FORD v JIVRAJ, 2023 ABKB 92
5.33: Confidentiality and use of information
9.15: Setting aside, varying and discharging judgments and orders
10.52: Declaration of civil contempt
The underlying Action arose from a failed relationship between the Parties: the Plaintiff’s failed political aspirations and the Defendant’s claimed loss of a political future.
The Plaintiff commenced a Statement of Claim for a Restraining Order and sought interim relief in the same nature against the Defendant. The Defendant filed a Statement of Defence and also filed a Counterclaim for his own Restraining Order. Justice Graesser had to determine whether an existing interim Restraining Order against the Defendant (the “Interim Restraining Order”) should continue indefinitely and whether the Defendant was in Contempt of Court for breaching the Interim Restraining Order.
By way of background, the Parties were engaged in a collateral fight, a defamation lawsuit. Counsel for the Plaintiff maintained that the Defendant had perjured himself and had obtained leave to question the Defendant on certain records disclosed by the Defendant in the defamation Action. The Court noted that generally, Parties to an Action are subject to the implied undertaking of confidentiality. They must treat all records received during litigation as confidential and can use them only to carry on the Action in which the records were disclosed. However, Parties may be relieved of the implied undertaking rule if the Court so orders under Rule 5.33(1). Justice Grasser granted the Plaintiff leave to cross-examine the Defendant on certain records disclosed in the defamation Action on the basis that the Defendant was aware of these records and ought to have produced them in the current Action. The evidence from the cross-examination was before the Court.
Turning the Court’s attention to the two main issues, Graesser J. noted that even though the Plaintiff had previously obtained the Interim Restraining Order, she still had to prove the elements of her claim to obtain a civil Restraining Order (also known as a civil Injunction) against the Defendant. She could not rely on Rule 9.15 to vary the Interim Restraining Order and obtain final relief. Rule 9.15 simply holds that interim Orders obtained without notice can be varied by the Court. The Plaintiff’s claim was for a permanent Injunction and the Interim Restraining Order was interim in nature. Accordingly, the Plaintiff had to meet her claim. The fact that the Plaintiff had previously obtained an Interim Restraining Order in her favour did not reverse the onus or require the Defendant to prove that it should never have been granted.
The test for granting a civil Restraining Order has five elements: (1) whether there is an enforceable right and/or a threat of violation of that right exists; (2) whether the Applicant will suffer irreparable harm; (3) the hardship caused to the Respondent if a permanent Injunction is granted, compared to the hardship to the Applicant if the Applicant had to resort to an award of damages only; (4) the Parties’ conduct; and (5) whether the Injunction will be effective. The Applicant must prove all elements.
The Court held that harassment was a logical extension to the existing tort of intentional infliction of mental suffering, and that the Plaintiff had an enforceable right or threat to it. The Plaintiff testified extensively as to the mental suffering she experienced following a certain article published in the news. The Court found that the Plaintiff had already suffered demonstrable harm by being forced to resign and go on disability benefits due to the Defendant’s campaign against her. With respect to the Parties’ hardship, the Defendant claimed that if a permanent Injunction would be granted, he could not protect himself against the Plaintiff, and that he had been publicly muted. The Plaintiff asserted that a financial award would not stop the Defendant from attacking her, and that it was unlikely that the Defendant would be able to pay any significant damages. After weighing the evidence and various testimony, the Court, on a balance of probabilities, granted a permanent Restraining Order against the Defendant.
Regarding the Plaintiff’s Contempt Application, the Court turned to Rule 10.52, which governs declarations of civil Contempt. Under Rule 10.52(3), the Plaintiff had the burden of proving beyond a reasonable doubt all the essential elements of Contempt. Mainly, the Plaintiff had to establish that the Interim Restraining Order was properly served on the Defendant and that the Defendant willfully breached its terms. Once these elements were proven, and the Defendant failed to tender a reasonable excuse as to the noncompliance, the Court was free to make a civil Contempt declaration.
Justice Graesser was satisfied beyond a reasonable doubt that the Defendant was aware of the Interim Restraining Order and deliberately set to circumvent it. The Defendant did not provide a reasonable excuse for doing so. As a result, he was found guilty of civil Contempt of the Interim Restraining Order.View CanLII Details