TOWN OF INDIAN HEAD APPLICANT - v. -, 2023 SKKB 18

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 18 Date: 2023 01 25 Docket: QBG-RG-00979-2020 Judicial Centre : Regina BETWEEN: TOWN OF INDIAN HEAD APPLICANT - and - ADLER ENTERPRISES INC. RESPONDENT Appearing: Brendan Dzioba for the applicant Anthony Gavrielides for the respondent JUDGMENT NORBECK J. January 25, 2023 [ 1 ] On September 28, 2020, the applicant, Town of Indian Head [Town] was granted an order for a permanent and mandatory injunction against the respondent, Adler Enterprises Inc. [Adler], requiring Adler to, by December 1, 2020 [Consent Order], do the following: (

a) Dismantle and remove the canopy from the Lands, or bring the condition of the canopy to a reasonable state of repair as to comply with

section 6 of the Nuisance Abatement Bylaw; (

b) Dismantle and remove the sign from the Lands, or dismantle the sign and remove the same from view outside the fenced area; and (

c) Either: I. dismantle and remove the fence, and remove all junked vehicles, vehicle parts, and other debris entirely from the Lands; OR II. construct and/or repair the fence on the Lands so as to be an opaque solid screened enclosure in accordance with plans as approved by the Town; and place all junked vehicles, vehicle parts, and other debris stored on the Lands behind the solid screened fence; Thereafter, the Respondent shall maintain the Lands, including the fence, in compliance with this Order, the Town’s Nuisance

Abatement Bylaw, and The Municipalities Act. [2] The Town had initially applied by way of originating application, for an order seeking against Adler for failingto comply with an enforcement order issued by the Town on October 3, 2019 [Enforcement Order]. The court record shows that theparties entered into the Consent Order described above. At that time, Adler was represented by legal counsel. [3] The Consent Order relates to lands located within the Town, namely Plan 93R58834, Block 82, Lot 3A[Lands] owned by Adler.

The Consent Order was issued by the court on September 28, 2020 and counsel for Adler was served with theissued order on October 6, 2020. [4] The Town has now applied for an order declaring Adler in contempt of court for its continued failure tocomply with the Consent Order. [5] It is to be noted that Adler admitted, in the Consent Order, that it failed to comply with the Town’sEnforcement Order issued October 3, 2019 and that it would rectify the situation in the manner agreed to in the Consent Order no laterthan 4:00 p.m. on December 1, 2020.

The Town argues that Adler has taken no steps or no significant steps to comply with the ConsentOrder. [6] The Town is seeking the following relief: (

a) A declaration that Adler is in civil contempt pursuant to Rules 11-26 and 11-27 of The Queen’s Bench Rules; (

b) Issuance of a fine, pursuant to Rule 11-27(1) in an amount as directed by the court; (

c) An order authorizing the Town, through its designated officers, employees, agents or contractors, without further notice orfurther leave of the court, to take such actions as are reasonably necessary, as determined in the sole discretion of the Town, to enforcethe Consent Order; and (

d) An order granting the Town its costs and disbursements for the within application on a solicitor and client basis pursuant toRule 11-27(2). [7] Adler’s sole officer, shareholder and director is Gord Adler. Mr. Adler appeared in court by telephone with anindividual named Anthony Gavrielides whom he wished to represent Adler. Adler is no longer represented by legal counsel and Mr.Gavrielides is not a lawyer. Adler was seeking waiver of Rule 2-34(2) of The Queen’s Bench Rules to allow Mr. Gavrielides to representAdler. The Town took no position in respect of Adler’s request to be represented by Mr.

Gavrielides, aside from a request that the matternot be delayed any further. [8] Leave was granted, allowing Mr. Gavrielides to represent Adler, with reasons to follow. Below are myreasons. [9] The courts have a compelling rationale for harbouring a presumption that a lawyer should be present torepresent a corporation.

Shinkaruk Enterprises Ltd. v Commonwealth Insurance Co. (1992), (SK KB), 99 Sask R 84(QB) [Shinkaruk] demonstrates a presumption that more problems will arise when a corporation is represented by a non-lawyer.Prejudice to the corporate entity may arise due to the representative’s lack of legal training, unnecessary complication of legal proceduresand needless lengthening of proceedings. [10] Shinkaruk further demonstrates that the court has discretion to permit or deny a non-lawyer appearing on behalfof a corporation. The court must examine each situation and resolve on its specific facts. In this situation, Mr.

Gavrielides has beenretained by Adler for a number of matters relating to his business. It was Mr. Adler himself who requested the court to allow Mr.Gavrielides to represent Adler. It is understood that Mr. Gavrielides is duly authorized by Adler to represent Adler in court in theseproceedings and Adler and Mr. Adler do not have the means to continue these proceedings with a lawyer. [11] I am guided by the principals as discussed by this Court in Howden Bros. Construction Limited v FreshairEnterprises Limited (Super Seamless of Canada), 2014 SKQB 290, 454 Sask R 305 [Howden].

At para. 18, the court provides the non-exhaustive factors to consider in exercising its discretion: [18] … (

i) Whether the proposed representative has been duly authorized by the corporation to act as its representative in the action; (ii) The nature of the connection, such as share ownership, an office or employment, between the proposed representative and thecorporation; (iii) The structure of the corporation in terms of shareholders, officers and directors, and whether it is closely held; (iv) Whether the interests of shareholders, officers, directors, employees, creditors and other potential stakeholders are adequatelyprotected by the granting of leave, taking account of the significance of the action and its potential impact on the corporation and thosestakeholders; (

v) Whether the proposed representative is, in light of the nature of both the claim and the proposed representative, reasonablycapable of comprehending the issues in the litigation, participating in the court’s processes, and conducting her or himself in a mannerthat will promote the timely and effective resolution of the claim;

(vi) The potential impact of refusing or granting the order on the financial and other interests of the other parties, whether due to the possibility that the proceedings will not be conducted in a manner that is proportionate in light of the nature of the claim, or otherwise; (vi) Whether the corporation is financially capable of retaining counsel; and, (vii) Any other relevant factor arising from the specific facts. [ 12 ] While I had some reservations whether Adler is adequately or properly represented in court by Mr. Gavrielides, I was of the view that Mr.

Gavrielides was capable of comprehending the issues in the litigation. Adler does not have the financial means to continue this matter with the assistance of a lawyer and Mr. Gavrielides is known to Adler and working with Adler on other company related issues. The only director, officer and shareholder of Adler consented to Mr. Gavrielides representing Adler. In considering the non-exhaustive factors set out in Howden , this is an appropriate situation to grant a waiver of Rule 2-34(2) and allow a non-lawyer, Mr. Gavrielides, to represent Adler in the within proceedings.

Background [ 13 ] The Consent Order, as mentioned above, was agreed to by legal counsel on behalf of the parties. It was endorsed by the court on September 28, 2020 and counsel for Adler was served with the issued Consent Order on October 6, 2020. [ 14 ] Adler took some steps in furtherance of the Consent Order. On October 15, 2020, Mr.

Adler wrote to the Town advising that Adler planned to continue building the fence as required and requested two items: 1) that the Town develop the alley to allow access to the property from the south; and 2) that the Town purchase the material (wood) to repair the fence as the Town loader damaged it previously during snow removal. [ 15 ] The Town considered Mr. Adler’s requests at its council meeting of October 26, 2020 and approved Adler’s plans for the fence.

In a letter to Adler dated October 27, 2020, the Town advised it had denied Adler’s request to purchase the wood for the fence and advised it would consider developing the alley once Adler was in compliance with the Consent Order. [ 16 ] On November 30, 2020, Mr. Adler wrote to the Town to advise that Adler had been working on the fence and making arrangements for the Value Gas sign to come down. Mr. Adler reports good progress on the fence, with 200 feet of framing completed. He requests an extension of the December 1, 2020 deadline for an additional few weeks to complete the work.

On December 1, 2020, the Town ostensibly grants the extension, agreeing to hold off on any enforcement measures until after January 8, 2021. The Town is clear that it will enforce the Consent Order if the work is not completed by January 8, 2021. [ 17 ] Mr. Adler then requests a further extension of the January 8, 2021 deadline. On January 14, 2021, the Town asks Mr. Adler to put the extension request in writing and provide a progress report. The parties then exchange emails on or about January 19, 2021 regarding an update on Adler’s progress on completing the work required by the Consent Order.

It appears that Mr. Adler attempted to email photographs of progress, but those photographs were not received by the Town. On March 4, 2021, the Town again seeks an update on Adler’s progress. It appears that request went unanswered. [ 18 ] On May 4, 2021, the Town writes to Mr. Adler and extends the deadline to complete the work required by the Consent Order to no later than June 4, 2021. In that correspondence, the Town reminds Mr. Adler of some of the items listed in the Consent Order that had not been addressed. [ 19 ] On May 6, 2021, Mr. Gavrielides responds to the Town.

He suggests that the Town is acting in a manner that is prejudicial and discriminatory towards Mr. Adler and Adler. He speaks about Town corruption, grand theft and larceny on matters unrelated to Adler’s issues. [ 20 ] On June 7, 2021, Mr. Adler writes to the Town advising that he is not giving up and has made progress on completing the required work. The Town responds the same day asking Mr. Adler to meet with the Town’s Bylaw Officer to discuss Adler’s progress. On June 16, 2021, the Town’s Bylaw Officer attends the Lands and performs an inspection.

He provided a report attaching photos, noting that a number of items from the Consent Order remain outstanding. Mr. Adler was not present for the inspection. [ 21 ] The Town’s Bylaw Officer then attends the Lands on January 13, 2022 and notes the Consent Order has not been complied with. The Value Gas sign was still erected, the fence was incomplete, he found debris and junk outside the perimeter fence, and the canopy remained. Vehicles were left throughout the Lands and in the alley.

The Town’s Bylaw Officer attended the Lands again on March 3, 2022 and found much the same as he did on January 13, 2022. [ 22 ] The hearing of this matter was adjourned to allow Adler additional time to respond. On June 16, 2022, Mr. Gavrielides filed a signed, unsworn document with attachments on behalf of Adler which largely contains information irrelevant to the within matter. Mr. Gavrielides raises allegations of deceit, gross incompetence and harassment by Town officials. I do not accept the June 16, 2022 document and attachments as evidence in this matter. [ 23 ] Mr.

Gavrielides filed an affidavit dated June 28, 2022, attaching an affidavit of Mr. Adler, dated June 27, 2022. Unfortunately, Mr. Adler’s affidavit is unsworn and not commissioned. As such, Mr. Adler’s affidavit is not evidence in the within matter. [ 24 ] Mr. Adler filed an affidavit, sworn July 18, 2022, purportedly in response to the Consent Order dated September 28, 2020 and attaches the Consent Order. He attests that he reviewed all correspondence between himself, and his former legal counsel and they never provided him with legal advice, nor did he pay for any legal services. Mr.

Adler argues that he did not sign any documents consenting to the Consent Order. He attaches a letter from his former legal counsel to Adler dated September 6, 2020. That letter not only confirms that Mr. Adler contacted their office seeking assistance with the originating application but also confirms the law firm’s advice to Mr. Adler. The letter confirms the terms of the proposed Consent Order and states, in part:

We cannot stress enough the importance of complying with the above noted requirements by the agreed upon date. In the event you do not comply, the Town may bring a contempt application, seeking a ruling that you be fined, you pay all of the Town’s legal fees, and the Town be able to clean up the property for you and charge the expense back to you. As such, even if you have to hire individuals to assist you with clean-up and the fence, it will still likely be less expensive than missing the deadlines. (Affidavit of Gord Adler, Exhibit 2) Civil Contempt [ 25 ] The Town relies on Queen’s Bench Rules 11-26 and 11-27 in support of its application. Specifically, Rule 11- 26(3)(a)(

i) reads as follows: Declaration of civil contempt 11-26 . . .

(3) A judge may declare a person to be in civil contempt of Court if: (

a) The person, without reasonable excuse: (

i) does not comply with an order, other than as order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge; . . . [ 26 ] The Supreme Court of Canada identifies the elements of civil contempt in Carey v Laiken , 2015 SCC 17 , [2015] 2 SCR 79 [ Carey ]: [30] Contempt of court “rest[s] on the power of the court to uphold its dignity and processes. . . . The rule of law is directly dependent on the ability of the courts to enforce their processes and maintain their dignity and respect” . . .

It is well established that the purpose of a contempt order is “first and foremost a declaration that a party has acted in defiance of a court order” . . . . . . [32] Civil contempt has three elements which must be proven beyond a reasonable doubt. . .These three elements, could pled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases . . . [33] The first element is that the order alleged to have been breached “must state clearly and unequivocally what should and should not be done” . . .

This requirement of clarity ensures that a party will not be found in contempt where an order was unclear. . . [34] The second element is that a party alleged to have breached the order must have had actual knowledge of it. . .It may be possible to infer knowledge in the circumstances, . . . [35] Finally, 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. . . [ 27 ] As noted in Carey and confirmed in Rural Municipality of Edenwold No. 158 v Schmidt , 2015 SKQB 216 para 14 , 478 Sask R 303, the elements of civil contempt must be proven beyond a reasonable doubt: [14] Contempt of court proceedings in this province are rare.

Instances of civil contempt are most often based on a breach of the rules of court or of a court order. The most typical case is when a person bound by an order of a court requiring them to do something or refrain from doing something, disobeys that order. Such action or inaction gives rise to a private injury or wrong which is generally not criminal in nature even though the contemnor may ultimately be sanctioned by a fine or even a term of imprisonment.

However, given the potential severity of punishment, the elements of civil contempt must be proven beyond a reasonable doubt. [ 28 ] Adler argued that the Consent Order was inappropriate, that Adler did not consent to it and that Adler was not aware of the terms of the Consent Order. Adler requested that the Consent Order be struck or set aside. [ 29 ] This Court does not sit on appeal of its own matters.

As such, I do not have the jurisdiction to strike or set aside the Consent Order. [ 30 ] In response to Adler’s argument, the Town argued that Adler was aware of the Consent Order within a reasonable timeframe following its issuance given its service date of October 6, 2020. Adler took some steps to comply with the Consent Order including building a large portion of the fence as required. Within two weeks of the issuance of the Consent Order, Mr. Adler seeks the Town’s approval for the fence he was constructing. The continuing correspondence between Mr.

Adler and the Town shows that he was making an effort to comply with the Consent Order. Mr. Adler specifically addresses the canopy, Value Gas sign and the fence, all items included in the Consent Order, in his requests for time extensions. [ 31 ] I do not accept the argument that Adler was unaware of the Consent Order. If Adler was unaware of the Consent Order, why would Mr. Adler seek extensions to complete the work required pursuant to it? Additionally, in its letter of September 6, 2020, counsel for Adler had explained the terms of the proposed Consent Order to Mr.

Adler and further explained the consequences for failing to comply. Mr. Adler writes to the Town on several occasions referencing the Consent Order and the Town consistently references the Consent Order in its correspondence with Mr. Adler. In fact, Mr. Adler’s correspondence to the Town, dated November 30, 2020 states, in part:

Hello, Dear Town of Indian Head. In addition to the conversation with Cam on November 30th, 2020 Value gas would like to inform you that I have been diligently working on getting the fence manufactured and have made arrangements for the sign to come down. Still waiting for the contractor to come and deal with the sign. As for the fence We have been at it for weeks now and have had good progress with about 200 feet of framing completed.

I am very unhappy to tell you that value gas will not meet the December 1 agenda as the time line was very unfair, also [ sic ] have had to cope with little help as covid is largely rampant in our wonderful community. . . . (Response to Notice of Application filed June 16, 2022, page 34) [ 32 ] From a review of the materials before me, the only mention of a December 1, 2020 deadline is included in the Consent Order as the date to complete the work. [ 33 ] The Consent Order subject to these proceedings allowed Adler 63 days to comply with the Enforcement Order. The Enforcement Order is dated October 3, 2019.

The Town argues that, despite several extensions beyond the 63 days provided in the Consent Order, Adler has failed to comply with the terms of the Consent Order. The most recent photographs of the Lands taken by the Town Bylaw Officer confirm that the Value Gas sign remains erected, the canopy remains in place, the fence is unfinished and there are numerous vehicles and other debris on the Lands, as well as in the alley. [ 34 ] I did not receive any evidence to show that the work required pursuant to the Consent Order had been completed.

Adler argued that the fence had been completed but the photographs show otherwise. Adler further argues that the remaining items on the property are not “junk” or garbage as described by the Town. I have no evidence that the items on the property constitute anything but junk, garbage and abandoned vehicles and vehicle parts.

Adler is bound by the Consent Order which specifically speaks to removing junked vehicles, vehicle parts and other debris or constructing an opaque, solid screened enclosure and place all the items behind the solid, screened enclosure. [ 35 ] Adler has not provided any explanation for its failure to comply with the Consent Order. [ 36 ] The three elements of civil contempt have been proven beyond a reasonable doubt. Adler had actual knowledge of the Consent Order and acted upon it, to a certain extent. The Consent Order is clear in what is required of Adler and the timeframe in which it must be done.

The work is not complete, and Adler has not provided any explanation as to why the work is not complete. The Consent Order has been largely ignored. [ 37 ] I find Adler guilty of contempt of court for failure, without reasonable excuse, to comply with the Consent Order dated September 28, 2020.

Contempt of court is very serious and while imprisonment of the offending party is an option, I have determined that the appropriate approach is to allow the Town to ensure the terms of the Consent Order are satisfied. [ 38 ] The Town is prepared to remedy the breach of the Consent Order and therefore the Town is hereby authorized, without further notice or further leave of the court, to take such actions as are reasonably necessary, as determined in the sole discretion of the Town, to enforce the Consent Order, including entering onto the Lands to remove vehicles, vehicle parts, the trailer, scrap items, the canopy, the Value Gas sign and to repair or remove the fence.

Thereafter, if the Town comes into possession of any items determined by the Town to be something other than garbage, junk, debris or which is unsafe, unsanitary or perishable, the Town shall store those items for a period of 90 days and shall not be required to return the items to Adler unless Adler reimburses the Town for the costs incurred for removal and storage. [ 39 ] In the event any items stored by the Town remain unclaimed by Adler after the 90 day period expires, the Town shall be entitled to dispose of the items or materials in accordance with s. 406 of The Municipalities Act , SS 2005, c M-36.1 and to apply any of the monies realized, if the items are sold, to the costs incurred by the Town in the exercise of its enforcement authority and in the storage and disposal of those items.

Punishment for Civil Contempt [ 40 ] Rule 11-27 of The Queen’s Bench Rules provides the court discretion in ordering any number of penalties when it finds that someone is in civil contempt of court: 11-27(1) Every person declared to be in civil contempt of Court is liable to any one or more of the following penalties or sanctions in the discretion of a judge: (

a) imprisonment until the person has purged the person’s contempt; (

b) a fine; (

c) if the person is a party to an action, application or proceeding, an order that: (

i) all or part of a commencement document, affidavit or pleading be struck out; (ii) an action or an application be stayed; (iii) a claim, action, defence, application or proceeding be dismissed, a judgment be entered or an order be made; or (iv) a document or evidence be prohibited from being used or entered in an application or proceeding or at trial.

(1.1) A warrant of committal for civil contempt of Court may be in Form 11-27.

(2) The Court may also make a costs award against a person declared to be in civil contempt of Court.

(3) If a person declared to be in civil contempt of Court purges the person’s contempt, the Court may waive or suspend any penalty or sanction.

(4) The judge who imposed a penalty or sanction for civil contempt may, on notice to the person concerned, increase, vary or remit the penalty or sanction. [ 41 ] More generally, Rule 11-1(1) speaks about the court’s discretion in ordering costs: 11-1(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate. [ 42 ] The Town has urged this Court to impose a fine and solicitor-client costs on the basis that such costs are allowed by Rule 11-27(2) and appropriate under the circumstances given that the Town’s taxpayers funded the contempt proceedings. [ 43 ] In considering a fine under the circumstances, I am concerned Adler’s mistake could prove to be quite costly here given that significant additional costs may be incurred by the Town and added to Adler’s tax roll for the Lands.

While a fine is appropriate to uphold the rule of law and respect court orders, a significant fine would likely cause Alder financial hardship and serve only to punish Adler. Accordingly, Adler must pay a fine of $2,500, payable to His Majesty the King in Right of the Province of Saskatchewan. This fine must be paid within 30 days of the date of issuance of the order in this matter. [ 44 ] I have considered several cases in respect of penalty for civil contempt of court, including Goodtrack v The Rural Municipality of Waverly No. 44 , 2013 SKCA 137 , 427 Sask R 147 [ Goodtrack ].

Goodtrack expands on the principles previously described in Siemens v Bawolin , 2002 SKCA 84 , 219 Sask R 282 [ Siemens ] in relation to solicitor-client costs at para. 31: [31] … we conclude that Siemens v Bawlin provides for solicitor-client costs on exceptional circumstances including but not restricted to situations where the conduct of the party against whom they are awarded is scandalous, outrageous or reprehensible.

Viewing Siemens v Bawlin in this manner allows a trial judge to exercise judicial discretion in awarding costs, which the Queen’s Bench Rules and the relevant legislation contemplate. [ 45 ] Upon consideration of the informing principles as described in Goodtrack and Siemens , and pursuant to Rules 11-1 and 11-27 of The Queen’s Bench Rules , this is not a case for the exceptional awarding of solicitor/client costs. I see nothing in the within litigation or matters arising from this application that warrants such an award.

Accordingly, the Town is entitled to costs from Adler under Column 3 as a reflection of the relative complexity and importance of this application. Such costs are payable forthwith and form part of the costs and expenses reasonably incurred to enforce the terms of the order which are recoverable directly from Adler. Failing the recovery of any costs awarded, the Town may add those costs to the tax roll for the Lands as part of the overall costs of enforcement pursuant to s. 369(1) (

c) of The Municipalities Act . Order [ 46 ] I therefore make the following orders: (

a) Adler Enterprises Inc. [Adler] is in civil contempt of court for failing to comply with the September 28, 2020 Consent Order; (

b) Adler is fined $2,500 pursuant to Rule 11-27(1) of The Queen’s Bench Rules . The fine is payable to His Majesty the King in Right of the Province of Saskatchewan and shall be paid in full within 30 days of the issuance of the order in the within matter; (

c) The Town of Indian Head [Town], through its designated officers, employees, agents or contractors, without further notice or further leave of the court, shall take such actions as are reasonably necessary, as determined in the sole discretion of the Town, to enforce the Consent Order, including entering onto the Lands to remove the vehicles, vehicle parts, trailer, scrap items, the canopy, the Value Gas sign, and to repair or remove the fence; (

d) The Town is to file a report with the local registrar’s office in Regina, Saskatchewan, once compliance with the Consent Order has been achieved; (

e) In the event the Town, in the exercise if its authority under paragraph (c), comes into possession of any items determined by the Town, in its sole discretion, to be something other than garbage, junk, debris or which is unsafe, unsanitary or perishable, shall store those items for a period of 90 days, and shall not be required to return the items to Adler unless Adler reimburses the Town for the costs incurred for removal and storage; (

f) In the event any items stored by the Town remain unclaimed by Adler and after the 90 day period has expired, the Town shall be entitled to dispose of the items or materials in accordance with s. 406 of The Municipalities Act , and to apply any of the monies realized, if the items are sold, to the costs incurred by the Town in the exercise of its enforcement authority and in the storage and disposal of those items; (

g) Adler or anyone on behalf of Adler or any person who may be present on the Lands shall not obstruct or interfere with the Town’s access to the Lands for the purpose of carrying out the terms of this order, including for the purpose of inspecting the Lands to determine compliance with this order; (

h) The Royal Canadian Mounted Police are authorized to assist the Town in the enforcement of the terms of this order, if requested by the Town or an agent of the Town;

(

i) The Town shall have costs of the within application based on Column 3. Such costs are payable forthwith and form part of the costs and expenses reasonably incurred to enforce the terms of the order which are recoverable directly from Adler. Failing the recovery of any costs awarded, the Town may add those costs to the tax roll for the Lands as part of the overall costs of enforcement pursuant to s. 369(1) (

c) of The Municipalities Act ; and (

j) Approval of the order by Adler pursuant to Rule 10-4(2) of The Queen’s Bench Rules is hereby dispensed with. J. C.L. NORBECK