SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-436144
DATE: 20120814

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

DATE HEARD: August 14, 2012

E N D O R S E M E N T

[ 1 ] This is a motion for contempt of court under Rule 60.11 brought by the Applicants against the Respondent, following the continued breach by the Respondent of a series of orders of this court.

[ 2 ] Counsel for the Respondent requests an adjournment of four weeks in order to give his client time to prepare a response to this motion, which was served on May 28, 2012. In light of the many outstanding court orders, the many delays, and the many court appearances in which the court’s time has been wasted (including the filing an appeal for which no one showed up for the appellant – our Respondent – on the date set for the Court of Appeal hearing), I am not inclined to grant an adjournment.

[ 3 ] There are over $27,000.00 in costs already ordered against the Respondent. Today in court, counsel for the Respondent handed counsel for the Applicant a cheque for $10,000.00, apparently in partial payment of those costs. However, there are many steps that the Respondent has been ordered to take other than to pay costs that are the subject matter of today’s contempt motion.

[ 4 ] Since the Respondent is a corporation, the Applicants also seek an order under sub-rule 60.11 (6) that the officers and directors of the Respondent, Mr. Harpreet Singh Sethi and Ms. Jaswinder Kaur Sethi, be found in contempt, and that Mr. Harpreet Singh Sethi be ordered imprisoned.

[ 5 ] In Bell ExpressVu Ltd. Partnership v. Torroni , 2009 ONCA 85 , 94 OR (3d) 614 (Ont CA), the Ontario Court of Appeal explained the three part test for civil contempt. The constituent elements of contempt are set out as follows (at para. 21):

First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and willfully. Thirdly, the evidence must show contempt beyond a reasonable doubt.

[ 6 ] I am satisfied that all three elements of the test have been met.

[ 7 ] Counsel for the Applicants argues, and counsel for the Respondent concedes, that the orders of Lederer J. dated December 19, 2011 and January 9, 2012 are clear and unequivocal in their terms. I will not repeat those detailed terms here, but will incorporate them into this endorsement by reference. The terms set out in paragraphs 1(b) through (d) of the order of December 19, 2011 and terms set out in paragraphs 2 through 5 of the order of January 9, 2012 must be complied with by the Respondent. They are as clearly stated as could be, and Respondent has yet to fulfill those terms.

[ 8 ] Counsel for the Applicants also submits that the failure to take the specific steps ordered by Lederer J. in the two orders has been deliberate and wilfull. Lederer J. as much as said so in his costs endorsement of March 19, 2012, when he commented that the Respondent “has consistently failed to comply with its obligations and responsibilities under the Condominium Act, 1998, S.O. 1998 Ch. 19 . It has continued to demonstrate its lack of regard for what the law requires by failing to adhere to orders of this Court.”

[ 9 ] The Respondent has given no credible reason for failing to adhere to the orders of the court and producing the materials required of him under the Condominium Act as ordered. Counsel for the Respondent has today indicated that the Respondent has had some computer problems, but this does not explain the inaction in the face of court orders dating back to Deceember 19, 2011. I find that the Respondent’s failure to obey those orders has been deliberate and wilfull within the meaning of the Bell ExpressVu case.

[ 10 ] Finally, the evidence demonstrates beyond a reasonable doubt that the Respondent has been in contempt of the orders of this court. There is no other explanation for the failure of the Respondent to produce the materials and accounting that it has been ordered to produce. The record is detailed and specific as to what the Respondent was supposed to do to fulfill his obligations, and he has repeatedly refused or failed to do what is expected of him. I can come to no other conclusion than that the Respondent is in contempt of the orders of Lederer J., and the record before me leaves no reasonable doubt in that regard.

[ 11 ] As this court said in Echostar Communications Corp v. Rodgers , 2010 ONSC 2164 , at para. 25 , “A court order must be strictly complied with, both in letter and in spirit.” In the present case, there is no need to distinguish between compliance in letter and compliance in spirit, as there has been no compliance of any kind whatsoever.

[ 12 ] I therefore find the Respondent to be in contempt of court.

[ 13 ] Of the two directors of the Respondent, Harpeet Singh Sethi appears to be the principal individual behind the corporation. He is identified by Lederer J. at paragraphs 16 and 22 as being the sole key figure in the corporate Respondent’s affairs. Both counsel agree that of the two directors, it is Harpeet Singh Sethi that is the directing mind of the corporate Respondent. He is the one who has apparently been instructing counsel and who has been asking for the adjournment today.

[ 14 ] In Norfolk (County) v. 1313567 Ontario Inc ., 2011 ONSC 4156 , at para. 27 , this court indicated that, “The Court should consider whether the contempt was blatant and whether the defendants were truly contemptuous…deliberate, blatant and willful.” The blatant nature of the Respondent’s contempt here is therefore an important factor in determining the appropriate penalty to be imposed. The Norfolk case then summarizes a number of recent cases in which terms of imprisonment ranging from six to fifteen months have been imposed. As Borins J. (as he then was) said in 777829 Ontario Ltd. v. McNally (1991), 9CPC (3d) 257, at 262 (Ont Gen Div) , “unless proper penalties are imposed where a court order is deliberately disobeyed the orders of the court will have no real meaning.”

[ 15 ] Applying those principles to the present case, and given the discretion I have under Rule 60.11(5) and (6), I order that Harpeet Singh Sethi, as director of the Respondent, attend at the court at 361 University Avenue, Toronto, Ontario on September 4, 2012 for a contempt hearing. If the Respondent has not purged this finding of contempt of court by that date by fulfilling the orders of Lederer J. described above, an order will be issued against Mr. Sethi under Rule 60.11(5) in enforcement of the finding of contempt made today. Counsel for the parties are advised to be in touch with Michelle Chen, the court’s motions coordinator, to confirm the time and place of the September 4 th hearing.

[ 16 ] Given the nature of the findings I have made, it is appropriate to award costs against the Respondent on a substantial indemnity basis. The Applicants have submitted a Bill of Costs which indicates that costs on a substantial indemnity scale, with disbursements, come to just over $6,600.00. I hereby order costs of today’s motion be paid by the Respondent to the Applicants in the amount of $6,600.00, payable forthwith.

Morgan J.

DATE: August 14, 2012