Shelley J

10.33: Court considerations in making costs award
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Applicant, Storage Capital (2) LP sought a Declaration that the Defendants were in Civil Contempt, and/or liable on a solicitor-client basis for several Applications which the Applicant argued were unnecessary. The dispute concerned the movement of storage containers from one property to another. The Defendants obtained five Orders on an ex parte basis to move the storage containers (the “ex parte Orders”). The Applicant subsequently obtained an Order on short notice to the Respondents (the “Applicant’s Order”) for the preservation of security. The Defendants subsequently moved some of the property to an undisclosed location, and refused to return the property or disclose its location. The Defendants returned to the Court twice seeking to vary or vacate the Applicant’s Order and to “clarify” the Applicant’s Order.

Shelley J. considered Rule 10.52 and Rule 10.53 and confirmed that the test for civil contempt requires the Applicant to demonstrate, beyond a reasonable doubt, that: i) the Order alleged to have been breached “clearly and unequivocally” stated the required and prohibited conduct; ii) the Respondent had actual knowledge of the Order; and iii) the Respondent intentionally refused to comply with the Order. Justice Shelley also noted that some Courts have approached the qualifier to the third element of “without adequate excuse” as being a separate element of the test, though the Alberta Court of Appeal has not yet endorsed the approach.

Justice Shelley found that the Applicant’s Order was clear and unequivocal; however, the Defendants’ behaviour in returning to the Court on two further occasions following the Applicant’s Order could be viewed as an attempt to clarify their understanding of their obligations under the Order, and thus, a reasonable doubt existed as to whether the Order was intentionally breached. As such, Her Ladyship held that the Defendants were not in contempt.

Notwithstanding the Defendants not being held in contempt, Shelley J. considered Rule 10.33 which sets out the considerations a Court may make when making a costs award, and held that enhanced Costs for the Defendants’ Applications were appropriate. The Defendants were ordered to pay double the Applicant’s Costs under Schedule C.

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