Turkawski et al. v. 738675 Alberta Ltd. et al., (2004) 372 A.R. 280 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 13, 2004
• Citations: (2004), 372 A.R. 280 (QB);2004 ABQB 845

Turkawski v. 738675 Alta. Ltd. (2004), 372 A.R. 280 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. NO.117

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, Joelle 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)

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

(9703 19066)

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)

(2004 ABQB 845)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

November 22, 2004.

Summary:

In 2001, Boyle was found in civil contempt of a court order that he provide meaningful answers to legitimate questions by his creditors and ordered, in the Evans and Yawrenko proceedings, that he be imprisoned until he had purged his contempt by providing meaningful answers and, in the Turkawski proceedings, that he be imprisoned for a total of 100 days. At about the same time, Boyle was found guilty of charges under the Securities Act and sentenced to 2.5 years' imprisonment. Neither sanction could be carried out because Boyle absconded from Alberta to the United States. In May 2004, American authorities forcibly returned Boyle to Canada. The creditors applied for orders asking the court to make the civil contempt imprisonment sanctions consecutive to the Provincial Court sentence; consider whether a time limit should be imposed on the "indeterminate" imprisonment order; require Boyle's place of detention be disclosed; and consider whether there was any useful purpose for coercive imprisonment.

The Alberta Court of Queen's Bench determined the issues accordingly.

Editor's note: for other cases involving these parties, see [1999] A.R. Uned. 509; 290 A.R. 334; and 298 A.R. 226.

Contempt - Topic 6

General - General principles - Power of courts - [See first, third and fourth Contempt - Topic 3324 ].

Contempt - Topic 3324

Punishment - Imprisonment - General - In 2001, Boyle was found in civil contempt of a court order that he provide meaningful answers to legitimate questions by his creditors and ordered, in the Evans and Yawrenko proceedings, that he be imprisoned until he had purged his contempt by providing meaningful answers and, in the Turkawski proceedings, that he be imprisoned for a total of 100 days - At about the same time, Boyle was found guilty of charges under the Securities Act and sentenced to 2.5 years' imprisonment - Neither sanction could be carried out because Boyle absconded from Alberta - In 2004, the creditors applied for an order that the civil contempt sanction be served consecutively to the Provincial Court sentence - The Alberta Court of Queen's Bench declined to make the order - Assuming that a court imposing a criminal sanction could order that the sentence be served consecutively to a contempt sanction, a court presumably also had the power to order the inverse, i.e., that a sanction for contempt be served consecutively to a criminal sanction - However, in these circumstances, the court could not exercise such power because it was functus - See paragraphs 37 to 45.

Contempt - Topic 3324

Punishment - Imprisonment - General - In 2001, Boyle was found in civil contempt of a court order that he provide meaningful answers to legitimate questions by his creditors and ordered, in the Evans and Yawrenko proceedings, that he be imprisoned until he had purged his contempt by providing meaningful answers and, in the Turkawski proceedings, that he be imprisoned for a total of 100 days - At about the same time, Boyle was found guilty of charges under the Securities Act and sentenced to 2.5 years' imprisonment - Neither sanction could be carried out because Boyle absconded from Alberta - In 2004, the creditors applied for an order merging the sanction for contempt with the Provincial Court sentence - The Alberta Court of Queen's Bench declined to merge the sanctions - A contemnor who was sanctioned with imprisonment was not serving a "sentence" of imprisonment within the meaning of the Criminal Code and related statutes - See paragraphs 46 to 50.

Contempt - Topic 3324

Punishment - Imprisonment - General - In 2001, Boyle was found in civil contempt of a court order that he provide meaningful answers to legitimate questions by his creditors and ordered, in the Evans and Yawrenko proceedings, that he be imprisoned until he had purged his contempt by providing meaningful answers and, in the Turkawski proceedings, that he be imprisoned for a total of 100 days - Neither sanction could be carried out because Boyle absconded from Alberta - In 2004, the creditors applied for an order extinguishing or remitting the civil contempt sanction because it did not appear to have any affect on Boyle - The Alberta Court of Queen's Bench held that it was functus officio and could not extinguish the civil contempt sanction - In any event, there was a public interest in maintaining the court's coercive order of imprisonment for contempt - Imprisonment until contempt was purged was intended to produce the required meaningful answers - See paragraphs 51 to 54.

Contempt - Topic 3324

Punishment - Imprisonment - General - In 2001, Boyle was found in civil contempt of a court order that he provide meaningful answers to legitimate questions by his creditors and ordered, in the Evans and Yawrenko proceedings, that he be imprisoned until he had purged his contempt by providing meaningful answers and, in the Turkawski proceedings, that he be imprisoned for a total of 100 days - Neither sanction could be carried out because Boyle absconded from Alberta - In 2004, the creditors applied for an order setting a time limit on its coercive order of imprisonment - The Alberta Court of Queen's Bench held that because it was functus, it could not modify the indeterminate prison sentence - Even if it had the capacity to modify its sentence, it would not do so in the circumstances because the sentence imposed tracked the appropriate provisions of rule 704(1)(a) for an ongoing contempt and it ensured that the coercive objective of the sanction was carried out by disentitling Boyle to any possible remission from his sentence for contempt - See paragraphs 55 to 65.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - In 2001, Boyle was found in civil contempt of a court order that he provide meaningful answers to legitimate questions by his creditors and ordered, in the Evans and Yawrenko proceedings, that he be imprisoned until he had purged his contempt by providing meaningful answers and, in the Turkawski proceedings, that he be imprisoned for a total of 100 days - Neither sanction could be carried out because Boyle absconded from Alberta - In 2004, Boyle applied for further analysis from the court of the reasons why the court held him in contempt - The Alberta Court of Queen's Bench held that Boyle was entitled to an analysis of the reasons why the court held him in contempt - However, the court had already provided Boyle with sufficient reasons in 2001 to allow him to understand why he had been found in contempt - See paragraphs 70 to 75.

Courts - Topic 2192

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Contempt - [See first, third and fourth Contempt - Topic 3324 ].

Courts - Topic 2192

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Contempt - In 2001, Boyle was found in civil contempt of a court order that he provide meaningful answers to legitimate questions by his creditors and ordered, in the Evans and Yawrenko proceedings, that he be imprisoned until he had purged his contempt by providing meaningful answers and, in the Turkawski proceedings, that he be imprisoned for a total of 100 days - Neither sanction could be carried out because Boyle absconded from Alberta - In 2004, the creditors applied for orders varying the sanctions for contempt - The Alberta Court of Queen's Bench held that it was functus officio on the issue of sanction to be imposed for civil contempt - Having already determined that Boyle should be released from prison if he purged his contempt, the court could not otherwise vary or remit the sanction that it imposed on Boyle in 2001 - See paragraphs 23 to 36.

Cases Noticed:

Michel v. Lafrentz et al. (1998), 219 A.R. 192; 179 W.A.C. 192; 1998 ABCA 231, refd to. [para. 14].

R. v. Montgomery, [1995] 2 All E.R. 28 (C.A. Crim. Div.), refd to. [para. 15].

Harris v. Harris, [2001] EWCA Civ 1645 (C.A. Civ. Div.), refd to. [para. 15].

Attendance Board (Alta.) v. V.L.P. (2001), 292 A.R. 390 (Q.B.), refd to. [para. 15].

A.A.B. v. J.E.M. (2001), 301 A.R. 201 (Q.B.), refd to. [para. 15].

Berube v. Wingrowich, [1999] A.J. No. 1057 (Q.B.), refd to. [para. 15].

Martin Estate v. Martin (1960), 31 W.W.R.(N.S.) 643 (Alta. T.D.), refd to. [para. 15].

Morguard Mortgage Investments Ltd. v. Faro Development Corp. (1974), 50 D.L.R.(3d) 426 (Alta. C.A.), refd to. [para. 15].

R. v. McLaren, [1986] B.C.J. No. 737 (C.A.), refd to. [para. 16].

R. v. Anomo, [1998] E.W.H.C. Admin. 133 (C.A. Crim. Div.), refd to. [para. 16].

MacMillan Bloedel Ltd. v. Brown et al. (1994), 44 B.C.A.C. 241; 71 W.A.C. 241; 92 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 17].

MacMillan Bloedel Ltd. v. Simpson - see MacMillan Bloedel Ltd. v. Brown et al.

R. v. Bridges (1989), 61 D.L.R.(4th) 154 (B.C.S.C.), affd. (1990), 78 D.L.R.(4th) 529 (B.C.C.A.), refd to. [para. 17].

R. v. Vermette, [1987] 1 S.C.R. 577; 74 N.R. 221; 77 A.R. 372; 32 C.C.C.(3d) 519, refd to. [para. 17].

R. v. Puddister (L.) et al. (2001), 226 Nfld. & P.E.I.R. 1; 673 A.P.R. 1 (N.L.C.A.), refd to. [para. 17].

Health Care Corp. of St. John's et al. v. Newfoundland and Labrador Association of Public and Private Employees (2000), 196 Nfld. & P.E.I.R. 275; 589 A.P.R. 275 (Nfld. T.D.), refd to. [para. 17].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 18].

International Forest Products Ltd. et al. v. Kern et al. (2001), 161 B.C.A.C. 1; 263 W.A.C. 1; 151 C.C.C.(3d) 520 (C.A.), refd to. [para. 18].

Sussex Group Ltd. v. 3933938 Canada Inc. et al., [2003] O.T.C. 683 (Sup. Ct.), refd to. [para. 18].

Coleman v. Bihis (1997), 210 A.R. 321 (Q.B.), refd to. [para. 18].

Director of Licensing of Trades (Alta.) v. Duke, [1998] A.R. Uned. 400; 1998 CarswellAlta 738 (C.A.), refd to. [para. 19].

R. v. Paul, [1982] 1 S.C.R. 621; 42 N.R. 1; 67 C.C.C.(2d) 97; 138 D.L.R.(3d) 455, refd to. [para. 19].

R. v. Roberts (1970), 16 C.R.N.S. 7 (Ont. C.A.), refd to. [para. 19].

E.F.S. v. Lowe, [1996] A.J. No. 1146 (Q.B.), refd to. [para. 19].

Delorme v. Harris, [1993] A.J. No. 1412 (Q.B.), refd to. [para. 19].

Villiers v. Villiers, [1994] 1 W.L.R. 493 (C.A.), refd to. [para. 19].

R. v. Winter (1986), 72 A.R. 164; 46 Alta. L.R.(2d) 393 (C.A.), refd to. [para. 19].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298, refd to. [para. 20].

Turkawski et al. v. 738675 Alberta Ltd. et al. (2001), 290 A.R. 334 (Q.B.), refd to. [para. 21].

Turkawski et al. v. 738675 Alberta Ltd. et al., [1999] A.R. Uned. 509 (Q.B.), refd to. [para. 21].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2004), generally [paras. 15, 24].

Counsel:

Robert T. O'Neill, for the applicant, Turkawski Group;

Bruce E. Mintz, for the applicant, Evans Group;

Ross G. McLeod, for the applicant, Yawrenko Group;

Karl R. Wilberg, for the defendant, Kevin Boyle.

This application was heard on July 13, 2004, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on November 22, 2004.