



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Bea v. The Owners, Strata Plan LMS 2138,









2015 BCCA 31




Date: 20150127

Docket: CA041895

Between:

Cheng-Fu Bea and
Huei-Chi Yang Bea

Appellants

(Petitioners)

And

The Owners, Strata
Plan LMS 2138

Respondents

(Respondents)

Corrected
Judgment:  The text of the judgment was corrected at paragraph 5
on January 29, 2015 and on the front page February 13, 2015.




Before:



The Honourable Madam Justice Garson

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Goepel




On
appeal from: An order of the Supreme Court of British Columbia, dated May 12,
2014 (
Bea v. The Owners, Strata Plan LMS 2138
, 2014 BCSC 826, New
Westminster Docket S116228).




Counsel for the Appellant:



K. Deane-Cloutier





Counsel for the Respondent:



P.J. Dougan





Place and Date of Hearing:



Vancouver, British
  Columbia

October 20, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 27, 2015









Written Reasons by:





The Honourable Madam Justice Garson





Concurred in by:

The Honourable Madam Justice MacKenzie





Dissenting Reasons by:





The Honourable Mr. Justice Goepel (p. 33, para. 93)




Summary:

The
appellants appeal from an order of the Supreme Court of British Columbia,
ordering the seizure and sale of the appellants strata property as a remedy to
put a stop to the appellants continuing contempt of court. The appellants launched
numerous frivolous actions against the respondents. The appellants were
subsequently found to be vexatious litigants and ordered to stop filing claims
in respect of this matter. The appellants repeatedly disobeyed that order and
were subsequently found in contempt of court. The respondents had obtained
numerous orders for special costs against the appellants and had registered
numerous judgments against the title to the strata property. The chambers judge
determined that the only curative remedy available was the immediate seizure
and sale of the strata property, with conduct of the sale to be carried out by
the respondents. The appellants allege that there was no jurisdiction to make
the order, and in the alternative that it was not an appropriate order in the
circumstances.

Held:
Appeal dismissed. The majority (per Garson and MacKenzie J.A.) held that the
chambers judge had jurisdiction to make an order for seizure and sale of
property, as such an order is analogous to the historical power to use
sequestration as a remedy for contempt. This power is constitutionally
protected as a core aspect of a superior courts inherent jurisdiction to punish
for contempt, and therefore the language of the Supreme Court Civil Rules
pertaining to available powers in contempt must be read as non-exhaustive. The
chambers judges discretionary decision to grant the order deserves deference
in the circumstances, and it cannot be shown to be inappropriate in this case.

Goepel J.A. dissented. In
his opinion the courts inherent jurisdiction to sentence for contempt was
limited by the provisions of the Supreme Court Civil Rules and the chambers
judge did not have the jurisdiction to order the sale of the appellants
property.

Reasons
for Judgment of the Honourable Madam Justice Garson:

I.

Introduction

[1]

Cheng-Fu Bea (Mr. Bea) and Huei-Chi Yang Bea (Mrs. Bea), appeal
a Supreme Court chambers judges order in which, having found Mrs. Bea to
be in contempt of court (a finding that is not under appeal), the chambers
judge ordered as a remedy for the contempt that Mrs. Bea deliver up vacant
possession of Strata Lot One in Strata Plan LMS2138 (the Strata Unit) to the
respondents, the owners of strata units (the Owners), and that it be
immediately sold.

[2]

The underlying dispute between the Beas and the Owners relates to
the assignment of parking stalls. The dispute began after the strata council
passed a parking bylaw in August 2006. The Beas objected to the change in the
parking bylaws. They filed a petition challenging the bylaw in the Supreme
Court of British Columbia. The judge hearing the petition dismissed it. What
followed was six years of multiple proceedings, all essentially asserting the
same cause of action against the Owners, in this Court and the court below. Both
courts have since found the Beas to be engaged in an abuse of the litigation
process while pursuing vexatious claims against the Owners: see
Bea v.
Strata Plan LMS 2138
, 2009 BCSC 783;
Bea v. The Owners, Strata Plan LMS
2138
, 2010 BCCA 463.

[3]

This appeal focuses on two questions. First, whether the order selling Mrs. Beas
Strata Unit as a remedy for contempt of court was one that is available to the
chambers judge given that Rule 22-8(1) of the
Supreme Court Civil Rules
provides
that the court must impose a fine, committal or both as punishment for
contempt. The Beas argue it is not.

[4]

Second, even if the judge did have the inherent jurisdiction to make
such an order, was it appropriate in the circumstances. Again, the Beas argue
it is not.

[5]

I note that the chambers judge found that s. 173 of the
Strata Property Act
, S.B.C. 1998, c. 43, did not apply in this case, and
similarly, the decision in
The Owners Strata Plan LMS 2768 v. Jordinson
,
2013 BCCA 484, which also involved findings of contempt in a strata-related
dispute, was not determinative. These findings are not under appeal, and the
Strata
Property Act
is therefore not before us.
For the reasons that
follow, I would dismiss the appeal.

II.

Background to the Dispute

[6]

The chambers judge set out the long and complicated background to this
dispute at paras. 2−35 of his reasons for judgment (indexed at 2014
BCSC 826 [
Bea
]). I shall not repeat that background here. What follows
is a brief summary of events particularly relevant to this appeal.

[7]

Mrs. Bea is the owner of the Strata Unit. On October 27, 2008,
after the commencement of the first of these multiple proceedings, Mrs. Bea
authorized Mr. Bea to act on her behalf in the proceedings between her and
the Strata council. As will be made clear the court below determined that this
authorization did not mean Mrs. Bea was not aware of and involved with the
proceedings that followed. As such, for convenience and clarity, I will often
refer to the subsequent judicial proceedings as having been conducted by the
Beas together.

[8]

Following the dismissal of the first petition objecting to the amendment
to the parking bylaws, the Beas commenced a second petition claiming the same
relief. The second petition was dismissed as
res judicata
. No appeal was
taken from the dismissal of the second petition. A third petition advancing the
same claim was commenced by the Beas and dismissed by Master Taylor as an abuse
of process. Various orders as to costs have been made against the Beas, but
have not been complied with, or have been appealed.

[9]

On August 23, 2010, following another application by the Beas, this time
seeking to prevent the Owners from executing their judgments for costs, Grauer
J. issued a vexatious litigant order under s. 18 of the
Supreme Court
Act
, RSBC 1996, c. 443. The order prohibited the Beas from filing,
without leave
,
any document related to the dispute. The order was made
in the following terms:

THIS COURT ORDERS THAT:

1.

The
Petitioners Application is dismissed.

2.

Mr. or Mrs. Bea, and anyone acting on their behalf, shall not
file or attempt to file, by any means whatsoever, any document in any registry
of the Supreme Court of British Columbia pertaining to or in any way connected
with the subject matter of the proceedings in Supreme Court Registry File Nos.
S113052, S114949, S116228 without leave of this Court.

. . .

[10]

This Court subsequently issued another vexatious litigant order described
in the reasons for judgment released October 21, 2010, indexed at 2010 BCCA
463. In issuing the vexatious litigant declaration, Smith J.A., writing for the
Court, described the relentless campaign the Beas had waged against the Owners
as follows:

[24]      The respondent is a small strata corporation. The
appellant, through his litigation in the court below and in this Court, has
drawn the respondent into court more than 30 times on the substantive issue of
the
vires
of the respondents parking bylaw. This is at a considerable
cost to the respondent owners who are paying the legal fees to defend what
amounts to an abuse of both courts processes. The respondent owners are also
faced with the appellants attempt to insulate himself from enforcement
proceedings by having no assets in his name.

[25]      It is evident from the two appeals and multiple
applications brought by the appellant in this Court on frivolous and
unmeritorious issues, that the combined effects of s. 9(6) and s. 29
of the
Act,
absent something more, are insufficient to halt this ongoing
abuse of the Courts process. In this regard, Mr. Justice Frankel offered
the resolution for such a litigant in
Houweling
:

[40]      What, then, can a court
do to bring to an end the misuse of the litigation process caused by the
repetitive filing of unmeritorious applications that result in the needless
expenditure of judicial resources and, in some cases, unnecessary expense to
the other parties? The answer lies in the ancillary (inherent) jurisdiction
that every court has to prevent its process from being abused. As Madam Justice
Arbour stated in
United States of America v. Schulman,
2001 SCC 21,
[2001] 1 S.C.R. 616, an appellate court like all courts, [has] an implied, if
not inherent, jurisdiction to control its own process, including through the
application of the common law doctrine of abuse of process: para. 33. See
also:
United States of America v. Cobb,
2001 SCC 19, [2001] 1 S.C.R. 587
at para. 37.

[26]      I am persuaded that the
time has come for this Court to grant the respondent an order similar to the
one made in
Houweling.
The effect of such an order will be to limit the
appellants access to the courts. While such an order is to be made sparingly
and only in the clearest of cases (
Houweling
at para. 44), in my
view this is one of those cases.

[11]

In breach of Grauer J.s vexatious litigant order, both Mr. and Mrs. Bea
filed further proceedings leading to the order under appeal. The documents
filed in breach of the August 23, 2010 order, as described by Grauer J., were:

·

In December 2010, the Beas applied for leave to commence a
further petition, the application for which was inadvertently accepted by the
Supreme Court registry before being brought to the attention of Grauer J. and
dismissed.

·

On January 27, 2013, Butler J. dismissed another application
brought by the Beas without leave and awarded special costs.

·

On March 27, 2013, Groves J. dismissed another petition commenced
by the Beas against the Owners and awarded costs payable forthwith.

·

In September 2013, another application for leave was brought by
the Beas to commence a petition against the Owners (the fifth brought seeking the
same remedy). This application was brought to the attention of Grauer J., who
issued a memorandum denying the leave application and warning the Beas that
they have exposed themselves to contempt proceedings.

[12]

At least one additional request for leave was brought by the Beas in
December 2013 and denied. On January 28, 2014, the Owners applied before
Koenigsberg J. for an order holding the Beas in contempt of Grauer J.s order
of August 23, 2010. Mr. Bea appeared at this hearing but Mrs. Bea did
not. However, Koenigberg J. was satisfied that Mrs. Bea had been properly
served.

[13]

On January 31, 2014, in an order following the application made on
January 28, 2014, Koenigsberg J. held both Mr. and Mrs. Bea in
contempt. As a remedy for that contempt, the Owners sought orders that the
Strata Unit be sold as well as a fine and, in default, imprisonment. Madam
Justice Koenigsberg declined to make the order for sale of the Strata Unit as sought
by the Owners, as she considered that she did not have jurisdiction to make such
an order. Instead, she fined the Beas each $10,000. The terms of her order are
as follows:

THIS COURT ORDERS THAT:

1.         Mr. Cheng-fu
Bea and Mrs. Huei-Chi Yang Bea be fined $10,000.00 for contempt.

2.         The
fine be paid by Mrs. Huei-Chi Yang Bea by 4pm Friday February 7, 2014.

3.         That
if the fine is not paid by the appointed time, a warrant issue for the arrest
of Mrs. Huei-Chi Yang Bea, and she be brought before the court on the next
court day following the arrest to be dealt with on an inquiry to determine
whether she has committed a breach of the order granted.

4.         The
inquiry into any such alleged breach should first be conducted before Mr. Justice
Grauer if he is available, sitting in Vancouver; otherwise, the inquiry may be
before any Judge of this Court sitting in Vancouver.

5.         Special
costs payable by Mrs. Huei-Chi Yang Bea in the amount of $2,500.00;

6.         The signature of the Petitioner
for approval as to the form of this order is dispensed with.

[14]

The nature of the Beas contemptuous conduct is described by Koenigsberg J.
in her oral reasons for judgment pronounced on January 31, 2014. As these oral
reasons are unreported, I quote from her judgment:

[7]        Before making any findings of contempt against
both Mr. and Mrs. Bea on January 28, 2014and I note that Mrs. Heui-Chi
Yang Bea was not present in this courtroom then although clearly served with
notice of the hearing and clearly knowing that Mr. Bea could not represent
herI asked Mr. Bea, who did appear on his own behalf, what he wished to
say as to why I should not find him in contempt on the basis of the clear
evidence of several court orders which had been flagrantly disregarded.

[8]        Among other things Mr. Bea denied that he was
ever in breach of any court orders. I eventually was provided with Mr. Beas
written response which I advised him I would attach to these reasons, as Mr. Bea
did not believe that I was allowing him to be heard. I did read those
submissions and Mr. Bea made further oral submissions. I gathered that at
least one reason he submitted he was never in breach of Grauer J.s order is
because he claimed he had obtained leave to bring subsequent applications
complained of. When I inquired where such orders granting leave were, he said,
among other things, that he had not been allowed to file his leave application.
. . .

[9]        I find that Mr. Bea either so determined to
reach his goal of defeating the strata councils ability to pass bylaws he does
not like and defeat its ability to collect on the judgments it has obtained
from the court that he is unable or more likely unwilling to hear or read what
he does not want to hear or read. He never obtained leave to file an
application and he knew full well that that is true. He has nothing of any
merit to say as to why he should not be found in contempt, and I so find him
and Mrs. Bea.

[10]      Mrs. Heui-Chi Yang Bea did not appear and Mr. Bea
could not and did not purport to represent her in this contempt hearing. That Mrs. Bea
is clearly in contempt for defiance of court orders, one needs only to read her
notice of assignment of powers and duties of strata lot owner. She is the owner
on title of the strata lot. She authorized Mr. Bea to act on her behalf as
owner as of October 22, 2008, and he did so in each and every hearing, except
this one before me. . . .

[11]      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 that.

[15]

The fines imposed by Koenigsberg J. against the Beas were not paid. Subsequently,
on application of the Owners, Mrs. Bea was brought before Grauer J. on February
17, 2014. At the hearing before Grauer J., questions arose as to whether Mrs. Bea
had been properly served with the application for the previous contempt hearing
before Koenigsberg J. On a cross-examination of the process servers at a
subsequent hearing on March 3, 2011, Grauer J. determined that he could not be
fully satisfied that Mrs. Bea had been properly served with the
application for contempt heard before Koenigsberg J. Consequently he set aside
the previous orders finding her in contempt and fining her $10,000. He did not
set aside the orders against Mr. Bea. Mr. Justice Grauer then
proceeded to re-consider the application for contempt against Mrs. Bea.
After reviewing the same sequence of events as Koenigsberg J., Grauer J. concluded
that Mrs. Bea was in contempt of court and a remedy was required to put an
end to the contemptuous conduct. It is the result of that proceeding that is
now under appeal.

[16]

The terms of Grauer J.s order are as follows:

1.         The
Order of the Honourable Madam Justice Koenigsberg pronounced January 31, 2014,
is set aside insofar as it finds Mrs. Huei-Chi Yang Bea in contempt of
court, but remains in force in relation to the Petitioner.

2.         Mrs. Huei-Chi
Yang Bea is hereby found to be in contempt of this court.

3.         Mrs. Huei-Chi
Yang Beas strata unit, #1- 2378 Rindail Avenue, Port Coquitlam, B.C., legally
described as Strata Lot 1, District lot 289, Group 1, New Westminster District
Strata Plan LMS 2138 (the Unit), shall be sold as soon as is practicable,
with the respondent having sole conduct of sale;

4.         Mr. Cheng-fu Bea and Mrs. Huei-Chi
Yang Bea shall provide vacant possession of the Unit to the respondent on or
before June 15, 2014;



[17]

As I have already said, the actual finding that Mrs. Bea is in contempt
is not under appeal. It is only the sanction, namely the immediate order for
sale of the Strata Unit, that is under appeal.

III.

Discussion

[18]

Rule 22-8 of the
Supreme Court Civil Rules
deals with
applications for contempt. I reproduce the pertinent sub-sections of the Rule:

(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.



Security

(2)

Instead of or in addition to making an order of committal or imposing a
fine, the court may order a person to give security for the persons good
behaviour.



[19]

On appeal, the Beas argue that Rule 22-8(1) is cast in mandatory
language. It provides that the court 
must
 impose as a remedy for
contempt the punishment of imprisonment, a fine, or both. The Beas argue that
the court has no inherent jurisdiction to impose a punishment other than those
three enumerated.

[20]

The Owners argue that a superior courts contempt power is an inherent
power of the court, one that has existed for many centuries and is not proscribed
or limited as the Beas would argue based on Rule 22-8(1).

[21]

Alternatively the Beas argue that the remedy, that is the sale of the
Strata Unit, is not focussed on ensuring compliance with the orders that were
breached, but rather appears designed to redress a civil wrong. Accordingly,
the Beas argue the order for sale is not a fit punishment.

[22]

As I will explain, in my opinion, the remedy ordered is available as a
response to contempt of court in extraordinary circumstances and the chambers
judge did not err in ordering it in this case. To explain why such an order is
available despite a lack of similar precedents in this Province, I will first
discuss how a superior courts inherent jurisdiction to punish for contempt is
protected by the
Constitution Act, 1867
, and cannot be limited by
legislation, including the
Supreme Court Civil Rules
. Next, I will
discuss how the historical remedy of a writ of sequestration was and is a part
of this protected inherent jurisdiction to punish for contempt. I will then
discuss how the English High Court has, in recent years, determined that a writ
of sequestration ordered as a coercive remedy to cure contempt can lead to a
sale of real property owned by the contemnor, and how the reasoning used by the
English High Court equally leads to the conclusion that in British Columbia, an
order for sale of the contemnors property is an available remedy for contempt
of court in extraordinary circumstances. Finally, I will discuss how the
chambers judge was correct to conclude that such an order was required in this
case to prevent an injustice.

A.

Can
a Rule or Statute Limit the Inherent Jurisdiction of the Court to Punish for
Contempt?

[23]

I turn first to a consideration of the nature and origins of the courts
inherent jurisdiction in order to determine if a Rule can limit the inherent
power of the court to punish for contempt.

[24]

The Beas argue that Rule 22-8(1
) exhaustively
codifies the courts power to punish for contempt and therefore removes any
historical inherent jurisdiction to fashion and apply alternative remedies for
contempt.

[25]

This issue was considered by the Supreme Court
of Canada in
MacMillan

Bloedel Ltd. v. Simpson
, [1995] 4 S.C.R.
725. In
MacMillan
, the Court concluded that the portions of the
Constitution
Act, 1867
enshrining a legal system similar in principle to that of the
United Kingdom, including ss. 96101 and the preamble, prevents the
Legislature from limiting the core of a superior courts inherent jurisdiction,
including the power to punish for contempt.
MacMillan
was most recently
cited by the Supreme Court of Canada in
Trial Lawyers Association of British
Columbia v. British Columbia
, 2014 SCC 59, where McLachlin C.J.C. stated, neither
level of government can enact legislation that abolishes the superior courts
or
removes part of their core or inherent jurisdiction
: at para. 30
[emphasis added].

[26]

In
MacMillan
the Court had before it the
question of whether it was within the jurisdiction of Parliament to grant
exclusive jurisdiction to youth courts (as opposed to superior trial courts)
over contempt proceedings involving a young person. Chief Justice Lamer for the
majority stated that the power [of a court] to control its process and enforce
its orders, through, in part,
punishing for contempt
, is within [the
protected inherent] jurisdiction: at para. 33 [emphasis added]. He
concluded that no aspect of the contempt power may be removed from a superior
court without infringing all those sections of our Constitution which refer to
our existing judicial system as inherited from the British, including ss. 96
to 101, s. 129, and the principle of the rule of law recognized both in
the preamble and in all our conventions of governance: at para. 41. In
determining what constituted the scope of a superior courts inherent
jurisdiction to punish for contempt, he endorsed I.H. Jacobs The Inherent
Jurisdiction of the Court (1970), 23 Current Legal Problems 23, as a starting
point for many discussions of the subject: at para. 29.

[27]

Chief Justice Lamer explained the reasoning for
such constitutional protection of a courts inherent jurisdiction to punish for
contempt as follows:

The seminal article on the core or inherent jurisdiction of
superior courts is I. H. Jacobs The Inherent Jurisdiction of the Court
(1970), 23 Current Legal Problems 23. Jacobs work is a starting point for many
discussions of the subject, figures prominently in analyses of contempt of
court, and was cited with approval by Dickson C.J. in
B.C.G.E.U. v. British
Columbia (Attorney General)
, [1988] 2 S.C.R. 214. While the particular
focus of Jacobs work is the High Court of Justice in England, he notes that [t]he
English doctrine of the inherent jurisdiction of the court is reflected in
most, if not all, other common law jurisdictions, though not so extensively in
the United States (p. 23, fn. 1).
Moreover, the English judicial
system is the historic basis of our system and is explicitly imported into the
Canadian context by the preamble of the
Constitution Act, 1867
. The superior
courts of general jurisdiction are as much the cornerstone of our judicial
system as they are of the system which is Jacobs specific referent.

Discussing the history of inherent jurisdiction, Jacob says
(at p. 25):

. . . the superior courts of common
law have exercised the power which has come to be called inherent jurisdiction
from the earliest times, and . . . the exercise of such power developed
along two paths, namely, by way of punishment for contempt of court and of its
process, and by way of regulating the practice of the court and preventing the
abuse of its process.

Regarding the basis of inherent jurisdiction, Jacob states
(at p. 27):

. . . the jurisdiction to exercise
these powers was derived, not from any statute or rule of law, but from the
very nature of the court as a superior court of law, and for this reason such
jurisdiction has been called inherent. This description has been criticised
as being metaphysical [cite omitted], but I think nevertheless that it is apt
to describe the quality of this jurisdiction. For the essential character of a
superior court of law necessarily involves that it should be invested with a
power to maintain its authority and to prevent its process being obstructed and
abused.
Such a power is intrinsic in a superior court; it is its very
life-blood, its very essence, its immanent attribute. Without such a power, the
court would have form but would lack substance. The jurisdiction which is
inherent in a superior court of law is that which enables it to fulfil itself
as a court of law
.

While inherent jurisdiction may be difficult to define, it is
of paramount importance to the existence of a superior court. The full range of
powers which comprise the inherent jurisdiction of a superior court are,
together, its essential character or immanent attribute. To remove any part
of this core emasculates the court, making it something other than a superior
court.


. . .

The core jurisdiction of the provincial superior courts
comprises those powers which are essential to the administration of justice and
the maintenance of the rule of law. It is unnecessary in this case to enumerate
the precise powers which compose inherent jurisdiction,
as the power to
punish for contempt
ex facie
is obviously within that jurisdiction
.
The power to punish for all forms of contempt is one of the defining features
of superior courts. . . . .

. . .

. . . .

The full
panoply of contempt powers is so vital to the superior court
that even
removing the jurisdiction in question here and transferring it to another court
with judges appointed pursuant to s. 96 would offend our Constitution.

[
MacMillan
at paras. 29, 30, 38, and 41. Emphasis added.]

[28]

As noted by Lamer C.J.C. in
MacMillan
at para. 29,
the English judicial system was explicitly imported into the Canadian legal
system. The
Constitution Act, 1867
provides for such, in part, in the
following language taken from the preamble:

Whereas the Provinces of Canada, Nova Scotia, and New
Brunswick have expressed their Desire to be federally united into One Dominion
under the Crown of the United Kingdom of Great Britain and Ireland, with a
Constitution
similar in Principle to that of the United Kingdom.

[Emphasis added.]

[29]

MacMillan
determined
that the
Constitution Act
,
1867
protects the entirety of the core
of a superior courts inherent jurisdiction from legislative interference. To
limit a courts powers to punish for contempt takes away the courts
jurisdiction to control its own process in circumstances in which those powers
would provide the only workable remedy. This is equivalent to the legislative
removal of jurisdiction to punish for contempt in certain circumstances that
was at issue in
MacMillan
. The Supreme Court of Canada applied
MacMillan
in this way most recently in
Trial Lawyers
, where the Court
determined that the Legislatures mandatory imposition of hearing fees
interfered with a superior courts core inherent jurisdiction to provide
access to the superior courts to persons who could not afford said hearing
fees. This was not a wholesale legislated removal of any part of the courts
inherent jurisdiction, but was rather unconstitutional legislation because it
imposed
mandatory
procedural requirements that interfered with what
would otherwise be part of a courts core inherent jurisdiction to grant
exemptions:
Trial Lawyers
at paras. 4648. This is analogous to the
case at bar, where the regulations at issue allegedly impose
mandatory
procedural requirements that interfere with what would otherwise be part of the
courts core inherent jurisdiction to punish for contempt in these
circumstances.

[30]

Jacob provides a useful analysis of the inherent jurisdiction of the
court. He emphasizes that a courts inherent jurisdiction is part of procedural
law
not
substantive law: at 24. Inherent jurisdiction must also be
distinguished from judicial discretion. These conceptsthat is, judicial
discretion and inherent jurisdictionmay overlap but are vitally distinct: at
25. He notes that the powers conferred by the Rules of Court are in addition to
and not in substitution for the powers arising from the inherent jurisdiction
of the court: at 25.

[31]

Historically, inherent jurisdiction can trace its roots to a way of
punishing an individual for contempt of court and by way of regulating the
practice of the court and preventing the abuse of its process: at 25. Jacob
notes further that the essential character of a superior court of law necessarily
involves that it should be invested with a power to maintain its authority and
to prevent its process being obstructed and abused: at 27. This power to
maintain its authority includes that power to prevent a litigant from taking
multiple or successive proceedings which are frivolous or vexatious or
oppressive as is the case here: at 43. As part of its inherent jurisdiction, a
court may compel observance of its own process. Jacob notes that these coercive
powers include either fining or imprisoning the offender and, importantly for
the purposes of this appeal, seizing his or her property: at 45.

[32]

Jacob writes that The powers of the court under its inherent
jurisdiction are complementary to its powers under the Rules of Court; one set
of powers supplements and reinforces the other: at 50. He emphasizes that the
inherent powers may fill any gaps left by the rules: at 50. Jacobs summary
provides a useful background for understanding the core of inherent
jurisdiction the Supreme Court of British Columbia inherited from the English
tradition.

1.

Cases Relied on by the Beas

[33]

In their argument that the rules are exhaustive, the Beas rely on
Evans
v. Jensen
, 2011 BCCA 279, and
Cridge v. Harper Grey
, 2005 BCCA 33,
in which this Court held that the Rules pertaining to formal settlement offers
and their implications for costs constitute a complete code permitting no
discretion to the chambers judge to relieve against a possibly unjust result of
the application of the double costs Rule (these Rules have since been amended
to include an element of discretion: see Rule 9-1(5)). I disagree that these
cases are applicable in this context.
Evans
and
Cridge
are
clearly distinguishable. First, the double costs Rule and its incorporation of
exigent settlement offers is a statutorily created regime that is not traced to
a courts inherent jurisdiction. Second, judicial discretion, as was emphasized
by Jacob, is distinguishable from the courts inherent jurisdiction to punish
for contempt and may be limited by statute. The fact that judicial discretion to
award costs may be limited by statute is not the same as, and must be
distinguished from, the core of a superior courts inherent jurisdiction as
discussed in
MacMillan
.

[34]

The Beas also cite
Baxter Student Housing Ltd. v. College Housing
Co-operative Ltd.
, [1976] 2 S.C.R. 475, for the proposition that a court
may not rely on its inherent jurisdiction where doing so conflicts with a
statutory provision. Again, I do not agree that this case is applicable.

[35]

In
Baxter
, Dickson J. cited
Montreal Trust Company v.
Churchill Forest Industries
, [1971] 4 W.W.R. 542 at 547 (Man C.A.), in
which Freedman C.J.M. said:

Inherent jurisdiction cannot, of
course, be exercised so as to conflict with a statute or Rule. Moreover,
because it is a special and extraordinary power, it should be exercised only
sparingly and in a clear case.

In my view,
Baxter
and
Montreal Trust
do
not conflict with and are distinguishable from the Supreme Court of Canadas
reasons for judgment in
MacMillan
, discussed above.

[36]

First,
Montreal Trust
dealt with an exercise of a courts
inherent jurisdiction to fill gaps in statutorily granted powers. In that case,
the Manitoba Court of Appeal determined that a superior court had the inherent
jurisdiction to grant a receiver powers that were not enumerated by statute,
but were necessary in the circumstances in order to effect the powers that
were
enumerated by statute. It was in this context that the court stated such
inherent jurisdiction could not be used in contravention of the very statute
the court was trying to fill gaps in. The court expressly distinguished this
form of inherent jurisdiction from a courts inherent jurisdiction to prevent
an abuse of its process or punish for contempt:
Montreal Trust
at 547.

[37]

In
Baxter
, the plaintiff was a university housing co-op involved
in a dispute with a construction and building management company (Baxter
Housing) over which party should bear the cost of fixing a moisture problem
that had accumulated in student residence buildings. Baxter Housing had substantially
completed construction on the buildings the previous year, and the plaintiff
was alleging the moisture problems were due to a breach of contract.

[38]

There was some temporal urgency in resolving the situation, as the
plaintiff did not have access to the funds required to pay for the repairs, and
there was some suggestion that a failure to engage in needed repairs
immediately might produce substantial damages. There were funds in a holdback
account from the original contract between the plaintiff and Baxter Housing,
and the plaintiff sought an order from the court appointing a receiver to use
the funds to make the necessary repairs while the parties litigated who would
bear the eventual responsibility. Importantly, Baxter Housing had previously
placed a lien on the property pursuant to the previous construction contract.
The Manitoba court appointed the requested receiver, and the appointment was
upheld on appeal.

[39]

The Supreme Court of Canada (see para. 34 above), allowed the
appeal and overturned the order appointing a receiver. In doing so, Dickson J.
cited
Montreal Trust
for the proposition that inherent jurisdiction
cannot, of course, be exercised so as to conflict with a statute or Rule. In
Baxter
,
the appointment of the receiver was in contravention of s. 11 of the
Mechanics
Lien Act
, by which Baxter Housings registered lien had priority over any
receivership order.

[40]

In my opinion, when Dickson J. quotes
Churchill Forest
in
Baxter
for the proposition that inherent jurisdiction cannot, of course, be
exercised so as to conflict with a statute or Rule, it was in the context of filling
gaps in an express legislated power to appoint a receiver. Justice Dickson was
saying that a court could not bolster the powers of a receiver through inherent
jurisdiction, as happened in
Montreal Trust
, when such expanded powers
would result in a direct contravention of statute.
Baxter
did not
involve a procedural dispute over whether the authority to appoint a receiver
pursuant to statute or inherent jurisdiction existed, but rather a dispute over
the use of the funds in the holdback account. Granting a receiver access to the
funds in this way was in express contravention of the
Mechanics Lien Act
,
which was why the funds were being held in the holdback account in the first
place.

[41]

Justice Dicksons comments in
Baxter
are therefore similar to
those of Freedman C.J.M in
Montreal Trust
in that they stand for the
proposition that when a court is using its inherent jurisdiction in order to
further

the purposes of certain statutory powers (gap filling, so to speak), the
inherent jurisdiction cannot then be used in contravention of the express
language of that statute. In my opinion, this principle has nothing to do with
a courts inherent power to punish for contempt, and Baxter is distinguishable
from this appeal.

2.  Conclusion on Whether Rule
22-8 Can Be Read as an Exhaustive Codification

[42]

In summary, in consideration of the statements in
MacMillan
quoted
above, I conclude that the legislatures rule-making power cannot detract from
or limit the courts inherent jurisdiction to punish for contempt. Rule 22-8
cannot therefore be read as an exhaustive codification and limitation of this
power, but must instead be read as complimentary of a superior courts inherent
jurisdiction in order to be constitutionally compliant.

[43]

It remains to be examined whether that protected inherent
jurisdiction includes the power to seize and sell the contemnors property. As
mentioned, Jacob is of the view that a courts inherent jurisdiction to punish
for contempt does include the power to seize a contemnors property.

[44]

In the discussion below, I examine the
historical development of the inherent jurisdiction power to seize property in
England. I then turn to the application of that English law to British Columbia.
In doing so I will also consider the
historical development of the British
Columbia
Supreme Court Civil Rules
.

B.

Inherent Jurisdiction to Seize Property as a
Remedy for Contempt

[45]

I begin by noting two relatively modern English cases in which courts in
England used the inherent jurisdiction of the court to seize, and in one case
sell, the contemnors property as a coercive measure. While these English
decisions are not binding on the courts of this Province, the inherent jurisdiction
of the Supreme Court of British Columbia shares an origin with the inherent
jurisdiction of English courts, and the scope of the English jurisdiction may
assist in determining the scope of inherent jurisdiction in this Province.

[46]

Both of these cases deal with an order for sequestration. Sequestration,
as defined in Blacks Law Dictionary, is a judicial writ commanding the
sheriff or other officer to seize the goods of a person named in the writ. As
a remedy for contempt of court, sequestration developed in England to include
the sale of property after it had been seized by the officers. The details and
history of sequestration will be discussed in further detail below.

[47]

In
Webster v. Southwark London Borough Council
, [1983] 1 Q.B.
698, the plaintiff was a politician who had been refused the use of a meeting
hall to hold a political meeting in contravention of a statute. The Queens
Bench court made a declaratory order that the plaintiff be permitted to use the
meeting hall. The declaratory order was said to have been made because, as the
defendant was a responsible authority, it was thought inconceivable that a
declaratory order would not result in the defendant complying: at 708. However,
even after the declaratory order was made, the defendant would not permit the
plaintiff to use the hall.

[48]

The plaintiff returned to court, this time seeking an order of
sequestration granting him the use of the property. The court determined that
sequestration was historically only issued upon a finding of contempt. In this
case, because the courts order was declaratory, the defendant could not be
found in contempt for failing to comply with it: at 706. However, Forbes J.
went on to find that the use of a declaratory order, rather than an injunctive
one was primarily due to the fact that the court was misled into thinking that
the defendant would comply with a declaratory order: at 708. He said it would
create an injustice if the plaintiff were forced to acquire a new, injunctive
order and wait for the defendant to breach that order, because temporal
exigencies required the political meeting to be held immediately. Importantly,
Forbes J. determined that the court had, regardless of the language of the
rules or tradition, an inherent jurisdiction to enforce its orders where
justice demands that those orders should be enforced: at 70910.

[49]

Despite the fact the defendant was not technically in contempt, Forbes
J. issued an order of sequestration to force the defendant to comply with the
courts previous order that the plaintiff was legally allowed the use of the
meeting hall. Although much of this judgment concerned the question of whether
a party could be in contempt of a declaratory order (a point not pertinent to
this case), there was no question about the courts inherent jurisdiction to
use its sequestration powers to seize the hall as a coercive measure to remedy
contempt of court.

[50]

The second modern English case to which I shall refer is
Mir v. Mir
,
[1992] 1 All E.R. 765, in which the court ordered that property be seized as a
remedy for contempt concerning a child custody order. In
Mir
, the
defendant had left England for Pakistan with his ward, in contravention of the
courts custody order. His former spouse had him declared in contempt of court
and obtained an order for sequestration of his real property with leave to let
it and use it as security for a loan. When the sequestration failed to coerce
the defendant to return to England and discharge the contempt, the former
spouse sought a variation of the order permitting her to sell the real property
and use the proceeds to fund further litigation in Pakistan. In considering the
availability of such a remedy, Baker J. reviewed the case law in England, which
held provided an order for sequestration following a finding of contempt could
not be used to sell real property, as opposed to personal property. He
determined those historical cases were predicated on the fact that when they
were decided there was no practical way for a court to effect a legitimate
transfer of title without the compliance of the owner.

[51]

In considering the current state of English law regarding the writ of
sequestration, Baker J. referred to a similar case he had decided,
Richardson
v. Richardson
,

[1989] 3 All E.R. 779 at 783, where he had observed:

Sequestration is an ancient tool
of the law used as a last resort for enforcing orders of the court. Ancient
tools need if possible to be adapted for use in modern conditions. In my
judgment where otherwise the whole purpose of the sequestration would be
defeated, the court is not constrained by ancient practice . . .

[52]

Baker J. concluded that he had the power to order the real property to
be sold as a remedy for contempt and its proceeds provided to the opposing
party. In doing so, he said, [i]t appears that the underlying reason why the
courts in earlier times would not make an order for sale of freehold property
was the absence of any procedure whereby good title could be given to the
purchaser. It has been pointed out to me that difficulty no longer exists today:
at 76768. In contrast to the historical powers available to the courts, the
Senior
Courts Act 1981
, c. 54, s. 39,

gave the High Court of
England and Wales the power to order a conveyance be executed by a person
nominated by the court. In using the inherent jurisdiction to punish for
contempt, Baker J. stated the court does everything it can to secure
compliance of its orders: at 767.

[53]

Mir v. Mir
was cited with approval as setting out the scope of
sequestration orders in contempt proceedings in England in
Re HM (A
Vulnerable Adult: Abduction
), 2010 EWHC 870. Thus, the English High Court
has interpreted its contempt powers as permitting a judge to order a contemnors
real property be sold, and the proceeds distributed to the opposing party, as a
remedy for contempt.

[54]

I shall now very briefly discuss the evolution of the ancient writ of
sequestration to the result described in
Mir
and other modern English
cases to examine how the common law in British Columbia might be said to have similar,
protected inherent powers.

1.

The Historical Use of Sequestration as a Remedy for Contempt

[55]

The power to seize and sell property as indirect
coercion over parties subject to the courts jurisdiction arose in the English
chancery courts: see Charles Andrew Huston,
The Enforcement of Decrees in
Equity
, (Cambridge, Mass: Harvard University Press, 1915) at 7186. This
power was initially often used to compel a debtor to pay his debts. Huston,
translating William Wests
Symboleography
, published in 1611, describes
the indirect coercion powers available to chancery courts in the late sixteenth
century:

If, West tells us, the decree be in a
suit for land and the defendant abide by all the said process of contempt and
still detain the possession of the land from the plaintiff contrary to the said
decree: then upon a motion thereof made in the court a commission is usually
granted to the sheriff and some others near adjoining to the lands in question
to put the plaintiff in possession, and to keep him in possession according to
the said decree.

[Huston at 78]

[56]

According to Huston, this practice later evolved
into the writ of assistance, which would be used in a suit for the possession
of land to put the successful party in possession of the disputed land and maintain
him there: Huston at 80. Huston goes on to say [w]hile [the writs]
primary
purpose is an indirect compulsion of the defendant to make him perform the
decree, it provide[d] at the same time for a certain measure of specific
execution of the decree
: Huston at 80 [emphasis added].

[57]

The writ of assistance later evolved, in part,
into the writ of sequestration, which involved the direction of commissioners
to sequester the personal and real property of the defendant. Personal property
of the contemnor could be sold, and real property could be put to use in
benefit of the opposing party: see e.g.
Pope v. Ward
(1785), 29 E.R.
1125. Importantly, despite the writs corollary effect of sometimes providing
the substantive remedy sought by a party seeking the use of disputed land in
the first place, sequestration was broadly used as a last resort to cure or end
any continued contempt of court, including refusals to obey court orders
pertaining to procedure: see e.g.
Trigg v. Trigg
(1759), 21 E.R. 294
(where the court ordered sequestration of a contemnors assets in mesne process
for the refusal to comply with what were, essentially, disclosure
requirements).

[58]

The importance of the sequestration power to the
courts of chancery was emphasized in
Hide v. Pettit
(1667), 22 E.R. 709,
where the Lord Keeper, in defending sequestration from the argument that it was
beyond the powers of the chancery courts and destructive to trade and commerce
agreed that, [i]f you should take away Sequestrations, the Justice of the
Court would be elusory and it was not unreasonable that so great a court as
this should have an effectual means of bringing suitors to the fruit of their
suit, which without a sequestration cannot be done: at 710. He declared that
sequestration was a necessary process of the chancery courts in contempt
proceedings. However, it should be noted that this necessity of sequestration
as a remedy for contempt was predicated upon a comparative lack of execution
writs available to the chancery courts compared to the common law courts (such
as, for example, a writ of
fieri facias
).

[59]

The importance of maintaining a broad view of
these sequestration powers to coerce contemnors was also emphasized in
Guavers
v. Fountain
(1687), 22 E.R. 1083, where the court said, in reference to the
writ of sequestration in contempt proceedings, the jurisdiction of the court
of equity would be to little purpose, if the court had not sufficient authority
to see their decrees executed: at 1083.

[60]

Sequestration remained an important remedy
available to courts of equity to punish for contempt at the time of
Confederation and British Columbias entrance into Canada, in 1867 and 1871
respectively. In 1889, it was said in
Pratt v. Inman
, 43 Ch. D. 175,
that, sequestration unquestionably was
and is
a process of contempt:
at 179 [emphasis added].

[61]

Therefore, in 1871, when British Columbia joined
confederation, a court of equity, which included a superior court of British
Columbia, had the inherent jurisdiction to punish for contempt using
sequestration of the contemnors personal and real property. This core aspect
of the courts inherent jurisdiction was thereafter protected from legislative
removal by all the sections of the
Constitution Act, 1867
that enshrined
a judicial system similar to that of England, including ss. 96101 and the
preamble: see
MacMillan
at para. 29. Thus, sequestration found its
way into British Columbia law.

[62]

In 1879, eight years after British Columbia joined the Canadian Confederation,
England passed the
Judicature Act, 1879
, which granted the authority to create
Civil Rules for the recently merged common law and equity courts. The newly
drafted English Civil Rules were copied almost entirely for use in British
Columbia as the
Supreme Court Rules
(1880). Prior to 1880, the Supreme
Court of British Columbia drafted its own rules for internal use: see Thea
Schmidt and Susan Caird, B.C. Rules of Court (2002) 27:5 Canadian Law
Libraries 218 at 219.

[63]

The 1880 rules contained various references to the use of sequestration
as a remedy for both contempt (O. 47, r. 1, M.R. 345) and execution (e.g., O.
42, r. 2, M.R. 308). For example, Marginal Rule 345 read as follows:

Where any person is by any
judgment directed to pay money into Court or to do any other act in a limited
time, and after due service of such judgment refuses or neglects to obey the
same according to the exigency thereof, the person prosecuting such judgment or
order shall, at the expiration of the time limited for the performance thereof,
be entitled, without obtaining any order for that purpose, to issue a writ of
sequestration against the estate and effects of such disobedient person. Such
writ shall have the like effect as a writ of sequestration had heretofore had,
and the proceeds of such sequestration may be dealt with as the proceeds of
writs of sequestration have heretofore been dealt with.

[64]

Essentially equivalent language from the corresponding English rule,
from which Marginal Rule 345 was derived, was applied by the English Court of
Kings Bench in 1913 in the case of
R. v. Wigand
, [1911-13] All E.R.
Rep. 820. In
Wigand
,

a husband in a custody dispute was ordered
to deliver a child to its mother and ordered not to remove the child from the
jurisdiction. The father did not comply with the order and took the child to
Germany. The Kings Bench Court found him in contempt for failing to comply
with the order and issued a sequestration pursuant to Order 43, r. 6 of the
Rules
of the Supreme Court
. Avory J., in concurring with the judgment, emphasized
that it was for contempt in disobeying the order of the court that the
sequestration was being issued: at 822. Thus, the English origins of Marginal
Rule 345 saw the remedy in this context as one rooted in contempt.

[65]

It should be noted that there were no rules expressly pertaining to
contempt of court in the
B.C. Supreme Court Rules
(1880). This suggests
that many contempt proceedings were largely intended to be brought pursuant to
the courts inherent jurisdiction at the time.

[66]

Marginal Rule 345 was removed from the B.C. Rules in 1890, when it
appears to have been effectively replaced with the similarly drafted Marginal
Rule 492. However, in the revised 1890 rules, Marginal Rule 492 was included in
an Order devoted to writs of
fieri facias
and methods of execution (that
being Order 43). In essence, this revision captures the apparent historical
evolution of the writ of sequestration. When it developed in the courts of
chancery, sequestration as a remedy for contempt also doubled as a method of
execution, since chancery courts did not have access to what are now the
traditional writs of execution. When the English courts of common law and
chancery were united, sequestration became an order with two possible
interpretations; it could be seen as both a remedy for contempt, and a method
of execution similar to
fieri facias
. When the rules developed in
British Columbia, these interpretations split into separate paths.

[67]

The contempt path of the development of sequestration was evidenced
through the inclusion of Order 42, Rule 31 (Marginal Rule 609), which was added
to the
Supreme Court Rules
in 1906. Marginal Rule 609 read:

Any judgment or order
against a corporation
wilfully
disobeyed may, by leave of the Court or a Judge, be enforced by sequestration
against the corporate property, or by attachment against the directors or other
officers thereof, or by writ of sequestration against their property.

[Emphasis
added.]

[68]

Subsequent cases in British Columbia considered this rule allowing for sequestration
to be a remedy applicable in the context of contempt: see e.g.
Re
Amalgamated Transit Union and Ken Mar Handi Cabs Ltd
. (1971), 23 D.L.R.
(3d) 220 (B.C.S.C.);
Re Arpeg Holdings Ltd.
(1968), 64 W.W.R. 93
(B.C.S.C.);
Skeena Kraft Ltd. v. Pulp & Paper Workers of Canada Local No. 4
(1970), 17 D.L.R. (3d) 17 (B.C.S.C.); and
S.G. & S. Investments
(1972) Ltd. v. Golden Boy Foods, Inc.
(1991), 84 D.L.R. (4th) 751 (B.C.C.A.,
where this Court acknowledged that historically in British Columbia [t]he
ultimate weapons for the enforcement for a decree of specific performance were
contempt proceedings followed by a writ of sequestration). In
Skeena
,
for example, a case involving a union (the Guild) charged with contempt for
illegal picketing, Wilson J. noted that Dohm J. had, in an earlier ruling in a
related proceeding made an order of sequestration of the assets of the Guild
for contempt of Court:
Skeena
at 19.

[69]

In
Twinriver Timber Ltd. v. International Woodworkers Local I-71
(1970),
[1971] 1 W.W.R. 277, affd (1970), 14 D.L.R. (3d) 704, Aikins J. interpreted
Marginal Rule 609 as being expressly limited to use as a remedy for contempt
against corporations. Relying on Marginal Rule 609, Aikins J. was asked to
enforce by sequestration an order against the assets of a union as punishment
for the unions contempt. Aikins J. determined that as Marginal Rule 609 was
expressly limited to remedies against corporations, he could not make the order
sought because the union was not a corporation. He rejected the argument that
he had inherent jurisdiction to make the order sought holding:

Assuming that I am correct in the conclusion that I have
stated that sequestration lies only where authorized by Rule so that
sequestration is not available to the plaintiff in this application because the
matter is not within M.R. 609, I should not, I think, usurp a Rule-making or
legislative function, and grant leave for sequestration simply because I might
think, and I express no opinion on the matter one way or the other, that the
law should be that wilful disobedience of an order of the Court by persons
other than a corporation should in the discretion of the Court, be enforceable
by sequestration, which after all, is a special and perhaps rather drastic
means of enforcing an order or judgment. So, I conclude, assuming that the
Court has as contended an inherent jurisdiction to enforce its orders, such as
the order in the present case, that that inherent jurisdiction to enforce may
not be exercised by sequestration because, put shortly, I think to hold
otherwise would be to act outside the Rules and in effect usurp the Rule-making
function.

[At 28384]

[70]

The reasoning of Aikins J. is inconsistent with the reasoning in
MacMillan
.

Therefore, in my view,
Twinriver
should be considered overruled by
MacMillan
.
It will be clear from the preceding discussion that I am of the view that a
superior court has the protected inherent jurisdiction to punish for contempt,
including seizing assets, regardless of the legal character of the entity in
contempt. It therefore should have been acknowledged as an available remedy
against non-corporations in
Twinriver.

[71]

In 1976, Marginal Rule 609 was replaced with Rule 56(2), which read:

An order against a corporation wilfully disobeyed may be
enforced by one or more of the following:

a) imposition of a fine upon the corporation,

b) committal of one or more directors or officers of the
corporation, and

c) imposition of a fine upon one
or more directors or officers of the corporation.

[72]

Equivalent language remains in the Rules today. There are therefore no
remaining references to sequestration interpreted as a remedy for contempt in
the
Supreme Court Civil Rules
.

[73]

In summary, British Columbias
Supreme Court Rules
contained,
between 18801890, and 19061976, provisions for the use of sequestration in
certain circumstances that were interpreted as a remedy for contempt. This
review of the history of the rules is intended to show that for many years
following Confederation, B.C. courts continued to acknowledge sequestration as
a remedy for contempt, and it is only in more recent history that this aspect
of the contempt remedy has essentially disappeared.

[74]

However, in my opinion, the inclusion or absence of rules pertaining to
the use of sequestration is not determinative of whether such an order is
within a courts inherent jurisdiction as a remedy for contempt. English courts
have not considered their inherent jurisdiction to issue a writ of
sequestration as limited by the language of court rules when the interests of
justice demanded it; rather, a superior court has an inherent jurisdiction to
enforce its orders where justice demands that those orders should be enforced:
Webster
at 709. This principle is persuasive.
A fortiori
, a
British Columbia superior court must have a similar scope of inherent
jurisdiction because any legislated limitation imposed on this jurisdiction
would be unconstitutional for the reasons discussed above.

[75]

I pause here to note that the preceding discussion has largely revolved
around the remedy of sequestration, which was not specifically ordered by the
chambers judge in the case at bar. In my opinion, the order of Grauer J. was,
in effect, equivalent to an order for sequestration by the Owners along with a
power to sell the property. I do not think the specific language used was determinative
if the order was, in substance, an available remedy.

[76]

In conclusion, it is my opinion that an order of sequestration, or its
equivalent power to seize and sell property, should be seen as a protected part
of the core of the British Columbia Superior Courts inherent jurisdiction,
which cannot be legislatively limited without breaching the
Constitution Act
,
1867.
Therefore, in my opinion, the order made by the chambers judge in the
case at bar was within the courts jurisdiction.

[77]

That leaves the question of whether the order was necessary to avoid an
injustice or embarrassment of the court, such as further cost for the innocent
defendants from a continued abuse of the courts process by the Beas.

[78]

The chambers judge determined that no alternative would be effective,
and a failure of the court to act would not only allow an injustice, but would perpetuate
that injustice through the continued abuse of the courts process and the consequent
expense suffered by the Owners.

C.

Was the order for sale an appropriate use of the contempt power in this
case?

[79]

In
United Nurses of Alberta v. Alberta (Attorney General)
, [1992]
1 S.C.R. 901, the Court discussed the nature of a trial courts inherent
jurisdiction to exercise its contempt power. The issue concerned the liability
of the union, an unincorporated association, to be punished for criminal
contempt. Although the case at bar concerns only civil contempt, nevertheless,
the majority judgment of McLachlin J. (as she then was) provides some helpful
analysis of the source of the courts jurisdiction in which she described the
nature of contempt as emphasizing that the object of orders for civil contempt
is compliance not punishment:

Both civil and criminal contempt of court rest on the power
of the court to uphold its dignity and process. The rule of law is at the heart
of our society; without it there can be neither peace, nor order nor good
government. The rule of law is directly dependent on the ability of the courts
to enforce their process and maintain their dignity and respect. To maintain
their process and respect, courts since the 12th century have exercised the
power to punish for contempt of court.

[At
931]

[80]

In his reasons in
United Nurses
, (dissenting but on a different
point), Sopinka J. contrasted the nature of civil contempt as opposed to
criminal contempt. He emphasized that punishment for contempt is aimed at
securing compliance:

The criminal law of contempt must
be distinguished from civil contempt. The purpose of criminal contempt was and
is punishment for conduct calculated to bring the administration of justice by
the courts into disrepute.
On the other hand, the purpose of civil contempt
is to secure compliance with the process of a tribunal including, but not
limited to, the process of a court. . . .

. . .

. . . . In order to secure
compliance in a proceeding for civil contempt, a court may impose a fine or
other penalty which will be exacted in the absence of compliance.
However,
the object is always compliance and not punishment.

[At
94344. Emphasis added.]

[81]

In
Larkin v. Glase
, 2009 BCCA 321, this court emphasized that
civil contempt is not a private matter between the contemnor and a party. Mr. Justice
Chiasson, writing for this Court, stated:

[8]        Contempt of court is an issue between a party and
the court. It is not concerned with the merits of the dispute between parties
to litigation (
Frith v. Frith,
2008 BCCA 2 at para. 36, 47 R.F.L.
(6th) 286). Although the issue is pursued by the respondent, the courts
determination that Mr. Glase is in contempt only indirectly affects her
interests. As was stated in
Ontario (Attorney General) v. Paul Magder Furs
Ltd.
(1992), 10 O.R. (3d) 46 at 53, 94 D.L.R. (4th) 748 (C.A.), a finding
of contempt of court transcends the dispute between the parties; it is one
that strikes at the very heart of the administration of justice . . ..

[9]

A courts
ability to punish for contempt is at the core of its jurisdiction (
MacMillan
Bloedel Ltd. v. Simpson,
[1995] 4 S.C.R. 725, 130 D.L.R. (4th) 385). It is
a jurisdiction that must be exercised
strictissimi juris
, that is, the
court must ensure no one is found to have transgressed without a full
consideration of all the relevant information, including any explanations for
the conduct of persons accused of violating court orders (
Frith; Claggett v.
Claggett
(1945), 61 B.C.R. 238 (C.A.)).

[82]

What I take from these authorities is that the focus of the contempt
power is both a coercive and punitive power meant to be used as a means to
address the conduct in breach of a court order. The power is not to be used as
a means of providing a civil remedy to the underlying dispute.

[83]

Therefore, determining if the appealed order was an appropriate remedy
for contempt in this case involves two main considerations: First, was the
remedys primary purpose the coercion of the contemnor and the cessation of the
contemptuous behaviour? Second, was the remedy necessary and was a less drastic
remedy unavailable?

[84]

The order under appeal provides for the sale of Mrs. Beas Strata Unit.
As the chambers judge said, it is Mrs. Beas ownership interest that fuels
her ability to frustrate and abuse the courts process and afflict her fellow
owners:
Bea
at para. 66. The chambers judge considered punishment
by fine or imprisonment would not secure the necessary compliance with his order
not to file at the registry any further applications or other documents. At para. 49
of his reasons for judgment, the chambers judge wrote:

. . . I am limited to imprisoning
Mrs. Bea since a fine clearly is impracticable; she cannot pay it. Yet
that would prevent her from earning her living without any prospect of changing
her behaviour. If the former, then I must still decide whether the sanction
sought by the respondent is appropriate in the circumstances.

[85]

The chambers judge concluded that the sale of the Strata Unit was the
only appropriate sanction:

I conclude from this review that in the very rare
circumstance where the traditional punishments of fine or imprisonment offer no
reasonable prospect of bringing a halt to the contemnors abuse of the courts
process, of ending their affront to the court, and preventing the injustice
that continues to flow from their behaviour, the court is not to be rendered
feckless by the
Supreme Court Civil Rules
. They must be taken to be
procedural. Other penalties may be considered. See also
Canada Post Corp v
CUPW
(1991), 61 BCLR (2d) 120 (SC);
Westfair Foods Ltd v Naherny
(1990), 63 Man R (2d) 238 (CA); and
Health Care Corp of St Johns v
Newfoundland and Labrador Assn of Public and Private Employees
(2000),196
Nfld & PEIR 275 (SCTD).

. . .

Normally, a persons property rights would be irrelevant to
the question of an appropriate sanction for contempt of court. This case is not
normal. Here,
the property interest in question is precisely what fuels the
Beas contemptuous acts and gives rise to the injustice that results. I
conclude that a forced sale is the only appropriate and meaningful sanction for
Mrs. Beas contempt of court
. In the unique circumstances of this
case, it is a proportional response to the manner in which Mrs. Bea has
used her ownership interest to frustrate and abuse the courts process, and
afflict her fellow owners.

As I have noted more than once, this represents a departure
from precedent insofar as punishment for contempt of court is concerned. It is,
however, as I see it, an appropriate evolution that is in line with sanctions
that have been imposed in analogous circumstances for similarly egregious
behaviour.

In this case, it appears certain that Mrs. Bea is
destined to lose her property in any event through the enforcement of the many
judgments for costs registered against it. The question is whether the owners
should be put through the additional expense and frustration of proceeding in
that way in the face of the Beas unremitting pattern of abuse of the court
process, and the ever mounting costs of dealing with them. I think not. The
time to end their abuse of the courts process is now.

[At paras. 54,
6668. Emphasis added.]

[86]

This Court was informed by counsel during oral arguments that the strata
LMS 2138 is a smallish strata consisting of about 35 units occupied by about 70
individuals. The units are modest and the owners as a group are (according to
counsel) of modest means. Apart from the first petition challenging the stratas
ability to modify the parking by-law, all the other proceedings could fairly be
described as an abuse of the courts process. The various orders of costs made
against the Beas have been registered as encumbrances against the title to the Strata
Unit, although we are told they will not come close to fully compensating the Owners
for their own solicitors fees.

[87]

We are told that separate proceedings are underway to execute against
the title of the Strata Unit to realize on the costs judgments against Mrs. Bea,
although Mrs. Beas counsel advises the court that she expects to
re-finance the property to satisfy these judgments. The sale of the unit would
efficiently effect execution of the judgments registered against title;
however, this should not be the motivation for crafting such an order as a
remedy for contempt of court. Any remedy for civil contempt must be selected
for coercive purposes to put an end to the contempt. In the context of a remedy
as drastic as a forced sale of property, the judge must have confidence that no
less drastic alternative is available.

[88]

Mrs. Bea has shown a contemptuous disregard for court orders both
by her own conduct and the conduct she authorized Mr. Bea to pursue. The
history of this litigation illustrates that she is unlikely to obey orders
restraining future vexatious filings. Imprisonment is an available punishment,
but it is time limited and I agree

with the chambers judge, unlikely to effect compliance. A
fine is unlikely to be paid voluntarily.

[89]

With this in mind, in my opinion, while the forced sale of the property
may have salutary benefits for the Owners beyond the cessation of the
contemptuous behaviour, the primary effect would be to remove the Beas
connection to the Owners and the Strata Council against which the Beas have
developed such a destructive animus. As the chambers judge found, it is Mrs. Beas
continued ownership of the Strata Unit that fuels her vexatious court
applications. He was of the view that forcing a sale was the only way to finally
end these vexatious proceedings. The chambers judges discretionary decision to
grant the order deserves deference in the circumstances, and it cannot be shown
to be inappropriate in this case. I do not see any error in his conclusion.

[90]

As I have already discussed, courts must focus clearly on the question
of compliance when crafting a remedy for contempt. The protected core of a
superior courts 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. While the powers of a superior court
to punish for contempt are no doubt limited, as I have shown in these reasons,
they include the power to order a forced sale of property when the
circumstances demand it.

IV.

Conclusion

[91]

I see no error in the judges decision that sale of the Strata Unit is
the only remedy that would ensure compliance with the previous orders
prohibiting the Beas from bringing further proceedings.

[92]

I would dismiss the appeal.

The Honourable Madam Justice Garson

I agree:

The Honourable Madam Justice
MacKenzie

Reasons
for Judgment of the Honourable Mr. Justice Goepel:

I.
Introduction

[93]

I have had the privilege of reading, in draft form, the reasons of Madam
Justice Garson. I have reached, however, a different conclusion on the
authority of the chambers judge to order the sale of Mrs. Beas strata
unit. For the reasons that follow, I am of the opinion that the sale of Mrs. Beas
strata unit was not a remedy for contempt of court that was available to the chambers
judge. I would allow the appeal and refer the matter back to the lower court to
impose a sanction in accordance with R. 22-8 of the
Supreme Court Civil
Rules
(the 
Rules
).

II.
Background

[94]

The background of the dispute between Mrs. Bea and the Respondents
(the Strata) has been set out in the reasons of Madam Justice Garson and in
those of the chambers judge. I need not refer to them further.

[95]

The genesis of the present proceeding is an application brought by the
Strata on December 19, 2013. The Strata sought the following orders:

1.

The
Respondent seeks the Petitioner and Mrs. Huei-Chi Yang Bea be found in
contempt of court, and fined $10,000 or be committed to a term of imprisonment
or both. [Rule 22-8(1)]

2.

Further,
that a warrant issue for the arrest of Mrs. Huei-Chi Yang Bea, the owner
and real litigant in these proceedings if any fines ordered are not paid on
time. [Rule 22-8(5)]

3.

In the
alternative, an order pursuant to the inherent jurisdiction of the court, and /
or s.173 of the
Strata Property Act,
prohibiting the Beas from harassing
the Owners, Strata Plan LMS 2138 and causing a nuisance for all the other
owners.

4.

An order
providing vacant possession of the Beas home; legally described as Strata Lot
1, District Lot 289, Group 1, New Westminster District Strata Plan LMS 2138
(the Unit).

5.

An order
for conduct of sale of the Unit.

6.

An order
for the assistance of the RCMP or any other peace officer to enforce the orders
for vacant possession and conduct of sale.

7.

Special
costs payable by Mrs. Huei-Chi Yang Bea.

8.

Punitive
costs payable by Mrs. Huei-Chi Yang Bea.

[96]

The initial contempt proceedings took place before Madam Justice
Koenigsberg. She found both Mr. and Mrs. Bea in contempt of court and
fined them $10,000. She further ordered, as requested in paragraph 2 of the
notice of motion, that a warrant be issued for Mrs. Bea if the fines were
not paid on time.

[97]

When the fines were not paid, Mrs. Bea was brought before the
chambers judge on February 17, 2014. An issue then arose as to whether Mrs. Bea
had been properly served with the original contempt applications. The chambers
judge was not satisfied that she had been served and vacated the order finding Mrs. Bea
in contempt. The chambers judge conducted a new hearing.

[98]

At the new hearing, the chambers judge found Mrs. Bea guilty of
contempt. Having made that finding, the chambers judge then considered the
matter of the appropriate sanction. The Strata urged the judge to order the
sale of Mrs. Beas strata unit. He agreed. While acknowledging that he was
not aware of any case in which a court had seen fit to sell a persons property
to remedy contempt of court, he found that he had such a power under the
courts inherent jurisdiction. He further concluded that, in the circumstances
of this case, it was appropriate that he order a sale. He awarded the Strata
special costs of the contempt proceedings. He assessed those costs at $17,000
which were a little less than 90% of actual costs.

III.
Issue On Appeal

[99]

The finding of contempt was not challenged on the appeal. What is at
issue, instead, is whether the chambers judge had the authority to order, as a
remedy for contempt, the sale of Mrs. Beas residence. Mrs. Bea
submits that the judge was limited to the remedies set out R. 22-8 of the
Rules.

[100]

The question for determination on this appeal is whether the judge,
pursuant to his inherent jurisdiction, could order the sale of the strata unit
notwithstanding the provision in R. 22-8 that mandates that the Court must
punish contempt by an order of committal or by the imposition of a fine. The
relevant provisions are:

Power of court to punish

(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.

Corporation in contempt

(2)        If a corporation wilfully disobeys an order
against the corporation, the order may be enforced by one or more of the
following:

(a)        imposition of a fine on
the corporation;

(b)        committal
of one or more directors or officers of the corporation;

(c)        imposition
of a fine on one or more directors or officers of the corporation.

Security

(3)        Instead of or in addition to making an order of
committal or imposing a fine, the court may order a person to give security for
the person's good behaviour.



Suspension of punishment

(15)      The court at any time
may direct that the punishment for contempt be suspended for the period or on
the terms or conditions the court may specify.

IV.
Limits On Inherent
Jurisdiction

[101]

Superior
courts possess inherent jurisdiction to ensure that they can function as courts
of law and fulfil their mandate to administer justice:
R. v. Cunningham
,
2010 SCC 10 at para. 18. The seminal article on the inherent jurisdiction
of superior courts is I.H. Jacob The Inherent Jurisdiction of the Court
(1970), 23 Current Legal Problems 23. As noted by Madam Justice Garson, the
article provides a useful analysis of the scope of the inherent jurisdiction of
the courts.

[102]

The
courts inherit jurisdiction is not, however, unlimited. As noted by Jacob
himself at 24 the court may exercise its inherent jurisdiction even in respect
to matters which are regulated by statue or by rule of court,
so long as it
can do so without contravening any statutory provision.
 [Emphasis added.]

[103]

This fundamental limit on the exercise of inherit jurisdiction has long
been recognized. In
Montreal Trust Co. v. Churchill Forest Industries
(Manitoba) Ltd.
, [1971] 4 W.W.R. 542 (Man. C.A.) Chief Justice Freedman,
after considering the broad scope of inherent jurisdiction, cautioned at 547:

Inherent jurisdiction cannot, of course, be exercised so
as to conflict with a statute or Rule
. Moreover, because it is a special
and extraordinary power, it should be exercised only sparingly and in a clear
case.

[Emphasis added.]

[104]

Justice
Dickson J. (as he then was), speaking for the Court in
Baxter Student
Housing Ltd. v. College Housing Co-operative Ltd.
, [1976] 2 S.C.R. 475,
specifically approved the analysis of Freedman C.J.M. in
Montreal Trust.
In my view, the comments in
Montreal Trust
and in
Baxter
are of
general application; they are not limited to the specific facts or the issues
in either case.

[105]

In her reasons in
MacMillan Bloedel Ltd. v. Simpson
, [1995] 4
S.C. 725,
McLachlin J., (as she then was), dissenting on other
grounds, discussed at paras. 78-80 how Parliament and legislatures can
limit the ways in which superior courts can exercise their powers (including
their inherent powers):


[I]t has long
been settled that under the rule of law Parliament and the legislatures may
limit and structure the ways in which the superior courts exercise their
powers.
These inherent powers of superior courts
are simply innate powers of internal regulation which courts acquire by virtue
of their status as courts of law.
The inherent power of superior courts to
regulate their process does not preclude elected bodies from enacting
legislation affecting that process


[T]he superior courts of this country are
controlled by an elaborate matrix of statute and regulation limiting the way
they exercise powers over their own process.
Legislation intrudes on a
number of areas traditionally within the domain of the courts inherent power,
including matters such as contempt of court, testimonial compulsion, the
attendance of spectators, hours of sitting and the imposition of publication
bans over court proceedings
. Parliament and the legislatures routinely         make
rules limiting the scope for the exercise of the courts inherent powers in
these and other areas.
In every province Rules of Court limit and define the
ways in which superior courts can exercise their inherent powers
. The
Income
Tax Act
restricts the circumstances in which courts may exercise their
inherent jurisdiction to order the Minister of National Revenue to release
confidential information ... In the criminal sphere, s. 486(4) of the
Criminal
Code
removes the discretion a judge would have at common law to refuse a
publication ban upon the request of a complainant or prosecutor where the accused
is charged with one of the listed offences.
How a          court must deal
with contempts arising in certain circumstances is now prescribed in some
detail (see, e.g., ss. 127(1), 708(1), 605(2), 484, 486(1) and (5))
. Interestingly,
in order to preserve the courts jurisdiction over contempt in s. 9, the
Code specifically excludes that offence from the general withdrawal of
jurisdiction over the common law offences. The drafters clearly recognized the
competence of Parliament to remove an aspect of inherent jurisdiction, and
consequently the need to segregate contempt from the general provision
eradicating those offences if the courts were to retain this power.

All of this is simply to restate the
general principle that courts must conform to the rule of law. They can
exercise more power in the control of their process, in different ways, than is
expressly provided by statute, but must generally abide by the dictates             of
the legislature. It follows that Parliament and the legislatures can legislate
to limit the superior courts powers, including their powers over contempt,
provided that the legislation is not otherwise unconstitutional


[Emphasis
added.]

[106]

Inherent jurisdiction cannot be exercised in a manner inconsistent with
the well-settled principles of the rule of law. In
Ontario v. Criminal
Lawyers Association of Ontario
, 2013 S.C.C. 43 [
Criminal Lawyers
],
Justice Karakatsanis emphasized that inherent jurisdiction is not unlimited and
that the manner of its exercise may be regulated by legislative action. She
specifically approved of the analysis of McLachlin J. from para. 78 of
MacMillan
Bloedel
:

[22]
In spite of its amorphous nature,
providing the foundation for powers as diverse as contempt of court, the

stay
of proceedings and judicial review, the doctrine of inherent jurisdiction does
not operate without limits.

[23]
It has long been settled that the
way in which superior courts exercise their powers may be structured by
Parliament and the legislatures (see
MacMillan Bloedel
, at para. 78,
per
McLachlin J.
, dissenting on other grounds). As Jacob notes (at
p. 24): ... the court may exercise its inherent jurisdiction even in
respect of matters which are regulated by statute or by rule of court, so long
as it can do so
without contravening
any statutory provision (emphasis
added) (see also
Caron
, at para. 32).

[Emphasis added.]

[107]

Rules of
Court are, for the purpose of determining limits on inherent jurisdiction, in
the same position as formally enacted statutes dealing with the courtroom
process. It is well-settled that the Rules of Court, and in particular the
current
Rules
,

have the force of statute:
Conseil scolaire
francophone de la Colombie-Britannique v. British Columbia
, 2013 SCC 42 at para. 50
[
Conseil scolaire
].

[108]

The issue in
Conseil scolaire
was whether French language
exhibits attached to an affidavit could be considered by the courts without
English translations. Rule 22-3 required that exhibits attached to affidavits
and filed in court had to be in English. The Supreme Court rejected a submission
that a superior court could admit the documents in a language other than
English pursuant to its inherit jurisdiction because doing so would contravene
R. 22-3:

[63]      There is no doubt that the British Columbia Supreme
Court has the inherent jurisdiction and discretion to fulfill its judicial
function, but as this Court noted in
R. v. Caron
, 2011 SCC 5, [2011] 1
S.C.R. 78, at para. 32,
they are subject to the requirement that the
court exercise them without contravening any statutory provision.
In the
case at bar,
Rule 22-3 limits the courts discretion to admit documents in
languages other than English
.

[Emphasis added.]

[109]

This Court has also commented on the limits to inherent jurisdiction. In
Lines v. W & D Logging Co. Ltd.
, 2009 BCCA 107 Saunders J.A. for the
Court commented as follows:

[23]      Inherent jurisdiction was described by Chief
Justice Freedman in
Montreal Trust Co. v. Churchill Forest Industries
(Manitoba) Ltd
.
(1971), 21 D.L.R. (3d) 75 at 81, [1971] 4 W.W.R. 542
(Man. C.A.):

Inherent jurisdiction is derived
not from any statute or rule but from the very nature of the court as a
superior court of law: The jurisdiction which is inherent in a superior court
of law is that which enables it to fulfil itself as a court of law. [I.H.
Jacob, The Inherent Jurisdiction of the Court (1970) 23 Curr. Legal Probs. 23
at 27] Inherent jurisdiction cannot, of course, be exercised so as to conflict
with a statute or rule. Moreover, because it is a special and extraordinary
power, it should be exercised only sparingly and in a clear case.

[24]      The Manitoba Court of Appeal again usefully added
to the comment on inherent jurisdiction in
Gillespie v. Manitoba (Attorney
General)
, 2000 MBCA 1, 185 D.L.R. (4th) 214:

[17]      Although many instances
can be found in which the inherent jurisdiction of the Queens Bench (or
equivalent court in other jurisdictions) has been invoked to justify an order,
no satisfactory definition of inherent jurisdiction has been enunciated. That
is perhaps because inherent jurisdiction has never been conferred on a court
expressly, but exists as an auxiliary power to be invoked when necessary for
the court to fulfil itself as a court of law (to use the words of Master I.H.
Jacob, in his article The Inherent Jurisdiction of the Court (1970), 23 Curr.
Legal Probs. 23 at p. 27).

[18]      I have chosen the word
auxiliary to describe the power in order to emphasize the powers supportive
role. Auxiliary is defined in
Webster's New World Dictionary, Third
College Edition
, 1988, as giving help or aid; assisting or supporting and
as acting in a subsidiary, or subordinate, capacity. Inherent power, as I
understand it, is the power a judge may draw upon to assist or help him or her
in the exercise of the ordinary jurisdiction of the court. It does not
generally stand alone waiting to be exercised on the judges own initiative
without a suit or application or without parties.

[19]      The auxiliary nature of
inherent jurisdiction is reflected in the words of Lord Morris of Borth-y-Gest in
Connelly v. Director of Public Prosecutions
, [1964] A.C. 1254 (H.L.). In
obiter
comments, he said (at p. 1301):

There can be no doubt that a court
which is endowed with a particular jurisdiction has powers which are necessary
to enable it to act effectively within such jurisdiction. I would regard them
as powers which are inherent in its jurisdiction. A court must enjoy such
powers in order to enforce its rules of practice and to suppress any abuses of
its process and to defeat any attempted thwarting of its process.

[25]      I refer as well to
Borkovic v. Laurentian Bank
of Canada
, 2001 BCSC 337, wherein Mr. Justice Smith endorsed this
passage from

Halsburys Laws of England

at para. 9:

[the Court] has an inherent power
to regulate its own procedure, save in so far as its procedure has been laid
down by the enacted law, and it cannot adopt a practice or procedure
inconsistent with rules laid down by statute or adopted by ancient usage.

[Emphasis added.]

[110]

In
summary, it is now well-established that
the way in which
superior courts exercise their powers may be regulated by the provincial
legislature.

V.
Evolution Of The Rules Of Court

[111]

This case concerns civil contempt. Civil contempt was defined in Sir G.
Borrie and N. Lowe,
Borrie and Lowe on the Law of Contempt
, 3d ed.
(London: Butterworths, 1996) at 655-656 [Borrie and Lowe], which passage was
approved by the Ontario Court of Appeal in
Kopaniak v. MacLellan
(2002),
212 D.L.R. (4th) 309 at para. 26:

Civil contempts  are committed
by disobeying court judgments or orders either to do or to abstain from doing
particular acts, or by breaking the terms of an undertaking given to the court,
on the faith of which a particular course of action or inaction is sanctioned,
or by disobeying other court orders (e.g. not complying with an order for
interrogatories, etc.). Civil contempts are therefore essentially offences of
a private nature since they deprive a party of the benefit for which the order
was made.  [T]he courts jurisdiction in respect of civil contempts is
primarily remedial, the basic object being to coerce the offender into obeying
the court judgment or order

[112]

Civil contempt in British Columbia has, since 1880, been regulated by
the
Rules
. The
Rules
governing such contempt, understood as
defiance or disobedience of a civil order, were initially found in Rules
307-311 of the
1880 Supreme Court Rules
. They read as follows:

307
A judgment for the recovery by or payment to
any person of money may be enforced by any of the modes by which a judgment or
decree for the payment of money might have been enforced at the time of the
passing of the Act.

308
A judgment for the payment of money into
Court may be enforced by writ of sequestration, or in cases in which attachment
is authorised by law, by attachment.

309
A judgment for the recovery or for the
delivery of the possession of land may be enforced by writ of possession.

310
A judgment for the recovery of any property
other than land or money may be enforced:

By writ for delivery of the
property;

By writ of attachment;

By writ of sequestration.

311

A judgment requiring any person to do any
act other than the payment of money, or to abstain from doing anything, may be
enforced by writ of attachment, or by committal
.

[Emphasis added.]

[113]

Rule 311
concerned breaches of mandatory or prohibitory orders other than the payment of
money, which are precisely the type of breaches contemplated in the definition
of civil contempt as explained by Borrie and Lowe at 655-656. A breach of such
orders was an act of contempt, which was remedied by way of a writ of
attachment or committal.

[114]

In
Golden Gate Mining Co. v. Granite Creek Mining Co.
(1896) 5
B.C.R. 145, which was decided prior to the creation of the Court of Appeal by
the appeal division of the Supreme Court, called the Full Court, McCreight J.
at 149 explained the differences in the remedies of attachment and committal:

This is a case in which committal
and not attachment is the appropriate remedy. Where the injunction is mandatory
the defendant is attached and brought into Court to explain why he has not done
what was required of him, and the process is for the contempt, of which he is
given an opportunity of purging himself by compliance, and the proceeding is
tentative in its nature. But where the injunction directs that something shall
not be done and it is proved that in disobedience thereof it has been done,
then the process is punitive, and an order to commit the delinquent to prison
for that misconduct is the proper course.

[115]

The
Rules
remained in identical language through to, and including, the 1961 revision of
the
Rules
. In 1890, Rules 307 to 311 became Rules 458 to 461. From 1906
to 1976 they were set out in Marginal Rules 581 to 585. In 1976, Marginal Rules
581 through 585, in somewhat different language, were incorporated into Rule
42. Today they are found in R. 13-2.

[116]

The
1880 Supreme Court Rules
contain separate provisions concerning
writs of attachments and sequestration. Rule 345 set out when a writ of
sequestration could issue:

345
Where any person
is by any judgment directed to pay money into Court or to do any other act in a
limited time, and after due service of such judgment refuses or neglects to
obey the same according to the exigency thereof, the person prosecuting such
judgment shall at the expiration of the time limited for the performance
thereof, be entitled, without obtaining any order for that purpose, to issue a
writ of sequestration against the estate and effects of such disobedient
person. Such writ shall have the effect as a writ of sequestration has
heretofore had, and the proceeds of such sequestration have heretobefore been
dealt with. [
See Form No.
80.]

[117]

In 1890,
R. 345 became R. 492 and in 1906 it became Marginal Rule 618. It remained so
until the 1976 Rule revision when in revised form, it became R. 42(2). A
similar Rule is presently found in R. 13-2(13).

[118]

In 1906, Marginal Rule 609 was added to deal with circumstances where a
corporation failed to obey an order. Among the potential penalties was
sequestration. That Rule read:

Any judgment or order against a
corporation willfully disobeyed may, by leave of the Court or a Judge, be
enforced by sequestration against the corporate property, or by attachment
against a director or other officers thereof, or by writ of sequestration
against their property.

[119]

The historical manner by which Court orders were enforced and the reason
that the remedy of sequestration was introduced in the case of corporate
contempt was explained by Taggart J. A. in his dissenting reasons in
Twinriver
Timber Ltd. v. International Woodworkers of America, Local 1-71
, (1970) 14
D.L.R. (3d) 704 (B.C.C.A.):

When one examines the history of the development of the rules
relating to sequestration it is apparent that
from the earliest times Courts
of Equity and later of common law recognized the distinction between those
cases involving breaches of orders requiring acts to be done and those cases involving
breaches of Court orders prohibiting the commission of acts
. If an
individual was required to perform an act and failed to do so then the Courts
did not hesitate to authorize the issuance of writs of sequestration.
On the
other hand, if an individual was prohibited from doing an act and continued to
do the act in breach of the order, then the effective remedy was to attach the
person of the offender whereupon the acts prohibited ceased, at least for  so
long as the offender remained in custody.
That logical approach to the
enforcement of orders could not apply in the case of a corporation for
corporations have only a notional existence in law and can not be attached.
Consequently the Courts authorized the issuance of writs of sequestration
against corporations not only when a corporation failed to comply with an order
directing an act to be done, but also in cases where the order prohibited the
commission of an act for in the latter case it was impossible for the Court to
attach the person of the corporation and thus cause a cessation of the
prohibited act.

[Emphasis added.]

[120]

In 1976,
Marginal Rule 609 was incorporated into R. 56(2) and is presently found in R.
22-8(2). Since 1976, the
Rules
have no longer authorized the issuance of
writs of sequestration against corporations for breach of a court order. The
Rules
have, however, allowed for the committal of corporate officers and directors.

[121]

The
Rules
of Court
underwent a wholesale revision in 1976: P. Fraser New Rules of
Court: The Background (1976) 34 The Advocate 117. Other than Marginal Rule
609, the existing enforcement provisions became part of R. 42. Rule 56 was
adopted which dealt specifically with the penalties and procedures governing
contempt. Those provisions were carried forward into the new
Rules
and
are now found in R. 22-8.

VI.
Discussion

[122]

As can be
seen from the historical review, the Supreme Court has long had, and continues
to have, various powers to enforce the orders it makes. Those powers did not
include the power to sell the property of a person in contempt.

[123]

In
Twinrive
r,
this Court specifically rejected a submission that the courts inherent
jurisdiction allowed it to create a remedy for contempt not contained in the
Rules
.
Twinriver
concerned an application for a writ of sequestration directed
to a union as a result of its contempt of court. The applicant relied on
Marginal Rule 609, which dealt with circumstances in which a corporation had
disobeyed an order.

[124]

The application for sequestration was heard before Atkins J. (as he then
was). He concluded that the Marginal Rule did not apply to a union because a
union was not a corporation. Moreover, he specifically rejected an argument
that the court could exercise its inherent jurisdiction to order sequestration:

[28]      Before proceeding further I should, I think,
amplify my understanding of Mr. Giles argument. Mr. Giles took the
position, as I understood him, that the only redress available to the plaintiff
was sequestration, that is that the only way in which the plaintiff could bring
the defendant union before the Court so that the defendant unions disobedience
of the order, if proved, might be dealt with or the plaintiffs rights
protected was by application for leave to enforce the order by sequestration.
This being so,
Mr. Giles argued, because the Court must have inherent
jurisdiction to enforce an order which it has lawfully made, the Court must
have inherent jurisdiction to enforce by sequestration because it is the only
way in the instant case, in which the matter may be brought before the Court
.
Assuming that I am correct in the conclusion that I have stated that
sequestration lies only where authorized by Rule so that sequestration is not
available to the plaintiff in this application because the matter is not within
M.R. 609,
I should not, I think, usurp a Rule-making or legislative
function, and grant leave for sequestration simply because I might think, and I
express no opinion on the matter one way or the other, that the law should be
that wilful disobedience of an order of the Court by persons other than a
corporation should in the discretion of the Court, be enforceable by
sequestration, which after all, is a special and perhaps rather drastic means
of enforcing an order or judgment.
So, I conclude, assuming that the Court
has as contended an inherent jurisdiction to enforce its orders, such as the
order in the present case, that
that inherent jurisdiction to enforce may
not be exercised by sequestration because, put shortly, I think to hold
otherwise would be to act outside the Rules and in effect usurp the Rule-making
function
.

[Emphasis added.]

[125]

The Court
of Appeal upheld the decision. The majority judges, Maclean and Branca J.J.A.,
both said that they were doing so for the reasons given by the judge below.
Justice Taggart dissented. In his view, the court had an inherent jurisdiction
to grant leave to issue the writ of sequestration notwithstanding the provision
of the
Rules
.

[126]

Twinriver
remains, in my opinion, binding authority. It is consistent with the principle
set out in the decisions discussed above: legislatures
may
limit and structure the ways in which the superior courts exercise their
inherent
jurisdiction and inherent jurisdiction is subject to and must
yield to provisions set out in the
Rules of Court
and in statues. In
reaching this conclusion, I have reviewed and considered the majority judgment
in
MacMillan Bloedel
. In my respectful opinion
MacMillan Bloedel
has not directly or impliedly overruled
Twinriver
.

[127]

The central issue in MacMillan Bloedel was
whether Parliament, pursuant to its criminal law power, could confer the
exclusive jurisdiction of a superior court general jurisdiction over
ex
facie
contempt to a statutory court. The constitutional question facing the
Supreme Court of Canada was phrased as follows by Lamer C.J.C. in his majority
reasons:

Is it
within the jurisdiction of Parliament to grant exclusive jurisdiction to youth
courts
, through the operation of s. 47(2) of
the Young Offenders Act, R.S.C. 1985, c. Y-1,
over contempt of court
committed by a young person against a superior court
otherwise than in the
face of court?

[Emphasis
added.]

[128]

The discussion in
MacMillan Bloedel
regarding
the constitutionally protected scope of the core or inherent jurisdiction
of a superior court of general jurisdiction was predicated entirely on the
question of whether the wholesale removal of that core power was a
constitutionally permissible legislative or parliamentary action:

To determine whether either Parliament or
a provincial legislature may remove part of the superior courts jurisdiction,
we must consider the contours and contents of the core or inherent
jurisdiction of the superior courts
. On the facts
of this appeal, the British Columbia Supreme Court being the superior court involved,
we need only consider whether this jurisdiction can be removed from superior
courts of general jurisdiction

The full range of powers which comprise
the inherent jurisdiction of a superior court are, together, its essential
character or immanent attribute.
To remove any part of this core
emasculates the court, making it something other than a superior court
.

.

[A]n inferior court of record has inherent
jurisdiction to punish summarily for
in facie
contempt, but jurisdiction
to punish for
ex facie
contempt must be conferred explicitly by statute.
This point is important in framing the issue before the Court in this case, for
the problem with s. 47(2) of the
Young Offenders Act
is not the
grant of jurisdiction to the youth court but the removal of jurisdiction from
the superior court
.

[
MacMillan
Bloedel
at paras. 28-31. Emphasis added.]

[129]

In the course of his analysis, Lamer C.J.C. makes reference to the
decision of the Supreme Court of Canada in
Crevier v. Attorney General of
Quebec,
[1981] 2 S.C.R. 220. In that case, the Supreme Court held that it
was constitutionally impermissible for the provincial legislatures to immunize
administrative tribunals from judicial review because, in essence, this would
remove the power of s. 96 courts to conduct judicial review. In his view,
Crevier
establishes  that powers which are hallmarks of superior courts cannot be
removed from those courts. The Chief Justice also referred to
Attorney
General of Canada v. Law Society of British Columbia
, [1982] 2 S.C.R. 307,
which held that Parliament lacked the authority to wholly remove the power of
superior courts to rule on the validity of federal statutes. The question, in
each case, was whether it was within the jurisdiction of Parliament or the
provincial legislatures to wholly remove an area of jurisdiction (either
judicial review of administrative decisions or constitutional judicial review
of federal statutes) by way of an absolute transfer of jurisdiction to a
statutorily created adjudicative body (either a statutory court or
administrative tribunal).

[130]

The eventual conclusion of Lamer C.J.C., at para. 41,
on the scope of the constitutional provisions breached by the transfer of
jurisdiction over
ex facie
contempt from the superior courts to the
statutory youth courts, was predicated on his conclusion that such a transfer
of jurisdiction is tantamount to its wholesale removal:

In light of its importance to the very
existence of a superior court, no aspect of the contempt power may be removed
from a superior court without infringing all those sections of our Constitution
which refer to our existing judicial system as inherited from the British,
including ss. 96 to 101, s. 129, and the principle of the rule of law
recognized both in the preamble and in all our conventions of governance. I
agree with Macdonald J. who [in
Columbia (Attorney‑General) v. Mount
Currie Indian Band
(1991), 64 C.C.C. (3d) 172 at 177-178)] made the
following statement in dealing with the identical issue:

In this case,
the
question should be whether parliament can remove from this court its inherent
jurisdiction to maintain its authority by contempt proceedings. I would have no
difficulty with a concurrent jurisdiction in the youth court in that regard in
so far as young persons are concerned.
The philosophy which underlies the
Act is entitled to support, and has certainly received it from the Supreme
Court of Canada. Just as adult offenders could be charged in the provincial
courts under the
Criminal Code
for failure to comply with a court order,
so young persons should be subject to being charged under the Act and dealt
with in youth court.

It is quite
another thing to deny this court the right to maintain its own authority
.

[Emphasis
added.]

[131]

Given the context in which the case was decided,
it is important to delineate between the comments made by the Lamer C.J.C.
pertaining to the contempt power (understood to reflect the authority of courts
to coerce compliance with their orders) and the options available to the courts
to enforce compliance. When Lamer C.J.C. referenced the full panoply of
contempt powers, he did so with regard to the distinction between
ex facie
and
in facie
contempt. The reference to the full panoply of contempt powers,
in other words, was not a reference to the peculiar historical options that
were available to the English courts to sanction contempt and coerce compliance
with court orders. It was, instead, a reference to the scope of jurisdiction of
the courts over all forms of contempt of court (i.e., both
in facie
and
ex
facie
). As he explained at paras. 38 and 42:

The core jurisdiction of the provincial
superior courts comprises those powers which are essential to the
administration of justice and the maintenance of the rule of law. It is
unnecessary in this case to enumerate the precise powers which compose inherent
jurisdiction, as the power to punish for contempt
ex facie
is obviously
within that jurisdiction.
The power to punish for all forms of contempt is
one of the defining features of superior courts. The
in facie
contempt
power is not more vital to the courts authority than the
ex facie
contempt
power. The superior court must not be put in a position of relying on either
the provincial attorney general or an inferior court acting at its own instance
to enforce its orders
. Furthermore,
ex facie
contempt is not limited
to the enforcement of orders. It can include activities such as threatening
witnesses or refusing to attend a proceeding (see
R. v. Vermette
, [1987]
1 S.C.R. 577). In addition, the distinction between
in facie
and
ex
facie
contempt is not always easily drawn  increasing the difficulty of
saying one is more essential to the courts process than the other.



While it will in most instances be
preferable for the youth court to try and punish a youth in
ex facie
contempt
of a superior court, the provincial superior court's  jurisdiction cannot be
ousted
. It will always be for the superior court to
elect whether to hold contempt proceedings against a youth in order to exert
control over its process, or to defer to the youth court. In addition, in cases
where the youth court does proceed against a youth for contempt
ex facie
of a superior court, the provincial superior court retains its supervisory
power to ensure that the lower courts disposition of the matter is correct.
The
full panoply of contempt powers is so vital to the superior court that even
removing the jurisdiction in question here and transferring it to another court
with judges appointed pursuant to s. 96 would offend our Constitution.


[Emphasis
added.]

[132]

Chief Justice Lamer was, to put it another way, solely concerned
with whether the absolute removal of an area of jurisdiction falling within the
essential character of a superior court of general jurisdiction, which
removal was effected by way of a transfer of power to a statutory court, was
constitutionally permissible under ss. 96-101, s. 129 and the general
and foundational principles of the rule of law. The focus on
ex facie
contempt
of court as being part of the core or inherent jurisdiction of the court is
consistent with the analysis of the court in other cases dealing with the
concurrent grant of jurisdiction over
in facie
contempt to inferior
tribunals or courts: see e.g.,
Chrysler Canada Ltd. v. Canada (Competition
Tribunal
), [1992] 2 S.C.R. 394. In my view, it is essential to bear this
jurisprudential context in mind when considering the general comments made by
the Chief Justice in
McMillan Bloedel
.

[133]

Justice McLachlin, as she then was, took a different view of the
constitutional issue. She agreed with the Chief Justice that the effect of the
impugned legislation was to remove an entire sphere of jurisdiction (namely,
the jurisdiction over
ex facie
contempt of a superior court) from the
superior courts. Her view, however, was that this ouster of jurisdiction was
simply the typical consequence of any transfer of power from a s. 96
court, which was in itself nothing but an application of well-settled principle
that under the rule of law Parliament and the legislatures may limit and
structure the ways in which superior courts of general jurisdiction exercise
their powers.

[134]

While the majority of the Supreme Court of Canada rejected that the
complete ouster of jurisdiction over a particular area of inherent jurisdiction
was equivalent to the aforementioned well-settled rule of law principle,
McLachlans J. articulation of that principle of the rule of law from paras. 78-80
of
MacMillan Bloedel
was, as noted above, adopted in
Criminal Lawyers
at para. 23.

[135]

In this case, R. 22-8(1) does not purport to wholly remove the power
of the Supreme Court to sanction contempt by, for example, transferring that
power to a statutory court. Instead, the
Rules
simply structure how the
civil contempt power, over which the court retains exclusive jurisdiction,
ought to be exercised.

[136]

In my opinion, it is now well-established that, as a fundamental
principle of the rule of law, Parliament and the provincial legislatures have
the authority to structure and circumscribe how the courts will exercise their
inherent jurisdiction so long as their legislative actions do not go so far as
to wholly remove an area of such jurisdiction from the purview of the courts.
The reasons of Lamer C.J.C. from
MacMillan Bloedel
, which were concerned
with the general and wholesale removal of the jurisdiction of the superior
courts of general jurisdiction over
ex facie
contempt of a superior
court by a young offender, are not applicable to the present case. There is no
basis to conclude that R. 22-8(1) removes the jurisdiction of the Supreme Court
of British Columbia to punish civil contempt. That the
Rules
limit the
options available in sanctioning civil contempt does not mean that they have
the effect of removing jurisdiction over it.

[137]

The
chambers judge recognized that that the Courts inherent jurisdiction could not
be exercised in the contravention of a statute. However, his attention was
apparently not directed to the decision in
Conseil scolaire
that
confirmed that the
Rules
have the force of statute law.

[138]

The
principles of statutory interpretation apply to the
Rules
:
A.E.
(Litigation Guardian of) v. D.W.J,
2011 BCCA

279. The modern
approach to statutory interpretation is set out in
Rizzo & Rizzo Shoes
Ltd (Re),
[1998] 1 S.C.R. 27 at para. 21: the words of an Act are to
be read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament.

[139]

The plain language of R. 22-8(1) provides:

Power of court to punish

(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.]

[140]

The rule makes specific reference to the inherent power of the court
to punish contempt, and then sets out the manner in which that power must be
exercised (that is, by way of either or both of a fine or committal). In my
view, this provision is a particular instance of the well-settled principle
that the Legislature may limit and structure the ways in which the superior
courts exercise their inherent powers:
Criminal Lawyers
at para. 23.

[141]

Based on its plain language, R. 22-8 provides a complete,
comprehensive and exhaustive articulation of the options available to the
courts in sanctioning civil contempt. Those options do not include an order of
sale.

[142]

In this
case, the Strata brought an application to have Mrs. Bea held in contempt.
The chambers judge so found. Having found Mrs. Bea in contempt, the
Rules
mandated that the punishment be by fine or incarceration or both, albeit the
judge had the power to suspend the sentence under R. 22-8 (15). The judge did
not have the authority to fashion a remedy for contempt outside of those set
out in R. 22-8. In particular, he could not order the sale of Mrs. Beas
unit.

VII.
Disposition

[143]

In the result, I would allow the appeal and refer the matter back to the
trial court to impose a penalty authorized by law. I would not disturb the cost
order of the chambers judge. Given the history of this matter I would make no
order for costs in this Court.

The Honourable Mr. Justice
Goepel


