Court File and Parties

COURT FILE NO.: CV-23-00693056-0000 DATE: 20230214 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SATORI INTERRÉSEAUTAGE INC., Plaintiff – and – JOHN DOE, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Miranda Spence and Josh Suttner, for the Plaintiff

HEARD: February 8, 2023

Motion for Recovery of Property

[1] This motion is brought by the Plaintiff under Rule 44.01 of the Rules of Civil Procedure for the recovery of possession of personal property to which it is lawfully entitled. No one has appeared for the Defendant, although the relevant parties, as set out below, have now been identified and served with the motion materials prior to the hearing.

[2] The property in question – funds misappropriated from the Plaintiff’s bank account through cyber hacking – have been located, or partly located, with the help of the Canadian Imperial Bank of Commerce (“CIBC”) in identifying the accounts to which they were sent. There is already a Mareva injunction in place with respect to the accounts.

[3] By way of background, the Plaintiff is a computer networking company that purchased certain network security products from Arrow ECS Canada, Ltd. (“Arrow”). Arrow issued invoices to the Plaintiff in the total amount of $1,202,417.06 which were due to be paid on December 5, 2022. During the course of these transactions, the Plaintiff’s representative corresponded with Arrow’s representative and arranged for payment via email. Arrow’s representative used the email address “fcorbiere@arrow.com”.

[4] Someone, by means unknown to the Plaintiff, managed to intercept the email correspondence between the Plaintiff and Arrow using the email address fcorbiere@arrow.com and then redirecting responses to an alternate email address, yana.ubh@gmail.com. Using this latter address, the person then provided the Plaintiff with banking information for the payment of the outstanding Arrow invoices, directing payment to CIBC account number 1033107, transit number 00796-010 (the “CIBC Account”). The Plaintiff has since learned that the CIBC Account is controlled by 14140214 Canada Inc. (“141”) and Hamed Choubry-Ousseni (“Hamed”).

[5] On December 9, 2022, the Plaintiff transferred the sum of $1,202,417.06 to the CIBC Account, followed by a second transfer on January 5, 2023 of $25,926.39. Those funds were meant to be sent to Arrow but did not reach Arrow as they had been directed to the CIBC Account that Arrow does not control.

[6] On January 5, 2023, the Plaintiff received a call from the fraud department of its own bank, Desjardins, advising that the CIBC had flagged the funds sent by the Plaintiff as being part of a fraudulent transaction. Apparently, CIBC flagged the funds as fraudulent because the name of the intended recipient in the bank transfer did not match the name of the account holder for the CIBC Account.

[7] On January 18, 2023, the Plaintiff obtained a Court order freezing the CIBC Account. Plaintiff’s counsel had a copy of the Order served on CIBC. Upon receiving the Order and reviewing the matter, CIBC confirmed that the CIBC Account has been restrained.

[8] CIBC also advised the Plaintiff that the CIBC Account contains approximately $1,006,877.35, and that the corporate owner of the CIBC Account is 141 and that the principal of that company and the only individual with signing authority on the CIBC Account is Hamed. CIBC also advised that immediately after the funds were deposited into the CIBC Account, there was a withdrawal of $222,543.21 in the form of $20,000 in cash and bank drafts totaling $200,500.00 payable as follows:

December 12, 2022: $45,500 to Yves Paul Deschamps at TD Canada Trust December 12, 2022: $40,000 Hamed Salim Choubry-Ousseni at Scotia Bank December 12, 2022: $60,000 to Fay Kidd Salmon Arms at Savings and Credit Union December 12, 2022: $55,000 to Fay Kidd at Bank of Montreal (Institution #001)

[9] CIBC has advised the Plaintiff that it will require a court order before it returns the balance of the funds in the CIBC Account to the Plaintiff.

[10] Pursuant to Rule 44.01 , the Court can order the interim recovery of personal property, with or without security, where: (a) the property is readily identifiable, (b) the Plaintiff is the owner or lawfully entitled to the property, and (c) the property was unlawfully taken or detained by the other party. The record establishes that all three of these criteria have been satisfied.

[11] Prior to the funds sent by the Plaintiff being deposited into the CIBC Account, the account had a balance of $1,108.11. Hamed and 141 have since that deposit withdrawn more than $220,000 from the CIBC Account. The record establishes that all of the funds remaining in that account lawfully belong to the Plaintiff.

[12] There is no discernable reason for 141 and/or Hamed to retain the funds in the interim. The Plaintiff has established a strong prima facie case that the funds were sent to the CIBC Account as a result of a fraud perpetrated by 141 and Hamed.

[13] The Plaintiff shall have an Order that CIBC pay the entire balance of funds in the CIBC Account to the Plaintiff. It shall also have an Order that 141 and Hamed provide it with full disclosure and an accounting of the balance of funds sent to the CIBC Account by the Plaintiff.

[14] The Plaintiff shall have its costs of this motion as against 141 and Hamed. In its Costs Outline, Plaintiff’s counsel set out that the Plaintiff has incurred, on a partial indemnity scale, $14,665.47 in investigating the misappropriation of its funds and in bringing this motion. This is a reasonable amount given the nature of the fraud and the complexity of the task.

[15] Costs are discretionary under section 131 of the Courts of Justice Act. Under the circumstances, I see no reason not to award the Plaintiff the full amount that it seeks. Hamed and 141 shall pay the Plaintiff $14,665.47, inclusive of fees, disbursements, and HST.

[16] There will be an Order to go as submitted by the Plaintiff. This endorsement and the Order shall be served on CIBC. They shall also be served on 141 and Hamed at the registered office of 141.

Date: February 14, 2023 Morgan J.