5.33: Confidentiality and use of information
10.52: Declaration of civil contempt

Case Summary

The Applicant sought an Order declaring the Respondents in civil Contempt for failing to deliver property under seizure pursuant to the Civil Enforcement Act, RSA 2000, c C-15.

Silver J. cited Whitford v Red Pheasant First Nation, 2022 FC 436 for the proposition that an undertaking that is given to the Court with regards to property is an “enforceable obligation” made to the parties in the Action and to the Court. As such, undertakings have the effect of a Court Order, which, if not honoured, may be enforced including by motion to compel, motion to strike, and ultimately by proceedings for Contempt.

Silver J. commented that civil Contempt under Rule 10.52(3)(b) can flow from any provincial statute that provides for such a finding. Many provincial statutes base civil Contempt on conduct that fails to comply with notices issued under the statutory authority. The other typical form of civil Contempt found under provincial legislation relates to non-compliance of Orders or directives similar to Rule 10.52(3)(a)(i) and (iii-iv).

Silver J. noted that there was no decision in Alberta that substantively spoke of the proof requirements of civil Contempt under provincial statutes where civil Contempt is occurring outside of Court. As such, Silver J. held that in terms of such conduct, an Applicant must prove beyond a reasonable doubt the three elements of civil Contempt as outlined in Carey v Laikon, 2015 SCC 17 (“Carey”) (the “Three Elements”), namely: (1) an Order stating clearly and unequivocally what must be done; (2) actual notice of the terms of the duty to deliver; and (3) intentional failure to comply with the duty to deliver the property under seizure.

Silver J. commented that a failure to comply with the terms of an undertaking given to the Court may refer to the implied undertaking rule found under Rule 5.33, which protects and enforces the confidentiality of information and records disclosed during litigation. As such, a breach of the Rule has found to be analogous to a breach of a Court Order, and the Three Elements for civil contempt from Carey applies to Rule 10.52(3)(a)(vi).

Silver J. held that the Applicant did not prove beyond a reasonable doubt that the Three Elements were met. Specifically, the seizure documents failed to list the quantity and descriptions of the items under seizure. As such, they did not fully provide the Respondent with actual notice. Furthermore, some of the property was in fact delivered and removed for sale. Silver J. also had a reasonable doubt as to whether the Respondent intentionally failed to comply with the duty to deliver the property under seizure. As such, Silver J. dismissed the Application.

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