Jama v Jama, 2016 ABQB 379

Court of Queen ’ s Bench of Alberta Citation: Jama v Jama, 2016 ABQB 379 Date: 20160706 Docket: FL03 50012 Registry: Edmonton Between: Layla Jama Plaintiff - and - Suad Jama Applicant/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Layla Jama obtained a without notice Emergency Protection Order against her sister Suad. After having been served with the order, Suad Jama filed an affidavit in which she contested her sister’s allegations. In the presence of both parties, a viva voce confirmation hearing was then ordered. Layla Jama did not appear on the date set for the hearing. Suad Jama now applies for what she describes as costs of $5,000.00 from her sister. [ 2 ] The application is allowed, in part. Suad Jama is awarded $500.00 in costs against Layla Jama. [ 3 ] There is no evidence here than an award of $5,000.00 could be even a full indemnity of costs: although Suad’s lawyer would

have had to review the transcript of the original hearing, draft a reply affidavit, and research the law on costs in this area, it is unlikelythat a fee of the magnitude requested would have been generated by that work.

Moreover, because the statute itself sets $5,000.00 as themaximum penalty that could be imposed for the breach of an EPO, an award of costs would presumably take that statutory maximuminto account in setting any punitive award of costs. [4] In any event, however, for the policy reasons articulated by our Court of Appeal in Lenz, costs are rarely appropriate inproceedings taken pursuant to the Protection Against Family Violence Act. [5] In the situation here, it is not possible for the court to determine that the original application was brought maliciously or foran abusive purpose.

This is certainly not, therefore, a situation in which accelerated costs should be awarded. [6] The legislator realized that the Act authorizes the granting of significant remedies – as for example in this case immediateeviction from residential premises - without hearing from the party who is negatively affected. The legislation therefore forbidsmalicious use of the Act; because the statute does not establish a penalty for such abuse, it may be that, where malicious use is proved,the court can impose the penalty which it considers appropriate. A purposive

interpretation of the legislation leads to the conclusion thatthe legislator clearly intended that, in order to make an assessment of whether there was abuse of the legislation, both parties wouldappear on any contested hearing. [7] Given the unexplained failure by Layla Jama to appear at the confirmation hearing, she must pay Suad Jama $500.00 in costsfor the unnecessary preparation undertaken by the latter.

Cases and authority cited [8] By Suad Jama: Siwiec v Hlewka 2005 ABQB 684; Shipanoff v Shipanoff 2010 ABQB 496. [9] By the court: Lenz v Sculptoreanue 2016 ABCA 111; Denis v Palmer 2016 ABQB 54; Still v M.N.R. (C.A.) (FCA), [1998] 1 F.C. 549 (C.A.). 1. Background [10] Layla Jama obtained a without notice Emergency Protection Order on April 26, 2016. Suad Jama was served with that Orderon April 26, 2016. One term of the Order was that a peace officer was to remove Suad Jama from the premises shared by the parties.

The Order set May 4, 2016 as the date on which a judge of the Court of Queen’s Bench would review the order. On May 4th, in the presenceof both the plaintiff and the defendant, each of whom were represented, the EPO was extended to June 30, 2016 when a viva voce oralconfirmation hearing was to be held. On May 31, 2016, Suad Jama filed an affidavit in response to the EPO order.

In that affidavit, SuadJama swore that: - on April 23, 2016, she informed the plaintiff that she would be moving out of the apartment they shared; - her sister sent her a text message which read in part: “ . . . if you fuck me over I will do everything legal to fuck up your life and Iwill make sure you regret it. . . . I will report everything you did and drag you through the legal and civil court to get my money for thetrip, rent and damage deposit”; - “I will like the court to revoke the Emergency Protection Order because the Applicant obtained it to intimidate me. I never didanything wrong to the Applicant.

On applying for the EPO, it was noted that she was struggling with identifying the thing that warrantsgranting the EPO.” [11] Because of the conflict in the evidence, the court set the matter down for an oral confirmation hearing; the earliest date onwhich a hearing could be held was June 30, 2016. [12] On the date set for the oral hearing, Layla Jama did not appear. [13] At the oral confirmation hearing, Suad Jama requests that the EPO be vacated, and for an order for what she characterized ascosts of $5,000.00. At the hearing, the court ordered that the EPO be vacated as of the hearing.

That order is not effective nunc pro tunc;in other words, this court did not strike out the EPO from its inception. This decision deals with the costs application. 2. Costs should rarely be awarded in EPO proceedings [14] In Lenz, our Court of Appeal has recently had occasion to address the issue of costs in EPO matters. It held: Costs 40 The appellant sought costs on appeal in accordance with

Schedule C, Column 1. 41 This Court declines to make such an order and directs that the parties bear their own costs. First, neither the Act nor its regulationsprescribe any sanction against the original claimant when an EPO is revoked, even in cases of frivolous or vexatious applications, andthis is not such an application. 42 Second, we agree with Jones J in Denis v Palmer, 2016 ABQB 54 at paras 19-20, that it is not reasonable for this Court to use itsdiscretion to order costs to effect such a penalty where the Legislature has not, to date, seen fit to do so. 43 A court considering costs relating to the review or appeal of an EPO may consider under Rule 10.33(1)(

c) of the Alberta Rules ofCourt the "importance of the issues" in an individual matter. "Assessing the importance of the issues requires consideration of theobjectives the Act seeks to achieve and the importance society attaches to protecting its vulnerable members from family violence":

Denis v Palmer at para 15 . The objectives of the Act must also be weighed in this matter when making a determination on costs, to be balanced against other relevant factors such as the result of the appeal, its complexity, and the liability and conduct of the parties. 44 The objectives of the Act are set out in its

preamble and are to prevent family violence and protect vulnerable victims by providing an immediate period of safety in their own home.

These objectives are pressing in our society and outweigh other considerations relating to costs, including the appellant's success on appeal. 45 We do not consider it appropriate to create any impediment which would cause vulnerable victims to avoid seeking an EPO when they are at immediate risk of family violence, merely for fear that they may later have to pay adverse costs. [ 15 ] In Siwiec , Slatter J., as he then was, said the following about the award of costs in this type of proceeding: Costs 25 As a result of being served with the Emergency Protection Order, the Respondent was forced to vacate the matrimonial home on less than ten minutes' notice.

Since that time he has had to retain counsel, and has had to make several court appearances. A viva voce hearing was held on September 7, 2005, at which the Applicant attempted to maintain the Order. In the end the Respondent has been successful, and he seeks costs. Counsel for the Applicant argues that as a matter of public policy, persons seeking Emergency Protection Orders should not be visited with costs. There is merit to that argument.

On the other hand, there is also merit to the argument that the use of Emergency Protection Orders for collateral purposes, as happened in this case, should not be sanctioned by the Court. The Respondent having been successful, he is entitled to $500 in costs. [ 16 ] In Denis , Jones J., the confirmation hearing judge, said the following about costs: 19 While I revoked the EPO, I made no finding that Palmer acted frivolously or without merit or that she intended to cause harm to Denis or Ms. Denis.

On its face, this matter evolved in accordance with the protocols set out in the Act, which allow for an EPO to be obtained ex parte, to be reviewed in this Court with the benefit of additional evidence and to be revoked or continued by this Court. 20 It is true that the Act prohibits making a frivolous or vexatious complaint with malicious intent. However, neither the Act nor the regulations thereunder prescribe a sanction for doing so.

Until such time as the Legislature sees fit to imbue the Act with some criteria for determining if a person should suffer consequences for failing to observe s. 13, it does not seem reasonable for this Court to use its discretion to make a cost award to effect that result. That would require this Court to search for malicious intent by assessing an applicant's professed subjective belief in the threat of family violence at the time of the EPO application before the Provincial Court.

In my view, this would be an unjustifiable exercise in speculation. 21 In any event, I did not make a finding that Palmer had acted wrongfully, vexatiously, or with malicious intent. I simply assessed the evidence that was put before this Court and determined that she did not have a reasonable fear of family violence. 22 Denis may have felt injured and aggrieved by Palmer's actions. He may have felt that, because of his position, he had more to lose than another individual. That, however, is not an appropriate consideration for this Court on an EPO review.

This Court's mandate on such a review is to apply the Act as intended, giving effect to the objects and purposes for which it was enacted. The narrow focus is whether a protection order is required to avert family violence. 3.

Here, tariff costs are awarded for preparation for a contested hearing which did not occur [ 17 ] The situation here is somewhat analogous to the Denis situation, at least to the extent that, on the basis of the available evidence, I am unable to make a determination that Layla Jama’s intention in obtaining a without notice emergency protection order was malicious or, in any other way, to abuse the statute.

Nor is it the case that the EPO judge found that it was difficult to justify the granting of the order, relying in part on the evidence of Suad Jama’s attempt to break into the apartment, the alleged threat to kill Layla, the alleged threat to set the residence on fire, and the effect on the threats on the applicant and her son.

As indicated above, the evidence before the EPO judge was clearly sufficient to warrant the granting of the EPO. [ 18 ] Because Layla Jama did not attend the oral confirmation hearing, it is impossible for this court to determine which of the affiants may have provided evidence which is unreliable. There would be situations in which an abuse of the legislation could be established even in the absence of the litigant who obtained the original order: a posting to a Facebook page, the evidence of a witness to whom the originator of the order made a “confession” of ulterior purpose, etc.

However, here the only evidence about the originator’s intention is from the respondent herself who forward a statement from Layla Jama to the effect that the originator’s intention was only to do what was legal. Therefore, the evidence provided by Suad Jama does not support her position that the original applicant abused the court system. [ 19 ] If there had been proof of a malicious original application, it may well have been appropriate to award accelerated costs; in that situation, an award of $5,000.00 in costs might not be inappropriate given the statutory penalty for breaching an EPO.

Nonetheless, I observe that even a full indemnity of costs would be unlikely, without explanation, to reach $5,000.00 in light of the relatively simple nature of the process. [ 20 ] In any event, not only is the situation here one in which no malice has been established, it is also one which is different from the Denis situation in that the originator of the EPO did not appear at the confirmation trial, and that her non-appearance remains unexplained, even to this date.

The respondent, Suad Jama, retained a lawyer who was required to review the written EPO order application and the transcript of the initial EPO hearing, draft an affidavit in reply, and prepare for a contested confirmation hearing which has the format of a mini-trial. [ 21 ] In Lenz , the court emphasized that a judge who is considering costs must take into account the objectives of the Act, as well as the Rules relating to costs.

When passing the Act, the legislator realized that the Act authorized significant remedies to be granted without hearing from the party who would be negatively affected by the remedies; it therefore established a provision designed to

discourage malicious use of the Act: Prohibition 13 No person shall, with malicious intent, make a frivolous or vexatious complaint under this Act. [ 22 ] With respect for those who may have a different view, because the legislator did not choose to establish a penalty for making a frivolous or vexatious application for an EPO, by analogy to the contracts situation described in Still , courts may be empowered to choose an appropriate remedy wherever such misconduct is established: 46 Professor Waddams suggests that where a statute prohibits the formation of a contract the courts should be free to decide the consequences (at page 372).

I agree. If legislatures do not wish to spell out in detail the contractual consequences flowing from a breach of a statutory prohibition, and are content to impose only a penalty or administrative sanction, then it is entirely within a court's jurisdiction to determine, in effect, whether other sanctions should be imposed.

As the doctrine of illegality is not a creature of statute, but of judicial creation, it is incumbent on the present judiciary to ensure that its premises accord with contemporary values. [ 23 ] Since no misconduct has been established by Suad Jama, it is not necessary on this application to deal with the effect of s. 13 of the Act.

Section 13 of the Act does, however, confirm that the legislator intended applications under the Act to be taken seriously. Part of taking the process seriously is, where remedies are contested, to appear at any oral hearing mandated by the court. Here, the original applicant, Layla Jama, did not follow through with the process she initiated. She may have had good reason for doing so; for example, she may have only wanted to ensure that her sister left the rental premises. However, in the absence of Layla Jama, the court is unable to determine if the Act was used for an improper purpose.

In those circumstances, and in light of the preparation she undertook for the oral confirmation hearing, it is appropriate to award Suad Jama costs of $500.00 for preparation for the unnecessary appearance. Heard on the 30 th day of Jue, 2016. Dated at the City of Edmonton, Alberta this 6 th day of July, 2016. J.B. Veit J.C.Q.B.A. Appearances: Ike Ulasi, Fix & Smith Law Office for the Applicant/Defendant Suad Jama