November 18, 2022
Alberta’s Court of Appeal recently issued a decision to grant an appeal filed by Jonathan Denis, quashing the finding of contempt made against him, finding that the lower Court’s proceedings were procedurally flawed.
Although the decision is brief, it reaffirms the need for trial courts to follow the rule of law and ensure procedural fairness in contempt proceedings when dealing with alleged contemnors.
Court of King’s Bench Finds Mr. Denis in Contempt
The background leading to the citation and finding of contempt are set out in Denis v Sauvageau, 2022 ABCA 166 ("Denis").
Alberta’s former Chief Medical Examiner, Dr. Sauvageau, was testifying in her own wrongful dismissal lawsuit. During her testimony, she mentioned Alberta’s former Justice Minister, Mr. Denis. On April 8, 2022, while Dr. Sauvageau was still in examination-in-chief, her lawyer received a letter from Mr. Denis’ law firm on Mr. Denis’ letterhead. The letter advised that Mr. Denis would be ordering transcripts of Dr. Sauvageau’s testimony and “investigating a defamation action against Dr. Sauvageau”.
The letter was brought to the attention of the trial judge hearing Dr. Sauvageau’s wrongful dismissal lawsuit. The trial judge requested that Mr. Denis appear in Court on April 11, 2022. Mr. Denis did so and made submissions to the Court. On April 13, 2022, the trial judge issued an oral decision finding Mr. Denis in contempt of court.
Stay Applications are for Consequences, Not Findings
It is important to note that Mr. Denis was not sanctioned on April 13, 2022. Instead, the trial judge adjourned the sanction to a later date. Mr. Denis filed an appeal of the contempt finding within 30 days of the decision, as he was required to do.[1] Mr. Denis then filed a further application, this time for the finding of contempt to be stayed pending appeal.
The Court of Appeal decided that the stay should not be granted. It noted that the Court of Appeal cannot stay “an actual decision, such as a finding of contempt”. Stay applications are for consequences, namely sanctions and costs. In other words, the application for a stay was premature.
The test for a stay pending appeal requires the applicant to show that (i) there is a serious question to be tried, (ii) the applicant will suffer irreparable harm if the stay is not granted, and (iii) the balance of convenience favours granting the stay.
The Court of Appeal made important comments on the balance of convenience, litigation by installment, and proceedings related to the appeal of contempt proceedings. It is important to read these comments together with Rule 14.8 on the deadline to file an appeal, and the Court’s recent decision on the timing of an appeal of contempt in Alberta Health Services v Pawlowski ("Pawlowski"). In Pawlowski, the Court of Appeal found that the time to appeal starts to run with the finding of contempt, and not after sanction is concluded - as decided in Denis. In Pawlowski, the Court of Appeal noted that there are distinct liability and penalty findings, which attract distinct deadlines for appeal.
In determining where the balance of convenience lay, the Court of Appeal in Denis noted that the proceedings at the lower Court for sanctions and costs should not be stayed pending the appeal of the contempt finding. The Court of Appeal further noted that bifurcating the possible appeals would be an inefficient use of limited judicial resources. Despite distinct conviction and sanction stages, the Court of Appeal found that that an appeal should only be heard after the entirety of the contempt proceedings are concluded in the Court below.
In contrast, the Court of Appeal in Pawlowski declined to accept the Pawlowskis’ submission that until the lower Court sanctions an alleged contemnor, “the contempt proceedings are bifurcated but not concluded”, whereas the court in Denis noted that “until the sanction is imposed, the contempt proceedings are not complete”.
On first blush the Denis and Pawlowski decisions may seem at odds. What prospective litigants should take away from the two decisions is:
- The time to appeal a finding of contempt starts to run from the time the finding was made;
- That once an appeal of the finding of contempt is filed, it is likely appropriate for the appeal to be stayed, pending sanction by the lower courts; and
- Once the sanction hearing is concluded, then the appellant can decide whether to also appeal the sanction and seek to have the appeals heard together.
Procedural Requirements for Contempt Proceedings
Although the Court of Appeal did not provide written reasons as to why the lower Court’s decision was procedurally flawed in the Denis matter, litigants and courts do have procedural guidance for contempt proceedings.[2]
There is a three-step process to contempt proceedings.[3] First, the alleged contemnor must be cited for contempt, then a hearing on liability can proceed where the Court is tasked with determining whether there should be a finding of contempt, and if the contempt is made out then the contemnor is sanctioned. The three-step process should only be collapsed where it is “urgent and imperative to act immediately”.[4]
1. Citation for Contempt
The Alberta Rules of Court (the "Rules") provide a framework for contempt proceedings in Alberta. There are two ways in which civil contempt proceedings may be initiated:
- The Court may cite an alleged contemnor for contempt pursuant to Rule 10.51; or
- A litigant may file an application for a declaration of civil contempt pursuant to Rule 10.52(1).
Once an alleged contemnor is cited, the contempt proceedings should proceed in a bifurcated manner between a liability phase then, if applicable, a sanctions phase.
2. Liability Phase
Once the alleged contemnor is cited, as per above, a show-cause hearing can proceed to determine whether there should be a finding of contempt. In the show-cause hearing, evidence must be brought which shows beyond a reasonable doubt that the contempt occurred, and the alleged contemnor must be given an opportunity to provide an adequate excuse for their conduct. If the Court is satisfied beyond a reasonable doubt that contempt occurred, then a declaration of contempt may be issued pursuant to Rule 10.53(3).
3. Sanctions Phase
Following the contempt finding, a sanctions phase follows. Although Rule 10.53(1) sets out some possible penalties for sanctioning contempt, the rule is not exhaustive, and the Court has the inherent power to impose other remedies not explicitly enumerated in the Rules.[5]
Gavin Price is a partner at JSS Barristers. Click here for Gavin's bio.
Sarah Miller is an associate at JSS Barristers. Click here for Sarah's bio.
[1] Alberta Health Services v Pawlowski, 2021 ABCA 344 at para 7.
[2] For additional procedural guidance, see Schitthelm v Kelemen, 2013 ABQB 42.
[3] R v Arradi, 2003 SCC 23 at para 32.
[4] Arradi, ibid.
[5] Alberta Dental Assn. v Unrau, 2001 ABQB 315 at para 20.