Stokes v Heck, 2023 ABKB 58

Court of King’s Bench of Alberta Citation: Stokes v Heck, 2023 ABKB 58 Date: 20230131 Docket: 2201 14370 Registry: Calgary Between: Shelley Marie Stokes Applicant - and - Harold Heck Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice Colin C.J. Feasby _______________________________________________________ Introduction [ 1 ] Mr. Heck and Dr. Stokes have been engaged in protracted litigation arising from the dissolution of their marriage. The substantive family law issues between the parties are not before the Court on the present application. Dr.

Stokes applies to hold Mr. Heck in contempt of Court for refusing to comply with an order of Justice K. Nixon (the “Nixon Order”) directing Mr. Heck to remove a Certificate of Pending Litigation (“CPL”) against a recreational property in British Columbia.

[ 2 ] Mr. Heck has refused to comply with the Nixon Order. There is no doubt that he is in civil contempt of court. The more difficult question for the Court is the appropriate sanction for Mr. Heck. He has a long history of disobeying court orders and has been subject to many fines and costs orders. Financial incentives appear to have little effect on Mr. Heck. Accordingly, for the reasons that follow, I direct that Mr. Heck be taken into custody and held until he purges his contempt. Background [ 3 ] Mr. Heck and Dr. Stokes were parties to an arbitration concerning the division of family property.

On November 10, 2022, the Arbitrator issued an Award directing that a recreational property owned by the parties and located on Rosen Lake, BC (the “Rosen Lake Property”) be listed for sale and sold as soon as reasonably possible. [ 4 ] An ex parte application for enforcement of the Arbitration Award was made before Justice Carruthers on November 21, 2022. Justice Carruthers granted an order enforcing the Arbitration Award. A hearing de novo with Mr. Heck and his counsel present was held before Justice Carruthers on December 12, 2023.

Justice Carruthers issued an order affirming her earlier order enforcing the Arbitration Award (the “Carruthers Order”). [ 5 ] On December 23, 2023, Mr. Heck registered a CPL against the Rosen Lake Property. [ 6 ] The evidence adduced on behalf of Dr. Stokes is that the CPL is jeopardizing a pending sale of the Rosen Lake Property which is due to close in a matter of weeks. [ 7 ] Mr. Heck applied for a stay of the Carruthers Order and the Arbitration Award and Dr. Stokes applied to have the CPL removed. Justice Nixon heard both applications on January 13, 2023. Justice Nixon denied Mr.

Heck’s stay application and granted Dr. Stokes’ application for removal of the CPL. Justice Nixon further directed that if Mr. Heck failed to remove the CPL, he must return to Court on January 23, 2023, to show cause why he should not be held in contempt. [ 8 ] Mr. Heck has an appeal of the Carruthers Order and an application to stay the enforcement of the Arbitration Award pending before the Court of Appeal. There is no automatic stay of proceedings pending appeal in Alberta: Rule 14.68.

The question of a stay is not before the Court in the present application because a stay was considered and dismissed by Justice Nixon. There has been no change in circumstances that could justify this Court revisiting Justice Nixon’s decision dismissing Mr. Heck’s stay application less than three weeks ago. Accordingly, at the time that this application was heard and at the time these reasons were issued, there was no stay with respect to the Arbitration Award, the Carruthers Order enforcing the Arbitration Award, or the Nixon Order. [ 9 ] Mr.

Heck made submissions as to why he believed that the Arbitrator erred or lacked jurisdiction. Issues concerning the Arbitration Award were before Justice Carruthers and Justice Nixon and may yet be before the Court of Appeal, but those issues are not properly before me. The only issues before me are Mr. Heck’s non-compliance with the Nixon Order and the consequences of such non- compliance. Representation of Mr. Heck [ 10 ] At the commencement of the January 23, 2023, hearing, I granted an application from Mr. Heck’s former counsel (“Old Counsel”) to get off the record.

His new counsel (“New Counsel”) requested an adjournment to allow him to prepare for the application. Such applications are routinely consented to by counsel and granted by the Court. However, counsel for Dr. Stokes opposed the adjournment on the grounds that the matter was urgent due to the pending sale of the Rosen Lake Property and because Mr. Heck has changed counsel multiple times and has previously obtained adjournments on that basis. I denied the adjournment request due to the urgency of the application and Mr. Heck’s serial changes of counsel. Mr.

Heck was represented at the January 23, 2023, application by his New Counsel. [ 11 ] On January 30, 2023, at the commencement of the hearing, New Counsel applied to get off the record citing a breakdown in the solicitor-client relationship. I granted the application, but New Counsel remained in the courtroom for the duration of the hearing in case his assistance was required. [ 12 ] By reason of his New Counsel’s withdrawal from the record, Mr. Heck was self-represented in the January 30, 2023, hearing.

I am mindful of the Court’s obligations to ensure that a hearing is fair when a litigant is self-represented: Pintea v Johns , 2017 SCC 23 . Mr. Heck was given ample opportunity to make submissions and given latitude when his submissions strayed into irrelevant subjects. The Law of Contempt [ 13 ] Rules of Court , Rule 10.52(1) provides that an application for a declaration of civil contempt must be served on the person in the same manner as a commencement document.

Rule 10.52(2) provides that a lawyer may accept service of an application for civil contempt. [ 14 ] The issue of service was not disputed when the parties appeared before me on January 23, 2023. Old Counsel for Mr. Heck accepted service and advised Mr. Heck of the application. Any doubt about Mr. Heck’s knowledge of the application to hold him in contempt was dispelled by the fact that Mr. Heck was in the courtroom.

Given that the January 30, 2023, hearing was a continuation of the January 23, 2023, hearing and he was advised by the Court of the January 30, 2023, hearing, service is in order for both dates. [ 15 ] On January 23, 2023, I found Mr. Heck in contempt for non-compliance with the Nixon Order and gave him 48 hours to comply, after which he would be fined $2,500 per day until he purged his contempt.

[ 16 ] Counsel for Dr. Stokes requested that the application be continued on January 30, 2023, in the event that Mr. Heck failed to comply with the Nixon Order. I called Mr. Heck to the podium and addressed him directly. I advised him that if he failed to comply with the Nixon Order, on January 30, 2023, counsel for Dr. Stokes may seek further sanctions for contempt which could include incarceration. Mr.

Heck acknowledged that he understood what he was told. [ 17 ] Justice Cromwell in Carey v Laiken , 2015 SCC 17 explained that “[c]ivil contempt has three elements which must be established beyond a reasonable doubt. These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases.” The three elements set out by Cromwell J at paras 33-35 may be paraphrased as follows: (

a) The order alleged to have been breached must be clear; (

b) The party alleged to have breached the order must have had actual knowledge of the order; and (

c) The party alleged to have breached must have intentionally done the act the order prohibits or intentionally failed to have done the act that the order compels. [ 18 ] The Carey v Laiken test is satisfied beyond a reasonable doubt in the present case. The Nixon Order states in clear terms that Mr. Heck must cause the CPL to be removed. Mr. Heck’s submissions show that he knows that the Court directed the CPL to be removed and that he is willfully disobeying the Nixon Order. Mr. Heck has a deep emotional attachment to the Rosen Lake Property and does not accept the Arbitrator’s direction that it be sold.

He considers his non-compliance with the Nixon Order to be justified because he believes that the Arbitrator’s decision was wrong. Sanction [ 19 ] On January 23, 2023, I found Mr. Heck to be in contempt and imposed a fine of $2,500 per day which would commence 48 hours after the court appearance.

The 48-hour grace period was intended to provide him with time to comply with my direction and purge his contempt without incurring a fine. [ 20 ] Rule 10.53(4) provides that “[t]he 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.” This addresses the present case where the fine imposed on Mr. Heck was not having the desired effect and counsel for Dr. Stokes sought an escalation. As discussed above, I gave notice to Mr.

Heck in Court on January 23, 2023, that any failure to abide by my January 23, 2023, direction to comply with the Nixon Order could result in a reconsideration of the sanction for contempt. [ 21 ] Rule 10.53(1) provides that “[e]very 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....” [ 22 ] The BC Court of Appeal held in College of Physicians and Surgeons of British Columbia v Ezzati , 2021 BCCA 422 at para 59 that “committal for civil contempt is imposed exceptionally and as a ‘sanction of last resort’, generally reserved for cases in which a party ‘is obviously bent on defying the authority of the court” (quoting Robert J.

Sharpe, Injunctions and Specific Performance , 2nd ed. (Aurora, ON: Canadian Law Book, 1992) (loose-leaf updated to November 2020 at paras. 6-9, 6-11)). [ 23 ] The Court of Appeal in Alberta Health Services v Pawlowski , 2022 ABCA 254 at para 35 explained “ [c]ontempt proceedings have two purposes; the primary purpose is to ensure compliance with court orders and a second is to punish the contemnor” [citations omitted]. In the present case, my purpose is to cause Mr. Heck to comply with the Nixon Order, not to punish Mr.

Heck for his disobedience. [ 24 ] The question that must be asked is whether some sanction short of imprisonment would cause Mr. Heck to comply with the Nixon Order. [ 25 ] Mr. Heck has a well-established track record of disobeying orders of this Court. Previous contempt findings include: (

a) on June 23, 2021, Justice Price found Mr. Heck to be in contempt for non-compliance with court orders dated March 23, 2015, October 9, 2015, September 14, 2020, and December 21, 2020; (

b) on September 10, 2021, Justice Kachur found Mr. Heck to be in contempt of Justice Price’s June 23, 2021, Order; (

c) on November 18, 2021, Justice Marriott found Mr. Heck to be in contempt of an order dated July 5, 2021; and (

d) on August 22, 2022, Justice Armstrong found Mr. Heck to be in contempt for non-compliance with orders dated March 23, 2015, June 23, 2021, and September 1, 2021. [ 26 ] Mr. Heck does not accept the Arbitrator’s direction to sell the Rosen Lake Property, nor does he accept the Carruthers Order enforcing the Arbitration Award or the Nixon Order directing the removal of the CPL. He has been subject to significant costs awards and fines. None of these financial measures has had any effect on his position. [ 27 ] When a litigant, like Mr.

Heck, engages in repeated defiance of court orders and demonstrates that his behaviour will not change in response to financial penalties, the Court has no realistic alternative to incarceration. Incarceration is a last resort; but when a litigant is recalcitrant and will not respond to less drastic sanctions it is the appropriate measure. Accordingly, I direct that Mr. Heck be imprisoned until he has purged his contempt pursuant to Rule 10.53(1)(a). [ 28 ] The Court of Appeal in Law Society of Alberta v Beaver , 2021 ABCA 163 at para 52 explained that a sanction for contempt

must be proportionate which, in turn, requires an analysis of aggravating and mitigating factors and the fitness and reasonableness of the sanction. The Court of Appeal outlined a similar approach in Pawlowski at para 35 holding: “ The factors which the court should consider include the proportionality of the sentence to the wrongdoing, the presence of aggravating and mitigating factors, deterrence, reasonableness of a fine and appropriateness of incarceration.” [ 29 ] Both Beaver and Pawlowski concerned circumstances where the act of contempt had been performed and there was no ongoing contempt to purge.

The question for the Court in both cases was the appropriateness of a fixed term sentence for contempt to punish the contemnor. As such, the use of criminal law sentencing principles – proportionality, aggravating and mitigating factors, and deterrence – is a good fit. Those concepts are not as well suited to the present circumstances where the Court is concerned with securing compliance, not punishment. For example, the proportionality of the sentence is impossible to assess in the present case as the sentence will only last so long as Mr. Heck refuses to comply with the Nixon Order.

If the sanction has its desired effect, Mr. Heck’s stay in custody will be brief. [ 30 ] The appropriate question when considering the reasonableness and fitness of a sanction of imprisonment in a case like the present case where compliance is the predominant objective is whether a lesser sanction could reasonably be expected to obtain compliance with the Court’s direction. Mr.

Heck’s habitual non-compliance with court orders, which may be characterized as an aggravating factor, and his steadfast objection to the Arbitration Award, Carruthers Order, and Nixon Order indicate that nothing short of imprisonment will secure his compliance. There are no mitigating factors that weigh in favour of a lesser sanction. Conclusion [ 31 ] Mr. Heck shall be imprisoned until he has purged his contempt or until further order of this Court or the Court of Appeal. Upon complying with the Nixon Order, Mr. Heck shall be released forthwith. Heard on the 30 th day of January, 2023.

Dated at the City of Calgary, Alberta this 31 st day of January, 2023. Colin C.J. Feasby J.C.K.B.A. Appearances: Camille Boyer acting as agent for Marcus M. Sixta for the Applicant Harold Heck, Self-Represented for the Respondent