CITY OF PRINCE ALBERT, APPLICANT - v. -, 2023 SKKB 11

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 11 Date: 2023 01 13 File No.: QBG-PA-00076-2022 Judicial Centre: Prince Albert BETWEEN: CITY OF PRINCE ALBERT, APPLICANT - and - CUMBERLAND HOUSE CREE NATION AND TIMANASKA DEVELOPMENT CORPORATION, RESPONDENTS Counsel: Nicole A. Sawchuk for the applicant No one appearing for the respondents ___________________________________________________________________________ FIAT ROTHERY J.

January 13, 2023 ___________________________________________________________________________ [ 1 ] The applicant, City of Prince Albert [City], applies for an order pursuant to Rule 11-26 of The Queen’s Bench Rules declaring the respondent, Cumberland House Cree Nation [Cumberland House], and its chief, Rene Chaboyer [Chaboyer], and the respondent, Timanaska Development Corporation [Timanaska], and its sole director and shareholder, Orrin Greyeyes [Greyeyes], all in civil contempt of the court order of Meschishnick J. granted July 26, 2022, in these proceedings.

Neither Chaboyer nor Greyeyes attended the application. [ 2 ] In accordance with Rule 11-27, counsel for the City seeks an award of costs in the sum of $10,000.00, against the two respondents, Chaboyer and Greyeyes, jointly and severally, as a penalty for the ongoing contempt. [ 3 ] Since the application heard on November 22, 2022, neither of the respondents have done anything to purge their contempt. BACKGROUND

[ 4 ] Cumberland House and Timanaska purchased Lot 29, Blk/Par H, Plan No 101525374, Extension 91, and Lot 7, Blk/Par H, Plan No E, Extension 0 (with civic address 23 - 11th Street West, Prince Albert SK), as joint tenants from Cecil Headrick.

At the time of purchase, this property was subject to an order of the Saskatchewan Building and Accessibility Standards Appeal Board [Board], dated April 9, 2019, requiring compliance with The Uniform Building and Accessibility Standards Act , SS 1983-84, c U-1.2 [ Act ] (now The Construction Codes Act , SS 2021, c 9 ), by way of relocating the main entrance to the building on the property to allow for the required barrier-free access to the building for wheelchairs.

Furthermore, compliance with the Board’s order required an easement agreement with the City to provide for sufficient space to build the barrier-free access ramp partially on the City’s property. [ 5 ] After initial discussions and signing of the agreement in March 2020, the respondents failed to comply with the Board’s order.

Counsel for the City corresponded with the respondents on October 18, 2021, giving them notice to comply with the Board’s order. [ 6 ] The City issued an order dated December 6, 2021, requiring that the respondents comply with the Act and set out the necessary steps to have the work completed by April 15, 2022. The respondents did not comply with the City’s order, so the City brought an originating application in accordance with s. 40 of The Construction Codes Act (formerly s. 23(3) (

a) of the Act ), seeking a court order requiring compliance with the steps to make the respondents’ building wheelchair accessible. [ 7 ] No one appeared at the court application on behalf of the respondents. Meschishnick J. granted the following order [Order of Compliance]: The Court orders that: 1) Pursuant to

section 40 of the [ sic ] The Constructions Code [ sic ] Act (formerly section 23(3) (

a) of The Uniform Building and Accessibility Standards Act ), the Respondent, TIMANASKA DEVELOPMENT CORP. shall comply BY July 29, 2022, with the Order issued by the Applicant, City of Prince Albert, pursuant to

section 25 (formerly

section 17 of the UBASA Act), dated December 6th, 2021, for the property located at 23 11th Street west, Prince Albert, SK; requiring:

a) plans and documentation to obtain a valid building permit, no later than July 29, 2022;

b) plans shall define compliance with articles 3.8.1.1, 3.8.2.2, 3.8.2.7, 3.8.3.5, 3.8.3.6 as defined in the Appeals Boards Decision dated April 9, 2019;

c) All plans and alternations [ sic ], modifications, amendments or addendums required by the City to ensure compliance with the referenced paragraphs of

Section 3.8 Accessibility of the 2015 edition of the National Building Code shall be completed no later than August 31st, 2022. As per the decision, the relaxation allowed by paragraph 10 is still held valid. 2) The Respondent shall pay to the Applicants, costs of this application fixed at $2,000. [ 8 ] The City served this Order of Compliance on Cumberland House on August 10, 2022 by registered mail to the band office address provided by Sheila Deschambealt, the band receptionist for Cumberland House.

The City served this Order of Compliance on Greyeyes on August 15, 2022 by way of personal service. [ 9 ] Because the respondents did not comply with the Order of Compliance, counsel for the City brought this contempt application. This contempt application set for November 22, 2022, was served personally on Chaboyer, the chief of Cumberland House, on October 17, 2022. The application was served personally on Greyeyes, the director of Timanaska, on October 18, 2022. ISSUES [ 10 ] The issues to be determined in this contempt application are: 1.

Whether the respondents have been served in accordance with The Queen’s Bench Rules ; 2. Whether the respondents ought to be declared in civil contempt of court, as provided by Rule 11-26; 3. If so declared, what penalties and sanctions ought to be imposed, as provided by Rule 11-27; 4. Whether Chaboyer and Greyeyes ought to personally be subject to the penalties and sanctions. PROPER SERVICE [ 11 ] Rule 12-5(

b) provides for a corporation to be served in accordance with its enactment.

Section 269 of The Business Corporations Act , RSS 1978, c B-10 , states: 269 A notice or document may be served on a corporation: (

a) by leaving it at, or mailing it by registered mail or certified mail addressed to, the registered office of the corporation; (

b) by personally serving any director, officer, receiver-manager or liquidator of the corporation; or (

c) by leaving it at the office of, by mailing it by registered mail or certified mail addressed to or by personally serving any attorney of the corporation appointed pursuant to

section 268. [ 12 ] Greyeyes is the sole director and shareholder of Timanaska. He has been personally served with the July 26, 2022 Order of Compliance and with this contempt application. Thus, service is not only valid against Timanaska, but against Greyeyes

for the purpose of determining sanctions against a director personally. [13] Rule 12-6(

c) provides for service upon an unincorporated entity, which applies to Cumberland House. Rule 12-6(

c) states: 12-6 Subject to the express provisions of any enactment, service of a document may be made: ... (

c) on an unincorporated association, by leaving a copy of the document with any officer of the association or any person at the office orpremises of the association who appears to be in control or management of the association; or ... . [14] The evidence is that Cumberland House was served with the Order of Compliance granted July 26, 2022 by wayof registered mail to the band office at the address provided by the receptionist, Sheila Deschambealt, when Cumberland House waspreviously served at the band office on June 8, 2022 by leaving the documents with Sheila Deschambealt.

Service by registered mail isnot in accordance with Rule 12-6(c). However, service of this contempt application was completed by way of personal service uponChaboyer on October 17, 2022. Personal service of the contempt application documents would have brought the Order of Compliance toChaboyer’s attention, if he had not been made aware of it earlier. That is, Chaboyer had actual knowledge of the Order of Compliance asrequired by Rule 11-26(3)(a). [15] In short, service in accordance with Rule 11-26 has been effected.

DECLARATION OF CIVIL CONTEMPT [16] The essential elements of a finding by a court of civil contempt are articulated by the Supreme Court of Canadain Carey v Laiken, 2015 SCC 17 at para 30-38, [2015] 2 SCR 79:

(2) The Canadian Common Law of Civil Contempt 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 on theability 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. The distinction,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.

With civil 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 civil contempt ispunishment for breaching a court order: Chiang (Trustee of) v. Chiang, 2009 ONCA 3, 305 D.L.R. (4th) 655, at para. 117.

Courtssometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor’s continuing conduct and to deter othersfrom 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 Children andAdults v. G. (N.) (2006), (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists [2008 ONCA 685] 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 not bedone”: 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. 226;College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attractliability 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 the actthat 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 court orders: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’s outrage might betreated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect”: Centrecommercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663, at para. 7. As this Court has affirmed, “contempt of court cannot bereduced to a mere means of enforcing judgments”: Vidéotron Ltée v. Industries Microlec Produits Électroniques 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, at para. 32. It is an enforcement power of

last rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 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.

(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 of anintentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para.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 para6.190. 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”(para. 59).

Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see alsoSheppard; and Sharpe, at para 6.200. [Emphasis added] And see: Edenwold No. 158 (Rural Municipality) v Aspen Village Properties Ltd., 2019 SKQB 203. [17] In this case, with no attendance by or response from the respondents in court, or any evidence by them that theOrder of Compliance has been obeyed, even though it has been several months since August 31, 2022, the Court can only conclude thatthe respondents are intentionally disobeying the Order of Compliance.

It is a clear order and both respondents have had actual knowledgeof that order. As provided by Rule 11-26(3)(a), a declaration of civil contempt may be made by a judge if a person does not, “withoutreasonable excuse”, comply with the order. These respondents have provided no excuse. The respondents are hereby declared to be incivil contempt of court. PENALTIES AND SANCTIONS [18] Counsel for the City seeks an order of solicitor-client costs in the amount of $10,000.00 be imposed against therespondents for their civil contempt of court.

In support of this position, counsel refers to Edenwold No. 158 (Rural Municipality) vSchmidt, 2015 SKQB 216 at para 38, 478 Sask R 303, and to Sound Contracting Ltd. v Comox-Strathcona (Regional District), 2005BCCA 167 at para 16, 20 CPC (6th) 362 [Sound Contracting], which states: 16 The award of special costs in a proceeding for contempt may also be supported by reference to the remarks of Madam JusticeSouthin in Everywoman’s Health Society (1988) v. Bridges (1991), (BC CA), 54 B.C.L.R. (2d) 294, quoted by mycolleague, Madam Justice Newbury, in North Vancouver (District) v.

Sorrenti, 2004 BCCA 316, at para. 20: 20 In her able submissions, however, Ms. Marzari referred us to the comments of Southin J.A. for the Court in Everywoman’s HealthCentre Society (1988) v. Bridges (1991), (BC CA), 54 B.C.L.R. (2d) 294, where she observed that it is a long-standing practice to award solicitor-client costs to the successful applicant in a civil contempt proceeding. She added that “[t]he practiceis sound. A person who obtains an order from the court is entitled to have it obeyed without further expense to himself.” (Para. 14.) ... . [19] I agree with counsel for the City.

Solicitor-client costs are an appropriate sanction. Costs against the respondentsare ordered in the amount of $10,000.00. LIABILITY OF CHABOYER AND GREYEYES [20] Counsel for the City submits that this is an appropriate case to order sanctions against Chaboyer, as chief ofCumberland House, and against Greyeyes, the directing mind of Timanaska.

Counsel submits they should be jointly and severally liablefor the order of solicitor-client costs. [21] Counsel for the City further submits that if the respondents continue to ignore the Order of Compliance grantedJuly 26, 2022, a further application may be warranted seeking an order of imprisonment against Chaboyer and Greyeyes as the directingminds of the respective respondents. [22] Rule 10-26 allows for orders of committal against directors or officers of corporations.

Rule 10-26 states: 10-26 With leave of the Court, a judgment or order against a corporation that is wilfully disobeyed by the corporation may be enforced: (

a) by sequestration against its corporate property; or (

b) by an order of committal against the directors or other officers of the corporation. [23] More generally, as shown in Sound Contracting, a person who is the guiding mind of a corporation may bedeclared to be in civil contempt of court, and be personally subject to penalties and sanctions. See: Manufacturers Life Insurance Co. vGuaranteed Estate Bond Corp., (Fed Ct). [24] The only conclusion this Court can make is that Chaboyer and Greyeyes have committed civil contempt of court,and they too ought to be sanctioned by way of solicitor-client costs.

CONCLUSION [ 25 ] Therefore, the order of solicitor-client costs of $10,000.00, payable forthwith, is imposed against Cumberland House, Timanaska, Chaboyer and Greyeyes, jointly and severally. J. A.R. ROTHERY