Date: 20040203
Docket: A-200-03
Citation: 2004 FCA 53
CORAM: ROTHSTEIN J.A.
BETWEEN:
UNIVERSAL FOODS INC.
Appellant (Plaintiff)
and
HERMES FOOD IMPORTERS LTD., MASOUD MOTAMEDI,
TOUS ENTERPRISES LTD., H & R IMPORT-EXPORT INC.,
HAMIDEH RAFATI, FEREYDON EBADIAN, SUPER ARZON INC.,
SUPER ARZON LTD., SUPER KHORAK INC. o/a THE MARKET
SUPER KHORAK, ASY'S MARKET INC., JOHN DOE AND JANE DOE
Respondents (Defendants)
Heard at Vancouver, British Columbia, January 27, 2004.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: SHARLOW J.A.
MALONE J.A.
Date: 20040203
Docket: A-200-03
Citation: 2004 FCA 53
CORAM: ROTHSTEIN J.A.
BETWEEN:
UNIVERSAL FOODS INC.
Appellant (Plaintiff)
and
HERMES FOOD IMPORTERS LTD., MASOUD MOTAMEDI,
TOUS ENTERPRISES LTD., H & R IMPORT-EXPORT INC.,
HAMIDEH RAFATI, FEREYDON EBADIAN, SUPER ARZON INC.,
SUPER ARZON LTD., SUPER KHORAK INC. o/a THE MARKET
SUPER KHORAK, ASY'S MARKET INC., JOHN DOE AND JANE DOE
Respondents (Defendants)
REASONS FOR JUDGMENT
[1] This is an appeal of an Order of Lemieux J. of April 17, 2003, finding the appellant Universal Foods Inc. guilty of contempt of an Order of Pinard J. of December 10, 2002. After Universal consented to the discontinuance of an Anton Piller order issued by Campbell J. on October 21, 2002, Pinard J. ordered Universal to "forthwith return to the Defendants Tous Enterprises Ltd. [and other Defendants] all goods and documents seized from such Defendants in the course of the execution of the Anton Piller Order ...." Lemieux J. held that the goods were not returned to Tous Enterprises until one month and ten days after Universal became aware of Pinard J.'s Order. He therefore found that Universal had failed to return the goods forthwith and was in contempt of Pinard J.'s Order.
[2] There is only one issue that requires attention in this appeal. An Order issued by Rouleau J. on January 13, 2003, which was the precursor of the contempt proceedings before Lemieux J., required Universal to show cause why it should not be found in contempt for "knowingly and intentionally [failing] ... to deliver to the defendant Tous Enterprises Ltd. forthwith after December 10, 2002, the goods seized from the defendant Tous Enterprises Ltd. in the course of the execution of the Anton Piller Order ...."
[3] Universal submits that rule 467(1)(b) requires the alleged contempt to "be described in the order with sufficient particularity to enable the person to know the nature of the case against the person." As Rouleau J.'s order stated that Universal "knowingly and intentionally" failed to return the goods, Universal submits that its intent to disobey Pinard J.'s order had to be proved.
[4] In dealing with the appropriate fine for contempt, Lemieux J. observed that:
... the evidence before me does not establish [sic] Universal or Mr. Katebian deliberately flaunted Justice Pinard's order. Rather, I think the evidence establishes Universal and Mr. Katebian did not place sufficient importance in achieving compliance with Justice Pinard's order; certainly before and during Mr. Katebian's vacation, they were nonchalant about compliance;
Universal says that, by finding that it did not deliberately flaunt Pinard J.'s Order, Lemieux J. impliedly found that Universal did not intentionally fail to deliver forthwith to Tous the specified goods and therefore could not be found in contempt of Pinard J.'s Order.
[5] I am unable to accept Universal's submission. There is no requirement to prove an intention to disobey a court order in order to make out a case of civil contempt. In Merck & Company v. Apotex Inc., 25 C.P.R. (4th) 289, 2003 FCA 234, leave to appeal to S.C.C. requested, Sexton J.A. deals extensively with the requirements for intent in civil contempt proceedings. At paragraph 60, he summarized those requirements as follows:
Therefore, the jurisprudence establishes that it is not necessary to show that the alleged contemner intended, by doing the action, to interfere with the orderly administration of justice or to impair the authority or dignity of the Court. This is too high a level of intent to require in civil contempt cases. Rather, it is sufficient to find that the Court's intention was clear and that the alleged contemner knowingly committed the prohibited act.
[6] Here, there was no question that Pinard J.'s intent was clear in his Order of December 10, 2002. Nor is there any question that Universal and its principal knew of Pinard J.'s Order virtually immediately. The reference to "knowingly and intentionally" failing to return the goods in Rouleau J.'s order merely meant that Universal's failure to return the goods could not be accidental or involuntary. There was no requirement that the failure to return the goods be motivated by an intention to disobey Pinard J.'s Order.
[7] Lemieux J.'s finding that Universal did not deliberately flaunt Pinard J.'s Order and was simply nonchalant about compliance, went to the assessment of the appropriate fine. It did not change the fact that Universal knew of its obligation under Pinard J.'s Order and when it failed to carry out that obligation, was properly found in contempt of Pinard J.'s Order.
[8] For this reason, I would dismiss the appeal with costs in favour of Tous Enterprises Ltd.
[9] Within 7 days of the date of these reasons, Tous shall serve and file a submission not exceeding 2 pages double-spaced, addressing the question of a lump sum of costs inclusive of fees, disbursements and GST. Within 14 days of the date of these reasons, Universal shall serve and file a responding submission not exceeding 2 pages double-spaced. A judgment shall issue upon determination of the matter of costs.
"Marshall Rothstein"
J.A.
"I agree
K. Sharlow J.A."
"I agree
B. Malone J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-200-03
Appeal from the Order of The Honourable Mr. Justice Lemieux dated April 17, 2003 finding the Plaintiff in contempt of the Order of Mr. Justice Pinard dated December 10, 2002 and fining the Plaintiff $4,000.00 plus ordering $3,200 in costs.
STYLE OF CAUSE: Universal Foods Inc. v.
Hermes Foods Importers Ltd. et al.
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: January 27, 2004
REASONS FOR JUDGMENT: ROTHSTEIN J.A.
CONCURRED IN BY: SHARLOW J.A.
MALONE J.A.
DATED: February 3, 2004
APPEARANCES:
|
Colin Brown Thomas McPherson & Associates |
FOR THE APPELLANT |
|
Paul Smith Paul Smith Intellectual Property Law |
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
|
Thomas McPherson & Associates Aurora, Ontario |
FOR THE APPELLANT |
|
Paul Smith Intellectual Property Law Vancouver, British Columbia |
FOR THE RESPONDENTS |