Kamal v Brandon, 2021 ABQB 819

Court of Queen’s Bench of Alberta Citation: Kamal v Brandon, 2021 ABQB 819 Date: 20211015 Docket: 2003 15901 Registry: Edmonton Between: Abitha Kamal and Akshayaa Kamal Applicants - and - Twila Chantelle Brandon and Bryan James Smith Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.S. Dunlop _______________________________________________________ 1.

Overview [ 1 ] Abitha Kamal and Akshayaa Kamal seek a finding of contempt and a warrant for the arrest of Twila Brandon and Bryan Smith for their failure to comply with a court order to provide financial statements of debtor. The Kamals are judgment creditors of Ms. Brandon and Mr. Smith as a result of an order of a tenancy dispute officer which was issued on October 20, 2020 and filed in this court on October 21, 2020. The order grants judgment in the total amount of $4,251.41 for damages to a rental property and unpaid utilities.

[ 2 ] The Kamals brought several applications and obtained several orders between March and August 2021 in an attempt to obtain financial statements of debtor from Ms. Brandon and Mr. Smith. None of the applications and orders has been personally served on Ms. Brandon or Mr. Smith. Instead, the Kamals have served an email address, in accordance with a substitutional service order granted on November 5, 2020. [ 3 ] The issues on this application are: • Do Ms. Brandon and Mr.

Smith have actual knowledge of the order that they provide financial statements of debtor and actual knowledge of the application before me? • If so, would arresting them be a proportional and appropriate sanction for their contempt? [ 4 ] I find that, while Ms. Brandon and Mr. Smith have been served by email in accordance with a substitutional service order, they have not been personally served and there is insufficient evidence that the financial statement order and contempt application came to their attention. I also find that it would not be appropriate to order their arrest.

I dismiss the application, with leave for the Kamals to apply again, on better evidence. 2. Procedural History [ 5 ] The Kamals obtained two orders against Ms. Brandon and Mr. Smith from two tenancy dispute officers. The first order, dated August 20, 2020, names Abitha Kamal as the applicant landlord and the second, dated October 20, 2020, names both Abitha Kamal and Akshayaa Kamal as the applicant landlord. Each order was filed in the Court of Queen’s Bench the day after it was issued.

The first order was assigned court file number 2003 13129 and the second was assigned court file number 2003 15901. [ 6 ] According to the August 20, 2020 order, Ms. Brandon made submissions at the hearing on that date. The order is silent regarding whether Mr. Smith attended. The August 20, 2020 order includes the following provision: The Tenant(

s) decline to provide a forwarding address to the Landlord. Therefore, if the Landlord wishes to serve the Tenant(

s) with a Notice of Hearing for another RTDRS application, it may be served via email to twibran@gmail.com. [ 7 ] According to the recitals of the October 20, 2020 order, service of the application was done by email, and neither Ms. Brandon nor Mr. Smith attended the hearing that day. The October 20, 2020 order awards judgment in favour of the Kamals against Ms. Brandon and Mr.

Smith in the total amount of $4,251.41, consisting of damages to a rental property and unpaid utilities. [ 8 ] On November 5, 2020, the Kamals applied in Justice chambers and were granted a substitutional service order allowing them to serve both Ms. Brandon and Mr. Smith with “all other documents in this action” by way of email to twibran@gmail.com. The order was granted based on Abitha Kamal’s affidavit stating that she did not know Ms. Brandon’s and Mr. Smith’s residence, previous attempts to personally serve them had been unsuccessful, and Ms.

Brandon had replied from that email address before. [ 9 ] Abitha Kamal also filed an affidavit of substitutional service on November 5, 2020 stating that she sent the tenancy dispute officer’s October 20, 2020 order, showing it had been filed in court on October 21, 2020 and the November 5, 2020 substitutional service order to twibran@gmail.com on November 5, 2020. [ 10 ] Each of the three documents filed on November 5, 2020, being the affidavit in support of substitutional service, the substitutional service order, and the affidavit of substitutional service, have both court file numbers on them, 2003 13129 and 2003 15901. [ 11 ] In November 2020 and January 2021, the Kamals filed a writ of enforcement and several garnishee summons.

These documents were filed in court file 2003 15901 only. In 2021 all documents have been filed in court file number 2003 15901 only. [ 12 ] On February 19, 2021 the Kamals filed an application scheduled for Master’s chambers on March 23, 2021 seeking “completion and service of Form 13 – Financial Statement of Debtor”. Abitha Kamal’s affidavit, filed February 19, 2021, states that she sent an email requesting a financial statement of debtor from each of Ms. Brandon and Mr. Smith by email to twibran@gmail.com on February 3, 2021 and followed up via text messages to Ms. Brandon and Mr.

Smith individually on February 14, 2021. [ 13 ] On March 10, 2021 Abitha Kamal filed an affidavit stating that she emailed the application and affidavit filed February 19, 2021 to twibran@gmail.com on February 28, 2021. The March 10, 2021 affidavit also states that the email sent to twibran@gmail.com was opened and attaches an exhibit about that. [ 14 ] On March 23, 2021, the Kamals appeared in Master’s chambers but Ms. Brandon and Mr. Smith did not. The Master issued an order that Ms. Brandon and Mr.

Smith each provide a financial statement of debtor to the Kamals by email no later than thirty days from service of the order. The March 23, 2021 order also granted leave to the Kamals to apply for an order citing Ms. Brandon and Mr. Smith in contempt if they failed to provide their financial statements of debtor. [ 15 ] On April 23, 2021, the Kamals filed an application scheduled for Justice chambers on May 12, 2021 for “completion and service of form 13 – financial statement of debtor”.

In Abitha Kamal’s affidavit filed April 23, 2021, she states that the March 23, 2021 order was emailed to twibran@gmail.com on March 23, 2021 and that that email was subsequently opened. The application filed April 23, 2021 does not seek a finding of contempt. [ 16 ] On May 12, 2021 this matter came before me in Justice chambers. The Kamals appeared by WebEx. Ms. Brandon and Mr. Smith did not appear. I granted an order finding Ms. Brandon and Mr.

Smith in contempt for failing to provide financial statements in accordance with the March 23, 2021 order, permitting them to purge their contempt by providing financial statements to the Kamals by June 15, 2021 and permitting the Kamals to re-apply for contempt if Ms. Brandon and Mr. Smith failed to provide their financial

statements. [ 17 ] On June 16, 2021, the Kamals filed an application scheduled for Justice chambers on June 29, 2021, seeking “Completion and Service of Form 13 – Financial Statement of Debtor and or Contempt of Court”.

Abitha Kamal’s affidavit filed June 16, 2021 states that the May 12, 2021 order was sent to twibran@gmail.com on May 14, 2021. [ 18 ] On June 24, 2021, Abitha Kamal filed an affidavit stating that the application and affidavit filed June 16, 2021 were sent to twibran@gmail.com on June 17, 2021. [ 19 ] On June 29, 2021, the chambers Justice found Twila Brandon in contempt for failing to provide Abitha Kamal with a financial statement, fined Ms.

Brandon $500 for contempt, awarded $2,500 costs to Abitha Kamal for the application, and provided as follows: This Matter will be before the Court in Master Chambers, August 9, 2021 at 10:00 am. The Respondent, Twila Brandon will be served a copy of this Order and will need to attend on the court date to explain why she should not be held in custody for contempt. [ 20 ] The June 29, 2021 order makes no finding against Mr. Smith and does not order him to do anything. [ 21 ] August 9, 2021 was a Monday. Usually Master’s chambers are held Tuesday through Friday each week, but not on Monday.

There were no Masters chambers on August 9, 2021. On August 9, 2021, the Kamals appeared in Justice chambers. Neither Ms. Brandon nor Mr. Smith appeared. The Justice did not have any materials available so she adjourned the matter to August 19, 2021. [ 22 ] There is no evidence before me regarding whether Ms. Brandon and Mr. Smith were provided with notice to appear in Justice chambers (as distinct from Masters chambers) on August 9, 2021. [ 23 ] On August 12, 2021, Abitha Kamal filed an affidavit stating that the June 29, 2021 order was sent to twibran@gmail.com on July 17, 2021.

Also on August 12, 2021, the Kamals filed an application, scheduled for Justice chambers on August 19, 2021, seeking: 1. Contempt of Court for failing to provide Form 13: Financial Statement of Debtor to applicants as stated in the court order granted by the honorable Justice G.R. Fraser on June 29, 2021. 2. A warrant be issued for the defendants (Twila Chantelle Brandon and Bryan James Smith) arrest for contempt of court. [ 24 ] It is implicit in all of the applications and affidavits filed from February through August 2021 that Ms. Brandon and Mr.

Smith have failed to provide their completed financial statements of debtor. Unfortunately, none of the affidavits explicitly says that. [ 25 ] This matter came before me in Justice chambers on August 19, 2021. The Kamals attended by WebEx. Ms. Brandon and Mr. Smith did not attend. I asked whether the application and affidavit had been served. Akshayaa Kamal advised that those documents had been served in accordance with the November 5, 2020 substitutional service order and that an affidavit of service had been submitting for filing. [ 26 ] Neither Ms. Brandon nor Mr.

Smith has been personally served with the March 23, 2021 order requiring them each to provide a financial statement of debtor. Similarly, they were not personally served with the application and affidavit filed August 12, 2021, which were before me on August 19, 2021. They have been served by email in accordance with the November 5, 2020 substitutional service order, but there is no evidence before me that either Ms. Brandon or Mr. Smith has actual knowledge of any of the applications, affidavits and orders filed in this action. 3.

Actual Knowledge [ 27 ] Disobedience of court orders other than for the payment of money is contempt of court: Rule 10.52(3)(a)(i). Civil contempt consists of three elements which must be established beyond a reasonable doubt: Carey v Laiken , 2015 SCC 17 at paras 32-35 : 1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done; 2. The party alleged to have breached the order must have had actual knowledge of it; and 3.

The party alleged to have breached must have intentionally done the act that the order prohibits, or intentionally failed to do the act that the order compels. [ 28 ] Due to the requirement of actual knowledge of the court order, a court will rarely find an individual in contempt unless they were personally served with the application for contempt: Lester v Martin , 2016 ABQB 446 at para 5 . [ 29 ] I must be satisfied beyond a reasonable doubt that Ms. Brandon and Mr. Smith have knowingly breached the order compelling them to provide financial statements of debtor, in order to sanction them for contempt.

There are several facts which raise a reasonable doubt in this case. [ 30 ] First, neither Ms. Brandon nor Mr. Smith has appeared on or replied to any of the applications in this case. This goes back to the October 20, 2020 hearing before the tenancy dispute officer. One possible reason is that they have not received the filed materials. [ 31 ] Second, Ms. Kamal’s affidavit in support of the November 5, 2020 substitutional service order is ambiguous regarding whether she has ever received a communication from Mr. Smith using twibran@gmail.com. The origin of using that email address to serve both Ms.

Brandon and Mr. Smith appears to be the August 20, 2020 residential tenancy hearing, which Ms. Brandon attended, but Mr. Smith did not. There is no evidence before me that Mr. Smith ever used that email address himself or agreed to receive any

communications at what appears to be Ms. Brandon’s email address. [ 32 ] Third, while it may be convenient to serve two people at one email address, that practice creates uncertainty as to whether both people have received the documents sent by email. [ 33 ] Fourth, assuming the July 29, 2021 Order came to their attention, it directed Ms. Brandon and Mr. Smith to attend Masters chambers on August 9, 2021, when there were no Masters sitting in chambers.

There appears to have been no notice to them that the Kamals were attending in Justice chambers on August 9, 2021. [ 34 ] I am not satisfied beyond a reasonable doubt that either Ms. Brandon or Mr. Smith has actual knowledge of the March 23, 2021 order that they provide financial statements of debtor. I am also not satisfied beyond a reasonable doubt that they had actual knowledge of the application for contempt and their arrest which came before me on August 19, 2021. For those reasons, I decline to find them in contempt or issue a warrant for their arrest. 4.

Proportionality [ 35 ] The contempt power is discretionary and should be used cautiously and with great restraint. It should not be a mere means of enforcing judgments: Carey v Laiken at para 36 . [ 36 ] The Alberta Court of Appeal in Law Society of Alberta v Beaver , 2021 ABCA 163 at para 78 sets out the purpose of contempt and the factors to consider in determining punishment for contempt: The purpose of contempt proceedings is twofold.

The primary purpose is to ensure compliance with court orders and a second purpose is to punish the contemnor: Ouellet v BM , 2010 ABCA 240 , para 60 , 323 DLR (4th) 745; Builders Energy Services Ltd v Paddock , 2009 ABCA 153 , para 13 , 457 AR 266.

The factors which the court should take into account include the proportionality of the sentence to the wrongdoing, the presence of aggravating and mitigating factors, deterrence, reasonableness of a fine and appropriateness of incarceration: Builders Energy , para 13. [ 37 ] Comparison to sanctions given in similar cases can be a useful tool in determining the proportionality of a sentence. Cases where individuals have been arrested and imprisoned for failing to provide financial disclosure are summarized below: • In Greenberg v Nowack , 2015 ONSC 2015 , Mr.

Nowack owed the plaintiffs approximately $3.5 million as a result of stealing their retirement funds. Mr. Nowack failed to provide the financial disclosure required of him as a judgment debtor despite five court orders compelling him to do so. He was found in contempt for these failures and sentenced to 15 days’ imprisonment. • In Braun Estate (Trustee of) v Braun , 2006 ABCA 23 , a bankrupt failed to attend discovery and provide financial disclosure relating to her dissolved company despite multiple court orders compelling her to do so.

She was given escalating sentences of 14 days, 21 days, and four months when she continually failed to comply. • In Doobay v Diamond , 2010 ONSC 3554 , the plaintiffs obtained default judgment against Mr. Diamond for $854,924.21. Mr. Diamond refused to answer any questions at the initial Examination in Aid of Execution. He was ordered by the Court to answer all unanswered questions by a specified date and re-attend Examination again to answer follow-up questions. Mr. Diamond missed the deadline, but eventually answered 70 out of 406 questions. The Court found Mr. Diamond failed to comply with the order.

He was sentenced to 21 days’ imprisonment and a fine of $20,000 for his contempt. [ 38 ] Applying the factors from Law Society of Alberta v Beaver in light of the caselaw set out above, it is clear that the gravity of any offence in this case is on the low end of the scale. Ms. Brandon and Mr. Smith have been found in contempt for failing to comply with a single order to provide a single form to the Kamals. Although they have not purged their contempt, they are at worst first-time contemnors with a single breach. There is no evidence before me as to whether or not Ms. Brandon and Mr.

Smith are able to pay their underlying debt but are choosing to flagrantly disrespect the court’s process to compel them to do so. There is no evidence upon which I could assess aggravating and mitigating factors. [ 39 ] The practicalities of this situation are also important. This is not a case where retirement savings have been lost or a company has been dissolved. This is essentially a landlord attempting to collect on a bad debt through the courts and, if I were to issue an arrest warrant, the police and the remand system.

This comes at a cost to the public—a cost which has likely already exceeded the initial debt. [ 40 ] I find that arresting the debtors following a single breach of a court order to assist with the collection of a relatively small debt would not be proportional or appropriate in this case. Although the Kamals have been prejudiced by Ms. Brandon’s and Mr. Smith’s failure to provide financial statements of debtor, the harm is at the low end of the scale. Even if I were satisfied that Ms. Brandon and Mr.

Smith have actual knowledge of the court order that they each provide a financial statement of debtor, I would not order their arrest on the evidence before me, because it would not be proportional to their contempt. [ 41 ] On a future application, more complete evidence may result in a different outcome. In particular, the following would be important: • Evidence that Ms. Brandon or Mr.

Smith, or both of them, have actual knowledge of an order that they each provide a financial statement of debtor to the Kamals. • Evidence that they have not provided financial statements within a reasonable time of becoming aware of the order. • Evidence that they have actual knowledge through personal service (not service by email) of an application to have them found in contempt of court and sanctioned for that contempt.

5. Disposition [ 42 ] I dismiss the Kamals’ application to have Ms. Brandon and Mr. Smith found in contempt and arrested. They have leave to reapply on additional evidence. Any future application need not be before me. Heard on the 19 th day of August, 2021. Dated at the City of Edmonton, Alberta this 15 th day of October, 2021. G.S. Dunlop J.C.Q.B.A. Appearances: Abitha Kamal and Akshayaa Kamal Self-Represented Litigants