COURT FILE NO.: CV-18-589907 DATE: 20181217 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gobinathan Devathasan, Plaintiff (Moving Party)

AND:

Rohit Ablacksingh (a.k.a. Roy Blacksingh, a.k.a. Roy Singh), Cinro Investments Inc., Cinro Resources Inc., John Doe, Jane Doe, and Doe Corporation, Defendants

BEFORE: Nishikawa J.

COUNSEL: N. Groot & G. Keeble, for the Plaintiff/Moving Party R. Ablacksingh, In Person

HEARD: October 29, December 7 and 17, 2018

REASONS FOR JUDGMENT and SENTENCING FOR CONTEMPT OF COURT

Overview and Procedural History

[1] On August 8, 2018, I found the defendant, Rohit Ablacksingh, in contempt of court for reasons set out in my endorsement of that date and summarized below. The sentencing hearing was scheduled for October 29, 2018. I provided the Defendant with an opportunity to purge his contempt before the sentencing hearing by attending an examination in aid of execution, providing an accounting and paying the outstanding costs orders.

[2] At the sentencing hearing on October 29, 2018, Mr. Ablacksingh requested an adjournment stating that he had been suffering from health problems and did not have time to prepare responding materials. He did not challenge the finding of contempt, but had not taken any steps to purge his contempt. I adjourned the sentencing hearing to December 7, 2018 and required that Mr. Ablacksingh serve his responding materials by November 16, 2018. I also ordered Mr. Ablacksingh to attend an examination in aid of execution on November 21, 2018 and to bring all outstanding financial documentation to the examination. Mr. Ablacksingh attended the examination but did not provide requested financial documentation. He refused to answer various questions that were relevant to the Plaintiff’s ability to execute the judgment. Mr. Ablacksingh has provided a very brief affidavit in which he states that he has been unable to secure the funds to satisfy the judgment and costs order.

Factual Background

[3] The Plaintiff, Gobinathan Devathasan, commenced this action against the Defendants for fraud, breach of fiduciary duty, breach of trust, conversion and unjust enrichment. The Plaintiff is an elderly doctor living in Singapore. He sought a lawyer in Toronto for assistance with an appeal of a family law matter. Dr. Devathasan was introduced to Mr. Ablacksingh through a mutual acquaintance, a lawyer in the United Kingdom. Mr. Ablacksingh represented to the Plaintiff that he would assist him in retaining counsel in Toronto. Mr. Ablacksingh identified a lawyer by the name of Ryan James and said that a retainer of $50,000 would be required. Mr. Ablacksingh further advised Dr. Devathasan that the retainer cheque should be paid to him so that he could monitor the lawyer’s bills and pay them appropriately. Dr. Devathasan paid $50,000 to Mr. Ablacksingh but later discovered that the amount had not been used to retain a lawyer on his behalf.

[4] Dr. Devathasan eventually discovered that there was no lawyer by the name of Ryan James at the email address that Mr. Ablacksingh had given him. The email address was created by Mr. Ablacksingh. No legal work was done for the Plaintiff. Mr. Ablacksingh has admitted that he did not use any of the $50,000 toward legal services for the Plaintiff. The financial records provided indicate that when the funds were deposited into Mr. Ablacksingh’s account, there was only $20 in the account. The Defendant used the funds to pay credit card and other bills. The Plaintiff asked Mr. Ablacksingh to return the funds, but he did not do so. Dr. Devathasan commenced this action.

[5] The Defendants failed to respond to the Statement of Claim and the Defendants were noted in default. As a result, the Defendants are deemed to admit the truth of the allegations in the Statement of Claim.

[6] The Plaintiff’s motion for default judgment was scheduled to proceed on April 18, 2018. Mr. Ablacksingh failed to attend and had a non-lawyer attend and request an adjournment on his behalf due to health issues. McArthur J. adjourned the hearing of the motion but directed Mr. Ablacksingh to serve responding material, including affidavit evidence and medical documentation concerning his health issue. Mr. Ablacksingh was served with McArthur J.’s order but failed to file any affidavit evidence or medical documentation.

[7] Mr. Ablacksingh failed to attend the return of the motion for default judgment on May 18, 2018. Dietrich J. granted the Plaintiff’s motion for default judgment against the Defendants in the amount of $50,000.00 (the “May 18 Order”). Dietrich J. also granted $20,000 in costs to the Plaintiff. The issue of punitive damages was reserved to a later date. The May 18 Order required the Defendants to provide an accounting to the Plaintiff, in writing, with reference to bank statements and transaction documents, of all transactions involving receipt and transfer of the Plaintiff’s funds, within 30 days of service of the judgment, and to attend a judgment debtor examination on June 22, 2018.

[8] Mr. Ablacksingh attended the judgment debtor examination but refused to answer numerous questions that were relevant to the enforcement of the judgment. The Plaintiff brought a motion before Master Brott for responses to undertakings and refusals, which was granted on July 12, 2018 (the “July 12 Order”). Despite the July 12 Order requiring responses to undertakings from the Defendant, he provided none of the requested financial documents.

[9] Dr. Devathasan has been unable to enforce judgment against the Defendants, or to avail himself of the procedures available under the Rules of Civil Procedure that would enable him to do so. Mr. Ablacksingh has consistently failed to comply with court orders obtained by the Plaintiff. Specifically, he failed to provide an accounting and financial documents as required by the May 18 Order, requiring the Plaintiff to bring a further motion before Master Brott. Mr. Ablacksingh did not comply with the July 12 Order to provide responses to undertakings.

[10] In addition, after having an acquaintance request an adjournment on his behalf at the hearing of the motion for default judgment, Mr. Ablacksingh then failed to attend that hearing as well. He failed to provide evidence of his medical condition, as required by McArthur J. Mr. Ablacksingh also failed to attend the motion for contempt on August 7, 2018.

[11] Applying the test for civil contempt articulated in Carey v. Laiken, 2015 SCC 17, [2015] 2 SCR 79, I found that the Plaintiff demonstrated beyond a reasonable doubt that the Defendant, Mr. Ablacksingh, is in contempt of court based on his failure to comply with the May 18, 2018 Order of Dietrich J.

[12] First, the Plaintiff demonstrated that the May 18 Order states clearly and unequivocally what should have been done. Mr. Ablacksingh was ordered to provide an accounting as specified and failed to do so. Second, Mr. Ablacksingh had actual knowledge of the order that he is alleged to have breached. He attended a judgment debtor examination as required by the May 18 Order, and was thus aware of its terms. Third, based on my finding of actual knowledge of the May 18 Order and Mr. Ablacksingh’s lack of compliance, as well as the lack of any attempt to explain the non-compliance, I found the breach to be intentional.

[13] Based on the foregoing, I found that the Plaintiff demonstrated beyond a reasonable doubt that the Defendant is in civil contempt based on his failure to comply with the May 18 Order and deferred sentencing to a later date.

[14] In order to allow the Defendant to purge his contempt before the sentencing hearing, I directed as follows:

(1) On or before August 31, 2018, the Defendant must provide all outstanding documentation and respond to undertakings as required by previous orders of this Court, including but not limited to the May 18 Order and the July 12 Order; (2) On September 13, 2018, the Defendant must attend a further examination in aid of execution; and (3) The Defendant must pay all outstanding costs awards for a total of $20,000; or (4) Alternatively, the Defendant must pay the outstanding judgment debt and costs for a total of $70,0000 plus pre and post judgment interest.

[15] Although he was given the chance to purge his contempt, Mr. Ablacksingh has not complied with my order. Indeed, he failed to attend the judgment debtor examination on September 13, 2018 as ordered. Despite having been granted an adjournment to file responding material, and despite my specific direction to provide documentation of his medical condition, Mr. Ablacksingh provided only a cursory affidavit that did not include any medical documentation. It was only on December 7, 2018 that Mr. Ablacksingh attended with an unsigned note from a physician that indicated that he is being treated for Parkinson’s disease.

[16] Since Mr. Ablacksingh did not purge his contempt, I must now consider the appropriate sentence.

What is the Appropriate Sentence?

Rules of Civil Procedure

[17] The common law contempt power is codified in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which set out the orders that the court may make where a finding of contempt is made. Rule 60.11(5) provides:

In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just; (b) be imprisoned if the person fails to comply with a term of the order; (c) pay a fine; (d) do or refrain from doing an act; (e) pay such costs as are just; and (f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

Purpose of Civil Contempt Sanctions

[18] Civil contempt orders serve a dual purpose. One purpose is practical and focused on the parties before the court: seeking to ensure that the contemnor complies with relevant court orders. The other is symbolic and focused on the public at large: signaling that the court and its processes, including court orders, are to be respected.

[19] The Ontario Court of Appeal set out this purpose in Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para. 79 [Boily]:

The purpose of a penalty for civil contempt is to enforce compliance with a court order and to ensure societal respect for the courts: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, at 1075. The remedy for civil contempt is designed not only to enforce the rights of a private party (See: Poje v. Attorney General (B.C.), [1953] 1 S.C.R. 516 at 517; Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, at para. 37), but also to enforce the efficacy of the process of the court itself. Justice McLachlin powerfully expressed this broader purpose in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 931, stating:

[t]he rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

Factors Relevant to Sentencing

[20] The Court of Appeal’s decision in Boily provides, at para. 90, that “[t]he following are the factors relevant to a determination of an appropriate sentence for civil contempt:

a) the proportionality of the sentence to the wrongdoing; b) the presence of mitigating factors; c) the presence of aggravating factors; d) deterrence and denunciation; e) the similarity of sentences in like circumstances; and f) the reasonableness of a fine or incarceration.

[Citations omitted.]”

(a) Proportionality

[21] As with other forms of sentencing, a sentence for civil contempt “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Chiang v. Chiang, 2013 ONCA 668, at para. 86. The “offence” at issue in a civil contempt case is the conduct giving rise to the contempt order, not the underlying wrongdoing that brought the party before the court in the first instance. As mentioned, there can be overlap between mitigating and aggravating factors and the gravity of the offence. A common example would be where the contemnor has breached multiple court orders (being an aggravating factor and increasing the gravity of the offence).

[22] On one end of the spectrum, the Court of Appeal stated that Chiang v. Chiang, 2013 ONCA 668 was one of the “worst” cases of civil contempt it had heard. The contemnors frustrated the plaintiffs’ efforts to collect on judgment for over a decade, breaching six court orders, and then also breaching a consent order intended to give them an opportunity to purge their contempt. The Court of Appeal agreed with the trial judge that the gravity of the offence in that case was significant because the contemnors’ conduct was “blatant, deliberate, wilful, and […] unrepentant.” The gravity of the offence was also significant because, quoting the trial judge at para. 86, the defendant’s conduct “had serious adverse and prejudicial consequences for the plaintiffs and has impaired the dignity and integrity of the justice system.”

[23] In Boily, the defendant condo board members caused certain landscaping work to occur in a manner that was contrary to the terms of a court order directing how the landscaping work should be done. The Court of Appeal found, at para. 101, that “[a]ny contempt is serious” but the conduct should be evaluated “in the light of the fact that there is no evidence that it was motivated by personal gain, vengeance or any reason other than that they felt they knew best.”

(b) Mitigating Factors

[24] Case law has identified the following factors as mitigating:

• No evidence of previous defiance of any court order: Boily, at para. 102
• First conviction of contempt: Cellupica v. Cellupica, 2011 ONSC 1715, 105 O.R. (3d) 687, at para. 31
• Purging or attempting to purge the contempt: Astley v. Verdun, 2013 ONSC 6734, 118 O.R. (3d) 43, at para. 25, aff’d 2014 ONCA 668 [Astley]
• A sincere apology or demonstration of remorse to the court: Astley, at para. 27
• Admitting the breach or breaches: 2363523 Ontario Inc. v. Nowack, 2016 ONSC 2518, 129 W.C.B. (2d) 494 [2363], at para. 73
• The availability of requested information to the plaintiff through other means: 2363, at para. 56
• Medical conditions may be mitigating, but not if they can be accommodated in prison (e.g. if contemnor can receive medication in prison): Niagara Regional Police Services Board v. Curran (2002), 57 O.R. (3d), at para. 31 [Curran]
  • The contemnor must provide sufficient evidence to establish the existence of a medical condition and its effects: Willis v. Willis, 2009 CarswellOnt 3439 (Ont. S.C.), at paras. 43-51
• The existence of separate sanctions for the same factual circumstances such as a fine from the Ontario Court of Justice: Curran, at para. 33
• There are dependents who rely on the contemnor: G M Textiles Inc. v. Sidhu, 2016 ONSC 2055, 84 C.P.C. (7th) 34, at para. 38
• Efforts to mitigate damages on other parties: Keenan v. Keenan, 2015 ONSC 574, 118 W.C.B. (2d) 622, at para. 14

[25] In this case, the mitigating factors are as follows:

• Mr. Ablacksingh provided a medical note indicating that he is suffering from a serious and ongoing illness;
• Mr. Ablacksingh has four dependent children; and
• The Plaintiff was able to obtain some of Mr. Ablacksingh’s financial information through other sources.

[26] On the other hand, this is not Mr. Ablacksingh’s first finding of contempt. He was previously convicted of criminal fraud in 2007 and sentenced to four years in prison. In that case, Mr. Ablacksingh pleaded guilty to defrauding iTrade Finance Inc. in excess of $5.24 million U.S. and $8 million Canadian. In connection with that case, Karakatsanis J. (as she then was) also held Mr. Ablacksingh in contempt, and ordered a fine of $12,000. At the same time, notwithstanding Mr. Ablacksingh’s previous conviction, his conduct does not represent a repeated course of conduct over a lengthy period of time.

[27] In this case, Mr. Ablacksingh has not acknowledged the underlying fraud or the harmful impact on Dr. Devathasan. He has not apologized or demonstrated any remorse to this court. While Mr. Ablacksingh claims to be pursuing efforts to obtain funds to pay the outstanding judgment, at the examination, he refused to provide any evidence of his efforts or potential sources. At the hearing, he argued that he refused to provide this information because it would be misused by Plaintiff’s counsel. Indeed, it remains unclear to me whether he truly understands the impact of his conduct.

(c) Aggravating Factors

[28] Case law has identified the following factors as aggravating:

• A deliberate course of conduct over a lengthy period of time: Chiang v. Chiang, 2013 ONCA 668, at para. 88
• Numerous breaches of court orders: Chiang v. Chiang, 2013 ONCA 668, at para. 88
• Repeated acts of contempt: Chiang v. Chiang, 2013 ONCA 668, at para. 88
• Benefiting financially from contempt: Chiang v. Chiang, 2013 ONCA 668, at para. 88
• Demonstrating disrespect for the court: Chiang v. Chiang, 2013 ONCA 668, at para. 88, including by:
  • lying to the court
  • offering an insincere apology
  • giving only the appearance of complying with orders
• The breach occurred with full knowledge and understanding of the contemnor rather than by mistake or misunderstanding: 2363523 Ontario Inc. v. Nowack, 2016 ONSC 2518, at para. 73
• Rejecting the authority of the court: Mercedes-Benz Financial v. Kovacevic (2009), 308 D.L.R. (4th) 562 (Ont. S.C.), at para. 32 [Kovacevic].
• Public safety concerns: Curran, at para. 34
• Living a life of relative luxury in the face of orders restricting the use of assets: Chiang v. Chiang, 2013 ONCA 668, at para. 88
• Failure to seek legal advice until learning of the pending contempt motion: Boily, at para. 104
• A finding of contempt of fresh orders while a contempt motion is pending: Chiang v. Chiang, 2013 ONCA 668, at para. 88

[29] In this case, Mr. Ablacksingh failed to attend an examination in aid of execution despite the existence of clear court orders. He has failed to purge his contempt despite being given the opportunity to do so. He failed to attend court despite being advised of the consequences of his failure to attend. There is no doubt that he is aware of the various court orders. Since he does not claim to have misunderstood them, his defiance can only be seen as deliberate.

[30] Plaintiff’s counsel underscores that Mr. Ablacksingh has significantly encumbered his house by obtaining a second and third mortgage for a total of over $700,000, thus significantly depleting the available equity in the house, after he was aware of the Plaintiff’s motion for default judgment. At the judgment debtor examination, Mr. Ablacksingh refused to produce any documents regarding these mortgages.

[31] To date, Mr. Ablacksingh remains evasive about his income and financial circumstances and has failed to respond to undertakings regarding his income.

(d) Deterrence and Denunciation

[32] The need for deterrence and denunciation tends to depend on which mitigating and aggravating factors are present. Conduct that is deliberate, repeated, and demonstrates lack of respect for the court increases the need for deterrence and denunciation.

(e) Sentences in Like Circumstances

[33] In order to determine a like sentence for like circumstances, I have reviewed a number of civil contempt cases and the sentences. One important general principle is that:

Custodial sentences for civil contempt are rare. Lengthy custodial sentence are even rarer. Canadian courts have tended to punish contempt of court leniently. Ordinarily the mere conviction for contempt together with a modest fine suffices to obtain compliance and protect the court's authority. Ordinarily incarceration is a sanction of last resort.

Chiang v. Chiang, 2013 ONCA 668, at para. 90.

[34] Plaintiff’s counsel seeks a term of imprisonment of thirty days. I find this is longer than sentences ordered in like circumstances. The cases ordering such a term of imprisonment generally involve a more repeated or lengthy record of non-compliance, along with more significant judgments against the contemnors.

(f) Reasonableness of a fine or incarceration

[35] I have considered the range of sentencing options. Given Mr. Ablacksingh’s financial circumstances and the outstanding judgment, a fine is insufficient and would likely remain unpaid. Moreover, when he was previously found guilty of civil contempt, Mr. Ablacksingh was ordered to pay a fine. This did not deter Mr. Ablacksingh from further fraudulent and contemptuous behaviour.

[36] Given the nature of the non-compliance and Mr. Ablacksingh’s personal circumstances, imprisonment would not be a proportionate sentence in the circumstances.

[37] I have determined that a conditional sentence of two months is appropriate in the circumstances. There is no question as to the court’s ability to impose a conditional sentence for contempt of court: Astley v. Verdun, 2013 ONSC 6734. This is an appropriate and proportionate sentence to reinforce the gravity of Mr. Ablacksingh’s conduct while securing his compliance with the outstanding court orders.

[38] In addition to the usual statutory terms, including reporting to a conditional sentence supervisor, the conditional sentence order will include the following terms:

(a) Mr. Ablacksingh will be under house arrest for sixty days. He will be forbidden from leaving his residence except for medical appointments, medical emergencies involving himself, Ms. Ablacksingh, or their dependents, and grocery shopping trips of less than two hours duration twice per week; (b) Mr. Ablacksingh will carry a copy of my order (including the conditional sentence order) with him whenever he leaves his residence. He will do so for the duration of the conditional sentence order; (c) Mr. Ablacksingh will remain in the province of Ontario for the duration of the conditional sentence order; (d) Mr. Ablacksingh will comply with all previous court orders in this matter; and (e) Mr. Ablacksingh will attend before me on January 18, 2019 for the purposes of monitoring his compliance.

Additional Terms

[39] Based on the circumstances of the fraud and the finding of contempt, the Plaintiff seeks further orders of this court to impede the Defendants’ ability to further defraud unsuspecting individuals like the Plaintiff.

[40] In particular, the Plaintiff alleged that Mr. Ablacksingh told Dr. Devathasan that he had consulted with “an ex-chief justice in Toronto” who said that the Plaintiff had a good case on appeal. Mr. Ablacksingh claims that he did not mention an ex-chief justice but that Dr. Devathasan may have seen a photograph of Mr. Ablacksingh with the former Chief Justice of Ontario, the Honourable Roy McMurtry, on the website of an organization in which he is involved, the Caribbean Premier League, at www.cplt29.ca.

[41] The Plaintiff has submitted an affidavit sworn by the former Chief Justice in which he states that he was unaware of Mr. Ablacksingh’s previous conviction for fraud when the photograph was taken. Moreover, His Honour was unaware of Mr. Ablacksingh’s use of the photograph with him and did not authorize the use of any reference to him in his dealings with Dr. Devathasan or anyone else. His Honour supports the Plaintiff’s request to prohibit Mr. Ablacksingh from posting photographs with him on the internet.

[42] The Plaintiff states that the Defendants rely upon certain corporation websites that they operate to give the appearance of operating a legitimate business and procuring investments when there is no such legitimate business. In his email correspondence with the Plaintiff, the Defendant identified himself as “Chairman and CEO” of Cinro Resources Inc., with an address at the Exchange Tower in Toronto. The corporate address is in fact false, as established at the judgment debtor examination. Mr. Ablacksingh stated that Cinro Resources Inc. does not operate and has no income. The corporate registration for Cinro Resources Inc. shows that it was dissolved for non-compliance on July 22, 2014. At the examination, Mr. Ablacksingh stated that Cinro Investments Inc. was also dissolved. The corporation profile report for Cinro Investments Inc. shows that it is active.

[43] It appears that there is also a limited partnership in the name of Cinro Sports and Entertainment. It was not clear to me whether or not there is a website for that organization.

[44] I agree that the photograph with the former Chief Justice and the websites are misleading and gave Mr. Ablacksingh an air of legitimacy and success that is without any basis. They were used to mislead Dr. Devathasan.

[45] Given that the photograph and the websites were tools through which the Defendants perpetrated the fraud on the Plaintiff, and based on the broad discretion of the court to order relief pursuant to Rule 60.11(5), including to do or refrain from doing an act, I find it appropriate to order the following relief:

(a) The Defendants shall immediately take down the websites of Cinro Resources Inc. and Cinro Investments Inc.; (b) The Defendants shall immediately take down the photograph of Mr. Ablacksingh with the Honourable Roy McMurtry from any websites on which they have placed it; (c) The Defendants are precluded from referencing the Honourable R. Roy McMurtry in their business dealings with anyone; and (d) Mr. Ablacksingh shall provided confirmation regarding the photograph and websites to Plaintiff’s counsel within seven days of this order.

Punitive Damages

[46] The May 18 Order left open the determination of punitive damages for fraud, breach of trust, breach of fiduciary duty, conversion and unjust enrichment.

[47] The Plaintiff seeks $100,000 in punitive damages and argues that a significant damages award is appropriate in the circumstances since the Defendants’ conduct was of a criminal nature. Despite the Plaintiff’s arguments and the finding of contempt, the Plaintiff commenced a civil proceeding against Mr. Ablacksingh and obtained a default judgment for $50,000. Given the circumstances, I find it would be inappropriate to import criminal considerations into this context.

[48] The principles and factors to be considered in determining the entitlement and amount of punitive damages were canvassed by Monahan J. in Boroni v. Polidoro, 2018 ONSC 631 at paras. 79-91. In that case as well, the defendant had been found liable for fraud and civil contempt.

[49] In brief, punitive damages are available where the defendant has engaged in “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behavior.” Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 94. A key consideration is proportionality, having regard to the blameworthiness of the defendant’s conduct, the vulnerability of the plaintiff, the need for deterrence, other penalties which have been or are likely to be imposed on the defendant for the same misconduct, and the advantage wrongfully gained by the defendant.

[50] Mr. Ablacksingh created a fictitious lawyer and abused Dr. Devathasan’s trust to induce him into paying a retainer. He had no intention of assisting the Plaintiff or obtaining legal services for him. The evidence shows that after the amount was deposited into Mr. Ablacksingh’s account, he used the funds for personal expenses. Even when given the opportunity, he offered no explanation for his conduct or why he did not repay the Plaintiff when asked. His responses at the judgment debtor examination show little concern with the fact that the lawyer that he referred the Plaintiff to did not exist.

[51] Taking into consideration the sentence for civil contempt, I find there is no duplication in awarding punitive damages as well. Mr. Ablacksingh’s previous conviction for fraud and for civil contempt appear not to have had any deterrent effect. Moreover, the sentence for contempt is related to Mr. Ablacksingh’s lack of regard for the court’s process and punitive damages is in respect of his reprehensible conduct toward the Plaintiff.

[52] Given the foregoing, I find that an award of punitive damages is appropriate in the circumstances. In respect of the amount, the governing principle is proportionality: Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 74. In this case, the fraud perpetrated by the Defendants, while reprehensible and an abuse of a relationship of trust, was not of a lengthy or ongoing nature. The amount at issue was no doubt significant to the Plaintiff, but of a limited amount. Under the circumstances, I grant punitive damages in the amount of $20,000.

Costs

[53] The Plaintiff has submitted a costs outline seeking costs of $81,969.95 on a full indemnity basis. The Plaintiff’s costs on a partial indemnity basis total $50,071.74.

[54] Pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), the Court has broad discretion when determining the issue of costs. The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered by the court when determining the issue of costs. I have considered these factors, as well as the principle of proportionality in R. 1.01(1.1) of the Rules of Civil Procedure, while keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[55] The Plaintiff has already been awarded costs on the motion for default judgment. The costs that remain to be considered relate to the efforts to enforce the judgment and the motion for contempt.

[56] It is appropriate to order costs on a motion for contempt on a substantial indemnity basis: BDBC v. Cavalon Inc., 2017 ONCA 663 at para. 104. While the conduct at issue was serious, default judgment for $50,000 was obtained quickly. The Defendants have not sought to challenge the default judgment. Since then, counsel has spent more than 70 hours on the motion for contempt. I recognize that some of this time was due to the repeated attendances and Mr. Ablacksingh’s non-responsiveness. The motion for responses to undertakings was also necessitated by the Defendants’ conduct. However, counsel’s time also went toward assembling motion records and supplementary motion records, a three-volume book of authorities and a 70-page factum, in an effort to obtain an order for punitive damages on the contempt sentencing, even though they were available in the action. While he has sought to avoid the consequences, Mr. Ablacksingh has not challenged the motion for contempt. I appreciate that counsel’s objective was to be helpful to the court, but the material was duplicative and difficult to wade through.

[57] Based on the foregoing, I order costs on a substantial indemnity basis, and fix those costs at $40,000.00, inclusive of disbursements and HST.

[58] I will remain seized of this matter and will monitor Mr. Ablacksingh by means of regular appearances which may be scheduled by Plaintiff’s counsel. Any willful breaches of my order could result in a period of incarceration in jail.

Nishikawa J.

Date: December 17, 2018