Alston v the Municipal District of Foothills No. 31, 2021 ABQB 951

Court of Queen’s Bench of Alberta Citation: Alston v the Municipal District of Foothills No. 31, 2021 ABQB 951 Date: 20211130 Docket: 1001 10269 Registry: Calgary Between: Ellen Alston, Leslie Vecsey and E.L. Alston & Associates Ltd. Respondents/Cross-Applicants - and - The Municipal District of Foothills No. 31 Applicant/Cross-Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H.

Hollins _______________________________________________________ [ 1 ] This decision deals with contempt of court, specifically the Plaintiffs’ alleged breach of a previous Order in this Action. [ 2 ] The Plaintiffs have sued the Defendant for approximately $8M in damages arising from alleged contamination of the groundwater on their property in De Winton. The lawsuit began in 2010. We had our initial Case Management Meeting on October 4,

2017. At that time, counsel for the Defendant, Mr. Pick, was seeking an injunction prohibiting the Plaintiffs from contacting the managing partner or other lawyers at his firm. The self-represented Plaintiffs were routinely copying all correspondence to Mr. Pick to his partners, presumably thinking or hoping that they would somehow remove him as counsel. Understandably, he objected to this. [ 3 ] Rather than proceed with an injunction application, I opted to give Ms. Alston, who was speaking for the Plaintiffs, a direction to stop communicating with Mr. Pick’s law partners.

I explained that the Defendant had a right to choose its lawyer and that she should not be interfering with that relationship. I did not make an Order to this effect as Ms. Alston indicated to me that she understood my direction and would comply with it (see the transcript at Exhibit “E” to the Plaintiff’s November 10, 2021 Affidavit ). [ 4 ] This lawsuit was largely dormant for some time after that initial Case Management Meeting, the chronology of which was reviewed in my recent decision on delay; 2021 ABQB 592 . In the spring of 2020, the Plaintiffs filed a motion for

summary judgment and also resumed her practice of copying Mr. Pick’s managing partner with her correspondence. She also began repeatedly and directly contacting the representatives of Mr. Pick’s client, the Council Members of the MD Foothills. [ 5 ] At a Case Management Meeting on December 11, 2020, I granted an Order that precluded the Plaintiffs from contacting, directly or indirectly, Mr.

Tom Marriott (the then-managing partner of Brownlee LLP) or any successor to him in that position and/or any official or employee of the Municipal District of Foothills No. 31 (the “Order”; see Exhibit “A” to the Plaintiffs’ November 10, 2021 Affidavit). [ 6 ] Although the Plaintiffs did not attend that application, it had been scheduled well in advance as Ms. Alston was refusing to provide her availability for any case management meetings (see Exhibits “K” and “L” to the Defendant’s October 19, 2021 Affidavit).

Because the Plaintiffs were not present on December 11, 2020, I included a “come back” clause allowing the Plaintiffs to apply on notice to vary or vacate the Order. [ 7 ] They have now done so, albeit only in response to the Defendant’s contempt motion for breach of the Order. Accordingly, the motion for contempt and the cross-motion to vacate the Order were heard together. Civil Contempt [ 8 ] Rule 10.52(3)(a)(

i) of the Alberta Rules of Court says that a judge may declare a person to be in civil contempt of court if that person has, without reasonable excuse, failed to comply with a court order of which he or she has notice. [ 9 ] The Defendant bears the burden of proving that the Plaintiffs are in contempt of the Order. Civil matters must normally be proven on a balance of probabilities, meaning that one thing is more likely than another.

However, because of the severity of the possible remedies for contempt, including possible imprisonment, civil contempt must be proven beyond a reasonable doubt; Koerner v Capital Health Authority , 2011 ABQB 191 at para.44; affirmed 2011 ABCA 289 , leave refused 2012 SCC 724 . [ 10 ] Proof beyond a reasonable doubt does not require complete certainty but is closer to that standard than it is to the “more likely than” test for a balance of probabilities. [ 11 ] The test for contempt is well-settled and uncomplicated. The Defendant must prove these three things beyond a reasonable doubt: 1.

That the Order states clearly and unequivocally what should not be done; 2. That the Plaintiffs had actual knowledge of the Order; and 3. That the Plaintiffs intentionally did what the Order directed should not be done. Builders Energy Services Ltd v Paddock , 2009 ABCA 153 at para.9. [ 12 ] I can deal with the three arms of the test as follows: 1. The Order speaks for itself. It clearly and unequivocally prohibits the Plaintiffs from contacting identified groups of people, directly or indirectly. Particularly view of my admonition to Ms.

Alston in this regard in October of 2017, there is no evidence, nor any claim being made, that the parameters of the Order were not clearly understood. 2. The Plaintiffs were aware of the Order. It was provided directly to Ms. Alston by my office on December 11, 2020 along with a letter that explained the reason for and effect of the Order (Exhibit “N” to the Defendant’s Affidavit.) She confirmed receipt of the Order by her letter to my office dated December 18, 2020 (Exhibit “O” to the Defendant’s Affidavit). 3.

On September 21, 2021, the Plaintiffs emailed a letter directly to the Defendant MD council members accusing Mr. Pick of lying to his clients (Exhibit “P” to the Defendant’s Affidavit). It would be difficult to argue that the letter was somehow sent unintentionally and indeed, I do not understand the Plaintiffs to be making that argument. The Plaintiffs not only included the Order with their letter to the councillors, they copied my office with the letter. There is no question that they intended to send it and intended me to see it. Then, on October 13, 2021, the Plaintiffs emailed Mr.

Marriott along with two other partners at Brownlee LLP (Exhibit “Q” to the Defendant’s Affidavit). The Plaintiffs again alleged criminal negligence and fraud against Mr. Pick and Mr. Wilson and advised that the RCMP were investigating, not just Messrs. Pick and Wilson but the law firm of Brownlee LLP and even the Law Society of Alberta. [ 13 ] The Plaintiffs have blatantly, repeatedly and unequivocally breached the Order.

Any Reasonable Excuse? [ 14 ] Rule 10.52 envisions that there a person in breach of a court order may present the Court with a “reasonable excuse” for having done so. Further, there is discretion afforded to me at common law to refuse to find a party in contempt of a court order if circumstances dictate; Broda v Broda , 2004 ABCA 72 at para.8. [ 15 ] Ms. Alston raised a number of explanations for the Plaintiffs’ conduct, addressed below. A Statutory Duty to Report [ 16 ] First, Ms. Alston relies on s.110 of the Environmental Protection and Enhancement Act , RSA 2000, c.E-12 . Under the title “Duty to Report Release”, that

section reads as follows: 110(1) A person who releases or causes or permits the release of a substance into the environment that may cause, is causing or has caused an adverse effect shall, as soon as that person knows or ought to know of the release, report it to ... (

e) any other person who the person reporting knows or ought to know may be directly affected by the release. [ 17 ] This

section does not assist the Plaintiffs on the issue of contempt of the Order. First, it only imposes a duty to report on the person who caused the release of the adverse material. If this

section applied at all, it would apply to the Defendant, not to the Plaintiffs. [ 18 ] Even if a more expansive

interpretation was given to the Plaintiffs’ reliance on this legislation – by which I mean, they are trying to force the Defendant into self-reporting under this

section – that would not excuse their breach. However strong the Plaintiffs’ convictions are that they will ultimately prevail in proving that the Defendant contaminated the De Winton water supply, that has not yet been proven and is fiercely contested. The Defendant does not “know” of the alleged release referred to in EPA s. 110 because they say it did not happen. [ 19 ] This

section of the EPA affords no excuse to the Plaintiffs for their breach of the Order. Rule 9.2(b) [ 20 ] The Plaintiffs contest the validity of the Order because they say it does not comply with Rule 9.2. Somewhere along the line, the Plaintiffs came to believe that R. 9.2(

b) entitles them to approve or refuse to approve every court order in this Action. That is not correct. [ 21 ] First, only parties appearing in court can ever approve the form of order sought in respect of an application and the Plaintiffs did not appear on December 11, 2020. Secondly, the Court always has discretion to waive Rule 9.2 or even to direct that the Clerk can sign the resulting order without approval of the parties; Rule 9.4(2)(c).

This is sometimes done if there is reason to believe that a party, particularly a self-represented litigant, will simply refuse to approve the order because he or she disagrees with the judge’s decision, thus improperly delaying the Action. Affidavit of Legal Assistant [ 22 ] The Plaintiffs objected to the Defendants’ reliance at this application on the Affidavit of a legal assistant from Brownlee LLP’s office. I agree with Mr. Wilson that, in these circumstances, no objection to that Affidavit is properly taken as the affiant merely attaches various pieces of correspondence without comment.

The Need to Inform the Opposing Party [ 23 ] Related to the idea of a statutory duty to inform, the Plaintiffs have alleged that the Defendant clients are not being informed properly of the status of this Action by their lawyer and therefore, they have no choice but to go directly to the clients in breach of the Order. [ 24 ] The evidence presented in this regard is third-hand hearsay in the Plaintiffs’ Affidavit; namely that some unnamed residents of the Foothills Municipal District told the Plaintiffs that the MD councillors had told these residents that they [the councillors] “were not informed by their lawyers of their liability under this legislation” (paragraph 11 of the Plaintiffs’ Affidavit).

This sort of anonymous hearsay cannot properly bear on this application. [ 25 ] Further and as mentioned above, the Defendant does not accept that they have any such liability and none has been established at this stage. The fact that the Plaintiffs believe s.110 of the EPA has been engaged does not make it so.

For reasons that have been previously communicated to the Plaintiffs, it is not their responsibility to try to convince the council members or any other representatives and employees of the Municipal District that their lawyers are not properly conducting their defence. [ 26 ] The Plaintiffs have been told before, including by Associate Chief Justice Rooke, that they may take complaints regarding any lawyer directly to the Law Society of Alberta but that those allegations or complaints are not before this court and are not relevant to this Action.

Cross-Application to Vacate Order [ 27 ] At this hearing and in their materials, the Plaintiffs said that they would not breach the Order again as they are now satisfied that they have adequately communicated their concerns to Mr. Pick’s clients and partners. However, Ms. Alston made that same representation to me on October 4, 2017 and proceeded to do exactly what she agreed not to do. [ 28 ] As mentioned, the Plaintiffs were given leave to apply to vary or vacate the Order under paragraph 2 thereof. However, that should not be confused with any obligation of this Court to do so.

The Plaintiffs’ conduct after my caution of October 4, 2017, their conduct throughout the summer of 2020 and their defence of this contempt application all cement, in my mind, the necessity of a continuing prohibition on their communication with Mr.

Pick’s law partners and clients. [ 29 ] While I appreciate very well the fact that the Plaintiffs are self-represented – which is why I hoped to avoid making such an Order back in 2017 – they have demonstrated a complete and purposeful disregard for the directions of this Court and engendered no confidence that they will change their course of conduct if the Order is reversed. [ 30 ] The Plaintiffs’ application to vacate the Order is dismissed. The Remedy for the Plaintiffs’ Contempt of Court [ 31 ] Rule 10.53 outlines the range of remedies available once a finding of contempt has been made.

These include imprisonment, fines, costs awards or the staying of future court proceedings. [ 32 ] In Oommen v Capital Housing Corp , 2015 ABQB 283 (affirmed 2017 ABCA 143 ), Justice Veit reviewed a list of factors to consider in fashioning an appropriate remedy. They mirror the factors relevant to the sentencing of offenders in criminal law.

For example, the remedy for contempt should be proportionate to the level of wrongdoing, should be consistent with similar cases and should serve to deter future contemptuous conduct; Oommen (QB) at para.37 referencing Crawford v Crawford , 2016, ONSC 2144 at para.192. [ 33 ] Both the nature of this contempt and its repeated and flagrant nature are serious.

The penalty imposed must, in my opinion, convince the Plaintiffs to significantly alter course and focus on advancing their matter to trial as opposed to engaging in further character assassinations on everyone involved in the litigation process. [ 34 ] First, I am imposing a fine of $1,000, payable to the Clerk of the Court. [ 35 ] In addition, I am awarding full-indemnity solicitor-client costs in favour of the Defendant on both motions. The Defendant is directed to submit a Solicitor Client Bill of Costs to my office no later than Friday, December 3, 2021, along with a draft Order leaving these costs blank.

Once those costs are reviewed by me and set, I will complete and sign the Order. There will be no approval of the Plaintiffs required, pursuant to Rule 9.4(2)(c). The Order should also reference the fine assessed above and any quantum of any other costs payable by the Plaintiffs to the Defendant in this Action which remain outstanding. [ 36 ] The $1,000 fine is payable to the Clerk of the Court no later than January 7, 2021. All outstanding costs, including those from these applications, are payable to the Defendant by the same deadline, no later than January 7, 2022.

In default of payment, the Plaintiffs’ upcoming

summary judgment motion will be stayed. [1] If that happens, the Plaintiffs will have to pay these amounts before rescheduling their

summary judgment motion and any delay in doing so will be to their prejudice. [ 37 ] I am well aware of how long it has taken the Plaintiffs to obtain hearing dates for their

summary judgment motion, some of which delay was attributable to this Court and to the COVID measures in place for the last 1½ years. However, unless the Plaintiffs can begin to prosecute their action within the case management process and the rules of this Court, their progress to trial will remain stunted. Conclusion [ 38 ] The Plaintiffs have repeatedly allowed the strength of their conviction regarding their claim to obstruct their path to trial. That is unfortunate.

However, it is time that they commit to respect for the processes of this court or risk losing their right of action entirely. [ 39 ] In addition to contacting people they knew they were not allowed to contact, the language that Ms. Alston has used in her communications with Messrs. Pick and Wilson is unacceptable. She has also been cautioned about this before, to no effect. [ 40 ] The Plaintiffs’ Affidavit for these motions, like virtually all correspondence from the Plaintiffs, again accuses Mr. Pick of “criminal actions”, including fraud, destruction of evidence and criminal negligence.

The October 13, 2021 email to the partners at Brownlee LLP referred to earlier (Exhibit “Q” to the Defendant’s Affidavit) advised them of an RCMP investigation into Brownlee LLP and the Law Society of Alberta. Most egregiously, the Plaintiffs demanded that Brownlee remove Messrs. Pick and Wilson from the file and abandon their appeal of one of my interlocutory rulings in favour of the Plaintiffs or risk “further embarrassment”. [ 41 ] This outrageous behaviour must stop.

If the Plaintiffs were represented by counsel and that lawyer, even without a court- ordered prohibition, continued to contact opposing counsel’s partners or clients or to speak to and about counsel the way that Ms. Alston has, that lawyer would no doubt be the subject of the disciplinary investigation, if not sanction, by the Law Society of Alberta. Further allegations made personally against the character of Messrs.

Pick or Wilson made in the context of this litigation must cease or the Plaintiffs will risk future, even more severe, sanctions of this Court. [ 42 ] In Koerner v Capital Health, referred to earlier, Justice Shelley of this Court struck out the entire claim of a self-represented party for failure to comply with a procedural order setting out deadlines for various filings. Her decision to do so was upheld on appeal.

Perhaps the words of the Court of Appeal about those circumstances will resonate with the Plaintiffs where my words have not: The action has been in case management from its early stages. The case management judge has attempted to guide the appellant through the litigation process. The appellant has resisted the case management process, and has made allegations of unfairness and misconduct against the case management judge, counsel for the respondents, the Minister of Health, and the Alberta medical system.

After the appellant failed to comply with numerous orders that set deadlines for questioning and the production of documents, the case management judge struck out the statement of claim for contempt. The case management judge essentially found that the appellant was unmanageable. On appeal, the appellant argues firstly that any failure to comply with court orders was a result of her numerous medical problems. The case management judge repeatedly advised the appellant that any reliance on her medical condition had to be backed up with proper medical information.

The case management judge's conclusion that no satisfactory medical explanation was ever advanced is essentially a finding of fact. There is no palpable and overriding error that would justify appellate intervention on this point. Secondly, the appellant argues that, as a self-represented litigant, she is entitled to some indulgences when it comes to compliance with legal processes.

The Rules of Court make it clear that the same rules apply to all litigants, even if self represented: 1.1(2) These rules also govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer. The case management judge attempted to assist the appellant, and granted numerous orders in an attempt to move the action along. The appellant's refusal to accept the validity of many of those orders is the source of the problem. As was said in Broda v. Broda , 2001 ABCA 151 , 286 A.R. 120 (Alta.

C.A.) at para. 4 : “Unrepresented litigants are entitled to justice, but they are not entitled to command disproportionate amounts of court resources to remedy their inability or unwillingness to retain counsel”. The record does not disclose that the appellant was unfairly dealt with because she is self-represented. The obligation to comply with court orders is one that is imposed on all persons, whether they are self-represented are not.

The importance of ensuring compliance with court orders is an aspect of the Rule of Law, which is one of the fundamental principles of Canadian law recognized in the Charter of Rights . This is not a case of a mere failure to comply with court orders and the Rules of Court, but one of refusal. The appellant incorrectly insists that she has constitutional or privacy rights that prevail over her obligation to answer questions and produce documents under the Rules of Court. In the circumstances, the decision of the case management judge to strike out the statement of claim discloses no error of principle.

Koerner v Capital Health Authority , 2011 ABCA 289 at paras. 3 , 4, 6-9. [ 43 ] I will reiterate the commitment of this Court to ensure that parties have fair and reasonable access to a court process by which their claims can be adjudicated. I have tried many times to explain to the Plaintiffs that I am not assessing the merits of this claim or this defence. Their beliefs may ultimately be proven at law but only if they can move the matter forward to trial or to

summary judgment in accordance with the process available and the orders made in this Action. [ 44 ] Their breach of the Order has now resulted in a monetary penalty. If paid, their

summary judgment motion will continue as scheduled. However, if the Plaintiffs do not comply with this and other Orders made in this Action, their ability to continue to use these courts to advance their claim will be further restricted. Heard on the 24 th day of November, 2021. Dated at the City of Calgary, Alberta this 30 th day of November, 2021. M.H. Hollins J.C.Q.B.A. Appearances: Ms. Ellen Alston for the Plaintiffs/Respondents

Mr. Drew Wilson For the Defendant/Applicant [1] Currently, these parties have 2 days of hearings scheduled March 15-16, 2022. The Plaintiffs are applying for

summary judgment and the Defendant is cross-applying for

summary judgment. If the Plaintiffs fail to make the payments required by this Order, their motion will be stayed and will be rescheduled when and if those payments are made. The Defendant’s motion may proceed if they wish, in which case all of their filing deadlines remain the same.