COURT FILE NO.: CV-13-495489
DATE: 20180202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AZHAR MOHAMMAD, GHULAM MOHAMMAD, IMRAN CHAUDHRI, SHAHZAD CHAUDHRI, ABBAS ALI KHAN, TANVEER AHMAD, AZEEM ALI AMIR, HASANAIN ABBAS, NADIA TAHIR, ASGHAR DOSTMOHAMED, FERHANA DOSTMOHAMED and TAHA AMIRALLI
Plaintiffs
– and –
MOHAMMED AQEEL ANWAR and ANWAR GLOBAL PROPERTIES INC.
Defendants
Natalia Vandervoort for the Plaintiffs
Nizam Hashmi for the Defendant Mohammed Aqeel Anwar
HEARD: February 1, 2018
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] The Plaintiffs, Azhar Mohammad, Ghulam Mohammad, Imran Chaudhri, Shahzad Chaudhri, Abbas Ali Khan, Tanveer Ahmad, Azeem Ali Amir, Hasanain Abbas, Nadia Tahir, Asghar Dostmohamed, Ferhana Dostmohamed and Taha Amiralli, bring a motion for the following relief: (a) an order finding the Defendant, Mohammed Aqeel Anwar, in contempt; (b) an order striking out Mr. Anwar’s Statement of Defence; and (c) a default judgment.
[2] For the reasons that follow, I find Mr. Anwar in contempt, but I order that he may purge his contempt by: (a) fully complying with the Orders of Master Dash dated January 30, 2014 and March 27, 2014 and the Order of Master Pope dated June 29, 2016; and, (b) attending a judgment debtor examination by no later than April 2, 2018 upon being served by email with an appointment for the examination. I further order that if Mr. Anwar fails to purge his contempt by April 2, 2018, the Plaintiffs may move without notice to him before a Master to have his Statement of Defence struck out. I further order that there shall be a sentencing hearing for contempt on Friday April 13, 2018 (12 p.m.). I shall remain seized of this matter.
B. Factual Background
[3] On December 23, 2013, Azhar Mohammad, Ghulam Mohammad, Imran Chaudhri, Shahzad Chaudhri, Abbas Ali Khan, Tanveer Ahmad, Azeem Ali Amir, Hasanain Abbas, Nadia Tahir, Asghar Dostmohamed, Ferhana Dostmohamed and Taha Amiralli commenced an action against Anwar Global Properties Inc. and its principal Mohammed Aqeel Anwar.
[4] The Plaintiffs had invested $1,994,266.67 with Mr. Anwar and with his corporation, and when the investments were lost, they sued the Defendants for breach of contract, unjust enrichment, and breach of trust. They allege that the Defendants took their money and did not invest in real estate ventures as had been represented to them. Later the Plaintiffs were to add claims against Mr. Anwar for fraud, fraudulent misrepresentation, and conversion.
[5] Anwar Global Properties did not defend the action, and it was eventually noted in default.
[6] On January 28, 2014, Mr. Anwar, who is self-represented, delivered a Statement of Defence.
[7] On January 30, 2014, the Plaintiffs brought a motion seeking disclosure of financial information from Mr. Anwar. At the request of Mr. Anwar’s wife, who appeared at the return of the motion, the motion was adjourned because of Mr. Anwar’s ill health. The adjournment, however, was on terms. The motion was adjourned to March 19, 2014, but as a term of the adjournment, Master Dash ordered Mr. Anwar to deliver his affidavit of documents, which was to include "all third party account statements for all domestic and offshore accounts into which each of the plaintiffs' funds were deposited."
[8] On March 3, 2014, Mr. Anwar delivered an affidavit of documents; however, it did not contain any third party account statements as required by Master Dash’s order of January 30, 2014, but Mr. Anwar promised that he would bring the account statements to the hearing of the motion on March 19, 2014 and he said he would produce the account statements if ordered to do so on that date.
[9] On March 19, 2014, Mr. Anwar did not attend the motion, and rather, his wife delivered a letter to Master Dash indicating that he could not appear because of poor health and a “sudden loss in the family.” No supporting medical documents were provided to substantiate his health problems.
[10] Master Dash adjourned the motion to March 27, 2014. Once again, the adjournment was on terms. Mr. Anwar was ordered to bring to the hearing copies of all bank records showing the location of the Plaintiffs’ monies.
[11] On March 26, 2014, Mr. Anwar’s wife sent an email to the attention of Master Dash and counsel to the Plaintiffs seeking a further adjournment of the motion on the ground that Mr. Anwar had been admitted to St. Michael's Hospital. No supporting medical documentation, however, was provided.
[12] The next day, Master Dash did not grant an adjournment. He ordered that Mr. Anwar produce, by no later than April 30, 2014, a Supplementary Affidavit of Documents together with Schedule "A" productions that include all third party account statements for all domestic and offshore accounts into which each of the Plaintiffs' funds were deposited and particulars of any real estate investments made with the Plaintiffs' funds.
[13] Mr. Anwar did not and has not complied with Master Dash’s orders of January 30, 2014 and March 27, 2014.
[14] On April 28, 2014, Mr. Anwar wrote Master Dash and, because of alleged ill health, requested a six to eight week extension of time to comply with the outstanding orders. No supporting documentation was provided to substantiate the state of his health.
[15] Master Dash was not seized of the matter and granted no extension.
[16] On May 20, 2014, Mr. Anwar delivered a Notion of Motion seeking to vary Master Dash’s order due to ill health. There was no supporting medical documentation, and the motion did not proceed.
[17] The Plaintiffs’ action then appears to have languished for a year and a half until on December 2, 2015, the Plaintiffs obtained a default judgment of $2,042,489.54 plus costs against Anwar Global Properties.
[18] On January 6, 2016, the Plaintiffs’ counsel emailed Mr. Anwar to make arrangements for a judgment debtor examination at a location convenient to Mr. Anwar.
[19] On January 7, 2016, Mr. Anwar delivered a Notice of Motion seeking to set aside the judgment against Anwar Global Properties. The motion, once again, however did not proceed and when Mr. Anwar did not respond to the request to make arrangements for a judgment debtor examination, the Plaintiffs served a notice of examination scheduled for March 4, 2016.
[20] Mr. Anwar responded to the notice with a note from his family physician stating that Mr. Anwar was “currently not fit to perform any type of work, physical or mental" and that "his condition is still considered unstable and no recovery time can be anticipated".
[21] Although Plaintiffs’ counsel advised Mr. Anwar that the note was insufficient and incomplete, they cancelled Mr. Anwar’s examination and, on March 15, 2016, the Plaintiffs requested that Mr. Anwar answer preliminary written questions as a means of accommodating his ill health without prejudice to the Plaintiffs’ right to examine him later.
[22] The Plaintiffs wished 14 questions to be answered in writing, and they offered to reschedule the examination, subject to Mr. Anwar providing adequate medical documentation supporting his position that he was unable to give oral evidence.
[23] On March 23, 2016, Mr. Anwar provided another note from his family physician stating that he was "currently cognitively impaired and uncapable [sic] of performing any mental activities which require memory and recall".
[24] The Plaintiffs scheduled an examination of Mr. Anwar for May 12, 2016, which was a date agreeable to Mr. Anwar. However, Mr. Anwar subsequently sought an adjournment to provide him with an opportunity to retain a lawyer. The examination did not proceed.
[25] In June 2016, the Plaintiffs brought a motion seeking an order requiring Mr. Anwar to attend a judgment debtor examination. The motion was heard by Master Pope.
[26] For the motion before Master Pope, Mr. Anwar retained a lawyer, Nizam Hashmi, as his agent. At the motion, Mr. Hashmi indicated that: (a) Mr. Anwar would deliver answers to the written questions by September 30, 2016 failing which he would attend a judgment debtor examination; (b) Mr. Anwar agreed to deliver third party account statements for all domestic and offshore accounts into which the Plaintiffs' funds had been deposited by September 30, 2016 in the form of a Supplementary Affidavit of Documents; and (c) Mr. Anwar would deliver a letter from his financial institution(s) by August 31, 2016 confirming that the Plaintiffs’ funds were available, but there were holds placed on the funds preventing a transfer to the Plaintiffs unless Mr. Anwar personally attended to complete a transfer.
[27] On June 29, 2016 Master Pope ordered that Mr. Anwar answer the written questions by September 30, 2016 and that if the Plaintiffs were not satisfied with the answers, then Mr. Anwar shall attend at an examination by no later than October 31, 2016. She further ordered that Mr. Anwar deliver the third party account statements and the letter from the financial institutions as had been promised.
[28] On June 30, 2016, the Plaintiffs served an appointment to examine Mr. Anwar on October 21, 2016.
[29] Mr. Anwar failed to attend the examination, and the Plaintiffs obtained a Certification of Non-Attendance. Mr. Anwar did not comply with Master Pope’s order of June 29, 2016. He did not answer the written questions, provide the account statements, or provide the letter from the financial institutions.
[30] It was recently learned that Mr. Anwar was admitted to the Markham Stouffville Hospital in the summer of 2016, where he remained for approximately one year.
[31] In the fall of 2017, the Plaintiffs brought a motion: (a) to have Mr. Anwar found in contempt; (b) to have him noted in default with his Statement of Defence struck out; and (c) for a default judgment.
[32] The motion was returnable on November 21, 2017, but, the motion was adjourned at Mr. Anwar’s request until February 1, 2018.
[33] I heard the Plaintiffs’ motion on February 1, 2018.
[34] Mr. Hashmi attended as Mr. Anwar’s agent. Mr. Hashmi advised the court that he had difficulties meeting with Mr. Anwar, but eventually he met with him at his home. Mr. Hashmi advised that Mr. Anwar is in very poor health. Mr. Hashmi provided another note from Mr. Anwar’s physician.
[35] Mr. Hashmi requested that Mr. Anwar should not be found in contempt because Mr. Anwar had made efforts to comply with the various orders and had paid all the costs awards to date. Mr. Hashmi submitted that Mr. Anwar’s health is the reason that he has been unable to provide the information sought. On Mr. Anwar’s behalf, Mr. Hashmi asked for additional time, i.e., three-four months, to provide the outstanding information.
C. Discussion
[36] Under rule 60.05 of the Rules of Civil Procedure, an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.
[37] Under Rule 60.12, where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by the rules: (a) stay the party's proceeding; (b) dismiss the party's proceeding or strike out the party's defence; or (c) make such other order as is just.
[38] Where an alleged contempt is the failure to comply with a court order, a three-pronged test is applied: (1) Did the order alleged to have been breached clearly and unequivocally state what should and should not be done? (2) Did the party alleged to have breached the order have actual knowledge of it? and (3) Did the party allegedly in breach intentionally do the act that the order prohibits or did he or she intentionally fail to do the act the order compels?[^1] Each of the elements of the test must be proven beyond a reasonable doubt?[^2] The required intention relates to the act itself, not to the disobedience; in other words, the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt.[^3] It is unnecessary to prove that the alleged contemnor intended to put himself or herself in contempt; however, it must be established that he or she deliberately or wilfully or knowingly did some act which was designed to result in the breach of a court order.[^4]
[39] A finding of contempt will not be made for breach of an order unless its meaning in the particular circumstances is clear and unambiguous.[^5]
[40] As a general rule, contempt proceedings are bifurcated because liability and penalty are discrete issues. There is first a liability phase and then, if liability is established, a penalty phase.[^6] If the party purges the contempt by complying with the court order, the compliance may be taken into account as a mitigating factor on sentence.[^7]
[41] In the immediate case, the two orders of Master Dash and the order of Master Pope clearly indicate what is required of Mr. Anwar and he understands the orders and knows about them. He only relies on his ill health as an explanation or excuse for his failure to comply with the orders. The evidence of ill health is sketchy, vague, and incomplete but the evidence of this conduct establishes that Mr. Anwar intentionally breached the Masters’ orders. It appears that he was intentionally delaying the progress of the litigation.
[42] Mr. Anwar has had four years to comply with the orders and he has failed to do so.
[43] The circumstance of Mr. Anwar’s ill health does not provide an excuse or explanation for this unacceptable delay in his complying with the court’s orders. The evidence of ill health is inadequate to explain why the relatively simple and straightforward disclosure obligations imposed by the Masters’ orders were beyond his capacity to perform or to have been performed pursuant to his direction or authorization. Further, the evidence is insufficient to explaining why, apart from his one-year stay in hospital, Mr. Anwar was unable to comply with the several orders that have been outstanding for four years.
D. Conclusion
[44] For the above reasons, I find Mr. Anwar in contempt.
[45] I order that he may purge his contempt by: (a) fully complying with the Orders of Master Dash dated January 30, 2014 and March 27, 2014 and the Order of Master Pope dated June 29, 2016; and, (b) attending a judgment debtor examination by no later than April 2, 2018 upon being served by email with an appointment for the examination.
[46] I further order that if Mr. Anwar fails to purge his contempt by April 2, 2018, the Plaintiffs may move without notice to him before a Master to have his Statement of Defence struck out.
[47] I further order that there shall be a sentencing hearing for contempt on Friday April 13, 2018 (12 p.m.). I shall remain seized of this matter.
[48] The Plaintiffs shall have their costs for the liability phase of the contempt motion in any event of the cause. I, however, shall postpone determining the scale of costs and the quantum of costs until the penalty phase.
Perell, J.
Released: February 2, 2018
COURT FILE NO.: CV-13-495489
DATE: 20180202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AZHAR MOHAMMAD, GHULAM MOHAMMAD, IMRAN CHAUDHRI, SHAHZAD CHAUDHRI, ABBAS ALI KHAN, TANVEER AHMAD, AZEEM ALI AMIR, HASANAIN ABBAS, NADIA TAHIR, ASGHAR DOSTMOHAMED, FERHANA DOSTMOHAMED and TAHA AMIRALLI
Plaintiffs
– and –
MOHAMMED AQEEL ANWAR and ANWAR GLOBAL PROPERTIES INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: February 2, 2018
[^1]: Carey v. Laiken, 2015 SCC 17 at paras. 33-35; Greenberg v. Nowack, 2016 ONCA 949 at para. 25.
[^2]: Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.); Bell ExpressVu Limited Partnership v. Torroni (2009), 2009 ONCA 85, 94 O.R.(3d) 614 (C.A.) at para. 21; Hobbs v. Hobbs, 2008 ONCA 598, [2008] O.J. No. 3312 (C.A.) at paras. 26-28.
[^3]: Carey v. Laiken, 2015 SCC 17 at paras. 33-38; Greenberg v. Nowack, 2016 ONCA 949 at para. 27.
[^4]: Geremia v. Harb, 2007 CanLII 1893 (ON SC), [2007] O.J. No. 305 (S.C.J.) at para. 31.
[^5]: Bell ExpressVu Limited Partnership v. Torroni (2009), 2009 ONCA 85, 94 O.R. (3d) 614 (C.A.); Jaskhs Enterprises v. 1444707 Ontario Ltd., [2004] O.J. No. 4062 (S.C.J.) at para. 40.
[^6]: Carey v. Laiken, 2015 SCC 17 at para. 18; College of Optometrists (Ontario) v. SHS Optical Ltd., 2008 ONCA 685 at paras. 72-75.
[^7]: Korea Data Systems Co. v. Chiang, 2009 ONCA 3 at paras. 50-52.