SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV11-431437

DATE: 20140530

RE: Caroline Wilson, Applicant

– AND –

Charmaine Semon and Boundless Beauties Inc., Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Alexander Rose and Genna Wood, for the Plaintiff

Charmaine Semon, in person

HEARD: May 30, 2014

ENDORSEMENT

[1] This is the fifth time this matter has been before me. The last time, I sentenced Ms. Semon to a term of 30 days in prison for contempt of court. She has now served that term and has re-attended at an examination in aid of execution.

[2] I will not recite the lengthy background to today’s motion, but rather will consider this endorsement to be a continuation of my previous four endorsements which should be read together with this one.

[3] If it was not clear before (which I believe it was), it can now be stated beyond any doubt that Ms. Semon is a liar. She has misled counsel for the Applicant throughout this process about where her money is and where and to whom she has sent it. She has also misled the court, and has demonstrated that her previous apologies to the court for her actions were altogether hollow.

[4] After serving her 30 days in jail, Ms. Semon attended another examination in aid of execution on February 7, 2014. On that date, she produced two promissory notes she had signed and given to her mother, one dated September 11, 2009 and the other dated July 14, 2009. This was surprising, since she had previously sworn that her financial dealings with her mother were undocumented.

[5] In a further surprise, when asked when these promissory notes were signed, she stated under oath that although they are dated in 2009 they were drafted and signed just a few weeks previously in preparation for the February 7th examination. After a number of further questions which she could not adequately answer – including the question of why the two notes are printed in different fonts if they were both prepared together for the present examination – Ms. Semon changed her story. She confessed that indeed they had been prepared and signed five years ago in accordance with the dates that appear on their face.

[6] It is hard to tell which position taken by Ms. Semon in this brief episode is true and which are lies. As I write this endorsement, I do not know whether it is true or false that there is no real documentation between Ms. Semon and her mother, or whether there is documentation that was recently coopered up to look like five year old documentation, or whether there is really five year old documentation. None of these versions makes any real sense, and counsel for the Applicant suspects that none of them are entirely true. I tend to agree with him.

[7] Today, Ms. Semon handed up a new affidavit which she has sworn and asked me take the time to read. She indicated to me that this affidavit answers all of the outstanding questions with respect to her examinations in aid of execution. I have now read it and find it both disturbing and, in an unusual way, refreshing.

[8] In the new affidavit, which is dated and sworn yesterday, May 29, 2014, Ms. Semon states that, contrary to her previous testimony under oath, she had a formal business relationship with her friend Anthony Guido. She has appended to her new affidavit a contract that she signed with Mr. Guido’s company, and she deposes that this contract explains why she has paid some money to Mr. Guido over the past couple of years.

[9] I find the new affidavit, and especially the newly disclosed contract with Mr. Guido, to be disturbing because it illustrates the extent to which Ms. Semon’s previous sworn evidence about her relationship with Mr. Guido was false. On the other hand, I find the new affidavit to be oddly refreshing because in it Ms. Semon explains her reason for having previously been less than fully truthful and having withheld information from opposing counsel and from the court. She states, at paragraph 48:

I have not previously disclosed the existence of this contract because my dealings with Anthony and Jennifer had come to an end and yet I did not want to jeopardize my relationship with Anthony and potential business opportunities in the future. But it has pained me to be less than forthright and I sincerely apologize to the Court for my failure to do so.

[10] She deposes, in other words, that she has falsified her answers under oath for perhaps the most traditional of reasons: she did it for the money. As Ms. Semon puts it, she had business opportunities with Mr. Guido and apparently did not want to jeopardize those opportunities by telling the truth in her previous examinations.

[11] I will add parenthetically, that the newly produced contract with Mr. Guido contains terms that are described by counsel for the Applicant as “surreal”. These include payment of many thousands of dollars by Ms. Semon to Mr. Guido for services that seem to be phantom services, conjured under a pressing need to come up with yet one more story to temporarily mollify the Applicant and the court.

[12] There are, in fact, so many falsehoods in Ms. Semon’s various examinations that I cannot, and need not, regurgitate them here. Suffice it to say, as counsel for the Applicant did in the hearing this morning, that Ms. Semon has not been believable in any material respect during the course of the examinations in aid of execution. She certainly has not purged her contempt in her latest submission to the court; rather, she has engaged in what appears to be yet one more obfuscation of the true state of her business and financial affairs.

[13] The admonishment articulated by Lax J. in Korea Data Systems Co. v Chiang (2007), 2007 82789 (ON SC), 85 OR (3d) 425 bears repeating here, that serving a period of incarceration does not relieve the debtor of the obligation to purge her contempt. Ms. Semon is under a continuing obligation to answer the questions put to her in an examination under oath honestly, and to make full, frank and material disclosure. She has not yet done so.

[14] I have said in my previous endorsements, and I will reiterate here, that where there are repeated instances of contempt there is a need for general deterrence to “repair the depreciation of the authority of the court”: Doobay v Diamond, [2011] OJ No 3419, at para 44. At the same time, there is a more specific need to ensure that the Applicant and her counsel get the information that they require in order to execute the judgment against Ms. Semon. While I am mindful that I have the authority to sentence Ms. Semon to yet another term of incarceration for her continuing actions in contempt of court, I am concerned that more focus on general deterrence will be of little assistance to the Applicant and her specific remedies.

[15] I asked counsel for the Applicant what it is that the Applicant wants at this stage, given how difficult it has been to pin down Ms. Semon’s finances. He answered that his client simply wants one full, honest, and fair examination of Ms. Semon. He suggested that the best way to accomplish that might be to have the examination conducted before a judicial official rather than in a court reporter’s office, as is the usual practice. The presence of a judge in open court has in the past been the only thing that has some small impact on Ms. Semon’s attitude toward the truth.

[16] Counsel’s suggestion strikes me as a promising one. I therefore order Ms. Semon to attend for an examination in aid of execution to be held before a Master of the Superior Court of Justice, at a time to be chosen and booked with the Masters’ office by the Applicant and her counsel. The Applicant shall notify Ms. Semon of the time and place of this examination at least seven days before it is to take place. Ms. Semon is to bring to this examination all relevant materials, including any and all contracts, promissory notes, written agreements, and bank and financial statements and records that have not already been produced to Applicant’s counsel. She is not to withhold any such information or documentation in order to preserve any business opportunity or for any other reason.

[17] The Applicant may continue to effect service on Ms. Semon in the same manner as set out in my previous endorsements.

[18] Applicant’s counsel has indicated that since none of the costs ordered to date have been paid by Ms. Semon, his client has concluded that further costs awards are futile. The Applicant is therefore not requesting any costs of today.

[19] The Applicant’s approval as to the form and content of a formal order taken out pursuant to this endorsement is dispensed with.

[20] I have until now remained seized of this matter, which I believe has been beneficial to the parties and to the court in terms of my familiarity with the facts and the issues at stake. However, at a certain point it is necessary to hand the matter over to a new set of eyes. I believe that time has come. Accordingly, if there is a need for any further court appearance in this case (after the examination in front of the Master as set out above), I will not be seized.

Morgan J.

Date: May 30, 2014