KENT v MARTIN, 2012 ABQB 467


5.30: Undertakings
5.4: Appointment of corporate representatives
10.52: Declaration of civil contempt

Case Summary

At the heart of this Contempt Application was the assertion by the Plaintiff that the corporate representative of the Defendant (the “Representative”) appeared unprepared at his Questioning. In summary, the Plaintiff’s argument was that the Representative did not review the material in advance, notwithstanding a previous Order of the Court that all parties were to conduct Questioning, and complete Questioning, in a very tight time frame. Tilleman J. also noted that Clarkson J., who issued the Order in respect of Questioning, had emphasized the importance that the Representative be prepared.

The Defendant in this case argued that due to the operation of Rule 5.30, the remedy for a corporate representative appearing unprepared at Questioning is not contempt; it is for the corporate representative to undertake to inform himself. Tilleman J. rejected this idea, stating that it is possible for a corporate representative to be found in contempt of Court for not complying with Rule 5.4(2) (which requires a corporate representative to inform himself of relevant and material records and information before being Questioned). Although Tilleman J. ultimately decided that this case did not amount to contempt, His Lordship stated the following regarding what would be required to establish such a claim:

In my mind, when new Rules 10.52, 5.4(2) and 5.30 are read together, the Applicant in a contempt proceeding may succeed by showing a lack of diligence and commitment to fulfilling a court order, but to do so, the breach should be: (1) significant, meaning a substantial noncompliance; (2) the failure to comply was not redressed forthwith and responsibly; (3) the failure to comply was clear; and (4) the Court Order was direct and unequivocal.

The Court also spoke to increased obligations of corporate representatives under Rule 5.4(2) relative to the former Rules. Tilleman J. stated:

I also agree with the Plaintiffs that under Rule 5.4(2), the expectation with the history of this case is that the corporate representative will really be informed. A higher obligation than under the old rules is consistent with the foundational rules which speaks to more efficiency.[Emphasis in original]

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