CITATION: Century Services Inc. v. New World Engineering Corporation, 2017 ONSC 4525

COURT FILE NO.: 06-CL-6558

DATE: 20170726

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Century Services Inc. and Clairvest Group Inc., Plaintiffs

AND:

New World Engineering Corporation, Fred W. Bain, John C. Cheong, Lai Li Chong, Julia Cheong also known as Ioulia Klenkina, Roberto Bustamante, and Roberto Bustamante c.o.b. Canada Stage Designs, Atique Choudhry, Hingson Corporation, Hingson Entertainment Corporation, Hingson Financial Corporation, Hingson Development Corporation, Hingson Capital Corporation, Hingson Media Corporation, Circa Canada Incorporated, Greenfield Capital Engineering Inc., Image Nightclub Incorporated, Banzai Restaurants Inc., Eight Restolounge Incorporated, Bustamante Holdings Corporation, 1249492 Ontario Inc., Blue Giant Productions Inc. Engineered Construction Limited, Daniel Distribution Corporation, Borden Ladner Gervais LLP, Goodman & Carr LLP, Fogler Rubinoff LLP, Magnus Verbrugge, Gary Kissack, Barry Fillimore, TD Waterhouse Canada Inc., Bulent Pakdil, Hatice Pakdil, Allen De Vera and The Toronto-Dominion Bank, Defendants

BEFORE: Stewart J.

COUNSEL: Ruth Promislow, for the Plaintiffs

John Cheong, in person

HEARD: June 28, 2017

ENDORSEMENT

[1] This motion was originally brought before me on June 21, 2016. It was adjourned twice to permit the filing of additional evidence.

[2] The Plaintiffs seek an order now imposing a term of incarceration upon John Cheong as a result of his contempt of court order made earlier in these proceedings.

[3] Although the Plaintiffs seek this consequence due to Cheong’s alleged failure to comply with costs and payment orders embraced by the contempt penalty decision, they recognize the difficulty associated with sending a party to jail simply for failing to comply with an order for the payment of money to another party. As a result, the principal focus of the Plaintiffs’ argument was on Cheong’s alleged failure to perform the community service hours required of him and his alleged efforts to mislead the court in that regard.

[4] Pursuant to my endorsement of December 17, 2013, Cheong was to complete 250 hours of community service. Arrangements were made with the agreement of the Plaintiffs for this to be carried out at the Salvation Army, Bloor and Landsdowne, Toronto location.

[5] That endorsement did not impose any specific time deadline for completion of the community service. On the evidence before me, Cheong has only been able to show satisfactory conclusive proof that he has performed 44 hours of such service.

[6] Although Cheong maintains that he completed the balance of the 250 hours at other Salvation Army locations, I agree with the Plaintiffs that the information in support of that assertion as supplied by Cheong is suspicious in the extreme. Indeed, it appears that Cheong may have bamboozled Matt Brown, manager of the Newmarket Salvation Army store, into signing a letter confirming his performance of the requisite balance of hours. Brown now cannot confirm with any certainty Cheong’s fulfilment of this requirement. No records are available to reconcile this discrepancy one way or another, and Brown has resiled from any positive assertion that the volunteer hours were performed.

[7] It is Cheong’s onus to prove that the hours were performed. He has failed to discharge that onus. As suspicious as the quality of the evidence that he has fulfilled his obligation may be, I am not satisfied that it demonstrates a wilful intention to mislead that meets the high standard necessary to justify his incarceration.

[8] Cheong is willing to complete any substitute or additional hours as may be required.

[9] As a result, Cheong shall perform the balance of community service hours not shown to have been completed – 206 hours – at the Salvation Army store closest to his present residence acceptable to the Plaintiffs by no later than March 31, 2018. Satisfactory proof of completion of those hours must be provided by Cheong to the Plaintiffs and to the Court within 30 days of the date of completion. Such proof should include original written confirmation from an appropriate Salvation Army official together with details of the dates and times worked.

[10] If the Plaintiffs seek costs of the motion, written submission may be provided within 20 days of today’s date. Responding submissions may be provided by Cheong within 20 days thereafter.

Stewart J.

Date: July 26, 2017