Court of Appeal Decision of the Week

Court of Appeal Affirms Registrar’s Power to Deal with “Ex Facie” Contempt

Case: Lymer v Jonsson, 2016 ABCA 76 (CanLII)

Keywords: Bankruptcy and Insolvency Act, RSC 1985, c B-3; Powers of Contempt; Ex Facie; In Facie.

Synopsis:

After several years of bankruptcy proceedings and the appellant’s repeated failure to comply with orders, creditors apply for an order declaring the appellant to be in civil contempt. Following reasoning in the case of Re Cowan, 2010 ONSC 3138 (CanLII), 68 CBR (5th) 248, the Registrar concludes he has jurisdiction to make contempt orders pursuant to provisions in the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA).

The issue in this appeal is whether the Registrar in bankruptcy has jurisdiction to find the appellant in contempt for failing to comply with its orders and to impose sanctions (an order of ex facie contempt) to punish contempt committed not in the face of the court. Both the Registrar and Queen’s Bench judge on appeal conclude the Registrar has that jurisdiction. The only issue for the Court of Appeal is to confirm whether the Registrar has jurisdiction to make the ex facie order.

The appellant’s arguments on appeal can be summarized as follows:

  1. A Registrar is not a court of inherent jurisdiction;
  2. Only a court of inherent jurisdiction can make a finding of ex facie contempt unless legislation empowering an inferior tribunal expressly overrides the common law;
  3. The BIA does not expressly confer the contempt jurisdiction;
  4. Therefore, the Registrar must refer contempt issues to the Court of Queen’s Bench for determination and sanction.

The appeal is based on a question of law. As per Alberta v Alberta Union of Provincial Employees, 2014 ABCA 197 (CanLII), 575 AR 338 at para 15, the standard of review is correctness.

The Court of Appeal dismisses the appellant’s appeal; concludes the Registrar enjoys jurisdiction to make both ex facie and in facie contempt orders – including the ability to impose sanctions short of incarceration.

Importance:

At common law, the power to punish ex facie contempt falls exclusively within the domain of the superior court. Case law established that so called “inferior courts” were restricted to in facie contempt – or contempt that occurs in the face of the court (see, for example: R v Vermette, 1987 CanLII 51 (SCC), [1987] 1 SCR 577, 38 DLR (4th) 419 at para. 6; and Canadian Broadcasting Corp. v Quebec (Police Commission), 1979 CanLII 24 (SCC), [1979] 2 SCR 618 at p. 638 as cited by the Court of Appeal).

Statutory tribunals and “inferior courts” exercise powers to sanction for ex facie contempt only if there has been an express grant of that power through legislation. As such, the Court of Appeal applied the principles in Rizzo & Rizzo Shoes, 1998 CanLII 837 (SCC), [1998] 1 SCR 27, 154 DLR (4th) 193 at para. 21: the words of the Act must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The powers of the Registrar are set out in the BIA. Sub-section 183(1)(d) vests jurisdiction over Alberta bankruptcy proceedings in the Court of Queen’s Bench. Section 2 of the BIA explicitly includes the Registrar (while exercising the powers of the court conferred on it under the Act) as part of the definition of “court”. The powers of the Registrar include, at ss. 192(1)(k), the ability to “hear and determine any matter relating to practice and procedure in the courts” (which, for the Court of Appeal, necessarily involves the making of contempt orders to appropriately enforce practice and procedure). At ss. 192(3), however, there are limits to the power of Registrars: “a Registrar has no power to commit for contempt of court”.

The Court of Appeal interpreted these provisions, “in context and given their ordinary meaning within the scheme and object of the BIA”, to expressly confer the power to make a finding of ex facie contempt and to impose sanctions short of imprisonment (see para. 13). How is this possible in light of ss.192(3)? The answer lies partly in the meaning of the word “commit”. For the Court of Appeal, the ordinary meaning of the word in the context of the BIA, is ‘“to send (a person) to prison…esp. by court order’” (quoting Black’s Law Dictionary, 9th ed, sub verbo “commit”). Accordingly, the effect of ss. 192(3) is not to eliminate the Registrar’s power to sanction contempt completely, but rather to reserve the power to imprison for superior courts. The Court of Appeal came to this determination by considering the interaction of ss. 192(3) and ss. 192(1)(k), the latter of which clearly conferring some power to make contempt orders in order to “determine any matter relating to practice and procedure in courts”.

Concluding Thought:

Although the case of Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 (CanLII) is not explicitly mentioned in the judgment, its presence is certainly felt at para. 17, where the Court of Appeal sought to ground its decision (which recognizes ex facie contempt powers for the Registrar) as part of “the modern trend towards streamlining the litigation process”.

Counsel for the Appellant: Simon Renouf, Q.C. (Renouf Law, Edmonton)

Counsel for the Respondents: Patrick Kirwin (Kirwin LLP, Edmonton)

Posted: Wednesday, March 23, 2016