336239 ALBERTA LTD. (DAVE’S DIESEL REPAIR) v MELLA, 2016 ABQB 174
10.49: Penalty for contravening rules
10.52: Declaration of civil contempt
The Plaintiff commenced the Action after discovering that the individual Defendant, Mella, had fraudulently misappropriated funds and had distributed them to the other Defendants. The Plaintiff obtained an Attachment Order against the Defendants that capped their payable per month expenditures. The Defendant breached the Attachment Order, and the Plaintiff obtained an Order for contempt. The Defendants were permitted to purge their contempt by making full repayment of the money that exceeded their allowance. The Defendants consented to Judgment against them for fraudulent misappropriation of funds. Following the Consent Judgment, the Plaintiff sought a further Order for contempt under Rule 10.52 for the Defendants continued breach of the contempt Order and the Defendants’ subsequent breach of the Consent Judgment.
Shelley J. noted that under Rule 10.52 contempt of Court can take many forms including disobedience of a Court Order, breach of the Rules of Court or other misconduct. Justice Shelley noted that Courts must have the power to deal with contemptuous conduct in the course of administering their judicial mandate. Her Ladyship noted that, once a party was found to be in contempt of Court, the onus is on the breaching party to prove that they have purged their contempt, and contempt ought to be used as a remedy of last resort. The rationale for a Contempt Order is that the party has committed an offence against the authority of the Court, and fines are therefore payable to the Court and not the Litigants.
Shelley J. found the Defendants in contempt for continuous breaches of the first contempt Order and the subsequent Consent Judgment. Shelley J. ordered that the Defendants make payment as promised, or attend before the Court to show cause as to why payment had not been made, failing which the Defendants would face time in jail.View CanLII Details