Date: 19990112
Docket: T-2685-95
BETWEEN:
COCA-COLA LTD. and COCA-COLA BOTTLING LTD.
Plaintiffs
- and -
MUSADIQ PARDHAN c.o.b. as UNIVERSAL EXPORTERS,
1106972 ONTARIO LIMITED c.o.b. as UNIVERSAL EXPORTERS
and MUSTAFA PARDHAN, and
JOHN DOE and JANE DOE and OTHER PERSONS UNKNOWN TO THE
PLAINTIFFS WHO OFFER FOR SALE, SELL, EXPORT,
OR DEAL IN TRANSSHIPPED COCA-COLA PRODUCTS
Defendants
REASONS FOR ORDER AND ORDER
LUTFY J.:
[1] The defendants Musadiq Pardhan and Mustafa Pardhan seek the recission of two orders issued against them ex parte by Jerome A.C.J. on July 29, 1997. The first was an Anton Piller order to preserve certain documents in support of the second, a contempt of court show cause order.
[2] The plaintiffs obtained these two orders on the strength of the affidavits sworn on July 28, 1997 by a private investigator, Michael Cowan and a solicitor, Andrew M. Shaughnessy. Both affiants alleged that the defendants were in breach of the interlocutory injunction issued by MacKay J. on January 8, 1996, ordering the defendants from, among other things, exporting the plaintiffs" products to any third party outside Canada.
[3] Many of the documents obtained in the immediate execution of the Anton Pillar order were introduced as evidence in the contempt of court trial which began on April 28, 1998. The hearing extended over eight days in the last week of April, first week of June and on commission in Newark, New Jersey in August. Oral argument had been scheduled for December 15-18, 1998. The defendants" motion to set aside the Anton Pillar and show cause orders was made returnable December 15, 1998, and heard the following day. The parties did not question the appropriateness of the contempt of court trial judge being seized of this motion, particularly in view of the retirement from this Court in March 1998 of Associate Chief Justice Jerome and of the completion of the evidence in the contempt trial.1
[4] The grounds for the defendants" motion include:
| 1. The Plaintiffs placed misleading affidavit material before the court on the ex parte hearing for an Anton Pillar Order on July 29, 1997. Specifically, the solicitors for the Plaintiffs filed evidence on court in an ex parte hearing regarding surveillance of the defendants and activities thereby observed that was incomplete and false. |
| 2. The Plaintiffs have not provided full disclosure of all the salient issues on their ex parte motion of observations of the defendants proffered as evidence of contemptuous conduct and did not have a strong prima facie case against the defendants to grant the relief sought. |
The documentary evidence relied upon by the defendants is set out in their material:
| 1. The pleadings and proceedings herein including any affidavits previously filed; |
| 2. Affidavit of Michael Cowan; |
| 3. Transcript of examination of Michael Cowan; |
| 4. Transcript of Evidence at trial of Anthony Acchione; |
| 5. Transcript of Evidence at trial of Ed Reiken; |
| 6. Exhibits D 19, D 20, D 21, D 22 at the trial of the contempt application before Justice Lutfy. |
Item 2 refers to Mr. Cowan"s affidavit of July 28, 1997 and item 3 refers to the transcript of his cross-examination on October 14, 1997 in the context of review hearings concerning the Anton Pillar order. Exhibits D-19 through D-22 were introduced and reviewed during the examination of Messrs. Anthony Acchione and Ed Reiken, two private investigators who testified during the contempt of court trial.
[5] In their material, the plaintiffs have referred to a motion prepared by counsel for the defendants on or about August 17, 1997. In this motion, the defendants sought , among other relief, the "striking or rescinding" of the contempt of court show cause order of July 29, 1997, because the interlocutory injunction issued by MacKay J. on January 8, 1996, in its typewritten version, "does not actually "restrain" the defendants from doing anything". The motion was never filed. The defendants have not raised this issue in the current motion to rescind the ex parte orders.
[1] In substance, the defendants argue that three paragraphs, in particular, of Mr. Cowan"s affidavit of July 28, 1997 constitute less than full and frank disclosure to the Court. It is useful to reproduce the impugned paragraphs with the additional or correct information, placed in parenthesis and italicized, which the defendants state should have been disclosed to the Court:
| 26. The second example of transshipping activities occurred on May 30, 1997. On that day, Musadiq Pardhan was observed at the offices of 3-M together with Mustafa Pardhan. Also, on Friday, May 30, 1997, Musadiq Pardhan and Mustafa Pardhan attended at a Price Club location located at Warden and Ellesmere Roads in Scarborough, Ontario. At the time, the Price Club was maintaining approximately 56 skids of Coca-Cola products on the loading dock. |
| 27. Approximately 20 minutes later, Musadiq Pardhan and Mustafa Pardhan exited the Price Club and returned to the offices of 3-M. [Neither Pardhan was seen in the Club Price store.] |
| 28. The 56 skids of Coca-Cola products at the Price Club were maintained under surveillance, and [some] were observed being transported on Tuesday, June 3, 1997 from the Price Club location to a location known as Chevdi Freight located at 89 Thornmount Drive, Unit #5 in Scarborough. The trailer was observed backing up to a shipping door at that location and it was confirmed that Coca-Cola products were unloaded into the premises. Shortly thereafter these products were observed being loaded into two [one] 20 foot sea containers which were being hauled by a company known as Paul"s Transport. The container numbers bore the Trans-American Leasing numbers TRLU3255023 and CBHU0084404. Once the containers were loaded, they were followed to the Canadian Pacific Intermodal facility in Vaughan, Ontario located on Rutherford Road. |
[2] The principal thrust of the defendants" position is that, even if they were observed in their motor vehicle on the premises of the Price Club location, neither was seen within the store itself. Put differently, the fact that none of the investigators actually saw the defendants making a purchase of skids of Coca-Cola products at the Price Club location ought to have been disclosed to the Court.
| [3] The Cowan affidavit included other information: |
| 29. I am advised by Andrew M. Shaughnessy, and verily believe, that he contacted Canadian Pacific and was advised that the two containers noted were destined for Hong Kong via Vancouver. Attached hereto and marked as Exhibit "F" is a bundle of documents that Mr. Shaughnessy advises and I verily believe are documents which were faxed to him from Canadian Pacific indicating all of the shipping details with respect to these two containers. In particular, there are two invoices from Paul"s Transport indicating that the transport charges were to be invoiced to Chevdi Freight whose address is listed as 89 Thornmount, Scarborough, Ontario. The documents show that the shipper of the goods was 1184268 Ontario Limited (the numbered company for which "3-M International Freight Forwarders" is a business style). The goods which are described as "canned grocery items" are shown to be destined for Hong Kong on the EMPRESS HEAVEN. The other documents are the export declarations for the product which indicate that the ultimate purchaser is a company known as "Man Lee Hong" in Hong Kong. Man Lee Hong is a company with whom Universal Exporters, Musadiq Pardhan and Mustafa Pardhan dealt on a number of occasions in 1995. Evidence recovered on the original Anton Piller execution showed that 11 sea containers of COCA-COLA products were sold by the Defendants to Man Lee Hong at that time. In addition, the container numbers are clearly visible on the export declarations. Lastly, there is a reference to a New Jersey company bearing an address of 9 Grove Street, Suite #1, Kearny, NJ, 07032. A search of the Pardhans" garbage subsequently uncovered a document which refers to this same address (see Exhibit "S"). [Emphasis added.] |
According to the affidavit, the only officer or director of 1184268 Ontario Limited was a person with the same family name as Mustafa Pardhan"s wife. He also served as a guarantor of the mortgage on the residence registered in her name.
[4] The defendants have not established that the suggested misrepresentations were willful or deliberate. There is no evidence to suggest an intention to mislead the Court. I have reviewed both affidavits and the extensive documentary exhibits filed in support of the ex parte orders. The handwritten notes made by Mr. Acchione on the day of his investigation are consistent with the information disclosed by Mr. Cowan in paragraph 27 of his affidavit. However, one might infer from the paragraph that the defendants were actually seen within the store. The supplementary sentence suggested by the defendants could possibly have been added to ensure that such an inference was not made. The two changes suggested by the defendants in paragraph 28 reflect that the investigators may only have seen one sea container being loaded. In my view, the relevance of the discrepancies in these two paragraphs is questionable at best in the context of the totality of the evidence placed before Jerome A.C.J.2 I have no doubt that the ex parte orders should have issued even when the additions or corrections now suggested by the defendants are taken into consideration. In reaching this conclusion, I have relied solely on the information the Pardhans have brought forward on this motion, without regard to any other evidence adduced at trial.
[5] Accordingly, this motion is dismissed with costs to the plaintiffs in any event of the cause.
Judge
Ottawa, Ontario
January 12, 1999
__________________1 See Indian Manufacturing Ltd. v. Lo (1997), 75 C.P.R. (3d) 338 (F.C.A.) and Wilson v. The Queen, [1983] 2 S.C.R. 594 at 607-9.
2 See Cullom Machine Tool & Die, Inc. v. Bruce Tile Inc. (1990), 34 C.P.R. (3d) 296 at 304 where Reed J. concluded that a misrepresentation, which she characterized as deliberate, had some role on the issuance of the Anton Pillar order but not a sufficient one to warrant its recission. In addition, I attach no relevance whatever to the non-disclosure by the affiants that at least one of the Pardhans may have been allerted to the surveillance on July 25, 1997.