Date: 20110127
Docket: T-38-09
Citation: 2011 FC 99
Toronto, Ontario, January 27,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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SETANTA SPORTS CANADA LIMITED
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Plaintiff
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and
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1053007 ONTARIO INC. CARRYING
ON BUSINESS AS ENDZONE BAR & GRILL,
AND JUDY KOROPATNICKI,
1014490 ONTARIO INC.
CARRYING ON BUSINESS AS THE LAZY LIZARD,
AND ANTHONY FALOVO AND GARY
MICHAEL KIS,
1456440 ONTARIO INC.
CARRYING ON BUSINESS AS THE HORNY TOAD PATIO BAR,
AND CHRISTOPHER SHAH,
1397868 ONTARIO LIMITED,
CARRYING ON BUSINESS AS MOE’S TAP & EATERY,
AND BOSILJKA RASETA,
1681736 ONTARIO INC.
CARRYING ON BUSINESS AS HOOPS SPORTS BAR & GRILL AND
KAMAL ARANJI THAMALAR
SUBRAMANIAM,
7550804 CANADA CORP.,
CARRYING ON BUSINESS AS HOOPS SPORTS BAR & GRILL
AND
SINNATHAMBY VIJAYAKUMAR
1556845
ONTARIO LTD. CARRYING ON BUSINESS AS CHARLIE FITZWHISKEY’S TAP AND EATERY,
AND SAMI R. AKIKI,
2041642
ONTARIO INC. CARRYING ON BUSINESS AS JAY’S SPORTS BAR AND GRILL,
AND OMER AHMAD ABDULLAH AND
MONEER KEWANKIS,
1545937 ONTARIO INC.
CARRYING ON BUSINESS AS THE HONEST LAWYER
RESTAURANTAINMENT, AND SHELLEY
SANDWELL AND GREGORY PETER
THOMAS SANDWELL,
1677195 ONTARIO INC.
CARRYING ON BUSINESS AS CHE BURRITO & LOUNGE,
SCOTT MCDONALD AND ROBERT KURUC,
1541104 ONTARIO LIMITED CARRYING ON
BUSINESS AS BOOMERS SPORTS BAR
AND RANIA MISHEAL
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Defendants
(Ontario)
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and
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0750278 BC LTD. CARRYING ON
BUSINESS AS CHARLIE HAMILTON’S
AND TEJINDER BANSAL
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Defendants
(British Columbia)
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and
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SHOOTERS SPORTS INCORPORATED CARRYING
ON BUSINESS AS SHOOTERS
RESTAURANT & LOUNGE, AND SUSAN
SANGSTER
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Defendants
(Nova Scotia)
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and
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ROCKY’S SPORTS BAR INC. CARRYING ON
BUSINESS AS ROCKY’S LOUNGE,
AND SAVERIO ROCCA AND JACQUELINE ROCCA,
AQUARIUS LTD. CARRYING ON BUSINESS AS
AQUARIUS PUB,
AND F. ANDREW SIMPSON,
DON MATT ENTERPRISES LIMITED CARRYING
ON BUSINESS AS THE
BUCCANEERS PUB, AND PATRICK MICHAEL
VALARDO
AND BRIAN NEVELLE VALARDO,
JOSEPH PETERS CARRYING ON BUSINESS AS
KA-BOOM’S RESTAURANT LOUNGE,
624834 N.B. INC. CARRYING ON BUSINESS
AS KA-BOOM’S RESTAURANT LOUNGE,
AND SUSAN PORTER-EADLE
AND,
F. EUGENE O’CONNOR CARRYING ON BUSINESS AS GROVE
LOUNGE
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Defendants
(New Brunswick)
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REASONS FOR ORDER AND
ORDER
[1]
This motion, brought by the plaintiff, and heard in Toronto on
January 17, 2011, is for a finding of contempt against the defendants 1681736
Ontario Inc., carrying on business as Hoops Sports Bar & Grill, Kamal
Aranji Thamalar Subramaniam, 7550804 Canada Corp. carrying on business as Hoops
Bar & Grill, and Sinnathamby Vijayakumar (the Defendants).
[2]
The
plaintiff (Setanta), is an internationally recognized distributor of specialty
sports programming including soccer, rugby and cricket. It makes these
programs available to commercial establishments on a pay for view basis, as
well as through its own sports channel in Canada.
[3]
Setanta
has copyright and distribution licences and all associated intellectual
property rights to distribute Ultimate Fighting Championships (UFC) in Canada. It also
has the right to take proceedings in Canada to protect its
interests.
[4]
In
January 2009, Setanta commenced an action against the named defendants, 1681736
Ontario Ltd., carrying on business as Hoops Sports Bar & Grill and Kamal Aranji Thamalar
Subramaniam,
the director and officer of the corporation. It also obtained an interlocutory
injunction from Barnes J. on January 27, 2009, enjoining these defendants from
further exhibition of Setanta events.
[5]
On
December 15, 2009, Setanta obtained default judgment and a permanent injunction
from Harrington J.. A writ of seizure and sale was filed with the Sheriff of
the City of Toronto on January
13, 2010, and thereafter registered in the Registry Office, Land Titles
Division.
[6]
The
Defendants have been served with copies of the Court’s January 27, 2009 Order.
Knowledge of this Order and its terms have been acknowledged by counsel
purporting to act on behalf of the Defendants as well as by an individual
purporting to be manager of Hoops Sports Bar & Grill.
[7]
On
May 5, 2010, the plaintiff sought to enforce the Write of Seizure and Sale. The
Sheriff attended the Defendants’ premises and seized $3,010.00. A week later,
the plaintiff received calls from a party who said he was the new manager of
Hoops Sports Bar & Grill. Further attempts to enforce the January 27, 2009
Order were thwarted when, on August 16, 2010, the Sheriff advised the plaintiff
that he could not enforce the Order since the business operated by 16817636
Ontario Ltd. was now operated by 7550804 Canada Corp.
[8]
I
am satisfied that this purported conveyance was to avoid compliance with the
January 27, 2009 Order of the Court and defeat its effect. The conveyance
allegedly took place less than a week after the Sheriff’s first attendance at
the property. The address of the Directors and Officers of the purchaser is
nearly identical to that of the vendor and the business also continues to trade
as “Hoops Sports Bar & Grill”. Moreover, to accept that a bona fide
transaction occurred would require the Court to believe that a bona fide
purchase for value overlooked, or was prepared to overlook, the Writ of Seizure
and Sale issued and
registered against the vendor corporation.
[9]
In
this context, the plaintiff brings this motion for contempt. No defendants
appeared at this motion, nor at any prior hearing, although properly served
with notice in all instances.
[10]
The
Court heard via voice testimony that subsequent to the injunction Order of
Barnes J. the Defendants have, on at least three occasions, shown Setanta
product at Hoops Sports Bar & Grill. Employees and agents of Setanta
testified of their attendance on May 23, 2009, November 21, 2009 and March 21,
2010, at Hoops Sports Bar & Grill, wherein they viewed UFC Setanta
programming being displayed to customers.
[11]
The
Court heard from three witnesses; José Lacruz, Ken Pannuzio and Tim Jackson.
These witnesses testified that they attended Hoops Sports Bar & Grill on
various occasions subsequent to service of the subject Order of this Court and
observed Setanta programming being displayed to customers. In addition,
photographs of posters advertising that Hoops Sports Bar & Grill would be
showing Setanta programs were entered into evidence. The evidence before this
Court also clearly demonstrates unauthorized and unlawful exhibition of
Setanta’s programming having been displayed, at Hoops Sports Bar & Grill,
on upwards of 35 television screens to audiences ranging between 80-200 people.
[12]
I
am satisfied, beyond a reasonable doubt, on the basis of the oral testimony and
photographs received in evidence that the Defendants have breached the
injunction Order of Barnes J. in an open and flagrant manner, and that the
purported transfer of ownership to a new numbered company was effected to
thwart enforcement of that Order.
[13]
Although
the evidence required to prove contempt is equivalent to a criminal case, and
proof must be beyond a reasonable doubt, mens rea is not an element that
must be proven. It is not necessary to show that the defendant is
intentionally contumacious though contumacious conduct may be a mitigating
factor when it comes to penalty.
[14]
In
so far as the individual defendants are concerned, where a company is found in
contempt, aiding and abetting officers may be in contempt: Telus Mobility v
Telecommunications Workers Union 2002 FCT 656, [2002] FCJ No 872.
[15]
The
Court is satisfied, beyond a reasonable doubt, that the Defendants did,
subsequent to the January 27, 2009 Order of this Court, display, in clear
violation of the terms of that Order, Setanta programming.
[16]
The
Court is also satisfied that the Defendants attempted to avoid enforcement of
the Orders of this Court by purporting to convey the assets of 1681736 Ontario
Inc. to 7550804 Canada Corp. This purported transfer, which took place on May
12, 2010, one week after the attempt by the Sheriff to enforce the injunction
Order issued by Barnes J. Hoops Sports Bar & Grill continues to operate
under the same name and to conduct the same manner of business as under its
previous ownership. The address of the sole officer and director of 7550804
Canada Corp. is 63 Wandering Trail, Scarborough, Ontario, presumably a dwelling
adjacent to, or across from, 65 Wandering Trail, which is the listed address of
the directors of 1681736 Ontario Ltd. Based on these facts, the Court
concludes that this incorporation was not bona fide and was done for the
sole purpose of circumventing the Order of this Court and interfering with the
enforcement of such Order, by the Sheriff.
[17]
In
this case, given the deliberate and repeated violation by the Defendants of the
subject Order, and the aggravating factor of the fraudulent conveyance, an
appropriate penalty is $25,000.00 against each defendant corporation, and a
$10,000.00 fine for the individual defendants Kamal Aranji Thamalar
Subramaniam, and Sinnathamby Vijayakumar. Costs to the plaintiff are awarded
on a solicitor-client basis in the amount of $18,233.18, payable within 5 days
of the date of this Order.
ORDER
WHEREAS UPON
motion heard in Toronto on the 25th day of October, 2010, the
Honourable Mr. Justice Campbell ordered that the defendants 1681736 Ontario
Inc. carrying on business as HOOPS SPORTS BAR & GRILL and KAMAL ARANJI
THAMALAR SUBRAMANIAM attend before this Court on January 17, 2011 at 9:30 a. m.
at the general sittings in Toronto to hear proof of contempt made against them
by the Plaintiff (Setanta) that contrary to the Orders of the Honourable
Justice Barnes, dated January 27, 2009 and the Honourable Justice Harrington,
dated December 15, 2009, they and their officers, directors, employees,
agents, assigns, servants, or persons acting under their instructions, or
persons having knowledge did
knowingly breach these orders and decoded, decrypted or downloaded via the
Internet, for exhibition, viewing, or public showing and did publicly show
and exhibit Ultimate Fighting Championship (“UFC”) pay-per-view (PPV) events
in their commercial establishment without authorization from the Plaintiff and
also showed events exclusively made available by Setanta in Canada to
commercial establishments without the written authorization and consent of the
Plaintiff, and contrary to the terms of the order of the Honourable Justice
Barnes, dated January 27, 2009 failed to disclose the source, description and
means by which they were able to gain access to, show, exhibit or download via
the Internet any UFC PPV events, or any other matches or events licensed to or
broadcast by Setanta and the means used to intercept, decode, decrypt or
download via the Internet such events and to provide all such information,
including cable, or satellite receiver serial identification numbers, satellite
receiver card identification numbers, Universal Resource Locator (URL) address
as well as the Internet Service Provider (ISP) used to gain access to such
broadcasts, telecasts, or signal feed and to provide all such information to
the Plaintiff within five days of service of the order on 1681736 Ontario Inc.,
carrying on business as HOOPS SPORTS BAR AND GRILL and KAMAL ARANJI THAMALAR
SUBRAMANIAM as well as failed to preserve all records and information,
including on any devices related to the exhibitions of UFC PPV events used to
gain access to the Plaintiff’s proprietary events and failed to provide such
data to the Plaintiff’s legal representative in accordance with the Order of the Honourable
Justice Barnes, dated January 27, 2009; and acted in concert with 7550804
Canada Corp. and Sinnathamby Vijayakumar to interfere with the orderly
administration of justice, or to impair the authority or dignity of the Court
by their actions in conveying, assigning or otherwise transferring the assets
of the business operating as Hoops Sports Bar and Grill subsequent to the
issuance of the Writ of Seizure and Sale dated January 13, 2010 against 1681736
Ontario Inc. and KAMAL ARANJI THAMALAR SUBRAMANIAM in an attempt to avoid
enforcement of the processes of this court.
AND WHEREAS
UPON motion heard in Toronto on the 25th day of October, 2010, the
Honourable Mr. Justice Campbell ordered that the defendants 7550804 Canada
Corp., carrying on business as HOOPS SPORTS BAR & GRILL and SINNATHAMBY
VIJAYAKUMAR attend before this Court on January 17, 2011 at 9:30 a. m. at the
general sittings in Toronto to hear proof of contempt made against them by the Plaintiff
that as the
successors to the defendants 1681736 Ontario Inc. and KAMAL ARANJI THAMALAR
SUBRAMANIAM, carrying on business as HOOPS SPORTS BAR AND GRILL located at 4207
Keele Street, North York Ontario, and are also liable for the breaches of the
Orders of the Honourable Justice Barnes, dated January 27, 2009 and the
Honourable Justice Harrington, dated December 15, 2009 as alleged against
1681736 Ontario Inc. and KAMAL ARANJI THAMALAR SUBRAMANIAM and, that with
knowledge of the orders, 7550804 Canada Corp., carrying on business as
HOOPS SPORTS BAR & GRILL and SINNATHAMBY VIJAYAKUMAR, acted in concert with
1681736 Ontario Inc. and KAMAL ARANJI THAMALAR SUBRAMANIAM to disobey these
orders as set out above and to interfere with the orderly administration of
justice, or to impair the authority or dignity of the Court by their actions in
conveying, assigning or otherwise transferring the assets of the business
operating as Hoops Sports Bar and Grill subsequent to the issuance of the Writ
of Seizure and Sale dated January 13, 2010 in an attempt to avoid enforcement
of the processes of this court.
AND UPON a hearing taking place
on January 17, 2011 at the general settings in Toronto, wherein the Plaintiff
and its witnesses attended to provide proof of contempt against 1681736 Ontario Inc.
carrying on business HOOPS SPORTS BAR AND GRILL, KAMAL ARANJI THAMALAR
SUBRAMANIAM, 7550804 Canada Corp. and Sinnathamby Vijayakumar, no
appearing on behalf of these defendants despite their being served with the
order of the Honourable Justice Campbell dated October 28, 2010, in accordance
with the provisions of that Order.
AND UPON hearing the evidence
from the Plaintiff and its witnesses and the submissions of counsel for the
Plaintiff and upon a finding by this court by written reasons that the
Plaintiff has provided proof beyond a reasonable doubt that 1681736 Ontario Inc.
carrying on business HOOPS SPORTS BAR AND GRILL, KAMAL ARANJITH AMALAR
SUBRAMANIAM, 7550804 Canada Corp. and Sinnathamby Vijayakumar are guilty
of contempt and have breached the Orders of the Honourable Justice Barnes dated January
27, 2009 and the Honourable Justice Harrington dated December 15, 2009, as well
as having interfered with the orderly administration of justice, impaired the
authority and dignity of the Court by their actions in conveying, assigning or
otherwise transferring the assets of the business operating as Hoops Sports Bar
and Grill subsequent to the issuance of these orders and the Writ of Seizure
and Sale dated January 13, 2010 in an attempt to avoid enforcement of the
processes of this court.
THIS COURT ORDERS that:
1.
The
Plaintiff shall be and is hereby permitted to enforce the orders of this court
in this action, including any order for costs herein, as well as the judgment
of the Honourable Justice Harrington dated December 15, 2009 against all of the
assets of 7550804 Canada Corp. and Sinnathamby Vijayakumar and the Sheriff in
and for the Province of Ontario shall provide such assistance as may be
required to conduct such enforcement so as to satisfy the judgment and orders
of this court.
2.
In
the event that any of the assets 1681736 Ontario Inc. carrying on business as
HOOPS SPORTS BAR AND GRILL, KAMAL ARANJI THAMALAR SUBRAMANIAM, also known as
KAMALARANJITH SUBRAMANIAM, 7550804 Canada Corp. and Sinnathamby Vijayakumar, have been,
in any manner or form, transferred, conveyed, assigned, charged, encumbered, or
pledged, subsequent to the filing of the Writ of Seizure and Sale against 1681736 Ontario Inc.
carrying on business HOOPS SPORTS BAR AND GRILL, KAMAL ARANJI THAMALAR
SUBRAMANIAM
with the Sheriff for the City of Toronto on January 25th, 2010, any
such transfer, conveyance, assignment, charge, encumbrance, or pledge is of no
force or effect as against the Plaintiff and the Sheriff in and for the
Province of Ontario shall be permitted and is hereby directed to enforce the
Orders and Judgment of this court accordingly.
3.
In
the event that any legitimate arms length 3rd party may be affected by
paragraph 2 of this order, such party may apply to this court, on not less than
4 days notice to the Plaintiff, to seek directions.
4.
Leave
to issue a Writ of Sequestration shall be and is hereby granted permitting a
bailiff in and for the Province of Ontario to attend at the business premises
of the Defendants 1681736 Ontario Inc. and 7550804 Canada Corp., and in
accordance with paragraph 2 herein, against any party which as of the time of
enforcement purports to operate the business of Hoops Sports Bar and Grill
located at 4207 Keele Street, Toronto, Ontario, to seize any and all satellite
receiving equipment, computer terminals, cable boxes, televisions and
audio-video equipment including any related equipment used to exhibit or show
the Plaintiff’s proprietary events, which items may also be disposed of for the
purposes of satisfaction of the orders and judgment of this Court.
5.
1681736
Ontario Inc. carrying on business as HOOPS SPORTS BAR AND GRILL shall pay of
fine of $25,000.
6.
KAMAL
ARANJI THAMALAR SUBRAMANIAM, also known as KAMALARANJITH SUBRAMANIAM shall pay
a fine of $10,000.
7.
7550804
Canada Corp. shall pay a fine of $25,000.
8.
Sinnathamby
Vijayakumar shall pay a fine of $10,000.
9.
The
Plaintiff shall have its costs of the motions and hearing on a on a solicitor
and client basis fixed in the amount of $18,223.00, payable by the defendants
1681736 Ontario Inc. carrying on business as HOOPS SPORTS BAR AND GRILL, KAMAL
ARANJI THAMALAR SUBRAMANIAM, also known as KAMALARANJITH SUBRAMANIAM, 7550804
Canada Corp. and Sinnathamby Vijayakumar jointly and severally.
“Donald J. Rennie”
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