HOLDEN (VILLAGE) v SEN, 2019 ABQB 472
3.13: Questioning on affidavit and questioning witnesses
3.14: Originating application evidence (other than judicial review)
3.68: Court options to deal with significant deficiencies
6.7: Questioning on affidavit in support, response and reply to application
6.8: Questioning witness before hearing
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court
13.18: Types of affidavit
The Applicant Village brought a contempt Application pursuant to Rule 10.52, alleging that the Respondent was in deliberate non-compliance with a Court Order requiring him to clean up a property he owned in the Applicant’s Village. The Respondent claimed that a declaration of contempt and the resulting remedies are of equitable origin requiring the Applicant to come to the Court with clean hands, which it did not have as there were other buildings in the Village in as bad or worse shape as his building. The Respondent cross-applied to require answers to questions posed on cross-examination of the Applicant’s affiant. The Respondent also cross-applied under Rule 3.68 to strike a secretarial Affidavit put forward by the Applicant, which contained the report of an inspector.
Justice Mah noted that contempt Applications are rooted in common law, and statutorily codified by Rules 10.52 and 10.53. As such, equitable principles do not apply per se. However, Mah J. pointed out that contempt is a quasi-criminal offence, requiring proof beyond a reasonable doubt that: there is a clear and unequivocal Court Order; the Respondent had actual knowledge of that Order; and the Respondent intentionally (or recklessly) did the act prohibited by the Order, or failed to do the act that the Order compels. Justice Mah noted that the Applicant’s conduct is therefore relevant where that conduct has the effect of preventing, inhibiting, or frustrating the Respondent’s compliance with the Order.
Justice Mah found that the Respondent’s allegations of unclean hands were really impermissible collateral attacks on the Order that he was supposed be complying with, and not a defence that demonstrated interference or frustration with his attempts to comply with the Order.
Justice Mah next considered the Respondent’s Cross-Application to compel answers posed on cross-examination of the Applicant’s affiant. Justice Mah found that the questions posed related to either the opinion of the affiant (a lay witness) or the merits of the underlying Order, neither of which were properly the subject of the contempt Application and, accordingly, did not have to be answered.
Justice Mah also considered the Respondent’s argument that the Applicant’s secretarial Affidavit should be struck as it was an attempt to subvert justice by shielding the inspector from cross-examination, and because it was not in compliance with Rule 13.18(3) because it contained hearsay. Justice Mah found that the secretarial affidavit did not have the intent or effect of subverting justice because Rules 3.13 and 3.14 allow for persons who have not given Affidavit evidence to be examined under oath for the purposes of obtaining a transcript for an Originating Application (which Rules correspond with Rules 6.7 and 6.8 for regular motions).
Justice Mah noted that all or part of an Affidavit can be struck under Rule 3.68(4) if it is frivolous, irrelevant, or improper. Justice Mah held that the secretarial Affidavit was improper as it contained impermissible hearsay. Justice Mah noted that a contempt Application is a final Application, and thus, Rule 13.18(3) applies to preclude hearsay evidence, unless such evidence meets a common law, statutory, or principled exception to the hearsay rule such that it would be admitted into evidence at Trial. Additionally, given the quasi-criminal nature of a contempt Application, Justice Mah held that inadmissible hearsay should not be permitted. The Applicant made no effort to justify the admission of the secretarial Affidavit on the basis of an exception to the hearsay rule. Justice Mah therefore granted the Respondent’s Cross-Application to strike the secretarial Affidavit under Rule 3.68 as it was improper because of its hearsay nature.
Lastly, Justice Mah found that the language of the Order compelling the Respondent to act was not sufficiently clear to demonstrate that his actions constituted deliberate non-compliance. Justice Mah provided clarification to the parties concerning their respective obligations under the Order at issue, and adjourned the Application sine die. Justice Mah directed that the parties were to bear their own Costs.View CanLII Details