Turkawski et al. v. 738675 Alberta Ltd. et al., (2007) 435 A.R. 162 (QB)

JudgeVeit, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateDecember 13, 2007
Citations(2007), 435 A.R. 162 (QB);2007 ABQB 745

Turkawski v. 738675 Alta. (2007), 435 A.R. 162 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.027

Shon Turkawski, Steve Turkawski, Ron Bernardo, Jason Fiddler, Ken Fiddler, Michael Begg, Bill Begg, Jerry Kral, Don Miller, Ken Joly and Isabelle Moses (plaintiffs) v. 738675 Alberta Ltd., 741426 Alberta Ltd., Kevin Boyle, Brian Boyle and Jason Boyle (defendants)

(9803 05087)

David Yawrenko, Noelle Yawrenko and Huko Holdings Ltd. (plaintiffs) v. Kevin Boyle, Jason Boyle, Brian Boyle, 738675 Alberta Ltd., 542121 British Columbia Ltd. and Boyle International Inc. (defendants)

(9703 19066)

Kevin Boyle (plaintiff by counterclaim/defendant) v. David Yawrenko (defendant by counterclaim/plaintiff)

John Evans and J.W. Evans Management Ltd. (plaintiffs) v. Kevin Boyle, Jason Boyle, Brian Boyle, 738675 Alberta Ltd., Boyle Inc. formerly known as Boyle Communications Inc., Boyle Entertainment & Communications Inc., Boyle International Holdings Inc., 542121 British Columbia Ltd., 738682 Alberta Ltd., and Boyle International Inc. (defendants)

(9803 08881; 2007 ABQB 745)

Indexed As: Turkawski et al. v. 738675 Alberta Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

December 13, 2007.

Summary:

Boyle received two indeterminate sentences for civil contempt of court of an order that he provide meaningful answers to legitimate questions from his judgment creditors. He was also sentenced to 30 months' imprisonment under the Criminal Code for Securities Act breaches. He absconded. American authorities returned Boyle in May 2004. He had been in custody since. He asked the court to declare that he had purged his contempt or, alternatively, to direct his release.

The Alberta Court of Queen's Bench found that Boyle had not yet provided meaningful answers to all of the questions. Boyle had to continue to attempt to fulfill his undertakings and was to remain in custody while he did so.

Editor's note: there are numerous reported decisions related to these actions.

Bankruptcy - Topic 6786

Practice - Stay of proceedings - Proceeding for the recovery of a claim against the bankrupt (incl. lifting of stay) - Boyle received two indeterminate sentences for civil contempt of court of an order that he provide meaningful answers to legitimate questions from his judgment creditors - He was also sentenced to 30 months' imprisonment under the Criminal Code for Securities Act breaches - He absconded - American authorities returned Boyle in May 2004 - He had been in custody since - In August 2004, Boyle assigned himself into bankruptcy - He asked the court to declare that he had purged his contempt or, alternatively, to direct his release - At issue was the effect of the stay of execution proceedings under s. 69.3(1) of the Bankruptcy and Insolvency Act on the creditors' capacity to force Boyle to answer questions - The creditors' application to lift the stay had not yet been heard - The Alberta Court of Queen's Bench held that the creditors had sufficient standing to invoke the court's coercive sanctions, including imprisonment - An examination in aid of execution and the pursuance of undertakings came within the wording of the Act - However, the stay applied only to property identified in the Act - Boyle's brothers, who were fugitives, were also involved - It was permissible for the creditors to attempt to obtain information about them and their property or about property that was relevant to the issues but not owned by Boyle - Further, the judgments would survive Boyle's bankruptcy - Therefore, the creditors had a right to ask questions relevant to Boyle's activities post-bankruptcy - Finally, the activities undertaken by the creditors to date were not direct execution activities, but information gathering undertaken on behalf of all of Boyle's creditors - See paragraphs 81 to 85.

Contempt - Topic 2649

Defences - Particular defences - Inability to comply with court order - Boyle received two indeterminate sentences for civil contempt of court of an order that he provide meaningful answers to legitimate questions from his judgment creditors - He was also sentenced to 30 months' imprisonment under the Criminal Code for Securities Act breaches - He absconded - American authorities returned Boyle in May 2004 - He had been in custody since - He asked the court to declare that he had purged his contempt - The Alberta Court of Queen's Bench held that Boyle had not yet purged his contempt - Having examined the undertakings that remained in dispute, the court determined that, of the gaps, the most important was Boyle's failure to provide records for a bank account in Washington State - Compliance with that undertaking remained of potential use to his investors - Boyle's tax files also remained of potential interest - The undertakings relating to those two areas had to be pursued further - From 2004 forward, Boyle had continually stated that he could not do any more to fulfill his undertakings - However, the current application established that he always was able to do more - Imprisonment as a sanction for contempt had been effective to coerce Boyle into complying with some of his undertakings - The court held that Boyle had to continue to attempt to fulfill his undertakings and was to remain in custody while he did so - See paragraphs 29 to 80.

Contempt - Topic 3304

Punishment - Purging of contempt - [See Contempt - Topic 2649 ].

Contempt - Topic 3324

Punishment - Imprisonment - General - Boyle received two indeterminate sentences for civil contempt of court of an order that he provide meaningful answers to legitimate questions from his judgment creditors - He was also sentenced to 30 months' imprisonment under the Criminal Code for Securities Act breaches - He absconded - American authorities returned Boyle in May 2004 - He had been in custody since - He asked the court to declare that he had purged his contempt or, alternatively, to direct his release because the punitive effect of the sanction had reached its maximum permissible level - The Alberta Court of Queen's Bench held that Boyle had to continue to attempt to fulfill his undertakings and was to remain in custody while he did so - The coercive sanction imposed by the court had not run its course - Consideration of a punitive sanction was premature - Further, a purely punitive sanction after the coercive sanction had run its course would be excessive - The most severe punishment that could have been imposed on Boyle for his fraud was seven years' imprisonment - A punitive sanction for contempt in relation to that could be equivalent to, but not more severe than, the sanction imposed by the Criminal Code - Therefore, the maximum punitive sanction for contempt that could be imposed on Boyle was seven years, with remission - However, where the coercive tool chosen was imprisonment, the court could not add a punitive component that would take it beyond the permissible punitive range - See paragraphs 92 to 105.

Contempt - Topic 3325

Punishment - Imprisonment - When appropriate - Boyle received two indeterminate sentences for civil contempt of court of an order that he provide meaningful answers to legitimate questions from his judgment creditors - He was also sentenced to 30 months' imprisonment under the Criminal Code for Securities Act breaches - He absconded - American authorities returned Boyle in May 2004 - He had been in custody since - He asked the court to declare that he had purged his contempt or, alternatively, to direct his release because there was no longer any useful coercive effect to the court's sanction - The Alberta Court of Queen's Bench held that Boyle had to continue to attempt to fulfill his undertakings and was to remain in custody while he did so - Boyle had not yet provided meaningful answers to all of the questions - Continued efforts to obtain certain information were reasonable and of potential benefit to his creditors - Boyle was a serious flight risk - Unless he was kept in custody, he was unlikely to do any work in fulfilling his promises - See paragraphs 7 and 86 to 91.

Contempt - Topic 3325

Punishment - Imprisonment - When appropriate - [See Contempt - Topic 3324 ].

Contempt - Topic 5010

Practice - General principles - Persons entitled to commence proceedings - [See Bankruptcy - Topic 6786 ].

Cases Noticed:

Tiedmann v. Basiuk and Guardian Royal Exchange Group of Insurance Companies (1977), 5 A.R. 435; 1977 CarswellAlta 97 (T.D.), refd to. [para. 10].

Wright v. Schultz (1992), 135 A.R. 58; 33 W.A.C. 58; 1992 CarswellAlta 330 (C.A.), refd to. [para. 10].

Peel Financial Holdings Ltd. v. Western Delta Lands Partnership, 2003 CarswellBC 2254 (C.A.), refd to. [para. 10].

Hama v. Werbes (2000), 139 B.C.A.C. 290; 227 W.A.C. 290; 76 B.C.L.R.(3d) 271; 2000 CarswellBC 1204 (C.A.), refd to. [para. 10].

Distillery, Brewery, Winery, Soft Drink & Allied Workers' Union Local 604 v. British Columbia Distillery Ltd., 1975 CarswellBC 311 (S.C.), refd to. [para. 10].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402; 30 O.R.(3d) 483; 1996 CarswellOnt 3229 (C.A.), refd to. [para. 10].

Royal Commission (Niagara Regional Police Force Inquiry) v. DeMarco (1990), 38 O.A.C. 140; 1990 Carswell 866 (Div. Ct.), refd to. [para. 10].

Kopyto v. Clarfield (1999), 118 O.A.C. 130; 1999 CarswellOnt 644 (C.A.), refd to. [para. 10].

Sussex Group Ltd. v. Sylvester, [2002] O.T.C. 908; 2002 CarswellOnt 3893 (Sup. Ct.), refd to. [para. 10].

Milligan v. Lech, 2006 CarswellOnt 8456 (Sup. Ct.), affd. 2006 CarswellOnt 7415 (C.A.), refd to. [para. 10].

Korea Data Systems v. Chiang, 2007 CarswellOnt 3067 (Sup. Ct.), refd to. [para. 10].

Braun (Bankrupt), Re (2006), 384 A.R. 80; 367 W.A.C. 80 (C.A.), refd to. [para. 10].

R. v. Neuburger (J.) (1995), 55 B.C.A.C. 2; 90 W.A.C. 2; 1995 CarswellBC 1682 (C.A.), refd to. [para. 10].

Stoneman v. Farm Credit Corp. (1989), 77 Sask.R. 221 (Q.B.), refd to. [para. 10].

Orzy, Re, [1924] 1 D.L.R. 250; 1923 CarswellOnt 17 (Sup. Ct.), refd to. [para. 10].

Hover, Re, [2005] A.J. No. 220 (C.A.), refd to. [para. 10].

Vachon v. Canada Employment and Immigration Commission et al. (1985), 63 N.R. 81 (S.C.C.), refd to. [para. 10].

Manis v. Manis, [2001] O.J. No. 3672 (C.A.), refd to. [para. 11].

R. v. Fulcher (J.J.) (2007), 422 A.R. 329; 415 W.A.C. 329; 2007 ABCA 381, refd to. [para. 12].

R. v. Coffin, [2006] Q.J. No. 3136 (C.A.), refd to. [para. 12].

Counsel:

Gordon R. McKenzie and Lesley Kroeker (Bishop & McKenzie LLP), Laurie I. Wood (Wood Law Office) and Paul Moreau (Moreau & Co.), for the applicant, Kevin Boyle;

Robert O'Neill (Ogilvie & Company), for the Turkawski plaintiffs;

Bruce Mintz (Mintz & Chow), for the Evans plaintiffs;

Jeffrey R. Sermet (Bryan & Company), for the Yawrenko plaintiffs.

This application was heard on November 30 and December 7 and 8, 2007, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on December 13, 2007.

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6 practice notes
  • Lymer (Re), 2018 ABQB 859
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • October 22, 2018
    ...15 months incarceration was ordered in response to a failure to follow a court non-competition order. · Turkawski v 738675 Alberta Ltd, 2007 ABQB 745, 435 AR 162: which is discussed [186] I put little weight on the first two authorities since Braun (Re) relates to a first-time contemnor and......
  • Lymer (Re), 2020 ABQB 157
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 28, 2020
    ...reasonably able: Lymer (Re), 2017 ABQB 110 at paras 24, 29; Lymer (Re), 2018 ABQB 859 at para 157; Turkawski v 738675 Alberta Ltd, 2007 ABQB 745 at para 37 [Turkawski (ii) Principles [31] The objectives and principles that govern the contempt power are relevant to determining whether a ......
  • Richter v. Chemerinski et al., [2014] A.R. Uned. 349 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 28, 2014
    ...111; British Columbia (Workers' Compensation Board) v Moore (c.o.b.) AM Environmental 2011 BCCA 407; Turkawski v 738675 Alberta Ltd . 2007 ABQB 745 ; Capital Estate Planning Corp v Lynch 2004 ABQB 727 ; Culligan Canada v Fettes 2010 SKCA 151 ; F.H. v. McDougall, 2008 SCC 53; Shipka v Trevoy......
  • Thrive Capital Management Ltd. v. Noble 1324 Queen Inc.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • February 28, 2023
    ...able: Lymer v. Jonsson, 2017 ABQB 110, at paras. 24, 29; Lymer (Re), 2018 ABQB 859, at para. 157; Turkawski v. 738675 Alberta Ltd., 2007 ABQB 745, at para. 37.” [26]           Once found guilty of contempt, the onus falls on the conte......
  • Request a trial to view additional results
6 cases
  • Lymer (Re), 2018 ABQB 859
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • October 22, 2018
    ...15 months incarceration was ordered in response to a failure to follow a court non-competition order. · Turkawski v 738675 Alberta Ltd, 2007 ABQB 745, 435 AR 162: which is discussed [186] I put little weight on the first two authorities since Braun (Re) relates to a first-time contemnor and......
  • Richter v. Chemerinski et al., [2014] A.R. Uned. 349 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 28, 2014
    ...111; British Columbia (Workers' Compensation Board) v Moore (c.o.b.) AM Environmental 2011 BCCA 407; Turkawski v 738675 Alberta Ltd . 2007 ABQB 745 ; Capital Estate Planning Corp v Lynch 2004 ABQB 727 ; Culligan Canada v Fettes 2010 SKCA 151 ; F.H. v. McDougall, 2008 SCC 53; Shipka v Trevoy......
  • Lymer (Re), 2020 ABQB 157
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 28, 2020
    ...reasonably able: Lymer (Re), 2017 ABQB 110 at paras 24, 29; Lymer (Re), 2018 ABQB 859 at para 157; Turkawski v 738675 Alberta Ltd, 2007 ABQB 745 at para 37 [Turkawski (ii) Principles [31] The objectives and principles that govern the contempt power are relevant to determining whether a ......
  • Thrive Capital Management Ltd. v. Noble 1324 Queen Inc.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • February 28, 2023
    ...able: Lymer v. Jonsson, 2017 ABQB 110, at paras. 24, 29; Lymer (Re), 2018 ABQB 859, at para. 157; Turkawski v. 738675 Alberta Ltd., 2007 ABQB 745, at para. 37.” [26]           Once found guilty of contempt, the onus falls on the conte......
  • Request a trial to view additional results

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