A-387-01
2003 FCA 28
The Council of the Saugeen First Nation No. 29 and Chief Randal Roote (Appellants)
v.
James Sebastian and 544282 Ontario Inc. c.o.b. as Hideway Campground (Respondents)
Indexed as: Sebastian v. Saugeen First Nation No. 29 (Council of) (C.A.)
Court of Appeal, Desjardins, Isaac and Malone JJ.A.-- Toronto, October 7, 2002; Ottawa, January 22, 2003.
Practice -- Contempt of Court -- Indian Band Council passing resolution shutting down campground on reserve land leased from Crown with Band Council consent -- F.C.T.D. Judge granting motion for interlocutory injunction restraining Council from interfering with campground -- Council passing further resolution closing all campgrounds on its lands -- Chief going to campground, advising would do whatever necessary to close campground -- When reminded of Court order, replied that "does not matter" -- Council agents erecting "Closed" signs near campground -- Motions Judge hearing submissions by teleconference on urgent basis, ordering removal of "Closed" signs, Council, Chief attend Court to show cause -- Appeal dismissed by F.C.A. -- Order initiating contempt hearing under r. 467 attacked as failing to meet notice, certainty requirements -- Whether r. 58 applicable -- Whether appeal premature -- Code of procedure for contempt proceedings, established by rr. 466-472, explained -- Argument particulars inadequate better dealt with at second stage (contempt hearing) -- Severing two stages by appeal encouraging dilatoriness -- New r. 467(1) codified common law requirements -- Requires sufficient particularity -- Appellants not misled as to nature of hearing -- Use of "Respondent" in order not insufficiently precise -- While order not mentioning contemptuous acts, motion record (wherein acts set forth) incorporated by reference -- No order as to costs as case involving interpretation, application of new Rules.
Native Peoples -- Lands -- Crown, with Band Council consent, granting lease of reserve land for campground -- Band Council passing resolutions closing campground, rezoning to prohibit economic activity -- F.C.T.D. Judge granting interlocutory injunction restraining Council from interfering with campground -- Band Council passing further resolution closing all campgrounds on its lands -- Chief vowing to keep campground closed whatever it takes, stating Court order did not matter -- Having "Closed" signs erected -- Motions Judge ordering Council, Chief to attend Court to show cause why not in contempt -- Order sustained by F.C.A. as wording not insufficiently precise -- Case law holding Band Council can be convicted of contempt.
This was an appeal from an order made by a Motions Judge after hearing submissions by teleconference on an urgent basis on the Friday of a long weekend. The relief sought was an order (1) compelling the Council of the Saugeen First Nation No. 29 to remove "Closed" signs in the vicinity of the Hideaway Campground, and (2) requiring the Council and Chief Roote to attend before a Federal Court Judge and show cause why they should not be found in contempt of an order of O'Keefe J. forbidding them from closing down or in any way interfering with the campground. The Motions Judge granted an order (1) declaring a certain Band Council Resolution to be of no effect as against the campground, (2) ordering removal of all "Closed" signs, and (3) ordering that the Council and its Chief attend at Court to "show cause".
In 1985 the Crown, with Band Council consent, leased to the corporate respondent part of Saugeen Reserve No. 29 for a 20-year term for the operation of a miniature golf course, restaurant, arcade and outdoor camping facility. During the May 2000 long weekend, Band Council passed a resolution shutting down the campground on account of "two deaths" associated with it. A further resolution was adopted rezoning the campgrounds to prohibit any economic activity thereon. A third resolution declared respondent, Sebastian, an undesirable person and prohibited him from entering reserve land, including the land he had leased. A fourth resolution declared the campground closed June 29-July 4, 2000. O'Keefe J. granted a motion for an interlocutory injunction, enjoining the Council from interfering with the campground. On May 16, 2001 the Council passed yet another resolution, this one indefinitely closing all campgrounds on its lands on account of violence. The following day, Chief Roote went to Hideaway Campground where he advised Sebastian that he would do whatever it took to keep the campground closed and when reminded of the order made by Justice O'Keefe, replied that the Court order "does not matter". The very next day, Council agents erected "Closed" signs on the road outside the campground.
Held, the appeal should be dismissed.
Per Desjardins J.A. (Malone J.A. concurring): The order of Tremblay-Lamer J. initiating a contempt hearing under rule 467 is attacked as failing to satisfy the notice and certainty requirements of that rule. The opinion of Isaac J.A. that this appeal was premature and that appellants should proceed by a Trial Division motion under rules 56 and 58 could not be entirely agreed with. Rule 58 is inapplicable: it allows a party to challenge, by motion, any steps "taken by another party" for non-compliance with the Rules. It does not allow a party to challenge, by motion, an order issued by a judge for non-compliance of that order with the Rules unless such non-compliance comes as a result of "any step taken by another party". The decision of Dawson J. in Desnoes & Geddes Ltd. v. Hart Breweries Ltd. was not an application of rule 58.
Rules 466 to 472 establish a two-stage procedure for contempt of court. The order to show cause may be issued where there is a prima facie case of contempt. At the second stage--the contempt hearing--the alleged contempt must be proven beyond a reasonable doubt. While the initiating order is appealable whether granted or denied, the argument raised herein--inadequacy of particulars--has been held premature and better left for the second stage. It would here be undesirable that the sequence between the two stages of the proceeding be severed by an appeal as that would encourage dilatoriness.
The current Rules are more stringent than were the former Rules as to an initiating order of contempt. Current subsection 467(1) of the Rules codifies early common law requirements and requires that the order set out the alleged acts of contempt with sufficient particularity. Tremblay-Lamer J. carefully referred to the motion record and appellants concede that they were not misled as to the nature of the hearing but do express concern over who is to respond, the case to be met and the evidence that may be led against them. There was no merit in the submission, that use of the word "Respondent" in the order in reference to the Council was insufficiently precise. Rule 467 sets out the procedure to find a "person" in contempt. Rule 2 defines "person" as including a tribunal, which has the same meaning as "federal board, commission or other tribunal" in the Federal Court Act. This Court has held a band Council to be a "federal board" and, in Manitoba Teachers' Society v. Chief, Fort Alexander Reserve, a Band Council was convicted of contempt.
While the order failed to specifically mention the alleged contemptuous acts, the motion record, in which they are set forth, was incorporated by reference in the order and the particulars were known to appellants.
There should be no order as to costs, this matter having raised the interpretation and application of the new Rules.
Per Isaac J.A. (concurring but for costs): Given rule 58, appellants' objections to the order were premature. Reference should be made to the Desnoes & Geddes case in which Dawson J. ex meru motu directed that a written statement particularizing each alleged act of contempt be served and filed. The appeal should be dismissed with costs.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 11(a),(b).
| Federal Court Act, R.S.C., 1985, c. F-7, s. 2(1) "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1). |
| Federal Court Rules, C.R.C., c. 663, RR. 354, 355, 2500. |
| Federal Court Rules, 1998, SOR/98-106, rr. 3, 56, 57, 58, 59, 60, 466-474. |
| Indian Act, R.S.C., 1985, c. I-5. |
cases judicially considered
followed:
Baxter Travenol Laboratories of Canada Ltd. et al. v. Cutter (Canada), Ltd., [1983] 2 S.C.R. 388; (1983), 2 D.L.R. (4th) 621; 1 C.I.P.R. 46; 36 C.P.C. 305; 75 C.P.R. (2d) 1; 50 N.R. 1.
applied:
Cutter (Canada) Ltd. v. Baxter Travenol Laboratories of Canada Ltd. et al. (1984), 1 C.P.R. (3d) 289; 56 N.R. 282 (F.C.A.).
considered:
Desnoes & Geddes Ltd. v. Hart Breweries Ltd. (2002), 17 C.P.R. (4th) 20 (F.C.T.D.); Manitoba Teachers' Society v. Chief, Fort Alexander Reserve, [1984] 1 F.C. 1109; [1985] 1 C.N.L.R. 172 (T.D.).
referred to:
R. v. Perry, [1982] 2 F.C. 519; (1982), 133 D.L.R. (3d) 703; 41 N.R. 249 (C.A.); Canatonquin v. Gabriel, [1980] 2 F.C. 792; [1981] 4 C.N.L.R. 61 (C.A.).
authors cited
Sgayias, D. et al. Federal Court Practice, 2002. Toronto: Carswell, 2001.
APPEAL from an order of a Trial Division Motions Judge (1) declaring a Band Council Resolution of no force and effect, (2) ordering respondent (appellants herein) to remove "Closed" signs from the vicinity of respondents' business and (3) ordering respondent (appellant herein) and Chief Roote to show cause why they ought not be found in contempt of an earlier Federal Court order forbidding them from interfering with the business. Appeal dismissed.
appearances:
Derek T. Ground for appellants.
James P. McReynolds for respondents.
solicitors of record:
William B. Henderson, Toronto, for appellants.
Solmon Rothbart Goodman LLP, Toronto, for respondents.
The following are the reasons for judgment rendered in English by
[1]Isaac J.A. (concurring but for the issue of costs): This is an appeal from an order made by a Motions Judge in the Trial Division on 18 May 2001.
[2]The order was made after submissions by teleconference on an urgent basis on the Friday immediately preceding the Victoria Day weekend 2001. It recites that it was made as a consequence of relief sought by the respondent on a motion for:
| a) An order compelling the Respondent [the appellant Council in this appeal], its agents and servants or any person acting under its instructions and permitting any other person having knowledge of this order, to remove all signs marked "Closed" from the area in the vicinity of the business premises of 544282 Ontario Inc. c.o.b. as Hideaway Campground; |
| b) An order that the Respondent and Chief Randal Roote be required to attend before a Judge of this Honourable Court to show cause why they should not be found in contempt of the order of the Honourable Mr. Justice O'Keefe, dated 4 August, 2000, which forbids the Respondent, its agents and servants or any person acting under its instructions and any other person having notice of that Order from closing down, hindering, preventing, or interfering in any way with the business operations of 544282 Ontario Inc. c.o.b. as Hideaway Campground. [Emphasis added.] |
[3]In support of the motion the respondents in this appeal served and filed the affidavit of Matthew Sokolsky, sworn on 18 May 2001, which gave particulars of the acts done by the appellants in this appeal which the respondents say entitled them to the relief sought. The motion and supporting affidavit were served upon the appellants.
[4]After reading the materials which counsel had filed and hearing by teleconference the submissions of counsel for both parties, the learned Motions Judge made the order in appeal, the operative portions of which read in part:
| 1. THIS COURT ORDERS THAT the Band Council Resolution dated May 16, 2001, is of no force and effect as against 544282 Ontario Inc. c.o.b. as Hideaway Campground. |
| 2. THIS COURT ORDERS THAT the Respondent, its agents and servants or any person acting under its instructions is to remove all signs marked "Closed" from the area in the vicinity of the business premises of 544282 Ontario Inc. c.o.b. as Hideaway Campground. Any other person having knowledge of this Order is permitted to remove all signs marked "Closed" from the area in the vicinity of the business premises of 544282 Ontario Inc. c.o.b. as Hideaway Campground. |
| 3. THIS COURT ORDERS THAT the Respondent and Chief Randal Roote be required to attend before a Judge of this Honourable Court at Toronto on Monday, June 4, 2001, commencing at 10:00 a.m. in the forenoon or as soon after that time as the matter can be heard, to show cause why they should not be found in contempt of the Order of the Honourable Mr. Justice O'Keefe, dated August 4, 2000, which forbids the Respondent, its agents and servants or any person acting under its instructions and any person having notice of that Order from closing down, hindering, preventing, or interfering in any way with the business operations of 544282 Ontario Inc. c.o.b. as Hideaway Campground. |
Factual Background
[5]I propose now to summarize the background facts which gave rise to the dispute between the parties in order to delineate and to afford an appreciation of the issues in this appeal.
[6]In 1985, Her Majesty the Queen in right of Canada, with the consent of the Council of Saugeen Band of Indians and the persons then in occupation of the leased lands, leased to the respondent, 544282 Ontario Inc., a portion of the lands known as Saugeen Indian Reserve No. 29 that has been set apart for the use and benefit of the Saugeen Band of Indians, for a term of 20 years from 1 May 1985 to 30 April 2005. The lease is subject to the provisions of the Indian Act, R.S.C., 1985, c. I-5, as amended and the regulations made thereunder.
[7]By clause 4 of the lease, the corporate respondent agreed to use the leased lands only for the purpose of operating a miniature golf course, restaurant, arcade and outdoor camping facility and for no other purpose whatsoever. Over time, the corporate respondent has made significant investment on the leased lands. The corporate respondent earned most of its revenue during the summer months in each year and particularly the weekend of Victoria Day, August 1 and Labour Day. The respondent, Sebastian, earns his livelihood from the profits of the enterprise.
[8]Sometime during the long weekend of May 2000, the appellant Band Council (appellant Council) passed a resolution (BCR1) closing the Hideaway Campground because of "two deaths" associated with the campground. In the material filed with the Court on the hearing of this appeal, the appellants offered no proof that the respondents were in any way responsible for the "two deaths".
[9]On 25 May 2000, without notice to the respondent, the appellant Council passed a resolution rezoning the campgrounds by prohibiting the operation of any economic activity thereon (BCR2).
[10]Subsequently the appellant Council passed a third resolution which declared the respondent Sebastian an undesirable person and prohibited him from entering reserve land, including the land he had leased from the Band (BCR3). The appellant Council passed a fourth resolution declaring that the Hideaway Campground would be closed June 29-July 4, 2000 (BCR4).
[11]The respondents sought assurances from the appellant Council, that it would not interfere with the business of Hideaway Campground pending the outcome of their judicial review application which they had taken in relation to the appellant Council resolutions. Not having received any acknowledgement or response to their request for assurances, the respondents brought a motion for an interlocutory injunction on 4 August 2000. The motion was heard by O'Keefe J. in the Trial Division. He granted the motion and issued an order enjoining the appellant Council, in the terms I have already stated, from interfering with the campground business of the respondents.
[12]Copies of the order of O'Keefe J. were served upon the appellants and the Saugeen Detachment of Anishinabek Police Services. It would appear that at that time the latter has responsibility for providing police services to the Saugeen reserve.
[13]On 16 May 2001, the appellant Council passed a new resolution closing all campgrounds on its properties for an indefinite period, stating that its action was motivated by violence.
[14]On 17 May 2001, the appellant Roote went to the Hideaway Campground and told the respondent Sebastian, that Hideaway Campground would not be open on that weekend and that he, Chief Roote, would do what was necessary to keep the campground closed. The respondent, Sebastian, reminded the Chief of the order that O'Keefe J. had made on 4 August 2000. Chief Roote replied that the order of O'Keefe J. "does not matter".
[15]On 18 May 2001, agents of the appellant Council, went to the Hideaway Campground and placed on the road outside the campground signs marked "Closed".
[16]On the same day, the respondents served and filed a motion to be heard by teleconference returnable that day in which they sought the order in appeal. This motion was heard by Tremblay-Lamer J. who granted it and made the order from which this appeal is taken. Ground "g)" of the notice of motion which respondents filed alleges that "Chief Roote's stated intention and the signs are prima facie in contempt of the Order of the Honourable Mr. Justice O'Keefe and are causing irreparable harm to the business of Hideaway Campground".
[17]The record in this case does not indicate that the appellant Council applied for a stay of the order of O'Keefe J. or that it had taken an appeal from it.
[18]The record is bare of any statement by the appellants which contradicts or in any way puts in issue the facts alleged by the respondents. These allegations of fact remain uncontested and I have treated them as such.
Relevant Rules of Court Respecting Contempt
[19]Rules 466 to 474 of the Federal Court Rules, 1998 [SOR/98-106], have replaced Rules 354, 355, and 2500 of the Federal Court Rules [C.R.C., c. 663]. The former constitute a self-contained code respecting contempt in the Federal Court of Canada and are reproduced below. By way of contrast, the old Rules which they replaced are also reproduced.
Rules 466 to 474 of the Federal Court Rules, 1998
466. Subject to rule 467, a person is guilty of contempt of Court who
(a) at a hearing fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;
(b) disobeys a process or order of the Court;
(c) acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court;
(d) is an officer of the Court and fails to perform his or her duty; or
(e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes a rule the contravention of which renders the sheriff or bailiff liable to a penalty.
467. (1) Subject to rule 468, before a person may be found in contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court's own initiative, requiring the person alleged to be in contempt
(a) to appear before a judge at a time and place stipulated in the order;
(b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and
(c) to be prepared to present any defence that the person may have.
(2) A motion for an order under subsection (1) may be made ex parte.
(3) An order may be made under subsection (1) if the Court is satisfied that there is a prima facie case that contempt has been committed.
(4) An order under subsection (1) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court.
468. In a case of urgency, a person may be found in contempt of Court for an act committed in the presence of a judge and condemned at once, if the person has been called on to justify his or her behaviour.
469. A finding of contempt shall be based on proof beyond a reasonable doubt.
470. (1) Unless the Court directs otherwise, evidence on a motion for a contempt order, other than an order under subsection 467(1), shall be oral.
(2) A person alleged to be in contempt may not be compelled to testify.
471. Where the Court considers it necessary, it may request the assistance of the Attorney General of Canada in relation to any proceedings for contempt.
472. Where a person is found to be in contempt, a judge may order that
(a) the person be imprisoned for a period of less than five years or until the person complies with the order;
(b) the person be imprisoned for a period of less than five years if the person fails to comply with the order;
(c) the person pay a fine;
(d) the person do or refrain from doing any act;
(e) in respect of a person referred to in rule 429, the person's property be sequestered; and
(f) the person pay costs.
473. (1) Where there is no sheriff or a sheriff is unable or unwilling to act, a process, including a warrant for arrest of property under rule 481, may be issued to any person to whom a process of a superior court of the province in which the process is to be executed could be issued.
(2) Where a process is issued to a sheriff, it may, at the sheriff's direction, be executed by a person authorized under provincial law to execute the process of a superior court of the province in which the process is to be executed.
474. (1) Where an order made against the Crown for the payment of money for costs or otherwise is executory and
(a) where no appeal of the order has been instituted, the time allowed by law for an appeal from the order has expired, or
(b) where there has been an appeal from the order, the order has been affirmed or varied on appeal,
the Administrator shall issue a certificate of judgment accordingly.
Rules 354, 355 and 2500 of the old Federal Court Rules.
Rule 354. (1) Every person present at a sittings of the Court or a prothonotary must maintain a respectful attitude, remain silent and refrain from showing approval or disapproval of the proceedings.
(2) Paragraph (1) must be observed wherever a judge carries out his official functions.
(3) Any person who contravenes paragraph (1) or who does not obey at once an order of a judge or a prothonotary or an officer under his authority is guilty of contempt of court and, if he is an officer of the Court, the Court may suspend him from his functions.
Rule 355. (1) Anyone is guilty of contempt of court who disobeys any process or order of the Court or a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court. In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.
(2) Except where otherwise provided, anyone who is guilty of contempt of court is liable to a fine, which in the case of an individual shall not exceed $5,000, or to imprisonment for a period not exceeding one year. Imprisonment, and in the case of a corporation a fine, for refusal to obey any process or order may be repeatedly inflicted until the person condemned obeys.
(3) Anyone who is guilty of contempt of court in the presence of the judge in the exercise of his functions may be condemned at once, provided that he has been called upon to justify his behaviour.
(4) No one may be condemned for contempt of court committed out of the presence of the judge, unless he has been served with a show cause order ordering him to appear before the Court, on the day and at the hour fixed to hear proof of the acts with which he is charged and to urge any grounds of defence that he may have. The show cause order issued by the judge of his own motion or on application must be served personally, unless for valid reasons another mode of service is authorized. The application for the issuance of the show cause order may be presented without its being necessary to have it served.
(5) The procedure set out in paragraph (4) is without prejudice to an application for committal under Division I of Part VII. The two methods of proceeding are alternatives and when one has been acted on, the other cannot be invoked. The other provisions in this Rule are without prejudice to the inherent powers of the Court; and both this Rule and the inherent powers can be invoked on any appropriate occasion.
. . .
Rule 2500. (1) The power of the Court to punish for contempt of court may be exercised by an order of committal.
(2) An application for an order of committal shall be made by motion and there must be at least 8 clear days between the service of the notice of motion and the day named therein for the hearing.
(3) Subject to paragraph (4), the notice of motion and a copy of the affidavit in support must be served personally on the person sought to be committed.
(4) The Court may dispense with service of the notice of motion and affidavit under this Rule if it thinks it just to do so.
(5) Nothing in the foregoing provisions of this Rule shall be taken as affecting the power of the Court to make an order or committal of its own motion against a person guilty of contempt of Court.
(6) By leave of the Court, a writ of attachment may issue (Form 71) and a writ so issued shall be executed according to the exigency thereof.
(7) The person attached shall, without delay, be brought before the Court and if, after he has been given a full opportunity to answer what is alleged against him, the Court is satisfied that it is just to do so, the Court may order him to be committed (Forms 72 and 73).
(8) The order for committal shall be executed by the appropriate sheriff or such other person as may be designated by the order.
(9) The Court may by order direct that the execution of an order of committal shall be suspended for such period or on such terms or conditions as it may specify.
(10) Where execution of an order of committal is suspended by an order under paragraph (9), the applicant for the order of committal shall, unless the Court otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order under that paragraph.
(11) The Court may, on the application of any person committed to prison for any contempt of court, or on the application of any other party or of its own motion, discharge him.
(12) Where a person has been committed for failing to comply with a judgment or order requiring him to deliver any thing to some other person or to deposit it in court or elsewhere, and a writ of sequestration has also been issued to enforce that judgment or order, then, if the thing is in the custody or power of the person committed, the commissioners appointed by the writ of sequestration may take possession of it as if it were the property of that person and, without prejudice to the generality of paragraph (11), the Court may discharge the person committed and may give such directions for dealing with the thing taken by the commissioners if it thinks fit.
(13) Nothing in the foregoing provisions of this Rule shall be taken as affecting the power of the Court to make an order requiring a person guilty of contempt of court, or a person punishable by virtue of any enactment in like manner as if he had been guilty of contempt of court, to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with the necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an application for an order of committal.
(14) Nothing in the foregoing provisions of this Rule shall be taken as affecting the power of the Court under Rule 355.
Issues
[20]The appellants appeal from the order of the Motions Judge and ask that the order she made be quashed because of its failure to comply with the provision of rule 467. Alternatively, they ask that the order be stayed until the respondent files a further and better order with leave of the Court. The request for the alternative remedy is premised on the theory that the appellants' allegation of the failure to comply with rule 467 is a serious issue to be tried. They say further that they will suffer irreparable harm if a stay was not granted and that the balance of convenience is in their favour.
[21]Before entering into an analysis of the issues, it might be useful to make some general observations about the approach to the new rules. As I have stated, rules 466 to 471 define contempt and prescribe the procedure to be followed in contempt of court proceedings. Promulgated in 1998, they replace Rules 354, 355 and 2500 and form part of a complete code dealing with contempt of Court in this Court.
[22]They were prepared by a Statutory Rules Committee consisting of judicial members of the Court and members of the Bar appointed by the Attorney General of Canada.
[23]The Committee was assisted in its deliberations by experts in civil procedure in the two great legal systems, the common law and the civil law, operating in Canada. The Rules, as they have been promulgated, reflect trends in civil procedure and are modelled, in part on selective provincial rules.
[24]I reproduce below rule 3, which in my judgment lays down the philosophical approach that all judicial officers of the Court must heed in interpreting and applying the new Rules. Rule 3 reads:
3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
[25]Since the coming into force of the Federal Court Rules, 1998, the focus must be upon "just, most expeditious and least expensive" resolution of disputes as rule 3 commands.
[26]Rules 56 to 60 deal with non-compliance with the Rules. Rules 56 and 58 are instructive and I reproduce them below.
56. Non-compliance with any of these Rules does not render a proceeding, a step in a proceeding or an order void, but instead constitutes an irregularity, which may be addressed under rules 58 to 60.
. . .
58. (1) A party may by motion challenge any step taken by another party for non-compliance with these Rules.
(2) A motion under subsection (1) shall be brought as soon as practicable after the moving party obtains knowledge of the irregularity.
[27]Given the provisions of rule 58, it is my opinion that the appellants' objections to the order are premature. See in this connection Desnoes & Geddes Ltd. v. Hart Breweries Ltd. (2002), 17 C.P.R. (4th) 20 (F.C.T.D.), where, at paragraph 4, Dawson J. ex meru motu directed that a written statement particularizing each alleged act of contempt be served and filed. She did so because she was not satisfied that the show cause order in that case described the nature of the case alleged against the respondents.
[28]In light of the fact that I have characterized the appellants' objections to the order in appeal as premature, I am of the view that the appeal should be dismissed with costs. I was tempted to deal with the arguments which both counsel made to us on appeal in deference to them, but it seems to me that a judge of first instance hearing the matter might well take a view that is different from my own. For that reason, counsel of prudence requires me to refrain from passing on those arguments.
* * *
The following are the reasons for judgment rendered in English by
[29]Desjardins J.A.: I do not share entirely the views expressed by my colleague Isaac J.A. in disposing of this case, considering that I read rule 58 differently.
[30]We are seized of an appeal from an order issued by Tremblay-Lamer J. which initiates a contempt hearing under rule 467 of the Federal Court Rules, 1998, SOR/98-106. The order is attacked on the basis that it fails to satisfy the notice and certainty requirements of rule 467. Isaac J.A. concludes that the appeal is premature and that the appellants ought to proceed by way of a motion before the Trial Division under rules 56 and 58.
1. Rules 56 and 58
[31]Rules 56 and 58 state the following:
56. Non-compliance with any of these Rules does not render a proceeding, a step in a proceeding or an order void, but instead constitutes an irregularity, which may be addressed under rules 58 to 60.
. . .
58. (1) A party may by motion challenge any step taken by another party for non-compliance with these Rules.
(2) A motion under subsection (1) shall be brought as soon as practicable after the moving party obtains knowledge of the irregularity. [My emphasis.]
[32]Rule 56 provides that non-compliance with any of the Rules does not render a proceeding, a step in a proceeding or an order void, but instead constitutes an irregularity which may be addressed under rules 58 to 60.
[33]Rule 58 allows a party to challenge, by motion, any steps "taken by another party" for non-compliance with the Rules. It does not, however, allow a party to challenge, by motion, an order issued by a judge for non-compliance of that order with the Rules unless such non-compliance comes as a result of "any step taken by another party".
[34]No party is responsible for the deficiency at stake. It is the order itself which is challenged for an irregularity committed by the judge who issued the order. Rule 58 therefore does not apply.
[35]The decision of Dawson J. in Desnoes & Geddes Ltd. v. Hart Breweries Ltd. (2002), 17 C.P.R. (4th) 20 (F.C.T.D.), is, of course, not an application of rule 58. The initiating order in Desnoes was made by the Associate Senior Prothonotary following an injunctive order issued by O'Keefe J. Being in doubt about the sufficiency of the initiating order, Dawson J., on the return of the initiating order, raised the failure of the order to comply with paragraph 467(1)(b) [of the Rules] and adjourned the proceeding after directing that a written statement particularizing each alleged act of contempt be served and filed.
2. Rules 3 and 466 to 472
[36]I agree however with Isaac J.A.'s reading of rule 3 which dictates that the Rules be "interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits."
[37]Rules 466 to 472 establish a code governing contempt of court (Sgayias, et al., Federal Court Practice, 2002 under rule 466, at page 845). They contemplate a two-stage procedure. The first stage is the motion for an order under rule 467 requiring the person alleged to be in contempt to appear to answer the allegations of contempt. The order may be issued where there is a prima facie case of contempt. The second stage is the contempt hearing itself. It is analogous to the trial of a criminal offence. The alleged contempt must be proven beyond a reasonable doubt.
[38]Dickson J. (as he then was) in Baxter Travenol Laboratories of Canada Ltd. et al. v. Cutter (Canada), Ltd., [1983] 2 S.C.R. 388, at page 399 stated that the initiating order, known as the show cause order in former Rule 355(4), was analogous to a summons and that it was at the subsequent hearing that the contempt ultimately had to be proved. Our Court found that the initiating order was appealable when refused (R. v. Perry, [1982] 2 F.C. 519 (C.A.), at page 523) and also when issued (Cutter (Canada) Ltd. v. Baxter Travenol Laboratories of Canada Ltd. et al. (1984), 1 C.P.R. (3d) 289 (F.C.A.)). In this latter case however, Urie J., for the Court, found "premature" the appellants' arguments that the initiating order lacked particulars in view of paragraphs 11(a) and (b) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. He concluded that these arguments were matters to be dealt with at the trial.
[39]The appellants, as I will explain later, are raising a different and even more preliminary matter. They are concerned with the proper understanding of the case against them and consequently with the sufficiency of the particulars in that regard. They want to know who is to respond to the order, what case they will have to meet and what evidence may be led against them. They are not at the point of being ready to raise a defence. They are concerned with the non-compliance of the initiating order with the Rules, not with the Charter.
[40]Although I find rule 58 inapplicable, (and for that matter rules 59 and 60 are also inapplicable), it would be undesirable, in my view, that the sequence between the first and the second stage of the contempt proceeding be severed with an appeal. The matter raised should better be dealt with by the trial judge at the beginning of the contempt hearing. An appeal would encourage dilatoriness. This case may be an example of dilatoriness and I shall explain why.
3. The issue before us
| a) The current Rules versus the former Rules |
[41]The current Rules are more stringent than the former Rules with respect to an initiating order of contempt. For the purpose of convenience, I will reproduce subsection 467(1) of the current Rules and subsection 355(4) of the former Rules:
Current subsection 467(1)
467. (1) Subject to rule 468, before a person may be found in a contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court's own initiative, requiring the person alleged to be in contempt
(a) to appear before a judge at a time and place stipulated in the order;
(b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and
(c) to be prepared to present any defence that the person may have. [My emphasis.]
Former Rule 355(4)
Rule 355. . . .
(4) No one may be condemned for contempt of court committed out of the presence of the judge, unless he has been served with a show cause order ordering him to appear before the Court, on the day and at the hour fixed to hear proof of the acts with which he is charged and to urge any grounds of defence that he may have. The show cause order issued by the judge of his own motion or on application must be served personally, unless for valid reasons another mode of service is authorized. The application for the issuance of the show cause order may be presented without it being necessary to have it served. [My emphasis.]
[42]Besides referring only to "an order" and not a "show cause order", a term which should now be abandoned, the current rule requires that the order describe "with sufficient particularity" the act with which the person is charged "to enable the person to know the nature of the case against the person". The current subsection 467(1) codifies early common law requirements. Sgayias et al., loc. cit., under rule 466, at page 845 explain the current rule in the following manner:
The rules contemplate a two-stage procedure. The first stage is the motion for an order under rule 467 requiring the person alleged to be in contempt to appear to answer the allegations of contempt. This is similar to the show cause order under former rule 355(4). The order may be obtained ex parte: rule 467(2) and on the basis of affidavit evidence. Rule 467(3) reflects the jurisprudence in providing that the order may be issued where there is a prima facie case of contempt. The requirement that the order set out the alleged acts of contempt with sufficient particularity is now codified as well: rule 467(1)(b).
The second stage is the contempt hearing. This is analogous to the trial of a criminal offence. The alleged contempt must be proven beyond a reasonable doubt: rule 469, and see Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217 (S.C.C.). Evidence at the hearing is oral and the person alleged to be in contempt cannot be compelled to testify: rule 470. [My emphasis.]
| b) The order under appeal |
[43]Tremblay-Lamer J., at the outset, carefully referred to the motion record. The initiating order, she then issued, states in its operative parts:
On reading the Motion Record and on hearing the submissions of counsel for the parties via teleconference.
1. THIS COURT ORDERS THAT the Band Council Resolution dated May 16, 2001, is of no force and effect as against 544282 Ontario Inc. c.o.b. as Hideaway Campground.
2. THIS COURT ORDERS THAT the Respondent, its agents and servants or any person acting under its instructions is to remove all signs marked "Closed" from the area in the vicinity of the business premises of 544282 Ontario Inc. c.o.b. as Hideaway Campground. Any other person having knowledge of this Order is permitted to remove all signs marked "Closed" from the area in the vicinity of the business premises of 544282 Ontario Inc. c.o.b. as Hideaway Campground.
3. THIS COURT ORDERS THAT the Respondent and Chief Randal Roote be required to attend before a Judge of this Honourable Court at Toronto on Monday, June 4, 2002, commencing at 10:00 a.m. in the forenoon or as soon after that time as the matter can be heard, to show cause why they should not be found in contempt of the Order of the Honourable Mr. Justice O'Keefe, dated August 4, 2002, which forbids the Respondent, its agents and servants or any person acting under its instructions and any other person having notice of that Order from closing down, hindering, preventing, or interfering in any way with the business operations of 544282 Ontario Inc. cob as Hideaway Campground. [My emphasis.]
[44]The Band Council Resolution, which under paragraph 1 of the order is declared of no force and effect, was adopted by the appellant Council on May 16, 2001. It reads:
BE IT RESOLVED
that we, the Saugeen Band Council hereby direct all camp-grounds to be closed to all campers effective Wednesday, May 16, 2001 for an indefinite period of time due to threats of violence.
FURTHER that a news release will be made notifying the indefinite closure of all campgrounds.
[45]Paragraph 2 then orders that the appellants, their agents and servants or any person acting under their instructions remove all signs marked "Closed" from the area in the vicinity of the business premises of the respondents.
[46]Finally, paragraph 3 gives the time and place at which a "show cause" hearing will be held, to determine why the appellants should not be found in contempt of the order of O'Keefe J. forbidding those enumerated in the order from "closing down, hindering, preventing or interfering in any way with the business" of the appellants.
[47]Despite the use of the words "show cause", the appellants concede that they were not misled about the nature of the hearing and that they do not face a reverse onus (see paragraph 30 of their memorandum of fact and law). They express concern, however, as to who is to respond to the order, what case they will have to meet and what evidence may be led against them.
| c) The identity of the alleged contemnors |
[48]The appellants submit that the use of the term "Respondent" in reference to the Council is insufficiently precise because it does not identify the individuals who are directed to attend the hearing. The appellants have some doubt whether the Council is named in its capacity as a quasi-corporate entity or is intended to include all the councillors individually.
[49]I find no justification for this contention.
[50]Rule 467 sets out the procedure required to find a "person" in contempt. Rule 2 defines "person" as including "a tribunal, an unincorporated association and a partnership". The word "tribunal", on the other hand, is said by rule 2 to have the same meaning as "federal board, commission or other tribunal" in the Federal Court Act [R.S.C., 1985, c. F-7, s. 2(1) (as am. by S.C. 1990, c. 8, s. 1)].
[51]This Court has ruled that a band council is a "federal board" within the meaning of subsection 2(1) of the Federal Court Act (see Canatonquin v. Gabriel, [1980] 2 F.C. 792 (C.A.)). In Manitoba Teachers' Society v. Chief, Forst Alexander Reserve, [1984] 1 F.C.1109 (T.D), the Band Council itself was found guilty of contempt under the former Rules of the Court.
[52]The definition of "person" and prior jurisprudence confirm that a band council itself is a distinct entity for the purpose of contempt proceedings. The order of Tremblay-Lamer J. does not, therefore, create any uncertainty as to the identity of the alleged contemnors by naming the appellant Council.
| d) Particulars of the alleged contemptuous acts |
[53]The order refers to the alleged contemptuous acts of "closing down, hindering, preventing or interfering in any way" with the business operations of the respondent.
[54]There is no specific enumeration of these acts. What paragraph 467(1)(b) requires is that the acts complained of be set out "with sufficient particularity to enable the person to know the nature of the case against the person". The sufficiency of the particular is a matter of degree. It has both an objective and a subjective component.
[55]Neither the appellant Council nor Chief Roote contradicted the affidavits contained in the motion record referred to by Tremblay-Lamer J. in her order. This motion record indicates the following:
(a) that on May 16, 2001, Band Council had executed BCR 4 purporting to close all campgrounds on the Saugeen First Nation
(b) that Chief Roote had attended at Hideaway Campground on May 17, 2001, and stated that he would close it down and that the order of O'Keefe did not matter.
(c) that, on May 18, 2001, the Band Council placed "Closed" signs around Hideaway Campground.
(d) that, on May 18, 2001, Chief Roote and members of the Band Council were maintaining the blockade of the premises on Hideaway Campground.
[56]It is true that these alleged contemptuous acts are not specifically mentioned in the initiating order. But the motion record, in which they can be found, is incorporated by reference in the initiating order and the particulars were known to the appellants.
[57]This second issue raised by the appellants is therefore purely one of form.
4. Conclusion
[58]I conclude that this matter should proceed to the second stage before the Trial Division without the delay inherent in an appeal process. The judge who will preside over the contempt hearing will be in a position to make sure that the new subsection 467(1) of the new Rules is complied with.
[59]I would dismiss this appeal. I would however order no costs since the matter raised concerns the interpretation and application of the new Rules.
Malone J.A.: I agree.