ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-425782
DATE: 20120606
BETWEEN:
ATTORNEY GENERAL OF ONTARIO Applicant – and – 2000 MERCEDES BENZ (VIN: WDBNG75J5YA092402); 2004 AUDI A8 (VIN: WAUML44E94N023997); 2004 BMW SEDAN (VIN: WBANB33584B111685) ; 1 5 COMMERCIAL MOVING TRUCKS; 4 BECKENRIDGE DRIVE, MARKHAM (PIN: 02962-0171 (LT)); (IN REM); AND SYED ALTAF HUSSAIN; ARIF ADNAN SYED; SYED AMIT MONWAR HUSSAIN; SYED TAMIM REJW HUSSAIN; VANESSA IRENE LONGHURST; CLYDE ALLEN MUFFTY; JIMMY ROLAND VEILLEUX; JOSEPH LIMA; SCOTT SLATER; SANJIDA SYED; 1715129 ONTARIO INC.; 1715130 ONTARIO INC.; and 1826626 ONTARIO LTD. Respondents
Melissa Mandel, for the Applicant/Responding Party
Arif Syed and Sanjida Syed, in person as self-represented
HEARD: May 17, 2012
B. P. O’marra j.
reasons for decision
this application
[1] Arif Adnan Syed and Sanjida Syed are husband and wife. Both are among the parties whose assets were subject to preservation orders under the Civil Remedies Act, 2001. They seek a variation of the order to free up assets for their use towards personal debts and living expenses. The Attorney General of Ontario opposes this variance.
background
[2] The Applicant Attorney General of Ontario seeks forfeiture under the CRA of various motor vehicles, real estate and bank accounts. Arif Syed was among the Respondents named in an Interim Order of Justice Himel dated May 11, 2011. A further Order dated June 8, 2011 was issued by Justice Strathy. This latter Order was made on notice and was unopposed by Arif Syed who was represented by counsel at the time. Both of these Orders include a term that prohibits the Respondent from engaging in a certain type of moving business.
[3] On December 19, 2011 Justice Grace granted an additional Preservation Order based on evidence that the Respondents were continuing to engage in the prohibited business through an entity incorporated by Sanjida Syed. In his Endorsement Justice Grace noted that it appeared that the existing Court orders “had not been respected”.
[4] On February 24, 2011 Justice Grace granted a motion to add parties to the Application, including Sanjida.
[5] The forfeiture hearing was originally scheduled to proceed in February of 2012. The Attorney General requested an adjournment which was not opposed by counsel for Adnan and Sanjida. The hearing is now set to proceed on November 1, 2012.
[6] Arif and Sanjida have two young children aged 4 and 2 years. The older child suffers from Autism disorder and requires constant supervision, therapy and social skills development.
[7] Mr. and Mrs. Syed claim they currently owe creditors over $100,000 and that the mortgage on their home matures on May 6, 2012. They also claim that their son’s behavioural therapist has not been paid for months and there is a risk he will be denied therapy.
the law
[8] Rule 59.06(2) provides that a Court may vary an order on the basis of facts arising or discovered after it was made.
Rule 59.06(2)(a) Rules of Practice .
[9] The Civil Remedies Act allows the Attorney General of Ontario to initiate proceedings in the Superior Court of Justice to preserve and forfeit proceeds and instruments of unlawful activity.
Civil Remedies Act , 2001 S.O. 2001 ss 3 and 15.6.
Chatterjee v. Ontario (Attorney General) 2009 SCC 19 , 2009 S.C.C. 19 at para. 21 .
[10] The Civil Remedies Act specifically provides for an application by a person who claims an interest in seized property for an order directing that reasonable legal expenses incurred by the person be paid out of the property.
Civil Remedies Act s. 5.
[11] There is no comparable section in the Civil Remedies Act for payment of living expenses or debts out of preserved property.
[12] The Civil Remedies Act reflects the legislative intent that property that is subject to an application under the Act be preserved until the forfeiture hearing so that the action or application is not rendered futile.
Civil Remedies Act ss. 4 and 9.
the facts
[13] The Syeds filed a joint affidavit sworn March 21, 2012 in support of their motion. They were both cross examined on their affidavits.
[14] In 2009 Arif paid a $132,000 down payment on 4 Beckenridge Drive, Markham. He stated these funds were from a sale of property in Bangladesh and that the property was a gift from his grandparents. He has no documentation for this source of funds.
[15] Arif continues to receive $15,000 to $17,000 a year from an investment in Bangladesh. He refused to provide any details of this investment. He indicated he has a “verbal agreement” with an individual and receives a “percentage out of it”.
[16] Sanjida owns a condominium in Bangladesh. She says it is valued at $53,000 and was purchased for her by her father. Despite a request she provided no documentation of this asset.
[17] Arif has two businesses, an auto repair shop and an auto sales business. He testified these earn income of $1,500 to $2,000 per month in the winter and $2,500 to $3,000 a month in the busy summer months.
[18] The Syeds receive over $900 per month in government benefits, including a child tax credit of $208 per month for their autistic child. That money comes to the Syeds by cheque.
[19] The Syeds travelled to Bangladesh for a month long trip in December of 2011. According to Arif, this trip was paid partly from his business and some “probably” on his credit card. He has provided no credit card statements to support this assertion.
[20] The Syeds purchased a 2004 BMW in July of 2011 for approximately $14,000. This was shortly after the initial Preservation Order. Arif claimed not to know where the money came from to purchase this vehicle. He also claimed the BMW was purchased by his wife for “personal reasons” because they needed a four door family vehicle.
[21] Arif then claims to have purchased the 2004 BMW from Sanjida before the December 19, 2011 Preservation Order was made. He was unsure whether he purchased it for $5,000 or $6,000. He had money from his auto repair business to make this purchase.
[22] As recently as October of 2011 Sanjida admits she spent $7,000 at an auction to purchase vehicles for her own business and as well as other property to resell.
[23] Arif testified that he advertises used cars on “Kijiji” and “Craigslist” in the Greater Toronto Area. He does not sell them locally but rather ships them overseas.
[24] The December 19, 2011 Order of Justice Grace granted preservation of, inter alia , a 2004 Black BMW that was registered to Sanjida’s numbered company. The vehicle was not turned over to the Director of Asset Management despite attempts to obtain the vehicle.
[25] Sanjida claimed that she did not know where the vehicle was. She subsequently advised by email that the vehicle had been sold to her husband and was then sold for scrap.
[26] Despite the fact that the BMW was subject to the Preservation Order, Arif sold the vehicle on March 23, 2012 for $1,800. He claims to have sold it as a “shell”, having removed the parts from the vehicle. He knew the vehicle was covered by the Preservation Order.
[27] The Syeds have tens of thousands of dollars of credit card debt. This is not “new” debt. They have lived on credit for many years.
analysis
[28] There is no provision in the Civil Remedies Act to permit an order for living expenses to be realized from preserved property.
[29] The living expenses and debts of the Syeds are not facts that have arisen or been discovered since the preservation orders were made.
[30] The Syeds have spent considerable sums on items other than living expenses. There is also evidence that existing Court orders have not be respected.
disposition
[31] The Application by Arif and Sanjida Syed is dismissed. I would encourage counsel for the Attorney General of Ontario to make efforts to have the forfeiture application be brought earlier than November 1, 2012 if possible.
[32] I will consider brief costs submissions to be submitted to Judicial Administration within 10 days of the release of these Reasons.
B. P. O’Marra J.
Released: June 6, 2012
COURT FILE NO.: CV-11-425782
DATE: 20120606
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ATTORNEY GENERAL OF ONTARIO Applicant – and – 2000 MERCEDES BENZ (VIN: WDBNG75J5YA092402); 2004 AUDI A8 (VIN: WAUML44E94N023997); 2004 BMW SEDAN (VIN: WBANB33584B111685) ; 1 5 COMMERCIAL MOVING TRUCKS; 4 BECKENRIDGE DRIVE, MARKHAM (PIN: 02962-0171 (LT)); (IN REM); AND SYED ALTAF HUSSAIN; ARIF ADNAN SYED; SYED AMIT MONWAR HUSSAIN; SYED TAMIM REJW HUSSAIN; VANESSA IRENE LONGHURST; CLYDE ALLEN MUFFTY; JIMMY ROLAND VEILLEUX; JOSEPH LIMA; SCOTT SLATER; SANJIDA SYED; 1715129 ONTARIO INC.; 1715130 ONTARIO INC.; and 1826626 ONTARIO LTD. Respondents
REASONS FOR DECISION
B. P. O’Marra J.
Released: June 6, 2012