SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-495577
DATE: 20140317
RE: Bita Maftoun, Plaintiff
AND:
2146137 Ontario Inc. and Bakish Mand aka Bob Mand, Defendants
BEFORE: Carole J Brown J.
COUNSEL:
Bita Maftoun, representing herself
Harvey Mandel, for the Defendants
HEARD: March 13, 2014
ENDORSEMENT
[1] The plaintiff, Bita Maftoun ("the plaintiff") brings this motion for an Order for contempt on the part of the defendants, pursuant to Rule 60.11 of the Rules of Civil Procedure, on the ground that the defendants have failed to comply with my Order of January 27, 2014; for an Order for the arrest and committal of the defendant, Bob Mand, and an Order varying my Order of January 27, 2014 to request additional work be completed and/or damages paid.
[2] The Superior Court of Justice has inherent jurisdiction to punish for contempt of court where such contempt consists of a violation of a court order. Fundamental to a contempt order is maintenance of respect for the court and the rule of law. While criminal contempt is more concerned about punishment, in civil contempt, the court’s emphasis is on attempting to obtain compliance with the court order.
[3] A finding of contempt of court is a serious matter that is quasi-criminal in nature. Pursuant to established jurisprudence, the tripartite test for a finding of contempt of court is as follows:
The Order that was breached must state clearly and unequivocally what should and should not be done;
The party who disobeyed the Order must do so deliberately and willfully;
The evidence must show contempt beyond a reasonable doubt.
Any doubt must be resolved in favour of the person alleged to have breached the Order.
[4] Based on the evidence before me, and on the settled jurisprudence regarding contempt and the tripartite test set forth at paragraph 3, supra, I find that the plaintiff has not satisfied the three-pronged test for contempt.
[5] As regards the first part of the tripartite test, and the Order alleged to have been breached, I find that Order to be clear on its face and, as set forth at paragraphs 2 and 20 of the Order, what was and was not to be done was clearly stated.
[6] As regards the second part of the tripartite test, the deliberate and willful disobedience and failure to comply with the Order, I have carefully reviewed all of the evidence provided to me by both parties, and based thereon, do not find any evidence that the defendants willfully and deliberately breached the Court Order or conducted themselves in a manner designed to breach the Court Order.
[7] I have reviewed the e-mails that were exchanged between the parties. The e-mails show that from January 28, the day after my decision was rendered, counsel for the defendant e-mailed the plaintiff requesting dates and times for workers to commence work on the unit. There were almost daily e-mails through February 14, with hiatuses thereafter.
[8] It is clear that, from January 28, the defendant landlord attempted to undertake the work to be done pursuant to my Order of January 27. It is further apparent from the e-mails that the plaintiff began to make additional demands outside the scope of the Order, including that her current inventory in the back room of the unit be moved and stored by the landlord at his expense, or, in the alternative that he reimburse her for doing so; that the landlord pay for the costs of having her project manager attend at the unit while the workers were there; that a work permit from the City be provided to her prior to having a shipping door installed. As regards moving her inventory, the plaintiff, ultimately, in early February, advised that she would make arrangements for removal of the inventory from the back room at her own cost, such that the defendants' workers could continue their work regarding the plumbing.
[9] The exchange continued and by January 31, the plaintiff advised the defendant that she would be bringing a motion before the court for interim damages. As my Order indicated that the work was to be completed by February 28, the defendant continued to attempt to proceed to make arrangements with the plaintiff for access to the premises for that purpose. The plaintiff continued to make additional demands outside the scope of my Order. The plaintiff alleged that the workers did not always attend at the premises as scheduled, which cost her more money, although this is denied by the defendants. On February 21, the defendants advised that their workers would be at the premises on February 24 to complete outstanding work, but were advised by the plaintiff that she was not able to attend at the premises at that time, her project manager was on vacation and that the first available date for attendance to complete the work was March 5.
[10] The plaintiff advises that the electrical installation and hookup has now been completed, that heat has been provided, that one of the two bathrooms has been completed but that there is no water hookup. She advises that the only outstanding matters are the water hookup, installation of a second bathroom and a shipping door, although she has moved for damages rather than seeking installation of the shipping door at this motion. Her concerns with regard to a shipping door are (1) that the defendants have not confirmed that they have approval from the City to install a door despite the defendants’ indication that they have, and (2) that opening the exterior wall will cause damage to her inventory, although I note that such inventory was to have been removed from the back room. There is no evidence before this Court on which such an Order as regards either installation of the shipping door or damages in lieu can be determined. While the plaintiff has included in her motion materials in support, a document which she says was obtained online and which, she submits, indicates that there is no approval from the City, there is no affidavit evidence to explain what the document is or what it represents as regards proof of the City's approval or lack thereof regarding installation of a shipping door.
[11] As indicated above, I do not find that the plaintiff has satisfied the test for contempt. The defendants have demonstrated an intention to carry out the Order, but have encountered some difficulties and obstacles from the plaintiff, as set forth above. As regards the outstanding issues arising from my initial Order, namely the water hookup, installation of the second bathroom and a shipping door, based on discussions I have had with the plaintiff and counsel for the defendants, I make the following orders:
Water hookup is to be provided by on or before March 20, 2014.
Construction of the second bathroom, with water hookup, is to be completed by on or before April 10, 2014.
In order to complete the foregoing work, the workers and landlord are to access the premises through the back door. However, if for some reason certain materials have to be brought in through the front door, both parties are to make all reasonable efforts to ensure that access is permitted through the front entry only for the restricted purpose of bringing in whenever materials may not be able to be brought in through the back door.
In order that the above work is completed as set forth above, the parties are to work together and cooperate to ensure that access is permitted by the plaintiff and the work is done by the defendants as ordered herein.
[12] The balance of the relief sought in this motion, which will require more supporting evidence and transcript or viva voce evidence, is adjourned, to be rescheduled as necessary.
[13] I am not seized of this matter.
Costs
[14] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
Carole J. Brown J.
Date: March 17, 2014