BETWEEN:
and
GEORGE SMITH TRUCKING LIMITED,
FLORENCESMITH, GEORGE SMITH
AND NICK TALAGA
Heard at Winnipeg, Manitoba, on April 27, 2006.
Judgment delivered from the Bench at Winnipeg, Manitoba, on April 27, 2006.
REASONS FOR JUDGMENT OF THE COURT
Docket: A-558-05
Citation: 2006 FCA 155
CORAM: NOËL J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
MINISTER OF LABOUR
Appellant
and
GEORGE SMITH TRUCKING LIMITED,
FLORENCESMITH, GEORGE SMITH
AND NICK TALAGA
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Winnipeg, Manitoba, on April 27, 2006)
[1] This appeal concerns a Warrant of Committal for Contempt issued by a judge of the Federal Court (the Applications Judge), against George Smith on October 17, 2005 (Court File T-968-04).
[2] On March 21, 2005, Mr. Smith had been found guilty of contempt by Beaudry J., another judge of the Federal Court, and was ordered to pay a fine of $5,000 within 120 days (i.e. July 19, 2005) in default of which he was to be imprisoned for a period of 30 days.
[3] The fine was not paid, and the appellant brought a motion returnable before the Applications Judge on October 17, 2005, seeking a Warrant of Committal. Mr. Smith was served with the notice of motion but did not appear and the Applications Judge issued the Warrant of Committal for contempt.
[4] The next day, on his own direction, the Applications Judge, arranged a teleconference call involving counsel for the appellant and Mr. Smith in order to hear the circumstances of Mr. Smith's non-appearance.
[5] The record of the teleconference proceedings includes Mr. Smith's unsworn explanation that he first went to the wrong courthouse by mistake, that then came to the correct address but did not proceed to the correct floor, that he was impecunious and could not pay the fine or hire a lawyer, and that he and his company faced numerous other debts.
[6] The transcript also reveals the detailed submissions of appellant's counsel outlining Mr. Smith's blatant breach of an interlocutory injunction issued by the Court on July 21, 2004, which led to the order of Beaudry J., that Mr. Smith's credibility was an issue given his earlier statements to the Federal Court, and that his inability to pay was overstated and should have taken the form of an affidavit which could be subject to cross-examination.
[7] All of these submissions were considered by the Applications Judge, who on October 19, 2005 set aside the October 17, 2005 Warrant of Committal for Contempt without prejudice to the appellant's right to file a future motion for a new Warrant of Committal for Contempt with proof that Mr. Smith has the means to pay his fine.
[8] We agree with counsel for the Crown that the evidence provided by Mr. Smith to substantiate his claim that he could not afford to pay the fine was simply not capable of proving that point. There is no sworn evidence at all as to his personalfinancial circumstances. There is an unsworn statement that he is being pursued by a collection agency for a debt of approximately $7,000. In particular, there is no admissible evidence as to Mr. Smith's assets, or his other liabilities, if any.
[9] For that reason, the Crown's appeal will be allowed. The order of October 19, 2005 will be set aside and this matter will be returned to the Federal Court for a rehearing before a different judge. The warrant of committal remains in force but will be stayed pending the disposition of this matter following the rehearing.
"Marc Noël"
"K. Sharlow"
J.A.
"B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-558-05
(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED OCTOBER 19, 2005, DOCKET NO. (T-968-04))
STYLE OF CAUSE: Minister of Labour v. George Smith Trucking Limited, Florence Smith, George Smith and Nick Talaga
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: April 27, 2006
REASONS FOR JUDGMENT OF THE COURT: NOËL J.A.
SHARLOW J.A.
MALONE J.A.
APPEARANCES:
|
Department of Justice Winnipeg, Manitoba
|
FOR THE APPELLANT
|
|
Winnipeg, Manitoba |
ON HIS OWN BEHALF
|
SOLICITORS OF RECORD:
|
Deputy Attorney General of Canada
George Smith |
FOR THE APPELLANT
|
| ON HIS OWN BEHALF
|