REASONS – CIVIL CONTEMPT PROCEEDINGS

[1] This motion under r. 60.11 for an order finding the responding party, Mubarik Chaudhry (“Chaudhry”), in contempt of court, arising from alleged breaches of the Order of Justice Glustein made on January 12, 2017 (“Glustein Order”), was heard November 12, 2021 in person at 330 University Avenue.

[2] The contempt motion was originally scheduled to be heard as part of the Application brought by York Condominium Corporation No. 188 (YCC 188) on June 4, 2021 against all of the Respondents before me. However, I adjourned the motion for contempt against Chaudhry to October 12, 2021 to permit him to prepare a defence.

[3] The contempt motion was further adjourned by Sharma J. to today, so that it would be before me, as I heard the Application and released reasons on October 22, 2021 on all issues, except for the contempt motion.

[4] Since the adjournments, Chaudhry has filed an affidavit sworn November 9, 2021 with exhibits.

[5] The allegation by YCC 188 is that Chaudhry knowingly violated the terms of paragraphs 3(b) and (c) of the Glustein Order. Those paragraphs state that Chaudhry:

3(b) is prohibited from communicating directly or indirectly with any representative of YCC 188 or any third party, other than the property manager for an issue relating to the management of the property, which shall only be done in writing, and shall not in any manner be abusive, vulgar, or in any way constitute a threat or harassment, constitute an attempt to interfere with the operations of YCC 188, or constitute a false or defamatory statement concerning YCC 188 or its representatives;

3(c) is prohibited from posting any document or notice whatsoever on the common elements of YCC 188, and may only circulate within the condominium building for a purpose permitted under the Condominium Act.

TEST AND ANALYSIS

[6] Rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states:

MOTION FOR CONTEMPT ORDER

(1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

CONTENT OF ORDER

(5) 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 the term of the order;

(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.

[7] The burden is on YCC 188 to established beyond a reasonable doubt that Chaudhry violated the Glustein Order.

[8] The test for civil contempt is well established:

(a) The Glustein Order must clearly and unequivocally state what should and should not be done by Chaudhry;

(b) Chaudhry must have had actual knowledge of the Glustein Order; and

(c) Chaudhry must have intentionally done the act that the Glustein Order prohibits: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32 – 35; North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited, 2021 ONCA 173, at para. 43.

[9] Paragraph 3(b) of the Glustein Order states that Chaudhry is prohibited from communicating, in any form, directly or indirectly with any representative of YCC 188 or any third party. There is an exception. The Glustein Order permitted limited written communication with the property manager but only with respect to the management of the Condominium Property and only in a way that is not abusive, vulgar, or in any way constitutes a threat or harassment, or attempts to interfere with the operations of YCC 188, or contains a false or defamatory statement concerning YCC 188 or its representatives.

[10] Paragraph 3(c) of the Glustein Order prohibited Chaudhry from posting any document or notice whatsoever on the common elements of YCC 188, such as the lobby, and further prohibited him from distributing documents or notices within the condominium building where for a purpose other than permitted under the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”).

Clear and Unequivocal

[11] First, the subject paragraphs of the Glustein Order are clear and unequivocal in stating what Chaudhry is prohibited from doing.

[12] Chaudhry did not claim to have misunderstood the content of the Glustein Order, but rather he claims that he disagreed with those paragraphs. He submitted that the proceeding before Glustein J. was a “fraud,” as was the Glustein Order, and therefore he was justified in taking the steps that he did.

[13] Chaudhry insisted in his affidavit and at court that a true reading of sections 1(1), 7(4), 56(1), 84(1), 84(3), and 86(6) of the Act supports his position (largely concerning the common expenses claimed by YCC 188 against him and his parents). He also insists that the other parties were in breach of the Recognizance he signed on October 6, 2016.

Actual Knowledge

[14] Second, there is no doubt that Chaudhry had actual knowledge of the Glustein Order. Not only did he provide reasons that he said justified not following the Glustein Order, but it was established in the evidence that Chaudhry was in court before Justice Glustein and that Justice Glustein reviewed with him the law addressing the obligations of an occupier of a condominium unit. Further, when Chaudhry was in court before Justice Koehnen in relation to cost enforcement proceedings relating to the Glustein Order, Justice Koehnen explained the Glustein Order to him. Of note, Justice Koehnen’s endorsement dated August 23, 2017 stated at para. 9:

In his affidavit and in oral argument, Mubarik (Chaudhry) relied on the reasons of Justice Glustein which Mubarik seems to think help him and his family. The reasons of Justice Glustein do not help Mubarik or his family in any way. When I asked Mubarik questions about how Justice Glustein’s reasons helped him, it became clear that Mubarik misunderstood them.

[15] In any event, Chaudhry did not suggest he was unaware of the Glustein Order.

Intentionally Done the Prohibited Act

[16] Third, YCC 188 has filed evidence that demonstrates that Chaudhry repeatedly and intentionally did acts that violated the subject paragraphs of the Glustein Order between 2017 and 2021. In my Reasons for Decision issued on October 22, 2021 for this Application, I review various examples of communications by Chaudhry that violate the Glustein Order.

[17] Indeed, after the hearing before me on June 4, 2021, but prior to the release of my Reasons on October 22, 2021, Chaudhry delivered an email dated September 20, 2021 to Michael Slan, the managing partner of Fogler Rubinoff LLP (YCC 188’s law firm) and others that stated:

It is my humble request to all of you to forward my email to the Director/Owner of Fogler Rubinoff LLP.

Lawyers of Fogler Rubinoff LLP created a law and order situation in Canada by misleading all the authorities. Lawyers of Fogler Rubinoff LLP ARE FRAUD.

Attached to his email was a police complaint form to the Office of the Independent Police Review Director in which he had made a complaint regarding alleged police actions and inactions that relate to the Glustein Order and his 2016 Recognizance.

[18] Additionally, Chaudhry sent an email of the same date to Ms. Dirks, the lawyer with carriage of this matter on behalf of YCC 188 and a member of Fogler Rubinoff LLP, in which he attaches the same police complaint form.

[19] In his affidavit, Chaudhry does not contest that he sent any of the key communications to various people, including unit owners at the Condominium Property, certain Directors, the property manager of YCC 188, and YCC 188’s lawyers, as is reflected in the Application Record.

[20] On the other hand, I was advised by Ms. Dirks that since Chaudhry was expelled from his parents’ condominium unit at YCC 188’s property (2835 Islington Avenue, Toronto or the “Condominium Property”), in or around July 6, 2021, there have been no reports of him entering the Condominium Property. Furthermore, since the filing of YCC 188’s Application in or around May 2021, there have been no other actions by Chaudhry that are contrary to the Glustein Order beyond the abundant evidence filed by YCC 188 (which is uncontested by Chaudhry) other than the September 20, 2021 emails referenced above.

Discretion of the Court

[21] Whether or not to issue a contempt order is ultimately within the discretion of the court: Carey, para. 36. Indeed, the court may ultimately decline to make a finding in contempt notwithstanding its finding that the three elements of contempt have been proven beyond a reasonable doubt. Furthermore, the purpose of a contempt order is primarily coercive rather than punitive insofar as the court is seeking to obtain compliance with its order.

[22] Indeed, in its recent decision of North Elgin, the Ontario Court of Appeal stated at para. 45,

As the contempt power is discretionary, courts have consistently discouraged its routine use to obtain compliance with court orders. It should be used cautiously and with great restraint; it is regarded as an enforcement power of last, not first, resort. So, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt. As well, a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case: Carey, at paras. 36-37.

[23] In this case, we are dealing with a defendant who is self-represented and who apparently believed that the Glustein Order was tainted by fraud, thereby relieving him of the obligation to comply with it. However, Chaudhry’s appeal of the Glustein Order was dismissed for failure to perfect. Furthermore, a genuine belief where misguided does not excuse the alleged contemnor, in this case Chaudhry, from complying with a validly made court order. To be clear, the Glustein Order was validly made and binding on Chaudhry.

[24] On the other hand, the Glustein Order has now expired as it has been succeeded by the order I made on October 22, 2021 (the “current Order”), in which I imposed substantially similar prohibitions against Chaudhry and some additional ones. Therefore, the purpose of a contempt order, to enforce compliance with an existing order, is no longer a specific concern. That said, there remains the valid and important goal of sending a message to all, including Chaudhry, that court orders must be respected and obeyed. If an order is not followed, then those alleged to have disrespected and disobeyed the court’s order can be subject to a contempt order with the associated powers listed in r. 60.11(5).

[25] In addition, as stated above, Chaudhry has stayed away from the Condominium Property and, other than the inappropriate September 21, 2021 email communication with Fogler Rubinoff LLP and Ms. Dirks, he has not violated the Glustein Order since in or around May 2021.

[26] On the other hand, the current Order imposes an ongoing hardship on Chaudhry as Chaudhry’s elderly parents still reside in their unit at the Condominium Property.

CONCLUSION

[27] In my view, this is a case in which it would be appropriate to exercise my discretion to not make a finding of contempt at this time. The objective of the contempt power is to ensure compliance with court orders. Chaudhry at the conclusion of his submissions stated that he would respect the terms of the current Order and he felt that he had been heard.

[28] Chaudhry advised the court, “I made a promise with my wife and kids that this is the last court hearing I’m going for and whatever the result as an outcome, I will accept in regards to avoid any appeal.” He then advised the court, “So I’m done with York Condominium Corporation and with the courts today.” I expect Chaudhry to stand by his submission.

[29] At the conclusion of the hearing, I signed the current Order reflecting my reasons issued on October 22, 2021. Chaudhry was provided with a copy of the signed Order and I read it out to him.

[30] However, it is important that YCC 188 be able to enforce the current Order as against Chaudhry in an expeditious and fair manner should the need arise in the future.

[31] Accordingly, I will stay seized of this matter subject to my availability. In the event that Chaudhry takes any action that is in contravention of the current Order, YCC 188 may bring a further motion for contempt on further evidence.

[32] To this end, I am reminding Chaudhry that he must respect and abide by the current Order, which includes the following terms that are binding on him:

(a) Chaudhry is prohibited from renting or occupying any unit within YCC 188;

(b) Chaudhry is prohibited from visiting or attending at the condominium property of YCC 188.

(c) Chaudhry is to refrain from knowingly approaching within 30 feet of any of the following people: the property manager; employees and directors of YCC 188; and lawyers from YCC 188’s law firm, Fogler Rubinoff LLP, including Ms. Dirks;

(d) Chaudhry is prohibited from engaging in any harassing or abusive conduct, either directly or indirectly, towards any representative of YCC 188, including but not limited to property management staff, directors, officers, lawyers, and agents of YCC 188; and

(e) Chaudhry is prohibited from directly, or through others, communicating, publishing, circulating, or disseminating any statement or materials whatsoever regarding YCC 188 or any of its property management, staff, employees, directors, officers, lawyers, or agents to any person, with the exception of commencing any lawful proceeding before a court or tribunal or responding to any such lawful proceeding.

[33] To be clear to Chaudhry, I have found his email communication dated September 21, 2021 to Mr. Slan and Ms. Dirks to be in violation of the Glustein Order.

[34] If Chaudhry finds himself the subject of a further contempt motion, he may not expect the same leniency and could find himself subject to a fine or even incarceration (jail). However, in light of Chaudhry’s statements at the conclusion of the contempt motion, I am prepared to give him the benefit of the doubt. I believe that no such action will be required and that he will abide by my Order.

[35] That said, I am inclined to grant YCC 188’s costs of this contempt motion, subject to receiving written submissions on this issue. There is no reason why Chaudhry should not have to pay the costs of this contempt motion. YCC 188 successfully made out the requisite elements beyond a reasonable doubt. I am exercising my discretion to grant leniency to Chaudhry, and I decline to make a finding in contempt at this time. This is the reason that a finding of contempt is not being made.

[36] YCC 188 is to deliver and file its cost outline and brief written submissions (not to exceed three double spaced pages) in support of its request for costs, including the scale of costs, by November 30, 2021. Chaudhry is then to deliver and file his cost outline and responding written submissions (again, not to exceed three double spaced pages) within 10 days thereafter.

[37] The cost outlines and written submissions should be posted to CaseLines and sent by email to my judicial assistant.

Justice S. Vella

Date: November 16, 2021

COURT FILE NO.: CV-16-00563009-0000

DATE: 20211116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

YORK CONDOMINIUM CORPORATION NO. 188

Applicant/Moving Party

– and –

MUBARIK CHAUDHRY ET AL.

Respondents/Responding Party

REASONS FOR JUDGMENT

Vella J.

Released: November 16, 2021

York Condominium Corporation No. 188 v. Chaudhry, M. et al, 2021 ONSC 7586

Case Summary

REASONS – CIVIL CONTEMPT PROCEEDINGS

TEST AND ANALYSIS

Clear and Unequivocal

Actual Knowledge

Intentionally Done the Prohibited Act

Discretion of the Court

CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 2