The court began by noting that “The decision to grant an interlocutory injunction is discretionary and entitled to a high degree of deference. This Court may not interfere solely because it would have exercised the discretion differently. Intervention will be justified, however, where the chambers judge proceeded ‘on a misunderstanding of the law’: CBC at para 27; Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 22”. Further, “The chambers judge identified the three branches of the test for a mandatory interlocutory injunction correctly. The applicant must demonstrate: a) a strong prima facie case; b) irreparable harm if the relief is not granted; and c) the balance of convenience favours granting the injunction: CBC at para 18; Avmax Aircraft Leasing Inc v Air X Charter Limited, 2022 ABCA 252 at para 69.”

But the court found errors in the application of this test. In particular, the court was concerned about the chambers judge’s handling of the first element:

[18]           Needless to say, the application did not proceed as a trial would have done. The parties’ materials and submissions were relatively brief; they prevented the chambers judge from undertaking the “extensive review of the merits” required when considering a mandatory injunction: CBC at para 15. . . .

[20]           The finding of transfers below market value should not have been the end of the inquiry. As noted, a strong prima facie case will be found where there is a “strong likelihood on the law and the evidence presented that, at trial,” the respondent will “be ultimately successful in proving the allegations” set out in his claim: CBC at paras 17-18. Those allegations include that the transfers were made by the mother in breach of trust, the appellant was unjustly enriched, and the appellant accepted the transfers as a trustee. The parties, and therefore the chambers judge, did not address whether there was a breach of trust in any detail.

[21]           Even assuming a strong prima facie case of breach of trust could be established, the chambers judge did not consider how a breach of trust by the mother would make the appellant liable for return of the transferred properties. At the time of the transfers, the appellant was not a trustee. A stranger to a trust can be held liable as a constructive trustee for breach of trust in some circumstances—for example, if the stranger is found to be a trustee de son tort, to have knowingly assisted in a fraudulent and dishonest design, or to have knowingly received the property where there is constructive or actual knowledge of the breach: Citadel General Assurance Co v Lloyds Bank Canada, 1997 CanLII 334 (SCC), [1997] 3 SCR 805 at paras 19-25, 48-51, 1997 CanLII 334 (SCC); Paul First Nation v K & R 2014 Inc, 2021 ABQB 32 at paras 67-68. On the materials available to us, it appears there was no argument as to whether or how the appellant was liable as alleged. The result is that the chambers judge did not consider, and was not equipped to consider, whether there was a strong prima facie case any of these or other bases for liability were made out.

[22]           In addition to arguments based on the terms of the trust deed, the respondent pointed to the fact the mother’s caveats remain on title from 2003 as support for his position that the lands were still “owned beneficially for the trust”; he argued they would have been removed if the transactions were intended to transfer beneficial ownership to the appellant. The appellant responded that the intent, if any, behind the failure to remove the caveats could only be determined on evidence that was not before the court, such as evidence from the lawyer who assisted with the transfers.

[23]           The chambers judge placed weight on the presence of the caveats in concluding the appellant had established a strong prima facie case. However, a caveat only provides notice of a claim to an interest in land, it does not establish the validity of the claim: St Pierre v North Alberta Land Registry District (Registrar), 2023 ABCA 153 at para 8, citing St Pierre v Schenk, 2020 ABCA 382 at paras 30-31. . . . Given the inconsistency between the transfer documents and the historically registered caveat, and without any other evidence, the respondent did not establish that the mother’s failure to remove the caveat was intentional. The existence of the caveat is not capable, on its own, of establishing a “strong likelihood” the respondent will be successful in proving the allegations set out in his statement of claim.

The court also had concerns regarding the second element of the test:

[24]           The chambers judge also committed reviewable error in assessing irreparable harm. Generally, irreparable harm refers to harm that either cannot be quantified in monetary terms or that cannot be cured, for example where one party will not be able to collect damages from the other: RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 341, 1994 CanLII 117 (SCC). An applicant bears the onus of demonstrating irreparable harm with evidence that is clear and not speculative: Modry v Alberta Health Services, 2015 ABCA 265 at para 82.

***

[27]           The respondent also argued the trust would suffer losses because the appellant was not paying it rent for her use of the land, was not collecting or remitting payments on certain surface leases, and might be dilatory in renewing expiring leases. The respondent characterized these losses as unquantifiable, giving rise to irreparable harm.

[28]           The chambers judge appeared to accept this argument, holding that irreparable harm had been established because “potential harm to the beneficiaries goes beyond the amounts that could be quantified on the basis of [the appellant’s] past use of the land and . . . extends into the future in the form of unquantifiable losses”. Any loss of rent or surface lease income, present or future, is quantifiable; the fact it has not yet been incurred does not make it unquantifiable and therefore irreparable. It does not constitute harm that “cannot be quantified in monetary terms or which cannot be cured”: RJR at 341.

***

[30]           As noted by this Court in Lubicon Lake Band v Norcen Energy Resources Ltd, 1985 ABCA 12 at para 33, the “irreparable harm” criterion serves to remind courts and litigants of the extraordinary nature of granting injunctive relief on an interlocutory basis: “an interim injunction is emergent relief. The claimant seeks a remedy without proof of his claim. This inversion should only be considered in cases where the harm is of such seriousness and of such a nature that any redress available after trial would not be fair or reasonable. This hurdle must be met before the balance of convenience is weighed”. The chambers judge erred by misinterpreting the irreparable harm requirement.

Finally, the court came to the following conclusion regarding the injunction:

[32]           It is open to us to consider afresh whether an injunction should be granted. As noted, the evidence was incapable of establishing irreparable harm. In these circumstances, this is a sufficient basis on which to deny the injunction. It is therefore not necessary to consider afresh the strength of the case and the balance of convenience.

[33]           Beyond the three parts of the test, the “fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case”: Google at para 25. The relief the respondent sought in the application below was the same as the core elements of the relief he sought in his statement of claim, albeit on an interim basis. While a plaintiff might be entitled to such relief before proving his claim in some circumstances, the respondent did not establish any basis on which granting such an inversion would be just and equitable in the circumstances of this case.

[34]           We conclude that granting a mandatory injunction on an interlocutory basis is not just and equitable in the circumstances of this case.

The post Alberta Court of Appeal overturns mandatory injunction to transfer land first appeared on British Columbia Law Institute.

The appellant’s appeal was also dismissed. The court of appeal’s judgment highlights the unique nature of contempt of court, Canada’s only surviving common-law offence (i.e., the only criminal offence that hasn’t been codified by the Criminal Code). The case also reaches a different result on the application of the Charter in civil-contempt proceedings than the Ontario Court of Appeal, which recently held (in Sutherland Estate v Murphy, 2025 ONCA 227) that section 11 (c) of the Charter (which protects persons charged with an offence from being compelled to testify against themselves) applies in civil-contempt proceedings.

The Alberta court offered a succinct review of the legal issues before it and its conclusions in an overview of the appeal:

[1]               The issue on this appeal is whether s 11(b) of the Charter of Rights and Freedoms, which guarantees the right to be tried within a reasonable time, applies to sanction proceedings following a finding of civil contempt. We conclude that s 11(b) does not apply in the circumstances of this appeal. The Charter, and specifically s 11, is directed at government action and does not impose constitutional duties on private parties in civil contempt proceedings not involving a state actor.

[2]               Certain procedural protections apply in civil contempt proceedings as a result of their quasi-criminal nature and the potential penal consequences that may attach to a finding of civil contempt, but these protections are not a result of the application of s 11. Further, the protections that apply in civil contempt proceedings do not include a guarantee that the sanction phase of those proceedings will be complete within a certain period, in accordance with the timelines for criminal proceedings established by the Supreme Court of Canada in R v Jordan, 2016 SCC 27.

How did the court reach this result? It placed considerable significance on the proceedings “not involving a state actor” (“In short, there is no state actor responsible for conducting civil contempt proceedings or bringing them to a close on any particular timeline. The conduct of such proceedings rests entirely in the hands of the private litigants.”). In support, the court pointed to authority from the Supreme Court of Canada dating back to the earliest days of the Charter:

[20]           We begin with the principle, stated by the majority of the Supreme Court of Canada in Dolphin Delivery, that the Charter does not apply to private litigation not involving a state actor. In Dolphin Delivery, a union applied to set aside an injunction that prevented secondary picketing, arguing that picketing by its members was a protected activity under s 2(b) of the Charter and therefore not the proper subject of an injunction. The union’s application was dismissed.

[21]           The court concluded that the Charter applies to the common law, noting the language of s 52(1) of the Constitution Act, 1982: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect”: Dolphin Delivery at para 25.

[22]           However, the Charter does not apply to “private litigation divorced completely from any connection with Government”: Dolphin Delivery at para 26. 

This line of authority allowed the court to draw a distinction between its reasoning and that of the Ontario Court of Appeal:

[40]           We agree with the conclusion in Sutherland Estate that individuals who are facing the prospect of imprisonment in civil contempt proceedings are entitled to many of the protections available to persons facing a criminal prosecution. However, in our view, those protections arise from the common law, both historically and as interpreted in light of the Charter, rather than through the application of s 11. The court in Sutherland Estate did not address the Dolphin Delivery line of authority that holds the application of the Charter should not be expanded beyond the boundaries established by s 32(1) to proceedings that do not involve a government or other state actor. Moreover, we do not read the majority decision in Vidéotron, or the comments of the court in Pro Swing, as concluding that a person facing civil contempt proceedings is “charged with an offence” for purposes of s 11 of the Charter.

***

[48]           In our view, the reasoning in the Supreme Court of Canada authorities does not establish that alleged contemnors in civil proceedings are persons “charged with an offence” such that s 11 will apply to those proceedings. In that respect, we find ourselves at odds with the conclusion of the Ontario court in Sutherland Estate. In our view, it is neither appropriate nor necessary to impose a series of constitutional duties on private parties involved in civil contempt proceedings not involving a state actor. This does not mean that meaningful protections are absent from such proceedings but rather that they do not arise through the application of s 11 of the Charter.

Through these observations, the court reached the following conclusions:

[52]           We have concluded that the right to be tried within a reasonable time is one of the protections described in s 11 that does not apply to the sanctioning phase of a civil contempt proceeding. The appellant attempts to equate that sanctioning process with sentencing for a criminal offence and seeks to apply the presumptive ceiling set out by the Supreme Court of Canada in Jordan for the completion of criminal trials to this context. As the respondent points out, the decision in Jordan was intended to address institutional delay in the prosecution of criminal cases in Canada. There is no comparable issue with respect to sanctioning proceedings in civil contempt. Moreover, there are significant differences between civil contempt sanctioning proceedings and sentencing following a criminal prosecution, including that there is no state actor responsible to prosecute proceedings for civil contempt and that the imposition of sanctions for civil contempt is primarily directed at coercing a party to comply with a court order, rather than punishment for the commission of an offence. The concept of institutional delay does not have the same relevance in the context of civil contempt sanctioning.

[53]           A key distinction between the two proceedings is that a person found in civil contempt has the opportunity to purge their contempt and apply to the court for a declaration that it has been purged. The court may take the purging of contempt into account at the sanctioning phase and waive or suspend any sanction imposed: rule 10.53(3); Braun at para 27. Even if delay was a relevant concern in sanctioning, it is difficult to see how delay could be laid at the feet of the opposing party or some “institution” while the contemnor is seeking to purge their contempt or establish to the court that they are no longer in contempt.

The post Charter remedy not available in contempt of court case: Alberta Court of Appeal first appeared on British Columbia Law Institute.