HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK Applicant, – v. –, 2023 NBKB 079

SJM-108-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN Citation: 2023 NBKB 079 BETWEEN: HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK Applicant, – and – HIS TABERNACLE FAMILY CHURCH INC., PHILIP JAMES HUTCHINGS, JAMIE HUTCHINGS, KEITH CODY BUTLER and DANA BUTLER Defendants. ORAL DECISION BEFORE: Madam Chief Justice Tracey K. DeWare AT: Saint John, New Brunswick DATE OF HEARING: December 20, 2022, and May 5, 2023 DATE OF ORAL DECISION: May 5, 2023 APPEARANCES: Jason Caissie, Solicitor for the Applicant

Jonathan Martin, Solicitor for the Defendants DEWARE, C.J. (orally) [ 1 ] This decision is hopefully the last

chapter in what has been a tortious walk through the courts for these two parties as a result of disagreements over the enforcement of regulations in the province during the Covid 19 pandemic. [ 2 ] On February 2, 2023, I issued a written decision concluding that the Respondents were not in contempt of a Mandatory Order issued by the Province on September 24, 2021, pursuant to the Emergency Measures Act . In denying the Province’s request for a finding of contempt, I invited the parties to contact the Court should they wish to address the issue of costs.

The Respondents, as the successful party, requested a hearing, and today, the parties provided the Court with their submissions as to what, if anything, was appropriate to be awarded as costs by the Court in this matter. The Province, the Applicant, suggests that in all the circumstances of this matter, there should be no order as to costs. The Respondents seek $40,000.00 in costs and argue in all of the circumstances of this case solicitor- client costs are appropriate. [ 3 ] The law in Canada and New Brunswick is that generally, a successful party is entitled to costs.

Rule 59 of the New Brunswick Rules of Court gives a judge a broad discretion in the awarding of costs including, when appropriate, the discretion to deny costs to a successful party. Further, a judge has the discretion to award solicitor-client costs when, likewise, the judge feels such an award is appropriate in the circumstances. [ 4 ] In this case, I determined that the Province could not be successful in obtaining an order finding the Respondents in contempt of a Consent Order dated October 8, 2021, because the necessary elements for a finding of contempt were not present.

The test a Court must apply in making a finding of civil contempt is understandably strenuous. My finding stemmed from the ambiguity in the wording of the Mandatory Order surrounding the definition of “ enclosed space ” and “ public indoor space ”. Were if not for the ambiguity in the underlying legislation and the legitimate challenge the Respondents could have faced in interpreting that legislation, I would have found them in contempt of the October 8, 2021 Consent Order where they agreed to follow all the requirements under the Mandatory Order in holding their church services.

Significantly, in that decision, I noted that the Province’s use of a contempt motion to seek enforcement of the Mandatory Orders was entirely appropriate. [ 5 ] Mr. Martin, on behalf of the Respondents, set out in their pre-hearing brief the following arguments in support of his request for solicitor-client costs: 21) In the context of motions for contempt, it is not uncommon for the successful party to receive solicitor and client costs, especially where the court finds unreasonable conduct on the part of the moving party.

There is some case law that when a contempt motion is brought without good merit, solicitor and client costs should also follow. When a motion for contempt is brought or prosecuted abusively, this can result in the court finding such actions as reprehensible enough to order solicitor and client costs. 22) In this case, the Province took advantage of its superior litigation resources and an early ruling made by Justice Stephenson to abusively shut down any tent meetings at all (going further than what Justice Stephenson had said), no matter how many sides would be left open.

The Court should frown on a government entity using its superior resources and abusing its position through the use of the court’s contempt powers and solicitor and client costs should more readily result when abusive action of the state is found to have occurred as happened here. [ 6 ] In my view, the Province did not abuse its authority, nor did it file a meritless motion when it sought to find the Respondents in contempt of the Mandatory Order as a result of their use of the commercial tent to hold their church service.

By the time this motion was filed by the Province, the Respondents had been issued tickets for non-compliance with the mandatory order and were facing charges before the Provincial Court, they had already been found in contempt of court for their failure to adhere to the October 8, 2021 Consent Order – a finding of contempt that they had acknowledged and Pastor Hutchings had spent a week in jail.

It is noteworthy that it is the Province that intervened to save Pastor Hutchings from an additional weekend in jail when various conditions of his release sought by Justice McLellan were not met and could have resulted in his remand until the following week’s court appearance. [ 7 ] It has to be acknowledged that by the time the Province filed the motion for contempt that is the subject of today’s discussion, there was a significant history of both non-compliance with the Mandatory Orders and protest against the Mandatory Orders by these Respondents.

In my view, this reality is a necessary consideration in the Court’s current assessment of costs. [ 8 ] The Respondents are correct in arguing that the Province is a party like any other party. This is true. Typically, if the Province is found to be an unsuccessful party, they should be liable to pay costs just like anyone else. However, the motion and the underlying factual matrix did not occur during regular times. [ 9 ] The Respondents acknowledge this case arose while we were in a state of emergency. However, the Respondents suggest the Province took advantage of the state of emergency. Mr.

Martin succinctly sets out their submissions on this point at paragraphs 7 and 8 of the pre-hearing brief as follows: 7) The Province took advantage of the state of emergency and abused the faith and trust of the courts in its good intentions. Justice DeWare mentioned the increased willingness to enforce orders or regulatory compliance through contempt in the context of a pandemic at paragraph 28 of the decision. The Province knew this and with greater power must come greater responsibility for the Province when

it has demonstrably acted abusively as it did here. 8) It is important to remember that religious practice and gathering is a Charter protected right in Canada and to shut down such gatherings unlawfully or abusively is a crime under section 176(1) (

a) of the Criminal Code . The Province has, by its abusive conduct to prevent any tent gatherings without any colour of right, violated, if not the letter, at least the intent behind this provision. [ 10 ] I agree with the Respondents that it is significant that this situation arose in the context of a state of emergency.

However, I disagree that the Province abused or took advantage of the situation to infringe upon the Respondents’ Charter rights to freedom of religion. [ 11 ] In the fall of 2021, the province of New Brunswick, in concert with our global neighbours, was struggling to put in place the necessary safeguards and protections to insulate the population from the worst impacts of the Covid 19 pandemic. In doing so, by necessity, everyone’s Charter rights were infringed; however, all of those infringements of individual rights were necessary for the good of society as a whole.

In my view, the Province’s treatment of the Respondents was no different than all other groups and individuals who were equally disgruntled by the significant impact restrictions were having on our activities and lifestyles. However, the Respondents consistently pushed the limits of what was permissible within the confines of the Mandatory Orders and in so doing, found themselves in the crosshairs of the Province.

The Province had no choice but to respond as compliance with Mandatory Orders was essential to preserve the health and safety of the public as a whole. [ 12 ] The Respondents’ dispute with the Province during the various procedures over the Covid 19 pandemic was extremely public, largely because the Respondents chose to put it in the public space.

The Province had no choice but to make all efforts to enforce the Mandatory Order; otherwise, the message would have been – “ don’t bother to follow the regulations because nothing happens when you breach the rules .” In a society premised on the Rule of Law such a scenario was not an option the Province could support. [ 13 ] In retrospect – as we collectively reflect on the pandemic – were mistakes made, of course. Were all restrictions necessary, probably not. However, that is not the issue.

In my view, the Province of New Brunswick was left with no choice but to proceed with a motion for contempt given the unique circumstances of this case and its potential impact on the ability to maintain credibility with the population as a whole that Covid 19 regulations would be enforced. [ 14 ] For all of these reasons, I find that there are no costs payable by the Province despite the Respondents’ success on this motion. I will ask for a transcript of this decision to be prepared immediately should the Respondents wish to appeal. SIGNED at Moncton, New Brunswick, this 9 th day of May 2023. Tracey K.

DeWare Chief Justice of the Court of King’s Bench of New Brunswick