Canada: "Much Ado About Parking": Contempt And The Power To Punish

Last Updated: February 20 2015
Article by Mark E. Fancourt-Smith and Jessica E. Forman

On January 27, the British Columbia Court of Appeal dismissed the appeal in Bea v. The Owners Strata Plan, LMS 2138, 2015 BCCA 31, upholding the lower court's decision finding the Plaintiff and her husband in contempt of Court and granting the extraordinary relief that the Plaintiff's strata unit (the "Unit") be seized and sold by the respondent (the "Owners"). In doing so, the Court made a bold statement about the scope of its inherent jurisdiction to fashion its own remedies for findings of contempt. The decision was not however unanimous, and the dissent reveals a stark philosophical divide over the question of whether or not the Legislature can direct that the Court's inherent power to punish for contempt be exercised in specific ways.

The case arose out of a long and contentious relationship between Mr. and Mrs. Bea, on the one hand, and the Owners, on the other. The dispute began when the Owners passed a bylaw which provided for the assignment of specified parking stalls for each unit. This did not sit well with the Beas who decided to fight against this infringement upon a freedom they apparently held dear above all else: to park wherever they liked.

Over a period of six years, the Beas filed multiple petitions and appeals all asserting the same cause of action against the Owners – that the parking Bylaw was ultra vires.  All were unsuccessful.  All were appealed, unsuccessfully, and then new, identical, petitions commenced, which, in turn, were dismissed, appealed, and the appeals dismissed.  Both the Supreme Court and the Court of Appeal found the Beas to be vexatious litigants who engaged in abuse of the litigation process, and ordered them not to file any further petitions, applications, or appeals without leave of the Court.  They would not however be deterred from their goal; this too they ignored, variously claiming to have obtained leave when they had not, disregarding any and all costs orders, and pressing on. For the Beas, such was the price of liberty (to park).

On January 31, 2014, Madam Justice Koenigsberg found Mr. and Mrs. Bea in contempt of court and ordered each of them to pay a fine of $10,000.  In making her ruling she noted:

The contempt in question is longstanding and persistent.  Every step a court can take to prevent a litigant to continue to abuse its process and cause very significant stress and damage to his neighbours, in this case, all other members of the Strata Plan, has been flouted by Mr. and Mrs. Bea.  Not one order as to costs has been paid, including security for costs.  There have been in excess of 40 applications to this Court and the Court of Appeal, including hearings to challenge each and every cost award where it was not made specific, and probably attempts to challenge those, but I do not actually know.

Needless to say, the fines imposed by Madam Justice Koenigsberg were not paid.  In a subsequent application by the Owners, Mr. Justice Grauer ordered that the Unit be seized and sold as soon as practicable, having found that nothing else would end their persistent and ongoing contempt of Court. In a move that surprised precisely no one, the Beas appealed the decision.

The main issue for the Court of Appeal was whether or not the Court had the authority to order the seizure and sale of the Beas' property as part of its inherent power to punish for contempt.  Rule 22-8 of the Supreme Court Civil Rules deals with applications for contempt and specifically states: (1) the power of the court to punish contempt of court must be exercised by an order of committal or by imposition of a fine or both(emphasis added).

Thus, the question for the Court of Appeal was whether or not the language of Rule 22-8, and specifically the use of the word "must", meant that Justice Grauer had no jurisdiction, inherent or otherwise, to impose a punishment for contempt that involved the seizure and sale of the property.  The Beas argued that the only choices available to the Court were a imposition of a fine, or imprisonment, as per the language of the Rule.  The Owners argued that the Court's contempt power is an inherent power of the Court and is not limited by the language of the Rule, but is instead intended to allow the Court to protect its process however it deems necessary.

The appeal was dismissed. Madam Justice Garson, writing for the majority, discussed, at length, the basis of the court's inherent jurisdiction to punish for contempt, including its historical roots.  After examining the use of sequestration as an historical punishment for contempt, or tool for enforcement of orders, the majority concluded that sequestration is a protected part of the core of the court's Inherent jurisdiction. Relying on the seminal article on the inherent jurisdiction of superior courts by I.H. Jacob, the majority concluded that the Court's powers in this respect are "complementary to its powers under the Rules of Court; one set of powers supplements and reinforces the others."  In determining that the legislature's rule-making power could not detract from or limit the court's inherent jurisdiction to punish for contempt, the majority held that Rule 22-8 could not be read as an exhaustive codification of the court's power to punish for contempt.  Instead, the Rule, notwithstanding its mandatory language, must be read as complementary: the Rules of Court being in addition to and not in substitution for the powers arising from the inherent jurisdiction of the court. Accordingly, the court had the authority to order the seizure and sale of the unit as punishment for contempt.

The majority further concluded that the imposition of this punishment was appropriate in the circumstances.  The remedy's primary purpose was the cessation of persistent, contumacious behaviour. The Strata in this case consisted of about 35 modest units and the numerous proceedings that the Beas had inflicted upon the Owners had cost the Strata an enormous amount in legal fees.  The chambers judge had found that it was Mrs. Bea's continued ownership of the Unit that fueled the interminable, vexatious, court applications and that forcing the sale was the only way to end them.  In affirming the propriety of the remedy, the majority stated:

The protected core of a superior court's inherent jurisdiction to punish for contempt exists to prevent a court from being rendered feckless in the face of continued abuse of its process.  A court must not allow itself to be used as an instrument of continuing injustice as innocent bystanders are put to continued expense and inconvenience for no legitimate purpose.(emphasis added).

Mr.Justice Goepel wrote a strong dissent to the majority's opinion, stating that the court's inherent jurisdiction is not unlimited and that Rule 22-8 prescribed, in clear language, the two options available to the court in making a contempt order – fine or imprisonment.  Reasoning that that the legislature has the authority to structure how the courts will exercise their inherent jurisdiction, he concluded that Rule 22-8 was an example of the "well-settled principle that the Legislature may limit and structure the ways in which the superior courts exercise their inherent powers."

As the plain language of Rule 22-8 provided a complete and comprehensive list of the options available to the chambers judge to punish for contempt, there was no ability to order the seizure and sale of the Unit.  Therefore, the minority would have ordered the matter back to the chambers judge, to impose a penalty prescribed by Rule 22-8.

While the facts of this case were extraordinary, and the remedy very specific to them, the case is notable for its assertion that the Court can go beyond the apparently mandatory language of the Rules of Court, and impose creative – and in the case draconian – punishments for contempt of court.  It remains to be seen whether the Supreme Court will interpret this case as a license to innovate in punishing for contempt, or simply an example of extraordinary litigants meriting extraordinary punishment.  It is also not known where the Beas are currently parking.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mark E. Fancourt-Smith
Jessica E. Forman
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