OSBORN v GAGNE, 2017 ABQB 438
10.49: Penalty for contravening rules
10.50: Costs imposed on lawyer
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court
12.41: Notice to disclose documents
The Plaintiff wife in a divorce proceeding applied for an Order to impose a $50.00 per day fine on the Defendant husband under Rule 10.49 until he completed his disclosure obligations previously ordered by the Court following an Application pursuant to Rule 12.41.
Veit J. noted that Rule 12.41 provides that “any other remedy the Court considers appropriate” may be granted where the disclosure is not provided when required. Justice Veit also stated that Rule 10.49 clearly contemplates financial sanctions for misbehaviour. However, Her Ladyship also noted that the Rules do not provide for a daily fine, and that monetary penalties which are not set out in the Rules are not typically imposed.
Justice Veit considered the former Rule 599.1, and the kinds of penalties contemplated by Rule 10.49, and noted that there was a great deal of overlap between Rule 10.49 and Rule 10.52 which governs the penalties for civil contempt. However, the contempt Rule has a number of procedural safeguards that Rule 10.49 does not. While imprisonment may be ordered as a result of civil contempt Her Ladyship noted that the imposition of a high fine may have nearly as draconian an effect. Consequently, the imposition of fines under Rule 10.49 may require the equivalent of personal service with a clear direction of the penalty being sought.
Veit J. noted that an Application under Rule 10.49 requires an assessment of how the misbehaviour interferes with the proper and efficient administration of justice. This is not occasioned by a mere failure to follow a Court’s direction. Her Ladyship referred to authorities in which Rule 10.49 was applied, including: (i) litigants who challenge the authority of the Court, such as Organized Pseudolegal Commercial Argument (OPCA) litigants; (ii) late adjournments of Trials or Appeals, particularly where the adjournment of an Appeal requires a different panel to become familiar with the material; and (iii) failing to transcribe oral reasons, necessitating inconvenient, last-minute transcription by Court staff. Veit J. also noted that the fines levied under this Rule were modest.
Her Ladyship dismissed the Application, on the basis that Rule 10.49 provides that any penalty imposed under that Rule must be paid to the Court Clerk, not to a litigant; the breach of the Rules in this case was not the sort that interfered with the proper and efficient administration of justice; and the Defendant husband was not advised of the penalty being sought. Finally, Justice Veit noted that, while Rule 10.53 allows an award of Costs up to and including full indemnity Costs, this was not a case where such an award was appropriate. The impugned behaviour must be “reprehensible, scandalous or outrageous” before such an award should be made.View CanLII Details