SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-11-436144
Date: 20120910

RE: Tahir Ahmad, Toronto Condominium Corporation No. 1908, Sanjay Saran Mathur, Syed Z. Qadri, Marceellus Wiradharma, 1752166 Ontario Inc., Anjaniay Holdings Inc., Rexdale Jame Masjid and 1770420 Ontario Inc.

and

1288124 Ontario Inc.

BEFORE: Justice E.M. Morgan

COUNSEL:
Yadvinder Singh Toor, for the Applicants

Dilreet Dandiwal, for the Respondent, 1288124 Ontario Inc.

Sam DeCaprio, Michael Arbutina, Ricardo G. Federico, for Harpeet Singh Sethi

DATE HEARD: September 10, 2012

ENDORSEMENT

[1] On August 14, 2012 I found the Respondent in contempt of court and ordered its corporate director, Mr. Harpeet Singh Sethi, to attend at court on September 4, 2012. When Mr. Sethi did not appear on September 4, 2012 at the hearing scheduled for sentencing in the contempt motion, I ordered that a bench warrant be issued in order to ensure Mr. Sethi’s attendance at court today. Mr. Sethi has appeared in court this morning, and has retained counsel to represent him personally and independently of the Respondent’s counsel.

[2] Mr. DeCaprio, on behalf of Mr. Sethi, has requested another adjournment in order to bring himself up to speed and to give Mr. Sethi and his accountant some extra time to prepare the financial and accounting records that the Respondent has been ordered to produce. Mr. Toor, on behalf of the Applicants, opposes the adjournment, and points out that there have been numerous adjournments since the order of Lederer J. of December 19, 2011, and that none of the financial and accounting records listed in that order have been produced to date.

[3] Mr. DeCaprio has filed this morning an affidavit of Mr. Sethi indicating that he has engaged the accounting firm of Satish Thakkar to prepare the financial statements. The affidavit also indicates that there are missing accounting records, invoices and bank statement that Mr. Sethi is still in the process of locating.

[4] In addition, Mr. Sethi’s affidavit this morning reiterates that his medical condition prevented him from attending court last week. Mr. DeCaprio has also submitted a more detailed statement from Mr. Sethi’s physician outlining the medical condition. Given the personal nature of the medical evidence, he has requested that the court keep this one document sealed so that it not be available to the public. I have allowed Mr. Toor to read the physician’s letter, but have ordered that it not be reproduced and order that it remain sealed in the court’s file.

[5] Mr. Sethi’s affidavit places the blame for his non-attendance last week on an inadvertent miscommunication with Respondent’s counsel, Mr. Dandiwal. I am sympathetic with Mr. Toor’s submission that there has been a litany of promises and adjournments during the course of these proceedings and that at some point this has to end. I am also sympathetic with Mr. Toor’s submission that whatever compliance Mr. Sethi and the Respondent have made to date in respect of the order of Lederer J., has been more window dressing than substance. As Cumming J. stated in Sussex Group Ltd. v. Sylvester, 2002 27188 (ON SC), 2002 CarswellOnt 3893, at para. 68, “this limited compliance has been only for the purpose of giving an appearance of substantive compliance with the Orders.”

[6] That said, Mr. Sethi is more likely to produce the required records and documentation if he is available to work with the accountant than he is if he is in a detention centre. I want to give the Respondent every chance to purge the contempt in which it has been found and to make the required disclosure, for the good of all parties to this matter. Accordingly, I will grant an adjournment to Wednesday, September 19, 2012. I order that the Bench Warrant ordered on September 4, 2012 and entered on September 5, 2012 be rescinded, and that this matter be bound over to September 19, 2012. I also order that the appearance on September 19 th is peremptory on the Respondent and Mr. Sethi. I will remain seized of this matter.

[7] Given that the Respondent remains in contempt of court and has not yet purged the contempt, the Applicants are entitled to costs on a substantial indemnity basis. I order the Respondent and Mr. Sethi, together, to pay the Applicants costs of today’s appearance and the appearance on September 4, 2012, within three days of today. These costs are fixed at $4,500.00.

Morgan J.

DATE: September 10, 2012