SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-10-4104-00
DATE: 20130207
RE:
CHARLES AMISSAH-OCRAN - and - GRABASC GROUP INC., CLAIRE GRAHAM, EARL GRAHAM, DESSARY NURSE, a.k.a. ANN NURSE, JULIAN NURSE, ROSALYN ELIZABETH BLAKE, a.k.a. ROZZ BLAKE, a.k.a. ROSALYN SUTHERLAND, a.k.a. ROZZ SUTHERLAND, a.k.a. ROZZ BLAKE SUTHERLAND, a.k.a. JANET BLAKE, a.k.a. JANET BLAKE SUTHERLAND, LLOYD SUTHERLAND, 2237367 ONTARIO INC., ROZZ ENTERTAINMENT COMPLEX, CAROL WALKER, LEO SINCLAIR, DALVIS LINDO, TANIKA BLAKE a.k.a. TANIKA SUTHERLAND-BLAKE, a.k.a. TANIKA SUTHERLAND, HERMAN VICKERS, JOHN DOE
BEFORE: Lemon J.
COUNSEL:
Charles Amissah-Ocran, the plaintiff on his own behalf
Mark Ross, for the defendants, Claire Graham, Earl Graham, Dessary Nurse, a.k.a. Ann Nurse and Julian Nurse
HEARD: January 3, 2013
E N D O R S E M E N T
The Defendants’ Motion
[1] The defendants Claire Graham, Earl Graham, Dessary Nurse and Julian Nurse move to set aside an order of Justice Van Melle dated November 5, 2010. That order, among other things, placed a Certificate of Pending Litigation on the defendants’ properties. In the alternative, they seek an order discharging some of the certificates or setting aside four particular paragraphs of the order.
Background
[2] The plaintiff was a lawyer practicing in Brampton. He has been under suspension by the Law Society of Upper Canada since December, 2010. The Law Society alleges that he has been guilty of professional misconduct for participating in or knowingly assisting fraud or dishonesty by persons associated wtih his practice.
[3] Mr. Amissah-Ocran commenced this action in November, 2010. He alleges that the defendant, Claire Graham, along with the other defendants, was responsible for the various fraudulent transactions for which he was suspended.
[4] At the time of Justice Van Melle’s order, he alleged as against the moving defendants that:
Claire Graham resides in Ontario. At all material times, Ms. Graham was a fiduciary of the Plaintiff whose services were retained to assist the Plaintiff complete real estate transactions. At all material times, Ms. Graham was and continues to be the operating mind of the Grabasc Group Inc. At materials times, Ms. Graham and the co-Defendant Ms. Blake maintained a close business and personal relationship.
Earl Graham resides in Ontario. Earl Graham is the spouse of Ms. Claire Graham. At all material times, Mr. Graham was a beneficiary of the fraudulent scheme more particularly described herein.
Ann Nurse resides in Ontario. Ms. Nurse is Ms. Claire Graham’s sister and a person who performed services for Grabasc Group Inc. under a contract for services. At all material times, Ms. Nurse owed the Plaintiff a duty of care and was a fiduciary.
Julian Nurse resides in Ontario. Mr. Nurse is Ms. Graham’s nephew and a person who performed services for Grabasc Group Inc. under a contract for services. At all material times, Mr. Nurse owed the Plaintiff a duty of care and was a fiduciary.
Between May 2010 and September 30, 2010 the co-Defendant Numbered Company received more that $600,000 of unauthorized payments from the Plaintiff’s trust account.
The Plaintiff pleads that the co-Defendants have each benefitted from the fraudulent scheme. Further, the Plaintiff pleads that each co-Defendant knew or ought to have known that the scheme they engineered and implement was a fraudulent scheme.
[5] A Statement of Claim has been issued and amended. It sets out the allegations in greater detail.
[6] On November 5, 2010, Justice Van Melle gave her order on an ex parte basis. That order stated, inter alia:
THIS COURT ORDERS THAT the Defendants Claire Graham, Ann Nurse, Grabasc Group Inc., Julian Nurse, Earl Graham forthwith deliver to counsel for the Plaintiffs all computers, or in the alternative, all materials currently located on any computer or any external device in any one or all of their possessions pertaining to the Plaintiff’s law practice and in particular the Plaintiff’s real estate practice.
THIS COURT ORDERS THAT a Certificate of Pending Litigation against the properties municipally and legally described as follows:
22 Inderheights Drive, Brampton, Ontario, the registered owner of which is Claire Graham and Earl Graham.
A real property situated at 5734 Mersey Street, Mississauga, Ontario, the registered owner of which are Claire Graham and Earl Graham.
A real property situated 530 Halberstadt Circle, Cambridge, Ontario and owned by Claire Graham and Dessary Nurse.
A real property situated at 435 Raymond Avenue, Orillia, Ontario and owned by Claire Graham and Earl Graham.
A property situated at 46 Red Willow Drive, Brampton owned by Lloyd Sutherland.
Rozz Entertainment Complex situated at 200 Advance Boulevard, in Brampton, Ontario, in which Rosalyn Blake has an interest.
A real property situated at 2064 Fennell Drive, East Gwillembury, Ontario owned Claire Graham and Alex Grub.
A real property situated at 36 Evalene Court in Brampton, Ontario and owned by Dessary Nurse and Michael Nurse.
A real property situated at 156 Royal Salisbury Drive in Brampton, Ontario in which Julian Nurse has an interest.
THIS COURT ORDERS THAT the Defendants jointly and severally, their employees, agents, assigns, officers, directors, and anyone else acting on their behalf, or in conjunction with any of them, and any and all persons with notice of this Order be restrained from disposing, removing dissipating, alienating, or similarly dealing with any assets wherever situate, all funds, monies or other liquid assets from any account owned or operated by any one or more of them, or operated with any other third party not enjoined to this action.
THIS COURT ORDERS THAT any bank or financial institution at which any of the Defendant currently hold and or operate an account be prevented from releasing to any of the Defendants any money or liquid assets in ay such account.
THIS COURT ORDERS THAT that each of the Defendants disclose each and every corporate entity world-wide in which they each claim an interest or in which they function as an Officer or director.
[7] These defendants seek, as an alternative, to set aside paragraphs 3, 5, 8 and 11.
[8] The moving parties make much of the fact that Justice Van Melle’s order did not require the plaintiff to file an undertaking as to damages and did not provide that the order not exceed ten days. The moving party however fails to note paragraphs 13 and 14 of Justice Van Melle’s order which read:
THIS COURT ORDERS THAT this Order and the materials used to obtain it be served on each Defendant forthwith.
The balance of this motion is adjourned to Wednesday, November 10, 2010 at 10:00 a.m.
[9] By December 16, 2010 Ms. Graham had retained counsel and he consented to an order by Corbett J. setting out a timetable as follows:
THIS COURT ORDERS THAT the Defendants’ and Added Defendants’ responding materials shall be delivered by January 17, 2011;
THIS COURT ORDERS THAT any cross-examinations shall be conducted the week of January 24, 2011;
THIS COURT ORDERS THAT the motion shall proceed for an estimated half day on February 7, 2011 at 10:00 a.m. before the Honourable Justice Corbett.
THIS COURT ORDERS THAT the Defendants may bring a motion to discharge any CPL’s on their property on February 7, 2011; if so, Counsels shall agree on a schedule for exchanging materials on the CPL motion, failing which they shall seek directions from this Court by teleconference.
[10] This record is silent as to whether or not the defendants brought a motion to discharge the CPL’s in 2011.
[11] It is common ground that materials were exchanged and cross-examinations were conducted in January or February of 2011. However, on the eve of a further motion by the plaintiff in March, 2011, the plaintiff abandoned that motion. It is also common ground that nothing has happened in the action since then. That is to say, neither party has moved forward with either their rights or their obligations.
[12] Each of the defendants plead:
I would have liked to have brought this motion earlier, but there was a flurry of activity after the order was obtained relating to the Norwich order and the appointment of a receiver which then died down completely. I incurred substantial legal fees in disputing the motion and I could not afford to risk bringing a motion earlier.
[13] The Grahams plead that they need the CPL and freezing order lifted so that they can go forward with a consumer proposal. The Nurses plead that they would like the CPL lifted from title in order to allow them to resume ordinary financial dealings.
Analysis
[14] Pursuant to s. 103 of the Courts of Justice Act, R.S.O. 1990, Ch. c. 43, “a plaintiff may obtain a certificate of pending litigation in a proceeding, in which an interest in land is in question”. The plaintiff alleges fraud arising out of a fraudulent real estate scheme, but the action is only a claim for damages in the amount of $10 million dollars. There is no claim for an interest in any of the lands owned by these defendants. Accordingly, I grant the request for an order discharging the certificates of pending litigation against the properties municipally known as 22 Inderheights Drive, 5734 Mersey Street, Mississauga, Ontario, 530 Halberstadt Circle, Cambridge, Ontario; 435 Raymond Avenue, Orillia, Ontario; 2064 Fennell Drive, East Gwillembury, Ontario; 36 Evalene Court, Brampton, Ontario and 156 Royal Salisbury Drive in Brampton, Ontario.
[15] I have concerns as to whether the plaintiff has prosecuted the proceeding with reasonable diligence. However, given the state of the litigation as outlined in Justice Corbett’s order, it appears that neither side has moved forward with their rights and obligations. Van Melle J.’s order required that the matter come back to court within 5 days. This record is silent as to what occurred on that date. The record is silent as to what steps, if any, the defendants took to deal with the time line and lack of undertaking back in 2011.
[16] Paragraphs 5, 8 and 11 of the order do seem unusual. However those orders have been made and not appealed. I do not have the details of any responding materials or cross-examinations. Ms. Graham deposes that, “I filed materials in connection with the portion of the motion dealing with the Norwich order and the appointment of a receiver. I recall being cross-examined sometime in January or February, 2011. I also recall that my lawyer cross-examined Charles during the same time frame.” The other defendants simply adopt and confirm her affidavit. Without the details of that information, I cannot be sure whether there is further evidence in response to this order or whether it relates only to the new motion. Without that, I am not prepared to set aside the balance of the order simply because of the passage of time.
[17] The Statement of Claim, while broadly drafted, does make allegations against these four defendants and I am not persuaded that I should set aside Justice Van Melle’s order in its entirety simply because the matter has sat for two years with the acquiescence of all parties. None of the other defendants have moved against the order and it would be inappropriate for me to set aside the order in its entirety.
[18] On the materials before me, it is not clear whether the defendants have complied with paragraph 3 of the order. If they have, there is no need to set it aside. If they have not, it should have been complied with back in 2011 when the proceedings stalled and should certainly now be adhered to properly. There is no basis to set it aside on the materials before me.
Plaintiff’s Motion
[19] In response to the defendants’ motion, the plaintiff brought a motion for:
A. An Order permitting the continuation of this action against Claire Graham and the other defendants, despite any Bankruptcy filed;
B. An Order declaring that any judgment obtained against the Defendants survive bankruptcy judgment
C. An Order granting the Plaintiff summary judgment against the Defendants Claire Graham, Rosalyn Blake, Lloyd Sutherland
D. In the alternative, an Order dismissing the Defendant Claire Graham’s motion in its entirety;
E. In the further alternative, an Order requiring the Defendant Claire Graham to pay into court the entire proceeds from any refinance.
[20] Mr. Amissah-Ocran acknowledged that he did not have a factum with respect to the summary judgment motion and accordingly asked that his motion be adjourned sine die.
[21] I am not certain if the cross-motion was served on the other defendants. None of those defendants appeared for this motion. For that reason, as well, the plaintiff’s motion is adjourned sine die.
[22] In light of my ruling, the request for Ms. Graham to pay into court the entire proceeds from any refinancing is dismissed.
[23] The action has been lying dormant for too long. The parties shall agree on a timeline for the orderly prosecution of the action and production of any outstanding information. They shall provide that timeline to me for my order within the next 30 days. If they cannot agree on such a timetable, all parties shall appear before me to make submissions on how best to move the matter along. A day may be chosen at the convenience of all parties through the trial office.
[24] Mr. Amissah-Ocran shall forthwith serve a copy of this endorsement upon the defendants other than the moving parties.
[25] If the parties cannot agree upon costs, written submissions of no more than three pages, not including any offers to settle or bills of costs, may be provided within 30 days. The defendants shall provide their submissions within 20 days and the plaintiff shall respond within ten days thereafter.
Lemon J.
DATE: February 7, 2013
COURT FILE NO.: CV-10-4104-00
DATE: 20130207
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHARLES AMISSAH-OCRAN - and - GRABASC GROUP INC., CLAIRE GRAHAM, EARL GRAHAM, DESSARY NURSE, a.k.a. ANN NURSE, JULIAN NURSE, ROSALYN ELIZABETH BLAKE, a.k.a. ROZZ BLAKE, a.k.a. ROSALYN SUTHERLAND, a.k.a. ROZZ SUTHERLAND, a.k.a. ROZZ BLAKE SUTHERLAND, a.k.a. JANET BLAKE, a.k.a. JANET BLAKE SUTHERLAND, LLOYD SUTHERLAND, 2237367 ONTARIO INC., ROZZ ENTERTAINMENT COMPLEX, CAROL WALKER, LEO SINCLAIR, DALVIS LINDO, TANIKA BLAKE a.k.a. TANIKA SUTHERLAND-BLAKE, a.k.a. TANIKA SUTHERLAND, HERMAN VICKERS, JOHN DOE
BEFORE: Lemon J.
COUNSEL:
Charles Amissah-Ocran, the plaintiff on his own behalf
Mark Ross, for the defendants, Claire Graham, Earl Graham, Dessary Nurse, a.k.a. Ann Nurse and Julian Nurse
ENDORSEMENT
Lemon J.
DATE: February 7, 2013