Court File and Parties

2020 ONSC 4412

Court File No.: CV-20-00639748-00CL Date: 20200720 Superior Court of Justice – Ontario (Commercial List)

Re: THRIVE CAPITAL MANAGEMENT LTD., THRIVE UPLANDS LTD., 2699010 ONTARIO INC. and 2699011 ONTARIO INC.

And:

NOBLE 1324 QUEEN INC., MICHAEL HYMAN, GIUSEPPE ANASTASIO, DAVID BOWEN, NOBLE DEVELOPMENTS CORPORATION, HAMPSHIRE AND ASSOCIATES INCORPORATED, LISA SUSAN ANASTASIO, RAJEREE ETWAROO and CON-STRADA CONSTRUCTION GROUP INC.

Before: Koehnen J.

Counsel: Brian N. Radnoff, Nathan I. Lean, Joshua Suttner for the plaintiffs Michael Donsky and Alexander Evangelista for the defendants Michael Hyman and Hampshire and Associates Inc. Justin Necpal for the defendant to Giuseppe Anastasio

Heard: July 13, 2020

Endorsement

[1] The plaintiffs seek orders to compel the sale of a property as part of an interim injunction and to compel disclosure of documents from a non-party. The defendants object to the sale of the property but do not object to the non-party disclosure order.

[2] As concerns the sale of the property, the fundamental choice is between the sale proposed by the plaintiffs for a price of $12,000,000 and the sale proposed by the defendant for a price of $15,000,000. The plaintiffs do not have any confidence that the proposed sale at $15,000,000 has any realistic chance of closing. They prefer their own $12,000,000 sale because it has a much higher chance of closing in a much shorter period of time. For the reasons set out below I agree with the plaintiffs and approve their proposed sale.

The Legal Test

[3] The test I choose to apply to my authorization for the sale of the property is the usual three part test for an interlocutory injunction. I say the test I choose to apply because the plaintiffs’ claim for relief is rooted in the oppression remedy. There is some debate about the extent to which interlocutory relief under the oppression remedy is subject to the three-part injunction test or is subject to a lower test. The plaintiffs rely on Le Maitre Limited v. Segeren, 2007 ONSC 18735, at paras 28-30 for the proposition that I have jurisdiction to grant interim relief under the oppression remedy even if the traditional test for injunctive relief is not met where the dictates of fairness make it appropriate to do so. I do not find it necessary to address that issue here because the plaintiffs have satisfied me that they meet the test for an interlocutory injunction.

[4] The one further potential issue involving the test for the relief sought is whether the first branch of the test requires the plaintiffs to prove that there is a serious issue to be tried or that they have a strong prima facie case. Although neither party raised this issue, there is law to support the application of the strong prima facie case test when dealing with a mandatory interlocutory injunction. Since the relief sought would deprive the defendants of their interest in the property and since the relief is sought as part of an interim injunction, it is appropriate to apply the more demanding strong prima facie case test than it would be to apply the serious issue to be tried test.

A. Strong Prima Facie Case

[5] The motion arises out of an investment by the plaintiffs, Thrive Capital Management Ltd. and Thrive Uplands Ltd. of $9,000,000 into 2699010 Ontario Inc. (“9010) and 2699011 Ontario Inc. (“9011”). The investment in 9010 was intended to fund the purchase of properties municipally known as 1324, 1328 and 1342 Queen St. West in Brampton, Ontario. The investment in 9011 was to fund the purchase of a property in Richmond Hill Ontario. This motion focuses on the Brampton property.

[6] The Brampton property was undeveloped land. The ultimate goal was to ready the land for development and construct approximately 37 houses on it that would in turn be sold.

[7] The fundamental arrangement between the parties is set out in a shareholders agreement for 9010 that the parties entered into on July 3, 2019. The gist of the shareholders agreement is that Thrive Capital would acquire 50% of the shares of 9010 and that the defendants Michael Hyman and Giuseppe Anastasio would receive the remaining 50%. Thrive was to acquire Class A preference shares that had a priority right of redemption. The redemption amount and any defaults under the 9010 shareholders agreement were secured by a pledge of Hyman’s and Anastasio’s shares in 9010.

[8] Once the property was acquired, the share pledge was to be replaced by a mortgage in favour of Thrive that would rank behind only a construction financing charge and a mortgage in favour of Tarion.

[9] In addition, the 9010 shareholders agreement contained three other significant protections in favour of Thrive:

(a) A Thrive nominee, Harjot Singh was to be a director of 9010; (b) Section 4.5 provided that all contracts, assignments, obligations and other instruments signed on behalf of the corporations were to be signed by Singh; and, (c) Section 5.1 provided that each shareholder would at all times furnish to the other correct information, accounts and statements concerning all transactions pertaining to 9010 and 9011.

[10] These protections were of material importance to Thrive. Thrive is an investment company. Its funds represent the investments of a large number of retail investors, primarily from the Sikh community in and around Brampton. Many have invested their life savings in Thrive.

[11] As matters transpired, the Brampton property was not acquired in the name of 9010 but was acquired by the defendant Noble 1324 Queen Inc., a Corporation wholly-owned by the defendants Michael Hyman, Giuseppe Anastasio and David Bowen. 9010 received no consideration for the assignment of the agreement of purchase and sale to Noble 1324 even though Thrive contributed $4.5 million to the purchase and even though the deposit $2 million deposit for the purchase was funded by Thrive. In addition, after the Brampton property was purchased, it was subjected to a first mortgage in the principal amount of $8,700,000 and a vendor take back mortgage of $2,300,000. The agreement of purchase and sale for the Brampton property did not contemplate a vendor take back mortgage. Singh did not consent to either mortgage nor was he asked to sign either mortgage as required by the shareholders agreement for 9010.

[12] Thrive became concerned when it learned that the Brampton property was not purchased by 9010 because it defeated the fundamental expectations set out in paragraph 9 above. As Thrive drilled down further, it discovered that its funds were not used exclusively to fund the purchase of the Brampton and Richmond Hill properties but appear to have been used to pay Hyman, Anastasio and Bowen large sums of money.

[13] Oppression exists where a defendant has breached a complainant’s reasonable expectations in a manner that is oppressive or unfairly prejudicial to the complainant or otherwise unfairly disregards the complainant’s interests: BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, at para 56.

[14] Whether a particular expectation is “reasonable” is determined by an objective and contextual analysis. Shareholders may reasonably expect directors to act honestly, in good faith and in the best interests of the corporation. Shareholders are also entitled to expect that other shareholders will abide by the provisions of shareholder agreements: BCE at para. 79.

[15] There is no doubt in my mind that the failure to abide by the safeguards referred to in paragraph nine above constitutes a strong prima facie case of oppression as does the diversion to the individual defendants of funds intended for investment in the Brampton property.

[16] The defendants’ explanations for their conduct are entirely unsatisfactory.

[17] As a preliminary point, counsel for Mr. Hyman notes that he was retained only on July 6, 2020 for hearing on July 13, 2020 as a result of which he only had the opportunity to address the issues at a relatively high level. Mr. Anastasio’s counsel was retained only on July 10, 2020.

[18] If Messrs. Hyman and Anastasio were late retaining counsel, that is a problem of their own making for which they should get no relief. They were previously represented by Mr. Terry Corsianos. Mr. Corsianos removed himself from the record because of an alleged conflict that arose between Mr. Bowen and Mr. Anastasio. The conflict is said to have arisen out of an asset statement of Mr. Anastasio’s that was delivered to Infinite Capital but was prepared by Mr. Bowen. Mr. Anastasio asserts that he had no knowledge of the asset statement and that it is incorrect. Mr. Anastasio claims to have become aware of the asset statement when Infinite Capital produced it on June 10, 2020. The defendants have therefore had since June 10 to retain new counsel. If they chose to wait until the last minute to do so, then that is a decision of which they will have to bear the burden. Moreover, any delay in retaining counsel is part of an overall pattern by Messrs. Hyman, Anastasio and Bowen to obstruct the advancement of this action and to ignore court orders. By way of example, although Mr. Anastasio was ordered to provide contact information for his former wife, he took the position that he would not do so and that all communication with her should be through him. Although Mr. Hyman was ordered to provide VIN numbers and the locations of certain vehicles, he refused to do so on the basis that he was appealing the orders even though the orders required leave to appeal, the period to apply for leave had expired and the orders were not stayed pending any motion for leave to appeal. Both ultimately complied after further court attendances.

[19] Nevertheless, to ensure that I am not disadvantaging Messrs. Hyman, Anastasio and Bowen because of their own tardiness in retaining counsel, I have gone back and reviewed the affidavit materials that they filed on other attendances to look for explanations in their defence even though neither of their defence counsel raised those issues on July 13.

[20] The primary explanation for Noble 1324 acquiring the Brampton property is found in Mr. Hyman’s affidavit of May 7, 2020. In paragraph 52 of that affidavit, Mr. Hyman states that Mr. Singh knew about the transfer to 1324 Noble and explained that the transfer arose because Mr. Singh did not want to sign a personal guarantee to the lender as Messrs. Hyman and Anastasio were being required to do. As a result, according to Mr. Hyman, he had to assign the contract to another company where Mr. Singh’s name and “thus personal guarantee would not be an issue.”

[21] As further proof of Mr. Singh’s alleged knowledge of the purchase by Noble 1324, Mr. Hyman refers to a re-line in an email that Mr. Singh allegedly sent to Mr. Hyman on January 21, 2020. The re-line states:

[22] Mr. Singh denies that he knew of the purchase by Noble 1324 before it occurred.

[23] I am not persuaded by Mr. Hyman’s explanation. Mr. Hyman’s evidence as a whole is marred by contradictions, obstruction and a general lack of credibility. His evidence on this issue is no different.

[24] The transfer of the purchase agreement for the Brampton property from 9010 to Noble 1324 first arose at the hearing on April 23, 2020. Although the hearing proceeded by video link by virtue of the Covid 19 pandemic, Mr. Hyman was present in his lawyer’s office throughout. During the course of that hearing, Mr. Corsianos explained, in Mr. Hyman’s presence, that it was necessary to assign the purchase of the Brampton property to a different entity because the defendants’ lender refused to provide financing to a numbered company. During the hearing I expressed incredulity at that explanation. I repeated that incredulity in my endorsement of April 24, 2020 where I stated:

“The defendants submit that it was necessary to assign the purchase of the two properties to a different entity because they could not obtain financing for a numbered company. That submission is not worthy of belief. The name of the Corporation makes no difference to its ability to obtain financing. In the highly unusual event that it did, the defendants could simply have changed the names of 9010 and 9011 to a name that they say would have been more acceptable to their lenders.”

[25] It was only after I expressed incredulity at Mr. Hyman’s first explanation for the purchase by Noble 1324 that he came up with a new version of events. Neither Mr. Hyman nor his counsel provided any reason for coming up with a new explanation in the affidavit of May 7 which differed from the explanation provided on April 23. If this were a one-off incident, one might be prepared to excuse it. Regrettably it is a consistent characteristic of Mr. Hyman’s conduct before me.

[26] Moreover, although Mr. Hyman refers to the re-line of the January email, he does not actually attach the email in question. The May 7 affidavit refers to the email being attached as exhibit “O” but the affidavit was never filed with the court in its entirety. Instead, the May 7 affidavit was attached as an exhibit to Mr. Hyman’s affidavit of May 17. When attaching the May 7 affidavit to his May 17 affidavit, he excluded the exhibits to the May 7 affidavit. Without the text of the email, and those surrounding it, I have no way of discerning whether the email is capable of demonstrating consent to have Noble 1324 purchase the property instead of having 9010 do so.

[27] The plaintiffs’ strong prima facie case of oppression is bolstered further by the history of the Mareva injunction. The injunction was issued on April 23. It was abundantly clear that the fundamental allegation on the injunction was fraud. Among the terms of the injunction were requirements that the defendants provide statements of assets and a full accounting. One might expect that defendants who have been accused of fraud but who have legitimate explanations for what they have done would move quickly to provide the court with a full explanation of their conduct. An explanation of that sort would resolve the Mareva injunction quickly in their favour. Instead, the defendants have ignored court orders to the point that I found them in contempt during a hearing on June 19, 2020 in respect of which reasons remain to be issued.

[28] The finding of contempt should not have come as any surprise. I had indicated in endorsements of May 19, June 1, and June 10 that the defendants were in material breach of the April 23 injunction order. I had had deferred requests for a finding of contempt on those earlier occasions to give the defendants an opportunity to comply. They did not.

[29] The nature of the defendants’ breaches of court orders goes to both the strength of the plaintiffs’ case for oppression and the overall lack of credibility and reliability that I ascribe to the defendants based on their conduct to date. Both the strength of the plaintiffs’ case for oppression and the defendants’ lack of credibility form part of my reason for preferring the plaintiffs’ sale of the Brampton property for $12,000,000 over the defendants’ sale for $15,000,000.

[30] By way of example, paragraph 5 of the April 23 order required the defendants to produce affidavits describing the nature, value and location of their assets. On the motion before me, Messrs. Hyman and Anastasio took the position they had complied with that requirement. They have not.

[31] In supposed compliance with the requirement, Mr. Hyman delivered an affidavit which stated under oath that his only assets were a bank account containing $17 and shares in 9010 and 9011 worth approximately $500.

[32] In his affidavit of May 7, 2020 Mr. Hyman described himself as having studied business management at the University of Southern California and the Wharton School of Business, having been a professional football player with both the CFL and the NFL, having worked at JP Morgan in New York City where he “was involved in multibillion-dollar transactions in investment banking and commercial finance” and having worked at Cushman Wakefield in the commercial property division. During the April 23 hearing, Mr. Hyman asked that he be able to use $40,000 per month of his assets to cover expenses. That request might lead one to expect that Mr. Hyman would have more than $517 to his name. Although I noted that incongruity in my endorsement of May 19, 2020, neither Mr. Hyman nor his counsel have ever explained it.

[33] On June 10, 2020 the plaintiffs received non-party production from Infinite Capital. Infinite Capital was to provide financing for the purchase of the Richmond Hill property. Among the documents Infinite Capital produced was an asset statement signed by Mr. Hyman which disclosed a net worth of over $15 million as of March 2020. Included among the assets are several luxury automobiles including a 2020 Rolls-Royce valued at $689,000 a 2019 Ferrari valued at $495,000 and a 2020 Lamborghini valued at $875,000. The only encumbrance against the automobiles was against the Ferrari in the amount of approximately $250,000. The others were said to be owned outright by Mr. Hyman. None of those automobiles appeared on the affidavit of assets Mr. Hyman submitted in response to the April 23 order. Although this discrepancy was also noted in my endorsement of June 10, 2020, Mr. Hyman has provided no explanation for it. On this motion he takes the position that the automobiles were leased. He provides no documentation to support that assertion and does not explain why they were described as unencumbered vehicles that he owned on the statement of assets provided to Infinite Capital.

[34] Moreover, the statement of assets he provided to Infinite Capital, was one of the documents he was obliged to produce in response to the April 23 court order. He failed to do so. The plaintiffs only acquired that document after they received non-party production from Infinite Capital. Mr. Hyman has provided no explanation for failing to produce the asset statement.

[35] Paragraph 7 of the April 23 order required the defendants to produce a “full accounting of all funds deposited, withdrawn or removed from” certain bank accounts “with backup and supporting documents and records.” The accounting was particularly sensitive because the records that the plaintiffs had obtained from the defendants’ bankers showed payments of over $2,600,000 from those bank accounts to Messrs. Hyman, Anastasio and Bowen. The accounting the defendants provided is perfunctory at best. It is simply a list of general payments with no backup documents to support them. Given that the core allegation against the defendants is that they took the plaintiffs’ money and dissipated it for their own personal use as opposed to investing it, and given that this allegation supported the Mareva injunction, one might expect the defendants to have tried to provide some sort of explanation. The best they have come up with is a series of invoices from them with descriptions like “for financial services” or for “financial obligations” without any further explanation.

[36] By way of further example, the plaintiffs had also invested money into the Richmond Hill property. The defendants assured the court that the purchase of that property would close. It did not close and the $2 million deposit that the plaintiffs funded was lost. The defendants explained the failure to close by claiming that the lender refused to fund after it became aware of the Mareva injunction. Documentation that the lender disclosed pursuant to a production order demonstrated that it was the defendants who told the lender that the defendants would not close. The defendants then directed the lender to write an email saying that the lender would not close. When the lender wrote an email that did not meet the defendants’ needs, the defendants’ gave the lender further direction on how to revise the email to meet the defendants’ requirements. That exchange of correspondence was also producible by the defendants under the April 23 order. The defendants failed to produce it and have provided no explanation for their failure to do so.

[37] In light of these discrepancies any statements by the defendants about their assets or financial transactions they propose must be taken with a degree of skepticism.

Irreparable Harm

[38] The plaintiffs concede that they are motivated by a desire to maximize recovery for their clients and that a sale for $15,000,000 would be preferable to a sale for $12,000,000 if the former were in fact achievable.

[39] The plaintiffs note that the individual defendants say they have guaranteed the mortgages on the Brampton property. Thus, any carrying costs that accrue on the property and which might result in a deficiency on the sale would result in claims against the defendants. Those claims would compete with the plaintiffs’ claims against the defendants. The plaintiffs note similarly that the carrying costs of the Brampton property are approximately $104,000 per month, that the mortgages are in default and that there is currently no way in which the monthly payments can be made.

[40] As a result, although the plaintiffs do not anticipate that the $12,000,000 sale will generated any cash to distribute to their clients, the sale will at least stem further losses that could lead to judgments against the defendants which would compete with the plaintiffs’ claims.

[41] Competing claims of that nature would constitute irreparable harm to the plaintiffs. The only protection against such harm is the immediate sale of the property.

Balance of Convenience

[42] What then is the balance of convenience between the defendants’ $15,000,000 sale of the plaintiffs’ $12,000,000 sale? In my view, the balance of convenience clearly favours the plaintiffs.

[43] The purchaser under the defendants’ sales agreement is Blue Star Construction. The fundamental problem with the Blue Star offer is that it is full of wide-open conditions that provide little comfort that the agreement will actually close on its terms.

[44] As a starting point, the agreement was irrevocable until July 10, 2020. As of July 13, 2020 there is no evidence that the agreement remains in place. Blue Star provided no evidence on the motion.

[45] Even if the Blue Star offer does remain in place, it is subject to the purchaser obtaining financing acceptable to it, in its sole discretion. There is no evidence of Blue Star’s ability to get such financing.

[46] The Blue Star offer is also subject to a satisfactory inspection of the property and an environmental assessment. Blue Star has, however, been involved in the property for some time. One of the proposals Mr. Hyman put to the court earlier was that he be permitted to develop the property with Blue Star’s assistance. The proposal was that that Blue Star would provide approximately $3,000,000 in development services but would not be paid until the project was actually monetized. Although Blue Star was at one point presented as a party prepared to devote millions of dollars in services without immediate payment, it does not appear to have done enough due diligence to satisfy itself about the ability of the project to be monetized and still requires an inspection and an environmental assessment.

[47] The Blue Star purchase is accompanied by a deposit of only $200,000; a relatively small amount for a purchase price of $15 million that is already replete with conditions.

[48] The agreement gives Blue Star 90 days to satisfy itself about conditions with a closing 30 days after that. In other words the closing would occur in four months from now.

[49] The proposal put forward by the plaintiffs is unconditional, would close by August 13 and no later than August 31 and is accompanied by a deposit of $500,000.

[50] The defendants object to the $12,000,000 price in the plaintiffs’ proposed offer. The defendants submit this is below fair market value.

[51] The plaintiffs, however, point to a valuation of the Brampton property as of October 3, 2019 which placed its value at $12.9 million. While the plaintiffs concede that their offer is below the $12.9 million valuation, they note that the valuation assumed that the property was ready for immediate development and would be subject to a 6 to 8 month sales process. The property is not ready for immediate development and has not been subject to a sales process. Both of these factors would tend to reduce the price that could be obtained on a relatively speedy sale. With carrying costs of approximately $104,000 per month, much of the difference between the plaintiffs’ offer and the valuation would be eaten up by the 6 to 8 months required to obtain the $12.9 million price.

[52] In addition, either mortgagee has the ability to institute power of sale proceedings at any time. Those proceedings would be result in additional charges above the ordinary carrying costs.

[53] Although Mr. Hyman asserts in his affidavit that the mortgagees support the defendants’ proposal, that is based on information and belief.

[54] The choice now is between the relative certainty of a $12 million sale in August or the hope of a $15 million sale down the road. Given the general unreliability of the defendants’ past statements to the court, their apparent willingness to take contradictory positions depending on the convenience of the moment and given their contempt and disrespect of court proceedings, I am not inclined to grant them the benefit of any doubt. If any party should bear the risk of the downside, it should be the defendants. They are entirely the authors of their own misfortune.

[55] I also note that Mr. Hyman seems to been content with the valuation of the property at $13 million because that was the valuation he used when obtaining financing for the purchase. He has introduced no updated valuation information to suggest that the true value is $15 million.

[56] The defendants submit that I have no jurisdiction to order the sale of the property on an interim injunction. There is, however, precedent for doing so. In Ben Medical Pharmacy Inc. v. 258816 Ontario Limited, 2017 ONSC 6129, the court ordered the sale of property on an interim injunction in circumstances materially less egregious than the ones before me: see paras. 19 – 23.

[57] The cases the defendants cite to support the proposition that the court has no authority to order a sale on an interim injunction do not actually speak to a lack of authority. Instead, they involve situations where plaintiffs were simply unable to make out a test for an injunction on the facts: Leung v. Ho, 2005 ONSC 34595; Kim v. Kim, 2019 ONSC 4563; Carter v. Henry, 2019 ONSC 3518; and [Business Development Bank of Canada v. 683032 Ontario Inc., 1999 CarswellOnt 4120 (ONSC)](Business Development Bank of Canada v. 683032 Ontario Inc., 1999 CarswellOnt 4120 (ONSC)).

[58] As a result of the foregoing I indicated on July 13, 2020 that I would approve the sale as requested by the plaintiffs. I have, however, delayed issuing the reasons for seven days because during the hearing I raised the possibility of a solution whereby the plaintiffs would be put in total control of the property and be allowed to develop it. There is little doubt that the complete development of the property, although time-consuming, would result in a better chance of the plaintiffs recovering their investment than would a sale and a lengthy lawsuit. The plaintiffs point out that they are not developers and do not have the skill set to manage the property to completion themselves. On July 13, Mr. Sherkin appeared on behalf of certain individual investors who had contributed money to Thrive. He asked for the opportunity to have seven days to explore and discuss that possibility with the plaintiffs.

[59] I have not heard anything back from either party and am therefore content to release these reasons and permit the sale that the plaintiffs request to proceed.

Non-Party Production

[60] The plaintiffs seek production of documents from the non-party Blue Star and its principal, Vince Iozzo. Neither Blue Star nor Mr. Iozzo appeared on the motion. The defendants take no position on the motion. It appears that the defendants have paid funds to Blue Star and Mr. Iozzo from the accounts with respect to which they were to provide the plaintiffs an accounting. The defendants have refused or failed to provide an accounting of those payments. The plaintiffs have requested the documents from Blue Star and Mr. Iozzo. Both have failed to respond to those requests.

[61] In determining whether to order production from a non-party, the court may consider a number of factors including:

(a) the importance of the document to the issues in the litigation; (b) whether production at the discovery stage as opposed to production at trial is necessary to avoid unfairness to the moving party; (c) whether the examination of the opposing party with respect to the issues to which the documents are relevant would be adequate to obtain the information in the document; (d) the availability of the document or its information from another source that is accessible to the moving party; and (e) the relationship of the non-party from whom production is sought to the litigation and the parties to the litigation: Tetefsky v. General Motors Corp., 2010 ONSC 1675, at paras 41-42, aff’d 2011 ONCA 246.

[62] Each of these factors favours the plaintiffs.

[63] The documentation is relevant to providing an understanding about the Brampton property. The production of documents is necessary at this stage and is required for the ultimate determination of the Mareva injunction and to determine whether Blue Star and Mr. Iozzo should be defendants. The plaintiffs have tried to secure production from the defendants through court orders but the defendants have failed to comply with those orders. Production of the information is not available from any other source. Blue Star and Mr. Iozzo are not complete strangers to the litigation. They have had involvement with the property and with the defendants. They have been proffered by the defendants as a party to purchase the property. To the extent that Blue Star and Mr. Iozzo have a complaint about production, they have not advanced it before this court.

Conclusion

[64] As a result of the foregoing I grant the following orders in relation to the Brampton property:

(a) an order requiring the defendants to immediately transfer the Brampton Property from Noble 1324 to 9010; (b) an order approving the agreement of purchase and sale in favour of 2742416 Ontario Inc.; (c) an order that the plaintiffs may take all steps necessary to complete the sale of the Brampton Property to 2742416 Ontario Inc., including retaining counsel; (d) an order that the proceeds of sale arising from the sale of the Brampton Property be applied upon closing in the following priority: (i) to pay the TriLend Mortgage; (ii) to pay the VTB Mortgage; (iii) to pay all outstanding realty taxes on the Brampton Property; (iv) to pay any real estate commissions and other sale costs, including legal fees, in respect of the sale; and, (v) to pay all remaining proceeds of sale to Dickinson Wright LLP, in trust, to the credit of this action, which proceeds shall not be paid out without a further order of the Court;

[65] In addition, I grant the following orders requiring Blue Star and Iozzo to:

(a) produce to the parties all documents and records in their possession relating to 9010 and 9011, and, in particular, all documents and communications relating to funds received from 9010 and 9011 and/or work and/or services performed for 9010 and 9011 or in relation to the Brampton Property and Richmond Hill Property; (b) produce to the parties all communications and documents with the defendants, relating to 9010, 9011, the Brampton Property and the Richmond Hill Property; and, (c) produce to the parties all documents and communications relating to any funds received from 9010 and 9011, including all funds paid to them by the defendants from July 12, 2019, to the present, relating to 9010, 9011, the Brampton Property and the Richmond Hill Property with all backup, supporting documents and records, including but not limited to, copies of any cheques, bank drafts, wire details, e-transfers, bank account details, invoices and any agreements, communications, telephone records, correspondence or documents of any kind in relation to any payment from 9010 or 9011 or on their behalf.

[66] The parties will make written submissions with respect to costs.

Date: July 20, 2020 Koehnen J.