Executive Summary: Key Legal and Evidentiary Issues

• Whether RBC failed to comply with the production order issued by Applications Judge Mattis requiring records related to the removal of Landmark shares from the Plaintiff's trading account.
• The three-part test for civil contempt under Carey v Laiken — requiring an unequivocal order, actual knowledge, and intentional non-compliance — was not satisfied on the evidence.
• Ambiguity over whether a production order requiring "all records" extends to system metadata that does not exist as an identifiable electronic record.
• Discretionary nature of the contempt power, which courts exercise cautiously and treat as an enforcement tool of last rather than first resort.
• Availability of adequate alternate remedies, including adverse inference at trial and a claim in spoliation, weighing against a contempt declaration.
• Proportionality under Rule 1.2(4) of the Alberta Rules of Court, particularly where the Plaintiff has already obtained the primary relief sought in the underlying claim.

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Background and facts

The Plaintiff, Stephen George Arthur Remmington, used RBC Direct Investing Inc.'s self-directed online trading platform to purchase shares of Landmark Infrastructure Partners LP. Landmark was subsequently involved in a corporate acquisition transaction, which resulted in the Plaintiff receiving approximately $644,000 into his RBC trading account. RBC recorded the Landmark transaction on the Plaintiff's 2021 issued tax documents as "dividend income" rather than as "capital gains," thereby exposing the Plaintiff to tax consequences arising from the transaction. The Canada Revenue Agency (CRA) reassessed the Plaintiff based on the incorrect information on the RBC-issued documentation, resulting in a large tax penalty owed by the Plaintiff.

The Plaintiff filed a statement of claim against RBC seeking that it correct his RBC-issued tax documents and assist him with his reassessment dispute with the CRA. He also sought compensatory damages for the time and effort he expended dealing with the erroneous document, costs, and punitive damages. In April 2024, the Plaintiff filed an application to compel certain production from RBC. Plaintiff Request #7 was one of the disputed items before Applications Judge Mattis, in which the Plaintiff stated: "It is not plausible that 39,031 shares of Landmark Infrastructure Partners LP were removed from my account without some form of communication or order. Please provide the associated records." On May 15, 2024, Applications Judge Mattis issued an order requiring RBC to provide "all records that are related to" Plaintiff Request #7.

RBC appears to have provided a response to Plaintiff Request #7 on September 27, 2024, attaching a document appended to a chart describing each of the Plaintiff's requests and RBC's responses and associated production. The Plaintiff responded on September 30, 2024 seeking a sworn Supplemental Affidavit of Records, and on October 4, 2024 wrote seeking that RBC "ensure inclusion of all records bearing any information regarding the removal of my shares of Landmark Infrastructure Partners LP from my account as so required by the Order. Any exclusions will guarantee further action." At the hearing of the application, the Plaintiff clarified that he sought production of certain metadata he understood would have been transmitted between various trading platforms regarding the removal of the Landmark shares from his account, notwithstanding that such information may not be otherwise represented by way of an easily identifiable electronic record such as an email or memo. There was no dispute regarding the fact or timing of the removal of the Landmark shares from the Plaintiff's account.

Notably, in January 2025, RBC reissued the Plaintiff's tax document as he had sought in his Statement of Claim. In July 2025, the Plaintiff was successful in his tax reassessment dispute with the CRA, supported by the corrected RBC tax documents. Notwithstanding that the primary relief sought in his Statement of Claim had been provided, the Plaintiff sought to continue the claim, seeking penalties and damages from RBC, and brought this application seeking to find RBC in contempt of the Mattis Order and to compel further disclosure.

Legal framework

Civil contempt is a remedy available pursuant to Rules 10.51 – 10.53 of the Alberta Rules of Court, with the general goal of enforcing compliance with court orders. The Court noted that civil contempt is quasi-criminal in nature, citing Pro Swing v ELTA Golf, 2006 SCC 52 at para 36. Pursuant to Carey v Laiken, 2015 SCC 17 at paras 32-35, the Applicant must prove beyond a reasonable doubt that: (1) the order breached unequivocally states what must be done or not done; (2) the contemnor had actual knowledge of the order; and (3) the contemnor intentionally did, or did not do, what the order unequivocally requires. Exercising the contempt power is discretionary and ought to be used "cautiously and with great restraint," as "an enforcement power of last rather than first resort."

Citing Questor Technology Inc v Stagg, 2025 ABCA 271 at para 60, the Court noted that reasons for not exercising discretion to find a party in contempt include whether a party acted in good faith in taking reasonable steps to comply with the order; whether an alternate remedy could adequately address the conduct; whether the conduct was the sort of egregious behaviour that threatens the authority of the court meriting sanctions; whether a contempt order may exacerbate a high conflict situation; and whether it is in the best interests of justice to make a formal contempt order. The Court also referenced Reddy v Saroya, 2025 ABCA 322 at para 70, which observed that answering undertakings is often dealt with on a reasonable efforts or best efforts basis, and that the potential for an alleged contemnor to be forced to trial without the missing information or for a trial judge to draw an adverse inference are relevant considerations. Finally, the Court referenced Rule 1.2(4) of the Alberta Rules of Court, which requires that the Court grant or impose remedies or sanctions proportional to the reason for granting or imposing it.

Analysis and outcome

Applying the test for contempt, Justice Gaston found that it was not unequivocally clear that the Mattis Order required RBC to go into its system to pull out "metadata" not associated with otherwise identifiable records. The Court observed that the Plaintiff was asking for records that exist in an information system that relays messages from one to another — not metadata associated with an email or a document, but rather information that apparently exists in the cyber world. No record exchange protocol as described in Practice Note 4 was present. RBC had advised that it had provided all records relating to the removal of shares from the account, and did not deny that there may be information that could be pulled out of the system; rather, such information was not a "record" that currently existed, and therefore the Mattis Order did not unequivocally require RBC to extract such data. RBC did not deny it had knowledge of the Mattis Order. The Court found that RBC was not intentional in not providing the Plaintiff with system metadata or information extraction, as such information was not available in a format permitting review in the usual course of a litigation record review. Accordingly, the test for contempt was not made out.

The Court further held that even if it had erred in the application of the test, it would have exercised its discretion not to find RBC in contempt. RBC had taken reasonable steps to comply and produced everything reasonably identifiable. Its failure to "create a record" by examining metadata to extract information that might indicate when one computer system advised another of trading information was not unreasonable. The situation was not one where the authority of the court had been threatened, and it was not in the best interests of justice to make a contempt order. The Court noted that, as observed in Reddy, there were many adequate alternate remedies available in circumstances where RBC advised that it had no further records, including adverse inference or a claim in spoliation. Most importantly, since filing the application, the Plaintiff had already successfully obtained from RBC the documentation he sought in his Statement of Claim to fend off the tax penalties and reassessment. Granting an order for contempt in these circumstances was not consonant with the foundational rules and judicial economy.

The successful party was RBC Direct Investing Inc. The Court exercised its discretion and dismissed the application to find RBC in contempt of the Mattis Order and for the further disclosure sought by the Plaintiff. The decision does not specify any monetary award, costs, or damages amount; accordingly, the total monetary amount ordered in favour of the successful party cannot be determined from the decision.