Bourque v Tensfeldt, 2017 ABQB 519

Court of Queen’s Bench of Alberta Citation: Bourque v Tensfeldt, 2017 ABQB 519 Date: 20170825 Docket: 1503 12891 Registry: Edmonton Between: Stephanie Bourque Plaintiff - and - Sylvia O. Tensfeldt Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] The defendant Sylvia Tensfeldt is an Edmonton lawyer sued by Stephanie Bourque, once the wife of Tensfeldt’s former client and Bourque’s former spouse. The parties were long ago divorced.

Property issues were resolved soon after the divorce. Bourque now takes issue with Tensfeldt’s alleged role giving rise to the divorce and related matters. Tensfeldt applies for an order striking Bourque’s pleadings. For reasons which follow, the application is granted.

Summary of events [ 2 ] Bourque sued Tensfeldt in a Statement of Claim filed August 28, 2015. The claim alleges a great many things. The core of it is alleged defamation, made worse by alleged extortion, conspiracy and deceit in relation to matrimonial property and spousal support. Damages are sought in excess of $5.2 million. [ 3 ] Tensfeldt defended on September 14, 2016. She denies any liability. She also pleads a limitations defence, alleging that all matters of substance were concluded by mid-August, 2013. And she pleads that the claim was not served in time. On the record before

me, there is at least an air of reality to each of the latter defences. [ 4 ] Soon after defending, Tensfeldt obtained an order from Master Schulz on October 5, 2016 barring further proceedings in the action owing to a lack of service in accordance with the Rules of Court, and ordering costs of $5,550. [ 5 ] Bourque appealed the October 5, 2016 order. She has also filed eight subsequent applications: in 2016 - on October 14, 31, November 4, 28 and December 12; and in 2017 – on April 28, May 12 and August 4.

In support of these various applications, Bourque has filed 14 affidavits: in 2016 – on October 14, 24, 31, November 7, 30, December 6, 12; and in 2017 – April 28, May 3, 15, 26, June 22, August 4, 9. (In addition, Bourque has filed at least two applications in the Court of Appeal, each supported by filed affidavits.) [ 6 ] On November 23, 2016, Tensfeldt’s counsel sought to question Bourque on her then-filed affidavits.

A Notice of Appointment and conduct money were served on Bourque on October 24, 2016 (by email) and on October 26, 2016 (by recorded mail). [ 7 ] Bourque did not attend in response to the Appointment. [ 8 ] On December 8, 2016, Justice Clackson ordered that Bourque attend the offices of Tensfeldt’s counsel on December 12, 2016 for purposes of questioning. [ 9 ] Bourque did not attend the December 12, 2016 questioning in response to Justice Clackson’s order. [ 10 ] Through counsel Tensfeldt applied for, amongst other things, an order holding Bourque in contempt for failing or refusing to comply with Justice Clackson’s December 8, 2016 order. [ 11 ] Justice Ackerl heard the contempt application on May 18, 2017.

Bourque was declared to be in civil contempt owing to her non-attendance as ordered by Justice Clackson. Her action was stayed pending the purging of her contempt. Her contempt could be purged by attending questioning by July 30, 2017. Certain accommodations favourable to Bourque were set out in Justice Ackerl’s May 18, 2017 order. [ 12 ] Bourque appealed the May 18, 2017 order. Bourque also applied to a justice of the Court of Appeal for an order staying enforcement of Justice Ackerl’s order. The stay application was heard July 12, 2017.

In reasons filed July 17, 2017 (and reported at Bourque v Tensfeldt , 2017 ABCA 236 ), Justice Greckol dismissed the stay application. Justice Greckol also ordered that Bourque attend on each of the dates of July 19, 20 and 25, 2017. At para 18 of the stay decision, Justice Greckol noted Bourque’s assurance that she was available on at least those three dates. [ 13 ] Bourque did not attend questioning in response to Justice Greckol’s order. [ 14 ] Through counsel Tensfeldt applied for an order, amongst other things, striking Bourque’s pleadings on account of Bourque’s ongoing contempt.

That application was returnable initially on July 27, 2017. It was then adjourned until August 10, 2017. On August 4, 2017 Bourque filed a response to this most recent contempt application. Bourque also filed a new application on August 4, 2017, and subsequently on August 9, 2017, an affidavit in response.

Analysis and decision [ 15 ] The application before me is for relief owing to Bourque’s ongoing, unpurged contempt flowing from Justice Ackerl’s May 18, 2017 order. [ 16 ] Bourque resists the application on a number of grounds, but fundamentally her objections are two-fold: she disputes that she has ever refused to attend questioning; and she maintains that she is disabled both physically and – by reason of medications and other conditions, cognitively – and cannot therefore engage conventionally in the litigation process other than through written answers to questions.

Has Bourque refused, or merely failed, to attend questioning? [ 17 ] In her submissions before me on August 10, 2017 Bourque was adamant that she has never refused to attend questioning. The record, including the attendances pre-dating Justice Ackerl’s order, clearly suggests otherwise. [ 18 ] I pause to note that in analysing Bourque’s arguments I am not revisiting Justice Ackerl’s May 18, 2017 decision holding her in contempt.

However, the events leading up to the May 18, 2017 order are part of the context I must consider in assessing the relief sought in the application before me. [ 19 ] It is important also to note that at issue is questioning under

Part 6 of the Alberta Rules of Court AR 124/2010. [ 20 ] Rules 6.7, 6.8 and 6.14-6.20 apply and entitle the defendant to seek to question Bourque orally under oath as a party who has filed an affidavit in support of or in response to an application. [ 21 ] Under

Part 6 there is no equivalent, except by analogy, to

Part 5 of the Rules , and in particular r 5.28 dealing specifically with “Written questions”. Rule 5.28 exists alongside r 5.24, which provides that unless the parties agree or the Court otherwise orders,

Part 5 questioning to which a party may be entitled “must be oral”. [ 22 ] I note that r 6.11(1)(

c) does specifically allow the Court to consider evidence by way of written answers to questions under

Part 5. It was not argued before me, and I make no finding, whether written answers to questions other than under

Part 5 are admissible in a

Part 6 application. I do not hesitate to find however, and at the risk of stating the obvious, that oral questioning under oath is at least

the default mode of questioning under

Part 6, with written interrogatories as contemplated under r 5.28 being, at most, the exception. [ 23 ] This threshold discussion is relevant inasmuch as Bourque insists she has not refused to attend questioning because she has offered to be questioned by way of written interrogatories. Given the Rules , and in the circumstances of this application, I find that Bourque’s insistence on written interrogatories amounts to a refusal to attend

Part 6 questioning. [ 24 ] As noted earlier, the defendant served Bourque with an appointment and conduct money for a November 23, 2016 questioning on affidavits. Bourque initially responded by her letter to defendant’s counsel dated October 28, 2016. It cannot be read other than as a refusal to be questioned other than by way of interrogatories. [ 25 ] To a similar effect is Bourque’s letter to defendant’s counsel dated December 9, 2016, the relevant parts of which follow: 1.

Appointment for Oral Questioning Although the court has suggested that oral questioning be performed and that I cover the cost of such venture, this has not been thoroughly considered and is not possible at this time…. Further, the fact is that the affidavits consist only of factual detail that will not change upon questioning and there is nothing to learn from questioning. There is also the fact that there have been no questions provided to me in advance, and I need to have these such that I can prepare in advance of such an appointment….

For these reasons, I will not be attending the suggested appointment on December 12, 2016. This is not being done to violate any court order, but there is no possible manner for me to afford to pay for such task and therefore this needs to be cancelled… To reiterate, at this time I am not able to afford to pay for the costs of oral questioning. This will cause me undue financial hardship and is simply impossible at this time.

Either written questions or postponing such an appointment are the reasonable alternatives that I can suggest at this time… this should not be construed as an intentional violation of the court order. There is just no money to put forward to cover this rendering this [is] an impossible request to force upon me at this time. [ 26 ] Though no transcript of the December 8, 2016 appearance is before me, it is apparent that Justice Clackson did more than “suggest” that Bourque attend for questioning.

The order from the December 8, 2017 appearance could not be clearer; Bourque knows it too, as she did not wish to be heard to be ‘intentionally’ breaching the order. Further, based on correspondence of defendant’s counsel forming part of the record before me, I am satisfied that Justice Clackson ordered Bourque’s personal appearance, and told her in chambers that she could not insist on “written questioning”. What’s more, on the record before me, there is no merit to Bourque’s position that by reason of financial hardship she was unable to prepare for and/or attend questioning.

She has been self -represented in this action throughout. She was served with appropriate conduct money. What other ‘money was needed to be put forward’ by her is not identified in the record before me. [ 27 ] Bourque wrote a further letter to defendant’s counsel, dated December 10, 2016. It is further evidence of her refusal to attend questioning. She confirms that she has “never agreed to Oral Questioning”. She refers to her earlier letters “each [of which] has had specific clear statements that I WILL NOT BE APPEARING OT [sic] APPOINTMENT” (capitals in original).

She then adds that she does not agree to oral questioning because, as she states: For health reasons I am unable to sit in specific types of chairs, and these hurt my back. No attendance at Oral Questioning appointment. [ 28 ] On December 12, 2016 – the day Bourque was ordered to attend questioning – she attended at the Law Courts to swear an affidavit and file an application returnable December 15, 2017.

The application is styled “Application by Stephanie Bourque – Ex Parte RE: Defense Counsel & Safety Issues”. [ 29 ] Of immediate relevance arising from the December 12, 2016 application, Bourque indicates that “I did cancel the December 12, 2016 Appointment for Questioning…” She says further that she “stated several times… that [I] would not be attending the Oral Questioning”.

In the December 12, 2016 affidavit accompanying her application, she states that in three separate letters she proposed an alternative to oral questioning: “Take note in each of these letters that I do cancel each and every Appointment for Questioning”. [ 30 ] Also relevant are Bourque’s further objections to attending oral questioning – that she is “not comfortable” attending defence counsel’s office alone, that she has no one who can accompany her, that defence counsel has been demanding and threatening and that she is “fearful for my personal safety”. [ 31 ] There is nothing in her December 12, 2016 affidavit – nor indeed in the record before me – that supports the conclusion that Bourque’s subjective fears are objectively reasonable. [ 32 ] The December 12, 2016 affidavit attaches a series of letters, one dated December 6, 2016, and two dated November 25, 2016.

The three letters are directed to defendant’s counsel, and are attributed to one Stephen Bourque. He is identified as Stephanie Bourque’s son. The letters are not personally signed; two are digitally signed, one has no signature at all. One of the November 25, 2016 letters states that Stephen Bourque is “assisting” her mother in the action. [ 33 ] All three of the letters attributed to Stephen Bourque are aggressive and critical of defendant’s counsel. The letters take positions and make argument on the facts and law which the apparent author, Stephen Bourque, says exist and applies to the action.

On their face, the author of the letters is clearly legally representing Stephanie Bourque in the action. And so to the extent these letters were written and sent by a non-lawyer on behalf of Stephanie Bourque, their author is arguably in breach of s. 106 of the Legal Profession Act RSA 2000 c L-8. [ 34 ] The Legal Profession Act aside, these letters attributed to Stephen Bourque have little if any value as evidence before me. Indeed, in her own December 12, 2016 affidavit, Stephanie Bourque fails to identify or distinguish the letters attributed to Stephen

Bourque from her own letters. In the context of her ongoing refusal to attend oral questioning, Bourque simply states: “I did respond with a reasonable alternative, via 3 separate letters. These are attached as Exhibit #2”. [ 35 ] (I pause to acknowledge that in a subsequent affidavit of May 26, 2017, Bourque more fully identifies letters which she attributes to her son Stephen Bourque.) [ 36 ] Bourque’s affidavit filed April 28, 2017 is further evidence of her position on attending oral questioning.

At para 18(3) she states that she did attempt to attend November 23 and December 12, 2016 appointments for questioning, but was unable to locate defendant’s counsel’s office; at para 18(7) however she states that with regard to both questioning dates she “did alert [counsel] in advance that I would not be attending and to cancel the Reporter”. [ 37 ] The April 28, 2017 is revealing also with regard to what may be Bourque’s bottom line position with regard to questioning (capitals in original): Given that the Defense has built its case through reliance upon SHARP Practice and presenting misleading and incomplete information to the court that has literally caused the current Oral Question issue to be a Non-Issue given the basis upon fraudulent and deceptive conduct that renders the present matter for all purposes VOID. … For this to have been permitted to progress to a point where I am being made to answer to allegations of ME being held in Contempt of Court is RIDICULOUS, ABSURD, OUTRAGEOUS.

This is a display of deplorable conduct that is not consistent with being a Professional in any such field recognized as such. This is conduct that is borderline on criminal when the issues of Elder Fraud and Abuse are applied to such conduct… [ 38 ] Bourque repeats her evidence, in her affidavit filed May 3, 2017, that she was unable to find defendant’s counsel’s office on both November 23 and December 12, 2016. She states that without directions, or without a cell phone or GPS, she was unable to find the law office.

This averment by Bourque can easily be dealt with: as noted by defendant’s counsel, the address of the law firm in question is identified repeatedly in correspondence and filed documents. Without more, it is implausible and frankly impossible to believe that Bourque was unable to locate the law office, and on not one but two separate occasions.

What’s more, there is little reason to believe that Bourque looked for but was unable to find the law firm, when she had repeatedly stated that she had no intention to attend questionings in the first place. [ 39 ] The May 3, 2017 affidavit also revisits Bourque’s health-related concerns. In the record before me, such concerns were first raised in her letter to defendant’s counsel dated December 10, 2016, mentioned above. On May 3, 2017 she said that that owing to unspecified “medical conditions” it would not be possible to sit in one place for two hours, nor would it be safe to drive home afterwards.

She stated that she has requested a letter from her family physician. The content of these letters, including those produced only after Justice Ackerl’s May 18, 2017 contempt order, is canvassed later in these reasons. [ 40 ] On May 18, 2017 Justice Ackerl found Bourque in contempt of Justice Clackson’s December 8, 2016 order; she was given until July 30, 2017 to attend oral questioning as a means of purging her contempt. Health-related issues/medical evidence [ 41 ] As noted above, Bourque has long raised certain medical concerns in opposition to oral questioning.

On the evidence, the concerns raised prior to May 18, 2017 were unsubstantiated. Soon after the May 18, 2017 order, however, Bourque raised new medical issues that she says have since made it impossible for her to attend the questioning by July 30, 2017. [ 42 ] The starting point is a letter Bourque obtained from her family physician Dr. Dennis Mung dated June 15, 2017. The letter notes a number of medical conditions, then recommends that Bourque not be “forced” to attend oral questioning. The letter does not particularly associate the medical conditions with Dr. Mung’s recommendation against oral questioning.

The closest such association is Dr. Mung’s recommendation that questions be put to Bourque in writing, “…enabling her to have time to adequately answer them when she does not feel stressed”. [ 43 ] Dr. Mung’s June 15, 2017 letter was preceded by a briefer letter dated May 17, 2017. That letter says no more than that owing to Bourque’s “health issues” she is precluded from sitting for any extended period of time. In her affidavit of May 26, 2017, Bourque refers to yet another letter from Dr. Mung, but dated September 11, 2011. She implies that for the reasons articulated in the 2011 letter, Dr.

Mung now recommends that Bourque not attend oral questioning. However, that is plainly not what Dr. Mung says in his May 17, 2017 letter. Nor does the September 11, 2011 letter bear such an

interpretation. It fails even to mention a back condition, or any issues with sitting for extended periods of time. [ 44 ] It appears that Dr. Mung’s June 15, 2017 letter was before Justice Greckol at the July 12, 2017 stay application. Justice Greckol nevertheless concluded that questioning should proceed on the dates of July, 19, 20 and 25, 2017, arranged soon after Justice Ackerl’s May 18, 2017 order. [ 45 ] Bourque now also relies on an x-ray of July 5, 2017 and, amongst other things, a finding of a “new compression fracture” at L3.

Bourque attributes this finding to a fall she says she sustained on July 4, 2017 at the Edmonton Law Courts. There is no medical evidence however that the ‘new compression fracture’ was sustained on July 4, 2017. [ 46 ] Bourque also now relies on an alleged pinched nerve. In her written submissions before me on August 10, 2017, she refers to a pinched nerve in her left leg; later in the same written submission she refers to a pinched nerve in her upper right leg. That discrepancy aside, there is no independent evidence of a pinched nerve in either of Bourque’s legs. Dr. Mung does not address it.

Nor is a history of

any such symptom mentioned in the July 5, 2017 x-ray report. Nor does the same report mention any finding of a pinched nerve. [ 47 ] Justice Greckol’s decision coming out of the July 12, 2017 stay application fails to mention an alleged pinched nerve, or indeed any alleged new injury, whether sustained on July 4, 2017, or on some other occasion. July 18, 2017 materials [ 48 ] Bourque has sworn an affidavit July 18, 2017 in support of a further stay application before Justice Greckol now scheduled for in the Court of Appeal September 5, 2017.

She also had filed a July 18, 2017 Memorandum of Argument, also in the Court of Appeal. These court records were brought to my attention by defendant’s counsel. I am mindful that they are filed in support of an application in the Court of Appeal which will be heard in the near future. Nevertheless, they contain information that is clearly relevant to the application before me, and as such I have given these court records some consideration. [ 49 ] In her July 18, 2017 affidavit, Bourque alleges the July 4, 2017 fall at the Law Courts.

She notes that she received the July 5, 2017 x-ray results on July 10, 2017. [ 50 ] She does not address in her July 18, 2017 affidavit if she put the x-ray results before Justice Greckol, or if she said anything at the July 12, 2017 stay application about her alleged new injury and the severe symptoms she says arise from it. [ 51 ] It is her unsworn Memorandum of Argument, also filed July 18, 2017, that Bourque refers to her unsuccessful attempts, on July 11, 2017, to file further evidence regarding the alleged July 4, 2017 spinal injury. [ 52 ] In the same Memorandum, but notably not in her sworn affidavit, that Bourque refers to a visit with Dr.

Mung on July 13, 2017. She refers to “four referrals for various further imaging procedures and Orthopedic Specialists for treatment”. None of these are mentioned by name or date. She refers to being prescribed “high dose pain medication for severe and incapacitating pain that itself does cause impairment of judgement and drowsiness”. Later in the same Memorandum, she refers to “mind altering prescription medications”.

Again, no details are provided, and again none of this information is given under oath. [ 53 ] Bourque finally notes, in the Memorandum, that owing to the release of Justice Greckol’s reasons on July 17, 2017, she had effectively only one-day’s notice of the July 19, 2017 questioning date ordered in those reasons. Bourque says that was inadequate notice for her to prepare to be questioned. She also says that medical appointments had been scheduled to deal with her spinal fracture that conflicted with the dates of July 19 and 20, 2017.

She does not say when these appointments were scheduled – keeping in mind that on July 12, 2017 Bourque told Justice Greckol that she was available to be questioned on July 19, 20 and 25, 2017. (Bourque says nothing in any of these July 18, 2017 filings about the July 25, 2017 date also ordered for questioning.) Finally, Bourque complains of inadequate conduct monies, and again that “the pain medication currently prescribed does not permit for the Applicant to partake in any activities that have legal implications such as the questioning appointment”.

August 4 and 9, 2017 affidavits [ 54 ] Squarely in response to the application before me, Bourque brought forward two additional affidavits filed August 4 and 9, 2017. [ 55 ] I have noted above Bourque’s written submissions on August 10, 2017 regarding a pinched nerve. She also mentions a pinched nerve in her leg in her August 4, 2017 affidavit.

She also alleges a “serious adverse drug reaction” and pain medication that “causes significant mental impairment” – neither of which is supported by any other evidence. [ 56 ] As to the timing of ordered questioning dates, at paragraphs 10 and 11 of her August 4, 2017 affidavit Bourque states: 10. Defence Counsel was further provided notice in advance that I would be unable to attend the June 19, 20, and 25 dates he had himself set without consulting me on my availability, due to the medical appointments that had been set for me and could not be changed. 11.

A true and complete copy of the June 19, 20 and 25 medical appointment email messages which confirm that I was unable to attend appointments on these dates due to medical necessity that was outside of my control are attached as Exhibit #4. [ 57 ] Bourque’s reference to “June 19, 20 and 25” are presumably meant to refer to July 19, 20 and 25. What’s more, Exhibit 4 to her August 4, 2017 affidavit refers only to a July 25, 2017 Diagnostic Ultrasound Imaging Appointment.

There is no information regarding when the appointment was made – mindful again of Bourque’s assurance before Justice Greckol that she was available on July 19, 20 and 25, 2017. [ 58 ] Exhibit 3 of Bourque’s August 4, 2017 affidavit refers to two documents of interest. The first is a letter dated July 11, 2017 to defendant’s counsel, and attributed to Dr. Stephen Bourque. The second is a July 20, 2017 email addressed from Dr. Stephen Bourque, to defendant’s counsel, and copied to Stephanie Bourque.

Both the letter and email are signed “Stephen Bourque for Stephanie Bourque”. [ 59 ] For what it’s worth, the July 11, 2017 letter to counsel states that owing to her fall on July 4, 2017, “it is impossible for [Stephanie Bourque] to attend with you on July 11, 2017, and most likely anytime in the foreseeable future”. It is not apparent that the July 11, 2017 letter was copied to Stephanie Bourque. [ 60 ] As to the July 20, 2017 email, the following is attributed to Dr. Stephen Bourque: I wanted to let you know that Stephanie is unable to attend for the questioning appointment today.

She did not read your email until after 6 pm yesterday evening as she was at a medical appointment most of the day. So, sorry for the short delay in responding. FYI. She does

further have appointments today, and also on the 25 th . These were not chosen dates, but rather were provided with no option to choose any alternative dates. Her physician did stress to her that the severity of the recent spinal fracture does require prompt attention which does take ultimate priority over all other matters. So, she is following Doctors Orders. [ 61 ] Assuming that Dr.

Stephen Bourque is indeed the author of this correspondence, and assuming it is properly before me as evidence of anything, I note the following lack of supporting detail: no specific appointments noted, for what, with whom, or when first scheduled; and nothing is offered regarding the severity of the back injury, or the prompt attention it apparently required. [ 62 ] Turning to her August 9, 2017 affidavit, it is16 pages and 54 paragraphs in length, much of it being repetitive of Stephanie Bourque’s statements made in earlier affidavits.

Bourque does attach a further medical record, an August 3, 2017 radiology report of her pelvis and left hip showing mild degenerative changes at her left hip, diffuse osteopenia, and additional non acute findings. Bourque also repeats, at paragraph 20 , the alleged fracture of her spine, but now alleges a “Pinched Nerve and/or Fracture Femur Right leg”, being prescribed three pain medications, and suffering a “serious debilitating drug reaction to one medication”.

No detail or substantiating records accompany these allegations. [ 63 ] In stark contrast to this history of alleged medical disabilities was Bourque’s own presentation before the court the morning of August 10, 2017. Bourque was able to attend court. She was able to participate without evident distress – physically or cognitively – from about 9 am till past noon. With the exception of a short break about mid-way through, Bourque sat and/or stood for the entire half- day’s proceedings. She did complain that she could hardly sit, and was on heavy medication.

Yet she made oral submissions, rebutted those of defendant’s counsel, and was appropriately responsive to questions from the court.

In sum, her presentation on August 10, 2017 was entirely inconsistent with being disabled from the litigation process by any physical of cognitive shortcomings. [ 64 ] Also speaking against such ‘litigation disability’ is the fact that since July 4, 2017 – and indeed for a long time before then – Bourque has been able to prepare and file at least two court applications, and prepare, swear and file at least four affidavits in support. [ 65 ] Having reviewed every affidavit sworn by Bourque in this action (and her July 18, 2017 affidavit in the Court of Appeal), I conclude that I am unable to accept her sworn evidence at face value if only owing to the very fact that she has resisted all efforts to be questioned on them, but also because to the extent the affidavits swear to facts, they are at times contradictory, and at other times implausible.

I am mindful of the danger of deciding credibility based on affidavits alone. But equally, the court is not a rubber stamp for every unsubstantiated and unexamined allegation a party chooses to place before it. (Another remedy would have been to consider striking the affidavits, or some of them, outright.) This is particularly the case when at issue is whether the evidence supports a party's cause that she should be purged from an earlier finding of contempt.

This all being said, I have viewed Bourque’s sworn evidence differently where it is supported by some independent evidence. [ 66 ] The independent medical evidence before me hardly supports Bourque’s position that she should not or could not attend oral questioning. It utterly fails to do so for the period of time leading up to the alleged July 4, 2017 fall and spinal fracture.

And even following the alleged fall and injury, the evidence is strikingly inadequate, especially given the context of Bourque’s obligation to purge her contempt by July 30, 2017. [ 67 ] In the post-July 4, 2017 period, Bourque refers only to one specific medical appointment that conflicted with her obligation to attend questioning. That was the July 25, 2017 ultrasound appointment which is at Exhibit 4 of Bourque’s August 4, 2017 affidavit. [ 68 ] The only other evidence is that attributed to Dr. Stephen Bourque, as mentioned above, being the July 20, 2017 email to defendant’s counsel.

The evidence attributed to Dr. Bourque does not satisfy me that in fact Stephanie Bourque was unable to attend July 19 or 20 questionings. The evidence attributed to Dr. Bourque is not sworn by him. Nor, inexplicably, is it sworn by Stephanie Bourque herself.

In any event, the evidence is unacceptably vague and uncertain, again given the imperatives arising from Justice Ackerl’s order. [ 69 ] Even as to the July 25, 2017 ultrasound appointment, there is no evidence with regard to when it was first scheduled, and no explanation for the disconnect between the date of the appointment and Stephanie Bourque’s commitment to Justice Greckol, on July 12, 2017, that she was available for questioning on July 25, 2017, amongst other dates.

Nevertheless, the independent evidence of the ultrasound appointment supports Bourque’s cause that she was unable to attend questioning on that date. The August 15, 2017 affidavit [ 70 ] Since the parties’ August 10, 2017 appearance before me Bourque has sworn yet a further affidavit filed August 15, 2017. It is the third affidavit filed since the defendant’s application to strike her pleadings.

Though not in compliance with the Rules, and though largely comprised of argument, to give Bourque every benefit of the doubt my consideration of the facts set out in the August 15, 2017 affidavit follows. [ 71 ] Bourque says the August 15, 2017 affidavit is necessary in that she had insufficient time to respond to the defendant’s application. As will be noted, I have concluded that Bourque was served with the defendant’s application on July 28, 2017 by email, and on August 3, 2017 by recorded mail. [ 72 ] Bourque objects to the defendant’s draft bill of costs provided on August 10, 2017.

I note however that with regard to claimed fees, a substantially similar draft bill of costs was attached to the defendant’s affidavit filed April 7, 2017. Claimed disbursements appear to have been brought to Bourque’s attention only in the August 10, 2017 draft bill of costs. I have taken Bourque’s objections into account in my assessment of costs, which is toward the end of these reasons. [ 73 ] In order to put it into evidence, Bourque has exhibited to her August 15, 2017 affidavit a copy of her self-described “Cheat Sheets” provided to me at the August 10, 2017 hearing.

As it is now in evidence, I repeat my earlier observations coming out of her written submission: that Bourque alleges a lumbar spine fracture but also a pinched nerve in her left leg (at page 1) or in her right upper leg (at page 5); there continues to be no independent evidence of a pinched nerve in either leg; the balance of the “Cheat Sheets” exhibit,

and of the August 15, 2017 affidavit, is repetitive of Bourque’s evidence filed previously. If nothing else, the August 15, 2017 affidavit,which is nine pages and 30 paragraphs in length not including six exhibits, is some further evidence that Bourque is able to function inthe litigation process. Remaining issues [74] Bourque objects to a lack of service leading to defendant counsel’s July 27, 2017 appearance. That objection fails in light ofproper service leading to the August 10, 2017 application before me. [75] Bourque objects to service by email on July 28, 2017 leading to the August 10, 2017 application.

That objection fails in lightof service by recorded mail effected on August 3, 2017. It fails too in light of my order of July 27, 2017, permitting service by email. Finally, there is good reason to believe that email service on July 28, 2017 was effective, given that Bourque’s affidavit filed August 4,2017, is dated August 1, 2017.

She must therefore have received service by email prior to the recorded mail service on August 3, 2017. [76] Bourque objects that the defendant’s application is premature, in that it was returnable July 27, 2017, and thus prior to theJuly 30, 2017 questioning deadline imposed by Justice Ackerl. This objection fails in light of the fact the July 27, 2017 application wasadjourned to August 10, 2017.

It fails also in light of the absence of evidence that Bourque was prepared to attend on at least two of thethree dates ordered for oral questioning prior to July 30, 2017. [77] Bourque objects that given Justice Ackerl’s order staying the action, the defendant too should be prevented from bringing anyapplications in the action. That objection fails if only because the impugned application comes after Bourque’s failure to purge hercontempt.

That the action remains stayed from the plaintiff’s perspective – and owing to the plaintiff’s unpurged contempt – cannot barthe defendant from pursuing a remedy flowing from that very unpurged contempt. [78] Bourque objects that Justice Ackerl’s order having been appealed, I have no jurisdiction to hear the defendant’s application. That objection fails if only because Bourque’s application in the Court of Appeal for a stay of Justice Ackerl’s order was dismissed onJuly 17, 2017.

And as noted above, in the circumstances I am not persuaded that I should avoid deciding the application before me byreason of Bourque’s further application in the Court of Appeal scheduled to be heard on September 5, 2017. [79] Yet further objections are raised in Bourque’s August 4, 2017 application.

They do not arise in response to the defendant’sapplication currently before me, or have already been addressed, or are not supported by any credible evidence, or are not properly beforeme in light of Justice Ackerl’s order generally staying the action. [80] Finally, it must be noted that in various places in her sworn affidavits the question of settlement discussions is raised,presumably as a reason this application should not proceed. It appears that Bourque expressed much the same sentiment to JusticeGreckol at the July 12, 2017 stay application: Bourque v Tensfeldt, 2017 ABCA 236, at para 17.

However, as noted to the parties inchambers on August 10, 2017, I find that without more, I should have no regard for any settlement discussions in what I have to decideon the application before the court.

Law of contempt [81] It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonabledoubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Demb vValhalla Group Ltd, 2016 ABCA 172, at para 42, citing Carey v Laiken, 2015 SCC 17 at para 38, [2015] 2 SCR 79. [82] The application before me is not for a new finding of contempt but rather for a further sanction for Bourque’s ongoing,unpurged contempt.

The sanction of striking pleadings may follow the refusal of a party to comply with court orders and Rules of Court:Koerner v Capital Health Authority, 2011 ABCA 289, leave denied 2011 SCCA #559; Trigg v Lee-Knight, 2009 ABCA 224. [83] As mentioned, I have had close regard for the circumstances giving rise to Justice Ackerl’s May 18, 2017 contempt findingbecause those same circumstances are relevant to the application now before me.

And though it is unnecessary for me to say so, theCarey test is clearly met on the evidence of Bourque’s refusal to attend the December 12, 2016 questioning as ordered by JusticeClackson. [84] I have had equally close regard for the circumstances that have unfolded since the May 18, 2017 order. I have found thatthough by a thin margin, the evidence shows that Bourque was reasonably unable to attend questioning on July 25, 2017. That said, theevidence provides no credible justification for Bourque’s non-attendance on the July 19 and 20, 2017 questioning dates.

She eithersimply refused to attend – as she has in the past – or for reasons best known to herself, she has inexplicably failed to justify on anyreasonable basis her non-attendance. [85] As to sanction, again the court in Demb v Valhalla noted as follows, at para 55: 55 Contumacy, or lack thereof, goes to the penalty to be imposed after a finding of contempt: Carey at para 38. In assessingcontumacy, context is important. In McDonald Estate, 2012 ABQB 704 , 552 AR 308, the court, at para 55, lists a number offactors to be taken into account in determining the penalty for contempt. These include: 1.

Whether there was deliberate defiance of a Court order or whether there was an inadvertent failure to comply with the Courtorder; 2. The role of legal counsel; 3. Where there has been a failure to give discovery, the object of the exercise is more to secure the discovery rather than to punish;

4. Attempts to purge contempt or to apologize are relevant; 5. The entire context in the history of the litigation; 6. The amount of reasonable thrown-away costs properly incurred; 7. The nature of the contempt; and 8. The degree of culpability of the contemnor. See also Michel v Lafrentz, 1998 ABCA 231 , 219 AR 192 at paras 31-32 and Dreco Energy Services Ltd v Wenzel, 2005 ABCA185 , 371 AR 11 at para 12. [86] Applying these factors: 1.

Whether there was deliberate defiance of a Court order or whether there was an inadvertent failure to comply with the Court order; The original contempt is clearly based on a finding of deliberate defiance of Justice Clackson’s order. And on the record before me, thebalance of Bourque’s behavior since May 18, 2017 cannot be called an ‘inadvertent failure to comply’ with Justice Ackerl’s order, againwith the possible exception of the July 25, 2017 questioning date. 2. The role of legal counsel; Bourque has been self-represented throughout.

On the record before me, defendant’s counsel has acted without fault; as in Koerner, atpara 7, the record does not disclose that Bourque was unfairly dealt with because she is self-represented. 3. Where there has been a failure to give discovery, the object of the exercise is more to secure the discovery rather than to punish; Questioning on affidavits can be likened to discovery, and so the object of the exercise is more to secure questioning than to punish.

Buton the record before me there is little reason to conclude that Bourque will or can be convinced by a lesser sanction to engageappropriately in the litigation or to follow court orders. 4. Attempts to purge contempt or to apologize are relevant; The record as set out in these reasons speaks for itself regarding the paucity and indeed credibility of Bourque’s efforts to purge hercontempt. 5.

The entire context in the history of the litigation; The record as set out also speaks for itself as to the merits of the action, the arguable defences based on the Limitations Act and lateservice, the October 5, 2016 order of Master Schulz, the proliferation of applications and affidavits by the plaintiff and, not least, thedamaging contents of those pleadings. 6. The amount of reasonable thrown-away costs properly incurred; As noted below, the defendant has incurred disbursements of at least $2,265.52 plus GST, and properly claims costs of 18,000, plusGST. 7.

The nature of the contempt; The contempt arises from Bourque’s refusal to be questioned on numerous affidavits filed initially as part of her effort to overcome theeffect of the order of Master Schulz made early in the proceedings, then Justice Ackerl’s order finding contempt. The contempt is of acourt order and could not be clearer. Nor could it be clearer that the contempt remains unpurged. 8. The degree of culpability of the contemnor. Again, the record speaks for itself regarding Bourque’s stubborn refusal to be questioned, or to provide credible reasons for why she hasfailed to purge her contempt.

And while in contempt, if not before, Bourque has continued to use filed applications and affidavits as,amongst other things, vehicles of abuse against the defendant and her counsel. [87] Virtually all of these factors weigh in favour of a serious sanction in light of Bourque’s ongoing contempt. [88] The question must be asked whether a sanction less severe than striking pleadings is appropriate. The action is alreadystayed. No one seriously suggests that imprisonment is appropriate. Should there be a further order for costs? Bourque is alreadysubject to Master Schulz’ order for $5,550 in costs.

As early as her affidavit filed October 24, 2016, Bourque stated that she was unableto pay those costs awarded by Master Schulz. Elsewhere she has expanded on her impecuniosity. There is no reason to believe that afurther order for costs would have any impact. [89] An appropriate sanction therefore for her ongoing contempt, in all of the circumstances, is the remaining sanction referred toat r 10.53(1)(i) – that the plaintiff’s Statement of Claim be struck, with costs. [90] Through counsel Tensfeldt produced a draft Bill of Costs. It is based on double column 5, for all things attracting

schedule Cfees since December 8, 2016. A claim is made for the July 12, 2017 appearance before Justice Greckol. Fees properly claimed are$7,500 (x 2) = $15,000 plus GST of $750. Given the contents of the pleadings, including the numerous affidavits filed, damaging both tothe defendant and to counsel for the defendant, double column 5 costs are more than appropriate. Disbursements including GST are

claimed of $2,817.08. I allow the disbursements claimed for transcripts, and for court reporters’ fees for Certificates of Non-Attendance, with the exception of the July 25, 2017 questioning date. I make no order regarding the further disbursements claimed, though the defendant may of course pursue such an order on notice to the plaintiff. The earlier costs of $5,550 are in addition to this assessment. Heard on the 10 th day of August, 2017. Dated at the City of Edmonton, Alberta this 25 th day of August, 2017. Peter Michalyshyn J.C.Q.B.A. Appearances: Stephanie Bourque Self-Represented for the Plaintiff Donald J. McGarvey QC McLennan Ross LLP for the Defendant