North Vancouver v. Sorrenti,

• Jurisdiction: British Columbia
• Judge: Prowse, Newbury and Levine, JJ.A.
• Neutral Citation: 2004 BCCA 316
• Citation: (2004), 198 B.C.A.C. 282 (CA),2004 BCCA 316,242 DLR (4th) 152,[2004] 10 WWR 674,29 BCLR (4th) 214,198 BCAC 282,[2004] CarswellBC 1233,[2004] BCJ No 1130 (QL),50 MPLR (3d) 63,(2004), 198 BCAC 282 (CA),242 D.L.R. (4th) 152,198 B.C.A.C. 282,[2004] B.C.J. No 1130 (QL)
• Date: 02 April 2004
• Court: Court of Appeal (British Columbia)

North Vancouver v. Sorrenti (2004), 198 B.C.A.C. 282 (CA);

    324 W.A.C. 282

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. JN.034

The Corporation of the District of North Vancouver (respondent/petitioner) v. Giuseppe Sorrenti and Maria Sorrenti (appellants/respondents)

(CA030749; 2004 BCCA 316)

Indexed As: North Vancouver (District) v. Sorrenti

British Columbia Court of Appeal

Prowse, Newbury and Levine, JJ.A.

June 4, 2004.

Summary:

The District of North Vancouver com­menced an action against Sorrenti respecting disturbances caused by the barking of Sor­renti's dog. Sorrenti consented to an order restraining him and others from permitting the dog to disturb the neighbourhood and placing conditions and limitations on the dog being allowed outside. The District applied to have Sorrenti fined $1,000 for contempt and for wilfully disobeying the consent order.

A summary trial judge convicted Sorrenti of contempt, fined him $500 and ordered him to pay special costs. Sorrenti appealed the finding of contempt and the costs order.

The British Columbia Court of Appeal dis­missed the appeal.

Contempt - Topic 42

General - Elements of contempt - Mens rea - The case of R. v. Edge (B.C.C.A.) con­cerned a charge of criminal contempt and involved "publication contempt" - The court in Edge categorized contempt gen­erally as involving either "absolute liabil­ity", a "modified mens rea approach", or the "due diligence defence", depending on the consequences of the misconduct in question - The British Columbia Court of Appeal noted that categorization created doctrinal difficulties and confusion respect­ing the onus of proof and was inconsistent with other decisions of the court - Further, there was higher authority which dis­counted the consequences of the conduct as a prime factor in assessing the required mental element for a finding of contempt - The court reiterated that the time had come to limit Edge solely to cases of "publication contempt" - See paragraphs 8 to 10.

Contempt - Topic 42

General - Elements of contempt - Mens rea - An application was commenced to have Sorrenti held in contempt of court - Sor­renti acknowledged that a prima facie case of contempt had been made out - The British Columbia Court of Appeal stated that the reference to prima facie proof wrongly suggested a two-step test under which once an actual breach of a court order was shown, the onus shifted to the respondent to lead evidence negativing an assumed intention to breach the order - The petitioner had to show both conduct which was in breach of an order and that the conduct was intentional - Intention could be inferred from the circumstances - If the circumstances support such an infer­ence, then in practical terms, a respondent was likely to be convicted in the absence of positive proof that his or her disobedi­ence of the order was in fact accidental or uninten­tional - In this regard, it was insuf­ficient for the defendant to show that he or she did not intend to interfere with the course of justice - Even a benign motive for disobeying the order was no defence.

Contempt - Topic 43

General - Elements of contempt - Wilful­ness - [See second Contempt - Topic 42 ].

Contempt - Topic 505

What constitutes contempt - Civil contempt - The British Columbia Court of Appeal discussed the test for civil contempt - See paragraphs 8 to 14.

Contempt - Topic 1101

What constitutes contempt - Publications - General - [See first Contempt - Topic 42 ].

Contempt - Topic 5083

Practice - Evidence and proof - Burden of proof - [See both Contempt - Topic 42 ].

Contempt - Topic 5115

Practice - Hearing - Costs - Sorrenti was convicted of three charges of contravening a noise bylaw - A subsequent consent order restricted his activity so as to prevent further disturbances - Sorrenti was found in contempt of the consent order and ordered to pay special costs - Sorrenti appealed the costs order, asserting that he had misinterpreted the consent order and his conduct in defending the contempt charge was not reprehensible conduct - The British Columbia Court of Appeal dismissed the appeal - The court referred to its approval in an earlier decision of a long standing practice to award solicitor client costs to the successful applicant in a civil contempt proceeding - The earlier decision stated that a person who obtained an order was entitled to have it obeyed without further expense - That reasoning resonated in particular where a defendant was prosecuted at public expense for breaching a local bylaw, was found guilty on three charges, consented to an order in the Supreme Court and proceeded to breach that order, notwithstanding his neighbours' expressed objections - See paragraphs 19 to 21.

Practice - Topic 7464

Costs - Solicitor and client costs - Entitle­ment to solicitor and client costs - In con­tempt proceedings - [See Contempt - Topic 5115 ].

Cases Noticed:

R. v. Edge (1988), 24 B.C.L.R.(2d) 145; 62 C.R.(3d) 323 (C.A.), consd. [para. 4].

R. v. Perkins (1980), 51 C.C.C.(2d) 369 (B.C.C.A.), refd to. [para. 5].

R. v. Hill (1976), 33 C.C.C.(2d) 60 (B.C.C.A.), refd to. [para. 5].

Poje v. British Columbia (Attorney Gen­eral), [1953] 1 S.C.R. 516, refd to. [para. 5].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 6].

Kamloops (City) v. Northland Properties Ltd. et al. (1999), 23 B.C.T.C. 277 (S.C.), refd to. [para. 7].

R. v. Brain (J.L.) (2003), 179 B.C.A.C. 303; 295 W.A.C. 303; 2003 BCCA 70, refd to. [para. 7].

R. v. Froese and British Columbia Televi­sion Broadcasting System Ltd. (No. 3) (1981), 54 C.C.C.(2d) 315 (B.C.C.A.), refd to. [para. 7].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 7].

R. v. CHBC Television (1999), 118 B.C.A.C. 267; 192 W.A.C. 267; 132 C.C.C.(3d) 390; 1999 BCCA 72, refd to. [para. 8].

Seaward v. Paterson, [1897] 1 Ch. 545 (C.A.), refd to. [para. 8].

Sheppard v. Sheppard (1976), 67 D.L.R.(3d) 592 (Ont. C.A.), refd to. [para. 10].

Ebrahim v. Ebrahim (2000), 139 B.C.A.C. 307; 227 W.A.C. 307; 77 B.C.L.R.(3d) 70 (C.A.), refd to. [para. 10].

Bhatnager v. Minister of Employment and Immigration, [1990] 2 S.C.R. 217; 111 N.R. 185, refd to. [para. 10].

Fletcher Challenge Canada Ltd. v. Miller et al. (1995), 57 B.C.A.C. 76; 94 W.A.C. 76 (C.A.), refd to. [para. 10].

Heatons Transport (St. Helens) Ltd. v. Transport and General Workers' Union, [1973] A.C. 15 (H.L.), refd to. [para. 11].

Stancomb v. Trowbridge Urban District Council, [1910] 2 Ch. 190, refd to. [para. 11].

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, refd to. [para. 13].

Topgro Greenhouses Ltd. et al. v. Houweling (2003), 184 B.C.A.C. 118; 302 W.A.C. 118; 2003 BCCA 355, refd to. [para. 14].

Stiles v. Workers' Compensation Board (B.C.) (1989), 38 B.C.L.R.(2d) 307 (C.A.), refd to. [para. 19].

Everywoman's Health Centre Society (1988) v. Bridges (1991), 54 B.C.L.R.(2d) 294 (C.A.), refd to. [para. 20].

Authors and Works Noticed:

Canadian Judicial Council, Some Guide­lines on the Use of Contempt Powers (1996), p. 5 [para. 8].

Halsbury's Laws of England (4th Ed. 1998), vol. 9(1), para. 460 [para. 8].

Miller, Jeffrey, The Law of Contempt in Canada (1997), p. 34 [para. 9].

Counsel:

A.A. Petronio, for the appellant, Giuseppe Sorrenti;

F.V. Marzari, for the respondent.

This appeal was heard on April 2, 2004, at Vancouver, British Columbia, by Prowse, Newbury and Levine, JJ.A., of the British Columbia Court of Appeal. Newbury, J.A., delivered the following reasons for judgment of the court on June 4, 2004.