Betts v. Bezanson-Gallant, 2022 NSSC 114

SUPREME COURT OF Nova Scotia Citation: Betts v. Bezanson-Gallant , 2022 NSSC 114 Date: 20220428 Docket: HFX153660 Registry: Halifax Between: Elsie Betts Plaintiff (Moving Party) v. Carol A. Bezanson-Gallant and Blair Gallant Defendants DECISION Judge: The Honourable Justice Darlene A. Jamieson Heard: March 29 and 30, 2022, in Halifax, Nova Scotia Counsel: Jeremiah Raining Bird, for the Plaintiff David Coles, Q.C. and Katie Short (Articled Clerk), for the Defendants By the Court: Background: [ 1 ] These neighbours have been feuding over a right-of-way for decades.

Unfortunately, the decision of this Court in 2004 did not put an end to the acrimony. [ 2 ] A trial was held in these proceedings before the Honourable Justice Margaret J. Stewart on July 8, 9, and 10, 2002, and on

February 2, 3, and 4, 2004. Justice Stewart made findings for the Plaintiff (the moving party here) in a decision dated April 5, 2004 ( 2004 NSSC 70 ). There was a resulting order granted by Justice Stewart dated October 25, 2004.

The relevant portion of the order states: …It is further ordered that the Plaintiff shall have a permanent injunction restraining the Defendants from further interfering with the use and enjoyment of the rights of way by the Plaintiff, her invitees, guests and trade persons, and requiring the Defendants not to impede the Plaintiff from launching, docking and retrieving boats from the southwestern boundary of the rights-of-way for access to and from the shores of St. Margaret’s Bay; … [ 3 ] The Plaintiff, Ms. Elsie Betts, filed a Notice of Motion on November 6, 2019 (amended November 19, 2019).

It states: Elsie Betts, the Plaintiff, (Defendant by Counterclaim) in this proceeding, moves for an Order that: (

a) The defendants, Carol A. Bezanson-Gallant and Blair A. Gallant, be held in contempt of the order of the Honourable Justice Margaret J. Stewart dated October 25, 2004; (

b) An order compelling Carol A. Bezanson-Gallant and Blair A. Gallant to comply with the said order of Justice Stewart on such terms that may be just; (

c) The costs of this motion on a solicitor and client basis; (

d) Such further and other relief as to this Honourable Court may seem just. [ 4 ] The Notice of Motion further states: The defendants have failed to comply with the said order of the Honourable Justice Margaret J. Stewart by building a rock barrier over the rights-of-way declared by Justice Stewart; … [ 5 ] Contempt motions are typically addressed in a bifurcated process. If liability for contempt is established, then submissions and evidence follow in a penalty phase. Justice Cromwell stated the following in Carey v.

Laiken , 2015 SCC 17 (S.C.C.): 18...[A]s a general rule, proceedings are bifurcated into a liability phase — where the case on liability proceeds and a defence is offered — and, if liability is established, a penalty phase. In contempt proceedings, liability and penalty are discrete issues. [ 6 ] The bifurcated process has been adopted by this court. Justice Rosinski in Terris v.

Meisner , 2019 NSSC 252 (N.S.S.C.) stated: [28] Generally speaking, contempt proceedings should be bifurcated into a liability phase – where the case on liability proceeds and a defence (if any) is offered- and, if liability is established, a penalty phase. . . . [39] I find Tracey Meisner guilty of contempt beyond a reasonable doubt. [40] The matter of penalty, and costs, will be dealt with on a subsequent occasion. (See also: Ucore Rare Metals Inc. v. IBC Advanced Technologies Inc. , 2020 NSSC 232 , Keinick v. Bruno , 2012 NSSC 218 ; Sleigh v. McLean , 2017 NSSC 28 , Mason v.

Lavers , 2011 NSSC 63 and Pittson v. Murnaghan , 2011 NSSC 402 ). [ 7 ] This bifurcated process was discussed with counsel and it was agreed this was the appropriate method for proceeding. Evidence on the Motion: [ 8 ] Ms. Betts, the Plaintiff (moving party), filed two affidavits sworn on October 19, 2019, and February 17, 2019. Ms. Bezanson- Gallant and Mr. Gallant, the Defendants (“the Gallants”), filed two affidavits of Ms. Bezanson-Gallant sworn December 31, 2019, and February 11, 2022, and two affidavits of Mr. Gallant sworn December 31, 2019, and February 11, 2022.

All of the affiants were cross- examined. [ 9 ] Ms. Betts filed an expert report of a surveyor, Mr. Thomas Giovannetti. Mr. Giovanetti was cross-examined. Issue [ 10 ] The issue for determination on this Motion is whether the Gallants are in contempt of the order of Justice Stewart by allegedly carrying out work in the area of the right-of-way for beach access that has impeded Ms. Betts’ access to the shore.

In other words, have the Gallants’ actions interfered with the use and enjoyment of the right-of-way by the Plaintiff, her invitees, guests and trade persons / have they impeded the Plaintiff from launching, docking and retrieving boats from the southwestern boundary of the right-of-way for access to and from the shores of St. Margaret’s Bay. [ 11 ] The Plaintiff says the Defendants constructed a rock wall in 2014 which has deprived her of use and enjoyment of the right-of- way by restricting her access to the shores of St. Margaret’s Bay. The Gallants say the retaining wall was built by the prior owner. They

say anything they did subsequently was to enhance access and stop erosion, including installing three rock steps that were placedadjacent to the rock wall. [12] Although not the focus of the motion, Ms. Betts also maintains that Mr. Gallant has blocked access to the right-of-way to herhome on several occasions. The Law [13] There is no disagreement on the applicable law. [14] Civil Procedure Rule 89, the Contempt Rule, states in part: 89.04 Motion or application by person other than judge

(1) A party, the prothonotary, a person appointed by the court to perform

an act on behalf of the court, the Attorney General ofNova Scotia, or another interested person may do either of the following: (

a) make a motion for a contempt order in a proceeding to which the conduct alleged to be contemptuous relates; (

b) start an application for a contempt order, if the conduct alleged to be contemptuous does not relate to aproceeding. … 89.05 Notice of motion for contempt order

(1) A person who wishes to make a motion for a contempt order may file a notice under Rule 23 - Chambers Motion, in theproceeding to which the alleged contemptuous conduct relates.

(2) A notice of motion for a contempt order must contain the standard heading of the proceeding, be entitled “Notice of Motion for Contempt Order”, be addressed to the person sought to be held in contempt, and include all of the following: (

a) a statement that the person making the motion moves for an order holding the person in contempt and punishing the person for the contempt, including the full name of both persons; (

b) the time, date, and place at which the motion will be heard; (

c) the same information a judge provides for a citation about the presumption of innocence, right to counsel, and participationin the hearing; (

d) a reference to each affidavit relied on by the party, identified by the name of the affiant and either the date it was sworn or a brief description of the contents; (

e) a statement that the person has the right to require an affiant to be present at the hearing for cross-examination; (

f) a statement that the person may present evidence by filing an affidavit or calling a witness at the hearing.

(3) The notice of motion for a contempt order may be in Form 89.05.

(4) A person who files a notice of motion for a contempt order must give notice of the motion to the person sought to be held incontempt in accordance with provisions for giving notice of a proceeding to a party in Rule 31 - Notice, as if the notice of motionwere an originating document.

(5) The notice of motion must be delivered in sufficient time that the applicable deadlines in Rule 23.11, of Rule 23 - ChambersMotion, can be met. 89.09 Disclosure and silence A person against whom a contempt proceeding is started is entitled to the same disclosure, and to exercise the same rightto remain silent, as a person against whom an information is laid under the Criminal Code. [15] The Supreme Court of Canada summarized the law of contempt in Carey v. Laiken, supra at paras. 30-37: 30 Contempt of court "rest[s] on the power of the court to uphold its dignity and process... .

The rule of law is directly dependent onthe ability of the courts to enforce their process and maintain their dignity and respect": United Nurses of Alberta v. Alberta (AttorneyGeneral), (SCC), [1992] 1 S.C.R. 901, at p. 931. It is well established that the purpose of a contempt order is "first andforemost a declaration that a party has acted in defiance of a court order": Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R.612, at para. 35, cited in Bell ExpressVu Limited Partnership v.

Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20. 31 The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. Thedistinction, which the parties to this appeal accept, rests on the element of public defiance accompanying criminal contempt: see, e.g.,United Nurses, at p. 931; Poje v. Attorney General for British Columbia, (SCC), [1953] 1 S.C.R. 516, at p. 522. Withcivil contempt, where there is no element of public defiance, the matter is generally seen "primarily as coercive rather than punitive": R.J.

Sharpe, Injunctions and Specific Performance (2nd ed. (loose-leaf)), at para 6.100. However, one purpose of sentencing for civilcontempt is punishment for breaching a court order: Chiang (Trustee of) v. Chiang, 2009 ONCA 3, 305 D.L.R. (4th) 655, at para. 117.

Courts sometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor's continuing conduct and to deterothers from comparable conduct: Sharpe, at para 6.100. 32 Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services for Childrenand Adults v. G. (N.) (2006), (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists, at para.71; Bhatnager v. Canada (Minister of Employment and Immigration), (SCC), [1990] 2 S.C.R. 217, at pp. 224-25; Jackson v.

Honey, 2009 BCCA 112, 267 B.C.A.C. 210, at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105, 196 N.S.R.(2d) 35, at paras. 17 and 32; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204, at para. 47; Soper v. Gaudet, 2011 NSCA 11, 298N.S.R. (2d) 303, at para. 23.

These three elements, coupled with the heightened standard of proof, help to ensure that the potential penalconsequences of a contempt finding ensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11. 33 The first element is that the order alleged to have been breached "must state clearly and unequivocally what should and should notbe done": Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. Indus Corp., (Ont. S.C.J.), at para. 40.

This requirement of clarity ensures that a party will not be found in contempt where an order isunclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it is missing anessential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances haveobscured its meaning: Culligan Canada Ltd. v.

Fettes, 2010 SKCA 151, 326 D.L.R. (4th) 463, at para. 21. 34 The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p.266; College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor mayattract liability on the basis of the wilful blindness doctrine (ibid.). 35 Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do theact that the order compels: Sheppard v.

Sheppard (1976), (ON CA), 12 O.R. (2d) 4 (C.A.), at p. 8. The meaning of thiselement is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily. 36 The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with courtorders: see, e.g., Hefkey v. Hefkey, 2013 ONCA 44 , 30 R.F.L. (7th) 65, at para. 3.

If contempt is found too easily, “a court’soutrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks toprotect”: Centre commercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663 , at para. 7. As this Court has affirmed,“contempt of court cannot be reduced to a mere means of enforcing judgments”: Vidéotron Ltée v. Industries Microlec ProduitsÉlectroniques Inc., (SCC), [1992] 2 S.C.R. 1065, at p. 1078, citing Daigle v. St-Gabriel-de-Brandon (Paroisse), (QC CA), [1991] R.D.J. 249 (Que. C.A.).

Rather, it should be used “cautiously and with great restraint”: TG Industries, atpara. 32. It is an enforcement power of last rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v.

Hamilton (City), 2008ONCA 182 , 89 O.R. (3d) 81, at paras. 41-43; Centre commercial Les Rivières ltée, at para. 64. 37 For example, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judgeentertaining a contempt motion generally retains some discretion to decline to make a finding of contempt: see, e.g., Morrow, Power v.Newfoundland Telephone Co. (1994), (NL CA), 121 Nfld. & P.E.I.R. 334 (Nfld. C.A.), at para. 20; TG Industries, atpara. 31.

While I prefer not to delineate the full scope of this discretion, given that the issue was not argued before us, I wish to leaveopen the possibility that a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would workan injustice in the circumstances of the case. [Emphasis Added] [16] In short, the three elements of contempt are as follows: the terms of the order must be clear and unequivocal, they must haveactual knowledge of the terms, and they must have intentionally done the act that the order prohibits or failed to do the act the ordercompels.

Underlying this analysis, is the guidance from the court that contempt of court should be used cautiously and with greatrestraint, being an enforcement power of last resort (Carey v. Laiken, supra). [17] In relation to the third requirement that the party allegedly in breach must have “intentionally” done the act that the orderprohibits or intentionally failed to do the act that the order compels, Justice Cromwell said:

(3) The Required "Intent" 38 It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt ofan intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, atpara. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25; Sharpe, at¶ 6.190. The Court of Appeal followed this approach.

As it noted, to require a contemnor to have intended to disobey the order would putthe test "too high" and result in "mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge"(2013 ONCA 530 (Ont. C.A.)(para. 59).

Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding ofcontempt: para. 62; see also Sheppard; and Sharpe, at ¶6.200. … 47 I conclude that "contumacious" intent was not required in this case, and to the extent that the judge at first instance foundotherwise in overturning her earlier finding of contempt, she erred in law. [Emphasis added] [18] It is noteworthy that Justice Cromwell (as he then was) also discussed what is meant by intent in the Nova Scotia Court ofAppeal decision in TG Industries Ltd. v. Williams, 2001 NSCA 105, where, in writing for the court, he said:

13 Civil and criminal contempt, although they are not mutually exclusive categories, have different elements and purposes. The coreelement of civil contempt is failure to obey a court order of which the alleged contemnor is aware. In Poje v. British Columbia (AttorneyGeneral), (SCC), [1953] 1 S.C.R. 516 at 522, Kellock, J. approved a definition of civil contempt as "...disregardingorders or judgments of a Civil Court, or in not doing something ordered to be done in a cause ...". To similar effect, McLachlin, J. (as shethen was) in United Nurses of Alberta v.

Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901 at 931 stated that "[a]person who simply breaches a court order ... is viewed as having committed civil contempt." See also Baxter Travenol Laboratories v.Cutter (Canada) Ltd., (SCC), [1983] 2 S.C.R. 388 at 396 - 397 and Bhatnager v. Canada (Minister of Employment andImmigration), (SCC), [1990] 2 S.C.R. 217 at 224 - 227. The primary objective of exercising the civil contempt poweris to secure compliance with the order.

As Kellock, J. said in Poje at 517, in the case of civil contempt, "... the requirements of thesituation from the standpoint of enforcement of the rights of the opposite party constitute the criterion upon which the court acts." (Seealso Sunnyside Shopping Plaza v. Sunnyside Transmission (1981), (NS SC), 46 N.S.R. (2d) 156 (S.C.T.D.) at para. 16and Leger v. Dunbar Estate, [1983] N.S.J. No. 209 (S.C.T.D.) at para. 31). . . . 16 The second difficulty in the authorities arises from the use of terms such as "intent" and "intentional" in different senses.

In somecases, it is clear that the intention required for civil contempt is the intention to commit

an act which is, in fact, prohibited (see, forexample, Re Sheppard v. Sheppard (1975), (ON SC), 62 D.L.R. (3d) 35 (Ont. C.A.) at 595. In other cases, the languageappears to suggest that the required intention is that the alleged contemnor meant to disobey it in the sense that he or she knew the actwas prohibited and deliberately chose to do it anyway: see, for example, Morrow, Power v. Newfoundland Telephone Co. et al. (1994), (NL CA), 121 Nfld. & P.E.I.R. 334 (Nfld. S.C.A.D.) at para. 19.

In my view, civil contempt requires intention in theformer but not the latter sense of the word. . . . 19 There is a long line of authority for the view that intention to disobey is not an element of civil contempt. I will briefly reviewwhat, to my mind, are the four leading cases. [Emphasis added] [19] The law is clear that the intention required for civil contempt is the intention to commit

an act which is, in fact, prohibited bythe order. There is no requirement to prove an intent to defy an order. In other words, there is no burden on the applicant to show therespondent intended to act contemptuously. [20] The burden is on the moving party, Ms. Betts, to prove each element of contempt beyond a reasonable doubt. Because civilcontempt is quasi-criminal in nature, an alleged contemner is afforded the same protection and procedural safeguards as an accused in acriminal proceeding.

The procedural protections afforded to an alleged contemner in the civil context accord with the principles offundamental justice applicable to an accused in a criminal proceeding. [21] With reference to defining the beyond a reasonable doubt standard, Justice Norton stated in Ucore Rare Metals Inc. v. IBCAdvanced Technologies Inc., 2020 NSSC 232: [38] The burden of proving civil contempt lies with the moving party, in this case Ucore, which must prove each element of contemptbeyond a reasonable doubt.

The heightened criminal standard applies to ensure that the potential penal consequences of a contemptfinding are only imposed in appropriate cases. [39] What is meant by "beyond a reasonable doubt"? The burden has been canvassed in many decisions, perhaps most notably in R. v.Lifchus, (SCC), [1997] 3 S.C.R. 320 (S.C.C.), wherein Justice Cory stated the following: 39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be givenalong these lines: The accused enters these proceedings presumed to be innocent.

That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression "beyond a reasonable doubt" mean? The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice.

Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [22] Further, in discussing how to define the reasonable doubt standard, Iacobucci J., writing for the Supreme Court of Canada in R.v. Starr, 2000 SCC 40 stated:

242. In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much more closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus , a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible.

It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt.

In this regard, I am in agreement with Twaddle J.A. in the court below, when he said at p. 177: If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability.

The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed ... [ 23 ] Justice Norton in Ucore, supra referenced two further principles that should guide courts in applying the three part test for contempt: [41] First, according to the Supreme Court of Canada in Carey , given that contempt is such an extraordinary remedy, the Court's power should be exercised only as a last resort. Similarly, the court in Blackman v. CIBC Wood Gundy Financial Services Inc., 2009 NSSC 416 , held (citing T.G. Industries Ltd. v.

Williams , 2001 NSCA 105 ) that the contempt power should be exercised "...cautiously and with great restraint...". In Skipper Fisheries Ltd. v.

Thorbourne , 1997 NSCA 16 , Justice Hallett held for the Majority of the Nova Scotia Court of Appeal that "[t]he jurisdiction of the Court to make a finding of contempt should be exercised with scrupulous care and only when the contempt is clear". [42] Second, as the Supreme Court of Canada noted in Carey (at para 37 ), Judges have inherent discretion to decline to impose a contempt finding where the offending party has acted in good faith in taking reasonable steps to comply with the Order, and/ or where it would work an injustice in the circumstances of the case.

The Parties’ Positions The Plaintiff (moving party) [ 24 ] Ms. Betts claims that the Gallants have violated the permanent injunction issued by Justice Stewart and interfered with her use and enjoyment of the right-of-way declared by Justice Stewart by constructing a rock barrier along the beach access near the shore of St. Margaret’s Bay and across the right-of-way, obstructing her access to the shore.

She says that in or around May 2014, in constructing the rock barrier, the Defendants removed a small launching area that she could use for boating and deposited boulders and debris in the right-of-way, obstructing her access to the shore. [ 25 ] Ms. Betts submits that all three elements of contempt have been satisfied. She says that first, the order makes clear that the Defendants shall not interfere with the Plaintiff’s use and enjoyment of the right-of-way by impeding access to the shores of St. Margaret’s Bay. Ms.

Betts submits that what is prohibited is clear and unequivocal and that the building of a rock wall over the right-of- way clearly contravenes it. [ 26 ] She says in relation to the second part of the test that there can be no doubt the Gallants, as the Defendants in the proceeding, were aware of the order at the time it was made. In any event, they were reminded of their obligations by Ms. Betts’ counsel on July 24, 2019. Thirdly, Ms. Betts says it is clear from her evidence that the Gallants intentionally built the rock wall and the photos taken clearly show this.

She says that the above represents proof beyond a reasonable doubt that the Gallants are in contempt of the order. The Defendants [ 27 ] The Gallants say that Justice Stewart ordered: For the purpose of clarity, the southwestern boundary of the right-of-way is located some 49 feet more or less in a northwesterly direction from a survey marker set by Arthur Backman, NSLS, and shown on the plan as aforesaid. [ 28 ] They say the Court settled the location of the beach / access to the water enjoyed by Ms.

Betts, being that the access right-of- way was over the cleared portion of the top of the retaining wall then existing. [ 29 ] The Gallants say they have not restricted Ms. Betts’ access to the shores of St. Margaret’s Bay, but have enhanced her rights. They say the steps leading to the beach enhance access whether one is launching a small craft over the retaining wall, or simply walking to the beach for a picnic or a swim. [ 30 ] The Gallants say the remedy of contempt is a last resort, not a first. No specific performance action, or nuisance claim was brought by Ms. Betts.

They say this is the type of case where the Court should properly exercise its discretion and refuse to find the Gallants in contempt in any event. [ 31 ] The Gallants say the order itself provides the remedy for any breach by them. The order states: IT IS ORDERED that the Plaintiff [Ms. Elsie Betts] shall be entitled to remove from the thirty (30) foot rights-of-way all trees, rocks, brush and other impediments to the free and unfettered use of the rights-of-way by the Plaintiff.

Analysis Do the actions of the Gallants represent contempt? 1. Is the Order clear and unequivocal [ 32 ] I am of the view that the relevant portions of the order are clear and unequivocal. The boundaries of the right-of-way are not in question in this motion. They are set out in the order. The parties’ prior litigation also established the Betts’ access to the shore.

Justice Stewart stated at para. 41 of her decision: I find Betts access to and from the shore over lot 1 extends 30 feet beyond the southwestern boundary of Lot 1 meets the high water mark some 19 feet more or less of the survey marker set by Arthur Backman, being 187.5 feet more or less, with the Betts having the ability however, to continue to access the shore directly off of the right-of-way at the commonly used beach access area. [ 33 ] The order grants Ms.

Betts a permanent injunction restraining the Defendants from further interfering with the use and enjoyment of the rights-of-way and requires the Gallants not to impede the Plaintiff from “launching, docking and retrieving boats on the southwestern boundary of the right-of-way for access to and from the shores of St. Margaret’s Bay; …” 2. Did the Respondents have actual knowledge of the order? [ 34 ] Similarly, there is no dispute that the Gallants had actual knowledge of the order. The order resulted from the prior litigation in which they were active participants, being the Defendants.

Counsel for the Gallants accepted the order as to form. In addition, counsel for Ms. Betts reminded the Defendants of their obligations by letter on July 24, 2019. In the letter, counsel for Ms. Betts referenced the order and enclosed a copy of both the order and the Backman survey plan. 3.

Did the Respondents intentionally do the act that the order prohibits or intentionally fail to do the act that the order compels? [ 35 ] I now turn to the third requirement of contempt, that the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. Has there been work done by the Gallants in the beach access area of the right-of-way that has impeded Ms. Betts’ access to the shores of St. Margaret’s Bay, such that a finding of contempt of the order can be made?

Again there must be proof beyond a reasonable doubt. [ 36 ] The parties dispute what terrain existed at the beach access area of the right-of-way at the time of the 2004 decision of Justice Stewart and what work was done by the Gallants in that area after the decision. Ms. Betts gave evidence that just after the 2004 decision her contractor, Mr. Gibson, moved soil so there was a gentle slope to the beach that was approximately 10 feet wide. She said he also moved a couple of trees that were in the way. She said he moved the soil from the work area to where Ms.

Bezanson-Gallant told him to put it and she planted some plants in this soil. She said that although the quotation of May 10, 2004 from her contractor does not mention the rampway work, it was done at the same time as the work described in the quotation. Ms. Betts says the rock stairs and the rock wall were constructed in 2014 by the Gallants. [ 37 ] Ms. Betts said in her February 2021 affidavit, …there is no access to the beach other than by the rock steps constructed by the Gallants in 2014. These steps have no railing and are not built to any code.

I find them extremely difficult to navigate given my advanced age and physical capabilities… However, on cross-examination Ms. Betts said she has never tried to use the steps: Q. Okay. Have you ever used those steps? A. Now ? No. Q. And I appreciate your husband is suffering a medical malady. A. He is. Q. Did he ever use those steps? A. No. … Q. In para. 4 you say “that access” see where that sentence begins? A. Yes. Q. “That access is now limited to those rock steps which are difficult to navigate”, but in fact you’ll agree with me, you’ve never tried to navigate them, correct? A.

If I never tried to navigate them, its because they existed after 2014. I certainly was at the beach from the time I moved in up until I injured my hips in 2013. I was in a wheelchair in 2014, and I waited five years for my hip surgery. No, I did not walk down those steps, but I certainly was at the beach prior to that because those, that rock wall and those steps were not there prior to 2014. Q. So my question is, if you didn’t walk down the stairs, you don’t know that they are difficult for you to navigate, correct?

A. Those stairs are difficult for me to navigate, unless I have a handrail. There is no handrail. Those stairs aren’t built to code, I presume, that would be 7½ to 8 inches in height. The rock wall steps are not. Q. Maybe we can end it this way, you’ll agree with me that you never have tried to navigate them. A. No, I did not. [ 38 ] Ms. Gallant gave evidence that the rock retaining wall existed at the time of the trial, with the exception that some small rocks have been inserted to forestall further erosion. She said that the prior owner originally installed the rock retaining wall.

She indicated there was erosion of the beach access as result of hurricane Juan in September of 2003, after which a cavity was created and at that time they inserted the three rock steps. She said the steps were installed to enhance access to the beach not to impede it. She indicated there is a space or gap adjacent to the steps that is approximately 4 feet wide. She said a small boat on a trailer could be driven down the right- of-way and over the grass adjacent to the beach access in order to access the beach area.

The boat could then be carried to the shore. [ 39 ] Justice Stewart in her 2004 decision notes at page 26, para. 40: [ 40 ] Prior to reaching the 187.5' point on the Gallants southwestern boundary, Betts have been able to access the shore directly off of the right of way to a beach area, being the same area where the Gallants access the beach. It is from here they launched and gained access to a small boat during a summer . Habitually, when Mr. Betts walks down to the shore, he goes into the sandy beach area. There has been some realignment and additional rocks placed here by the Gallants for user access .

No efforts have been made at anytime to address the contour of the land adjacent to the shore line in order to gain access at any point further down. The beach has been the only area along the shore line that the parties can gain access and walk to the shore. At present, a pine tree remains located in the right of way.

The Gallants' wharf access to the ocean is separate and distinct. [Emphasis added] [40] The use of the phrase “realignment and additional rocks placed” implies there were originally rocks in the area and that the Gallants had placed further rocks at the access to the beach when Justice Stewart viewed the property. [ 41 ] As I note later on, I am of the view there was work done in the area adjacent to the beach access in 2014. However, I am unable to determine conclusively on the evidentiary record when the rock barrier was put in its current configuration nor when the steps were installed.

In addition, there is no evidence before me to indicate Ms. Betts’ access is impeded. She has not attempted to utilize the stairs. In addition, she has not been to the beach area since 2013 so cannot speak to the width of the gap adjacent to the rock steps, its terrain, nor whether she could access the beach from this area. Perhaps this gap is part of the rampway she referenced. [ 42 ] It is clear from the photos that this gap area exists. Two photographs appear to show some rocks in the gap area. Photogroup C, photos 8 and 9, from Mr Giovanetti’s report show the gap.

However, from the angle of the photos the height of the rocks in the gap area is not clear. Ms. Gallant said in her evidence she thought the gap was 4 feet wide. Perhaps a small boat could be taken or carried down this gap to be launched. This is not clear on the evidentiary record. [ 43 ] Ms. Betts said during cross-examination that she had not been to the beach since 2013. When asked if a boat could now be launched from the area at high tide she indicated she could not comment on whether two people could launch a boat. [ 44 ] Further, Ms.

Betts during cross-examination said she was not present when their boat was launched on the one occasion many years ago. She noted that the boat they had was a small aluminum boat with a motor and a trailer, and that the boat was tied up on the beach for one summer. During cross-examination, Ms. Betts confirmed that someone got their boat to the shore but it wasn’t her. Q. And the boat that you have, that you had, was a small punt, correct? A. It was a small aluminum boat with motor, came with a trailer. Q. Okay. A. It was my fathers; it was there for one summer only. Q.

And did it reside on the beach throughout most of the summer? A. It resided on the beach tied up to a tree on Smith’s land. Q. Okay, and, and you haven’t tried to launch any other boats? A. No. Q. Okay, but you did get that boat down onto the beach and effectively left it tied up on the beach. A. Somebody got it there, I certainly didn’t. [ 45 ] I am unsure from Ms. Betts’ evidence whether the Betts boat that was launched many years ago was carried down the gap area, over the rocks, etc. It is unclear whether the gap area is the area, or in part, the area, where Ms.

Betts says there was a gentle slope to the beach. It is unclear whether this sloped area that Ms. Betts described has eroded. There is no evidence of the Betts having attempted to launch any other boats at any other time. [ 46 ] Ms. Gallant had a clear recollection of the small boat being taken to the beach by Mr. Betts and a friend of his. Her recollection is that it was taken to the beach over the rocks. She did not say whether this was over the rock wall or the gap area. Ms. Gallant says that this was in the timeframe of the late 1990’s.

This boat, although on the beach for a short period over the summer, became the subject of

controversy and was ultimately removed with lawyers being involved. As Ms. Betts was not present when the small boat was launched, this evidence of Ms. Gallant that the boat was taken over the rocks by Mr. Betts and a friend in uncontested evidence. Ms. Betts was not present when the boat was launched and cannot speak to the method used. This is the only time a boat was launched by the Betts. [ 47 ] Justice Stewart, in her decision, spoke of the Betts launching a small boat in her decision.

No one has suggested that the beach access area was ever appropriate for launching large boats and I need not address this in my decision. [ 48 ] Mr. Giovanetti did work beginning in 1999 for Ms. Betts in relation to the extent and condition of the right-of-way. That work was not associated with the beach access area. He and his team returned to the site in 2014 and 2020 in relation to the beach access area. At the hearing of this motion Mr.

Giovanetti was qualified as an expert in the field of land surveying, engineering and photogrammetry, capable of giving evidence as to the location of the rock breakwater vis-à-vis the right of way declared by Justice Stewart, and potential remedial works that may be required. It is noteworthy that Mr. Giovanetti was not retained to do a photogrammetry analysis of the beach access area. [ 49 ] Mr. Giovanetti gave evidence that the width of the rock stairs is over 24 inches. He did not record the height of the three steps.

While he did not take measurements across the retaining wall, on cross-examination he agreed that rather than the wall being approximately 3.5 feet high throughout, its height varies and is much higher at one end than the other. He estimated the retaining wall at the stairs’ side to be approximately 18 inches high and at the other end up to 4.5 feet high. Mr. Giovanetti testified on cross-examination that he had no knowledge of what existed at the beach access area prior to 2014. He said he made an assumption that the retaining wall was built after Justice Stewart’s decision.

He said he had no knowledge of how the Betts previously launched their boat, nor the size of the boat. He did not observe Ms. Betts walking to the beach area and he did not ask her to do this. He said he did not offer an opinion on the photographs attached to his report but simply collected the information. [ 50 ] While Mr. Giovanetti gave evidence about the dimensions of the rock wall and stairs, essentially factual evidence, I see no reason to consider his opinion concerning whether the rock wall impedes Ms. Betts’ access to the shore. Mr.

Goivanetti acknowledged having no expertise in kinesiology or how the human body maneuvers rocks or obstacles. Regardless, there is no need for specialized knowledge to assist me. The evidence is not technical and I, as trier of fact, am able to come to conclusions on the facts without the assistance of specialized opinion evidence. For example, in

section 2.4, comment four of his report, he says: From the defined access … in relation to the right-of-way declared by Justice Stewart, there is no capable means or methods to launch or retrieve any boats to the shore. This is obvious from the restricted access of the 2.5 foot wide stone stairway from the traveled way to the shore. He then qualifies this comment by saying: That is not to say that a canoe or some other smaller boat could be walked down to the shore. As indicated above, I do not find the portions of his report speaking to the impact of the retaining wall and rock steps on Ms.

Betts’ access, to be in any way necessary or useful. [ 51 ] The photographs that were taken in 2014, when Mr. Giovanetti and his team were on site, illustrate what looks to be work having been recently done in the area of the beach access, as the soil is clearly disturbed adjacent to/above the retaining wall (see for example, photos at Exhibit F to the October 2019 affidavit of Ms. Betts). Later photos show manicured grass in this same area (photos at Exhibit H to the October 2019 affidavit of Ms. Betts). Ms.

Gallant confirmed the top photo on the second page of the photos in Exhibit H is accurately dated July 14, 2019. In that photo, contrary to the 2014 photos, adjacent to the retaining wall is grass and what appears to be a flower garden. Similar photos suggesting work having been done adjacent to the retaining wall are contained in the report of Mr. Giovanetti and described as having been taken in 2014 (for example photos group B, numbered red 1 and 5 attached to the report). [ 52 ] It would certainly seem that work was done, at least in the area adjacent to the beach access, in 2014.

However, it is not clear whether work was actually done on the retaining wall in 2014. Based on the evidentiary record as a whole, I am unable to conclude that the entirety of the rock retaining wall and rock stairs were constructed in 2014 or at anytime after Justice Stewart’s decision. Even if I were able to find conclusively that the Gallants built the rock retaining wall and stairs in 2014, that does not automatically mean they are in contempt. It must be proven beyond a reasonable doubt that what has been put in place impedes access to the shores of St. Margaret’s Bay / impedes Ms.

Betts’ ability to launch and retrieve a boat. How could I possibly make such a finding when Ms. Betts has not been to the shore since 2013, has not attempted to maneuver the steps, has not tried to launch a small boat or have someone on her behalf try to do so, was not present when their small boat was previously launched in the late 1990’s so cannot speak to how it was launched whether at high tide, over the rocks, through the gap etc. The only evidence on prior launching comes from Ms.

Gallant who says she saw the small boat launched and it was carried over the rocks. [ 53 ] The evidence before me does not establish beyond a reasonable doubt that the Gallants have interfered with Ms. Betts’ access to the shore. Contempt is anything but clear in the present circumstances. Ms. Betts has not met her burden. The evidence before me does not illustrate beyond a reasonable doubt that the Gallants have impeded Ms. Betts’ access to the shore nor that as a result of their actions a boat cannot be launched in the beach access area in issue.

Allegation of the Gallants blocking access to the right-of-way for nursing care staff [ 54 ] This is a serious allegation. Mr. Betts is ill and requires around the clock care. Any proven incidents of blocking access to the right-of-way for Mr. Betts’ care would be serious and demand this Court’s attention. [ 55 ] Ms. Betts said in her affidavit: …Since the filing of my initial affidavit in this matter, the Gallants have repeatedly interfered with our support workers' access to the right-of-way.

On May 25, 2020, Blair Gallant blocked our driveway with his car, preventing one of our support workers from accessing the right-of- way. When another of our support workers and family friend, Rhoda Jesso, asked him to move his car so that the other support worker could leave, Carol Gallant ran up our driveway waving a rake at her. Rhoda defended herself, and Carol fell backwards on to her own rake. She proceeded to call the police and had Rhoda charged with assault, despite the fact, that she had been the one to enter on to our property and attack Rhoda.

Two weeks later, Blair Gallant again used his car to prevent one of our home workers from leaving our home. He entered the right-of- way from Whynacht's Point Road as she was attempting to exit the right-of-way on to Whynacht's Point Road, forcing her to back her car up. Blair then refused to move his car to allow her to leave, necessitating a call to the police. The support worker involved subsequently quit because of the experience. We are now required to instruct our home care workers that if they encounter the Gallants preventing them from leaving, to lock themselves in their cars and call the police.

Rather than deal with the additional stress imposed on them by the Gallants, two more of our support workers have quit. [ 56 ] Neither the support worker and family friend, Rhoda Jesso, nor any other home care or support worker gave evidence. Ms. Betts does not say in her affidavit that she witnessed these events, that she was either in the vehicle with the support worker or close enough to see and hear what transpired. She describes the events as happening to the workers while exiting her property. In short, her evidence is not clear. [ 57 ] Ms. Gallant, during cross-examination, was asked about Mr.

Gallant blocking the right-of-way and an incident at that time with a rake and a support worker. Ms. Gallant said she saw the worker in the yard and said, “excuse me, excuse me.” She said the worker turned around and flipped her over the worker’s back twice causing injury. She indicated the worker has been charged criminally. She said Ms. Betts was not present at any time but came running out after it all happened. [ 58 ] Mr. Gallant gave evidence that as he entered the right-of-way, a worker backed out of the driveway. He said he sat at the end by lot 3 and the car backed out and stopped in front of him.

He said he never got out of his car. He said she had the option when she saw him to go back in and let him go by. He said the police arrived and spoke with him and there was a resulting police report. It was put to Mr. Gallant that what actually happened was the worker was trying to exit and when he entered, he forced the worker to backup, and they called the police because they were intimidated by him. Mr. Gallant responded that is not what happened. It was further put to him that on multiple occasions he blocked support workers from leaving the Bett’s property.

He denied ever interfering with the workers’ use of the right-of-way. [ 59 ] Based on all of the evidence before me, Ms. Betts has not proven beyond a reasonable doubt that Mr. Gallant has prohibited access to or egress from her property by blocking the right-of-way. The workers involved were not witnesses. Even if I were to accept Ms. Betts’ evidence in its entirety on this issue, it is not clear to me that Ms. Betts was present to witness the interactions with Mr. Gallant that she describes in her affidavit. Based on the above evidence, Ms.

Betts has not proven beyond a reasonable doubt that the Gallants have interfered with her use and enjoyment of the right-of-way by blocking access to the lane. Conclusion [ 60 ] The question for this Court is whether Ms. Betts has produced evidence to prove beyond a reasonable doubt that the Gallants’ actions, with the requisite intent, violated Justice Stewart’s order and constitute civil contempt. The test for proof of contempt is whether the applicant has proven the elements beyond a reasonable doubt. In this case, Ms.

Betts bore the burden of presenting proof sufficient to establish beyond a reasonable doubt that the actions of the Gallants violated the terms of the order. Considering all of the evidence I am not persuaded beyond a reasonable doubt that she has done so. I dismiss the motion for contempt. [ 61 ] The Gallants are entitled to costs. If the parties cannot agree on costs, I direct that the Gallants submit their position on costs to me within 15 days of receipt of this decision. Ms. Betts shall have 10 days to reply from the date of receipt of the Gallants’ submission on costs. Jamieson, J.