NEWMARKET

COURT FILE NO.: CV-11-105816-00

DATE: 20151222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

OSCAR WONG

Plaintiff

– and –

JENNIFER LI, also known as JENNIFER HO, RAYMOND HO, also known as RAY HO, JASMINE YU, also known as JASMINE KIT MAN YU, also known as KIT MAN YU, also known as JASMINE SHUM, also known as JASMINE KIT MAN SHUM, GRACE LEE, also known as GRACE MAN CHEN LEE, also known as MAN CHEN LEE, also known as GRACE MAN CHEN CHAN, MAUREEN FRENCH, also known as MAUREEN THEOLA FRENCH, RAGAVAN THAMBY, and CARLTON STEWART, also known as CARL STEWART

Defendants

Mr. S. Bellissimo, for the Plaintiff

Mr. R. Macdonald, for the defendant, GRACE LEE also known as GRACE MAN CHEN LEE, also known as MAN CHEN LEE, also known as GRACE MAN CHEN CHAN

HEARD: December 17, 2015

REASONS FOR DECISION ON MOTION

R. MacKinnon, J.

[1] The Plaintiff seeks to continue the August 6, 2015 ex parte Mareva injunction of Sutherland J. The Defendant Grace Lee opposes and asks that it be dissolved.

[2] The injunction prohibited Grace Lee from transferring, encumbering or otherwise dealing with seven listed real estate properties without either the express written consent of the Plaintiff or leave of the court. Counsel for Ms. Lee argues that there is no evidence of dissipation of assets by his client, that the Plaintiff has not established a strong prima facie case, that the Plaintiff has not proceeded expeditiously with his claim, and that the balance of convenience favours dissolving the injunction.

[3] Mr. Wong’s Statement of Claim alleges that Grace Lee and her co-defendants were involved in both fraud and conspiracy. The Plaintiff is a lawyer who was disciplined by the Law Society of Upper Canada for negligent practice in real estate conveyancing. He commenced this action against the Defendants Li and Yu – alleging they caused his misconduct by breaching proper real estate conveyancing practices at his law office.

[4] Grace Lee is a real estate agent and investor who was involved in at least one of the eight pleaded transactions – the property at 38 Lee Centre Drive in Toronto. Mr. Wong alleges that she conspired with Li, Yu and others to facilitate a fraudulent and/or deceitful scheme which related, in part, to that property.

[5] His Statement of Claim was served on Grace Lee on September 30, 2011. It contained, at para. 23, detailed specific claims and assertions relating to her on the Lee Centre transaction. It pleaded fraud as a result of a conspiracy between her and her co-defendants. In her Statement of Defence, Ms. Lee pleaded a bare denial but provided no other specifics in responding to the fraud and conspiracy assertions against her.

[6] Affidavit evidence disclosed that, subsequent to the issuance of his claim, the Plaintiff became aware of allegations of Grace Lee’s similar activities related to other properties that pre-dated her involvement with the Lee Centre transaction. That evidence was before Sutherland J. when he granted the Mareva injunction.

[7] An Amended Reply to Ms. Lee’s defence was delivered in March 2013 in which Mr. Wong specifically pleaded a modus operandi to her scheming and planning which he asserted included her using other persons as puppets to purchase properties in their names when the assets were actually being purchased by her – either for herself or in trust for her relatives.

[8] After the granting of the Mareva injunction, the parties exchanged affidavits and eventually conducted cross-examinations. Again there was nothing In Ms. Lee’s affidavits that dealt directly with or specifically addressed the pleaded allegations of fraud and conspiracy against her.

[9] Counsel for Ms. Lee argues delay by Mr. Wong in bringing his injunction motion. He argues that the injunction was sought well after this action had been commenced. His argument does not succeed. There is affidavit evidence from Mr. Wong that, after his claim was issued, he monitored some of the movements in Grace Lee’s real estate holdings. He discovered that she sold five condominium units between February and October 2014. He swore he feared these five condo sales were not consistent with the normal pattern of her real estate dealings. From the time in 2011 when she was served with the Statement of Claim, the only properties she sold were these five condo units in 2014. Mr. Wong swore, and the record is clear, that in early 2015 she was ignoring communications from her counsel when he was trying to arrange for her for examinations for discovery. A court order permitting that counsel to be removed from record was granted in June of 2015. It was entirely reasonable for Mr. Wong to infer, as he did, that Ms. Lee was engaged in dissipating her assets, while dragging her feet in this litigation. Only after the Mareva injunction was served did she further retain counsel.

[10] Counsel for Ms. Lee argues that the Plaintiff was aware of seven other condominium units which she owned but had made no effort to sell. He urges that this contradicts the Plaintiff’s argument that Ms. Lee was, in 2015, trying to liquidate assets. He further argues that, in addition to those seven units, she purchased four other units in the eight-month period before the granting of the ex parte injunction. He argues this further undermines the allegation that she was in 2015 taking steps to judgment-proof herself. I disagree.

[11] Ms. Lee in her September 29, 2015 affidavit on this motion swore that, where she alleged she “purchased” (in her words) the four units – including taking over a July 29, 2008 purchase agreement from her sister – it was for the purpose of “off-setting” (in her words) her sale of the five condos that had worried the Plaintiff. However, in cross-examination on her affidavit on this motion, she acknowledged that she took over the 2008 Agreement of her sister because her sister had not been able to obtain a mortgage. She swore the purpose of the assignment was to try to save her sister’s deposit. In addition, the four units she claimed she had “purchased” in 2015 were in fact closings of Agreements of Purchase and Sale that she had signed long before she sold the five condos that caused concern for the Plaintiff. These are, to my mind, major inconsistencies which weigh against Ms. Lee’s general credibility. I find she did not purchase the four units in 2015 to off-set the sales of the five condos that had worried the plaintiff, as she alleges.

[12] I am required on this motion to consider all the evidence before Sutherland J. as now amplified before me. Her real estate selling activity in 2014 together with her failure in 2015 to timely focus herself on this litigation leads me objectively to infer in all of the circumstances that there existed and still exists a significant risk of removal or dissipation of her assets. There is no rational conclusion that can be drawn from the whole of this evidence.

[13] Ms. Lee argues lack of a strong prima facie case. Her counsel submits the case against her is so weak as to be frivolous. I disagree. I have carefully reviewed the allegations of fraud and conspiracy against her. There is nothing in her affidavits that deals directly with or addresses the specifics of the allegations of fraud and conspiracy levied against her. Objectively viewed from the perspective of a reasonable observer, fully informed, the Plaintiff has established a strong prima facie case on this record.

[14] Ms. Lee is a real estate investor. Her counsel argues that the Mareva injunction freezing seven specific holdings effectively stops her from earning a livelihood. He argues the balance of convenience favours that the injunction should now be dissolved. In her affidavits Ms. Lee provided no dates on which she entered into the Agreements of Purchase and Sale for the four units she says were “purchased” in 2015. She only provided copies of the Purchase Agreements once cross-examinations on her affidavit had been completed. She gave inconsistent testimony, as I have detailed. She failed to co-operate in the scheduling of questioning. She was at least part of the reason for the delay in scheduling examinations. I have already noted that she failed in her affidavits and in her pleadings to deal with the specific allegations of fraud/conspiracy against her.

[15] Mr. Wong’s claim was issued in 2011. The events leading to his fear of Ms. Lee’s dissipating her assets occurred in 2014 and 2015. Circumstances changed after his claim was issued which, objectively viewed, gave rise to his fear of her putting her assets beyond reach. I find there is a real risk her assets will be dissipated if the injunction is not kept in place. Mr. Wong has demonstrated a strong prima facie case.

[16] While I do not on this motion determine the eventual success or failure of the Plaintiff’s cause of action, I am fully satisfied that the necessary criteria detailed in Chitel v. Rothbart (1982) 1982 1956 (ON CA), O.J. No. 3540, and in other precedents, are satisfied. No material information known to Mr. Wong was omitted from his affidavits in support of the Mareva order. He made adequate and proper inquiries before moving to enjoin. The particulars of his claims were clearly stated against Ms. Lee. She has assets in the jurisdiction and there is demonstrated a real risk they will be dissipated.

[17] Accordingly, the motion of the Defendant Grace Lee is dismissed. The Mareva injunction of Sutherland J. of August 6, 2015 shall remain in full force and effect.

[18] If the parties cannot agree on the issue of costs of this motion they shall, within ten days of the release of these Reasons, deliver written submissions of no more than four pages, single spaced, together with a Bill of Costs. Responding submissions of no more than the same length shall be delivered within a further seven days. Reply materials shall be delivered, if at all, within five days thereafter. All costs materials shall be forwarded to me in care of my assistant at Barrie.

R. MacKinnon J.

Released: December 22, 2015