HLFN Industry Relations Corporation v. Horseman, 2013 ABQB 511

Court of Queen ’ s Bench of Alberta Citation: HLFN Industry Relations Corporation v. Horseman, 2013 ABQB 511 Date: 20130911 Docket: 1303 01965 Registry: Edmonton Between: HLFN Industry Relations Corporation Plaintiff - and - Richard Horseman, Audrey Horseman, 1229128 Alberta Limited Operating As Sunrise Lodging Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _________________________________________ ______________ Background [ 1 ] The Applicant/Plaintiff seeks an Order that Richard Horseman and Audrey Horseman be held in contempt for failing to obey the Order of Justice Ross dated February 25, 2013, as amended. [ 2 ] The Plaintiff, HLFN Industry Relations Corporation (“IRC”), is an Alberta corporation whose primary function is to act as an agent of the Horse Lake First Nation (“HLFN”) in matters that relate to consultation with the Crown in the traditional territory of the HLFN and for the benefit of the Band members.

[ 3 ] The Board of Directions of IRC consists of the Defendant Chief and 4 Band Councillors of the HLFN. Eugene Horseman, Allan Horseman and Brian Horseman are Band Councillors elected for a term to expire on October 16, 2013. Brian Horseman is the brother of Chief Richard Horseman. [ 4 ] The Defendant, Richard Horseman, is the Elected Chief of the HLFN for a term to expire on October 16, 2013. The Defendant, Audrey Horseman, is the wife of Richard Horseman and a former employee of IRC.

Audrey Horseman is the sole shareholder and director of 1229128 Alberta Limited (“Sunridge Lodging”). [ 5 ] IRC is governed by IRC By-Law No. 1 and the relevant provisions of the Alberta Business Corporations Act. The Chief has no special status as a director of the company and has no authority to overrule the will of a majority of the directors.

Meetings of the Directors of IRC are separate and distinct from meetings of Band Council, and the fact that IRC’s Board of Directors is constituted of all Chief and Council does not transform a meeting of the Board of Directors into a meeting of Band Council. [ 6 ] Shortly after the election of Richard Horseman in 2009, his wife Audrey Horseman was appointed “Director” of IRC. The position of Director was akin to that of a president or CEO in a typical corporate structure.

On December 3, 2012, Audrey Horseman was terminated from her position by a majority vote at a duly called meeting of the IRC Board of Directors. From her appointment until December 3, 2012, Audrey Horseman controlled, and was involved with the day to day operations of IRC. [ 7 ] After Audrey Horseman was terminated, the Board of Directors hired Darwin Eckstrom to act as Interim President.

Darwin Eckstrom was hired at a duty called meeting of the IRC Board of Directors and was appointed as the primary point of contact for consultation with industry and government related to resource development on the traditional lands of the HLFN. [ 8 ] On or about April 23, 2013, Barry Hochstein was appointed President of IRC at a duly called meeting of the IRC Board of Directors. On July 15, 2013, a meeting of the HLFN Band Council was held with a quorum of Councillors present.

Band Council voted unanimously to appoint Barry Hochstein as the primary point of contact for consultation with industry and government related to resource development on the traditional lands of the HLFN. The formal Band Council Resolution, which was subsequently prepared and reflects the text of the motion passed at the meeting of Band Council on July 15, 2013, was signed by a quorum of Councillors on July 18, 2013. [ 9 ] As a result of the Defendants’ conduct, the Plaintiff obtained and Interim Order restraining the Defendants from interfering with the IRC. The Interim Order was amended on April 30, 2013.

The Contempt Application [ 10 ] The present contempt application alleges that the Defendants continue to interfere with the activities of IRC, notwithstanding the Interim Order: a. Richard Horseman specifically acknowledges in his sworn Affidavit and during cross-examination in his sworn Affidavit and during cross-examination that he contacted Birchcliff Energy Ltd. regarding the IRC’s business relationship with that company; b. Richard Horseman contacted Jayme Savard, an employee of IRC, on several occasions; c.

Richard Horseman contacted Barry Hochstein, the President of IRC, on June 24, 2013 and July 2, 2013 and interfered with the day- to-day operations of the IRC. d. Audrey Horseman, purporting to be Richard Horseman’s assistant, purposely contacted Cavalier Lands, a client of IRC that consults with First nations on behalf of various corporations, to discuss consultation with the HLFN. e.

Audrey Horseman emailed Progress Energy, a client of IRC, to inquire about the creation of an Aboriginal Relations department, which the Plaintiff submits relates directly to the day-to-day activities and existing business relationships of IRC; f. Richard Horseman, through his counsel, contacted BC Hyrdo, a client of IRC, on April 5, 2013 to request that funds which would typically be paid to IRC be placed in trust as a result of the ongoing litigation. The April 5, 2013 letter came to the attention of IRC when normal business correspondence from BC Hydro was cc’ed to Richard Horseman’s counsel.

IRC inquired if Richard Horseman had been in contact with BC Hydro, to which Richard Horseman’s counsel responded “I have no idea”. During the court of cross-examination, Richard Horseman refused to answer questions with respect to this interference. [ 11 ] The Plaintiff seeks an Order that Richard Horseman and Audrey Horseman be held in contempt of Court for failing to comply with the Order of Justice Ross dated February 25, 2013, as amended. [ 12 ] The relevant provisions of the Interim Order of February 25, 2013 are as follows: 2.

Richard Horseman, Audrey Horseman, and 1229128 Alberta Limited operating as Sunrise Logging are restrained and enjoined from: a. making any statement, verbally or in writing, which represents that the Respondents have authority to represent or enter legally binding agreements on behalf of IRC; b. having any involvement with the IRC’s business and contractual relationships with its employees, suppliers, and customers including, but not limited to, Stoneraft Media Corporation, the Province of Alberta and the Government of Canada;

... [ 13 ] Richard Horseman acknowledges that he contacted Birchcliff Energy Ltd. and that Audrey Horseman contacted Cavalier Lands and Progress Energy. The nature of these communications are described by the Defendants as carrying on the business Sunrise Logging.

It is submitted that inquiries with respect to an “Aboriginal Relations department” or meetings that relate to companies “working within Horse Lake’s traditional territories” have no bearing on the business interests of Sunrise Logging, and relate directly the activities of IRC as IRC is the entity responsible for consultation with industry with respect to potential impact on the territorial lands of the Horse Lake First Nation. [ 14 ] The Plaintiff submits that the evidence is also clear that Richard Horseman contacted Jayme Savard and Barry Hochstein to discuss IRC business and to intervene in day-to-day operations.

Mr. Hochstein acknowledges specifically that the nature of Richard Horseman’s inquiries was with respect to IRC business, not matters that relate to his work with other First Nations. [ 15 ] It is submitted that the Defendants fail to recognize that the IRC, the HLFN and the Office of Chief are separate entities with different rules, roles, and responsibilities.

It is submitted that Richard Horseman further confuses the role of the IRC by attempting to infer obligations from the Protocol Agreement between the Grand Chiefs of the Treaty Associations and the Province of Alberta, contrary to the provision that indicates “nothing in the Protocol Agreement is intended to create any legal rights or responsibilities or legally binding obligations on the rights of the Parties”.

In addition, Eugene Horseman’s evidence that the Protocol Agreement has no bearing on the business or legal activities of IRC was not challenged during cross-examination. [ 16 ] However in this regard I note the Affidavit of Chief Richard Horseman filed July 12, 2013 contains evidence to the contrary when he details his other legitimate duties and functions, and his specific demands of some of the allegations made against him at paragraphs 2 through 8 as follows: 2.

As I previously deposed in my Affidavit sworn on May 23, 2013, effective for the period from May 22, 2008 until March 31, 2013, the Alberta Government entered into a Protocol Agreement with the Chiefs of the First Nations in Alberta.

This Protocol Agreement provided that Chiefs were responsible for treaty and aboriginal rights and meetings with industry regarding the duty to consult and attached as Exhibit “A” is a copy of this Protocol Agreement, a copy of the 1993 Protocol Agreement, a copy of the Treaty 8 First Nations and Government of Alberta Framework Comparison: Working Together to Find Common Ground, Protocol Agreement on Government to Government Relations 2013-208: Proposed Draft Work Plan, the draft Protocol Agreement on Government to Government Relations 2013-208, the Protocol Matrix, the Sub-Agreement to Memorandum of Understanding between the Grand Council of Treaty 8 First Nations and the Province of Alberta, and the draft Treaty 8 First Nations and Government of Alberta 1993 Memorandum of Understanding: Revitalization Initiative.

As a result of this Protocol Agreement, I was responsible for meeting with Industry and government regarding the duty to consult. Many of these meetings took place in Edmonton and Calgary. This Protocol Agreement is being extended by an agreement proposed to be in effect until 2018. 3. Since I am now Grand Chief for the Western Cree, my role under this Protocol Agreement is more direct and I am responsible for the duty to consult with Alberta and involved in the negotiations regarding the duty to consult with Alberta.

In addition, the Province of Alberta released a draft on the Duty to Consult this spring and invited submissions on that were provided in May, 2013 and attached as Exhibit “B” is a copy of the Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resources Management, 2013 and The Government of Alberta’s Corporate Guidelines for First Nations Consultation Activities, 2013. 4. In order to be involved in these discussions with Alberta and with the Chiefs, I sought information regarding the Band level of consultation from Barry Hochstein on June 24, 2013 and July 2, 2013.

I was concerned as a result of these discussions with Alberta as set out above, about who was signing the notifications received from industry acting as the delegate of the Province of Alberta on the duty to consult. I had received information that notifications were being signed off by Jenny Geernaert representing Horse Lake First Nation. Jenny Geernaert is not authorized to do so on behalf of Horse Lake First Nation. It was also necessary for me to be aware of all of the projects within the Western Cree traditional lands, in order to ensure that the consultation activities are being properly carried out.

If problems are identified, it is necessary for me to ensure that proper terms are included in these agreements with Alberta. 5. I specifically deny that I or my wife, Audrey Horseman have interfered with IRC’s business or contractual relationships with IRC customers. 6. IRC cannot enter into agreements in the name of the Horse Lake First Nation. All of its agreements must be in the name of IRC. 7. I did not state on July 2, 2013 that I was taking steps to remove Barry Hochstein as President of IRC and in fact, I did not know Barry Hochstein was the President of IRC. 8.

Contrary to the statement at paragraph 12 of Barry Hochstein’s Affidavit, I did not advised Barry Hochstein that my approval was required with respect to IRC business, although I remain a Director by the Orders of the Court in this proceeding. [ 17 ] The Plaintiff submits that the contact with B.C. Hydro forms the most egregious example of contempt. The Defendants, Richard Horseman and Audrey Horseman, and their counsel expressly denied having knowledge of the April 5, 2013 letter. Moreover, the Defendants took steps to block relevant questions with respect to communications with B.C.

Hydro during cross-examination. If not for the voluntary disclosure of the April 5, 2013 letter by representatives of B.C. Hydro after repeated requests from the Plaintiff, it is submitted that the misconduct may still be hidden from the Plaintiff and this Court. [ 18 ] The Plaintiff submits that an application for contempt is not the appropriate forum to launch a collateral attack on the validity of the Interim Order, and that submissions with respect to Richard Horseman’s obligations as Chief are not a defence to his contemptuous conduct.

Analysis [ 19 ] I acknowledge that there were considerable problems between the Parties that lead up to, and followed the February 25, 2013

Order. However the events that lead to the granting of the February 25, 2013 Order and its later amendment are historical, or at best background. They are largely not relevant facts with respect to the present contempt application and the alleged breach of the Interim Injunction Order, which provided in paragraphs 2(

a) and (b): Richard Horseman, Audrey Horseman and 1229128 Alberta Limited operating as Sunrise Logging are restrained and enjoined from: a. making any statement, verbally or in writing, which represents that the Respondents have authority to represent or enter legally binding agreements on behalf of IRC; b. having any involvement with the IRC’s business and contractual relationships with its employees, suppliers, and customers including, but not limited to, Stoneraft Media Corporation, the Province of Alberta and the Government of Canada. [ 20 ] On July 9, 2013, an Application was filed by IRC seeking an Order that Richard Horseman and Audrey Horseman be held in contempt for failing to obey the Order of Justice Ross dated February 25, 2013 as amended.

The grounds for this application were expanded on August 2, 2013 shortly before this matter was heard, and are stated to be that Richard Horseman and Audrey Horseman have failed to comply with the Order by: a. Interfering with IRC’s business and contractual relationships with its employees, including Jayme Savard and Barry Hochstein; and b. Interfering with IRC’s business and contractual relationships with its customers, including Birchcliff Energy Inc., Cavalier Lands and Progress Energy. c.

Interfering with IRC’s business in communications with BC Hydro. [ 21 ] The evidence to support this application was originally stated to be contained in the Affidavit of Barry Hochstein filed July 8, 2013.

This was later supplemented by his August 2, 2013 Affidavit plus a series of other person’s affidavits. [ 22 ] Rule 10.52 of the Alberta Rules of Court provides that a person will be in contempt where the person, without reasonable excuse, fails to comply with a Court Order: 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 and 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, ... (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.

Alberta Rules of Court , Alta Reg 124/2010 r 10.52. [ 23 ] In Koerner v Capital Health Authority , 2011 ABQB 191 the Court establishes the following elements of civil contempt in a case where the contemptuous behaviour is a breach of a Court Order at paragraphs 43 and 44 which read: 43 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 A.R. 1 , 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). 44 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 ). [ 24 ] The standard of proof in civil contempt is proof beyond a reasonable doubt .

Civil contempt is composed of two elements – the required mindset, and the required action ie: an actus reus and the necessary mens rea . Wong v Booker , 2009 ABQB 1369 at paragraph 2 , 10 and 11 states this as follows: 2 The application is denied: even civil, as opposed to criminal, contempt must be proved beyond a reasonable doubt. Contempt is composed of two elements - the required mind set and the required action. Here, the applicants have proved that the court's orders were breached; they have therefore proved the action, or actus reus , component of contempt beyond a reasonable doubt.

... 10 Contempt, both civil and criminal, must be proved beyond a reasonable doubt. 11 Contempt is composed of two elements, having the necessary mind set, or mens rea, and having committed the necessary act, or actus reus . [ 25 ] The standard of proof required herein is also discussed in Schitthelm v Kelemen , 2013 ABQB 42 at paragraphs 41 to 43 : 41 For the accuser to prove a breach of an existing requirement in a court order, they must prove the existing requirement. The actus reus of the breach constitutes the action in breach of the court order or the failure to perform

an act that the court order requires. The mens rea is the alleged contemnor's intention to commit the prohibited act or the intentional, willful or reckless failure to perform the required act. [ 26 ] 42 Authority for the mens rea in mandatory court orders is found in the remarks of Côté JA in Michel v. Lafrentz , 1998 ABCA 231 at para 21 , 219 AR 192 , where he says: "[w]here 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". This quote is cited with approval by a panel of the Alberta Court of Appeal in Broda v.

Broda , 2004 ABCA 72 at para 7 , 346 AR 372 . [ 27 ] 43 In many cases, a court may infer the mens rea from the contemnor's actions and the surrounding circumstances, but this is not always the case. What is important, however, is that the accuser prove the actus reus and the mens rea : Calgary (City) v. Chisan (2002), 32 MPLR (3d) 256 (Alta QB) [ Chisan ] . If there is a lack of clarity in the existing requirement, the accuser might fail on one or the other of these elements. Later, this Court will discuss the standard of proof that the accuser must meet.

Interference with Employees and Contractual Relations of IRC Interference with Jayme Savard [ 28 ] The Affidavit of Barry Hochstein filed July 8, 2013 contains no specific evidence of interference with Jayme Savard as alleged. Interference with Barry Hochstein [ 29 ] The July 8, 2013 Affidavit of Barry Hochstein deposes at paragraph 2 that he “continues to work as a consultant for several other First Nations”, and on his examination on Affidavit at page 18, line 16, Mr. Hochstein acknowledges some confusion exist between his other consulting roles, his IRC functions, and the Treaty and Governing Body Protocol.

Several matters contained within Mr. Hochstein’s affidavit relate to matters not involving IRC, and therefore have little relevance to this contempt application. Contempt of the Order may only occur by actions which are against IRC.

For example Paragraph 9 of the Hochstein Affidavit dated July 8, 2013 appears to deal with non IRC matters: Richard Horseman also indicated that two people at the Edmonton Office of the Treaty 8 First Nations of Alberta had been terminated, at his request, solely because they had responded to my requests for information with respect to the Treaty 8 Protocol Agreements on behalf of my clients who are not IRC. I told Richard Horseman that my requests for information did not relate to my work for IRC and that there must have been a misunderstanding if he was told anything different.

The Protocol Agreements between the Crown and the Treaty 8 First Nations of Alberta are not relevant to the operations of IRC. [ 30 ] Paragraphs 6, 7 and 8 of this Hochstein Affidavit are in conflict with the Affidavit of Chief Richard Horseman, and do not, relate directly to matters involving IRC in any event. [ 31 ] Paragraphs 13, 14 and 15 of the Hochstein Affidavit are not supported by sufficient evidence and further there is no link between an individual identified as “purporting to be Richard Horseman’s assistant” and Chief Richard Horseman.

Further these are matters related to Horse Lake First Nation and not to IRC, therefore they cannot be in contempt of the Order. [ 32 ] Paragraph 16 of the Hochstein Affidavit does not provide sufficient grounds for contempt of the Order. It states that Audrey Horseman has inquired about opportunities for work. It also states Richard Horseman, Audrey Horseman and Sunrise Logging do not have any involvement or contracts with Progress Energy. The e-mail attached as an Exhibit does not include any representation that Sunrise is IRC.

Sunrise may conduct its business and nothing in the Order prevents Sunrise from carrying on business in Alberta. The proof for this allegation is stated to be in the e-mail contained as Exhibit “C” to the Affidavit of Barry Hochstein which states: Hope all is well but am wondering when opportunity for Sunrise will occur?? I know it’s been raining too much but can you find out if you put a medic on somewhere??

Response June 13 3:24 PM from Aldo Villani Audrey, can you please send me information on the Medic and Sunrise as no one can work for Progress Energy unless they have been cleared by our Safety Department as to Comply Works insurance etc. as a qualified vendor Thanks Aldo Response June 18, 2013 3:21 PM from Audrey Horseman Hey Aldo Can you confirm you received the info I sent to you about sunrise Best Regards

Audrey Horseman Response June 18, 2013 3:38 PM from Aldo Villani Yes I did. [ 33 ] I conclude that no breach of the Order occurred above since this has nothing to do directly with IRC: Audrey Horseman never stated that Sunrise was IRC, which must be proved beyond a reasonable doubt in any event; and the Order does not prevent Sunrise from conducting its business. [ 34 ] I conclude that there is no evidence contained in the Affidavit of Barry Hochstein related to Birchcliff Energy therefore there cannot be contempt regarding Birchcliff Energy. [ 35 ] The hearsay statement contained in the Affidavit of Barry Hochstein, regarding Cavalier lands speaks about an individual “purporting to be Richard Horseman’s assistant”, is not evidence regarding contempt by Chief Richard Horseman.

In any event, whatever statements were made, relate to the Horse Lake First Nation, and arguably Chief Richard Horseman is required to carry out these activities in fulfilling the obligations that he has as Chief of Horse Lake First Nation and also as the Grand Chief of the Western Cree as a result of the Protocol Agreement with Alberta and sub-agreement for Treaty 8 also with Alberta. This does not breach the Order, and it is not proved “beyond a reasonable doubt” to be

an act of Chief Richard Horseman in any event. [ 36 ] The most egregious contempt alleged involves the April 5, 2013 letter to BC Hydro from Chief Horseman’s counsel, (and certain e-mails between counsel relating to this letter): Exhibit “B” Email of July 11, 2013 from Graham McLennan Priscilla, I received an e-mail today from BC Hydro, which was copied to you. Can you provide us with information as to why BC Hyrdo would be copying you with day-today business matters involving IRC? Please provide us with a written explanation at your earliest convenience.

Thanks, Graham Response July 12, 2013 from Priscilla Kennedy I have no idea Response July 12, 2013 from Graham McLennan Priscilla, Have you discussed the matter with your clients to determine whether they have had any contact with BC Hydro? Graham Email of July 19, 2013 from Graham McLennan Priscilla, We understand that you sent a letter to BC Hydro dated April 5, 2013, re making payments into trust pending resolution of litigation. Can you please provide us with a copy. Thanks. Graham Email of July 31, 2013 from Graham McLennan Priscilla, Enclosed is an e-mail we have received from BC Hyrdo.

Further to our e-mails of July 11 and July 19, 2013, please send us your letter of April 5 or provide us with a written explanation as to why you believe it is not producible, Graham Response July 31, 2013 from Priscilla Kennedy Attachment: Letter to BC Hydro April 5, 2013.PDF

Exhibit “C” Email July 18, 2013 from Barry Hochstein Hi Debbie, I have attached a copy of the order from the Justice pertaining to consultation and the IRC. I would greatly appreciate any documentation you can share pertaining to actions taken by Rick and/or Audrey Horseman or their legalcounsel related to the consultation requests. Thank you so much! Barry Hochstein Response July 18, 2013 from Debbie Seto-Kitson Hi Barry, Congratulations on your appointment as President of the HLFN IRC.

Further to you inquiry regarding why Priscilla Kennedy was copied on the correspondence of July 11, 2013 from our Director, TrevorProverbs, to the HLFN IRC respecting payment for the HLFN Community Baseline Report, I can confirm that BCH received a letterfrom Priscilla Kennedy on April 5, 2013 directing us to make all payments owing to the HLFN into a trust account pending resolution ofongoing litigation at HLFN. As a result of this letter, we were advised by our own legal counsel to copy lawyers on both sides of theHLFN dispute to ensure transparency until relevant legal matters are resolved.

To this end, thank you for providing us with the courtorder pertaining to consultations with the HLFN IRC. I will ask our legal counsel to review the documentation and confirm appropriateprocedure related to future correspondence with HLFN IRC. Best Regards, Debbie Seto-Kitson Exhibit “D” Letter of April 5, 2013 from Priscilla Kennedy to the attention of Michelle Macdonald at BC Hydro Re: Site C Clean energy Project Stage 3 Consultation Agreement with Horse Lake First Nation effective December 27, 2010 We act for Chief Richard Horseman. As you may be aware, there is considerable litigation involving HLFN IRC.

As a result and onreview of the above mentioned agreement, we ask that you place any funds to be paid to Horse Lake First Nation into a trust accountuntil this litigation is resolved. Sincerely, Davis LLP Per: Priscilla Kennedy [37] I conclude that the letter of April 5, 2013 specifically addresses funds payable by BC Hydro pursuant to a December 27, 2010agreement between BC Hydro and the Horse Lake First Nation, not IRC.

The letter is between Defendant’s counsel and BC Hydro’s in-house counsel, so that all involved are sophisticated, legally trained persons who would be generally familiar with the problems betweenthe parties herein.

In any event the alleged contempt has not been proven beyond a reasonable doubt, and the funds payable weresubsequently paid to IRC directly notwithstanding the April 5, 2013 letter. [38] The remaining matters that may arise from the very recently amended application herein that may be found in the additionalaffidavits relied on of Jenny Gernhart, Eugene Horseman, Michelle Borysiuk, Gabrielle Wilkinson and the cross examination transcriptfiled to date are too non-specific to be responded to.

The requirement of specificity in contempt applications was clearly set out inSchitthelm v Kelemen, 2013 ABQB 42 at paragraph 35 to 39 which read: 35 The accuser must provide the alleged contemnor with specifics of the allegations of contempt, such that the alleged contemnorunderstands the allegations they face, has an ability to respond to the allegations, and has an opportunity to purge their contempt, if any.If the accuser makes the allegation that the alleged contemnor has breached a court order, the alleged contemnor "must be given anopportunity to provide 'an adequate excuse' for his disobedience of a court order": Metropolitan Life Insurance Co v.

Hover (1999),1999 ABCA 123 , 237 AR 30 at para 6 (CA) [Hover]. 36 In Cotroni v. Quebec Police Commission, (SCC), [1978] 1 SCR 1048 at 1058 [Cotroni], the Supreme Court ofCanada found that where a person was alleged to have committed contempt by providing evasive answers to questions, the accusershould have put the questions that the alleged contemnor failed to answer in the charge. The court in Freedom Villages Inc v.

Gander(Town), 2008 NLTD 116 at para 10, 277 Nfld & PEIR 67 [Freedom Villages] states that "the alleged contemnors are entitled to knowprecisely the charges that are made against them and the evidence by which the charges are to be proven". 37 Consistent with the disclosure requirements in the criminal context, described in R. v. Stinchcombe, (SCC), [1991]

3 SCR 326 [ Stinchcombe ] , the alleged contemnor is entitled to be provided with disclosure of the evidence related to the allegations of their contempt. This includes not only that which the accuser intends to rely on, but anything relevant that bears on the alleged contempt itself. This is important as the accuser could be in possession of exculpatory evidence.

However, courts must not get too carried away by layering the Stinchcombe requirements on every case in which a party is alleged to have committed civil contempt; each case must be decided on its own facts, and the level of disclosure will depend on those facts. In Vale Inco Ltd v. USW, Local 6500 , 2010 ONSC 3039 at para 7 , 320 DLR (4th) 185 (Sup Ct) [ Vale Inco ] , Gordon J said: • ... [T]he nature and extent of the disclosure obligations need to be decided on a case by case basis, having regard to such issues as: •

(1) The relief being sought by the party bringing the motion for contempt. If the motion is brought essentially for the purpose of ending the unlawful conduct that is one thing; if the motion is brought with a request for significant penal sanction, that is another thing entirely; •

(2) Whether the alleged contempt is ongoing, resulting in an urgent need to preserve order and protect the authority of the court; •

(3) If the alleged contempt is not ongoing, whether the relationship between the parties is such that the impugned conduct might reasonably be expected to resume without timely intervention by the court; •

(4) The nature of the conduct alleged; and •

(5) The nature and extent of the materials of which disclosure is sought and the time expected to produce it. Gordon J concluded by saying at para 9: • It will be important for the court to consider whether the purpose for which disclosure is being sought is legitimate. It will be important for the court to consider whether the ends of justice are best met by making the requested order. 38 The accuser must use Rules Form 27 when it seeks to have a court find the alleged contemnor in contempt.

The form asks for particulars of the grounds for making the application and the evidence on which the accuser intends to rely. 39 The alleged contemnor need not answer any allegation that lacks specificity. The alleged contemnor must be provided with a full opportunity to answer and defend the allegation, or to purge the alleged contempt. However, where one allegation fails for a lack of specificity, another, specific, allegation can proceed. Disposition [ 39 ] I conclude that the Applicant/Plaintiff has not provided sufficient proof beyond a reasonable doubt of contempt of the February 25, 2013 Court Order.

Accordingly the application is dismissed. Heard on the 12 th day of August, 2013. Dated at the City of Edmonton, Alberta this 10th day of September, 2013 .

Donald Lee J.C.Q.B.A. Appearances: Graham McLennan and Steve Dollansky McLennan Ross LLP for the Plaintiff Priscilla Kennedy Davis LLP for the Defendants Richard Horseman, Audrey Horseman and 1229128 Alberta Limited.