative of Media Defendants April 18, 2012 transcript p. 219 lines 11 to 14. [10] Lorne Motley, Editor-in-Chief, Calgary Herald and Corporate Representative of Media Defendants. [11] Motley transcript p. 221 lines 1 to 9.

[12] May 17, 2010 transcript p. 14 line 40 to p. 15 line 15 . [13] May 17, 20120 transcript p. 15 lines 28 to 34 . [14] April 5, 2012 transcript p. 10/32 to 11/8. [15] Motley p. 250/23 to p. 251/7. [16] Motley transcript p. 271 lines 13 to 16. [17] Motley transcript p. 272 lines 15 to 18.