Date: 19991116
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
JOHN DOE and JANE DOE and OTHER PERSONS UNKNOWN TO THE
PLAINTIFFS WHO OFFER FOR SALE, SELL, EXPORT,
OR DEAL IN TRANSSHIPPING COCA-COLA PRODUCTS
Defendants
REASONS FOR ORDER
LUTFY J.:
INTRODUCTION
[1] The plaintiffs seek an order finding the defendants Musadiq Pardhan and Mustafa Pardhan in contempt of the injunction granted by MacKay J. on January 8, 1996. The purpose of the injunction was to restrain the two defendants and others from exporting Coca-Cola products from Canada.
[2] On December 19, 1995, the plaintiffs Coca-Cola Ltd. and Coca-Cola Bottling Ltd. filed a statement of claim naming as defendants Musadiq Pardhan, 1106729 Ontario Limited and other persons unknown to the plaintiffs "who offer for sale, sell, export, manufacture, advertise, or deal in transhipped Coca-Cola products." The plaintiffs alleged that the defendants infringed their registered COCA-COLA trade-marks, contrary to section 19 of the Trade-marks Act ,1 and seriously depreciated the value of the goodwill in these trade-marks by selling abroad Coca-Cola products, manufactured solely for sale and consumption in Canada.
[3] The defendant Mustafa Pardhan was added to the action by order of MacKay J. on January 8, 1996. Mustafa Pardhan is the father of Musadiq Pardhan.2
[4] In October 1997, the defendants sought to strike certain paragraphs of the statement of claim, pursuant to section 419 of the former Federal Court Rules.3 Justice Wetston, as he then was, found that export of trade-marked products by a secondary purchaser did not constitute "use" as defined in subsection 4(3) of the Trade-marks Act .4 He also ruled that the devaluation of the goodwill in the plaintiffs" trade-marks, if any, occurred outside of Canada and was not actionable in this Court. Wetston J. proceeded to grant the motion and struck the statement of claim in its entirety. He did not, however, dismiss the action or dissolve the interlocutory injunction issued on January 8, 1996. The action was dismissed and the order dissolved by MacKay J. on May 22, 1998.5
[5] The plaintiffs appealed the decision of Wetston J. to strike the statement of claim. Their appeal was dismissed.6 That same day, the Court of Appeal also confirmed the decision of MacKay J. dismissing the plaintiffs" action and dissolving the interlocutory order.7
[6] Both parties acknowledge that the dismissal of the action and the dissolution of the injunction do not affect this proceeding. Both recognize that the subsequent setting aside of an order does not provide a defence to a contempt citation.8
[7] On July 27, 1997, Jerome A.C.J. issued a show cause order concerning this contempt proceeding which read in part as follows:
| 2. AND THIS COURT ORDERS that the Defendants MUSADIQ PARDHAN and MUSTAFA PARDHAN shall appear before this Court ... to answer if they can, why they should not be held in contempt of court for: |
| (a) breaching the Interlocutory Injunction Order rendered January 8, 1996 by The Honourable Justice MacKay ("the Order"), in that, in direct and blatant contravention of the express terms of the Order, they have, directly or indirectly through 1184268 Ontario Limited: |
| i. direct, participated in and made unauthorized exports and transhipments of Canada COCA-COLA branded products; |
| ii. distributed, exported, sold or offered for sale the Plaintiffs" COCA-COLA branded products to third parties outside Canada, via export from Canada, or to a third party within Canada for export to a party outside Canada; |
| iii. transported, shipped, distributed, marketed, promoted or sold the Plaintiffs" COCA-COLA branded products in a territory in which the Defendants are not licensed to distribute market, promote or sell these products; and |
| iv. aided and abetted other parties in transhipping activities which contravene the terms of the Order; |
| ... |
| 4. AND THIS COURT ORDERS that the Defendants, Musadiq Pardhan, Mustafa Pardhan, and 1184268 Ontario Limited c.o.b. as 3-M International Freight Forwarders and Sid Enterprise, shall appear before the Federal Court of Canada ... to answer, if they can, why they should not be held in contempt for acting in such a way as to cause interference with the orderly administration of justice, or to impair the authority or dignity of the Court, by engaging in the conduct set out in a [sic] paragraphs 2 and 3, and by so doing in a covert and surreptitious manner. |
[8] The plaintiffs seek a finding of contempt against both named personal defendants, Musadiq Pardhan and Mustafa Pardhan. The parties agree that the standard of proof to establish contempt of court is beyond a reasonable doubt, as in criminal proceedings.
[9] The contempt of court hearing extended over eight days during the last week of April 1998, the first week of June 1998 and on commission in Newark, New Jersey in August 1998. Oral argument that had been scheduled for December 1998 was adjourned to late April 1999.
THE WORDING OF THE INTERLOCUTORY INJUNCTION
[10] On January 8, 1996, the plaintiffs presented their motion for an interlocutory injunction. In comments made in open court immediately following the submissions from counsel, MacKay J. found that the defendants" conduct was causing irreparable harm to the plaintiffs. He concluded as follows:
| Finally, I think the evidence is indicative of the defendants being aware of actions initiated against them, not simply in the United States, but in this country as well and not taking steps to be properly represented and I don"t question [their counsel"s] abilities or anything else by saying that, but simply leaving him without instructions in the nature of how he might best represent them in these proceedings this morning. |
| Having said all of that, of course, it is not beyond the realm of possibility that the defendants may move on their return and having examined the documents and the record and may move this Court to dismiss, or to withdraw an injunction that I am this morning prepared to grant. |
| So I grant the injunction...9 |
[11] A short discussion ensued concerning the preparation of a draft order. MacKay J. subsequently signed the order prepared by counsel. It is convenient to recite the relevant portions of the preamble and the order dated January 8, 1996:
| UPON MOTION made this day by counsel for the Plaintiff for an interim, and interlocutory injunction restraining the Defendants, Mustafa Pardhan, their shareholders, directors, officers, agents, servants, employees, and anyone acting under their instructions, and anyone aware of such Order as may be granted, and each of them from directly or indirectly: |
| (i) infringing the trade-marks of Coca-Cola Ltd., as enumerated in the Statement of Claim; |
| (ii) depreciating the goodwill in the Plaintiff Coca-Cola Ltd."s trade-marks; |
| (iii) distributing, exporting, promoting, selling, and offering for sale the Plaintiffs" products to any third party outside of Canada, via export from Canada, or to a third party within Canada for export to a party outside of Canada; |
| (iv) transporting, shipping, distributing, marketing, promoting or selling the Plaintiffs" beverage products for any purpose in any territory in the world in which the Defendants are not licensed to distributed, market, promote or sell these products; |
...
| 1. THIS COURT ORDERS that the Defendants, Mustafa Pardhan, their shareholders, directors, officers, agents, servants, employees, and anyone acting under their instructions, and anyone aware of such Order as may be granted, and each of them from directly or indirectly: |
| (i) infringing the trade-marks of Coca-Cola Ltd., as enumerated in the Statement of Claim, by the unauthorized export and transshipment of Canada COCA-COLA branded products; |
| (ii) distributing, exporting, promoting, selling, and offering for sale the Plaintiffs" products to any third party outside of Canada, via export from Canada, or to a third party within Canada for export to a party outside of Canada; and |
| (iii) transporting, shipping, distributing, marketing, promoting or selling the Plaintiffs" beverage products for any purpose in any territory in the world in which the Defendants are not licensed to distribute, market, promote or sell these products; |
| 6. AND THIS COURT ORDERS that the costs of this motion shall be reserved to be determined by further Order of this Court. |
[12] Certain typographical errors have put in issue whether an effective interlocutory injunction was issued on January 8, 1996. The most significant omission are the words "shall be restrained" immediately preceding "from directly or indirectly" in paragraph 1 of the order. The reference to paragraph "6" is in error.
[13] The impact of typographical errors on the validity of an injunction has been addressed in at least two cases that warrant consideration here.
[14] In Baxter Travenol Laboratories of Canada Ltd. v. Cutter (Canada), Ltd.,10 the Supreme Court of Canada concluded that a clerical mistake concerning the name of one of the parties, which could not have misled an enjoined party, did not affect the validity or operation of the injunction.
[15] In Apple Computer, Inc. v. Minitronics of Canada Ltd.,11 the text of the injunction, which restrained the defendants from infringing the plaintiff"s copyright in a computer program, referred to an unrelated copyright registration number. Justice Strayer, in considering whether the injunction was invalidated by the error, concluded that it was a technicality which did not mislead the defendants. There was, therefore, no excuse for the failure of the enjoined party to comply with the order.
[16] In Taylor,12 the Supreme Court of Canada affirmed the decision of the Court of Appeal and adopted the words of Mahoney J.A., who wrote for the unanimous panel in that case:
| The duty of a person bound by an order of a court is to obey that order while it remains in force regardless of how flawed he may consider it or how flawed it may, in fact, be. Public order demands that it be negated by due process of the law, not by disobedience.13 |
The law is clear: an enjoined party is not permitted to launch a collateral attack on an order, even where it is flawed, to defend against a contempt proceeding.
[17] In this case, an order containing minor typographical errors was issued. Counsel for both parties had knowledge of the issuance, and the terms, of the order. It was open at all times to the parties to seek clarification. Neither did.
[18] In my view, the interlocutory injunction of MacKay J. is coherent and can be read in a meaningful manner. The word "restraining" is found in the preamble immediately preceding the order. This is consistent with the relief sought under paragraph 26(b ) of the statement of claim for "an interlocutory injunction restraining the Defendants, their agents, servants and employees, from ... selling, storing, exporting, transshipping or shipping any products bearing the COCA-COLA Trade-marks until trial or other disposition of this action". The statement of claim, at paragraphs 17 and 18, set out the plaintiffs" allegations concerning transshipped products. The notice of motion for the injunction was substantially identical to the preamble to the order of MacKay J. and included the word "restraining". Finally, MacKay J. stated in open court in the presence of counsel that he was granting the injunction.
[19] The substantive and real meaning of the order of MacKay J., despite the typographical errors, is clear. In the words of Mahoney J.A. in Taylor,14 the defendants Musadiq Pardhan and Mustafa Pardhan "can have had no bona fide doubt that the subject matter enjoined ..." was the exportation from Canada of Coca-Cola products. I will now consider when the defendants acquired knowledge of the injunction.
THE DEFENDANTS' KNOWLEDGE OF THE INJUNCTION
[20] It is common ground that persons against whom contumacious acts are alleged must have been aware of the court order they are said to have breached. This knowledge may come from personal service of the order or service on the parties" counsel, or it may be inferred from the circumstances of a particular case.
[21] In Bhatnager v. Canada (Minister of Employment and Immigration),15 in the context of considering when knowledge of an injunction could be imputed to ministers of the Crown, Justice Sopinka stated:
| In my opinion, a finding of knowledge on the part of the client may in some circumstances be inferred from the fact that the solicitor was informed. Indeed, in the ordinary case in which a party is involved in isolated pieces of litigation, the inference may readily be drawn. ... Knowledge is in most cases (including criminal cases) proved circumstantially, and in contempt cases the inference of knowledge will always be available where facts capable of supporting the inference are proved ...". |
[22] In Apple Computer,16 Justice Strayer inferred from the conduct of the defendants and their counsel that the enjoined parties had knowledge of the injunction, even in the absence of personal service. In imputing the knowledge of the solicitor to the client, he noted:
| While it has been held that the mere knowledge by a lawyer of an order having been issued against his client is not necessarily sufficient to establish knowledge by the client for purposes of contempt, in the circumstances of this case it is inconceivable that counsel launched an appeal from one order and subsequently consented to another order without ever having any instructions from his clients. Obtaining of such instructions would clearly involve the clients being aware of the orders made or to be made against them. I am not prepared to believe that [counsel] would have acted without instructions from his clients in these matters. Certainly no evidence was presented of such an extraordinary situation.17 |
[23] On January 8, 1996, when the motion for an interlocutory injunction was heard, the defendants first named in the statement of claim were originally represented by a solicitor who had attended to certain corporate matters for the defendant carrying on business as Universal Exporters. He had received "a telephone call on January 2nd from Mr. Pardhan in Bombay, who advised me he had been served with some documentation...".18 I infer that the solicitor was referring to Musadiq Pardhan, the only family member that had been named as a defendant at that point. On January 3, 1996, the solicitor received fax instructions from Bombay to this effect: "Please take necessary steps to ensure that everything is taken care of." On the same day, the corporate solicitor wrote to the plaintiffs" counsel, with a copy to the Court registry, requesting an adjournment. In the absence of any other instructions on January 8, 1996, counsel unsuccessfully sought an adjournment until January 15, 1996, by which time Mr. Pardhan would have returned to Canada.19 This corporate solicitor was replaced by litigation counsel shortly thereafter.
[24] The injunction was pronounced in open court in the presence of counsel representing Musadiq Pardhan. As noted earlier, it was only on the day the injunction was issued that Mustafa Pardhan was added as a named defendant to the action. The signed order of MacKay J. of January 8, 1996 was forwarded by the registry to the defendants" solicitor of record by registered mail on January 9, 1996. Neither Pardhan was present when Justice MacKay pronounced his order in open court. I am not satisfied that the presence of counsel or his receipt of the order by mail constituted knowledge of the injunction by either Musadiq Pardhan or Mustafa Pardhan in the days immediately following January 8, 1996.
[25] The statement of defence, which was filed on March 14, 1996 by the defendants" new counsel, does not refer to the injunction.
[26] One of the plaintiffs" solicitors testified that Musadiq Pardhan advised him in March 1996 that he had received a copy of the order of MacKay J., had knowledge of the terms of the injunction and understood that he was restrained by the Court order from exporting Coca-Cola products.20
[27] In February 1997, counsel for the parties appeared before MacKay J. on an application by the plaintiffs for costs arising from the interlocutory injunction. In his reasons for order concerning the issue of costs, MacKay J. wrote:
| The second Order granted on January 8, 1996, was an interlocutory injunction pending trial, restraining the named defendants from activities infringing the trade-marks of the plaintiffs, including restraint against the defendants" shipping or distribution or related activities in regard to the plaintiffs" trade-marked beverage products to or in territories for which the defendants did not have licence to ship or to distribute these products. That Order was directed to be without prejudice to a future opportunity for the defendants to move to vary the Order.21 [Emphasis added.] |
Justice MacKay refused to award the plaintiffs costs payable forthwith at the interlocutory stage and ordered that costs be in the cause.
[28] On March 27, 1997, counsel for the defendants wrote to the Court requesting a special appointment for a motion to strike portions of the statement of claim. The draft notice of motion included a request for the following relief:
| 3. An Order to rescind, suspend, or amend the interlocutory injunction, granted against the defendants on January 8, 1997 [sic] by the Honourable Mr. Justice MacKay, as this honourable Court may see fit in view of its ruling from this application and the positions taken by counsel for the plaintiffs. |
There is no reference in the draft notice of motion to any typographical error in the text of the interlocutory injunction. On October 6, 1997, the formal notice of motion was filed in terms substantially identical to the draft of March 27, 1997. This was the motion heard by Wetston J., supra paragraph 4.
[29] I shall return to my findings with respect to the time Musadiq Pardhan and Mustafa Pardhan may have had knowledge of the injunction after reviewing the evidence concerning their alleged breach of the order.
THE ALLEGED BREACH OF THE INTERLOCUTORY ORDER
| (a) The Pardhans" business activities in 1995 |
[30] It is not seriously contested, if at all, that prior to the issuance of the interlocutory order of MacKay J. dated January 8, 1996, a business controlled by the defendants Musadiq Pardhan and Mustafa Pardhan purchased Coca-Cola canned products from third party retailers in Canada for exportation to markets in Asia.
[31] The issue in this contempt of court proceeding is whether Musadiq Pardhan and Mustafa Pardhan continued this activity subsequent to the issuance of the injunction and in breach of its terms.
[32] In 1995, Musadiq Pardhan and Mustafa Pardhan were the principals of Universal Exporters, a business whose activities included the transshipment of canned beverages, including Coca-Cola products, to Asia.22
[33] Universal Exporters operated its business from the Pardhan family"s residential premises which were then situated at 64 Central Park Drive in Markham, Ontario.23
[34] A letter over the name of Mustafa Pardhan to a client of Universal Exporters in Japan discloses how Coca-Cola products were sold and shipped to Asian markets:
| One of the products that we are pleased to offer you is Canadian origin Coca Cola Classic 24/355ML. at USD $6.10 C & F Japan base port. Inside the container we also stuff foam padding for protection of the product, and we also put plywood, and beams to support the back of the container. The above price is based on 20' container.24 |
[35] Aqua/Terra Warehousing Inc., a company partially owned by Oscar Cheddi, received and loaded canned beverages onto sea containers for Universal Exporters for transshipment to Asia. Mr. Cheddi was in charge of the warehousing and shipping operations of Aqua/Terra Warehousing Inc. The company leased office and warehouse space and a forklift truck for its operations.25
[36] Lansing Buildall supplied the packing materials used by Mr. Cheddi in loading the Coca-Cola products onto sea containers for Universal Exporters. He did not order nor pay for the packing materials and testified that he did not know who did.26 I accept the testimony of the Lansing Buildall representative that he was selling packing materials to Universal Exporters and dealing with Musadiq Pardhan as early as 1994 and 1995.27
[37] Mr. Cheddi did this work on the instructions of Musadiq Pardhan and "sometimes Mustafa" Pardhan and was paid by Universal Exporters.28
[38] In 1995, Universal Exporters also exported Coca-Cola products and other canned beverages through Agritech Products International Inc., a company owned and operated by Mr. Henry Abramowitz in Jersey City, New Jersey.29
[39] Universal Exporters ceased operating in late 1995.30 Aqua/Terra Warehousing Inc. also ceased its operations towards the end of 1995.31
| (b) The creation of Sid Enterprise in 1996 |
[40] On June 10, 1996, 1184268 Ontario Limited was incorporated. The business names under which 1184268 Ontario Limited operated were 3-M International Freight Forwarders and Sid Enterprise.32
[41] The business premises of 1184268 Ontario Limited were situated in suite 201 at 180 Steeles Avenue West, Thornhill, Ontario ("the Steeles Avenue premises").33 Its registered office address was: 4261-A14 Highway #7 East, Suite 400, Unionville, Ontario, L3R 9W6. This address was the location of a Mail Boxes Etc. franchise outlet.34
[42] The administrator, first director and signing officer of 1184268 Ontario Limited was listed as Akberali Fazal Kermali.35 He is the father of Fatima Fazal Kermali Pardhan,36 who is the wife of Mustafa Pardhan and the mother of Musadiq Pardhan.37
[43] In July 1996, the Pardhan family residence at 64 Central Park Drive in Markham, Ontario was sold to unrelated persons.38 At approximately the same time, Fatima Fazal acquired residential premises situated at 111 Knightswood Avenue in Maple, Ontario.39 Mustafa Pardhan authorized his spouse"s mortgage of their new residential property and Akberali Fazal Kermali apparently signed as a guarantor.40
| (c) Sid Enterprise and Oscar Cheddi"s business premises |
[44] In March 1996, Oscar Cheddi reactivated Cheddi"s Freight Consulting, a small unincorporated business that provided warehousing and transportation services. Mr. Cheddi set up warehousing premises at 89 Thornmount Drive in Scarborough, Ontario. He used his residential address for invoicing purposes.
[45] After some reluctance, Mr. Cheddi acknowledged that Sid Enterprise paid the rent at his Thornmount warehousing facility, an arrangement that only ended "in June or July" of 1997.41
[46] Between April and June 1996, Sid Enterprise made certain rental payments for Mr. Cheddi"s warehouse premises with cheques drawn from its account at the Canadian Imperial Bank of Commerce in Markham, Ontario under account no. 8111618.42 One of these cheques bears the signature of S.H. Khoja, the wife of Musadiq Pardhan.43 The cheque and cheque stubs were seized from the Steeles Avenue premises of Sid Enterprise. According to Oscar Cheddi"s testimony, he was barely familiar with Shahina Khoja and took no instructions from her.44 Despite Mr. Cheddi"s hedging and sometimes evasive answers, I find that Sid Enterprise regularly, if not always, paid the rent for his warehouse premises between April 1996 and July 1997.
| (d) Sid Enterprise and Mr. Cheddi"s rented forklift |
[47] Oscar Cheddi also rented a forklift for packing canned beverages onto sea containers at his warehouse on Thornmount Drive in Scarborough. He rented this equipment from Mighty Lift Equipment Limited.45 The monthly rental charge was $500, plus applicable taxes. Mighty Lift Equipment Limited was advised to forward its invoices to the Sid Enterprise mailing address at Mail Boxes Etc. in Unionville, Ontario.
[48] In his handwritten notes on an invoice issued by Mighty Lift Equipment on March 8, 1996, Mr. Cheddi indicated that six cheques were provided as rental payments for the forklift. One of these cheques, dated July 8, 1996, is drawn on the account of Universal Exporters and signed by M. Pardhan. I find that this cheque was signed by Musadiq Pardhan.46
[49] The last rental payment for the forklift was received on July 11, 1997.47 The payment was made by a cheque on the account of "1184268 Ontario Limited, o/s Sid Enterprises" dated July 8, 1997 and signed by F. Fazal.48
[50] The president of Mighty Lift Equipment Limited deposed as follows:49
| The name of the business to whom we were renting the forklift changed from time to time. It was difficult for us, in fact, to determine exactly the name of the renting party. It is for this reason that we kept all these invoices. Below are [sic] a list of the various names that our billing invoices were sent to: |
A/Z ENTERPRISE (S)
A/Z ENTERPRISES (Universal Exporters) Div. of 1106972 Ontario Ltd.
A/Z ENTERPRISES - 1184268 Ontario Ltd. - O/A Sid Enterprises
1184268 Ontario Ltd. - O/A Sid Enterprises
SID ENTERPRISES (1184268 Ontario Ltd.)
[51] I find that the rental payments for the forklift rented from Mighty Lift Equipment Limited and used by Mr. Cheddi were made by Universal Exporters and Sid Enterprise, with the knowledge and involvement of Musadiq Pardhan who signed at least one rental payment cheque when the injunction was in force.
| (e) Sid Enterprise and Mr. Cheddi"s acquisition of materials from Lansing Buildall |
[52] Oscar Cheddi continued to use packing materials obtained from Lansing Buildall in preparing the canned beverages for container transshipment on behalf of Sid Enterprise. Mr. Cheddi testified that in 1995 the materials were received from Lansing Buildall but he had no involvement in placing the orders. During 1996 and 1997, Mr. Cheddi himself would order the materials by telephone.
[53] Mr. Charlie Latino was the Lansing Buildall representative who dealt with Musadiq Pardhan and Oscar Cheddi. He first dealt with Musadiq Pardhan, whom he knew as "Mushi", as early as 1994.50 He testified that shortly after his business relationship with Musadiq Pardhan began, he would receive purchase orders from Mr. Pardhan by telephone. At some point in mid-1996, according to Mr. Latino, he was introduced to someone named "Oscar" by Musadiq Pardhan. Thereafter, the packing materials were ordered by Oscar.51
[54] Mr. Cheddi acknowledges his involvement in ordering supplies, generally by telephone, from Lansing Buildall on behalf of Sid Enterprise in 1996-97. He remembers having visited a Lansing Buildall outlet with Musadiq Pardhan. He also remembers having met Mr. Latino. However, he does not remember having been introduced to Mr. Latino by Mr. Pardhan.52
[55] I accept the evidence of Mr. Latino that he was introduced to Oscar Cheddi by Musadiq Pardhan in 1996.
[56] In November 1996, the customer name on the Lansing Buildall trade price card was changed from Universal Exporters to "Sid Enterprises - Mushi and Mustafa Pardhan". The Lansing Buildall customer number was the same for both Universal Exporters and Sid Enterprise. From November 1996, the Lansing Buildall invoices were addressed to Sid Enterprise at its Mail Boxes Etc. location in Unionville.
[57] At all times, the packing materials purchased by either Universal Exporters or Sid Enterprise were of the same kind.
[58] At all times, both in his dealings with Universal Exporters and later with Sid Enterprise, Mr. Latino was authorized to charge the telephone purchases to Musadiq Pardhan"s Visa account, regardless of whether the orders were placed by Musadiq Pardhan or Oscar Cheddi.53
[59] In particular, in the period between November 1996 and July 1997, when many of the orders were placed by Oscar Cheddi, payments to Lansing Buildall were made through Mr. Pardhan"s Visa account. For example, two purchases made on March 25, 1997 in the amounts of $409.85 and $167.03 and another purchase made on April 2, 1997 for $433.11 appear on Musadiq Pardhan"s Visa account for the statement date of April 7, 1997.54 The Visa account number corresponds to the one given to Mr. Latino by Musadiq Pardhan and used by Lansing Buildall in processing the orders received from Universal Exporters and Sid Enterprise.55 Similarly, a purchase made on March 8, 1997 for $772.33 was included in Mr. Pardhan"s Visa bill of $1,852.65 for the statement date of April 8, 1996, which was paid by Sid Enterprise.56 This is further evidence of Musadiq Pardhan"s active involvement in Sid Enterprise.
| (f) The exportation of Coca-Cola products by Sid Enterprise in 1996-97 |
[60] The plaintiffs" evidence concerning the transshipment of Coca-Cola products, in breach of the injunction issued by MacKay J. on January 8, 1996, is principally documentary57 and is also based on a stipulation made during the testimony of Oscar Cheddi.58 The documentary evidence was twofold.
[61] The bulk of the material was obtained from Mr. Cheddi as the result of a court order ("the Cheddi documents").59 These documents identify some 132 export shipments concerning which Mr. Cheddi provided his warehousing and packing services to 1184268 Ontario Limited (Sid Enterprise). For each shipment, the Cheddi documents included Mr. Cheddi"s invoice to Sid Enterprise for warehousing and loading the Coca-Cola products onto sea containers. Each invoice included reference to the sea container number and the point of destination, which was usually in Asia. In some circumstances, these shipping details were confirmed in documents attached to the invoice. Some bills of lading identified the merchandise being transported, from its place of purchase to Mr. Cheddi"s warehouse, as Coca-Cola products.
[62] Price Club records were the plaintiffs" second principal source of documentary evidence to establish which of the export shipments included Coca-Cola products.60 A representative of Price Club searched its computerized records and was able to correlate its sales of Coca-Cola products to twenty-one shipments which Mr. Cheddi billed to Sid Enterprise.61 The Price Club representative was further able to link its sales of Coca-Cola products to Visa account numbers in the name of Shahina Khoja, the spouse of the defendant Musadiq Pardhan.
[63] The Price Club sales of Coca-Cola products, paid for with the Visa card under the name of Shahina Khoja, are linked to twenty-one of the Cheddi invoices to Sid Enterprise. These twenty-one invoices are for work done by Mr. Cheddi for 1184268 Ontario Limited, or Sid Enterprise and relate to export shipments made between November 1996 and June 1997.
[64] In his oral submissions, counsel for the defendants acknowledged that the Coca-Cola products identified by the Price Club representative were exported from Canada by Sid Enterprise and, in the words of counsel, were the "product enjoined by this injunction".62
[65] On the basis of this documentary evidence, I find that at least twenty-one shipments of Coca-Cola products were exported from Canada by 1184268 Ontario Limited, carrying on business under the style of Sid Enterprise.63
[66] I also find that three other shipments, described in the Cheddi documents,64 included Coca-Cola products. This finding is made on the basis of the information in the letter of May 12, 1997 from Sid Enterprise (division of 1184268 Ontario Limited) to its client, Mr. John Chen of Bay Harbour Trading Corp.65 Mr. Cheddi"s invoices for these three shipments were issued in April 1997.
[67] In this letter, Mr. Chen is advised that three sea containers, referred to specifically by number, will contain canned beverages, including Coca-Cola products.
[68] There are other shipments in the Cheddi documents where the bills of lading include references to Coca-Cola products. Some bills of lading clearly show that the products did not originate from Price Club. In these cases, there is no evidence, other than the testimony of Mr. Cheddi referred to in the next paragraph, to corroborate that the merchandise being shipped is Coca-Cola product. In other instances, where the shipper was designated as Price Club, its representative was not able to confirm through other documents that the merchandise was sold by Price Club to Sid Enterprise and was Coca-Cola product.
[69] However, Mr. Cheddi testified that where the bills of lading stated that the product was Coca-Cola, in his view that information was correct.66 In cross-examination, Mr. Cheddi qualified his response somewhat by stating that the bills of lading were correct "99 percent of [the] time".67 In re-examination, Mr. Cheddi added that where the bills of lading referred to both "mixed loads" and "Coke", he understood that at least part of the shipment included some Coca-Cola product.
[70] At the outset of this trial, the Court understood that the plaintiffs would attempt to establish that in excess of 130 shipments of Coca-Cola products were exported contrary to the terms of the injunction. The plaintiffs" position was based on information provided by Mr. Cheddi that the documents he provided "relate to the shipments for export of Coca-Cola products, made by 1184268 Ontario Ltd. ..., in which I have been involved."68
[71] At trial, Mr. Cheddi testified that not all the shipments referred to in his documents related to Coca-Cola products. In his view, of the approximately 130 invoices he issued to Sid Enterprise, twenty-five to thirty-five related to Coca-Cola products and the others to a variety of canned beverages.69 In particular, Mr. Cheddi identified twenty-five specific shipments that included Coca-Cola products, from among the transactions referred to in the Cheddi documents.70
[72] If reliance were placed on Mr. Cheddi"s evidence in this regard, there would be an additional fifteen shipments of Coca-Cola products exported contrary to the terms of the injunction, over and above the twenty-four shipments referred to earlier, supra paragraphs 65 and 66.71 These fifteen shipments also left Toronto for the Asian destinations between November 1996 and June or very early July 1997.
[73] In summary, in accepting Mr. Cheddi"s assessment of his own documents on this issue, I find beyond a reasonable doubt that thirty-nine shipments, which included Coca-Cola products, were exported from Canada by 1184268 Ontario Limited, carrying on business under the style of Sid Enterprise, contrary to the terms of the injunction.
| (g) The involvement of Musadiq Pardhan in Sid Enterprise |
[1] On the basis of the similarities between the operations of Universal Exporters and Sid Enterprise, the plaintiffs argue forcefully that substantially the same business existed prior to and continued after the issuance of the injunction, under a different corporate entity and name, but still under the control of the defendants Pardhan.
[2] While the plaintiffs" observations are relevant, I have preferred to focus on the individual involvement of Musadiq Pardhan and Mustafa Pardhan in the operations of Sid Enterprise and, more particularly, in the exportation of Coca-Cola products. After reviewing the similarities between the operations of Universal Exporters and Sid Enterprise, I will first consider the evidence concerning Musadiq Pardhan.
| (i) The similarities in the two businesses |
[3] Musadiq Pardhan and Mustafa Pardhan were the principal operators of Universal Exporters. After Universal Exporters "folded" at "the end of '95", Mustafa Pardhan and Musadiq Pardhan "joined" Sid Enterprise,72 a business name that, according to the documentary evidence, was used as early as January 23, 1996 and in the first days of March 1996.73
[4] Oscar Cheddi was the person responsible for warehousing and packing the canned beverages for export, using substantially the same methods and materials under both operations. The packing materials were obtained from the same source, Lansing Buildall, whose customer number was the same for both Universal Exporters and Sid Enterprise. The customer name was simply changed from Universal Exporters to "Sid Enterprise - Mushi and Mustafa Pardhan". In 1996, Mr. Musadiq Pardhan introduced Mr. Cheddi to the same representative from Lansing Buildall who dealt with both Universal Exporters and Sid Enterprise.
[5] Universal Exporters and Sid Enterprise obtained their canned beverages from at least two common sources, Price Club and Knob Hill Farms.74
[6] The same office desk and roll-o-dex used by Universal Exporters at the then Pardhan residence were found at the Steeles Avenue premises of Sid Enterprise.75 Counsel for the plaintiffs also noted similarities in the stationery used by Universal Exporters and Sid Enterprise. I agree.76
| (ii) Musadiq Pardhan and the general operations of Sid Enterprise |
[7] There are other connections, in addition to these similarities, linking Musadiq Pardhan to the operations of Sid Enterprise.
[8] Mr. Cheddi"s lease agreement of March 1996 for his warehouse at 89 Thornmount Drive was found among the documents seized from the premises of Sid Enterprise at 180 Steeles Avenue.77 Rental payments for this location were made by Sid Enterprise on behalf of Mr. Cheddi. At least one of the rent cheques was signed by Shahina Khoja, the spouse of Musadiq Pardhan, supra paragraph 46.
[9] On January 23, 1996, Shahina H. Khoja signed a mailbox service agreement on behalf of Sid Enterprise with Mail Boxes Etc.78
[10] Three other events occurred in March 1996. First, on or about March 8, 1996, Shahina Khoja signed a business membership application form with Price Club under the business name of Sid Enterprise.79 During the same month, she also signed banking documents on behalf of Sid Enterprise with respect to its account at the Canadian Imperial Bank of Commerce.80 Finally, on or about March 8, 1996, Mr. Cheddi rented a forklift with cheques from Universal Exporters, including at least one signed by Musadiq Pardhan.81
[11] On April 16, 1996, the agreement of lease for the Steeles Avenue premises of Sid Enterprise was signed by Sajjad Fazal, the brother of Musadiq Pardhan"s mother or his uncle.82
[12] Between May and September 1996, Universal Exporters was billed by Mighty Lift Equipment Limited for the rental of the forklift used by Oscar Cheddi. Between October 1996 and June 1997, the monthly invoices for the same equipment rental were simply sent to Sid Enterprise for payment.83 I have also found that Musadiq Pardhan signed the July 8, 1996 cheque, one of a series of post-dated cheques, for the forklift rental payments, supra paragraphs 48 and 51.
[13] There is other equally persuasive evidence concerning the involvement of Musadiq Pardhan in the general operations of Sid Enterprise. He was seen by investigators, whose testimony I accept concerning their factual surveillance referred to in these reasons, at the Steeles Avenue premises of Sid Enterprise. A cheque drawn on the account of Sid Enterprise in the amount of $1,852.65 was used to pay Mr. Pardhan"s visa account for payment due April 25, 1996.84 There are letters on the letterhead of Sid Enterprise over the signature of "Mushi" or "Musadiq"85 and e-mail over the name of "Mushi", "Musadiq" or "MP".86 A Sid Enterprise business card bears the name of "M. Gulamhusein - Export Sales", a name used by Musadiq Pardhan.
[14] On July 31, 1997, a friend of the Pardhan family facilitated entry into the Sid Enterprise Steeles Avenue premises by using Musadiq Pardhan"s office keys.87
[15] Finally, a series of weekly cheques between April 18, 1997 and August 1, 1997, each in the amount of $350, was drawn to the order of "M. Pardhan" from the account of Sid Enterprise.88 Mustafa Pardhan was absent from Canada between June and August 1997.89 This suggests that these cheques were for Musadiq Pardhan but I need not make a specific finding in this regard.
[16] There is also evidence that links Musadiq Pardhan to Sid Enterprise"s exportation of Coca-Cola products when the injunction was in force. In the appreciation of this evidence, one must assess whether a person under the name Sid or Syd Kassim in fact existed.
| (iii) Sid Kassim: a fictitious name? |
[17] The name Sid or Syd Kassim is found in the documentary evidence. The name Sid Kassim is found on commercial invoices sent to the same Mail Boxes Etc. address used by Sid Enterprise.90 A shipping agency forwarded a facsimile message to Sid Kassim on May 14, 1997 and the document was found in Musadiq Pardhan"s brief case.91 Telephone invoices were forwarded to 1184268 Ontario Limited to the attention of Syd Kassim at the Mail Boxes Etc. address used by Musadiq Pardhan and Mustafa Pardhan.92 Similarly, electronic mail concerning sea containers to be forwarded to Mr. Cheddi"s warehouse was sent under the name of Sid Kassim.93
[18] Export declaration forms, which were on some occasions signed by Musadiq Pardhan prior to 1996,94 were purportedly signed by Sid Kassim on December 2, 199695 but the signature is substantially different from the one with the same name on shipping documents dated June 18, 1997.96
[19] The plaintiffs" investigators were unable to identify Sid or Syd Kassim in Department of Transportation, Personal Property Security Act , litigation, assessment role, title and Bell Canada searches.97
[20] Oscar Cheddi testified that he dealt with Sid Kassim. He stated that he received Universal Exporters" forklift rental payment cheques from Sid Kassim.98 This includes, of course, the cheque signed by Musadiq Pardhan.99
[21] He stated that his first contact with Sid Enterprise in March 1996 was with its sole representative, Sid Kassim. Mr. Kassim initiated the contact by telephone. Mr. Cheddi could not state how Mr. Kassim obtained his name. Their meetings included one at the Cheddi warehouse and two others at the same donut shop.100
[22] Mr. Cheddi"s authority, according to his version, to make the Lansing Buildall purchases came from Sid Kassim.101 When confronted with the Lansing Buildall invoices addressed to Mushi Pardhan and Mustafa Pardhan, Mr. Cheddi"s answers became more vague and uncertain. He insisted that he was paid for the services he carried out on behalf of Sid Enterprise by Sid Kassim. He could not testify as to the involvement of the Pardhans in Sid Enterprise.102 I do not believe Mr. Cheddi was candid in these responses. Mr. Cheddi dealt with both Pardhans when they operated under the name Universal Exporters and he was responsible for packing and shipping their merchandise. It is not credible that he would not have dealt with at least one of the Pardhans when he did the same functions for Sid Enterprise.
[23] Mr. Cheddi testified that he also met with Sid Kassim at the Steeles Avenue premises of Sid Enterprise. Sometimes Musadiq Pardhan and Mustafa Pardhan were also in attendance.103 His relationship with Sid Kassim terminated at the end of July 1997 and he was able to provide no information as to where Sid Kassim could be located thereafter.104
[24] A second witness purported to have had contact with Sid Kassim. Henry Abramowitz is the president and owner of Agritech Products International Inc. in New Jersey. He has known Mustafa Pardhan for over twenty years and began a business relationship with both Pardhans in 1995.105
[25] In the twelve-month period, beginning in August 1996, Mr. Abramowitz" company purchased over US$1.3M of grocery products from Sid Enterprise, some of which were transshipped to Asia.106 After some reluctance, Mr. Abramowitz acknowledged that Coca-Cola products were included in these transactions.107
[26] During this period, according to Mr. Abramowitz, he received one telephone communication from a person who represented himself as Sid Kassim. He first testified that he had no contact with either Musadiq Pardhan or Mustafa Pardhan after 1995 but subsequently acknowledged that he did.108 It is hardly plausible that Mr. Abramowitz would have transacted US$1.3M in business with Sid Enterprise over twelve months without any communication with either defendant Pardhan.
[27] In my view, Mr. Abramowitz is a second witness who did not want to involve either Musadiq Pardhan or Mustafa Pardhan in the affairs of Sid Enterprise, particularly not with respect to the transshipment of Coca-Cola products. I interpret his testimony as being further evidence that Sid Kassim is a fictitious person.
[28] Significantly, in response to a question from the Court during his oral submissions, counsel for the defendants acknowledged that Sid Kassim is a fictitious name used by another person.109 Counsel noted that the person with a name closest to Sid Kassim, according to the evidence, is Kassim Lakhani, who had possession of the keys for the Steeles Avenue premises.110 The evidence discloses no other involvement of Mr. Lakhani in the affairs of Sid Enterprise.
[29] In summary, I do not accept the testimony of either Mr. Cheddi or Mr. Abramowitz in which they suggest that a person existed whose real name was Sid or Syd Kassim. It may be that Mr. Cheddi innocently and wrongly assumed someone to be Sid Kassim. On the basis of his demeanour at trial, I have serious doubts that such is the case. His responses were too often hesitant and evasive, at least until he was confronted with documentary evidence. Mr. Abramowitz was careful to state that he received a call from someone who represented himself as Sid Kassim. In my assessment, on the issue of Sid Kassim and elsewhere in their testimony, both witnesses formulated their responses to protect Musadiq Pardhan and Mustafa Pardhan from any finding that they were significantly involved in the exportation of Coca-Cola products by Sid Enterprise.
[30] On the basis of the evidence before me, I find beyond a reasonable doubt that no person, whose real or legal name was Sid Kassim, was involved with Sid Enterprise. The name Sid or Syd Kassim was used by one, and perhaps more than one, person engaged in the activities of Sid Enterprise.
| (iv) Musadiq Pardhan, his use of the name Sid Kassim and the exportation of Coca-Cola products |
[31] There is more specific evidence linking Musadiq Pardhan to the use of the name Sid Kassim.
[32] Among the documents found near or on the computer in the Pardhan family residence, the plaintiffs produced a photograph of Musadiq Pardhan and John Chen of Bay Harbour Trading Corporation standing in front of several skids of Coca-Cola products.111 The back of the photograph is inscribed as follows: "Dear Sid, Good memory. Best regards. To you and your family members. John Feb 1997".
[33] When cross-examined about the photograph, the plaintiffs" witness, who was involved in its seizure, stated that "Sid" is an alias and that, according to his understanding, there is no person whose real identity is "Sid".112
[34] I find beyond a reasonable doubt that, for the purposes of the business being transacted when the photograph was taken, Musadiq Pardhan identified himself to John Chen as "Sid", at least as one of the names which he used. There can be no other reasonable explanation for the inscription on the back of the photograph addressed "Dear Sid".
[35] On May 12, 1997, a letter from Sid Enterprise over the name of "Sid" was faxed to John Chen of Bay Harbour Trading Corporation confirming the details of the shipment of three sea containers, each of which included Coca-Cola products.113 This letter was also found in Musadiq Pardhan"s brief case.114
[36] On July 11, 1997, Musadiq "Mushi" Pardhan faxed a letter to his father which stated in part:
| Developments here - Loading 2x20' every week. Talked to Mr. Chen in HKG. He is going to resume buying by the end of the month, as he has seven containers arrived there just day before yesterday, even though it is peak season in HKG, it is very slow, it has not stopped raining there in two months, and all importers are suffering. I am also working with him to send RC cola, 1x20' container of trial shipment, he will put half the money and I will put half the money, and I am also working with him for juice on agency basis.115 |
These statements by Musadiq Pardhan do not specifically mention Coca-Cola products. His letter, however, is nonetheless revealing. Mr. Chen, acting for Bay Harbour Trading, purchased at least six shipments of canned beverages from Sid Enterprise in April and May 1997,116 each of which included Coca-Cola products. It is not plausible that, when writing this letter to his father, Musadiq did not know that Mr. Chen, with whom he was photographed, was receiving Coca-Cola products in the containers referred to in this correspondence and in "Sid"s" letter of May 12, 1997.
[37] The letter of May 12, 1997 to Mr. Chen was sent over the name of "Sid". In view of the "Dear Sid" inscription on the back of the photograph of Musadiq Pardhan with Mr. Chen, the latter would have understood that this correspondence was sent to him by the person whom he knew as "Sid", but whose real identity is Musadiq Pardhan. On the basis of this evidence, I conclude that the fictitious name "Sid" was used a second time in communications with Mr. Chen. This same evidence, together with the information in his fax of July 11, 1997, supports a further conclusion that Musadiq Pardhan authored the letter of May 12, 1997 and participated in the sales of Coca-Cola products to Bay Harbour Trading Corporation. I will return to this finding after considering the alleged role of other persons in Sid Enterprise.
[38] On May 30, 1997, Musadiq Pardhan was seen with his father in the parking lot of a Price Club location at a time when the plaintiffs" investigators also noted some sixty skids of Coca-Cola products in the loading area of the store. On June 3, 1997, investigators surveyed the movement of a substantial number of similar, if not the same, Coca-Cola skids in two trailers that were transported from the same Price Club location to Oscar Cheddi"s warehouse for subsequent exportation to Hong Kong.117
[39] Oscar Cheddi testified that he would purchase canned beverages for Sid Enterprise from Price Club locations. One way through which he would be instructed as to the specific brand to purchase was through information left in envelopes for him. In his testimony, he indicated that he would deal with "Sid".118
[40] Mr. Cheddi responded that there were occasions when Musadiq Pardhan provided him with the envelope containing instructions. He linked this response to transactions concerning Coca-Cola products:
| Q. Were there any occasions when you were present at the offices of Sid Enterprises and Mushi Pardhan was there on his own? |
| A. On some occasion, yes. |
| Q. And were there any occasions when Mushi Pardhan gave you the envelope of instructions? |
| A. Yes, sometimes it would be on the desk and he would say to me, here's an envelope for you or he was there and he says, here, here's the envelope. |
| Q. Okay. You're gesturing with a piece of paper to show that he -- |
| A. Yeah. |
| Q. -- handed you -- |
| A. Yeah. |
| Q. -- the envelope? |
| A. On some occasion and on some occasion it would be on the desk, and he would say to me, Mr. Sid leave that for you. |
| Q. And these envelopes that you were given or told to pick them up, they contained what sort of things? |
| A. Instructions as to where to buy the product from with the shipping instructions. |
| Q. So if we were talking about these transactions where you purchased the Coca-Cola product, would the envelope contain instructions to go to Price Club? |
| A. In some cases, yes. |
| Q. Where else did you go to purchase Coca-Cola? |
| A. Knob Hill Farms.119 |
Mr. Cheddi provided no significant evidence of his dealings with individuals at Sid Enterprise other than Musadiq Pardhan and the person he identified as Sid Kassim. On my appreciation of the evidence, Sid Kassim is a fictitious name. There was no person named Sid or Syd Kassim involved with Sid Enterprise. If Musadiq Pardhan actually told Oscar Cheddi "Mr. Sid leave that for you", an assertion I do not accept, to whom could Musadiq Pardhan have been referring?
[41] This question invites the consideration of the role, if any, of other family members of the Pardhan family in the exportation of Coca-Cola products for Sid Enterprise. Subsequently and separately, the role of the defendant Mustafa Pardhan will be examined.
| (h) The role of the Pardhan family members and others |
[42] As noted earlier, Akberali Fazal Kermali was listed as the administrator, first director and signing officer of 1184268 Ontario Limited, which carried on business as Sid Enterprise. The defendants point out that his name appears on some export declaration forms.
[43] Fatima Fazal Kermali Pardhan, the daughter of Akberali Fazal Kermali, signed "every cheque written" against Royal Bank of Canada account no. 100-064-5 that was held by 1184268 Ontario Limited under the name of Sid Enterprise. This account was active between June 1996 to September 1997. Fatima Fazal is the spouse of Mustafa Pardhan. Some of the cheques she signed were made payable to herself.120
[44] Shahina Khoja is the spouse of Musadiq Pardhan. According to Price Club records, she was identified as the Sid Enterprise person responsible for its membership card.121 The canned beverage purchases by Sid Enterprise from Price Club were paid with a Visa card in the name of Shahina Khoja. She also signed at least some of the cheques, drawn on a Canadian Imperial Bank of Commerce account, to pay Sid Enterprise disbursements.122
[45] Sidika Pardhan is the sister of Musadiq Pardhan. She was the recipient of certain payments from Sid Enterprise made by cheque in the amount of not less than $22,000.123 There is little, if any, evidence concerning her work for Sid Enterprise.
[46] Sajjad Fazal is the brother of Fatima Fazal. His passport was found in the Steeles Avenue premises.124 The name Sajjad F. Kermali, which may be the same person, appears on other Sid Enterprise documents and he appears to have communicated in July 1996 with one of its customers for the sale of Coca-Cola products.125 In November 1996, another customer wrote to Sajjad Fazal Kermali at Sid Enterprise concerning shipping damage caused to Coca-Cola products.126 Sajjad Fazal signed the lease for the Steeles Avenue premises.127
[47] Oscar Cheddi did not recall any woman who worked for Sid Enterprise. He received no instructions from Shahina Khoja or Fatima Fazal. He was barely familiar with the name of Akberali Fazal Kermali, whom he did not remember ever meeting. He testified that he "didn"t have too much dealing" with Sajjad Fazal, whom he only knew by his first name.128
[48] Similarly, Henry Abramowitz had no dealings with Fatima Fazal Pardhan or Shahina Pardhan.129 Nor was he familiar with the name Akberali Fazal Kermali.130 However, he did know Sajjad Fazal, the brother of Fatima Fazal and the brother-in-law of Mustafa Pardhan.131 According to his evidence, Mr. Abramowitz had some communications with Sajjad Fazal at Sid Enterprise.132
[49] I attribute no significant role to Sajjad Kermali in the affairs of Sid Enterprise. While both witnesses attempted to shield the Pardhans, I place greater weight on Mr. Cheddi"s testimony and the very few references to Sajjad Fazal in the documentary evidence than on the statement by Mr. Abramowitz that he had some communications with this individual. I conclude that any role that Sajjad Fazal may have had in the selling of Coca-Cola products for Sid Enterprise was marginal at best. On the evidence before me, he was not involved in each of the thirty-nine shipments, supra paragraph 73, if any at all.
[50] The defendants produced the Sid Enterprise business card of Ally Hermani133 but there is no other evidence concerning this individual. Counsel for the defendants referred to a document addressed to "Alistair" and surmised this may be "Oscar".134 In my view, the names of these "phantom employees", in the words of counsel, were mere distractions in the context of the evidence of the real activities of Sid Enterprise.
[51] Similarly, there is no significant evidence that Akberali Fazal Kermali, Fatima Pardhan, Shahina Khoja or Sidika Pardhan had any role in the selling of Coca-Cola products for Sid Enterprise. Their signatures on export declaration forms, banking documents and Price Club records constitute evidence that their names were used but do not establish their significant involvement in the marketing operations of Sid Enterprise.
[52] I agree with the plaintiffs that the use of the names of these Pardhan family members included the purpose of hiding the participation of the persons really involved in the export operations of Sid Enterprise.
| (i) Summary of findings of fact concerning Musadiq Pardhan |
[53] In March 1996, Musadiq Pardhan admitted to one of the plaintiffs" solicitors that he had knowledge of the terms of the injunction and understood that he was restrained by the Court order from exporting Coca-Cola products.
[54] This admission concerning Musadiq Pardhan"s understanding of the order is consistent with and further confirms my separate finding that the substantive and real meaning of the injunction issued by MacKay J. was clear and comprehensible, despite the typographical errors.
[55] Also, the use of the name Sid Enterprise as early as January 23, 1996 and on several occasions in early March 1996 is evidence which, when assessed with his statement to counsel, satisfies me beyond a reasonable doubt that Musadiq Pardhan acquired knowledge of the order and understood its terms no later than March 1996.
[56] In the alternative, and only for the purposes of any appeal from this decision, I find that Musadiq Pardhan acquired knowledge of the order in February 1997 when his counsel attended before Justice MacKay on the issue of costs. At the very latest, his knowledge of the order can be inferred as of March 1997 when his counsel filed a draft notice of motion which sought, in part, "to rescind, suspend, or amend the interlocutory injunction, granted against the defendants on January 8, 1997 [sic] by the Honourable Mr. Justice MacKay."135
[57] The incorporation of 1184268 Ontario Limited, carrying on business as Sid Enterprise, and the signing and the banking of other documents by the spouses of Musadiq Pardhan and Mustafa Pardhan, apart from any other purposes they may have served, camouflaged the real identity of the person or persons actively involved in the exportation of Coca-Cola products after January 8, 1996.
[58] Sid Enterprise paid for the rental of Oscar Cheddi"s business premises and forklift with cheques signed at times by Musadiq Pardhan"s wife, his mother and, on at least one occasion, by Musadiq Pardhan himself. Oscar Cheddi, pursuant to directions from Sid Enterprise, loaded the sea containers for the exportation of thirty-nine shipments of Coca-Cola products between November 1996 and early July 1997. I have also found that Sid Kassim was not the name of a real person and that, on the record before me, none of the Pardhan family members who are not defendants in this proceeding, or any other person, had any significant role, if any at all, in the selling of Coca-Cola products.
[59] Accordingly, I find beyond a reasonable doubt that "Sid"s" letter of May 12, 1997 was written by Musadiq Pardhan and that he participated in the sales of Coca-Cola products to Bay Harbour Trading Corporation in April and May 1997 for 1184268 Ontario Limited, carrying on business as Sid Enterprise.
[60] Musadiq Pardhan was involved with John Chen of Bay Harbour Trading Corporation. He knew of and participated in the shipments of Coca-Cola products to this customer. His wife"s name was used to facilitate the purchase of canned beverages from Price Club. Mr. Cheddi testified that he received envelopes of instructions from Musadiq Pardhan. On July 31, 1997, when the Pardhan family residence and the Sid Enterprise Steeles Avenue premises were searched, none of the Sid Enterprise copies of the Cheddi documents was found. Shortly prior to the search, Musadiq Pardhan had discovered that he had been under surveillance.136 These important facts, when understood with the other evidence, lead me to conclude, beyond a reasonable doubt, that Musadiq Pardhan was directly involved in the exportation of Coca-Cola products contrary to the injunction of January 8, 1996.
| (j) The involvement of Mustafa Pardhan in Sid Enterprise |
[61] There is ample evidence that Mustafa Pardhan was a principal in Universal Exporters.137
[62] I find that Mustafa Pardhan was also involved in the activities of Sid Enterprise, at least with respect to certain products other than those of the plaintiffs.138 The business of Sid Enterprise involved the sale of many grocery and related products other than the plaintiffs" beverages.139
[63] There are other indices consistent with Mustafa Pardhan"s general involvement with Sid Enterprise. His father-in-law was the administrator and director of 1184268 Ontario Limited. His wife signed Sid Enterprise cheques. The activities of his son Musadiq and his daughter-in-law Shahina Khoja have been reviewed earlier. His name appears on the Lansing Buildall invoices and he was seen on at least one occasion, with his son Musadiq, purchasing packing materials.140
[64] I shall now review the specific evidence, relied upon by the plaintiffs, to show Mustafa Pardhan"s participation in the exportation of Coca-Cola products, contrary to the injunction of January 8, 1996.
[65] Mustafa Pardhan was seen by the plaintiffs" investigators on two occasions at the Steeles Avenue premises of Sid Enterprise. On May 30, 1997, he was observed leaving this site with his son Musadiq. Both Pardhans were then followed to a Price Club location, from which the investigators, some four days later, traced the movement of Coca-Cola products to Oscar Cheddi"s warehouse for subsequent exportation.141 On June 5, 1997, Mustafa Pardhan was observed at the Steeles Avenue premises where he stayed for less than thirty minutes.142
[66] Oscar Cheddi occasionally saw Mustafa Pardhan at the premises of Sid Enterprise. He acknowledged receiving instructions from Musadiq Pardhan and Mustafa Pardhan concerning the shipment of foam cups, bottled water and coffee products.143
[67] However, Mustafa Pardhan was not in Canada for at least part of December 1996 and was abroad in the late spring and summer of 1997. On both occasions, regardless of any other purposes for the trips, he transacted business with respect to products other than the plaintiffs" beverages. He is also said to have had heart problems during this period.144
[68] On July 8, 1997, Musadiq Pardhan advised Mustafa Pardhan concerning the sale by Sid Enterprise of "juices" and "chewing gum".145 On July 11, 1997, Musadiq Pardhan informed his father of the cost to Sid Enterprise of a range of shaving razors.146 Both letters were sent to Mustafa Pardhan while he was away from Canada.
[69] On July 11, 1997, Musadiq Pardhan also informed his father by fax of the shipment of seven containers to John Chen of Bay Harbour Trading Corp.147 This two-page correspondence covers a range of business and personal issues. The more relevant portion of the letter refers to both the shipment of sea containers and potential sales of juices and canned beverages to Mr. Chen. There is no specific mention of Coca-Cola products.
[70] In linking Musadiq Pardhan"s letter of May 12, 1997 to Mr. Chen and his letter of July 11, 1997 to his father, I have concluded that Musadiq Pardhan was involved in the sale of Coca-Cola products to Bay Harbour Trading Corp.
[71] The plaintiffs argue that the letter of July 11, 1997 is evidence that Mustafa Pardhan also knew of the exportation of their products in breach of the injunction. In my view, I cannot make this assumption. The shipments to Mr. Chen also included canned beverages other than those manufactured by the plaintiffs. There is no specific reference to Coca-Cola products in this letter. My finding that Musadiq Pardhan knew that the plaintiffs" products were being shipped to Hong Kong cannot be imputed to his father, particularly in a proceeding where the criminal burden of proof applies.
[72] On the basis of the evidence before me, Mustafa Pardhan continued his business association with his son Musadiq Pardhan, after the change of name to Sid Enterprise, at least with respect to certain products other than those of the plaintiffs. His role, however, was less than that of Musadiq Pardhan, although more active than the nominal participation of the other family members. The evidence concerning Mustafa Pardhan"s participation in and knowledge of the sale abroad of Coca-Cola products is, however, far less certain.
[73] There is no photograph of Mustafa Pardhan with John Chen, nor any correspondence between them concerning the shipments of Coca-Cola products. "Sid"s" letter of May 12, 1997 was written by Musadiq Pardhan and found in his briefcase, not his father"s. Oscar Cheddi did not implicate Mustafa Pardhan as one of those from whom he received envelopes with instructions. There is no evidence of Mustafa Pardhan using the name Sid Kassim. Nor is there evidence of Sid Enterprise paying the credit card accounts under Mustafa Pardhan"s name. The Sid Enterprise weekly cheques of $350 to "M. Pardhan" include a period when Mustafa Pardhan was not in Canada. Significantly, Mustafa Pardhan was not in Canada when the Steeles Avenue premises and the Pardhan family residence were searched on July 31, 1999, when the Sid Enterprise copies of the Cheddi documents were nowhere to be found. It could not have been Mustafa Pardhan who disposed of these documents and there is no evidence that he gave instructions that this be done.
| (k) Summary of findings of fact concerning Mustafa Pardhan |
[74] Mustafa Pardhan was added as a defendant on the same day the injunction was issued. There is no evidence that he was served with the notice of motion for interlocutory relief. Nor is there any evidence that he was served with the interlocutory order. Of course, he was not in Canada on January 8, 1996.148
[75] There is persuasive evidence concerning Musadiq Pardhan"s involvement in the general operations and organization of Sid Enterprise in early 1996, supra paragraphs 80-86. There is also his admission in March 1996 concerning his knowledge of the injunction. There is no such direct evidence concerning Mustafa Pardhan. Counsel for the plaintiffs acknowledged that the evidence of Mustafa Pardhan"s knowledge of the injunction was "more indirect".149 I cannot conclude, beyond a reasonable doubt, simply on the active involvement of his son and the nominal involvement of his other family members, that Mustafa Pardhan knew of the injunction in 1996.
[76] However, on the basis of his counsel"s representations to the Court in February and March 1997, I can infer that he had acquired knowledge of the injunction at that time.150 Even this inference requires an assumption that both Pardhans were instructing counsel concerning the injunction issued on January 8, 1996.
[77] Counsel for the plaintiffs acknowledged that the evidence concerning Mustafa Pardhan"s disobedience of the injunction is less compelling than that concerning Musadiq Pardhan. Although this factual issue was raised by neither party, the direct evidence can be interpreted as disclosing greater involvement by Musadiq Pardhan"s spouse in the sale of Coca-Cola products than by Mustafa Pardhan.
[78] However, counsel for the plaintiffs forcefully argued that there existed no separate divisions within 1184268 Ontario Limited to distinguish between its sales of Coca-Cola beverages and other products. From this, he submits that involvement in Sid Enterprise equates participation in the sale of the plaintiffs" products. I do not agree. On a criminal standard of proof, there must be clear evidence linking the involvement in Sid Enterprise with the impugned activity. In this regard, the evidence concerning Mustafa Pardhan is "impressionistic evidence".151
[79] In my view, the absence of any divisions separating the activities of Sid Enterprise does not allow the Court to implicate Mustafa Pardhan with the conduct of Musadiq Pardhan.
[80] The strongest possible case against Mustafa Pardhan, pursuant to paragraph 2 of the show cause order and Rule 466(b), is that he "aided and abetted other parties in transshipping activities", contrary to the terms of the injunction. I am not satisfied that the evidence establishes, beyond a reasonable doubt, that Mustafa Pardhan aided and abetted other parties to commit the impugned activity. The plaintiffs have not shown that Mustafa Pardhan should be held in contempt, pursuant to subparagraph 2(a )(iv) of the show cause order.
[81] As I understand the plaintiffs" representations, however, the "impressionistic evidence" can form the basis of a finding of contempt, pursuant to paragraph 4 of the show cause order which states:152
| 4. AND THIS COURT ORDERS that the Defendants, Musadiq Pardhan, Mustafa Pardhan, and 1184268 Ontario Limited c.o.b. as 3-M International Freight Forwarders and Sid Enterprise, shall appear before the Federal Court of Canada ... to answer, if they can, why they should not be held in contempt for acting in such a way as to cause interference with the orderly administration of justice, or to impair the authority or dignity of the Court, by engaging in the conduct set out in a [sic] paragraphs 2 and 3, and by so doing in a covert and surreptitious manner. [Emphasis added.] |
[82] In Valmet Oy v. Beloit Canada Ltd.,153 Justice Pratte compared the language now found in Rules 466(b) and (c):
| The only person who may disobey an order of a court is the party to whom the order is addressed. However, a third party who knowingly aided and abetted a party to disobey an injunction may be found guilty of contempt, not because he breached the injunction, but, rather, because he acted in a manner that interfered with the course of justice.154 |
This statement suggests that Rule 466(c) may more usually be applied against third parties not named in the injunction. However, for the purpose of assessing the plaintiffs" argument in this case, I am prepared to assume that Mustafa Pardhan could properly be charged with contempt under Rule 466(b ) and (c).
[83] The language in paragraph 4 of the show cause order purports to reflect Rule 466(c). However, the words "engaging in the conduct set out in" the earlier paragraphs of the show cause order necessarily lead me to the same conclusion. If there is insufficient evidence under paragraph 2 of the show cause order, the plaintiffs can be in no better position under paragraph 4.155
[84] In Valmet,156 the Court of Appeal drew an analogy between a corporate parent - subsidiary relationship and that of a father and son:
| A father may have much influence on his children; nevertheless a father against whom an injunction has been pronounced will not be in breach of that injunction for the sole reason that his son or daughter has done what he was enjoined from not doing; unless, of course, it be shown that the father did in fact influence his child"s behaviour.157 |
...
| Nor do I think that the trial judge was right in considering that a party enjoined from doing an act is required to do anything more than to refrain from doing the act either itself or through its agents, servants or others induced by it to do the act in its stead and for its purposes; as I see it, the party enjoined is not under any duty to go further; more precisely it is not required to use all the powers and influence in its control to prevent others from doing the act for their own purposes and advantage.158 [Emphasis added.] |
While the facts in Valmet differ from those in this case, I find no evidence that Mustafa Pardhan influenced the conduct of Musadiq Pardhan. Mustafa Pardhan was not required to prevent his son from breaching the injunction.
[85] On the record before me, in addition to his involvement in Sid Enterprise with certain non-Coca-Cola products, there is evidence of Mustafa Pardhan"s presence in the Price Club parking lot on May 30, 1997, his purported receipt of Musadiq Pardhan"s letter of July 11,1997 and the nominal participation of the other members of his family. Upon my review of this evidence, I have a reasonable doubt that he engaged in the sale of Coca-Cola products, contrary to the terms of the injunction and as set out in the show cause order. Even if I accept that one of the purposes of the incorporation of 1184268 Ontario Limited was to conceal the ongoing exportation of Coca-Cola products, I conclude that the evidence does not establish, beyond a reasonable doubt, that Mustafa Pardhan was engaged in the exportation of Coca-Cola products, in breach of the injunction of January 8, 1996 and as described in the show cause order of July 29, 1997.
CONCLUSION
[86] I therefore find, on the basis of the evidence adduced at the hearing held pursuant to the show cause order dated July 27, 1997, that Musadiq Pardhan is guilty of contempt of court by breaching the interlocutory order of MacKay J. dated January 8, 1996, as charged in paragraph 2 of the show cause order.
[87] On the basis of the evidence adduced at the same hearing, I find that Mustafa Pardhan is not guilty of contempt of court as charged in paragraphs 2 and 4 of the show cause order dated July 27, 1997.
[88] The registry will communicate with counsel to schedule the hearing for representations on penalties and costs.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
November 16, 1999
__________________2 Transcript, pp. 219 and 316.
4 Coca-Cola Ltd. v. Pardhan (1997), 77 C.P.R (3d) 501 (F.C.T.D.), aff"d (1999), 85C.P.R. (3d) 489 (F.C.A.), application for leave to appeal to the Supreme Court of Canada filed on July 9, 1999, file no. 27392.
5 Coca-Cola Ltd. v. Pardhan (1998), 81 C.P.R. (3d) 244 (F.C.T.D.), aff"d (1999), 85 C.P.R. (3d) 501 (F.C.A.).
8 In Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 974-75, JusticeMcLachlin noted: "For the purposes of the contempt proceedings, [the order] must be considered valid until set aside by legal process. Thus, the ultimate invalidity of the order is no defence to the contempt citation." See also Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at 670.
12 Supra note 8 at 942, per Dickson C.J.
13 [1987] 3 F.C. 593 (C.A.) at 601. Justice Mahoney had himself adopted the rationaleof O"Leary J. in Canada Metal Co. v. Canadian Broadcasting Corp. et al. (No. 2) (1974), 4 O.R. (2d) 585 (H.C.) at 613, aff"d (1975), 11 O.R. (2d) 167 (C.A.).
15 [1990] 2 S.C.R. 217 at 226.
19 Exhibit P-1, tab 3, pp. 39 and 41.
20 Transcript, pp. 233-34. There was no objection to this evidence. However, I am mindfulof the statements of Sopinka J. in R. v. Evans, [1993] 3 S.C.R. 653, in particular at paragraphs 24, 32 and 34, and I will return to this evidence in the context of other events which occurred in early 1996. See also John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1999) at pp. 286-90.
21 Coca-Cola Ltd. v. Pardhan (1997), 75 C.P.R. (3d) 318 (F.C.T.D.) at 321.
22 Transcript, pp. 1155-59, particularly at pp. 1158-59 and 1172-73. See also exhibit D-1(documents 00524, 00525, 00527, 00530 and 00549). The documents also show transshipments of "canned soda" to Hong Kong: exhibit D-1 (documents 00544-48 and 00550-51). See also exhibits D-2 and D-3.
23 Exhibit P-2 (for example, documents 00519 and 00528), exhibit P-3, exhibit P-16 andexhibit P-38 (tab 1, document 00588 and tab 2, documents 005843 and 005845). See also transcript, p. 219, lines 7-19).
25 Exhibits P-27, P-28, P-29 and P-30 (particularly document 01553) and transcript, pp. 1158-59, 1164, 1180 and 1185.
27 Transcript, pp. 1090-91. See also exhibit P-26, tab 1.
29 Transcript of the testimony of Mr. Abramowitz which was obtained on commission ("Abramowitz transcript") at pp. 12-14 and 20-21. See also exhibit P-38, tab 2.
30 Abramowitz transcript, pp. 13 and 51.
33 See exhibit D-9, exhibit P-14, document 100133 and exhibit P-40, tabs K and L. See also the testimony of the two investigators.
34 Exhibit P-5 and transcript, p. 253.
36 Exhibit P-9 (last sheet) and exhibit P-15. On exhibit P-5, Mr. Kermali"s name is alsospelled "Kermall". On exhibit P-15, Fatima Pardhan"s father spells the name "Kermali". I find that this is one and the same person whose name is spelled Akberali Fazal Kermali.
37 See counsel"s stipulation to this effect, transcript, pp. 1550-51.
39 Exhibit P-4 and transcript, pp. 247-48.
40 Transcript, p. 248, l. 16 to p. 249, l. 3. Exhibit P-4 does not appear to include confirmation that Mr. Kermali signed as guarantor.
42 Exhibit P-19, document 200026 (cheque stub no. 112), document 200028 (cheque stubno. 122), document 200032 (cheque stub no. 148) and documents 200056-57 (which indicate bank account no. 8111618 on a CIBC envelope found in the Steeles Avenue premises).
43 Exhibit P-19, document 200057 and transcript, pp. 339, 347, 379, 388, 492 and 683.
44 Transcript, pp. 1207, 1383 and 1386.
45 Exhibit P-19, documents 200064-65.
46 Exhibit P-25. See also exhibit P-20. Mr. Pardhan"s signature can also be found onexhibit P-11 (last sheet), exhibit P-14, document 100070, exhibit P-16, exhibit D-1, documents 00528-29 and 00544-48 and exhibit D-2, documents 00216 and 00224-28.
47 Exhibit P-25, p. 5, paragraph 9.
48 Exhibit P-40, paragraphs 10 and 14, and tab E, third sheet.
49 Exhibit P-25, p. 4, paragraph 8.
50 Counsel for the defendants acknowledged that the defendant Musadiq Pardhan wasknown under the names "M. Gulamhusein", "Mushi Gulamhusein" and "Musadiq Pardhan". Mr. Pardhan used these names interchangeably. Transcript, pp. 441-44.
51 Transcript, pp. 1112 and 1135.
53 Transcript, pp. 1104 and 1113-14.
54 Exhibit P-26, tabs 5 and 7. See also exhibit P-14 (documents 100145-66).
55 Exhibit P-14, documents 100145-66 and exhibit P-26, tabs 3, 4, and 5.
56 Exhibit P-14, document 100150 and exhibit P-19, documents 200027 and 200056-57.This Lansing Buildall expense of $772.33 is also noted on document 200004 which was obtained from the computer at the Steeles Avenue premises (transcript, p. 483).
57 See in particular exhibits P-22, P-31 and P-32.
59 Exhibit P-22. Certain documents from P-22 were reproduced in exhibit P-31.
61 The seventeen Price Club references in exhibit P-32 in fact refer to twenty-one shipments in the Cheddi documents (exhibit P-22).
62 Transcript of oral submissions presented on April 29, 1999 at pp. 134-35.
63 The twenty-one shipments in question include: (a) the twelve shipments referred to undertabs 1, 2, 3, 13, 14, 17, 18, 19, 22, 23, 24 and 29 in exhibit P-22; and (b) the nine shipments stamped respectively as documents 300374-378, 300327-332, 300134-139, 300000-004, 300005-009, 300580-585, 300574-579, 300540-545 and 300463-469 in exhibit P-22.
64 Exhibit P-22, tabs 6, 7 and 8.
65 Exhibit P-14, document 100002. This letter was found in Musadiq Pardhan"s briefcase, infra paragraph 108.
68 Exhibit P-21, which is an affidavit signed by Mr. Cheddi on the day he delivered the Cheddi documents to a solicitor for the plaintiffs.
69 Transcript, pp. 1268 to 1272.
70 Transcript, p. 1272. Mr. Cheddi appears to have limited the shipments which included Coca-Cola products to those documented under tabs 1, 2, 3 and 15 through 36 in exhibit P-22.
71 The information provided by Price Club, supra paragraph 65 and footnote 63, establishedthat the twelve shipments under tabs 1, 2, 3, 13, 14, 17, 18, 19, 22, 23, 24 and 29 in exhibit P-22 included Coca-Cola products. Mr. Cheddi"s evidence is that twenty-five shipments under tabs 1, 2, 3 and 15 through 36 in exhibit P-22 included Coca-Cola products. There is an overlap of ten shipments from among those identified by Price Club and Mr. Cheddi as including Coca-Cola products. From this, I conclude that Mr. Cheddi has provided evidence of an additional fifteen shipments of Coca-Cola products not previously identified by the Price Club representative.
72 Abramowitz transcript, pp. 13-14 and 51, ll. 7-19.
73 Exhibit P-19, documents 200052-55. See also infra in next section of these reasons.
74 Concerning Universal Exporters" purchases of canned beverages from Knob Hill Farms,see exhibit D-4, document 005940 at transcript, pp. 665-66 and exhibit D-5, document 005842 at transcript, p. 670. In August 1995, Universal Exporters made three purchases of Coca-Cola products from Price Club: exhibit P-30 (first six sheets). Documentary evidence of at least one purchase of Coca-Cola products by Sid Enterprise from Knob Hill Farms is found at exhibit P-22, tab 26, document 300312. Mr. Cheddi confirmed the Coca-Cola products were obtained from both Knob Hill Farms and Price Club by Sid Enterprise in 1996 and 1997, transcript, pp. 1505-10.
76 See in particular exhibit P-14, document 100187 and exhibit D-1, document 000524,which are computer invoices of Sid Enterprise and Universal Exporters respectively in formats and typesettings which appear to be identical.
77 Exhibit P-19, documents 200066 and 200068.
78 Exhibit P-19, documents 200052-55.
80 Exhibit P-14, documents 100085, 100087, 100102 and 100104.
81 Exhibit P-20 and exhibit P-25 under tab E.
82 Exhibit D-9 and Abramowitz transcript, p. 113.
83 Exhibit P-25, affidavit of Mr. Michael Bimm at paragraphs 6 and 7.
84 Exhibit P-14, document 100150 and exhibit P-19, documents 200027 and 200056-57, concerning Sid Enterprise bank account no. 8111618 with the Canadian Imperial Bank of Commerce.
85 For example, see exhibit P-14, documents 100188-89, 100191 and 100195 and exhibit P-19, document 200009.
86 For example, see exhibit P-14, documents 100120-23.
88 Exhibit P-40, paragraph 11 and tab B.
89 Abramowitz transcript, p. 121. Counsel for the defendants appeared to acknowledge this assessment of the evidence: transcript of oral submissions presented on April 29, 1999, pp. 178-79.
90 Exhibit P-9, ninth, tenth and eleventh sheets. These documents were found on May 9, 1997, in the refuse outside the Pardhan residence at 111 Knightswood.
91 Exhibit P-14, document 100006 and transcript, p. 363. The container numbers referred to in this facsimile message relate to the shipments under tabs 10 and 11 of exhibit P-22.
92 Exhibit P-14, document 100063 and exhibit P-12. See also transcript, pp. 246-47 and 317. These documents were also obtained from the Pardhan residence at 111 Knightswood.
93 Exhibit P-19, document 200006 and transcript, p. 496.
94 See, for example, exhibit D-2.
95 Exhibit D-6, sixteenth and seventeenth sheets.
96 Exhibit D-6, fifth and sixth sheets.
102 Transcript, pp. 1255-56. There are other occasions where Mr. Cheddi"s answers were attimes reluctant and often evasive. For example, see transcript, pp. 1199-1204 (supra, paragraph 45), p. 1217, ll. 14-20, p. 1251 and p. 1255.
105 Abramowitz transcript, p. 14.
106 Abramowitz transcript, pp. 25-26 and exhibit P-38, tab 4; and pp. 55-56 and exhibitP-38, tab 5 and exhibit P-39.
107 Abramowitz transcript, pp. 28-32, particularly at p. 32, l. 4.
108 Abramowitz transcript, pp. 22 and 49-50 concerning Sid Kassim and pp. 21 and 48 concerning the Pardhans.
109 Transcript of oral submissions presented on April 29, 1999, pp. 177-78.
110 Exhibit P-18 and supra paragraph 87.
111 A coloured reproduction of the photograph is produced in exhibit P-14, document100131(a) concerning the identity of the individuals; see transcript, pp. 410-11. Evidence of the identity of these individuals was repeated when counsel for the defendants objected; see transcript, pp. 450-55. With the agreement of the parties, the objection was kept in abeyance. Subsequently, in cross-examination, the plaintiffs" witness repeated the identity of the individuals on the photograph as being Musadiq Pardhan and John Chen; see transcript, pp. 750-51. In the circumstances, I accept that the individuals on the photograph are those identified by the witness and the objection by defendants" counsel is moot in view of this subsequent cross-examination.
113 Exhibit P-14, document 100002. ("Sid" also wrote to Mr. Chen on July 15, 1997, exhibit P-14, document 100192.)
115 Exhibit P-14, documents 100183-84.
116 Exhibits P-22, tabs 6, 7, 8, 13 and 14 and documents 300540-545. See supra footnotes 63 and 65.
117 Testimony of the two investigators and exhibits D-19 and D-20. See also exhibit P-22, tabs 1 and 2.
120 Exhibit P-40, paragraphs 7 and 11.
121 Exhibit P-32, paragraph 6 and tab D.
122 Exhibit P-19, documents 200025-28, 200032, 200056-57.
123 Exhibit P-40, paragraph 26.
125 Exhibits D-10, D-11 and D-12.
126 Exhibit P-19, document 200141.
128 Transcript, pp. 1207, 1242-43, 1383, 1386-87 and 1391-92.
129 Abramowitz transcript, p. 80.
130 Abramowitz transcript, p. 128.
131 Abramowitz transcript, pp. 111-13.
132 Abramowitz transcript, pp. 50 and 80.
134 Exhibit P-22, document 300594 and transcript of April 29, 1999, pp. 54-56.
135 Here, I adopt the statements in Bhatnager and Apple Computer, supra paragraphs 21 and22. The court record discloses the filing of the draft notice of motion on March 27, 1997. In Apple Computer, supra note 11 at 288, Justice Strayer stated: "I am satisfied that the "record" on a show cause motion includes those elements of the file relevant to the issues before the Court for determination." This is particularly true with respect to non-contentious information of a public nature.
136 Exhibit P-13, particularly paragraphs 27, 28 and 55 and exhibit P-19, document 200152. Transcript, p. 343, ll. 22-25, pp. 536-37 and pp. 1011-15.
137 Supra note 22. See also exhibits P-16 and P-28.
138 Abramowitz transcript, pp. 48-49, 51 and 130. For example, see exhibit P-14, document 100195 and exhibit P-19, document 200009. See also transcript, pp. 1367-68 and 1406.
139 Exhibits D-15, D-23 and D-24.
141 Exhibit D-20 at page 8 and the testimony of the plaintiffs" investigators.
143 Transcript, pp. 1304 and 1367-68.
144 Exhibit P-14, documents 100183 and 100195, exhibit P-19, document 200009 and Abramowitz transcript, pp. 80 and 121.
145 Exhibit P-14, document 100121.
146 Exhibit P-14, document 100195.
147 Exhibit P-14, documents 100183-84.
148 Exhibit P-1, tab 3, p. 42, ll. 21-24. The motion record in support of the interlocutory relief was delivered to the Court during the hearing of January 8, 1996 (exhibit P-1, tab 3, p. 8, ll. 17-18).
149 Transcript of oral submissions presented on April 28, 1999 at p. 23.
151 Transcript of oral submissions presented on April 28, 1999, pp. 116-129.
152 Ibid., particularly at pp. 128-29.
153 (1988), 20 C.P.R. (3d) 1 (F.C.A.).
154 Ibid. at 11. See also Marengo v. Daily Sketch and Sunday Graphic Ltd. (1948), 65 R.P.C. 242 at 253, ll. 3-15.
155 R. v. Côté, [1987] 1 S.C.R. 8; R. v. Saunders, [1990] 1 S.C.R. 1020; and Titan Linkabit Corp. v. S.E.E. See Electronic Engineering Inc. (1993), 62 F.T.R. 241.