Michalyshyn J

5.24: Oral and written questioning limitations
5.28: Written questions
6.11: Evidence at application hearings
6.14: Appeal from master’s judgment or order
6.15: Appointment for questioning under this Part
6.16: Contents of notice of appointment
6.17: Payment of allowance
6.18: Lawyer’s responsibilities
6.19: Interpreter
6.20: Form of questioning and transcript
6.7: Questioning on affidavit in support, response and reply to application
6.8: Questioning witness before hearing
10.53: Punishment for civil contempt of Court
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Defendant applied to have the Plaintiff’s Statement of Claim struck for failure to purge ongoing Civil Contempt. The Plaintiff was found in Civil Contempt for failing to attend Questioning on Affidavits filed in support of several Applications, but could purge the Contempt by attending Questioning by July 30, 2017. The Plaintiff failed to attend arguing physical and cognitive impairments. The Plaintiff insisted that she did not refuse to be Questioned as she maintained that she would answer written interrogatories instead. Justice Michalyshyn noted that the Questioning at issue was under Part 6 of the Rules. There is no equivalent in Part 6 to Rule 5.28 which allows for written interrogatories; however, Rule 5.24 provides that Questioning must be oral unless the Parties agree or the Court otherwise orders. Michalyshyn J. noted that Rule 6.11(1)(c) specifically allows the Court to consider evidence given by written answers to questions under Part 5. That Rule did not address whether written answers to questions under Part 6 would be admissible in a Part 6 Application.

Justice Michalyshyn found that the Plaintiff had refused to attend the court-ordered Questioning, yet failed to establish that she was medically unable to attend for oral Questioning. The remaining question was which punishment under Rule 10.53 was appropriate. Michalyshyn J. applied the factors set out in Demb v Valhalla, 2016 ABCA 172 (CanLII) which are: 1) whether the failure to comply with the Court Order was deliberate or inadvertent; 2) the role of counsel; 3) where the failure is in giving discovery, the object is more to secure discovery rather than to punish; 4) whether there were attempts to purge contempt or apologize; 5) the entire history or context of the litigation; 6) the amount of reasonable thrown-away costs incurred; 7) the nature of the contempt; and 8) the degree of culpability of the contemnor.

Michalyshyn J. held that all of the factors weighed in favour of a serious punishment. Notably, the Plaintiff’s Contempt was found to be based on a deliberate refusal to attend oral Questioning, which was unwavering and unapologetic. Regarding the entire context of the litigation, Michalyshyn J. held that the Action itself faced several arguable defences. While the refusal to attend Questioning on an Affidavit was found to be analogous to discovery, Michalyshyn J. found that it was unlikely that the Plaintiff could be persuaded to follow Court Orders or “engage appropriately in the litigation” through a lesser sanction. Accordingly, the sanction set out on Rule 10.53(1)(i), striking the Claim with Costs was appropriate. The Plaintiff’s Claim was accordingly struck. Costs were awarded to the Defendant on double Column 5 of Schedule C.

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Related to 5.24

Related to 5.28

Related to 6.7

Related to 6.8

Related to 6.11

Related to 6.15

Related to 6.16

Related to 6.17

Related to 6.18

Related to 6.19

Related to 6.20

Related to 6.14

Related to 10.53

Related to SCHEDULE C