Ever Fresh v. Islamia, 2013 ONSC 6799 (CanLII)
S.R. v. J.S., 2013 ONCJ 403 (CanLII)
July 24, 2013Ever Fresh v. Islamia, 2014 ONSC 2101 (CanLII)
April 2, 2014CITATION: Ever Fresh v. Islamia, 2013 ONSC 6799
COURT FILE NO.: CV-12-4195-00
DATE: 2013-11-04
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada Ltd.
BEFORE: Barnes, J
COUNSEL: Ronald Birkin for the Applicant and Anser Farooq for the Respondent
HEARD: June 12, 2013
AMENDED ENDORSEMENT
Corrected Endorsement: The text of the original judgment was corrected on December 6, 2013, and the description of the correction is appended. See page 27 for changes.
INTRODUCTION
[1] Jamia Islamia Canada (Ltd.), (Jamia Islamia) seeks an Order finding Ever Fresh Direct Foods Inc. and its principal, Abdul Razak Alyousef (Ever Fresh), in contempt for failing to comply with the Orders of the Ricchetti J., dated September 24, 2012, and October 5, 2012, the Order of Price J. dated November 2, 2012, and the consent Order of Grey J. dated February 8, 2013.
[2] This is a motion for civil contempt. Should a contempt finding be made Jamia Islamia seeks an order striking the statement of claim of Ever Fresh and its principal, Mr. Alyousef.
DISPOSITION
[3] Upon reading the affidavits and other material flied and considering the viva voce evidence called this court finds as follows:
(a) Ever Fresh and its principal, Mr. Alyousef breached paragraph 4, of the Order of Ricchetti J., dated September 21, 2012;
(b) Ever Fresh and its principal, Mr. Alyousef did not breach paragraph 3(2) of the Order of Ricchetti J., dated September 21, 2012;
(c) Ever Fresh and its principal, Mr. Alyousef breached, paragraphs 1 and 2 of the Order of Ricchetti J., dated October 5, 2012;
(d) Ever Fresh and its principal, Mr. Alyousef did not breach paragraph 3 of the Order of Price J., dated November 2, 2012;
(e) Ever Fresh and its principal, Mr. Alyousef breached paragraph 2 of the Order of Grey J., dated February 8, 2013;
(f) Ever Fresh and its principal, Mr. Alyousef breached paragraph 3 of the Order of Grey J., dated February 8, 2013; and
(g) Ever Fresh and its principal, Mr. Alyousef breached paragraph 8 of the Order of Grey J., dated February 8, 2013.
[4] In the result, I am satisfied beyond a reasonable doubt, that Ever Fresh and its principal, Mr. Alyousef are in contempt of court. The issue of sentence and cost is adjourned to a date as described in these reasons.
BACKGROUND FACTS
[5] On February 1, 2008, Ever Fresh entered in to a lease with the Jamia Islamia for a period of ten years. Ever Fresh leased the premises from Jamia Islamia solely for the purpose of operating a food manufacturing, distribution and warehouse business.
[6] On August 28, 2012, Jamia Islamia notified Ever Fresh of various alleged breaches in violation of the lease agreement and provided a remediation period of 15 days. Upon expiration of 15 days, Jamia Islamia served a Notice of Eviction upon Ever Fresh, terminated the lease and changed the locks on September 17, 2012.
[7] Some of the alleged breaches included operating a cafe shop, operating a butcher shop and leaving debris in the parking lot. On September 20, 2013, Ever Fresh brought an application seeking relief from forfeiture and in a letter dated September 20, 2012, Jamia Islamia informed Ever Fresh that there was a “strong odour” emanating from the premises. Ever Fresh had been locked out of the premises for 11 days.
[8] At a hearing on September 21, 2012, Ever Fresh informed Ricchetti J., that it was not operating a café or butcher shop on the premises and was not leaving debris in the parking lot. Ricchetti J made an Order, permitting Ever Fresh to return to the premises on a limited basis. The conditions imposed by the learned Judge included this restriction at paragraph 4:
“The tenant shall permit any director of the landlord to enter the premises during the hours of 9:00 a.m. and 6:00 p.m. each day to view and or photograph the premises”.
[9] At paragraph 2, of the September 21, 2012, Order Ricchetti J., prohibited Ever Fresh from carrying “on any activities or business of a café, lounge or butcher” on the said premises.
[10] On September 24, 2012, the parties appeared before Ricchetti J, there was a dispute over the exchange of the keys for the premises. Justice Ricchetti warned the parties of the serious consequences that could follow from a failure to comply with his orders. Jamia Islamia provided the keys to Ever Fresh on September 24, 2012.
[11] The parties were before Ricchetti J., on October 5, 2012. Justice Ricchetti concluded that Ever Fresh had chosen to ignore his Orders and had placed Jamia Islamia at risk with the Municipality. Specifically Justice Ricchetti noted that Ever Fresh had operated a butcher shop and had changed the locks to the premises frustrating the access of Jamia Islamia to the premises all in contravention of his Orders.
[12] Justice Ricchetti varied his Orders of September 21 and 24, 2012, and ordered Ever Fresh to vacate the premises. Justice Ricchetti also ordered Ever Fresh to remove perishable items from the premises between 10:00 a.m. and 2:00 p.m. on Monday, October 8, 2012, and the premise was to remain locked and not used until a further order of the court.
[13] Ever Fresh contacted Jamia Islamia and sought permission to remove goods from the premises. These goods belonged to a third party Meghna Pacific. The goods were located in Unit B of the premises.
[14] The parties appeared before Ricchetti J. on November 2, 2012, and obtained an Order on consent. This Order permitted Meghna Pacific to enter the premises for two days and for five hours on each day. The purpose was to remove perishable goods. The removal of non-perishable goods was prohibited. The Order included a provision that the principal of Ever Fresh, Mr. Alyousef was not to be present during the removal process. He was prohibited, from attending the premises while the perishable goods were removed.
[15] On November 23, 2012, Ever Fresh brought a motion to vary Ricchetti J’s Order of October 5, 2012. This motion was unsuccessful.
[16] On January 21, 2013, Jamia Islamia noticed some flooding in the premises. On February 8, 2013, both parties were back in court to deal with the matter of the flooding. This was caused by burst pipes in the premises.
[17] On February 8, 2013, on consent, Grey J., made a number of Orders, one of which, at paragraph 2, permitted Ever Fresh to re-enter the premises to inspect for possible damage and repair damage caused by the flooding; such entrance was to be on a single occasion and for a maximum of six hours, Ever Fresh’s principal Abdul Alyousef was to charge the forklift to expedite the removal of perishable goods.
[18] Another provision of the February 8, 2013, Order, at paragraph 3, was that the freezers in Unit B were to be shut off by Ever Fresh; all perishable items to be removed by Ever Fresh; and Ever Fresh was to complete this work within a single period of eight hours.
[19] At paragraph 8, of the February 8, 2013, Order, Ever Fresh was to pay all future heating costs for Unit B until the hearing or other disposition of the application.
[20] There are other court Orders that postdate February 8, 2013, however, a review of the materials and from the submissions of the parties, it is clear that these Orders do not form part of this contempt motion.
THE LAW
[21] The applicable legal principles on a motion for a finding of contempt of court can be summarized as follows:
(a) The ability to disobey court orders without consequences undermines the very essence of a society. It will leave members of society with little option but to take the law into their own hands and will ultimately lead to the destruction of our society. Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) 1974 CanLII 835 (ON SC), [1947] O. J. No. 1999, 4 O.R. (2d) 585 (Ont. H.C.J.).
(b) The focus of a contempt motion is the determination of the noncompliance of a court order which is not an order ordering the payment of money: Rule 60.11; Chiang (Trustee of) v. Chiang, 2007 CanLII 82789 (ON SC), 85 O.R. (3d) 425 (Ont. S.C.J.).
(c) There are three elements that must be satisfied in support of a finding of contempt:
(i) Was the Order clear and unequivocal in conveying its instructions?
(ii) Did the person disobey the Order and was it deliberate and wilful?
(iii) Has contempt been proven beyond a reasonable doubt? Bell Express Vu Ltd. Partnership v. Torroni (2009) 2009 ONCA 85 (CanLII), O.J. No. 356, 94 O.R. (3d) 614 at para 21 (Ont. C.A.).
ISSUES
[22] There is no issue about the clarity or unequivocal nature of the Orders under consideration. This is apparent from the material filed and the submissions of the parties. I should indicate that even if the clarity and unequivocal nature of the Orders was in dispute, upon a review of all the Orders, I am satisfied beyond a reasonable doubt, that all the Orders are clear and unequivocal. In fact, there is no room for any misunderstanding, by any of the parties, as to what the Orders meant.
[23] There remain two issues:
- a)Did the Ever Fresh and/or its principal Mr. Alyousef disobey the Order and was it deliberate and wilful?
- b)Has contempt been proven beyond a reasonable doubt?
ANALYSIS
THE ORDER OF SEPTEMBER 21, 2012, AT PARAGRAPH 4
[24] This Order states:
“The tenant shall permit any direction of the landlord to enter the premises during the hours of 9:00 a.m. and 6:00 p.m. each day to view and or photograph the premises”.
[25] It is clear from a review of the Order that the Ever Fresh was required to permit the Jamia Islamia to enter the premises. The period for such access is clearly set it was to be between 9:00 a.m. and 6:00 p.m.; the purpose was also clear i.e. “to view and or to photograph the premises”. There is nothing in the Order that qualifies, distracts from or confuses the intent of the Order as a whole and paragraph 4 in particular. Ever Fresh and it’s principal had no discretion.
[26] There are two components of the Order, for which, Jamia Islamia asserts that there has been a breach. There is the portion dealing with general access and then a portion dealing with the time and duration of access. I will first deal with general access.
[27] At 4:30 p.m. on September 24, 2012, Mohammed Tahir Khan, of Jamia Islamia, arrived at the premises Unit B, to find that the locks to the doors of the premises had been changed. Muhammed Tahir Khan observed the locks being changed by Mr. Ali and Mr. Anees of Ever Fresh.
[28] This time of entry, by the Jamia Islamia, is permitted by the Order of September 21, 2012. The changing of the locks effectively frustrated Jamia Islamia’s ability to exercise their right of entry as contemplated by the Order.
[29] Abdul Razak Alyousef, of Ever Fresh, explained that he had to change the locks, and replace them with the original locks, because Jamia Islamia had changed the locks.
[30] According to Abdul Razak Alyousef, the locks had to be changed to enable his employees to get access to the premises. Ever Fresh’s re-entry into the premises was contemplated by the Order. He explained that it was not his intent to breach the order and therefore he did not change all the locks.
[31] Ever fresh did breach paragraph 4 of Ricchetti J’s Order by changing the locks. Ever Fresh’s actions were ill advised in view of the terms of the existing Order; however, not all the locks were changed.
[32] According to Muhammad Tahir Khan, he arrived at the premises, at 5:30 p.m., on September 24, 2012. Upon his arrival, Akram of Ever Fresh closed the doors. Muhammed Tahir was able to open the locked door because the lock to that door had not been changed.
[33] The fact that the lock to the door had not been changed seems to support Ever Fresh’s position that the intent was not to keep Jamia Islamia, not all the locks had been changed, however, Akram’s action of closing the doors indicates an intent on the part of Ever Fresh to prevent access.
[34] The DVD footage filed, as exhibit 2 to the affidavit of Mohammed Tahir, indicates that the agents of Ever Fresh continually instructed the agents of Jamia Islamia to leave the premises. It is Ever Fresh’s responsibility to ensure that all its agents are aware of the terms of the court order and adhere to the terms of the court order. By this conduct, Ever Fresh was in breach of the court order.
[35] On September 25, 2012, Mr. Bashir of Ever Fresh prevented Jamia Islamia from entering the premises. The DVD, filed as exhibit 2 to Mr. Tahir’s affidavit, depicts Mr. Bashir refusing entry. He stated that the Order required permission to be obtained from Mr. Alyousef before access could be granted. This was not a requirement of the Order. This conduct is in breach of the Order.
[36] On September 26, 2012, Mr. Alyousef informed Jamila Islamia that he had instructed his employees to grant them access to the premises. On September 27, 2012, Jamia Islamia made a formal complaint to Ever Fresh complaining about lack of access.
[37] Efforts were made by the parties to facilitate access on September 28, 2012. Phone calls were exchanged between Mr. Alyousef and Mr. Alwi to facilitate Jamia Islamia’s access. Emails filed with the court indicate that on the first attempt entry into the premises was not successful because Mr. Bashir was at prayers; Mr. Alwi of Jamlia Islamia did not take advantage of an offer to use the back door; Mr. Bashir had waited until 5:30 p.m. on that day and Mr. Alwi had not attended.
[38] Mr. Alwi explained that due to the previous aggressive nature of Mr. Bashir, he had decided not to take advantage of the opportunity to inspect the premises on September 28, 2012.
[39] On September 28, 2012, Jamia Islamia suggested that the access problem could be resolved by Ever Fresh providing Jamia Islamia with keys to the premises.
[40] Despite the only partial changing of the locks; the apparent softening of the Ever Fresh stance on September 26 and 28, 2012, and the link off restrictions on times of access to the nature of the business, the cumulative effect of Mr. Bashir’s refusal to permit entry on September 24, 2012; Akram’s closing of the door when Jamia Islamia arrived on the premises and asking agents of Jamia Islamia to leave the premises, is that, I am satisfied beyond a reasonable doubt, that the actions of Ever Fresh were deliberate and wilful such as to frustrate the intent of the Order and therefore Ever Fresh and its principal are found in contempt of that Order.
[41] The time and duration of access: The Order was clear and unequivocal; it ordered access for the Jamia Islamia between the hours of 9:00 a.m. and 6:00 p.m. There was no dispute, between the parties, that the Jamia Islamia was attempting access during the permitted time period.
[42] However, Ever Fresh advised Jamia Islamia that they were to notify Mr. Alyouseff before attending; Ever Fresh limited the times when Jamia Islamia could attend to between 9:30 a.m. to 3:30 p.m. These two conditions were clearly in breach of the Order. Mr. Bashir, in e-mails dated October 1 and 2, 2012, provided times when he will be in the warehouse and advised that Mr. Alyouseff was to be contacted if access was required outside those hours. On October 3, 2012, he advised Jamia Islamia of access times all linked to when he would be in the warehouse. These actions were clearly in breach of the Order which specified no such restrictions.
[43] By letter dated September 27, 2012, Ever Fresh explained that notification of Mr. Alyouseff was necessary due to the nature of the Ever Fresh business. The e-mails of October 1, 2 and 3, indicate an effort to comply with the terms of the Order. The efforts of September 27, 2012, to seek some reasonable accommodation, leaves me in a state of reasonable doubt and to the conclusion that though Ever Fresh was in breach of the spirit of the Order, the breach, as to times of access, was not deliberate and wilful. I do not find Ever Fresh and its principal in contempt of this part of the Order.
SEPTEMBER 21, 2012, ORDER PARAGRAPH 3(2)
[44] Paragraph 3(2) of the September 21, 2012, Order is clear and unequivocal. The Ever Fresh is prohibited from carrying on the business of a café, lounge or butcher shop on the premises.
[45] Nothing in the other paragraphs of the Order detracts from the clear and unequivocal language of paragraph 3(2). It is also clear that the intent of the Order was to give “butcher shop” it’s regular every day meaning.
[46] “Butcher” is defined, in the Concise Oxford English Dictionary 8 edition, as “a person whose trade is cutting up and selling meat in a shop”.
[47] Jamia Islamia representatives entered the premises on September 24, 2012, at approximately 5:35 p.m. They observed agents of Ever Fresh cutting meat. These agents told them they were acting on the instructions of the Mr Alyousef. The DVD depicts this very clearly.
[48] Ever Fresh insists that they were not operating a butcher shop. Mr. Abdul Razak Alyousef explained that since October 2011, large quantities of frozen meat was delivered to his business on the premises. This meat was cut and sold to business establishments, but not to the public. According to Mr. Alyousef this represented less than five per cent of the Ever Fresh business.
[49] Mr. Alyousef testified that on September 24, 2012, Ever Fresh was simply destroying meat that had gone rotten for the purpose of disposing of that meat. He explained that he was not doing this for the purpose of sale.
[50] After viewing the DVD, at the court appearance on October 5, 2012, Ricchetti J. commented that the images on the DVD showed Ever Fresh operating a butcher shop in violation of his Order. This is apparent from the images on that tape. I reach the same conclusion.
[51] The next issue to decide is whether this action was deliberate and wilful. Mr. Alyousef was present at the September 21, 2012, hearing. He did not advance the “rotten meat” explanation before the learned Justice, therefore Ricchetti J. did not have an opportunity to consider the actions of Ever Fresh, in the context of this “rotten meat” explanation.
[52] Mr. Alyousef’s explanation is highly suspicious, primarily because it was not advanced before Ricchetti J. on September 21, 2012, however, strictly speaking, Ricchetti J. was not conducting a contempt hearing. Ricchetti J. ordered that a contempt hearing be held. A contempt hearing permits an in-depth inquiry into the circumstances surrounding the breach of this Order. This new explanation has been advanced by Ever Fresh within the context of this in-depth inquiry i.e. the motion for contempt hearing.
[53] My suspicions of the veracity of Mr. Alyousef’s “rotten meat” explanation remain, however, it must be assessed within the context of all the other applicable evidence at the beyond a reasonable doubt standard of proof. The additional applicable evidence includes the following:
(a) On September 20, 2012, there was a smell of rotten meat emanating from the premises;
(b) The Order of September 21, 2012, provided Ever Fresh with authority to re-enter the premises. Since it was the Ever Fresh’s meat it can reasonably be expected that the Ever Fresh would have to dispose of the rotten meat. In fact; the Jamia Islamia notified Ever Fresh, on September 20, 2012, that there was a strong odour emanating from the premises;
(c) Ever Fresh explained that the meat had become rotten because Ever Fresh had not had access to the premises for 11 days;
(d) There is no evidence to contradict Ever Fresh’s assertion that the meat that was being cut was the rotten meat; and
(e) Only four days had elapsed between the day of the report of the rotten meat and the action witnessed by the Jamia Islamia on September 24, 2012.
[54] In the result, the action, observed by the Jamia Islamia, is equally consistent with Ever Fresh cutting up meat for distribution to businesses i.e. as a butcher shop, as it is with cutting up rotten meat for disposal, in the result, I am left in a reasonable doubt as to whether such action was a deliberate and wilful violation of the Order and conclude that there is insufficient evidence to hold Ever Fresh and its principal Mr. Alyousef in contempt of the Order.
OCTOBER 5, 2012 ORDER, PARAGRAPHS 1 AND 2 – NO ENTRY PERMITTED
[55] In the Order dated October 5, 2012, Ricchetti J. permitted Ever Fresh to enter the premises at specific times to remove perishable items: Paragraphs 1 and 2 of the Order states the following:
(a) Paragraph 1: “The premises shall be vacated by the tenant. The tenant shall have between 10am and 3pm on Monday October 8, 2012 to remove any perishable items. Except for this period of time, the premises shall remain locked and not used until further order of this Court.”
(b) Paragraph 2: “Neither the App (tenant) or anyone on its behalf shall attempt to enter or shall enter the premises until further order of this court.”
[56] Mr. Alyouseff testified that he understood from his counsel that he had four days to remove the perishable items. It is clear that Mr. Alyouseff is waiving his solicitor client privilege with respect to portions of the communications, with counsel, on the topic of the period of time available for Ever Fresh to remove the perishable items.
[57] This Order is clear and unequivocal. It is clear when read on its own or in the context of the other Orders set out in the October 5, 2013, endorsement. Entry into the premises was only for the purpose of removing perishables and could only take place on a specific day during a specific time period and therefore, Mr. Alyouseff’s description of the advice he received from his counsel is simply untenable and in the absence of any other evidence, I specifically reject it. I find that Mr. Alyouseff was aware that the entry into the premises was restricted to October 8, 2012, within the time period specified in the Order.
[58] On October 6, 2012, Anes Alyousef and Mr. Bashir of Ever Fresh and personnel from a third party, Meghna Pacific, entered the premises. This entry was in clear violation of the Order. The Order permitted entry by Ever Fresh only on October 8, 2012.
[59] Ever Fresh was promptly informed by the representatives of Jamia Islamia that the entry into the premises was in violation of the Order. This interaction is captured in the DVD referenced as exhibit 2A in the affidavit of Mr. Alwi dated 16 of November 2012. Mr. Alyousef explained that as soon as Ever Fresh and personnel from Meghna Pacific were informed of the Order they left the premises. It is the responsibility of Ever Fresh to ensure that the Order is complied with. This entry by Ever Fresh was in violation of the Order.
[60] Jamia Islamia representative Mr. Alwi, determined that there were persons in the premises in violation of the Order. He called Mr. Al Alyousef of Ever Fresh. Mr. Alyousef informed him that he would instruct Mr. Bashir to let Mr. Alwi in. Pursuant to the Order, Mr. Bashir should not have been in the premises at that time. Mr. Alyousef was aware of this.
[61] The only logical inference can be drawn from the evidence is that Mr. Alyousef was aware that there were persons, including Ever Freeh representatives in the premises and that they were there on his instructions. The fact that these representatives left once they were made aware of the Order, does not detract from this conclusion, I have reached beyond a reasonable doubt, that Ever Fresh’s breach was deliberate and wilful. Therefore Ever Fresh and its principal Mr. Alyousef are found to be in contempt.
OCTOBER 5, 2012 ORDER, PARAGRAPHS 1 AND 2 – NO NON PERISHABLES
[62] On October 8, 2012, representatives of Ever Fresh entered the premises. This entry was within the time permitted by the Order. These persons proceeded to remove non-perishable items from the premises. This action is in violation of the Order. The DVD, filed as exhibit 2A to the affidavit of Mr. Alwi, dated November 16, 2012, shows the removal of crates marked “Far Eastern Handicraft”. Mr. Alwi observed the removal of hookah/sheesha (smoking pipes) paraphernalia from the café area in Unit B. When questioned about the contents of the crates, Mr. Bashir responded “shut up”.
[63] Mr. Alyousef testified that the crates were removed by the third party Meghani Pacific and he had no idea if this third party had removed non-perishable items. Mr. Alyousef’s testimony is contradicted by what is depicted on the video and I reject it. Ever Fresh’s agent, Mr. Bashir, ignored efforts by Mr. Alwi, of Jamia Islamia, to determine the nature of the items being removed. Ever Fresh was clearly alerted to concerns that the contents contained non-perishables but choose to ignore those concerns. For all these reasons, I am satisfied, beyond a reasonable doubt, that the actions of Ever Fresh and its principal Mr. Alyousef constitute a deliberate and wilful violation of the Order. This constitutes contempt.
ORDER OF NOVEMBER 2, 2012 – SHALL NOT BE ON PREMISES
[64] The parties agreed that third party Meghna Pacific could enter the premises for two days and four five hours each day to remove perishable items. Justice Price issued an order on consent to that effect. Paragraph 3 of Justice Prices’ Order prohibited Mr. Alyouseff from being on the premises during the removal process.
[65] On November 7, 2012, Mr. Alwi went to the premises and opened the door for the representatives of Meghna Pacific to carry out the Order. Mr. Alyousef arrived in the driveway adjacent to the premises. The DVD filed, as exhibit 2A of Mr. Alwi, shows Mr. Alyousef in his vehicle in the driveway adjacent to the premises. Mr. Alyousef seemed to be in what appeared to be a heated conversation with an unknown person. This person was not visible on the DVD. Mr. Alyousef did not get out of his vehicle.
[66] Mr. Alyouseff explained that he maintains a warehouse at an adjacent building and he was simply driving his vehicle along the common driveway. He further explained that all he did was provide the principal of Meghna Pacific with a key in order to operate the forklift to remove Meghna Pacific’s goods. Mr. Alyousef explained that he was only in the roadway for 20 minutes.
[67] Mr. Alyouseff did not enter the premises, he provided a plausible explanation for why he was in the driveway at the time of the removal of the items by Meghna Pacific. I conclude that because of the foregoing, even if this amounted to a technical breach, I am not satisfied beyond a reasonable doubt that his actions were intended to be a deliberate and wilful breach of the Order and therefore there is no contempt.
ORDER OF FEBRUARY 8, 2013, PARAGRAPH 2 AND 3 – INSPECTION OF DAMAGE; FREEZER SHUTOFF AND REMOVAL OF PERISHABLE ITEMS
[68] On January 25, 2013, Jamia Islamia observed some flooding at the premises. The parties obtained a consent order dated, February 8, 2013. Paragraph 2 of that Order permitted the principal of Ever Fresh, Mr. Alyousef to attend at the premises for the purposes of inspecting the possible damage caused by the flooding and also to charge the forklift in order to expedite the removal of the perishable goods.
[69] Mr. Alyousef went to the premises on February 18, 2013, to conduct this inspection. Mr. Islam Jawed from Jamia Islamia was in attendance. Mr. Alwi asserts that Mr. Alyousef breached the consent order by turning off two of three coolers, on that occasion, instead of simply inspecting and charging his forklift as per paragraph 2 of the Order.
[70] Mr. Alyousef’s position is that the perishable items had gone rotten because Jamia Islamia had left the door of one of the freezers open. The words coolers and freezers were used interchangeably. The issue of who turned off the coolers/freezers is a live issue between the parties. It cannot be resolved only on the basis of the affidavit evidence and the limited cross examination of Mr. Alyousef conducted on the contempt motion. Therefore on the evidence, I am not satisfied that Mr. Alyousef breached paragraph 2 of the Order.
[71] Paragraph 3 of the same Order instructs that the freezers in the premises were to be shut off and all the perishable items within the freezers were to be removed. Ever Fresh and it principal were to attend on a single occasion to complete this task. The time set to complete this task was eight hours.
[72] Mr. Alyousef did not remove any perishable items on the February 18, 2013, visit to the premises. It is clear that the parties contemplated a second visit for removal of the perishables. A date of February 20, 2013, was set for Mr. Alyousef to remove the perishable items. Mr. Alwi indicates that representatives of Jamia Islamia were present and ready to assist but Mr. Alyouseff did not attend. Mr. Alyousef asserts that when he went to the premises but there was no one present to provide him access and he waited for several hours with negative results.
[73] According to Mr. Alwi, arrangements were made for Mr. Alyousef to enter the premises on March 2, 2013, for the purposes of removing the perishable items. Mr. Islam Jawed was in attendance and he reports that Mr. Alyousef did not remove any perishables on that occasion.
[74] Mr Alyousef went to the premises as ordered. The parties agreed that March 2, 2013, was to be the day he removed the perishable items. Instead, as reported by Mr. Alwi, Mr. Alyousef inspected the damage but removed no perishable items. The order was clear and unequivocal Ever Fresh and its principal were to remove the perishables on that one occasion and this task was to be completed in eight hours. I am satisfied, beyond a reasonable doubt, that by this action Ever Fresh and its principal breached paragraph 3 of the Order.
[75] Mr. Alyousef testified that it was impossible for Ever Fresh to remove all perishable items within the allotted time of eight hours. It is significant to note that the time period, of a single attendance and eight hours to complete the task, was agreed to by both parties. The February 8, 2013, order gave effect to matters both parties had consented to. In addition, no effort was made by Ever Fresh and its principal to remove as many of the perishable items, as they could, within the allotted time. The cumulative effect of all of the above is that, I am satisfied beyond a reasonable doubt, that Ever Fresh and it principal’s actions were deliberate and wilful. I find these parties to be in contempt.
FEBRUARY 8, 2013 ORDER, PARAGRAPH 8 – PAYMENT OF HEATING BILLS
[76] On February 8, 2013, the parties agreed that Mr. Alyousef shall pay all future heating costs. Justice Grey gave effect to this at paragraph 8 of the February 8, 2013, Order. Mr. Alyousef failed to pay those heating costs and therefore is in breach of the Order.
[77] It is clear from Mr. Alyousef’s testimony that he makes a distinction between heating and hydro. He described heating as generated by gas. He explained that since 2007, he heated the premises with compressors. He further explained that he did not need heat since he used cold storage. Mr. Alyousef described electric heat as hydro. He conceded that he had not paid an electric bill since November 2012, when he was ordered to vacate the premises. According to Mr. Alyousef he had not paid the electrical bills because no one had provided him with any bills.
[78] Although Mr. Alyousef made the distinction between electricity and heating bills, it is clear that he understood the heating bills in the Order to include electrical expenses. In addition, the February 8, 2013, order was one done on consent. Ever Fresh and its principal were aware of the obligation to pay the heating bills for the premises. This court is satisfied beyond a reasonable doubt that they deliberately and wilfully failed to make inquiries about the bills and to pay them even though they were under an obligation to do so. In the result, I find that Ever Fresh and its principal are in contempt.
PENALTY
[79] This Court has found the Ever Fresh and its principal, Mr. Alyousef in contempt of Court. Jamia Islamia submits that Ever Fresh’s statement of claim should be struck as a consequence of a finding of contempt. Ever Fresh was silent on the possible consequences on a finding of a contempt.
[80] The determination of sentence and costs is adjourned to a date, before this Court, to be set within 15 days of this Order unless the parties agree on another date in excess of the 15 days. The next date shall be set in consultation with the trial coordinator.
___________________________
Barnes, J
DATE: November 4, 2013
Para 6, the word “the” before Ever Fresh was deleted in the second last line;
Para 7, the word “the” before Jamia Islamia and Ever Fresh was deleted in the third last line;
Para 8, the word “the” before Ever Fresh was deleted in the second and third last line;
Para 11, the word “the” was added before Municipality;
Para 22, the word “if” was added before the word “the clarity” in the third line;
Para 25, the word “it” was changed to “it’s” in the last line;
Para 26, the word “the” was added before portion in the second line, and “in the” was deleted in the last line;
Para 27, the word “persons” was deleted in the last line;
Para 28, the word “the” before Jamia Islamia was deleted in the second last line; the word “entry” added before as in the last line;
Para 39, the word “proving” was changed to “providing” in the second last line’
Para 40, the word “is” before found was changed to “are”;
Para 47, the word “the” before Ever Fresh was deleted in the second line;
Para 48, the word “the” before Ever Fresh was deleted in the first line;
Para 49, the word “the” before Ever Fresh was deleted in the first line;
Para 53, (c) the word “the” before Ever Fresh was deleted in the first line;
Para 55, (a) the word “lacked” was changed to “locked” in the second last line; and
Para 62, the word “creates” was changed to “crates”.
CITATION: Ever Fresh v. Islamia, 2013 ONSC 6799
COURT FILE NO.: CV-12-4195-00
DATE: 2013-11-04
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ever Fresh Direct Food Inc. v. Jamia Islamia Canada Ltd.
BEFORE: Barnes, J.
COUNSEL: Ronald Birken, for the Applicant
Anser Farooq, for the Respondent
AMENDED ENDORSEMENT
Barnes, J