Steinmann v. Kotello, 2012 MBCA 30

Citation: Steinmann v. Kotello, 2012 MBCA 30 Date: 20120327 Docket: AF11-30-07536 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Michel A. Monnin Mr. Justice Alan D. MacInnes BETWEEN : RITA STEINMANN ) R. H. Kravetsky ) for the Appellant (Applicant) Respondent ) ) S. K. Windsor - and - ) for the Respondent ) ROBERT KOTELLO ) Appeal heard: ) September 19, 2011 (Respondent) Appellant ) ) Judgment delivered: ) March 27, 2012 MONNIN J.A. 1 This is an appeal from a prevention order granted under the provisions of The Domestic Violence and Stalking Act , C.C.S.M., c.

D93 (the Act ). 2 The appellant alleges that the original protection order upon which the prevention order is predicated should have been found to be void by the judge hearing an application to set aside, therefore leaving her with no basis in law to grant the prevention order now being appealed. 3 The respondent, along with her daughter, attended before a Justice of the Peace on August 23, 2010, seeking a protection order without notice against the appellant, pursuant to s. 6(1) of the Act .

The Justice of the Peace received a sworn affidavit from the respondent and, as well, heard some sworn evidence from the respondent. In addition, she also heard and received unsworn and hearsay evidence from the respondent’s daughter, following which she granted the order being sought.

The order contained the following conditions: The [appellant] shall not attend at, or near or within 500 meters of where the protected party: T resides, including T regularly attends, including T works or carries on business, including 4 The appellant brought an application to have the protection order set aside in accordance with s. 11(1) of the Act . That

section reads as follows: Application to set aside order 11(1) A respondent against whom a protection order is made may apply to the court within 20 days after being served with the order,

or such further time as the court may allow, to have the order set aside. 5 During the hearing to set aside the protection order, the appellant, while testifying under oath, stated that he was challenging the order because in granting the order, the Justice of the Peace had relied on the unsworn evidence of the respondent’s daughter.

Specifically the appellant said: I would like the court, Your Honour, to rule on my motion that this order be set aside because of the inappropriateness and undoubted, undoubted illegality of Brenda allowing -- being allowed to testify and not having been affirmed or sworn on that date at that time. 6 In answer to this objection the judge stated: Okay, well, for -- I’m not prepared to set aside the order on that basis alone.

However, when considering at the end of the day what I’m going to do, I am completely ignoring Brenda Steinmann’s evidence before the justice of the peace and only going to be relying on Rita Steinmann’s evidence that was before the justice of the peace. And whatever evidence she’s leading today that you’ll have the opportunity to cross-examine. But I think your point is well-founded. 7 And she further stated: Yeah, that’s all I’m looking at. I’m not going to look at the statement because I believe Brenda coached her mother. And so I am disregarding that.

All I’m looking at is the oral evidence of Rita Steinman [ sic ], not Brenda. 8 The appellant again argues before us that the original protection order was void because the statutory requirement with respect to sworn evidence was not adhered to. In addition, he argues that the protection order should have been deemed void by the judge because of the vagueness of the conditions set out in para. 3 of these reasons.

Because the order was void, the appellant argues that the provisions of s. 12(2) of the Act were therefore triggered in error, putting the appellant in a position of having to disprove a case which did not exist.

Section 12 provides: Nature of hearing 12(1) The judge hearing an application to set aside a protection order may confirm or set aside the order or may vary it by deleting clauses or by adding clauses from subsection 7(1) (content of protection order). Onus on respondent 12(2) At a hearing, the onus is on the respondent to demonstrate, on a balance of probabilities, that the protection order should be set aside.

Use of evidence from application for order 12(3) The evidence that was before the designated justice of the peace shall be considered as evidence at the hearing, and the subject may present additional evidence.

Adjournment to allow subject to obtain advice 12(4) If the parties to a protection order indicate agreement that it should be set aside but the judge is not satisfied that the subject’s agreement is freely and voluntarily given, the judge may adjourn the proceeding to allow the subject to obtain legal or other advice. 9 Finally, the appellant argues that the judge further erred in failing to disallow evidence led in breach of the rule in Browne v.

Dunn (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.) , arguing that some of the evidence led by the respondent was not first put to him in order to provide him with an opportunity to address that evidence .

10 The respondent takes the position that when proceedings are taken pursuant to s. 11 of the Act, the statute does notallow or require the judge hearing the matter to decide on the validity of the protection order. What the judge can do, she argues, is setaside the order if he or she is satisfied by the appealing party that it is advisable or just and equitable to do so, or confirm the order as itstands, or confirm the order with some variations. The respondent further argues that is exactly what the judge did in this case andtherefore she committed no error in law in doing so.

In advancing this argument, the respondent relies on the decision in Shaw v. Shaw(2000), (MB KB), 144 Man.R. (2d) 45 (Q.B.), where it is stated (at paras. 28-30): Counsel for the husband argued that because of the unsigned and undated application, the lack of the required finding and because therewas essentially no evidence upon which a finding could rest in any event, that the Protection Order of the justice of the peace should beregarded as a void ab initio, should be declared to be so, and that the court’s inquiry should end there.

Were the context of this decisionsomething other than a statutory appeal this argument might have merit. The context for this decision however is an application to set aside pursuant to s. 11 of the statute. The legislative scheme in questiondoes not support the husband’s submission on this point.

Section 12 makes it clear that on the respondent’s application to vary or setaside the court may confirm, vary or set aside the Protection Order if the respondent satisfies the court on a balance of probabilities thatthis should be done. In this process, the court is directed by s. 12(3) of the Act to consider the evidence that was before the justice of thepeace as well as additional evidence produced at the hearing to set aside, including the further evidence of the subject, Mrs. Shaw.

I accordingly find that I am required by the statute to have regard to all of the evidence now before me (which is considerably morevoluminous than that which was presented to the justice of the peace) in reaching a decision on the husband’s application to set aside. 11 If the above paragraphs from Shaw mean that as soon as a protection order is granted by a Justice of the Peace, itbecomes nigh unassailable, whether or not it was granted in a manner that clearly contravenes the requirements of the Act, I woulddisagree.

In Shaw, although the judge refers to considering the evidence that was before the Justice of the Peace, he is silent as to thevalidity of the protection order itself. 12 I am satisfied that the appeal provision of the Act was not meant to, and does not, mean that if an order is void from itsinception, it has to be treated as being valid by the reviewing judge. If in fact it is void, the judge should address that issue at the outsetof the hearing and quash the order. The process would then have to be reinitiated before a Justice of the Peace. The appeal

section ofthe Act has to be based on an understanding that the order being appealed is a valid one. 13 Having said this, the question to be answered in this appeal still remains whether the protection order was void orwhether it was simply voidable. 14 Section 4(3) of the Act provides: Evidence to be given under oath 4(3) Evidence adduced in support of an application for a protection order must be given under oath. 15 The appellant argues that the word “must” in s. 4(3) of the Act is to be interpreted as being mandatory and thereforestrict compliance is required, failing which an order granted in contravention of it is a nullity. 16 The issue, however, is not as clear as the appellant makes it out to be.

No doubt the word “must” is to be viewed asimperative, but what is key to the

interpretation of that word in the context of the Act are the consequences that flow from a failure tocomply. In other words, is the provision mandatory versus directory?

The answer to that question will inform us in deciding whether theprotection order was void or simply voidable. 17 Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008), notes thedistinctions to be made in the terminology and the confusion that has sometimes arisen in this area (at pp. 74-75): When “shall” and “must” are used in legislation to impose an obligation or create a prohibition or requirement, they are alwaysimperative. A person who “shall” or “must” do something has no discretion to decide whether or not to do it.

A person prohibited fromdoing something is equally devoid of lawful choice. The issue that arises in connection with “shall” and “must” is not whether they areimperative, but the consequences that flow from a failure to comply. In some legislation, the consequences of failing to do what one isobliged to do (or not do) are clearly set out, but in other contexts the legislation is silent and it is left to the courts to determine whethernon-compliance can be cured.

If breaching an obligation or requirement imposed by “shall” entails a nullity, the provision is said to be mandatory; if the breach can befixed or disregarded, the provision is said to be directory. The term “directory” is unfortunate in so far as it implies that “shall” issometimes not imperative, that it sometimes has the force of a mere suggestion. The confusion is compounded when “mandatory” and

“imperative” are used interchangeably - that is, when “mandatory” is used to indicate that a provision is binding or “imperative”. Theseare distinct concepts. “Shall” and “must” are always imperative (binding); neither ever confers discretion. But they may or may not bemandatory; that is, breach of a binding obligation or requirement may or may not lead to nullity. The mandatory-directory distinctionreflects the fact that there is more than one way to enforce an obligation. [emphasis added] 18 The issue of whether a provision is mandatory or directory was canvassed at length by Hamilton J.A. in B.W. v.

Childand Family Services of Winnipeg, 2009 MBCA 95, 245 Man.R. (2d) 186. She wrote (at paras. 35-36): The word “shall” is presumptively imperative in nature and imposes an obligation to do something. See: s. 15 of the

InterpretationAct, C.C.S.M., c. I-80, Manitoba Language Rights Reference, (SCC), [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, at para. 27, Ruth Sullivan, Sullivan on the Construction of Statutes, 5th Ed. (Markham: LexisNexis Canada Inc., 2008), at 74,and Pierre-André Côté, The

Interpretation of Legislation in Canada, 3rd Ed. (Scarborough: Thomson Canada Limited, 2000), at 236. In most cases the crucial debate is not whether the word “shall” is imperative, but whether there are consequences for not complyingwith an obligation. Obviously, where the legislation sets out the consequence there is no debate. Where the legislation is silent “it is leftto the courts to determine whether non-compliance can be cured”.

See Sullivan, 5th Ed., at p. 75. 19 She then went on to set out the factors that are to be considered when determining whether a provision is mandatory ordirectory (at paras. 38-42): The object of the legislation in question and the effect of the ruling are crucial factors for determining whether a provision is mandatoryor directory. See British Columbia (Attorney General) v. Canada (Attorney General), (SCC), [1994] 2 S.C.R. 41;166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1, and Blueberry River Indian Band and Doig River Indian Band v.

Canada (Minister ofIndian Affairs and Northern Development), (SCC), [1995] 4 S.C.R. 344; 190 N.R. 89, in which McLachlin, J. as shethen was, wrote (at para. 42): ... This court has since held that the object of the statute, and the effect of ruling one way or the other, are the most importantconsiderations in determining whether a directive is mandatory or directory: British Columbia (Attorney General) v.Canada (Attorney General) ... In Caddy Lakes Cottagers Association v.

Florence-Nora Access Road Inc. et al. (1998), (MB CA), 129 Man.R.(2d) 71; 180 W.A.C. 71 (C.A.), Helper, J.A., adopted the following three factors, as explained by Côté (at para. 42): Three factors appear to influence the courts: the prejudice caused by non-compliance with formalities, the potential consequences of acourt finding of nullity, and the subject matter of legislation. See also Wolfrom v. Association of Professional Engineers and Geoscientists (Man.) (2001), 2001 MBCA 152 , 160 Man.R.(2d) 62; 262 W.A.C. 62; 2001 MBCA 152.

Helper, J.A., also cited, with approval, the reasons of Kerans, J.A., in Bridgeland Riverside Community Association v.

Calgary (City)and Patricia Investments Ltd. (1982), 1982 ABCA 138 , 37 A.R. 26; 135 D.L.R. (3d) 724 (C.A.), in which he stressed theelements of prejudice and fairness (at p. 730 [D.L.R.]): ... [A]bsent an express statutory statement of effect, no defect should vitiate a proceeding unless, as a result of it, some real possibility ofprejudice to the attacking party is shown, or unless the procedure was so dramatically devoid of the appearance of fairness that theadministration of justice is brought into disrepute.

Thus, the result of nullification and its effect on the parties and others, in the context of the object of the legislation, are key to theinquiry, which Iacobucci, J., described as “blatantly result- oriented” in Vancouver Island Railway, at p. 123 [S.C.R.]. He also wrote

the following about this process of statutory

interpretation (at pp. 123-124 [S.C.R.]): ... [T]he manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means. In this sense, to quoteagain from Reference re Manitoba Language Rights, supra, the principle is “vague and expedient” (p. 742). This means that the courtwhich decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed bythe usual process of statutory

interpretation. But the process perhaps evokes a special concern for “inconvenient” effects, both publicand private, which will emanate from the interpretive result. (Emphasis added) While the factors have been described in different ways in the case law, they consistently focus on the two considerations explained inBlueberry; the object and purpose of the legislation and the effect of ruling the provision mandatory or directory.

The latter reallyfocusses on the effect of automatic nullification if the provision is mandatory. [emphasis added] 20 Applying the factors set out by Helper J.A. in Caddy Lake Cottagers Association v. Florence-Nora Access Road Inc. etal. (1998), (MB CA), 129 Man.R. (2d) 71 (C.A.), as referred to by Hamilton J.A. in B.W., I am persuaded that aconsideration of the first factor favours the appellant’s view that the provision of s. 4(3) of the Act is mandatory. 21 However, the other two factors appear to strongly support the finding that the provision is directory.

First, andunderstandably, the potential consequence of the nullification of an existing order could be potentially harmful to an applicant who istruly in need of protection. 22 Second, the important subject-matter of this legislation also supports a directory provision. The nature of thelegislation was described by Steel J.A. in Baril v. Obelnicki 2007 MBCA 40, 214 Man.R. (2d) 7. She indicated that the Act wasdesigned to prevent crime, or objectionable behaviour that might lead to a crime, and addressed a “pressing concern” (at para. 6) inManitoba.

She continued with some further background in reference to stalking (at para. 82): …. In the case of stalking, there exists an extensive literature on the dynamics of stalking, its overpowering impact on the victim,usually a woman, and the necessity for the law to assist the stalking victim to sever her interaction with the stalker in order to protectherself.

There is a significant power imbalance between the perpetrators and victims of stalking and that power imbalance holds thepotential for tragic consequences in the absence of timely intervention. …. 23 Arguably, and in light of the above, a finding that s. 4(3) of the Act is directory may accord with the overall objective ofthe legislation, which is to protect vulnerable persons from the possibility of disastrous actions by stalkers or, as in this case, by acommon-law partner. 24 Based on the considerations noted above, I find that the word “must,” as used in s. 4(3) of the Act, is in fact directoryand not mandatory. 25 If in fact the

section is directory, as I have found it to be, what is to be done when a breach of it exists, as was the casehere when the justice of the peace received unsworn evidence? That issue was also addressed by Hamilton J.A., in B.W. when she wrotethat such non-compliance can be cured at the court’s discretion (at paras. 46-49): As already stated, if a provision is mandatory, non-compliance with the obligation results in a nullity. However, non-compliance with anobligation contained in a directory provision does not mean that there is no consequence.

Rather, it is within the discretion of the courtto decide if the non-compliance should be disregarded or cured. Binnie, J., writing for the court, made this point in M & D Farm Ltd.et al. v.

Manitoba Agricultural Credit Corp., (SCC), [1999] 2 S.C.R. 961; 245 N.R. 165; 138 Man.R. (2d) 161; 202W.A.C. 161 (at para. 44): The distinction is well established between legislative provisions that are mandatory (in the sense that non-compliance results ininvalidity) and directory (where non-compliance may in certain circumstances be relieved against): Reference re Manitoba LanguageRights, (SCC), [1985] 1 S.C.R. 721, at p. 737. ... (Emphasis added) The two most crucial factors for the courts to consider when exercising their discretion are the extent of the non-compliance and theextent of any prejudice suffered as a result of it.

When considering the extent of the non-compliance, judges often write in terms of whether or not there has been substantial compliancewith the requirement. See, for example, Regina (City) v. Newell Smelski Ltd. (1996), (SK CA), 152 Sask.R. 44;140 W.A.C. 44 (C.A.); Wascana Energy Inc. v. Gull Lake No. 139 (Rural Municipality) et al. (1998), (SK CA),168 Sask.R. 58; 173 W.A.C. 58 (C.A.); Friedrich v. Agricultural Credit Corp. of Saskatchewan (1988), (SK CA),66 Sask.R. 107 (C.A.); Central Mortgage and Housing Corp. v. Co-operative College Residences Inc. et al. (1975), (ON CA), 71 D.L.R. (3d) 183 (Ont.

C.A.); Washtronics Ltd. v. Winnipeg (City) et al. (1994), (MB CA), 97Man.R. (2d) 258; 79 W.A.C. 258 (C.A.), affirming the decision of Beard, J., at (1994), (MB KB), 94 Man.R. (2d) 21(Q.B.). See also S.G.G. Edgar, Craies on Statute Law, 7th Ed. (London: Sweet & Maxwell Limited, 1971), at 260. While substantial compliance favours the exercise of discretion to disregard or cure the non- compliance, it must be considered in thecontext of all of the circumstances, including any prejudice suffered by others.

It may be that there has been substantial compliance, butthere has also been prejudice suffered by the other party. In the end, it is a question of what is fair and just in the circumstances. 26 In the circumstances of this case, while the procedure followed by the judge might not have been ideal, the appellant, inmy view, received a fair and more than adequate hearing. The hearing was not conducted in a formalized and structured fashion and theappellant had more than ample opportunity to have his concerns and viewpoints aired and considered and, in the final analysis, sufferedno prejudice.

To have taken a narrow view of the proceedings before the justice of the peace would have served no useful purpose.

Thematter could have been sent back and the evidence would again have been adduced, leading to a new protection order which then couldhave been appealed to a judge, who would then have to complete the same exercise as did the judge in this particular case, with no doubtthe same result. 27 Having stated the above, I have little hesitancy in finding that the judge was well within her rights and properlyexercised her discretion in curing the defects that rendered the order made by the justice of the peace voidable.

She committed no errorin law in doing so, and I would dismiss that ground of appeal. 28 I would also dismiss the appellant’s appeal based on a breach of the rule in Browne. Firstly, it is not an absolute ruleand, secondly, the judge provided the appellant an opportunity to cure the perceived breach. He declined that opportunity. Further, as Ihave stated earlier, the appellant received a fair and complete hearing. He suffered no prejudice. 29 Finally, I would also dismiss the appeal based on the order’s vagueness.

I concede that the order could have been moreprecise, but, in my view there was sufficient definition to it that the appellant could understand where he was not to attend. His allegedfailure to do so is quibbling and not worthy of consideration. 30 Accordingly, the appeal is dismissed with costs. J.A. I agree: C.J.M. I agree: J.A.