G M Textiles v. Sidhu, 2017 ONSC 5813

Superior Court of Justice - Ontario

Citation: G M Textiles v. Sidhu, 2017 ONSC 5813 Court File No.: CV-11-791 Date: 2017-09-29

Re: G M TEXTILES INC., GURDEV SINGH GREWAL, and MOHINDER SINGH MATHAROO, Applicants And: FATEH SINGH SIDHU, also known as FATEH SIDHU, 2119509 ONTARIO CORP. operating as "Popeyes", 2121325 ONTARIO LIMITED, operating as "Popeyes", 2209385 ONTARIO LTD. operating as "Popeyes", 2244485 ONTARIO LTD. operating as "Popeyes", 2178548 ONTARIO INC. operating as "Popeyes", 2136630 ONTARIO LTD. operating as "Popeyes", 2165077 ONTARIO CORP. operating as "Popeyes", 2168124 ONTARIO INC. operating as "Popeyes", AR-RAHEEM FOODS INC., and AR-RAZZAAQ FOODS INC. Respondents

Before: The Honourable Mr. Justice Robert B. Reid

Counsel: F. Damji, Counsel, for the Applicants J. Lockyer, Counsel, for the Respondents

Heard: September 14, 2017

ENDORSEMENT ON MOTION

1The respondent, Fateh Singh Sidhu, brings a motion pursuant to rule 60.11(8) of the Rules of Civil Procedure to vary the sentences imposed on him for contempt of court. Those sentences were contained in my sentencing endorsement dated March 23, 2016 (G M Textiles v. Sidhu, 2016 ONSC 2055).

Background:

2The sentencing followed my finding that Mr. Sidhu was in contempt as a result of numerous failures to comply with multiple terms of six orders of this court. That finding was based on the reasons and in the circumstances that I outlined in my endorsement of January 27, 2016 (G M Textiles v. Sidhu, 2016 ONSC 667).

3My sentencing endorsement required that Mr. Sidhu surrender himself into custody on May 2, 2016, thus allowing him some additional time to purge his contempt to the extent that it was still possible to do so. That possibility existed as regards his breach of the court order dated August 12, 2013 which required him to attend at an examination in aid of execution. As to other findings of contempt, I accepted the position of the applicants that the purging of contempt was not possible. The orders required the timely provision of information, and as a result of the failure to abide by those court orders, the financial damage to the applicant was irretrievably complete such that the businesses controlled by Mr. Sidhu no longer had value. Mr. Sidhu was impecunious. Depending on whether Mr. Sidhu had purged his contempt as to the examination in aid of execution, I imposed a sentence which globally totalled between 18 and 21 months imprisonment.

4Mr. Sidhu filed a Notice of Appeal in the Ontario Court of Appeal dated April 22, 2016, submitting that the contempt finding was unreasonable, and that the consecutive sentences imposed were outside the range, demonstrably unfit, and violated the principle of totality. He did not proceed with the appeal and it was dismissed by the Registrar.

5Following the sentencing decision, counsel engaged in discussions and agreed by way of Minutes of Settlement that upon the payment of a certain amount of money by Mr. Sidhu, the applicants would take the position that he had purged his contempt and return the matter to this court for further consideration. The Minutes of Settlement were dated April 29, 2016, pursuant to which Mr. Sidhu was to pay to the applicants $872,000 by December 15, 2016. That amount was a fraction of the total indebtedness of Mr. Sidhu to the applicants.

6By June 3, 2016, $472,000 had been paid by Mr. Sidhu. Thereafter, Mr. Sidhu was not able to raise the additional money that he had anticipated. The parties entered into Amended Minutes of Settlement dated November 7, 2016 which prescribed an additional timetable for payment of $428,500, inclusive of additional costs. That payment was not made.

7Mr. Sidhu attempted to surrender into custody on January 9, 2017 pursuant to and as required by the sentencing decision. The police refused to accept his surrender because there was no warrant for his arrest.

8Further attempts by Mr. Sidhu to raise the funds required to satisfy the Amended Minutes of Settlement were unsuccessful and on April 21, 2017, he attended before me, made representations through counsel, and was taken into custody.

Applicable legal principles:

9It is unnecessary for me to review or repeat either the legal or factual underpinnings to my sentencing decision of March 23, 2016. That decision gave consideration to the personal circumstances of Mr. Sidhu, as well as to the combination of coercive and punitive purposes of sentencing applicable to the facts of this case.

10I acknowledge that the court has an ongoing supervisory role over an individual serving a sentence for contempt which is the necessary implication from the provisions of rule 60.11(8). Flowing from that role is the need to consider changed circumstances. That is especially the case in view of the fact that a contemnor must serve the full term of any sentence imposed without benefit of early release by either statute or parole.

11In his motion before this court, counsel for Mr. Sidhu made a number of submissions. Some were to the effect that the sentences for contempt imposed by me were excessive and should be reduced. As I advised counsel, while I accept that I have the power pursuant to the rules to discharge, set aside, vary or give directions in respect of my sentencing for contempt, I do not consider it reasonable to entertain submissions designed to convince me that my previous decision was incorrect. That would have been a matter for appeal.

12Similarly, counsel on behalf of Mr. Sidhu submitted that the sentences should be made concurrent as amongst the various findings of contempt, rather than consecutive as was imposed in my decision of March 23, 2016. That possibility was considered and rejected by me in imposing the global sentence of between 18 and 21 months for the reasons that I identified. The request to change the sentences from consecutive to concurrent amounts to a reconsideration of the decision rather than to an exercise of the ongoing supervisory role to which I have made reference.

Updated circumstances:

13There have been some changes in circumstances since the sentencing decision was rendered.

14Through counsel, Mr. Sidhu offered to make himself available for an examination in aid of execution in late April, 2016. Counsel advised that he has now complied with the court order requiring him to do so, by providing answers to written questions and by signing the required authorizations so that the applicants can access his tax return information directly through the Canada Revenue Agency. That final requirement was confirmed by letter to this court on September 21, 2017. As a result, I am satisfied that Mr. Sidhu has purged his contempt to the extent possible. In accordance with the terms of my sentencing decision, his sentence as to the failure to comply with the court order of August 12, 2013 is therefore reduced to one month imprisonment.

15Mr. Sidhu filed several affidavits from friends and family members to the effect that he tried to secure their assistance in providing funding for payment pursuant to the Minutes of Settlement. Although most were initially willing to help, for various reasons they were unable to provide Mr. Sidhu with funds to facilitate payment by him of any amount beyond the $472,000 to which I have referred. I note that purging contempt by way of payment of money may mitigate a sentence but that failure to do so is not an aggravating circumstance. In this case, I take the point of the affidavits to be that Mr. Sidhu had a reasonable expectation that he could comply with the terms of the Minutes of Settlement and that he acted in good faith in signing them. In other words, the exercise of negotiating Minutes of Settlement and Amended Minutes was not a delaying tactic. I accept that position and do not find either the delay or the failure to comply with the Minutes of Settlement to be an aggravating factor.

16Mr. Sidhu, his spouse, and children filed affidavits to the effect that his removal from the family unit has been difficult for them financially and emotionally. I have no doubt that is the case and that the effect of incarceration goes beyond the individual who is imprisoned. This is similar to the effect of sentencing in a criminal case. It is an inevitable consequence of a custodial sentence and part of the general and specific deterrence which are amongst the relevant principles of sentencing.

17Counsel submitted on behalf of Mr. Sidhu that the payment of $472,000 should be considered towards mitigation of the sentence imposed. On one hand, I note that the amount paid is only modestly greater than the approximately $370,000 costs ordered against Mr. Sidhu in my sentencing decision. On the other hand, I accept that Mr. Sidhu did make good faith efforts to locate funds through borrowing as partial satisfaction of his indebtedness. On that basis, the sentences imposed for breaching the court orders dated December 2, 2011, January 27, 2012, May 4, 2012, and July 20, 2012, are hereby reduced to three months for each of the four orders, consecutive.

Conclusion:

18In summary, as a result of the circumstances set out above, Mr. Sidhu's sentence for contempt is amended as follows:

• for the breach of the order of December 2, 2011, to three months imprisonment;
• for the breach of the order of January 27, 2012, to three months imprisonment;
• for the breach of the order of May 4, 2012: to three months imprisonment;
• for the breach of the order of July 20, 2012: to three months imprisonment;
• for the breach of the order of November 30, 2012: one month imprisonment as previously imposed; and
• for the breach of the order of August 12, 2013: to one month imprisonment.

19All the sentences are consecutive to one another and globally total 14 months.

20Since the provisions of rule 60.11(8) of the Rules of Civil Procedure allow the court to maintain a supervisory role over a person serving a sentence for contempt, nothing in this endorsement should be taken to limit or preclude the possibility of a further motion or motions by Mr. Sidhu in the event that further relevant changes in circumstances occur.

Costs:

21If the parties are unable to agree on the issue of costs, I am prepared to receive submissions as follows:

• a costs outline from the applicants and costs submissions of no more than five pages is to be served and filed on or before October 20, 2017;
• a response of no more than five pages from the respondents is to be served and filed on or before November 3, 2017;
• reply submissions from the applicants, if any, are to be served and filed on or before November 10, 2017.

22If no submissions are received by November 10, 2017, I will deem the issue of costs to have been resolved without the requirement of a further order.

Reid J.