SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-15-530083
DATE: 20151006
RE: Eritrean Canadian Community Centre of Metropolitan Toronto, Dawit Measho in his capacity as Director of the Eritrean Canadian Community Centre of Metropolitan Toronto, Dawit Tesfaldet in his capacity as Director of the Eritrean Canadian Community Centre of Metropolitan Toronto, Petros Teklu in his capacity as Director of the Eritrean Canadian Community Centre of Metropolitan Toronto, Berhane Beraki in his capacity as Director of the Eritrean Canadian Community Centre of Metropolitan Toronto, Fisseha Kiros in his capacity as Director of the Eritrean Canadian Community Centre of Metropolitan Toronto, Abdelmoneim Ahmed in his capacity as Director of the Eritrean Canadian Community Centre of Metropolitan Toronto and Semere Ghebrezghabher in his capacity as Director of the Eritrean Canadian Community Centre of Metropolitan Toronto, Plaintiffs
AND:
Amanuel Melles, Defendant
BEFORE: Carole J. Brown, J.
COUNSEL:
Danny Kastner, for the Plaintiffs
Amanuel Melles, un-represented
HEARD: September 17, 2015
ENDORSEMENT
[1] The moving party plaintiff seeks a declaration that the defendant is in contempt of the Order of Conway J. dated August 4, 2015 and an Order requiring the defendant to comply with the Order of Conway J.
[2] The Order of Conway J. stated as follows:
This court orders that the individual plaintiffs shall serve as the acting board of directors of the Eritrean Canadian Community Center of Metropolitan Toronto (the "ECCC") until the final resolution of the above titled action;
This court orders that the defendant is prohibited from representing himself or holding himself out to third parties as the president or director of the ECCC, until the final resolution of the action; and
This court orders the defendant to deliver to the plaintiffs within five days, any and all property of the ECCC, including all books and records, including but not limited to all records with respect to bank accounts, and, within seven days, to account for all monies received on behalf of the ECCC from August 17, 2013 to date.
[3] Following the Order, the plaintiffs' counsel wrote to the defendant on August 5 enumerating the records to be provided. He thereafter wrote on August 10 in response to the defendant's motion for leave to appeal the Order, indicating that the motion for leave did not stay the Order and that the defendant was required to provide the documentation pursuant to the Order of August 4. On August 11, in response to a motion to stay the Order, plaintiffs' counsel again wrote indicating that the motion did not have the effect of staying the Order automatically.
[4] The defendant has refused to comply with the Order of this Court despite numerous demands from the plaintiff to comply with the Order.
[5] As a result of the continued non-compliance, the plaintiff brought this motion seeking the earliest possible date for a hearing. However, the plaintiffs agreed to delay the hearing as requested by the defendant, on his undertaking to deliver, on the same day, all the plaintiffs' records and books except banking records, which he stated he did not have, which records would permit the plaintiff organization to continue functioning. No records were produced by the defendant despite additional demands for compliance.
[6] Pursuant to rule 60.11, a three-pronged test must be met to establish civil contempt as stated by the Supreme Court of Canada in Carey v Laiken, 2015 SCC 17. First, the order breached must state clearly and unequivocally what should and should not be done. Second, the party alleged to have breached the Order must have had actual knowledge of it. Third, the party allegedly in breach must have done the act that the order prohibits or intentionally failed to do so.
[7] It goes without saying that the breach of a Court Order reflects disrespect for the authority of this Court. Court Orders must be respected. Failure to do so demonstrates a lack of respect for the Court and Orders issued by the court, which cannot be tolerated.
[8] The moving party submits that the requisite tests have all been met. As regards the first branch of the test, the plaintiffs submit that the terms of the Order are clear and unequivocal and that the defendant had actual knowledge of the Order as he was present in court when it was issued. The plaintiffs further submit that the defendant intentionally did the acts prohibited by the Order or failed to do the acts that the Order compels.
[9] In this regard, the plaintiffs submit that despite repeated requests for the documentation the defendant failed to produce it.
[10] It was not until August 27, that counsel for the defendant advised that his client did not have the records which were in the hands of third parties who had formed a new or "shadow" board.
[11] As regards the Board, paragraph 1 of the Order clearly stated that the individual plaintiffs were to serve as the acting Board of Directors until final resolution of the action. The plaintiffs responded requesting to be advised of the efforts made by the defendant to obtain the materials and the dates of said requests, as well as the names and coordinates of those purported to hold the subject books and records. The defendant's counsel never responded. I note that in the reasons of Conway J., she found that the defendant "has had access to all books and records of the Center".
[12] Further, there is evidence before this Court indicating that the defendant continued to hold himself forth as the president and director of the ECCC, after the Court Order was issued, despite the Order. In cross-examination on the affidavit of Aziza Yunus, witness for the defendant, held September 11, 2015, Ms. Yunus stated as follows:
The defendant is on the board (pp 18-19 q 86)
He is the president of the board, introduces himself as president of the board to funders and board members (pp 42-43 q 229-231)
Since the Court Order of August 4, he has continued to go to the office, is involved in the center's business, is president and director of the board and introduces himself as such. His role has not changed in any way since the order (pp 44-45 q 233-237; pp 47-48 q 249-251)
He has had full access to the banking and financial information, to employee records and to funding documents and communications with funders (p 39 q 206-209)
He has access to all records of the organization which he is able to access at the office. He has a key to the office and is there on a regular basis (pp 41-42 q 216-221).
[13] The defendant submits that the three pronged test not been met. He submits that the Order was not clear in that it did not specify at paragraph 2 what the defendant could and could not do, and at paragraph 3, what property of the plaintiff he should render to the plaintiff. I do not accept the defendant's arguments.
[14] He further takes the position that he is not in possession of the records and, in any event, he is prevented from producing records by third parties who refuse to provide authorization to do so. However, from the time of the order and at this motion, he has not provided any evidence of these third parties. I do not accept this argument. In any event, it would not constitute a defence to the motion for contempt. I do not find that the defendant has acted in good faith following the Order of Conway J.
[15] In this case, the terms of the Order in question are clear and unequivocal. The defendant is prohibited, pursuant to the Order, from representing himself or holding himself out to third parties as president or director of the ECCC. The defendant was to deliver all property of the ECCC, including books and records, including but not limited to all records with respect to bank accounts and to account for all monies received on behalf of the ECCC. The evidence indicates that he advised that he did not have the banking records, although Conway J. had previously found that he did have such records. The Order was not ambiguous or unclear.
[16] Based on the evidence before this Court, the defendant had knowledge of the terms of the Order. The defendant represented himself at the motion before Conway J., attended at the August 4, 2015 hearing at which Conway J. issued the Order and received a copy of that Order at the hearing. He failed to comply despite numerous subsequent letters and e-mails demanding compliance. He thereafter entered into an agreement to deliver the books and records as a condition for having the matter adjourned to September 17. However, he failed to comply with this undertaking.
[17] I am satisfied that he intentionally failed to produce the records pursuant to the Order and that he intentionally failed to comply with the second provision, prohibiting him from holding himself out as president and director of the organization. Indeed, based on the evidence before this Court, he has continued to do so despite numerous requests for compliance.
[18] The defendant is to comply with the Order of Justice Conway, including being prohibited from holding himself forth as president or director of the board and providing all documentation as set forth at paragraph 3 of the Order by on or before October 16.
[19] Should he fail to comply, a warrant for his arrest may be sought.
Costs
[20] Counsel for the moving party seeks his costs on a partial indemnity basis of $12,055.95 or on a substantial indemnity basis of $17,228.07. His actual fees are $18,952.11. Counsel for the responding party advises that, whether he is successful or not, he is instructed not to seek costs.
[21] An offer to settle the motion was served by the plaintiff on the defendant on August 14, 2015, in which the plaintiff stated "if your client simply complies with the August 4, 2015 Order of Justice Conway, we will discontinue the motion without costs." The respondent did not agree, such that the motion was argued today.
[22] The moving party was wholly successful on the motion, and is entitled to costs. Costs are intended to compensate the party for some or all of its costs. Costs must be reasonable and proportionate. Offers to settle must be considered such as the offer of August 14 indicated above which was made but not accepted by the defendant. Further, the factors set forth at rule 57.01 may be considered in awarding costs.
[23] This matter was not complex. The conduct of the defendant has tended to lengthen the preceding, which could have been avoided by simply complying with the Order of the court. The issue was of importance to the plaintiffs in order to permit the plaintiff organization to continue functioning.
[24] Taking into consideration all of the foregoing, the evidence before this Court, the submissions of counsel and the jurisprudence, as well as the Offer to Settle, I award costs to the plaintiffs in the total amount of $15,000, which is to be paid forthwith.
Carole J. Brown, J.
Date: October 6, 2015