SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: John Kirby, Chris Kirby, Peter Hanley, Wayne Welter, Ken Diechert and Ray Hanson, Applicants

AND:

Enaj Mercantile Corporation, Michael Boulter and Jane Beckwith, Respondents

BEFORE: D. M. Brown J.

COUNSEL: R. Braudo, for the Applicants

HEARD: February 24, 2014

REASONS FOR DECISION

Contempt motion: counsel seeking to rely on his own affidavit of service

[1] The plaintiff shareholders of Enaj Mercantile Corporation allege that the respondent, Michael Boulter, has failed to account for funds invested in the corporation. On January 27, 2014, I granted the following orders:

(i) Effective immediately, Boulter and Enaj are restrained from dealing in any way with the Trading Account funds, or with funds in any other account of the respondents at R.J. O’Brien & Associates LLC in Chicago, Illinois, including the GIC investment into which Boulter represented the funds had been placed;

(ii) No later than 5 p.m. on Tuesday, January 28, 2014, Boulter shall deliver to applicants’ counsel a complete copy of the certificate for the GIC into which Boulter represented the funds in the Trading Account had been invested;

(iii) If, upon inspection of the terms of that GIC certificate, the applicants determine that the early termination of that GIC certificate would not cause a material reduction in the principal amount invested, they may obtain a 9:30 appointment before me for any day during the week of February 3, 2014, for an order that the respondents liquidate that GIC certificate and pay the Canadian dollar equivalent of those funds into this Court or into a trust account of a third party acceptable to all parties; and,

(iv) No later than 5 p.m. on Tuesday, January 28, 2014, Boulter shall provide to applicants’ counsel all information and copies of all documents in his possession, power or control relating to the Enaj Trading Account, including (i) monthly statements for the period December, 2012 until the present, together with (ii) detailed statements showing each trade in that account over that period of time.

[2] The plaintiffs allege that Boulter has failed to comply with the January 27 Order. They have brought a motion to find Boulter in contempt. On January 31, 2014, I adjourned the motion for the following reasons:

Counsel did not inform Boulter, by any means, that today’s hearing would start at 2:30 p.m. As a result, I cannot proceed further. Motion adjourned until some form of precise notice is given to Boulter about the date and time of hearing.

[3] The motion came back on before me on February 5. I dismissed the motion for the following reasons:

No evidence of service was filed. Motion dismissed without prejudice to plaintiffs bringing further motion on proper evidence and notice.

[4] The plaintiffs filed a notice of return of motion seeking to bring their contempt motion back on today. The affidavit of service attested to efforts to serve Boulter on February 11 and 12, 2014.

[5] That affidavit of service was sworn by plaintiffs’ counsel who appeared today to argue the motion. Rule 4.02(1) of the Law Society of Upper Canada Rules of Professional Conduct is quite clear on this point:

4.02 (1) Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not submit his or her own affidavit to the tribunal.

In the present case, I see no unusual or exigent circumstance that justifies dispensing with this requirement. In cases involving contempt, the moving party must make every reasonable effort to comply with all rules, and in this case that has not happened.

[6] I therefore adjourn the motion sine die until such time as proper evidence of proper service has been made and the plaintiffs are prepared to proceed with this motion in compliance with the Rules of Civil Procedure and the Rules of Professional Conduct.

D. M. Brown J.

Date: February 24, 2014