ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-55468

DATE: 2013/12/10

BETWEEN:

MELBA MANSON and SCOTT MANSON

Plaintiffs

– and –

CANETIC RESOURCES LTD., PENN WEST PETROLEUM LTD., also known as Penn West energy Trust and also known as Penn West Exploration and HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA, also known as THE PROVINCIAL GOVERNMENET OF ALBERTA

Defendants

Melba Manson and Scott Manson, Self‑represented

Todd J. Burke and Roberto D. Aburto, for the Defendants

HEARD: November 28, 2013 (Ottawa)

reasons for findinG of contempt

BEAUDOIN J.

[1] The Defendants brought a motion seeking a declaration that the Plaintiff, Scott Manson, was in contempt of court by reason of his failure to comply with an Endorsement of the Honourable Justice Patrick Smith dated August 29, 2013. On that date, Justice Smith heard submissions by counsel for the Defendants that Mr. Manson was repeatedly leaving abusive and inappropriate telephone messages for counsel of the Defendants and other various individuals. Justice Smith’s Endorsement from that date provides at para. 6:

All communications shall be in writing. There shall be no telephone or voicemail messages, including from the Plaintiffs to the Defendants, counsel for the Defendants, process servers engaged by the Defendants, employees of Her Majesty the Queen in Right of the Province of Alberta including Jeffrey Sharpe, former counsel for Penn West Petroleum Ltd.

Background

[2] This Endorsement arose from a motion brought by the Defendants challenging the jurisdiction of Ontario with respect to proceedings commenced by the Plaintiffs. That motion was originally scheduled to proceed on June 20, 2013 and following an adjournment, the parties appeared before Justice P. Smith on August 29, 2013 where he issued the Endorsement in question.

[3] Contrary to the provisions of that Endorsement, Mr. Manson called counsel for the Defendants on October 5, 11, 16, 18, 19 and 20, 2013, leaving abusive and inappropriate messages. In total, there were 66 messages that were typically 5‑10 minutes in length each. The subject of these voicemails included disparaging remarks directed at the Honourable Justice P. Smith, the Defendants and counsel for the Defendants.

[4] The Plaintiff, Scott Manson, admits that he left the messages in question. He argued that Justice Smith’s Endorsement was not an order since it was described as an “Endorsement” and that Justice Smith did not have jurisdiction to make an order prohibiting the Plaintiff from making calls outside the province. I rejected those arguments immediately; the Endorsement of August 29, 2013 set out a number of orders. The title of the document is not determinative of its effect. Mr. Manson apologized for his behaviour but indicated that he has worked in the oil patch in Alberta for years and the kind of language that he used in his phone messages was typical of the language used in that industry. He argued that this is a long‑standing dispute and that Mr. Burke should have been well aware of the fact that he was very angry and frustrated by the slow progress of his and his mother’s claims.

[5] The messages were left on the voicemail box of Mr. Burke of the Gowlings law firm. Mr. Manson suggested that Gowlings would have sophisticated software on its telephone system that would allow them to block any messages from him and that, in any event, Mr. Burke did not have to listen to them or that he could have deleted them. These comments avoid the issue; he left the messages in clear contravention of Justice Smith’s order. Although Mr. Manson suggested that the transcription of the messages may contain some duplication, CD recordings of the messages were available and I offered to play these for him so that we could ensure the accuracy of the transcripts. This offer was declined.

[6] In response to this motion, the Plaintiff brought his own cross‑motion for contempt which he served on Mr. Burke at the outset of the hearing of the motion. In that motion he refers to the attendance before Justice Smith on August 29, 2013 where he and his mother Melba Manson (the other Plaintiff), were in attendance. He alleges that Mr. Burke threatened him and his mother by stating in an angry voice: “You had better play it real cool and don’t rock the boat or else”. Mr. Burke had no time to respond to this motion and he denies that any threat was made. In any event, this comment, even if it was made, could not be the subject of a contempt motion. Mr. Manson must understand that his contempt lies in the fact that he disregarded Justice Smith’s clear order that all communications had to be in writing and that there were to be no telephone and voicemail messages from himself to Mr. Burke. The finding of contempt relates to the fact that he left many such voicemail messages. The content of those messages, namely the abusive and vulgar remarks, are not the basis for the finding of contempt. That content simply makes his contempt more serious.

The Law

[7] Rule 60.05 of the Rules of Civil Procedure allows for “an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.” R.R.O. 1990, Reg. 194, r. 60.05.

[8] That is settled law that the Court must be satisfied of the following before making a finding of contempt:

(a) That the order that was breached must clearly and unequivocally state what should or should not have been done;

(b) The party who disobeys the order must have done so in a deliberate and wilful manner; and

[9] In Prescott-Russell Services for Children and Adults v. G. (N.) et al (2007), 2006 81792 (ON CA), 82 O.R. (3d) 686 at para. 27 (C.A.), Blair J.A. set out the test for a finding of contempt of court:

The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.

[10] In this case the Endorsement was clear. Mr. Manson’s voicemail messages demonstrate that he has disobeyed the order of Justice Smith in a wilful manner. For example, his October 5, 2013 message to Mr. Burke stated:

Mr. Burke, Scott Manson from Morrisburg. You got a major fing problem on your desk without prejudice, Saturday evening. I have just looking at my email and received this bullst a* covering endorsement from Patrick Smith. You can take that endorsement, Mr. Burke, and shove it up your f*ing ahole with Penn West Petroleum and record that, email it, record it.

[11] This evidence demonstrates beyond a reasonable doubt that Mr. Manson acted contrary to the order of Justice Smith. The transcripts of those messages include other instances of Mr. Manson identifying himself and making derogatory remarks about the order of Justice Smith.

[12] The provisions of Rule 60.11(5) give the Court a wide discretion on how to levy penalties to deal with contempt. These include imprisonment for such period and on such terms the court deems are just.

Content of Order

(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property. R.R.O. 1990, Reg. 194, r. 60.11 (5).

[13] In Nelson Barbados Group Ltd. v. Cox, 2010 ONSC 569, at para. 25, the Court set out the factors to be considered in determining that appropriate sanction for a civil contempt:

(a) the nature of the contemptuous act;

(b) whether the contemnor has admitted his breach;

(d) the court must consider whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches;

(e) the court should take into account whether the breach occurred with the full knowledge and understanding of the contemnor such that it was a breach rather than as a result of a mistake or misunderstanding;

(f) the court must also consider the extent to which the conduct of the contemnor has displayed defiance;

(g) the court should consider whether the order was a private one affecting only the parties to the suit or whether some public benefit lays at its root.

[14] In this case, Mr. Manson admitted his breach and tendered an apology to the Court. Nevertheless, there was more than a single breach of Justice Smith’s order; there were so many voicemail messages that Mr. Burke’s voicemail box was completely filled by the messages left by Mr. Manson. These messages were left at night after Mr. Burke had left the office and on weekends. Mr. Manson was fully aware of the terms of Justice Smith’s order. Those messages demonstrate complete defiance on his part with respect to the order made by this Court. For those reasons, I impose a fine of $3,000.00 on Mr. Manson; this represents $500.00 for each date when Mr. Manson left a series of abusive and inappropriate voicemail messages on Mr. Burke’s voicemail.

[15] Mr. Manson was warned that, but for his apology, the Court would have had no difficulty imposing a period of imprisonment for his contempt. He was reminded that para. 6 of Justice Smith’s order continues to be in effect and in the event of any further findings of contempt, he can expect any further punishment to be more severe. The Defendants are to provide me with their written costs submissions within five days of the release of these Reasons and the Plaintiff, Mr. Manson, is to provide his written response five days later. The submissions are not to exceed three pages in length.

Mr. Justice Robert J. Beaudoin

Released: December 10, 2013

COURT FILE NO.: 12-55468

DATE: 2013/12/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MELBA MANSON and SCOTT MANSON

Plaintiffs

– and –

Defendants

reasons for finding of CONTEMPT

Beaudoin J.

Released: December 10, 2013

[^1]: Hobbs v. Hobbs, 2008 ONCA 598 at para. 26.

Manson v. Canetic Resources Ltd. et al., 2013 ONSC 7613

Case Summary

ONTARIO

SUPERIOR COURT OF JUSTICE

Background

The Law

This Proceeding

Judge

Counsel

Parties

Areas of Law