HEWKO v GORDICHUK

This Appeal concerned the dismissal of an application seeking a declaration of civil contempt under Rule 10.52 and related relief arising from a property dispute between neighbours.

The Appellants applied in Chambers for a declaration that the Respondents were in civil contempt of a Restraining Order by entering onto the Appellants’ property, and declaring the Respondents trespassers under the Petty Trespass Act, RSA 2000, c P-11. The Chambers Judge found that the Respondents had breached the Restraining Order by entering the Appellants’ land but declined to proceed to a contempt hearing. Instead, the Chambers Judge warned the Respondents and issued a Permanent Injunction directing both parties not to interfere with each other’s fencing and signage.

On Appeal, the Appellants argued that the Chambers Judge erred by relying on the Respondents’ unsworn statements and by failing to find civil contempt. The Court of Appeal reaffirmed that civil contempt under Rule 10.52 requires proof beyond a reasonable doubt that the order was clear, the alleged contemnors had knowledge of it, they intentionally breached it, and they had no reasonable excuse. Even where those elements are established, a finding of contempt remains discretionary and is an exceptional remedy of last resort.

The Court of Appeal held that the Chambers Judge did not commit a reviewable error in exercising discretion to admonish the Respondents rather than directing the matter to a full contempt hearing, particularly as this was the first alleged breach. However, the Court found there was no evidentiary basis to support the issuance of a permanent injunction restraining both parties from interfering with fencing and signage, as there was no evidence of intentional interference, and no such relief had been sought. That portion of the Order was struck.

The Court further held that the Petty Trespass Act did not contemplate declaratory relief, as it created quasi-criminal offences prosecutable in the Alberta Court of Justice.

The Appeal was allowed in part. The Decision to not proceed to a contempt hearing was upheld, but the Permanent Injunction was struck. Each party was ordered to bear their own costs.