Jones v Jones, 2020 SKCA 141

Court of Appeal for Saskatchewan Docket: CACV3622 Citation: Jones v Jones , 2020 SKCA 141 Date: 2020-12-23 Between: Evan Jones Appellant And Kent Jones Respondent Before: Whitmore, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Kalmakoff On appeal from: QBG 1044 of 2018, Queen’s Bench, Saskatoon Appeal heard: November 4, 2020 Counsel: Evan Jones on his own behalf Nicholas Stooshinoff, Q.C., for the Respondent Tholl J.A. I.

Introduction [ 1 ] Evan Jones and Kent Jones are brothers who are engaged in a litigious dispute over jointly owned farm equipment. In the course of the litigation, Kent applied for

summary judgment and an order was granted requiring each party to attend for cross-examination on his affidavit. When Evan failed to attend the court reporter’s office for the cross-examination, Kent successfully applied in Chambers to have Evan held in contempt of the order that required his attendance. As a remedy, the Chambers judge struck Evan’s affidavit in its entirety. He then granted

summary judgment in favour of Kent. [ 2 ] Evan asserts the Chambers judge erred by holding him in contempt. He argues he was not properly served with the contempt application and alleges other procedural irregularities. Leaving aside the procedural issues, Evan asserts the Chambers judge erred by finding him in contempt and by granting such a drastic remedy. He argues he should have been given an opportunity to purge his contempt. Kent contests each of the grounds of appeal. [ 3 ] For the reasons that follow, the appeal must be dismissed. II. Background [ 4 ] Evan and Kent had a disagreement over the division of jointly owned farm equipment and litigation ensued. Kent applied for

summary judgment and the parties filed affidavits. On January 9, 2020, Mills J. ordered that each party submit to cross-examination on his affidavit on January 16, 2020 [Cross-Examination Order]. Evan, who is self-represented, was present in court on January 9, 2020, through a telephone conference call. He consented to the date that was set for the cross-examinations. His wife, Donna Jones, was present in the Chambers room when the Cross-Examination Order was made.

Later on that same day, Kent’s counsel arranged for the cross- examinations to take place at Royal Reporting in Saskatoon and served notice of the date, time and place of the cross-examinations on Evan by email. [ 5 ] On January 14, 2020, Kent’s counsel emailed a draft copy of the unissued Cross-Examination Order to Evan for his review and consent as to its form, pursuant to Rule 10-4 of The Queen’s Bench Rules . Evan never responded. The order was formally issued on January 28, 2020. [ 6 ] On January 15, 2020, Donna telephoned Royal Reporting and attempted to postpone the cross-examination.

Neither Evan nor Donna contacted Kent’s counsel about this request or applied for an order changing the date. When Royal Reporting contacted Kent’s counsel about the call from Donna, he informed them that he had not agreed to a postponement and, in any event, it had been court- ordered and could not be changed by the parties.

Kent and his counsel attended Royal Reporting on January 16, 2020, and waited 40 minutes past the scheduled time without Evan showing up or contacting them. [ 7 ] As a result of Evan’s non-attendance, Kent applied for an order holding Evan in contempt for disobeying the Cross- Examination Order. One of the remedies he sought was an order striking out Evan’s affidavit as a penalty for the contempt. The application was served on Evan by email.

In response, Evan filed his own application seeking to have Donna appointed as his litigation guardian, a stay of the Cross-Examination Order and several orders related to another action that he wished to have joined with the action at hand. Evan filed two affidavits and Donna also filed an affidavit. Evan attended and argued the applications. III. Chambers Decision

[ 8 ] Evan’s application for the appointment of a litigation guardian and his request to join the two actions were dismissed orally by the Chambers judge. He reserved his decision with respect to the remainder of the issues and rendered his decision on March 10, 2020 ( Jones v Jones (10 March 2020) Saskatoon, QBG 1044 of 2018 (Sask QB) [ Chambers Decision ]). By way of brief explanation in his written decision, the Chambers judge noted there was simply no evidence that Evan lacked capacity and determined he did not require a litigation guardian.

With regard to the joinder of the two actions, he noted that such an order would have conflicted with earlier orders of other judges of the Court of Queen’s Bench. He also denied the production of additional documents that were sought by Evan. None of these determinations were appealed. [ 9 ] The Chambers judge turned to an examination of whether Evan had been in contempt of the Cross-Examination Order. He first addressed the fact that the order had not been formally issued until January 28, 2020.

After noting that Evan and Donna were both in attendance in Chambers on January 9, 2020, and had heard the oral order pronounced by Mills J., the Chambers judge found Evan had notice of the order. He attached no significance to the fact that the formal order was not issued until January 28, 2020. [ 10 ] It was uncontroverted that Evan did not attend for cross-examination on January 16, 2020, as ordered by the Cross- Examination Order. [ 11 ] The Chambers judge examined Evan’s explanation for not attending for cross-examination.

His reasons with regard to this issue are worth repeating in their entirety: [10] … His explanation for not attending is set out in the second paragraph of his affidavit. Given the nature of the proceedings, I believe it appropriate to recite this paragraph in full. It reads as follows: I was not able to attend the cross-examination on January 16, 2020 because my stepdaughter, Elle Jones, had to have an emergency exploratory bronchoscopy and balloon dilation of the severe stricture of her trachea. Dr. Tyan advised Donna to monitor her closely for 24 hours for breathing trouble or coughing up blood.

Donna would have to take Elle to RUH Emergency if that happened. Therefore, Donna could not assist me at the cross-examination. Donna notified Nicholas Stooshinoff and asked him to change the date but he refused. Surgery dates are triaged and booked on short-notice because of Elle’s urgent condition. Mr. Stooshinoff indicated that Donna was not allowed in the cross-examination room or to assist me in any way. Because of that disagreement and Mr.

Stooshinoff’s refusal to change the date, I decided it was best not to proceed with the cross-examination until Donna is appointed as my litigation guardian. [11] In my view, Evan’s explanation does not provide a reasonable excuse for him not to have attended the scheduled cross-examination. While I feel for his family, the circumstances of his stepdaughter afforded only an explanation for the non-attendance of his wife – not him.

While he is entitled to have a solicitor present with him at the time of the cross-examination, he is not entitled, as a matter of right, to have his wife with him. [ 12 ] It is clear that Evan believed he could simply disregard the order of the court if the circumstances surrounding the cross-examination did not suit him. Court orders are mandatory directions and must be regarded accordingly. In the absence of a compelling explanation, non-compliance with a court order comes with consequences. Such consequences are necessary to ensure respect for the rule of law. [12] The Chambers judge struck Evan’s affidavit.

He then granted

summary judgment in favour of Kent for $38,750, plus pre- judgment interest and costs. IV. Issues [ 13 ] The issues in this matter can be distilled to the following: (

a) Was Evan properly served with the contempt application? (

b) Can a person be held in contempt of an order that was not issued? (

c) Did the Chambers judge err in finding Evan did not have a reasonable excuse for not obeying the Cross-Examination Order? (

d) Did the Chambers judge err in striking Evan’s affidavit? V. Analysis A. Service [ 14 ] The application for contempt was served on Evan by email at the email address he had provided for service in the action. Evan submits that, because he was not personally served with the application for civil contempt, the Chambers judge should not have heard the application. I note that he filed material in response to the application and appeared and argued it without objecting to the method of service. This is a new argument raised by Evan on appeal. [ 15 ] The Queen’s Bench Rules relevant to Evan’s argument are as follows: Declaration of civil contempt 11-26

(1) Except when a person is before the Court as described in subclause (3)(a)(ii) or (v), before an order declaring a person in civil contempt of Court is made, notice of the application for a declaration for civil contempt must be served on the person in the same manner as a commencement document.

… Personal service 12-2(1) Service of a document must be effected by personal service of that document on the person to be served except where: (

a) an enactment or order of the Court provides otherwise; or (

b) these rules authorize service by an alternative or special mode of service. …

(3) Personal service of a document is effected by leaving a copy of the document with the person to be served. [16] A commencement document must be personally served, absent an order for substitutional service or the existence of some otherexception. As such, an application to hold a person in civil contempt must also be personally served. The rationale for the requirement ofpersonal service was recently noted by Leurer J.A., in Onion Lake Cree Nation v Stick, 2020 SKCA 101: [37] The requirement for personal service of a contempt application reflects underlying common law principles.

Both Bhatnager v Canada(Minister of Employment and Immigration), (SCC), [1990] 2 SCR 217 at 225–226 and Morasse v Nadeau-Dubois, 2016SCC 44 at paras 94–99, [2016] 2 SCR 232, speak of the requirement of personal service or actual knowledge of a court order as aprecondition to liability in contempt. In Aalbers v Aalbers, 2011 SKCA 156 at para 34, 385 Sask R 141, Caldwell J.A. approved of theprocedure described by McIntyre J. in Berg v Bruton, 2006 SKQB 17 at para 3, 276 Sask R 130, as follows: (

c) The Court must be satisfied beyond a reasonable doubt that a respondent had notice of the order which he or she is alleged to havebreached and of the motion seeking a finding of contempt. The clearest evidence of this would be personal service upon the respondent ofboth the order and the motion. Rules 21(3) and 26(2) [now Rule 12-9(2)] are clear that service of a contempt application on a party’saddress for service or on counsel of record does not constitute service on the respondent; … (

e) When the motion is served all affidavit evidence in support must be served at the same time so that the respondent is clearly advised ofthe evidence to be adduced against him or her. A person facing possible imprisonment must be fully advised of the nature of the chargeagainst him or her … . (Underline emphasis added by Leurer J.A.) [17] The absence of actual personal service, however, does not end the analysis of this issue.

Leaving aside the fact that thisargument was raised for the first time on appeal, it is my view that the following Rule in The Court of Queen’s Bench Rules provides acomplete answer to this ground of appeal: Personal service 12-2(5) A commencement document is deemed to have been personally served if the person to be served has delivered a statement ofdefence or taken any action that is necessary to participate in the proceeding. [18] After receiving the application for contempt, Evan filed material in response and then appeared and argued the application inChambers.

This full participation satisfies the portion of Rule 12-2(5) that deems a commencement document to have been personallyserved if the person has “taken any action that is necessary to participate in the proceedings”. As such, the combined operation of Rules11-26(1), 12-2(1) and 12-2(5) deemed Evan to have been personally served with the application for civil contempt. This deeming, basedon active involvement by the alleged contemnor in the contempt proceedings, fits comfortably with the requirement that a person be awareof the nature of the contempt application and its potential ramifications.

Evan was deemed to be personally served so the application wasproperly before the Chambers judge. This ground of appeal cannot succeed. B. Order not issued at the time of the contempt [19] The Cross-Examination Order was issued on January 28, 2020. Evan argues he cannot have been in contempt of an order onJanuary 16, 2020, that was not issued until January 28, 2020. He argues that because the order was not issued, it did not exist as of January16, 2020. He reasons that it was impossible for him to breach a non-existent order.

While this is a clever argument, it is without merit.Evan was present in Chambers on January 9, 2020, and heard Mills J. make the Cross-Examination Order. An order comes into existenceupon being pronounced not upon issuance: Procyshyn v Gabruch, 2014 SKQB 349 at para 23, [2015] 5 WWR 320. Having been in courtto hear the actual order being made, Evan had notice of the order. His failure to respond to Kent’s counsel’s request that he consent to theform of the order under Rule 10-4, which caused the delay in it being issued, does not change the fact that the order was pronounced andtook effect on January 9, 2020.

This ground of appeal cannot succeed. C. Reasonable excuse to disobey the order [20] As set out in Carey v Laiken, 2015 SCC 17 at paras 32–35, [2015] 2 SCR 79, a finding of civil contempt requires that threeelements be established beyond a reasonable doubt: (

a) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (

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

(

c) 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. [ 21 ] Rule 1 1-26(3) of The Queen’s Bench Rules provides an alleged contemnor with the ability to avoid a finding of contempt if he or she has a reasonable excuse for failing to comply with an order: 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 an 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; … (iv) does not comply with an order served on the person, or an order of which the person has actual knowledge, to attend for questioning pursuant to these rules or to answer questions that the person is ordered by the Court to answer … . [ 22 ] The evidence established, beyond a reasonable doubt, that Evan had notice of a sufficiently clear order and failed to attend for cross-examination in breach of that order.

The only issue that remains with regard to the finding of contempt is Evan’s challenge to the Chambers judge’s determination that he did not have a reasonable excuse for his failure to comply with the Cross-Examination Order. While Evan sets out several alleged facts in his factum that he argues cumulatively provides him with a reasonable excuse for disobeying the order, I note that most of those facts are not contained in the evidence. Assertions of facts in a factum, without an evidentiary basis, cannot be relied upon in an appeal.

As a result, the evidence of an excuse provided by Evan is found in his assertion that he could not attend because Donna was not available. [ 23 ] The standard of review to be applied to a finding of civil contempt depends on the nature of the issue raised on appeal. If the issue involves a question of law, the standard of review is correctness. If the appeal is from findings of fact and inferences of fact, or the application of a legal standard to the facts, the applicable standard of review is palpable and overriding error.

If the issue is about the judge’s exercise of discretion, the standard of review applicable to discretionary decisions governs: see Friedlander v Claman , 2016 BCCA 434 at para 52 , 404 DLR (4th) 480 .

The standard of review applicable to discretionary decisions is set out in Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119 [ Rimmer ]; Canadian Pacific Railway Company v Kelly Panteluk Construction Ltd ., 2020 SKCA 123 , at para 37 ; and Strom v Saskatchewan Registered Nurses’ Association , 2020 SKCA 112 at paras 60–61 . [ 24 ] As noted in G.(J.D.) v G.(S.L.) , 2017 MBCA 117 , 2 RFL (8th) 255 [ G.(J.D.) ], “If a judge’s contempt decision as to either liability or penalty is informed by the correct principles, it is entitled to a high degree of deference on appeal …” (at para 73): see also Lee v Weidner , 2019 BCCA 326 at para 22 , 95 CCLI (5th) 182, and Envacon Inc. v 829693 Alberta Ltd ., 2018 ABCA 313 at para 7 , 426 DLR (4th) 472.

A determination that an alleged contemnor has not provided a reasonable excuse for disobeying a court order is entitled to deference. [ 25 ] In the matter at hand, the Chambers judge dealt squarely with the excuse disclosed by Evan in his evidence and determined it was not sufficient. He understood the nature of the purported justification, and expressed sympathy for the situation, but found that Evan simply believed he could disregard the order if the circumstances of the cross-examination did not suit him. The Chambers judge found the excuse to not be reasonable.

This determination was well-grounded in the evidence and, in the circumstances of this matter, cannot be disturbed on appeal. As such, the finding of contempt must stand. D. Striking Evan’s affidavit [ 26 ] Having found Evan to be in contempt of the Cross-Examination Order, the Chambers judge had to decide the appropriate sanction or penalty. Rule 11-27 sets out the following options: Punishment for 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. [ 27 ] The Chambers judge choose to strike Evan’s affidavit that he had filed on the

summary judgment application and on which he had failed to appear for cross-examination. This was an option that was available to the Chambers judge under Rule 11-27(1)(c)(i). However, Evan argues that a less drastic penalty should have been imposed.

[ 28 ] The choice of penalty or sanction imposed after a finding of contempt is a discretionary decision subject to a high degree of deference on review: G.(J.D.) at para 73 ; Susin v Susin , 2014 ONCA 733 at para 53 , 379 DLR (4th) 308; Majormaki Holdings LLP v Wong , 2009 BCCA 349 at para 31 , [2009] 3 WWR 658; and Rimmer at para 58 . While the Chambers judge did not explain why he chose this particular sanction, I note that the Chambers judge was also deciding the application for

summary judgment. He had the benefit of being able to consider the effect of the striking of the affidavit within the context of the action as a whole and the claim for $38,750. In my view, the penalty was one that was within the range of available options in the circumstances of this matter. I can see no error in his choice. There is no room for appellate interference on this basis. [ 29 ] Lastly, Evan argues it was an error of law for the Chambers judge to impose a penalty without first giving him an opportunity to purge his contempt.

Although a judge will frequently give a party an opportunity to purge his or her contempt before a sanction is imposed or takes effect, I am unaware of any requirement at law that such an indulgence be granted. This argument has no merit. VI. Conclusion [ 30 ] The appeal is dismissed with costs in the usual way. “Tholl J.A.” Tholl J.A. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.