On July 22, 2022, the Alberta Court of Appeal (the court) released its decision in Alberta Health Services v. Pawlowski. In the decision, the court affirmed the importance of precise and unambiguous language in injunction orders.
In response to the COVID-19 pandemic, Alberta’s Chief Medical Officer of Health (CMOH) implemented public health measures in the form of CMOH orders made pursuant to the Public Health Act. These orders included requirements for mandatory masking and restrictions on indoor and outdoor gatherings, including capacity limits and physical distancing requirements.
Around that time, Alberta Health Services (AHS) became aware that Christopher Scott, along with other individuals, was organizing and promoting a public gathering in contravention of CMOH orders. On May 6, 2021, AHS applied under the Public Health Act for an ex parte injunction to enforce the CMOH orders (the “Injunction”).
Mr. Scott was served with a copy of the Injunction on May 7, 2021 and had full knowledge of its terms. Notwithstanding that, his planned event went ahead on May 8, 2021, with between 300 and 400 people in attendance. Mr. Scott was then arrested the next day.
Artur and Dawid Pawlowski were not named as respondents to the Injunction. The Pawlowskis were arrested separately on the same day for holding church services in claimed violation of CMOH orders. Police officers provided the Injunction to the Pawlowskis at a gathering of their church and arrested them shortly after, having concluded they were in breach of the Injunction.
All three appellants were found in contempt of the Injunction by the Alberta Court of Queen’s Bench and sanctions were imposed on them, including fines and costs of the actions against them.
On appeal, Mr. Scott did not challenge the contempt finding but appealed the sanctions imposed on him, while the Pawlowskis appealed both the finding of contempt made against them and the sanctions imposed. The appeals were heard together.
Mr. Scott’s appeal
The court dealt first with Mr. Scott’s appeal, stating that contempt proceedings have two purposes: to ensure compliance with court orders and to punish the wrongdoer. When issuing an order of contempt, factors which the court should consider include the proportionality of the sentence to the wrongdoing, the presence of aggravating and mitigating factors, deterrence, reasonableness of a fine, and appropriateness of incarceration.
The court held that there were several factors supporting the imposition of a significant sanction for Mr. Scott’s contempt, including intentional violation of a court order aimed at public health and safety, and a deliberate disregard for the court’s authority. The court upheld the contempt finding but set aside certain provisions of the order.
The Pawlowskis’ appeal
The Pawlowskis raised several issues on appeal, the first of which was that the chambers judge erred in finding that the Injunction was clear and unequivocal such that it applied to them. Because of the court’s conclusion on this first issue, it did not consider the other issues.
The court restated the three elements that must be established beyond a reasonable doubt for a finding of civil contempt:
(1) The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
(2) The party alleged to have breached the order must have had actual knowledge of it; and
(3) The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
The requirement of clear and unequivocal language is aimed at ensuring that a party will not be found in contempt where an order is unclear. An order may be unclear if, for example, it is missing an essential detail about where, when, or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.
The court disagreed with the chambers judge’s conclusion that the Injunction did not restrict enforcement to those connected to the named respondents and instead applied to all individuals willing to breach the Injunction after having received notice of it. Ex parte orders must be interpreted based on what they say, without reference to discussions that occurred when the order was granted, as those discussions are beyond the knowledge of the party said to be subject to it.
An ex parte injunction can be validly directed at individuals who are not parties to the action, and those individuals can be found in contempt for violating the injunction. However, an order that purports to have that effect must contain language that alerts members of the public who may be affected by the order that they are required to obey it. Such an injunction must contain clear and precise language specifying to whom it applies and what is prohibited.
The Injunction did not state that it applied to all persons with notice of the Injunction. Rather, it identified four categories of persons who were subject to the order: (i) “the named individual Respondents”; (ii) “any other person acting under their instructions”; (iii) “any other person acting ... in concert with them”; and (iv) “any other person acting ... independently to like effect.” The court held that, while this may be viewed as simply awkward drafting, it created sufficient ambiguity and potential confusion by failing to clearly state that all persons, including the Pawlowskis, were subject to the Injunction.
Orders, including injunction orders, are serious matters with potentially serious consequences for parties who breach them. Therefore, proper notice to parties of the obligations imposed on them, and clarity in defining the standard of compliance expected of them, are essential requirements.
As a result, especially when ex parte injunction orders are sought, precise and accurate language should be employed, failing which all or part of the order may not be enforceable. Moreover, the injunction order may not be sufficiently clear to establish the grounds for contempt proceedings.
For further information, please contact:
Dalton W. McGrath, Q.C. 403-260-9654
Michael O’Brien 403-260-9753
Olivia Salkeld 403-260-9689
or any other member of our Litigation & Dispute Resolution group.
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