Graesser J

10.52: Declaration of civil contempt

Case Summary

The Applicant, Mayfield Television Productions Ltd. (“Mayfield”), sought a Declaration of contempt against Kevin Van der Kooy (“Van der Kooy”) and his numbered company (“692”) after Van der Kooy allegedly breached Orders previously made in the Action. The Action was part of a complex dispute relating to the operation of a casino in Medicine Hat.

At issue was whether Van der Kooy was in contempt of Court for failing to provide relevant documents and records as ordered, for entering into or completing a transaction to sell shares in 692, breaching a Unanimous Shareholders Agreement (“USA”), and acting as a director of a corporation called Vanshaw Enterprises Ltd. (“Vanshaw”) in contravention of numerous Court Orders.

In July of 2017, Van der Kooy was held in contempt of Court respecting two Orders to produce records (the “Production Orders”). Between July and August of 2017, the Court held Van der Kooy in contempt of the Production Orders, and made numerous Orders restricting Van der Kooy from selling shares of 692, or dissipating, transferring, or disposing of funds arising from such a sale (the “Non-Dissipation Orders”). Van der Kooy and 692 subsequently entered into an agreement to sell two thirds of the shares in 692, in spite of the numerous Non-Dissipation Orders.

Graesser J. explained that civil contempt has three elements, which must be demonstrated beyond a reasonable doubt: the Order alleged to have been breached must unequivocally state what should, or should not, be done; the Party alleged to have breached the Order must have actually known about the Order (though knowledge may be inferred by the circumstances); and, the breach must have been intentional. The power to hold a Party in contempt of Court is discretionary, and should be used as a last resort. His Lordship noted that this approach been codified “to some degree” by Rule 10.52(3).

Graesser J. noted that the Supreme Court’s recent decision in Pintea v Johns, 2017 SCC 23 (CanLII) reinforced that Respondents must have actual knowledge of the Order that they are alleged to have breached in a contempt Application. Since Van der Kooy was present when each Order was pronounced, was represented by counsel, and did not suggest that he was unaware of the Orders; and because he had previously been held in contempt of the same Orders, His Lordship held that contempt had been proven beyond a reasonable doubt. Costs on a solicitor client basis were awarded to Mayfield.

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