LYMER (RE), 2017 ABQB 110


5.28: Written questions
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court

Case Summary

After an assignment into bankruptcy, a number of objecting creditors moved to ascertain the financial information of the bankrupt, Lymer, and his companies. Lymer was held in Civil Contempt of Court for swearing a false Affidavits of Records and failing to disclose relevant and material records, despite a Court Order. Lymer subsequently filed a series of Affidavits of Records and responded to written questions posed by the objecting creditors. As such, Lymer applied for a declaration that he had purged his contempt under Rule 10.53(3). The objecting creditors disagreed that Lymer had purged his contempt and cross-applied for a new Civil Contempt Order, pursuant to Rule 10.52.

Master Smart reviewed Rule 10.53(2), which provides that if the contemnor purges their contempt, “the Court may waive or suspend any penalty or sanction”. The contemnor bears the onus of proving they have purged their contempt, and the Court may issue specific directions with respect to the actions that the contemnor must take. The Court held that Lymer continued to be in contempt of the prior Court Orders for failing to adequately disclose relevant and material documents in his possession. Lymer’s responses to the written questions posed by the objecting creditors were insufficient to purge his contempt. Specifically, Lymer needed to swear, without qualifications, whether: (i) he operated a personal bank account since 2007; (ii) he had assets or had acquired assets; (iii) certain tax records exist; (iv) certain business records exist for Lymer’s companies and their location; and (v) he had relevant and material, electronic records in his possession and control.

Master Smart dismissed Lymer’s Application and ordered that, if deadlines were not met with respect to Lymer’s Affidavits of Records, the Court would hear submissions with respect to whether a custodial sentence was appropriate for the continuing unpurged contempt.

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