TG Ind. Ltd. v. Williams,

• Jurisdiction: Nova Scotia
• Judge: Bateman, Flinn and Cromwell, JJ.A.
• Neutral Citation: 2001 NSCA 105
• Citation: 2001 NSCA 105,(2001), 196 N.S.R.(2d) 35 (CA),[2001] NSJ No 241 (QL),196 NSR (2d) 35,613 APR 35,196 NSR(2d) 35,(2001), 196 NSR(2d) 35 (CA),[2001] NS.J. No 241 (QL),196 N.S.R.(2d) 35,613 A.P.R. 35
• Date: 27 June 2001
• Court: Court of Appeal of Nova Scotia (Canada)

TG Ind. Ltd. v. Williams (2001), 196 N.S.R.(2d) 35 (CA);

 613 A.P.R. 35

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. JN.034

TG Industries Limited (appellant) v. Alfred Williams (respondent)

(CA 169336; 2001 NSCA 105)

TG Industries Limited, a body corporate (appellant) v. Clarke Inc., a body corporate (respondent)

(CA 168170; 2001 NSCA 105)

Indexed As: TG Industries Ltd. v. Williams et al.

Nova Scotia Court of Appeal

Bateman, Flinn and Cromwell, JJ.A.

June 27, 2001.

Summary:

TG Industries obtained default judgment for approximately $11,000 against Williams. An execution order was issued. Williams was an independent trucker working for Clarke Inc. TG served the execution order on Clarke. TG wanted to enforce the order by requiring Clarke to pay TG any money becoming payable by Clarke to Williams as a result of Williams' work. Notwithstanding the order, Clarke paid only $500 to the sheriff. TG commenced an action against Clarke and then sought summary judgment. Clarke sought to strike the action.

The Nova Scotia Supreme Court, per Hamilton, J., in a decision not reported in this series of reports, allowed Clarke's appli­cation to strike and dismissed the summary judgment application. TG then applied to have Clarke cited in contempt for breaching the execution order.

The Nova Scotia Supreme Court, per Wright, J., in a decision not reported in this series of reports, dismissed the application. TG appealed both Hamilton, J.'s and Wright, J.'s decisions.

The Nova Scotia Court of Appeal allowed the appeal in part.

Contempt - Topic 503

What constitutes contempt - General prin­ciples - Civil and criminal contempt dis­tinguished - The Nova Scotia Court of Appeal noted that civil and criminal con­tempt, although they were not mutually exclusive, had different elements and purposes - "The core element of civil contempt is failure to obey a court order of which the alleged condemner is awarded. ... The primary objective of exercising the civil contempt power is to secure com­pliance with the order" - By contrast, the court stated that criminal contempt in­volved "not simply breaches of an order, but public defiance of the court's authority: ... The prime objectives of the court's exercise of its criminal contempt power are to affirm the court's authority and to deter others from flouting it" - Consequently, the intention to depreciate the court's authority was an element of criminal, but not civil contempt - See paragraphs 13 to 15.

Contempt - Topic 503

What constitutes contempt - General prin­ciples - Civil and criminal contempt dis­tinguished - The Nova Scotia Court of Appeal discussed the difficulties in dis­tinguishing between criminal contempt and civil contempt - See paragraphs 13 to 41.

Contempt - Topic 505

What constitutes contempt - General prin­ciples - Civil contempt - A trial judge dismissed a contempt application, holding that an individual or corporation could only be found in contempt if it "intended to disobey the order" - The Nova Scotia Court of Appeal held that such a finding was an error in law - The court reviewed the law on contempt and held that it was no answer to say that an act was not con­tumacious in that, in doing it, there was no direct intention to disobey the order - Rather, it was enough to prove the doing of the act - See paragraphs 1 to 32.

Contempt - Topic 2656

Defences - Particular defences - Adequate excuse - [See Contempt - Topic 505 ].

Contempt - Topic 5091

Practice - Evidence and proof - Civil contempt - [See Contempt - Topic 505 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - TG Industries obtained default judgment against Williams - An execution order was issued - Williams was an independent trucker working for Clarke Inc. - TG served the execution order on Clarke - TG intended to enforce the order by requiring Clarke to pay TG any money becoming payable by Clarke to Williams as a result of Williams' work - Notwith­standing the order, Clarke paid only $500 to the sheriff - TG commenced an action against Clarke and sought summary judg­ment - Clarke sought to strike the action - The Nova Scotia Supreme Court struck the action holding that the claim did not dis­close an action known to law - The Nova Scotia Court of Appeal allowed TG's appeal - While the claim asserted was novel (neither counsel could find law affirming or denying the viability of such an action), it was not so clearly devoid of merit in law as to be obviously unsus­tainable - Both the legal and factual merits had to be determined at trial - See para­graphs 1 to 8.

Cases Noticed:

Poje v. British Columbia (Attorney Gen­eral), [1953] 1 S.C.R. 516, refd to. [para. 13].

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. 13].

Baxter Laboratories of Canada Ltd., Travenol Laboratories Inc. and Baxter Travenol Laboratories Inc. et al. v. Cutter (Canada) Ltd., [1983] 2 S.C.R. 388; 50 N.R. 1, refd to. [para. 13].

Bhatnager v. Minister of Employment and Immigration, [1990] 2 S.C.R. 217; 111 N.R. 185, refd to. [para. 13].

Sunnyside Shopping Plaza et al. v. Sunny­side Transmission (1981), 46 N.S.R.(2d) 156; 89 A.P.R. 156 (T.D.), refd to. [para. 13].

Leger v Dunbar Estate, [1983] N.S.J. No. 209 (T.D.), refd to. [para. 13].

Campbell et al. v. Cartmell (1999), 104 O.T.C. 349 (S.C.), refd to. [para. 15].

Sheppard v. Sheppard (1975), 62 D.L.R.(3d) 35 (Ont. H.C.), refd to. [para. 16].

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. 16].

Skipper Fisheries Ltd. v. Thorbourne et al. (1997), 157 N.S.R.(2d) 241; 462 A.P.R. 241 (C.A.), refd to. [para. 18].

Tilco Plastics Ltd. v. Skurjat et al. (1966), 57 D.L.R.(2d) 596 (Ont. H.C.), affd. (1967), 61 D.L.R.(2d) 664 (C.A.), appli­cation for leave to appeal dismissed [1966] S.C.R. vii, refd to. [para. 18].

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; 130 D.L.R.(4th) 385, refd to. [para. 18].

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

Stancomb v. Trowbridge Urban District Council, [1910] 2 Ch. 190, refd to. [para. 20].

Attorney General v. Walthamstow Urban Council (1895), 11 T.L.R. 533, refd to. [para. 21].

Heatons Transport (St. Helens) Ltd. v. Transport and General Workers' Union, [1973] A.C. 15 (H.L.), refd to. [para. 22].

Director General of Fair Trading (U.K.) v. Pioneer Concrete (U.K.) Ltd. et al., [1995] 1 A.C. 456; 176 N.R. 7 (H.L.), dist. [para. 23].

Witten, Re (an Infant) (1887), 4 T.L.R. 36, refd to. [para. 28].

Ebrahim v. Ebrahim (2000), 139 B.C.A.C. 307; 227 W.A.C. 307 (C.A.), refd to. [para. 29].

Taylor and Western Guard Party v. Cana­dian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 29].

Kist International Inc. v. Hayman, [1988] O.J. No. 1958 (C.A.), refd to. [para. 30].

MacNeil v. MacNeil (1975), 14 N.S.R.(2d) 398; 11 A.P.R. 398 (C.A.), refd to. [para. 36].

Brennan v. Myers (1977), 26 N.S.R.(2d) 131; 40 A.P.R. 131 (T.D.), refd to. [para. 36].

Salter v. Tibbetts, 1991 CarswellNS 662 (N.S.T.D.), refd to. [para. 36].

Authors and Works Noticed:

Miller, Jeffery, The Law of Contempt in Canada (1997), pp. 85, 86 [para. 15].

Sharpe, Robert J., Injunctions and Specific Performance (2000 Looseleaf Update), paras. 6.100 [para. 35]; 6.190 [para. 29]; 6.60 [para. 14]; 20 [para. 31]; 73 [para. 35].

Counsel:

Peter M. Landry, for the appellant;

John E. MacDonell, for the respondent, Clarke Inc.

This appeal was heard on June 11, 2001, before Bateman, Flinn and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

Cromwell, J.A., delivered the following judgment for the court on June 27, 2001.