Focus On

CIVIL PROCEDURE - Contempt of court - Judgments and orders - Notice

Friday, February 26, 2021 @ 1:59 PM  

Lexis Advance® Quicklaw®
Appeal by Evan Jones from a civil contempt finding and sanction. Evan and his brother Kent engaged in litigation over jointly owned farm equipment. Kent applied for summary judgment. An order required each party to attend for cross-examination on their supporting affidavits. Evan failed to attend the cross-examination. Kent applied for an order holding Evan in contempt. Evan stated that his non-attendance was due to a medical emergency involving his stepchild. The chambers judge acknowledged the emergency as a basis for Evan’s wife’s non-attendance but found that it did not provide a reasonable excuse for Evan’s non-attendance. The contempt application was successful, and the chambers judge struck Evan’s affidavit and granted summary judgment in favour of Kent. Evan appealed the finding of contempt on the basis he was not properly served with the application and submitted that the remedy granted was excessive.

HELD: Appeal dismissed. Although Evan was not personally served with the contempt application, he was served via e-mail, filed material in response and appeared personally to argue the application without objection to the method of service. Evan’s participation in the proceeding was sufficient to find Evan was deemed to have been personally served with the application. The evidence established beyond a reasonable doubt that Evan had notice of a sufficiently clear order and failed to comply with it. The chambers judge addressed Evan’s excuse, understood its nature and concluded it was not reasonable. The judge’s conclusion was supported by the evidence. The sanction imposed was discretionary and entitled to a high degree of deference. The penalty was one that was within the range of available options. There was no requirement to grant a prior opportunity to purge the contempt. No basis for appellate interference was established.

Jones v. Jones, [2020] S.J. No. 494, Saskatchewan Court of Appeal, P.A. Whitmore, J.A. Tholl and J.D. Kalmakoff JJ.A., December 23, 2020. Digest No. TLD-February222021010