COURT FILE NO.: CV-10-1352-00
DATE: 2014 08 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 2099415 ONTARIO INC., AJIT KANG, AJITA KANG, GURBAKHSISH GREWAL, BHAGWAN GILL, RAJNEESH JINDAL AND MANJIT
v.
HARPEET SINGH SETHI, JASWINDER KAUR SETHI, 2000768 ONTARIO INC., DREW AIRPORT DEVELOPMENT INC., 1288124 ONTARIO INC., HARKIRAN BOPARAI, 2286799 ONTARIO INC., NAVJEET SINGH MANGAT, 2299720 ONTARIO INC., KIRIT SHAH AND VASDEV CHANCHLANI
BEFORE: EMERY J
COUNSEL: E. Rogers, for the Plaintiffs
A. Valova, for the Defendants
HEARD: March 4, 2014 and May 14, 2014
ENDORSEMENT
[1] A defendant who does not comply with court orders in a timely or forthright manner is one of the most, if not the most vexing of obstacles a plaintiff must overcome in the course of a civil action. Court orders are made to enforce the rights and obligations of the parties to the civil process, and to manage litigation conduct within acceptable boundaries.
[2] The responsibility to invoke the correct mechanisms to achieve compliance rests in almost all cases with the enforcing party. It is incumbent on that party to bring the appropriate motion and to frame in unequivocal terms the relief required to ensure compliance.
[3] For the following reasons, I am making orders on this motion limited to the arguments made by counsel for the plaintiffs. These orders are made to reflect fairness to the parties under all of the circumstances, while at the same time reflecting the importance of following court orders.
Background
[4] The plaintiffs bring this motion to enforce previous orders made in this action against the defendant Harpeet Singh Sethi and the other defendants. The previous motions were made in this action to further the claims made by the plaintiffs for damages in connection with three fraudulent conveyances alleged in the fresh as amended statement of claim in respect of the same piece of commercial property.
[5] In the freshest amended statement of claim, the plaintiffs, save and except 2099415 Ontario Inc. (“209”), allege that Mr. Sethi alone or with other personal defendants were at all material times directors of 2000768 Ontario Inc. (“768”), 2286799 Ontario Inc. (“799”) and 1288124 Ontario Inc. (“128”).
[6] In the action, the plaintiffs allege that:
a) The sale and transfer by a partnership known as Orfus Realty to 768 of the commercial property was scheduled to close on or about April 30, 2003 under an agreement of purchase and sale. The agreed upon purchase price was $2,475,000 based on $275,000 an acre for nine acres of land. The transaction did not close and litigation was commenced between 768 and Orfus Realty.
b) Mr. Kang and perhaps others entered a memorandum of understanding on August 6, 2004 (the “MOU”) with Mr. Sethi to incorporate a company, Drew Airport Development Inc., to take an assignment of an agreement of purchase and sale as assignee from 768 as the assignor. Under this MOU, Drew Airport was to take title to the commercial property 768 was purchasing from a partnership known as Orfus Realty. It is unclear if Mr. Kang is alleging that he is or was to be a shareholder in Drew Airport, or if the MOU contemplated some sort of partnership or joint venture.
c) Whether he alleges an ownership stake in Drew Airport or was a lender or investor in Drew Airport, it is clear that he and Mrs. Kang advanced funds to Drew Airport expecting it to take title when the purchase of the commercial property closed.
d) Drew Airport was incorporated on August 17, 2004 and Mr. Sethi and two others were named as directors.
e) On August 28, 2004, an assignment of agreement of purchase and sale was executed to transfer the interests of 768 in the agreement of purchase and sale to Drew Airport for the purchase the commercial property from Orfus Realty.
f) Pursuant to the MOU, the plaintiffs Ajit Kang and Ajita Kang made significant payments to Mr. Sethi on account of Drew Airport. It was an express and/or implied term of the MOU that Drew Airport would seek sufficient financing to proceed with the purchase of the commercial property at issue.
g) The plaintiffs, save and except 209, allege in the fresh as amended statement of claim that Sethi agreed and represented to them that the funds provided by them would be held in trust until the outcome of litigation between 768 and Orfus Realty. They further allege that it was agreed that those funds would either be applied for the purpose of fulfilling the memorandum of understanding given when the commercial property was transferred to Drew Airport, or that those funds would be returned.
h) On January 22, 2009, 768 obtained a judgment for specific performance of the agreement of purchase and sale against Orfus Realty. Mr. Sethi did not advise the plaintiffs of this fact.
i) The judgment was appealed and ultimately upheld on January 27, 2011 entitling 768 to specific performance of the agreement of purchase and sale and transfer of title to the commercial property. Again, Mr. Sethi did not advise the plaintiffs of this fact.
j) On June 1, 2011, the property was transferred from Orfus Realty to 799 without the knowledge and/or consent of the plaintiffs. On June 1, 2011, Mr. Sethi and another individual were the only officers and directors of 768. On June 1, 2011, Mr. Sethi and a different individual were the only officers and directors of 799. The plaintiffs plead in the fresh as amended statement claim that these two corporations and their respective officers and directors authorized, directed and/or instructed Orfus Realty to transfer title to the commercial property to 799 instead of to 768 so that it could follow the terms of the MOU. The plaintiffs allege that this transfer, characterized as Conveyance 1, was a fraudulent conveyance made with the intent to defeat, hinder, delay or defraud the plaintiffs.
k) The plaintiffs further allege that on September 20, 2011, 799 purportedly transferred title to the commercial property to 2299720 Ontario Inc. (“720”) for the stated consideration of $7,901,000. The plaintiffs allege that the defendant Kirit Shah was the sole officer and director of 720 at the time. The plaintiffs allege that Mr. Shah is a long-time friend and colleague of Mr. Sethi and was aware of the terms of the assignment of agreement of purchase and sale from 768 to Drew Airport.
l) The plaintiffs further allege that this transfer, characterized in the fresh as amended statement of claim as Conveyance 2, was a fraudulent conveyance entered by the defendants with the intent to defeat, hinder, delay or defraud creditors or others such as the plaintiffs.
m) The plaintiffs further allege that on or about September 29, 2011, a charge in the stated amount of $8,218,000 was registered against title to the property by 720 in favour of Vasdev Chanchlani. This was referenced in the fresh as amended statement of claim as Fraudulent Conveyance 3. The plaintiffs plead that the registration of the charge was entered into by 720, Mr. Shah and Mr. Chanchlani with the intent to defeat, hinder, delay or defraud creditors or others such as the plaintiffs. The plaintiffs allege that the charge does not represent any actual advance in the stated amount and that as a fraudulent conveyance is void as against the affected plaintiffs.
n) As a result of these transactions, the plaintiffs, except 209, claim a legal or equitable interest in the commercial property based upon their respective contributions pursuant to the MOU. These plaintiffs plead that the payments for contributions made pursuant to the MOU constitute funds of an express, implied, constructive and/or resulting trust and were advanced for the specific purpose of acquiring an interest in the commercial property.
o) The plaintiffs, except for 209, allege a conspiracy against Mr. Sethi and the other defendants with the predominant purpose of causing injury to them. They plead in the alternative that the acts of the noted defendants in engaging in conveyances 1, 2 and 3 were unlawful, and were acts directed towards the noted plaintiffs that those defendants knew or ought to have known in the circumstances would cause injury to the plaintiffs.
p) The plaintiffs, except for 209, also claim that Mr. Sethi owed a fiduciary duty to Drew Airport and that he breached that fiduciary duty, as well as committing a breach of trust, defalcation, conversion of corporate opportunity and conversion. The plaintiffs also allege that Mr. Sethi made representations that he knew were false and made for the purpose of keeping the noted plaintiffs interested in pursuing the MOU.
q) The plaintiff 209 advances a separate claim against Mr. Sethi, 128, and its sole officer and director Jaswinder Sethi for $90,000 on account of breach of fiduciary duty, breach of trust, defalcation, fraudulent misrepresentation and conversion for the payment of $85,000 towards the purchase of a condominium unit in a building at 127 Westmore Drive in Malton, Ontario owned by 128. 128 failed to enter into an agreement of purchase and sale or to convey title to that condominium unit despite receiving $85,000 from 209.
[7] This action was commenced by the plaintiffs in April of 2010. On February 9, 2012, Justice Bielby made an order granting leave for the plaintiffs to amend the statement claim form of the fresh as amended statement of claim. Justice Bielby also granted leave for a certificate of pending litigation to issue for registration against title to the commercial property which forms the subject matter of the MOU.
[8] The defendants served a fresh as amended statement of defence in August of 2012.
[9] Thereafter followed a number of court orders made to compel the defendants to comply with their obligations under the Rules of Civil Procedure. Those court orders, and steps taken or not taken by the defendants to satisfy them include:
The Unpaid Costs Order of July 15, 2011
- On July 15, 2011, Justice Price orders the defendants to pay $850 in costs.
Motion to Strike Defence, May 17, 2012
A motion is brought by the Plaintiffs, returnable May 17, 2012, seeking an order striking the Defendants’ statement of defence.
On the morning of the motion, the Defendant Sethi pays the outstanding costs ordered by Justice Price against him the previous year.
On May 17, 2012, Justice Price establishes a timeline for delivery of and all Amended Statements of Defence and for the delivery of Affidavits of Documents by June 25, 2012.
Motion to Strike Defence, July 13, 2012
The Defendants fail to deliver their Affidavit of Documents by June 25, 2012.
The Plaintiffs brings a motion on July 13, 2012 to strike the Defendants’ Statement of Defence.
On the morning of the motion, the Defendants deliver their Affidavit of Documents, which allegedly omitted relevant documents.
On July 13, 2012, Justice Daley orders the Defendants to deliver a Supplementary Affidavit of Documents by August 10, 2012 and imposes a timeline which includes a September 21, 2012 deadline for the completion of examinations for discovery.
The Defendants are ordered to pay costs of $1,500 and disbursements totaling $417.48, plus HST.
Motion to Strike Defence, September 14, 2012
By September 5, 2012, the Defendants have not complied with Justice Daley’s order in that they had failed to deliver their Supplementary Affidavits of Documents, failed to provide payment of the costs ordered of Justice Daley, and failed to provide dates of availability of examinations for discovery in September 2012.
The Plaintiffs therefore bring another motion returnable September 14, 2012 to strike the Statement of Defence.
On the morning of the motion, the Defendants pay the outstanding costs award against them.
On September 14, 2012, in accordance with a consent filed, Justice Donohue varies the timelines in place for the proceedings, requiring the Defendants to serve a Supplementary Affidavit of Documents by October 2, 2012 and to complete examinations for discovery by November 20, 2012.
The Defendants are ordered to pay costs of $2,400 by September 28, 2012.
Examinations on November 21, 2012 Postponed
The Plaintiffs allege that the Defendants failed to provide their availability for examinations.
The Plaintiffs served notices of examination upon the Defendants for November 21, 2012.
Upon service of these documents, counsel for the Defendants advises that the Defendants are out of the country until mid-December 2012.
Examination on January 25, 2013 Adjourned
The parties agree to conduct the examinations on January 25, 2013.
At 2:00 p.m. on January 24, 2013, counsel for the Defendants emails counsel for the Plaintiffs to request a further postponement of the examinations, as his client, Harpeet Sethi is ill, suffering from an ailment which has impacted his ability to stand, walk, and “function properly cognitively” given his “easily evident profound psychological overlay.”
Notwithstanding this request, the Plaintiffs insist on requiring the Defendants’ attendance to be examined for discovery on January 25, 2013.
The examination of Harpeet Sethi is conducted in part on January 25, 2013 but is adjourned because of the indicated medical issues.
Postponed Continuation of Examination, February 22, 2013
It is agreed that the continued examination of Mr. Sethi will take place on February 22, 2013.
The Plaintiffs allege that the Defendants once again requested the indulgence of the Plaintiffs to postpone the examination yet again because of a scheduling conflict on February 22, 2013.
Continued Examination March 1, 2013
Counsel for the plaintiff consent to conducting the continuation of Mr. Sethi’s examination on March 1, 2013.
The examination of Mr. Sethi continues on March 1, 2013 and is completed subject to any additional questions which the Plaintiffs might have with respect to the Defendants’ answers to undertakings, answers to questions taken under advisement, and the outcome of any questions refused.
Defendant’s Failure to Deliver Answers
The Plaintiffs allege that the Defendants failed to deliver their answers within the 60 days required by the Rules.
By July 22, 2013 the Defendants have still not delivered their answers. Counsel for the plaintiffs request those answers be delivered forthwith.
Motion to Compel Answers, in September 20, 2013
On August 8, 2013, counsel for the Plaintiffs writes to counsel for the Defendants requesting available dates to argue a motion in September 2013 to answer undertakings and questions taken under advisement or refused.
The Plaintiffs allege that no dates for the motion were provided.
The Plaintiffs bring a motion, returnable September 20, 2013, to compel the Defendant Harpeet Singh Sethi to answer undertakings, under advisement, and refusals.
The motion is resolved in part on consent. By order of Justice Herold, Harpeet Sethi is ordered to provide all answers to undertakings and questions taken under advisement arising from the examinations conducted on January 25, 2013 and March 1, 2013 within 30 days of the Order.
The remainder of the motion is adjourned to October 25, 2013.
Harpeet Sethi is ordered by Justice Herold to pay costs of $1,250.
Return of Motion October 25, 2013
In a letter dated October 24, 2013, counsel for the Defendants purports to serve Mr. Sethi’s answers to the questions Mr. Sethi was ordered to answer by Justice Herold.
On the return of the Plaintiff’s motion on October 25, 2013, Justice Fitzpatrick makes an endorsement that reads, in part:
The parties/counsel attend again before this court to address fundamentals mandated by the Rules of Civil Procedure, namely production and attending for related examinations. These are basic steps required for the timely and expected progress for any action. The record before me amply demonstrates ongoing difficulties for Defendant’s counsel to meet obligations under the Rules (i.e. difficulties in having their client meet these obligations). There is no doubt that costs, again, are warranted here and Defendants’ counsel to her credit acknowledges this. … Costs of today and the relief set forth at Schedule “A” attached to this endorsement are fixed at $2,000.00 all-inclusive payable within 30 days. Order to otherwise go pursuant to Schedule “A”attached…
The attached Schedule “A” imposes a timetable and also adjourns the motion regarding refusals, sine die, providing that it may be brought back upon seven days’ notice.
- Justice Fitzpatrick’s cost award of $2,000 remained unpaid as of the date the motion before me was argued.
DISPOSITION
[10] Mr. Rogers for the plaintiffs bringing this motion and Ms. Valova for the defendants first argued the motion before me on March 4, 2014.
[11] Although the plaintiffs’ notice of motion listed a finding of contempt as relief among other orders requested to make the defendants comply with previous orders, I made the following note on hearing Mr. Rogers’ initial submissions on March 4:
They are not seeking an Order for contempt (because Mr. Sethi has not been served personally).
[12] Mr. Rogers proceeded to argue the motion seeking other relief requested on the motion. Ms. Valova argued to oppose that other relief. After hearing submissions, I reserved my decision.
[13] Mr. Rogers subsequently wrote a letter to the court dated April 9, 2014 to provide me with the decision of the Court of Appeal in Sabourin and Sun Group of Companies v. Laiken, 2013 ONCA 530 released on August 27, 2013, and to ask that I take that case into consideration on the issue of contempt.
[14] Ms. Valova, understandably, opposed this request. In a letter to the court dated April 10, 2014 she objected to the fact that Mr. Rogers wrote the letter in the first place, and references Rule 1.09. She also stated that her client would be “highly prejudiced” if I were to consider the Sabourin case as it was available to Mr. Rogers at the time the motion was heard, and because contempt was not actively pursued on the motion.
[15] In view of the foregoing, I invited counsel to re-attend before me on May 14, 2014 to make further submissions. In the course of those submissions, I identified the following issues for counsel to address:
As a threshold question, whether Mr. Rogers can now resurrect the motion for contempt on behalf of the moving parties; and
If he can, what is the applicable test and other requirements for a finding of contempt?
[16] Ms. Valova handed up Hobbs v. Hobbs case, 2008 ONCA 598, and made reference to the appeal decision in Royal Bank of Canada v. Yates. As she did not have a copy of that case with her for Mr. Rogers and the court, I directed counsel to make submissions in writing on the following:
Ms. Valova to provide written submissions on the proper test for contempt and the completion of her argument on the motion for contempt (if I find for Mr. Rogers on the threshold issue) by May 16, 2014; and
Mr. Rogers to provide his written submissions in reply (remembering that it is his clients’ motion to begin with) by May 23, 2014.
[17] Mr. Rogers made the argument that he was entitled to seek a finding of contempt against Mr. Sethi in any event of his initial submissions on the motion. Mr. Rogers argued that, even though Mr. Sethi may not have been served personally with the motion for contempt as required by Rule 60.11(2), his counsel had been given notice of the motion. Mr. Rogers also submitted that I have the power under Rule 2.03 to dispense with compliance with any rule at any time. I note that the discretion given by Rule 2.03 is qualified to circumstances only where and as necessary in the interests of justice.
[18] Mr. Rogers further submitted that even though the motion for contempt was not argued on the first day of the motion, counsel for the parties had an opportunity to argue that part of the motion on the re-attendance.
[19] Ms. Valova emphasized on the re-attendance that contempt is a serious remedy to seek in a civil context, and has at its core a criminal law character. Ms. Valova argued that if Mr. Rogers had included the request for a finding of contempt in his main submissions on the motion, she would have calibrated her entire argument differently. She also argues that Mr. Rogers had or should have had the Sabourin case on the first day of the motion when I heard the main submissions.
[20] In regard to the appropriate test for contempt, Mr. Rogers relies upon the Sabourin case to find Mr. Sethi in contempt. The Sabourin decision stands for the principle that all that is necessary to establish civil contempt is the contemnor’s knowledge of the terms of the order, and evidence that he is in breach of that order. According to Sabourin, a willful or deliberate intention to disobey the order itself is not an element required for the court to make a finding of civil contempt.
[21] Mr. Rogers takes the position that Mr. Sethi had full knowledge of the terms of five previous orders, and that the motion materials provide clear evidence of his breach of those orders. The test for contempt is knowledge and conduct based, and does not necessarily require proof of Mr. Sethi’s intention to disobey the order itself.
[22] Ms. Valova made submissions in writing at my request on the case of Royal Bank of Canada v. Yates Holdings Inc., 2008 ONCA 474 (Ont. C.A.) as authority for the applicable principles to find civil contempt. The Royal Bank of Canada v. Yates case refers to the decision in Prescott-Russell Services for Children and Adults v. N.G. et al. in which the following criteria is set out in order to find contempt:
An order said to have been breached must state clearly and unequivocally what should or should not be done;
The party who disobeys the order must do so deliberately and willfully; and
The evidence must show contempt beyond a reasonable doubt.
[23] On the threshold question of whether Mr. Rogers may now seek a contempt order against Mr. Sethi, I find that it would be unfair to consider this remedy given his statement on the first day of the motion that he was not pursuing that relief against Mr. Sethi. This set the entire stage for argument that day and the organization of the issues argued by counsel. It would set a dangerous precedent for the court process if counsel were permitted to resurrect a part of a motion or a ground for relief that was expressly abandoned except in the rarest of circumstances. The subsequent finding of an authority that was or could have been available when the motion was argued is not one of those circumstances. It also takes the responding party by surprise as the organization, nuances and presentation of their submissions to make full answer to the motion may have been crafted differently because of that concession. I therefore deny Mr. Rogers’ request to be heard on that part of the motion seeking a contempt finding against Mr. Sethi.
[24] Even if I granted Mr. Rogers’ request to consider submissions on that part of the motion seeking a contempt order, I did not have evidence before me to show Mr. Sethi to be in contempt beyond a reasonable doubt as required by the decisions of the Court of Appeal in Royal Bank of Canada v. Yates and Prescott-Russell Services for Children and Adults v. N.G. et al. The evidence does not show contempt beyond a reasonable doubt because prior costs orders were ultimately paid even though they were perpetually late. The affidavit sworn by James Smith explains that the $2,000 to satisfy the costs order of Justice Fitzpatrick was paid to Mr. Sethi’s firm in trust in December 2013 and through the inadvertence of those lawyers the costs were not paid at the time to the plaintiffs or their counsel.
[25] I further find on the evidence that while the dates for the examinations for discovery of Mr. Sethi were cancelled or postponed outside of timeframes set by the court, those examinations were ultimately conducted. The examination for discovery scheduled for February 22, 2013 was postponed because of a scheduling conflict with the defendants’ lawyers. That examination for discovery was ultimately rescheduled for March 1, 2013, resulting in the various undertakings and refusals that formed the subject matter of the plaintiffs’ motion before Justice Herold on September 20, 2013.
[26] In view of my decision above, I do not consider it necessary to reconcile those cases with the Sabourin decision written by Justice Sharpe for the Court in 2013 as to whether it is necessary to find that a party who disobeys an order must do so deliberately and willfully. In any event, Ms. Valova informs me that the Supreme Court of Canada granted leave to appeal the Sabourin decision on March 20, 2014.
[27] Although I am not considering a motion for contempt against Mr. Sethi, I do find on the evidence before me that he is a reluctant and difficult defendant. Mr. Sethi and the corporate defendants he controls are repeatedly late in meeting their obligations under the Rules of Civil Procedure and any court order. Mr. Sethi has conducted himself throughout this litigation in a cavalier fashion. If he is not a “litigation artist”, as Mr. Rogers describes him, he comes very close to it.
Sufficiency of Answers
[28] Even on a cursory review of the charts containing Mr. Sethi’s answers, it is evident that Mr. Sethi has not earnestly endeavoured to provide complete answers to those questions that he was ordered to answer by Justice Herold on September 20, 2014. He attempted to satisfy the order by providing a superficial response. Mr. Rogers has characterized Mr. Sethi’s efforts as providing “window dressing” in hopes those efforts will be accepted to meet his obligations under the Rules and the terms of the court order.
[29] I agree. It is not acceptable for Mr. Sethi and the corporations he serves as an officer or director to offer window dressing in hopes of discouraging the plaintiffs from entering the information store. Mr. Sethi is in the unique position to provide bank information from relevant bank accounts of the corporations he represents, relevant tax returns from Canada Revenue agency, and relevant financial documents from the accountants who provide services to him and to those corporations.
[30] In Vacca v. Banks, 2005 CarswellOnt 146, Justice Ferrier stated that repeated delays and failures to comply with procedural orders affect not only the parties to the action but also significantly increase the costs of the administration of justice because of the impact on administrative and judicial resources. Repeated breaches of such orders must attract significant sanctions. Even though Justice Ferrier made those comments in the context of an appeal of his decision of a Case Management Master under the case management rules, I find that the same policy applies to this motion, particularly in Brampton.
[31] In Vacca v. Banks, the court was addressing the decision of a master’s order dismissing the plaintiffs’ action for repeated noncompliance with court orders. The master had dismissed the action after the plaintiffs’ had breached four orders, including a “last chance” order. In the case before me, Mr. Sethi has skirted previous court orders so often in this action that it seems his tolerance for judicial management has increased. He has survived three motions to strike his statement of defence. Like the court in Vacca v. Banks, if I find that he has not provided proper and sufficient answers to the undertakings ordered by Justice Herold, this shall constitute a “last chance” order. The fact that Justice Herold’s order was made on consent underscores the urgency of requiring Mr. Sethi to comply.
[32] I consider the repeated breach of court orders made to enforce rights and obligations set out in the Rules of Civil Procedure to warrant a last chance order, even if such breaches are cured when push comes to shove. The framework of civil procedure under the Rules, unless waived expressly or implicitly by the parties to an action, are subject to orders that must be followed to ensure the orderly operation of the civil litigation process. Multiple breaches of court orders by a party in succession have a cumulative effect that is unjust to the entitled party and causes unnecessary delay and expense. This behaviour is contrary to the principles behind the operation of the Rules generally, and Rule 1.04(1) in particular.
[33] The plaintiffs attached an undertaking chart to their motion materials from the examination for discovery of Mr. Sethi on January 25, 2013. The chart sets out each specific undertaking and the answer provided by Mr. Sethi for himself and on behalf of any corporate defendant in which he is an officer or director. I find that Mr. Sethi’s answers to undertakings number 6 and 8 are not sufficient as answers. I am informed that the company 2000765 Ontario Inc. referred to in undertaking number 8 should really be 2000768 Ontario Inc., which is a party to the action in which Mr. Sethi is an officer or director. He is in breach of Justice Herold’s order by not answering them properly.
[34] The plaintiffs have also attached a chart of undertakings and questions taken under advisement from the examination of Mr. Sethi on March 1, 2013. Mr. Rogers argues that question number 6 taken under advisement at that examination has now been improperly converted by the defendants to a refusal. This question, being a question taken under advisement, was subject to Justice Herold’s order dated September 20, 2013 and must therefore be answered. It is not satisfactory that Mr. Sethi refuses to answer this question.
[35] I am also ordering Mr. Sethi to comply with properly answering questions number 2 and 4 taken under advisement on January 25, 2013 for the same reasons.
ORDERS
[36] Therefore, there will be an order that the defendant Harpeet Singh Sethi personally and as the representative for Drew Airport Development Inc.:
a) Produce proper and complete answers to question numbers 6 to 8 on the undertaking chart from the examination for discovery on January 25, 2013.
b) Produce proper and complete answers to question numbers 2, 4 and 6 on the chart of questions taken under advisement from the examination for discovery on March 1, 2013.
c) Direct his lawyers to pay the outstanding costs ordered by Justice Fitzpatrick on October 25, 2013 from trust, if those costs have not already been paid.
d) Re-attend for the continued examination for discovery of himself personally and on behalf of Drew Airport Development Inc. by October 31, 2014 at a mutually convenient date to counsel. If no mutually convenient date can be found, a date will be set by me upon a request to do so in writing. However, when that date for the continued examination for discovery is set, it shall be peremptory on the defendant Sethi.
e) That the defendant Sethi personally and on behalf of the defendant Drew Airport Development Inc. shall answer undertakings and any questions taken under advisement within 60 days of the completion of the continued examination for discovery ordered.
f) An examination for discovery of Jaswinder Kaur Sethi and 1288124 Ontario Inc. shall be conducted between November 1, 2014 and December 31, 2014 at a mutually convenient date. If no mutually convenient can be found, a date will be set by me upon a written request to do so.
g) That all undertakings and questions taken under advisement at the examination of Jaswinder Kaur Sethi and 1288124 Ontario Inc. shall be answered within 60 days of the completion of her examination.
h) If any costs orders are not satisfied, examinations completed or sufficient and proper answers to undertakings ordered or given are not provided by December 31, 2014, the plaintiffs are at liberty to bring a motion to strike the defendants’ pleadings, on notice.
i) The orders made under a) to h) shall be considered “last chance” orders; and
j) On consent, leave is granted to amend the title of proceedings to reflect that the defendant Harpeet Singh Sethi be named as “Harpeet Singh Sethi aka Harpreet Singh Sethi”.
[37] If any party seeks costs, I would invite costs submissions to be made in writing to my Judicial Assistant Sherry McHady by fax at 905-456-4834 by September 8, 2014 consisting of no more than 3 typewritten pages, not including any costs outline or dockets.
Emery J
DATE: August 15, 2014
COURT FILE NO.: CV-10-1352-00
DATE: 2014 08 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 2099415 ONTARIO INC., AJIT KANG, AJITA KANG, GURBAKHSISH GREWAL, BHAGWAN GILL, RAJNEESH JINDAL AND MANJIT
v.
HARPEET SINGH SETHI, JASWINDER KAUR SETHI, 2000768 ONTARIO INC., DREW AIRPORT DEVELOPMENT INC., 1288124 ONTARIO INC., HARKIRAN BOPARAI, 2286799 ONTARIO INC., NAVJEET SINGH MANGAT, 2299720 ONTARIO INC., KIRIT SHAH AND VASDEV CHANCHLANI
BEFORE: EMERY J.
COUNSEL: E. Rogers, for the Plaintiffs
A. Valova, for the Defendants
ENDORSEMENT
EMERY J
DATE: August 15, 2014