ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-0212
DATE: 2015-11-17
B E T W E E N:
2373963 Ontario Inc., operating as “The Office Suppliers”,
Jordon Lester, for the Plaintiff
Plaintiff (Moving Party)
- and -
Kevin Dundas,
Daniel Matson, for the Defendant
Defendant
HEARD: October 8, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Decision On Motion
[1] This is a motion for a declaration that the defendant, Kevin Dundas, is in contempt of an order of this court dated June 11, 2015.
Background
[2] Mr. Dundas is the former sales manager of the plaintiff, 2373963 Ontario Inc., operating as The Office Suppliers. Mr. Dundas resigned from The Office Suppliers on May 4, 2015.
[3] Immediately after his resignation, Mr. Dundas took employment with Lowerys Limited. Mr. Dundas had been negotiating with Lowerys Limited as to the terms of his employment while he was employed with The Office Suppliers.
[4] Both The Office Suppliers and Lowerys Limited are in the business of selling office supplies.
[5] The Office Suppliers became concerned that Mr. Dundas was attempting to solicit clients on behalf of his new employer. The Office Suppliers brought a motion for an interlocutory injunction. The motion was returnable May 28, 2015. The motion was adjourned that day, on condition that pending a decision on the motion, Mr. Dundas would refrain from soliciting orders from clients of The Office Suppliers
[6] In early June 2015, The Office Suppliers and Mr. Dundas settled their dispute. An order was granted, on consent, on June 15, 2015. The terms were as follows:
- For the period commencing as of the date of this Order, and lasting until November 4, 2015, the Defendant shall not:
b) Initiate contact with any customer of the Plaintiff identified at Schedule “A” of this Order for the purpose of soliciting, selling, promoting or assisting in the solicitation, sale or promotion of any products or services similar to any of those provided by the Defendant while employed by the Plaintiff;
c) Either directly or indirectly solicit orders from any clients of the Plaintiff identified at Schedule “A” of this Order; or
d) Make disparaging or denigrating comments regarding the Plaintiff’s business operations, its owners, managers and employees.
- The Defendant is to pay the Plaintiff $3,000 in costs, payable by certified cheque to “Cheadles LLP in trust”, within 10 days of the date of this Order.
[7] One of the clients identified in Schedule “A” to the June 15, 2015, order was Kubota Thunder Bay.
[8] In an affidavit sworn September 8, 2015, in support of this contempt motion, David Grady, President of The Office Suppliers, deposes that on August 27, 2015, he was informed by Mark Potvin, an employee of Thunder Bay Xerographic Inc., that Mr. Potvin was seen attending the office of Kubota Thunder Bay. Mr. Grady further deposes:
“Upon receiving this information, I contacted Ms. Cristin Parker of Kubota Thunder Bay. Ms. Parker informed me and I believe it to be true that there had been several occasions since June 11, 2015, where the Defendant had attempted to solicit business from Kubota Thunder Bay on behalf of Lowerys Inc. Ms. Parker also informed me that Kubota Thunder Bay had in fact made orders with the Defendant, including on August 27, 2015. Ms. Parker confirmed this information in an email to me. Attached hereto and marked as Exhibit “E” is a copy of my email correspondence with Ms. Parker on August 27, 2015.”
[9] The e-mail from Cristin Parker referred to by Mr. Grady, is as follows:
“Hi Dave,
I do confirm that Kevin has visited us and dropped off flyers between June 11th and August 27th.
He was in August 26th and August 27th dropping off flyers. On the August 27th visit he offered to set us up for online ordering and would email me when he completed the setup.
He brought me his business card when he started working at Lowerys and told me if there was anything I needed to order to let him know. This happened several months ago.
My assistant did place an order on August 27th with Lowerys from the flyer he dropped off on August 26th.
Prior to Kevin working at Lowerys our sales rep was Alana, but only Kevin has been in contact with us. I haven’t heard anything from Alana so I assumed he took over our account.”
[10] Based on the information received from Ms. Parker, The Office Suppliers brings this contempt motion.
[11] Mr. Dundas files an affidavit in which he denies that he initiated contact with Kubota Thunder Bay on behalf of Lowerys Limited for the purpose of soliciting or selling any products offered by The Office Suppliers or that he has solicited or attempted to solicit any orders from Kubota Thunder Bay.
[12] Mr. Dundas deposes that Kubota Thunder Bay is a long term, active client of Lowerys Limited, having purchased general office supplies and furniture from the company.
[13] Mr. Dundas deposes that Scott Christie, one of the managers of Lowerys Limited, asked him to attend Kubota Thunder Bay to offer them a free water dispenser and water supply as compensation for defective furniture that Kubota Thunder Bay had purchased from Lowerys.
[14] Mr. Dundas deposes that he attended Kubota Thunder Bay on August 27, 2015, and spoke to Ms. Parker about the offer of water. He deposes that Ms. Parker was receptive to the idea. Mr. Dundas followed up with an e-mail on August 28, 2015, offering a water dispenser and six months of free water to make up for the furniture issue. He states that Ms. Parker accepted the offer. Mr. Dundas deposes that he may have dropped a flyer off at his visit, only because it was requested by Kubota Thunder Bay as an active customer of Lowerys Limited.
[15] Mr. Dundas deposes that he never solicited any orders from Kubota Thunder Bay nor attempted to sell them any product offered by The Office Suppliers. He deposes that The Office Suppliers does not supply bottled water. He deposes that he has played no part in any current or past orders from Lowerys Limited by Kubota Thunder Bay.
[16] In an affidavit sworn September 24, 2015, Mr. Christie deposes that on August 27, 2015, he asked Mr. Dundas to go to Kubota Thunder Bay to speak to Ms. Parker about free bottled water as compensation for late delivery of furniture. Mr. Christie states that Kubota Thunder Bay has been a customer of Lowerys Limited since 2012, placing orders from time to time for general office supplies, including furniture. He states that although Kubota Thunder Bay placed orders with Lowerys Limited after June 11, 2015, all of those orders were common to orders placed historically by Kubota Thunder Bay.
Submissions
[17] The Office Suppliers submit that despite the clear wording of the order, Mr. Dundas has contacted and attempted to solicit business from Kubota Thunder Bay, one of the clients of The Office Suppliers listed in Schedule “A” to the order
[18] The Office Suppliers submits that it has established beyond a reasonable doubt the three elements set out by the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, at paras. 33 – 35, as necessary before a court may make a finding of civil contempt:
(1) The order that was breached must state clearly and unequivocally what must and must not be done;
(2) The party alleged to have breached the order must have actual knowledge of it; and
(3) The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
[19] Mr. Dundas submits that the order was not clear and unequivocal and that he did not intentionally initiate contact with Kubota Thunder Bay for the purpose of soliciting nor did he solicit from Kubota Thunder Bay.
[20] However, as a preliminary objection Mr. Dundas submits that The Office Suppliers is in breach of Rule 60.11(3) in that its contempt motion relies solely on hearsay evidence from Ms. Parker and, as such, the evidence is inadmissible and the motion should be struck.
[21] Rule 601.11(3) provides:
(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit.
[22] The Office Suppliers respond that the answer to Mr. Dundas` objection to reception of the evidence of Ms. Parker is found in this passage from Mastronardi Produce Limited v. Butera, 2011 ONSC 548a, at para. 27:
[27] Second, on the subject of the alleged contentious facts, Lamek J. (in Metropolitan Toronto Condminium Corp. No. 781 v. Reyhanian, 2000 CarswellOnt 2431 (S.C.)) noted that none of the evidence that had been characterized by the respondent as hearsay had been disputed, (or, as in the case before me, the subject of cross-examination or denial) and so could not be deemed “contentious” for the purposes of rule 60.11(3). Also, he held that because the respondent had not introduced any material or evidence to contradict that which had been provided by the moving party, it stood undisputed and “if of sufficient weight”, could serve as the basis for a finding against the respondent (Reyhanian, para. 16). Lamek J. noted that during cross-examination, counsel for the respondent had not called into question the truth of any of the matters alleged by the moving party but instead, had been focused on the deponent’s ability to distinguish between various types of pigeons (Reyhanian, at para. 16).
[23] The Office Suppliers submit that neither Mr. Dundas nor Mr. Christie contested what was in the e-mail.
Discussion
[24] In my opinion, The Office Suppliers have breached Rule 60.11(3) and for that reason the motion for contempt must fail. Because of this finding, it is not necessary to address the other issues raised in the motion.
[25] A finding of contempt is a serious matter that is quasi-criminal in nature. Proof of the requisite elements must be proof beyond a reasonable doubt. The potential sanctions are serious. As observed by the Court of Appeal in Bell Express Vu Limited Partnership v. Torroni (2009), 2009 ONCA 85, 94 O.R. (3d) 614 (C.A.), at para. 20, it is for those reasons that on motions for contempt all proper procedures must be strictly complied with.
[26] The entirety of the evidence of The Office Suppliers in support of its motion for contempt is found in paragraph 10 of Mr. Grady’s affidavit, quoted in full above, and the e-mail from Ms. Parker attached to his affidavit as an exhibit. The information in paragraph 10 of Mr. Grady’s affidavit is wholly hearsay. Ms. Parker’s e-mail is also hearsay.
[27] The case before me is distinguishable from the passage in Mastronardi upon which The Office Suppliers rely. In the Reyhanian case, the contemnor did not file any affidavit material in response to the motion for contempt. Similarly, in Mastronardi, the contemnor, Mr. Butera, did not provide his own affidavit in response to the allegations of contempt.
[28] In contrast to the facts in Reyhanian and Mastronardi, Mr. Dundas has contested the facts in paragraph 10 of Mr. Grady’s affidavit and in the e-mail of Ms. Parker.
[29] The complaint of The Office Suppliers is that Mr. Dundas breached the order of June 11, 2015, by attempting to solicit business from Kubota Thunder Bay on behalf of Lowerys Limited and that Kubota Thunder Bay had in fact made orders with Mr. Dundas.
[30] Mr. Dundas categorically denies that he initiated contact with Kubota Thunder Bay for the purpose of soliciting or selling any products offered by The Office Suppliers. He categorically denies that he has solicited or attempted to solicit any orders from Kubota Thunder Bay.
[31] Both Mr. Dundas and Mr. Christie depose that Kubota Thunder Bay is a long term client of Lowerys Limited and that any orders placed by Kubota Thunder Bay after the June 11, 2015, order were part of the historical purchases of Kubota Thunder Bay.
[32] I am satisfied that the hearsay in paragraph 10 of Mr. Grady’s affidavit and the hearsay that is Ms. Parker’s email fall within the meaning of the word “contentious” in Rule 60.11(3).
[33] There has not been strict compliance with proper procedures. The hearsay evidence is inadmissible. There is no other evidence on which to base a finding of contempt. The motion therefore must fail.
Conclusion
[34] For the reasons given, the motion for a declaration that Mr. Dundas is in contempt of the order of June 11, 2015, is dismissed.
[35] If the parties are unable to agree on costs of the motion, Mr. Dundas shall deliver written submissions, not exceeding five pages, exclusive of his Bill of Costs, within 20 days. The Office Suppliers shall deliver their written submissions with 10 days after service of Mr. Dundas’ submissions, not exceeding five pages, exclusive of any Bill of Costs they may wish to file for comparison purposes. Failing receipt of the submissions of Mr. Dundas within 20 days, the issue costs shall be deemed to have been settled.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: November 17, 2015
COURT FILE NO.: CV-15-0212
DATE: 2015-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
2373963 Ontario Inc., operating as “The Office Suppliers”,
Plaintiff (Moving Party)
- and -
Kevin Dundas,
Defendant
DECISION ON MOTION
Shaw R.S.J.
Released: November 17, 2015
/mls