Free Estate v. Jones et al., (2004) 364 A.R. 384 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 16, 2004
• Citations: (2004), 364 A.R. 384 (QB);2004 ABQB 486

Free Estate v. Jones (2004), 364 A.R. 384 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. OC.152

Estate of Bruce Claude Free (applicant) v. Helena Jones, Daniel Sullivan and Aliesha Jones (respondents)

(0303 19719; 0303 10461; 2004 ABQB 486)

Indexed As: Free Estate v. Jones et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

July 16, 2004.

Summary:

Helena Jones was permitted by her uncle (Free) to live on a three acre yard within a quarter section of his land. She lived there with her daughter and her common law husband (Jones Group) in a mobile home. Free died. Jones registered a caveat on the property claiming a constructive trust. The Jones Group sued Free's estate, claiming ownership of the property. The Free Estate defended the suit and counterclaimed. The Free Estate also filed an Originating Notice of Motion, requesting a declaration that the Jones Group's occupation was a tenancy at will and that the tenancy at will terminated upon Free's death and an order that the Jones Group immediately deliver up possession of the land. The Jones Group's request that the Originating Notice be joined to the existing proceedings was allowed but the application for immediate possession proceeded.

The Alberta Court of Queen's Bench, in a decision reported 364 A.R. 377, allowed the application and ordered the Jones' Group to give up possession of the property. The estate cited the Jones Group in civil contempt for failing to obey the order requiring them to vacate the property.

The Alberta Court of Queen's Bench found the Jones Group in civil contempt but declined to exercise its jurisdiction to sanction the contempt.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - Helena Jones was permitted by her uncle (Free) to live on a three acre yard within a quarter section of his land - She lived there with her daughter and her common law husband (Jones Group) in a mobile home - Free died - Jones Group sued Free's estate, claiming ownership of the property based on a constructive trust -The estate obtained an order requiring the Jones Group to deliver up possession of the property by a specified date - The Jones Group failed to comply - The estate cited the Jones Group in civil contempt - Helena Jones alleged that they had numerous animals, including seven horses, and had been unable to find new accommodation because she did not have access to sufficient funds and there were no suitable properties available - The Alberta Court of Queen's Bench found the Jones Group in civil contempt - They were not sufficiently diligent in obeying the court order to have an adequate excuse - There was no defence of necessity to contempt - See paragraphs 1 to 5 and 18 to 31.

Contempt - Topic 2653

Defences - Particular defences - Necessity - [See Contempt - Topic 684 ].

Contempt - Topic 2656

Defences - Particular defences - Adequate excuse - [See Contempt - Topic 684 ].

Contempt - Topic 2803

Bars - Existence of alternative remedy - Helena Jones was permitted by her uncle (Free) to live on a three acre yard within a quarter section of his land - She lived there with her daughter and her common law husband (Jones Group) in a mobile home -Free died - Jones Group sued Free's estate, claiming ownership of the property based on a constructive trust - The estate obtained an order requiring the Jones Group to deliver up possession of the property by a specified date - The Jones Group failed to comply - The estate cited the Jones Group in civil contempt - Helena Jones alleged that they had numerous animals, including seven horses, and had been unable to find new accommodation because she did not have access to sufficient funds and there were no suitable properties available - The Alberta Court of Queen's Bench found the Jones Group in civil contempt - However, the court declined to sanction the contempt - The estate had an alternative remedy (obtaining a writ of possession) - The contempt did not seriously affect the administration of justice and did not demonstrate "the obduracy that would justify the imposition of a sanction for contempt" - See paragraphs 6 and 35 to 41.

Cases Noticed:

Oickle v. L & B Electric Ltd. et al. (2004), 222 N.S.R.(2d) 213; 701 A.P.R. 213 (C.A.), refd to. [para. 9].

Baxter Travenol Laboratories of Canada Ltd. v. Cutter (Canada) Ltd., [1986] 1 F.C. 497 (T.D.), refd to. [para. 9].

Dell Chemical & Marketing Ltd. et al. v. Aquasol International Inc. (2000), 273 A.R. 216 (Q.B.), refd to. [para. 9].

Zadegan v. Zadegan, [2003] O.T.C. 1129 (Sup. Ct.), refd to. [para. 9].

MacMillan Bloedel Ltd. v. Simpson et al. (1994), 43 B.C.A.C. 1; 69 W.A.C. 1; 113 D.L.R.(4th) 368 (C.A.), affd. [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161; 130 D.L.R.(4th) 385, refd to. [para. 9].

Mileage Conference Group of the Tyre Manufacturers' Conference's Agreement, In Re, [1966] 1 W.L.R. 1137 (Restr. Pract. Ct.), refd to. [para. 10].

Coflexip SA v. Stolt Comex Seaway MS Ltd., [1999] E.W.J. No. 7360 (Ch. Div.), refd to. [para. 10].

Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1975), 4 O.R.(2d) 585 (H.C.), affd. (1975), 11 O.R.(2d) 167 (C.A.), refd to. [para. 10].

Baxter Travenol Laboratories Inc. v. Cutter (Canada) Ltd., [1987] 2 F.C. 557; 81 N.R. 220 (F.C.A.), refd to. [para. 10].

International Forest Products Ltd. et al. v. Kern et al. (2000), 144 B.C.A.C. 141; 236 W.A.C. 141 (C.A.), refd to. [para. 11].

MacMillan Bloedel Ltd. v. Greenpeace Canada et al., [1996] 2 S.C.R. 1048; 199 N.R. 279; 79 B.C.A.C. 135; 129 W.A.C. 135, refd to. [para. 11].

MacMillan Bloedel Ltd. v. Simpson et al. -see MacMillan Bloedel Ltd. v. Greenpeace Canada et al.

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241; 1 Alta. L.R.(3d) 129; [1992] 3 W.W.R. 481, refd to. [para. 11].

MacMillan Bloedel Ltd. v. Krawczyk et al. (1994), 43 B.C.A.C. 136; 69 W.A.C. 136 (C.A.), refd to. [para. 12].

Manis v. Manis (2001), 149 O.A.C. 384; 13 C.P.C.(5th) 234 (C.A.), refd to. [para. 13].

Michel v. Lafrentz et al. (1998), 219 A.R. 192; 179 W.A.C. 192 (C.A.), refd to. [para. 14].

TG Industries Inc. v. Williams Ltd. et al. (2001), 196 N.S.R.(2d) 35; 613 A.P.R. 35; 2001 NSCA 105, refd to. [para. 14].

TG Industries Inc. v. Clarke Inc. - see TG Industries Inc. v. Williams Ltd. et al.

Glazer v. Union Contractors Ltd., (1960), 26 D.L.R.(2d) 349 (B.C.C.A.), refd to. [para. 14].

Broda v. Broda (2004), 346 A.R. 376; 320 W.A.C. 376; 2004 ABCA 73, refd to. [para. 14].

Salloum v. Salloum (1994), 154 A.R. 65 (Q.B.), refd to. [para. 14].

Morrow, Power v. Newfoundland Telephone Co. et al. (1994), 121 Nfld. & P.E.I.R. 334; 377 A.P.R. 334 (Nfld. C.A.), refd to. [para. 15].

Metaxas et al. v. Ship Galaxias et al. (No. 2), [1989] 1 F.C. 386; 19 F.T.R. 108 (T.D.), refd to. [para. 14].

Bell (Trustee in Bankruptcy) v. Tuohy, [2002] E.W.J No. 1435 (C.A.), refd to. [para. 15].

Danchevsky v. Danchevsky, [1974] 3 All E.R. 934 (C.A.), refd to. [para. 15].

Begg v. East Hants (Municipal District) and Nova Scotia (Director of Assessment) (1988), 85 N.S.R.(2d) 304; 216 A.P.R. 304 (C.A.), refd to. [para. 15].

Dy-Reyes v. Carina Holdings Ltd. et al. (2000), 267 A.R. 235 (Q.B.), refd to. [para. 15].

Western Equipment Ltd. v. Chesterton (A.W.) Co., [1982] B.C.J. No. 395 (S.C.), refd to. [para. 15].

West Coast Railway v. Pacific Tours - see Western Equipment Ltd. v. Chesterton (A.W.) Co.

Arrow Nominees Inc. v. Blackledge, [1999] E.W.J. No. 7349 (Ch.), refd to. [para. 16].

Authors and Works Noticed:

Miller, Jeffrey, The Law of Contempt in Canada (1997), c. 12 [para. 10].

Counsel:

Andrew L. Zebak, for the Estate of Bruce Free;

Lynne Butler, for H. Jones, D. Sullivan and A. Jones.

This application was heard on June 16 and 21, 2004, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on July 16, 2004.