Date: 2006-05-12 Docket: 0203 12910. S.J. Greckol J. | Link

A large corporate commercial and intellectual property suit. After a fine was imposed by the judge because answers to undertakings were not delivered to counsel for the Plaintiff, the Defendant appealed the fine. The Court of Appeal (Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 (CanLII) considered new evidence that certain computer records were destroyed or erased. The CA remitted the order back to the court, saying "In terms of the sanction for contempt, we are of the view that the amount ordered is not adequate for its purpose. Requiring those in contempt to pay a part only of thrown-away costs related directly to the contempt does not bring home to the contemnors the seriousness of their actions and their responsibilities for the consequences attributable to that contempt. There is a public policy aspect to this entire issue. Generally, in principle, those who are found in civil contempt ought, at a minimum, to be required to accept responsibility for a substantial portion of the costs directly related to that contempt. It may be that a judge would also consider it appropriate to impose further monetary penalties or other sanctions, whether including striking of pleadings, drawing of adverse inferences, etc." (para 9) The CA went on to suggest seven considerations for assessing which sanctions should be imposed, which the judge used in her analysis. (para 10). The Court ordered the Defendant to pay the Plaintiff's "throw-away" costs, amounting to $136,146.27, plus GST, and to take all available steps to try to retrieve the information that has been lost and are to bear the costs of those efforts in any event of the cause. If the computer files cannot be retrieved, pursuant to Rule 704(1)(c), the Defendants are to pay a fine of $75,000.00, for which they will be jointly and severally liable. (paras 53,54)