G.E.B. v. K.A.A.M., 2011 NLCA 38

Date: 20110608 Docket: 09/94 Citation: G.E.B. v. K.A.A.M., 2011 NLCA 38 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : G.E.B. APPELLANT AND : K.A.A.M. RESPONDENT AND Docket: 10/86 BETWEEN : K.A.A.M. APPELLANT AND : G.E.B. RESPONDENT Coram: Welsh, Rowe and Mercer, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Family Court, 200902U0436 Appeal Heard: March 1, 2011 Judgment Rendered: June 8, 2011 Reasons for Judgment by Rowe, J.A. Concurred in by Welsh and Mercer, JJ.A. Counsel for the Appellant: Nick Avis, Q.C. Counsel for the Respondent: John Lavers & Sarah Learmonth

Rowe, J.A.: INTRODUCTION [ 1 ] This appeal relates to civil contempt arising from breach by a solicitor of a court order in a family matter. The principal issue is the scale of costs to be awarded to a successful plaintiff in a contempt proceeding. FACTS [ 2 ] The Trial Division judge summarized the facts and issues as follows: [1] K.M. is a retired business executive. He lives in St. John’s, NL. G.B. is a lawyer. He lives and practices law in Mount Pearl, NL. The parties are unrelated and, so far as I know, were unconnected until this Court appointed Mr. B. guardian ad litem of Mr. M.’s son, A., in late 2007. K.

M. separated from M. (H.) M. in December, 2002. The M.s are divorced now but have been locked in a bitter dispute since their marriage broke down. They have resolved many of the issues arising but the most contentious of all, whether Mr. M. gets access to A., and the extent of his access, if he does, is still before this Court. [2] On February 3, 2009, LeBlanc, J. of this Court ordered Dr.

Kenneth Waldron, Ph.D., to do a full assessment of A., “…including… [his] maturity level…, his ability to make reasonable and appropriate decisions regarding his parenting relationships, whether parental alienation is present and has influenced and/or is influencing…[A.], and such other matters as Dr. Waldron may decide are appropriate”. In paragraph 5 of the same order, LeBlanc, J. directed “[c]ounsel in this matter…not to have substantive communications with Dr. Waldron on any matter unless all counsel are present and agree with such communication”. This proscription applied to Nick Avis, Q.C., Mr.

M.’s counsel, Glenda Best, Q.C., Ms. M.’s counsel, and G.B., A.’s counsel. [ 3 ] Mr. M. claims that Mr. B. breached LeBlanc, J.’s order when he spoke to Dr. Waldron by telephone on Saturday, April 4, 2009 and had what Mr. M. calls “substantive communications” with Dr. Waldron on matters directly related to Dr. Waldron’s investigation. Mr. M. says Mr. B. is in contempt of LeBlanc, J.’s order and applied to this Court for an order that Mr. B. is in contempt. Mr. M. has also asked that Mr. B. be dismissed as A.’s counsel, and requests his costs and ancillary relief. [ 4 ] Mr. M.’s application raises three issues: 1.

Did Mr. B. breach LeBlanc, J.’s December 10, 2008 order? If so, 2. Is Mr. B. in contempt of court? If so, 3. What sanctions should be applied to Mr. B.? [3] The Trial Division judge outlined the three elements for contempt: 1. The court order must state what is prohibited clearly and unequivocally. 2. The contemnor must act deliberately and willfully. 3. Contempt must be proved beyond a reasonable doubt.

He noted that it is not necessary to show that the alleged contemnor intended to put himself in contempt, only that he or she did some act knowing it would breach a court order. [4] Justice Leblanc’s December 10, 2008 order included the following: Counsel in this matter are not to have substantive communications with Dr. Waldron on any matter unless all counsel are present and agree with such communication. [ 5 ] Dr. Waldron arrived in St. John’s on Friday, April 3, 2009. He called Mr. B. at home on Saturday, April 4. They spoke for five minutes. On Sunday, April 5, Mr. B. sent the following e-mail to Mr.

Avis and Ms. Best: When we [Mr. B. and Dr. Waldron] spoke yesterday morning he [Dr. Waldron] asked me what my client [A.M.] wanted out of this process and how [Mr. B.] saw the issues (or words to this effect). I answered his questions. [ 6 ] In an August 18, 2009 decision ( 2009 NLUFC 26 ), the Trial Division judge held that: (

i) Justice Leblanc’s order (as quoted above) was clear; (ii) Mr. B. acted deliberately in breaching the order; and (iii) the foregoing matters were proven beyond a reasonable doubt. A further proceeding was set to deal with sanctions. [ 7 ] In a March 19, 2010 decision ( 2010 NLUFC 8 ), the Trial Division judge dealt with sanctions for Mr. B.’s contempt. The judge wrote: [3] The general remedies available to punish a person in contempt of court are found in Rule 53.05 of the Rules of the Supreme Court,

1986. While the court may impose any of the following sanctions, it is not limited to them: • Imprisonment. • Seizing property. • Imposing fines. • Striking out pleadings, staying or dismissing proceedings or judgments, and prohibiting the introduction of evidence. • Ordering the payment of the costs and expenses of other parties. [4] In Health Care Corp. of St. John’s v.

N.A.P.E. [(2000), (NL SC), 196 Nfld. & P.E.I.R. 275 (NLTD), para. 26]Green, C.J.T.D. (now C.J.N.L.) made it clear that Rule 53.05 is only a “starting point” and the court is not precluded by it fromconsidering other appropriate remedies, in that the court’s power to punish for contempt preceded the rule and was not conferred by it:“It is important to appreciate, however, that the authority of the court to impose a particular type of penalty does not derive from thisrule. The rules do not confer jurisdiction on the court.

Its jurisdiction arrives [sic] from its inherent powers as a superior court asdeveloped in the common law. Nevertheless, Rule 53.05 is a good starting point, as an indication of approaches which a court mayordinarily take. It does not, however, constrain the court from making other appropriate dispositions if the circumstances of a particularcase warrant”. [8] Mr. M. sought the following sanctions against Mr. B.: 1. An order that Mr. B. pay solicitor and own client costs to be taxed in the contempt proceedings. 2. An order that Mr.

B. pay solicitor and own client costs for the proceedings which resulted in the February 3, 2009assessment order, and “related activities”. 3. An order that Mr. B. repay Mr. M. his portion of Mr. B.’s fees and disbursements for the proceedings which resulted in theFebruary 3, 2009 assessment order, and “related activities”. 4. An order that Mr. B. repay Mr. M. his portion of the fees and disbursements which Mr. M. paid to Dr. [Waldron] for hisassessment report. 5. An order that Mr. B. return $10,000 of funds he has on deposit from Mr. M. 6. An order removing Mr.

B. as A.’s guardian ad litem and A.’s counsel in the main action. [9] The Trial Division judge dealt with items 3 - 6 above as follows: [11] … The … relief [other than costs] that Mr. M. is seeking is not relevant to the contempt application. The judge dealing with themain action involving Mr. M., his former wife and their son, A., is the right person to decide whether Mr. M. is entitled to any or all ofthe other relief he is seeking. Before dealing with costs, however, let me state some of the reasons I should not deal with the other reliefMr. M. is seeking. [12] I did not know, for example, until Mr.

M.’s counsel informed me during his oral remarks on sanctions that Mr. B. had received a$10,000 deposit from Mr. M. Even then I was not told when Mr. M. paid the money, what he paid it for or when it would be disbursedto or by Mr. B. or returned to Mr. M. [13] More importantly, I do not know the status of the main action, nor should I. Mr. M. believed that Mr. B. was in contempt ofLeBlanc, J.’s order and he applied to find him in contempt. His application raised a narrow, discrete issue that I addressed within theconfines of the contempt application.

I was informed collaterally of aspects of the main action, but only to provide context for thecontempt application and not because its merits were otherwise relevant to what I was asked to do. ….. [16] The request that Mr. M. be reimbursed the money which Mr. M. paid Dr. [Waldron] is linked to the help that Dr. [Waldron’s]report may provide to the judge dealing with the access issue. If the trial judge finds that the report was tainted and unhelpful in dealingwith the issue because of Mr. B.’s interaction with Dr. [Waldron], ordering Mr. B. to reimburse the money Mr.

M. paid may be one wayof dealing with the matter. That too is beyond my competence here. [17] I say the same thing about Mr. M.s’ request to dismiss Mr. B. as A.’s guardian ad litem or to direct him to step down as A.’scounsel. … [10] The Trial Division judge dealt with costs as follows: [21] The discretion to order costs is broad, but it is not unfettered. At a minimum the discretion must be exercised judicially andaccording to law. Wells, C.J.N., contemplated limitations on the exercise of the discretion in Holloway v.

Holloway [[2001] NFCA 17,para. 63]: “The breadth of the discretion which the Court has with respect to ordering costs would allow the Court to grant the respondent's request. However, its decision cannot be based on a whim. Neither can it be a knee jerk reaction to the abuse of process by the appellant intaking the application he did or to the unsound position taken by the appellant on this appeal. The Court must exercise its discretionthrough the application of proper principles”.

..... [24] Wells, C.J.N. recently set aside a trial judge's award of solicitor and client costs on an interlocutory proceeding [Bartlett v.Bartlett, [2008] N.J. No. 323 (NLCA)] and stated that it would be misconstruing his Court's 1998 decision in Perry v. Heywood[(1998) (NL SC), 175 Nfld. & P.E.I.R. 253 (NLCA)] to see it as "...soften[ing] somewhat the standard for awardingcosts on a solicitor and client basis expressed by the Supreme Court of Canada in Young v. Young, et al. (SCC), [1993]4 S.C.R. 3".

The standard, as Wells, C.J.N. confirmed — that solicitor and client costs are "...generally awarded only where there hasbeen reprehensible, scandalous or outrageous conduct on the part of one of the parties..." — still applies and Perry v. Heywood didnothing "...to alter that general rule". [11] Noting that Mr. M. claimed Mr. B. was motivated by malice against him when he spoke to Dr. Waldron, the judge wrote: [27] Mr. M. overreaches when he characterizes Mr. B. so negatively. It is true that Mr. M. proved beyond a reasonable doubt that Mr.B. was in contempt of LeBlanc, J.’s court order. He also proved that Mr.

B. acted deliberately and wilfully when he did. But Mr. B.’sactions fall short of the mischievousness that Mr. M. attributes to Mr. B.’s motives. I found that Mr. B.’s actions were “deliberate andwillful” because he intentionally did

an act which was prohibited by the order and not because he actually intended to disobey the order. The distinction is an important one and is particularly relevant to the sanctions which apply. [28] Mr. B.’s conversation with Dr. [Waldron] was neither inadvertent, as he claimed, nor was it a calculated, deliberate effort todirectly influence Dr. [Waldron]. It will be recalled that Dr. [Waldron] questioned Mr. B. on substantive matters on April 4, 2009 andnot that Mr. B. simply pressed his unsolicited views on Dr. [Waldron]. Mr.

B. knew the difference and he should have politely declinedto answer the questions which Dr. [Waldron] put to him. ….. [31] Overall, I believe that Mr. B. was advancing A.’s interests more zealously than was either appropriate or permissible in thecircumstances. His conduct lies about midway between a deliberate and willful attempt to try and influence Dr. [Waldron] on the onehand and an inadvertent and unintentional act on the other; something akin to carelessness or neglect. Mr. B.’s judgment may have beenclouded by the heightened adversarial nature of this case but a solicitor of Mr.

B.’s experience and competence should know and observethe limits of his professional retainer. ….. [36] As to the kind of costs, I am satisfied that Mr. M. should receive his party-and-party costs to be taxed. Mr. M. chose to apply forcontempt as he had a right to do; but he was not compelled to do so. He could have foregone the separate proceedings and raised theissue in the main action, where most of the relief that he is seeking by this application would be, as I have already stated above, moreappropriately addressed. [12] Mr. B. appealed the decision finding him in contempt. Mr.

M. cross-appealed the decision limiting the sanctions to costs. ANALYSIS [13] I am in substantial agreement with the reasons of the Trial Division judge as regards his finding that Mr. B. was in contemptand also limiting the sanctions to costs. I do not agree as to the scale of costs. [14] No verdict was possible other than that Mr. B. was in contempt. Justice LeBlanc’s order was clear. Mr. B. breached itknowingly in his telephone conversation with Dr.

Waldron on Saturday, April 4, 2009. [15] The Trial Division judge was also correct when he held that other relief sought (items 3 - 6 in para. 8 above) is for the mainaction, rather than the contempt proceeding. SOLICITOR AND CLIENT COSTS [16] As noted by the Trial Division judge, the basic rule for awarding solicitor-and-client costs was set out by the Supreme Court ofCanada in Young v. Young, (SCC), [1993] 4 S.C.R. 3 at p. 134: Solicitor-and-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part ofone of the parties.

In proceedings for contempt, the requirement for reprehensible conduct can be found in the actions that constituted the contempt. (Analternative view is that there is simply a special rule regarding costs in contempt cases.) [17] In P. (G.D.) v. C. (E.L.) (2009), 2009 NLTD 12 , 286 Nfld. & P.E.I.R. 301 (NLTD), a mother destroyed her children’spassports in defiance of the court’s order that she hand them over to the children’s father for a trip to Florida.

Justice Butler ordered thatthe mother pay the father’s out-of-pocket expenses and awarded solicitor-and-client costs. [18] In Bell Expressvu Limited Partnership v. Rodgers, [2008] O.J. No. 2912 (Sup. Ct. J.), Justice Mesbur wrote: [12] … [A]uthorities support the view that costs in contempt proceedings should be awarded on a substantial indemnity scale toprevent the party pursuing compliance from having to bear the cost of the contemnor’s non-compliance … Justice Mesbur chose to reduce the plaintiffs’ costs to a level she thought appropriate, given the defendants’ income.

One authority citedin Bell Expressvu was Regional Municipality of Niagara Police Services Board v. Curran (2002), (ON SC), 57 O.R.(3d) 631 (Sup. Ct. J.), where the judge stated the principle more strongly:

[49] In civil litigation, I think that contempt proceedings occupy a special place. It should be the rule, not the exception, that, for anymotion necessitated by contempt, the contemner must pay the solicitor and client costs of the other side. [19] In Industrial Hardwood Products

(1996) Ltd. v. International Wood and Allied Workers of Canada, Local 2693, [2000] O.J.No. 3510 (Sup. Ct. J.) (which related to contempt proceedings), Justice McCartney wrote: [5] As far as costs are concerned, I agree with the Plaintiff's counsel that anything short of complete indemnification for the costs ofthis matter would have the effect of punishing the Plaintiff, which would be totally unjustified. Consequently the Plaintiff will have itscosts of this motion on a solicitor and client basis to be assessed. [20] In Georgia Pacific Canada Inc. v.

International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers andHelpers, Local Lodge No. D513, 1999 ABQB 182, Justice Lee wrote: [226] Solicitor-client costs are routinely awarded in civil contempt proceedings, pursuant to Rule 704(2). As stated in Zelazo (No. 1),supra, at page 333, "[t]he costs merely serve to indemnify the … plaintiff for expenses which he has incurred coming to court.

They arenot really punishment as such." This same point is made again in Zelazo v Masson (No. 2) (1992) (AB KB), 129 A.R.388 (Q.B.), at pages 391 and 392, where it is noted that "[n]ot to award such costs would be to punish the plaintiff". [21] The Federal Court of Appeal took a similar approach in Canadian Copyright Licensing Agency v. U-Compute, 2007 FCA 127, [2007] F.C.J. No. 479, where Justice Létourneau wrote: [38] It is a customary practice in contempt cases to impose costs on a solicitor-client basis: see Merck and Co. v. Apotex Inc. (2003),2003 FCA 234 , 25 C.P.R. (4th) 289, at paragraph 93.

In the case of Pfizer Canada Inc. v. Apotex Inc. (1998), (FC), 86 C.P.R. (3d) 33, at paragraph 8, Hugessen J. for the Federal Court, Trial Division explained in the following terms the rationalefor the practice: [8] It is, of course, customary, in matters of this sort, to require that persons found guilty of contempt pay costs on a solicitor andclient basis to the party who has brought the matter to the Court's attention.

The policy underlying that jurisprudence is clear: a partywho assists the Court in the enforcement of its orders and in the enforcement of respect for its orders should not, as a rule, be put out ofpocket for having been put to that trouble. [39] Words to the same effect can be found in Innovation and Development Partners/IDP Inc. v. Canada (1993), 64 F.T.R. 177 andpage 181 (Fed. Ct.

T.D.) where Cullen J. held that the Court must ensure that a "party acting to support compliance with an order of thecourt does not bear the costs of proceedings that were necessary to maintain the orderly administration of justice". [22] Having regard to the foregoing jurisprudence, I would conclude: (

i) conduct required for the award of solicitor-client costs may be found in the actions that constitute the contempt; (ii) ordinarily, a successful party in contempt proceedings will be awarded costs on a solicitor-and-client basis, so that the contemnorbears the full burden of costs and the injured party none; (iii) notwithstanding the foregoing, in contempt proceedings the court retains discretion as to the award of costs. [23] In this case, the Trial Division judge did not have regard to pertinent jurisprudence and, thus, failed to be guided by relevantprinciples.

Accordingly, his decision to award costs on a party-and-party basis is set aside. [24] The contempt itself constituted the reprehensible conduct and, applying the general rule (from which there is no basis to departon the facts of this case), I would award costs to Mr. M. on a solicitor-and-client basis for proceedings before both the Trial Division andthis Court. CONCLUSION [25] Mr. B.’s appeal against his contempt conviction is dismissed. Mr.

M.’s appeal regarding sanctions is dismissed, save that thescale of costs for proceedings before the Trial Division shall be solicitor and client, rather than party and party. As well, Mr. M. shallhave his costs on a solicitor-and-client basis in this Court. _____________________________ M. H. Rowe, J.A. I Concur: ____________________________ B. G. Welsh, J.A. I Concur: ____________________________ K. J. Mercer, J.A.