Date: 19981210
Docket: T-1340-97
BETWEEN:
TELE-DIRECT (PUBLICATIONS) INC.
Plaintiff
AND:
CANADIAN BUSINESS ONLINE INC.
AND:
SHELDON KLIMCHUK
AND:
CANADIAN YELLOW PAGES ON THE INTERNET INC.
Defendants
Page: 2
REASONS FOR JUDGMENT
TEITELBAUM, J.
[1] On September 15th, 1998, after a number of days of hearing, I
found the defendants Canadian Business Online Inc., Canadian Yellow Pages on the Internet Inc., and Sheldon Klimchuk guilty of contempt of court, because I was more than satisfied, and beyond a reasonable doubt that the 3 defendants acted in a manner to disregard a number of orders of this Court enjoining the defendants from carrying on in using certain web pages on the internet.
[2] The evidence that was presented to me, and not contradicted by the defendants, because the defendants presented, no oral evidence, was that they purposely went out of their way to ensure that they would try to use the trademark of Tele-Direct in Canada in such a manner that they thought they could get away with it.
[3] I am more than satisfied that Mr. Klimchuk acted in such a manner as to purposely try to avoid any responsibility for illegally using plaintiff's trademark, that is the Walking Fingers, and the use of the Canadian Yellow Pages trademarks.
[4] I am satisfied that after the first injunction was issued, Mr. Klimchuk went about it in such a manner as to say: Well, I won't do it any more. I'll have my legal counsel do it. What, in effect, he did was to do everything to purposely avoid obeying orders of this Court.
[5] I am satisfied he did everything in such a manner as to show total disrespect for the orders of the Court, because he may have thought - and I am speculating here - that by resigning and having his wife do it, then she can get away with it, and if she didn't do it, he would have his legal counsel do it. The evidence was clear it was his counsel or attorney in the United States that took over for him, and I have no evidence that it wasn't so.
[6] How does one determine the penalty in such a case where there is purposeful disregard for the orders of this Court? The evidence that I have in the form of an affidavit of Louis Fleurent is that, up to November 27th, 1998, for approximately a little more than 2 months after my decision on the contempt issue, the web page still existed in the same manner as it existed before, and none of the defendants are here before me today to explain why, what happened.
[7] In that I have no evidence to tell me otherwise, I am satisfied it was Mr. Klimchuk or his nominees who were continuing to operate the web
pages. I am again going to speculate and assume that, as of November 27th, it was no longer on the internet, because they knew or might have known of the penalty hearing that is taking place today.
[8] I am satisfied that a fair and reasonable fine with regard to the 2 corporate defendants would be $25,000.00 each.
[9] I say $25,000.00, because I have no evidence that these corporations are - to use a slang word - flush with money, or that they are virtually bankrupt. I have no evidence at all about the financial situation of these 2 corporate defendants, but basing myself on an average of various cases where corporate defendants are fined, I think that a $25,000.00 fine for each of them is more than reasonable.
[10] With regard to the individual, Sheldon Klimchuk, I have absolutely no evidence as to his financial situation, but I do have evidence that Mr. Klimchuk purposely, intentionally attempted to circumvent the orders of this Court. And so, I am going to fine Mr. Sheldon Klimchuk, as suggested by the plaintiff, the sum of $10,000.00. I am going to grant Mr. Klimchuk 90 days from today's date to pay the fine, and in the event that he does not pay the said fine within 90 days, and in the event that Mr. Klimchuk does not satisfy me
with evidence that he is unable to pay this said fine - he must do so within the said delay to pay the said fine - he is to be imprisoned for a period of 30 days.
[11] With regard to the issue of costs, costs are to be paid to the plaintiff on a solicitor/client basis. I state that they should be paid on a solicitor/client basis - again, and I repeat myself - because I am more than satisfied that Mr. Klimchuk and the defendants, all guided by Mr. Klimchuk, purposely and intentionally tended to disobey the orders of this Court, either personally or indirectly through the use of prête-noms.
Max M. Teitelbaum
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1340-97
STYLE OF CAUSE: TELE-DIRECT (PUBLICATIONS) INC.
Plaintiff
AND:
CANADIAN BUSINESS ONLINE INC. ET AL
Defendants
PLACE OF HEARING: Montreal (Quebec)
DATE OF HEARING: December 10, 1998
REASONS FOR JUDGMENT OF TEITELBAUM J.
DATED: December 10, 1998
APPEARANCES:
Mr. Hughes Richard for the Plaintiff
Mr. Pierre-Paul Roy for the Defendant
Sheldon Klimchuk
SOLICITORS OF RECORD:
LÉGER ROBIC RICHARD
Montreal (Quebec) for the Plaintiff
STERNTHAL KATZNELSON
MONTIGNY for the Defendant
Montreal (Quebec) Sheldon Klimchuk