COURT FILE NO.: CV-12-00445865-0000

DATE: 2012-11-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KNEW ORDER CO., LTD., Plaintiff

AND:

2291955 ONTARIO INC., carrying on business as TAI GROUPS INC. and CHIA YANG [also known as “JAMES”] SHEN, Defendants

BEFORE: T. McEwen J.

COUNSEL:
Matthew J. Latella and A. Shafey , for the Plaintiff

B. Radnoff and L. Lung , for the Defendants

Justin Baichoo , for the non-party Morheat Inc.

HEARD: August 24 and October 5, 2012

ENDORSEMENT

[ 1 ] The Plaintiff, Knew Order Co. Ltd. (“the Plaintiff”), brings this motion for an order finding the Defendants, 2291955 Ontario Inc., carrying on business as Tai Groups Inc. and Chia Yang [also known as “James”] Shen (“Shen”) (collectively “the Defendants”) and the non-party Morheat Inc. (“Morheat”) to be in contempt of court as a result of their failure to abide by the Order of Chapnick J. dated May 25, 2012 as well as Orders made by me on June 12, 2012 and July 19, 2012.

[ 2 ] Essentially, these Orders compelled the Defendants and Morheat to deliver logbooks and other related documents (“the logbooks”) relating to the aircraft engine that had been the subject matter of the aforementioned Orders.

[ 3 ] The Defendants and Morheat take the position that they are not in possession of the logbooks and as such cannot return them to the Plaintiff.

[ 4 ] The hearing proceeded by way of motion. After some discussion, the parties agreed that the matter could proceed in this fashion and did not have to be heard by way of viva voce evidence. Accordingly, they agreed that I could rule upon the contradictory facts contained in the affidavit materials. After a review of the relevant caselaw, I agreed to proceed in this fashion.

[ 5 ] All counsel also agreed that a party seeking to prove contempt must do so “beyond a reasonable doubt”: Prescott-Russell Services for Children and Adults v. N.G. et al (2006), 2006 81792 (ON CA) , 82 O.R. (3d) 686, para. 27 (C.A.).

[ 6 ] After hearing the submissions of the parties to the motion and having extensively reviewed all of the filed materials, I dismiss the Plaintiff’s motion for the following reasons:

• Firstly, with respect to Morheat, the case against it is entirely circumstantial. Notwithstanding the fact that Morheat does have some links to the Defendants I can see no plausible motive for it to become involved in the theft of the logbooks based on the record before me.

• With respect to the Defendants, while I believe that it is more likely than not that Shen took the logbooks, I cannot conclude beyond a reasonable doubt that this in fact took place. Even though there is compelling evidence that the logbooks would have accompanied the engine when it was shipped from Miami, Florida to Morheat’s premises, there is no direct evidence or eyewitness evidence that would establish that Shen took the logbooks. The engine and logbooks could have been handled by a number of persons, including those at United Turbine, so that there was a potential for loss of the logbooks. This, coupled with the fact that there is no eyewitness evidence linking Shen to the theft of the logbooks leads me to the conclusion that the Plaintiff has not established contempt beyond a reasonable doubt. In this regard, I am mindful of the fact that although there was more than one opportunity for Shen to take the logbooks, the Plaintiff relies heavily on a visit that Shen made to Morheat’s premises in January of 2012. At that time a Morheat employee, Geintras Repecka (“Repecka”), was working and witnessed Shen attend at the crate that contained the engine and purportedly the logbooks. Repecka has testified that he did not see Shen remove any documents. While this may not be surprising given the Plaintiff’s allegations, it cannot be overlooked that Repecka did give other evidence, which is being relied upon by the Plaintiff at the motion that was damaging to the position of the Defendants and Morheat. Accordingly, there is a credible element to his evidence.

[ 7 ] Taken as a whole, given the circumstantial nature of the Plaintiff’s case, potential for loss during transport and the evidence of Repecka, I cannot conclude beyond a reasonable doubt that the Defendants and Morheat were involved in the removal of the logbooks contrary to the aforementioned Orders. The Plaintiff’s motion is dismissed.

[ 8 ] If the parties cannot agree upon the issue of costs, submissions may be made to me in writing. The Defendants and Morheat shall deliver their submissions, not to exceed three pages, within 21 days. The Plaintiff shall have 14 days thereafter to respond and the Defendants and Morheat seven days thereafter to reply.

T. McEwen J.

Date: November 29, 2012