Saggi v. Grillone, 2020 ONSC 6351

COURT FILE NO.: CV-19-627474

DATE: 20201020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MANDEEP SAGGI, NEELAM SAGGI, SUCHA SAGGI

Plaintiffs

– and –

SERGIO GRILLONE, GRILLONE LAW FIRM, GRILLONE BEKIARIS LLP, GEORGE BEKIARIS, 1894931 ONTARIO LIMITED, LISA ROBERTA GATTO

Defendants

COUNSEL:

Allan Rouben, for the Plaintiffs (appearing on both motions)

Jillian Van Allen, for the Defendants Sergio Grillone and the Grillone Law Firm (appearing on both motions)

William Gilmour, for the Defendant Lisa Roberta Gatto (appearing only at the January 14, 2020 hearing of the Mareva injunction motion)

The defendant 1894931 Ontario Limited having been noted in default

No one appearing for the other defendants

HEARD: Motion for Mareva injunction heard January 14, 2020 and Motion for Leave to introduce Fresh Evidence heard October 1, 2020

KIMMEL J.

REASONS FOR DECISION (Plaintiffs’ motion for a mareva injunction and various other relief and for leave to introduce fresh evidence after that motion was argued)

Procedural History - Revisited

[1] There are two related matters that remain to be decided on the motions before me: (i) whether fresh evidence tendered by the plaintiffs contained in various affidavits sworn January 28, 2020, February 24, 2020 and August 6, 2020 (and, if so, the responding affidavit of Sergio Grillone sworn March 5, 2020) should be admitted and considered in connection with (ii) the motion for a Mareva injunction that I heard and took under reserve on January 14, 2020.

[2] As I have recounted in an earlier endorsement in this action,[^1] the defendant Sergio Grillone is a lawyer who previously practiced law through the Grillone Law Firm.[^2] Mr. Grillone ceased the practice of law and ceased carrying on the business of the Grillone Law Firm in September 2019, after having gone on medical leave in May 2019. His law practice was wound up under the supervision of the Law Society of Ontario (“LSO”) in the fall of 2019. Mr. Grillone was experiencing financial difficulties and health issues leading up to that. The specific circumstances of the cessation of his law practice are not directly relevant to the issues on this motion. The plaintiffs are among a number of creditors seeking to recover debts owing by Mr. Grillone and the Grillone Law Firm (the “Grillone defendants”).

[3] The plaintiffs commenced this action (by statement of claim issued September 25, 2019 (and amended October 1, 2019) for recovery of loan monies advanced (that are claimed to be due and owing and have not been repaid) under loan agreements with the Grillone Law Firm. The plaintiffs say their loans were advanced in 2018 and 2019 and that they are owed almost $1.9 million. It is alleged that the plaintiffs’ loan monies were unlawfully converted and knowingly received by some or all of the defendants for their own use and benefit. The plaintiffs claim damages in paragraph 1 of their Amended Statement of Claim not only for the principal and interest under their loan agreements, but also for conversion, knowing receipt and unjust enrichment. They seek, as part of the relief claimed, an accounting of all funds, assets and property received by the defendants from and to the detriment of the plaintiffs.

[4] Shortly after commencing this action, on September 30, 2019, the plaintiffs obtained an ex parte order for a certificate of pending litigation (“CPL”) against two properties: 140 Dickson Park Crescent, Mississauga, Ontario (the “Dickson Park Property”), the home of Mr. Grillone and his wife Ms. Gatto and their children, title to which was in the name of Ms. Gatto; and 5155 Spectrum Way, Unit 8, Mississauga Ontario (the “Spectrum Way Property”), owned by the defendant 1894931 Ontario Limited (“189”) a company in which Mr. Grillone was, until recently, an indirect 50% shareholder through another holding company (“239”, 2390215 Ontario Inc.). The Spectrum Way Property was the premises out of which Mr. Grillone carried on his law practice.

[5] The plaintiffs also seek in their Amended Statement of Claim an order for equitable tracing of their loan monies into the assets, property and interests of the defendants and an order or declaration that the plaintiffs possess equitable interests by way of a constructive or resulting trust over any real or personal property into which their loan monies can be traced, including the family residence owned by Lisa Gatto,[^3] and the Spectrum Way Property.

[6] The plaintiffs delivered a notice of motion dated October 23, 2019 seeking a Mareva injunction or freezing order over all of the assets and properties of the defendants (except George Bekiaris) and an order for production of all financial, banking, tax and law firm records and for disclosure of information about client files.

[7] The Mareva injunction motion was originally returnable November 28, 2019 but was adjourned and heard by me on January 14, 2020, at which time I reserved my decision. A short time afterwards, on January 28, 2020, the plaintiffs brought a motion to re-open the record on the Mareva injunction motion and for leave to file fresh evidence in support of that motion. I was asked to keep my decision on the Mareva injunction motion under reserve pending the determination of the fresh evidence motion. That fresh evidence motion was scheduled to be heard on April 16, 2020 but was suspended pursuant to the Notice to the Profession as a result of the COVID-19 pandemic. It was rescheduled and heard by me by videoconference on October 1, 2020.

[8] In the meantime, the defendant Lisa Gatto brought an urgent motion seeking a discharge of the CPL registered by the plaintiffs against the Dickson Park Property owned by her to permit the closing of the sale of that property that was scheduled for July 8, 2020. That motion was heard by me on June 26, 2020 and decided in reasons for decision released July 3, 2020. I granted the motion and discharged the CPL, without imposing the plaintiffs’ proposed conditions of a CPL being registered against the new home purchased by Ms. Gatto or the payment of any net sale proceeds into court.

[9] I found on the motion to discharge the CPL that no triable issue has been raised of a reasonable claim by the plaintiffs to an interest in the Dickson Park Property owned by Ms. Gatto (by constructive or resulting trust or otherwise). The plaintiffs have since advised that they are no longer seeking a Mareva injunction against Ms. Gatto.[^4] This is consistent with my finding on the CPL Discharge Motion, that the plaintiffs had not established a serious issue to be tried in respect of those claims, and the higher onus of a strong prima facie case that the plaintiffs would have to satisfy for a Mareva injunction.

[10] These reasons are in respect of the plaintiffs’ motion for a Mareva injunction, still sought as against the Grillone defendants, and the plaintiffs’ motion for leave to file fresh evidence in support of the Mareva injunction sought against the Grillone defendants.[^5]

[11] Another creditor of the Grillone defendants, Omega Process Servers, had filed a bankruptcy petition in respect of Sergio Grillone, which I was advised about during the course of the various attendances before me between January and August 2020. I asked at the October 1, 2020 hearing to be advised of the status of that bankruptcy proceeding. Counsel for Mr. Grillone undertook to do so. I was advised the following day that on October 2, 2020 Omega withdrew its application for bankruptcy in respect of Mr. Grillone, on consent.

Summary of Outcome

[12] The fresh evidence sought to be adduced by the plaintiffs all relates to their motion for a Mareva injunction against the Grillone defendants. To be granted leave for the fresh evidence to be received and considered, the plaintiffs are required to address two primary factors for my consideration, namely whether: (i) the proposed fresh evidence could have been adduced by the plaintiffs prior to the motion heard by me on January 14, 2020 using due diligence; and (ii) the proposed fresh evidence, when taken with the other evidence, is expected to have an effect on the result or outcome of the Mareva injunction motion, although it is ultimately in my discretion to decide whether to allow it to be introduced.

[13] Most of the “fresh” evidence (contained in affidavits of Mandeep Saggi sworn January 28 and August 6, 2020) relates to the arrangements concerning the prospective sale of the Spectrum Way Property by 189, Mr. Grillone’s involvement in those arrangements, his lack of disclosure about those arrangements and the purchase and sale agreement, and his conduct regarding the proceeds from the eventual sale of 239’s shares in 189. I find that leave should be granted for that evidence to be filed so that it can be considered by the court in deciding the motion for a Mareva injunction against the Grillone defendants.

[14] I also find that leave should be granted to the plaintiffs to introduce the “fresh” evidence that relates to the claims of other creditors, the involvement of those other creditors in the proceedings relating to the sale of 239’s shares in 189 between March and August 2020 (after the January 14, 2020 hearing date) and the eventual order for the payment into court of the share sale proceeds. This “fresh” evidence is found in the previously mentioned Mandeep Saggi affidavits as well as the affidavit of Marco De Luca sworn February 24, 2020.

[15] A Mareva injunction is a drastic order and is an exception to the common law’s rule against execution before judgment. The plaintiffs must meet a heavy onus to obtain this order. The fresh evidence that I am admitting enhances the evidentiary foundation and grounds for the plaintiffs’ belief that there the Grillone defendants have undisclosed assets and that there is a real risk of those assets being disposed of within the jurisdiction or otherwise dealt with so that the plaintiffs will be unable to satisfy a judgment if awarded in their favour. This is an important aspect of the test for the Mareva injunction and I am satisfied that the evidence either did not exist, or was not available to the plaintiffs using due diligence, prior to the January 14, 2020 hearing date; to the contrary, it was actively withheld by Mr. Grillone. Correspondingly, the responding “fresh” evidence of Mr. Grillone contained in his March 5, 2020 affidavit is also admitted and has been considered as well.

[16] Conversely, the “fresh” evidence that relates to other creditors’ claims asserted against the Grillone defendants before the January 14, 2020 hearing date does not meet the requirements for its introduction because it could have been discovered and adduced by the plaintiffs through due diligence and/or because it is not expected to have incrementally affected the result or outcome of the motion for a Mareva injunction beyond the evidence concerning those claims that was already in the record. Nor is there any other compelling reason for me to exercise my discretion to admit it. This “Excluded Fresh Evidence” is contained in paragraph 9 and Exhibit “L” of Mr Saggi’s January 28, 2020 affidavit and paragraphs 18 to 21, 29 and 30 of the affidavit of Marco De Luca sworn February 24, 2020 in a different proceeding involving 189 and its shareholders. Much of the pre-January 14, 2020 evidence relates to the claims by Omega leading to its subsequent bankruptcy petition, which has now been confirmed not to be proceeding in any event.

[17] Having considered the totality of the evidence, including the admitted “fresh” evidence, the plaintiffs’ motion for a Mareva injunction against the Grillone defendants is granted in part, with various ancillary relief detailed at the end of these reasons.

[18] The relief sought by the plaintiffs in respect of the client files of the Grillone Law Firm is not granted at this time. Mr. Grillone’s law practice was wound up under the supervision of the LSO and the transfer of his client files to other lawyers took place with the assistance of the Trustee Services of the LSO in the fall of 2019. The relief sought in respect of these files is more properly the subject of discovery in the course of the action, where issues such as relevance, privilege and third party interests can be properly and fully canvassed.

[19] The tracing and accounting orders requested by the plaintiffs are similarly not granted at this time. They are included as part of the ultimate relief sought in the Statement of Claim. The plaintiffs’ entitlement to that will have to be established before an order is granted to that effect.

The Fresh Evidence Motion

[20] The parties agree that, to be granted leave to file fresh evidence, the plaintiffs must address two general requirements, namely that:

a. the proposed fresh evidence could not have been adduced by the plaintiffs on the motion by due diligence; and

b. the proposed fresh evidence, when taken with the other evidence, can be expected to have affected the result.

See Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, 270 O.A.C. 98 (Gen. Div.); and Strugarova v. Air France (2010), 2009 40552 (ON SC), 82 C.P.C. (6th) 298 (Ont. S.C.), at paras. 4-7.

[21] There remains, however, a wide discretion of a trial or motions judge to reopen a hearing before entry of judgment to admit fresh evidence:

“…a diligence requirement is a salutary one and in most cases I would expect trial judges would scrutinize the circumstances of the discovery of the evidence with care being, as Macdonald J.A. suggests, guided but not bound by the rules applicable to appellate courts. But in the final analysis, it appears to me that the Clayton rule is appropriate [p. 441 D.L.R.]:

The prudent course is to permit the trial Judge to exercise untrammelled discretion relying upon trained experience to prevent abuse, the fundamental consideration being that a miscarriage of justice does not occur.

See Castlerigg Investments Inc. v. Lam (1991), 1991 7355 (ON SC), 2 O.R. (3d) 216 (Gen. Div.), at paras. 20-21, citing Clayton v. British American Securities Ltd. (1934), 1934 229 (BC CA), 49 B.C.R. 28, [1935] 1 D.L.R. 432 (C.A.).

[22] Roberts J. (as she then was) adopted a similar approach in Strugarova, stating at paras. 6-7 that: “the court still has discretion to re-open a motion to prevent a miscarriage of justice, which includes, but is not limited to, a fraud on or the deliberate misleading of the court, or to prevent an abuse of the court’s process…The court has a wider discretion to re-open a matter where the integrity of the process is at risk or a principle of justice is at stake that requires the reconsideration of the matter.”

[23] Consistent with this, many of the cases cited to me by the parties admitted the proposed fresh evidence without the court having been satisfied that the evidence could not have been obtained before the original hearing with due diligence.[^6]

[24] The Grillone defendants opposed at the time of scheduling the fresh evidence motion, and continue to oppose, the court’s receipt and consideration of the fresh evidence in connection with the determination of the fresh evidence motion. This position is not consistent with the cases nor does it allow the court to properly apply the test for its admission. The very essence of the second prong of the test requires me to consider the proposed fresh evidence and its probable impact on the decision on the Mareva injunction motion.

[25] The cases make it clear that it is the motion judge who is in the best position to make this assessment. On that basis, the proposed fresh evidence of the plaintiffs (contained in the Mandeep Saggi affidavits sworn January 28 and August 6, 2020 and the affidavit of Marco De Luca sworn February 24, 2020, as well as the provisionally filed responding evidence of the Grillone defendants in the March 5, 2020 affidavit of Mr. Grillone (which I was asked to review and consider if the plaintiffs’ fresh evidence was to be reviewed and considered)), have been considered in my analysis.

Fresh Evidence Relating to the Spectrum Way Property

[26] Most of the fresh evidence now sought to be introduced by the plaintiffs relates to the timing and arrangements for the sale of the Spectrum Way Property by 189 that pre-dated the Mareva injunction motion hearing but was only discovered by the plaintiffs afterwards, including subsequent court proceedings among the shareholders of 189 that eventually led to the termination of an agreement orchestrated by Mr. Grillone for the sale of the Spectrum Way Property, the sale of Mr Grillone’s indirect shareholdings in 189 and the payment of those share sale proceeds into court pursuant to the order of Koehnen J. dated August 12, 2020.

a) The Availability of the Fresh Evidence Relating to the Dealings with the Spectrum Way Property

[27] In the circumstances of this case, I am satisfied that the fresh evidence about the sale of the Spectrum Way Property, the dispute among the shareholders of 189 and the eventual sale of Mr. Grillone’s indirect interest in 189 and the Spectrum Way Property was not available to the plaintiffs with due diligence before the January 14, 2020 hearing.

[28] I do not accept the argument made on behalf of the Grillone defendants to the effect that the plaintiffs could have discovered with due diligence that the Spectrum Way Property had been sold if the plaintiffs had adjourned their Mareva injunction motion and cross-examined Mr. Grillone on a late-filed responding affidavit that he swore on January 8, 2020.[^7] It is suggested that the court should presume that Mr. Grillone would have been forthcoming with information about the sale of the Spectrum Way Property if the plaintiffs had elected to adjourn their motion to cross-examine Mr. Grillone again (after it had already been adjourned once to allow the Grillone defendants to move to set aside their noting in default).

[29] This suggested presumption is not supported, and is rather contradicted, by Mr. Grillone’s own evidence and conduct. When he was cross-examined on November 11, 2019 on an earlier affidavit he had filed in support of his wife’s opposition to the Mareva injunction, Mr. Grillone refused to answer all questions about his own assets and his other creditors on the grounds that the affidavit he was being cross-examined on was only to be considered in connection with the position of his wife Lisa Gatto. At the outset of the hearing on January 14, 2020 it was confirmed that Mr. Grillone would continue to refuse to answer questions about the assets and other creditors of the Grillone defendants if he was cross-examined on his January 8, 2020 affidavit because he took the position that the answers to those questions were part of what the plaintiffs were seeking to receive if successful on their motion for a Mareva injunction.

[30] Further, Mr. Grillone testified under oath, when he was cross-examined on November 11, 2019, that he was not a shareholder of 189, that he did not know what the intentions of the shareholders of 189 were with respect to the Spectrum Way Property and that the plaintiffs would have to talk to the shareholders to find that out. The fresh evidence discloses that this was untrue and that Mr. Grillone had been directly involved in listing the Spectrum Way Property for sale and in the negotiation and execution of an agreement of purchase and sale entered into by 189 that was signed on October 10, 2019 and amended on November 11, 2019, with an initial closing date of February 10, 2020 that was later extended. Mr. Grillone’s untruthful answers on cross-examination were never updated or corrected by him in his January 8, 2020 affidavit or otherwise.

[31] To suggest that the plaintiffs could have discovered that Mr. Grillone was not being truthful when he was cross-examined on November 11, 2019 by searching for MLS listings and shareholder records and cross-examining him for a second time, on his January 8, 2020 affidavit, is disingenuous — essentially the Grillone defendants are saying that due diligence required the plaintiffs to challenge Mr. Grillone and expose his lies. That is not a due diligence standard. The plaintiffs argue that due diligence was exercised by them in the circumstances and in the face of Mr. Grillone’s refusals and lies. I agree.

[32] Further, even if these dealings with the Spectrum Way Property could have been discovered by the plaintiffs with due diligence, this is the very type of evidence that the court should consider on a motion for a Mareva injunction, and I would exercise my discretion to do so. This fresh evidence pertains to dealings with Mr. Grillone’s indirect holdings and assets at material times that he appears to have been attempting to hide from the plaintiffs and the court, both before and after the January 14, 2020 hearing. This withholding of information cannot be condoned. The integrity of the court’s process is at risk and the Mareva injunction motion should be reconsidered with the benefit of the fresh evidence now available about the timing and non-disclosure of the sale of the Spectrum Way Property.

[33] So too should the evidence that did not exist at the time of the January 14, 2020 hearing, regarding the eventual sale of Mr. Grillone’s indirect interest in the Spectrum Way Property through the sale by 239 of its shares in 189.

b) The Potential Implications of the Fresh Evidence on the Outcome of the Motion for a Mareva Injunction Against the Grillone Defendants

[34] The fresh evidence about court proceedings that were commenced in or about February 2020 among the shareholders of 189 discloses that Mr. Grillone orchestrated the sale of the Spectrum Way Property for $1.97 million without the knowledge or consent of the other shareholder of 189. Eventually, in the context of that other proceeding, it was agreed that the sale of the Spectrum Way Property would be terminated and instead the other shareholder of 189 would purchase 239’s shares, having regard to the price that the third party purchaser had been willing to pay for the Spectrum Way Property, among other factors.

[35] After the sale of his shares was exposed, and despite having sworn in his March 5, 2020 affidavit in this proceeding that he “had instructed [his counsel] to pay the net proceeds into Court to await the determination of the various claims being made against [Mr. Grillone] personally”, Mr. Grillone later tried to resile from this undertaking by arguing that the sale proceeds (of $420,000.00) on the sale by 239 of its shares in 189 should not be paid into court (per Koehnen J., August 12, 2020 reasons, at paras. 9, 10, 20 and 21). Mr. Grillone also wrote in an email to counsel for the other shareholder of 189 on July 7, 2020 that “my creditors would not be entitled to notice of the affairs of 239”, when he was trying to convince counsel in that other proceeding to agree to a non-disclosure agreement and that the court need not be involved in the 189 share sale transaction.

[36] This fresh evidence exposes Mr. Grillone’s efforts to avoid the disclosure of both the sale of the Spectrum Way Property and the sale of his indirect interest in that property and to keep the proceeds away from his creditors, including not only the plaintiffs but other creditors who sought and were granted intervenor status on that other proceeding. It undermines his statement at paragraph 23 of his January 8, 2020 affidavit sworn in support of his opposition to the Mareva injunction, wherein he stated: “I am not nor have I ever been disposing of my assets to the defendant George Bekiaris and others for the purpose, intent and effect of putting my assets out of reach of the plaintiffs.”

[37] The fresh evidence also directly contradicts the statement made in the factum filed on behalf of the Grillone defendants on the Mareva injunction motion wherein it was stated, immediately after acknowledging that he owned shares in a company that, in turn, owned the Spectrum Way Property, under the heading “Risk of Disposition”: “As Sergio Grillone has no assets in the jurisdiction, there is no risk of dissipation.”

[38] The timing of the agreement of purchase and sale that Mr. Grillone negotiated for the sale of the Spectrum Way Property, shortly after the statement of claim in this action was served (October 11, 2019), when the Grillone defendants were facing mounting claims from other creditors, his non-disclosure of the agreement of purchase and sale when asked about the prospects of the sale of the Spectrum Way Property on his November 11, 2019 cross-examination, his refusal to disclose any information about the assets and other creditors of the Grillone defendants, and his later attempts to remove assets from the scrutiny and supervision of the court, all support an inference that Mr Grillone has been trying, and will continue to try, to take the assets of the Grillone defendants out of the reach of creditors such as the plaintiffs. This is one of the requirements for a Mareva injunction.

Fresh Evidence Relating to Claims by Other Creditors

[39] The “fresh” evidence contained in the affidavit of Marco De Luca sworn February 23, 2020 in the proceeding among the 189 shareholders contains more detailed information about some of the other creditors’ claims asserted in 2019, which I agree could have been discovered and presented to the court by the plaintiffs (comprising the Excluded Fresh Evidence). But I do not consider it necessary to have that additional detail about the other creditors’ claims to decide the Mareva injunction motion.

[40] There is some “fresh” evidence about a new action commenced by Bluecore Capital for fraud and misrepresentation (among other claims) by which it seeks to recover in excess of $1.5 million in monies advanced to the Grillone defendants under a disbursement funding cross-collateralized loan that could not have been discovered prior to January 14, 2020 since its issuance date is June 25, 2020. There is also some “fresh” evidence contained in Mr. Grillone’s March 5, 2020 affidavit about the claim by Bridgepoint (previously referenced in materials filed for the January 14, 2020 hearing). In that affidavit (which Mr. Grillone asks the court to consider in conjunction with the fresh evidence of the plaintiffs), Mr. Grillone himself acknowledges that a number of actions have been commenced against him personally by lenders claiming repayment of monies advanced to him which he says were used to finance his litigation practice.

[41] There was some evidence about claims by other creditors of the Grillone defendants before the court at the January 14, 2020 hearing. None of that is “fresh evidence”. The evidence that was before the court (as was contained in the original motion material) disclosed, on information and belief, in addition to the plaintiffs’ loans, that the Grillone defendants were facing claims in respect of outstanding loans from Bridgepoint Financial Services in the amount of $1.2 million, KVN Investments in excess of $2 million, and from the Bank of Nova Scotia and other secured creditors. This translates, together with the Bluecore Capital claims and the plaintiffs’ claims, to loan advances in excess of $5 million, all allegedly used by the Grillone defendants to finance disbursement and/or operating expenses of the Grillone Law Firm in 2018 and 2019.

[42] Mr. Grillone states in his January 8, 2020 affidavit that all of these funds were co-mingled and cannot be accounted for or traced to particular uses. That remains to be determined. Given Mr. Grillone’s previous untruthful statements under oath during his November 11, 2019 cross-examination, I am not prepared to accept what he says about the ability to trace the plaintiffs’ and other creditors’ loan monies at face value without further information that is not available to the court at this time.

[43] What is pertinent to the issues before me is that evidence about the numerosity and amounts of the totality of creditors’ claims that the Grillone defendants were facing in the same time frame in which Mr. Grillone was giving false evidence about the sale of the Spectrum Way Property and later trying to resile from his undertaking on this motion and avoid the payment into court of the proceeds of the sale of 239’s shares in 189. No fresh evidence from the plaintiffs that pre-dates the January 14, 2020 hearing date is needed to address these considerations. There is plenty of evidence already in the record, combined with fresh evidence that came into existence after that hearing date, to support these considerations.

The Mareva Injunction Motion

[44] The test that the plaintiffs must meet to obtain a Mareva injunction under s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, is also not controversial. An injunction may be granted if it appears to a judge of the court to be just and convenient to do so.

[45] There are five requirements that the plaintiffs must meet, in addition to establishing that they have a strong prima facie case on the merits of the action:

a. The plaintiffs must make full and frank disclosure of matters within their knowledge;

b. The plaintiffs must give particulars of the claims against the defendant(s), stating the grounds of the claims, the amount and the points that could be fairly made by the defendants;

c. The plaintiffs must have grounds for believing that the defendants have assets in the jurisdiction;

d. The plaintiffs must have grounds for believing that there is a real risk of the assets being removed from the jurisdiction or disposed of within the jurisdiction or otherwise dealt with so that the plaintiffs will be unable to satisfy a judgment if awarded in their favour; and

e. The plaintiffs must give an undertaking as to damages.

[46] The first two requirements are of greater significance in situations where a Mareva injunction is sought ex parte in the first instance. This Mareva injunction was sought on notice and the Grillone defendants have had a full opportunity to participate, to challenge the plaintiffs’ disclosure and to advance their own positions. I am satisfied that, to the extent relevant, these first two requirements have been met.

[47] I will deal first with the remaining Mareva injunction requirements out of order, dealing last with the third and fourth requirements which are the most contentious in this case. I will then deal with what remain of the more traditional requirements for an injunction.

The Plaintiffs’ Undertaking as to Damages

[48] With respect to the fifth requirement, the plaintiff Mandeep Saggi swore in his affidavit dated October 23, 2019 that: “The plaintiffs hereby undertake to abide by any order concerning damages that the Court may make if it ultimately appears that the granting of the order [for a Mareva injunction] has caused damage to the responding parties for which the plaintiffs ought to compensate the responding parties.” This is consistent with the wording of the required undertaking for an interlocutory injunction prescribed by Rule 40.03.

[49] The defendants argue that there should be a separate undertaking as to damages from each plaintiff. While I could be satisfied by this undertaking from Mandeep Saggi as having been given on behalf of all plaintiffs based on its wording and the evidence that confirms that it was Mandeep Saggi who was all along acting on behalf of the plaintiffs in connection with their loans to the Grillone defendants, nothing in particular turns on whether the Mareva injunction is granted at the behest of all plaintiffs or just the plaintiff Mandeep Saggi.

[50] To make things simple, I will treat the motion as having been brought by the plaintiff Mandeep Saggi. While the plaintiffs may still be referred to collectively hereinafter, the motions are considered to have been brought by the plaintiff Mandeep Saggi if that should ever become an important delineation. This will also avoid some of the other evidentiary concerns noted by the defendants about the lack of “proof” of the other plaintiffs’ loans when it comes to dealing with the merits of the plaintiffs’ claims. My decision to simplify the analysis in this way should not be considered as a dismissal of the motion by the other plaintiffs for cost or other purposes. Rather, it is a decision that leads to the most efficient, proportionate and direct outcome on this motion that has been unnecessarily layered by both sides with compounding issues and arguments.

Grounds for Believing that the Grillone Defendants Have Assets in the Jurisdiction

[51] With respect to this third requirement, the fresh evidence discloses that Mr. Grillone in particular has assets in the jurisdiction, namely at the time of the motion he held shares in 239, that, in turn, held 50% of the shares in 189 that, in turn, owns the Spectrum Way Property (sold to an arm’s length party for over $1.3 million in the fall of 2019 under an agreement that has since been terminated). The admitted fresh evidence discloses that 239’s shares in 189 were purchased for $420,000.00 and that the sale proceeds have been paid into court.

[52] The admitted fresh evidence also discloses that various creditors of Mr. Grillone claim to have security over those sale proceeds, and other unsecured creditors such as the plaintiffs maintain that they too have an interest in those sale proceeds. Those sale proceeds are nowhere close to enough to extinguish the debts of the Grillone defendants. Counsel for the Grillone defendants submitted that there is no evidence, one way or the other, that the Grillone defendants have assets in the jurisdiction, aside from these share sale proceeds that have been ordered to be paid into court. I disagree.

[53] While the onus is on the plaintiffs, the fact that Mr. Grillone withheld information about the prospective sale of the Spectrum Way Property when asked about it on cross-examination, his other conduct concerning the disclosure of the transactions relating to that property and his overall lack of transparency, his apparent efforts to avoid the court being made aware of the sale of 189 shares and to avoid the payment of the sale proceeds into court (contrary to his representation that those proceeds would be paid into court), and his statements that his creditors have no interest in the assets of 239, all lead to a strong inference that Mr. Grillone is attempting to avoid disclosure about his assets, and that he may have other assets that have yet to be disclosed and/or that he has other indirect holdings that he considers to be beyond the reach of the creditors of the Grillone defendants.

[54] Mr. Grillone has steadfastly refused to provide any other information about the assets of the Grillone defendants that might rebut that inference. He did admit on his November 11, 2019 cross-examination that he drew monies out of the Grillone Law Firm from time to time to make up the monthly shortfall for his family’s living expenses which were deposited into a joint bank account with his wife, but he was unable to advise how much he took in draws and refused to produce any bank or accounting records that might have confirmed this.

[55] The original evidence on the Mareva injunction motion, supplemented by the admitted fresh evidence about other creditors, discloses that there were significant funds (in excess of $5 million dollars) coming into the Grillone Law Firm from various sources, including the plaintiffs, all allegedly and according to Mr. Grillone intermingled in the firm’s general account and used to fund the law firm’s operating expenses and disbursements. Yet the source of the funds he deposited into his joint bank account with his wife remains unexplained; he has offered no information about draws that he may have taken from the Grillone Law Firm from time to time and what they were used for, beyond his evidence that some funds were drawn by him and used to make up the shortfall in his family’s monthly living expenses.

[56] Mr. Grillone’s refusal to provide any disclosure about his assets is a compounding consideration that supports the already strong inference that the Grillone defendants have other assets and holdings in the jurisdiction.

[57] At this stage, the suggestion by Mr. Grillone that the sale proceeds from the only identified asset, the 189 shares, are protected because they have been paid into court (despite his efforts to avoid that from happening) does not rebut the inference that has been properly drawn that Mr. Grillone may have other assets and holdings that are not being protected from dissipation. One of the purposes of a Mareva injunction is to assist the plaintiffs in identifying other such assets that may need to be protected.

[58] The fresh evidence has influenced the court’s decision as to the satisfaction of this requirement for a Mareva injunction as against Mr. Grillone.

[59] There is also evidence concerning the existence of assets of the Grillone Law Firm. Mr. Grillone admitted on his November 11, 2019 cross-examination that the Grillone Law Firm had entered into referral agreements with at least one other law firm (the Bekiaris Law Firm) and possibly others, that (according to the one identified and marked as an exhibit on the cross-examination) provide for a referral fee payable to the Grillone Law Firm, over and above repayment of the Grillone Law Firm’s reasonably incurred disbursements, upon the successful completion of a case. These referral fees, which reflect the “value” of clients whose files are taken over by other law firms, are an asset of the Grillone Law Firm.

Grounds for Believing that the Grillone Defendants Are Disposing of Assets

[60] With respect to this fourth requirement, the plaintiffs rely upon the decision of Strathy J. (as he then was) in Sibley & Associates LP v. Ross (2011), 2011 ONSC 2951, 106 O.R. (3d) 494, at para. 63 for the proposition that:

“[I]n cases of fraud, as in any case, the Mareva requirement that there be a risk of removal or dissipation [of assets] can be established by inference, as opposed to direct evidence, and that inference can arise from the circumstances of the fraud itself, taken in the context of all the surrounding circumstances”;

“It should be sufficient to show that all of the circumstances, including the circumstances of the fraud itself, demonstrate a serious risk that the defendant will attempt to dissipate assets or put them beyond the reach of the plaintiff”.

[61] This is a case of alleged misrepresentation and misappropriation of the plaintiffs’ loan monies. Much of the same evidence relied upon to satisfy the court that the defendants have assets in the jurisdiction also supports the inference, which the plaintiffs ask the court to draw in this case, that Mr. Grillone has and will continue to dissipate assets or attempt to put them beyond the reach of the plaintiffs and other creditors.

[62] I will not repeat it all again. In general terms, Mr. Grillone’s lack of disclosure, evasive answers to questions under oath and lack of transparency with respect to the sale of the Spectrum Way Property, his attempts to keep the proceeds of the sale of 239’s shares in 189 out of the reach of his creditors, combined with the timing of the efforts to sell that property when the legal proceedings by creditors against him, including by the plaintiffs, were mounting in the fall of 2019, all give rise to an inference of a serious risk that the Grillone defendants, under the direction of Mr. Grillone, will attempt to dissipate assets or put them beyond the reach of the plaintiffs and other creditors if left to their own devices. Mr. Grillone is the directing mind of the Grillone Law Firm so it is reasonable to assume that his conduct will be consistent with respect to the assets of both of the Grillone defendants.

[63] The fresh evidence has influenced the court’s decision as to the satisfaction of this requirement for a Mareva injunction as against the Grillone defendants.

Have the Plaintiffs Demonstrated that there is a Strong Prima Facie Case on the Merits

[64] The plaintiffs must demonstrate the merits of their case for this extraordinary injunction that effectively grants execution before judgment on the higher standard of a strong prima facie case. See Aetna Financial Services Ltd. v. Feigelman, 1985 55 (SCC), [1985] 1 SCR 2; and Falcon Motor Xpress Ltd. v. Grewal et al, 2019 ONSC 1529, 90 B.L.R. (5th) 323.

[65] On the primary claim, for repayment of the loan monies, there is a strong prima facie case that there are monies outstanding and owing. There is a dispute about the exact amounts that have been repaid, how the interest is being calculated, about the loan maturity dates and whether the loans are or were in default at the time of the January 14, 2020 hearing. There is also a dispute about whether the plaintiffs Neelam Saggi and Sucha Saggi signed their loan agreements.[^8] However, I have no doubt that there are monies owing under the relevant loan agreements, which Mr. Grillone does not deny.

[66] The contractual dispute and the alleged misrepresentations arise from disagreements between Mr. Saggi and Mr. Grillone about the permitted uses to which the loan monies could be put ­­— whether those uses were limited to disbursements on personal injury litigation files or if they were permitted to be used to pay the operating expenses of the Grillone Law Firm more generally. Mr. Saggi says the use of the loan monies was restricted to client file disbursements. Ms. Gatto testified that Mr. Grillone described the plaintiffs’ loans as disbursement loans. Mr. Grillone admits that they were used more broadly to pay operating expenses but contends that this was permitted.

[67] Beyond that, and more specifically relevant to the Mareva injunction, are the allegations in the statement of claim and statements by Mr. Saggi in his affidavit of his belief that the loan monies were used to fund Mr. Grillone’s and Ms. Gatto’s lifestyle and for their personal benefit.

[68] The Grillone defendants argue that the only two properties identified have been accounted for since the Mareva injunction motion was originally argued (Dickson Park, through my July 2020 decision granting the CPL Discharge Motion, and the proceeds of Mr. Grillone’s indirect interest in the Spectrum Way Property having been ordered paid into court by Koehnen J.’s decision in August 2020). They argue that, in light of these developments, the plaintiffs are not able to establish a strong prima facie case in respect of any specific assets into which there could be an equitable tracing or an order for a constructive trust. However, that is not the test that the plaintiffs have to meet for a Mareva injunction. Not all of the specific assets need to be identified at this time for the plaintiffs to demonstrate that they have a strong prima facie case, nor do the plaintiffs’ claims for misrepresentation and unjust enrichment have to be tied to specific assets.

[69] The evidence about the totality of the litigation loans[^9], both by the number of other creditors who ostensibly granted loans to fund the operating expenses of personal injury litigation practice of the Grillone defendants (all in and around the same time as the plaintiffs were providing similar loans) and the magnitude of all of those loans in the many millions of dollars, supports an inference that monies were being diverted or drawn out of the Grillone Law Firm by Mr. Grillone for other purposes. The Grillone defendants have put nothing forward to rebut this inference.

[70] The plaintiffs’ requests during examinations (on this motion and the CPL Discharge Motion) for information about and production of Mr. Grillone’s and the law firm’s banking records, have all been refused on the basis that they are part of the accounting and tracing orders that will only be granted if the plaintiffs succeed in their claims and/or on this motion and they should not be required to be produced before the court has ruled.

[71] While that may be a technically correct position, once an inference has been raised, the defendants take a risk by choosing not to help themselves through the provision of any affirmative evidence. Given Mr. Grillone’s shaken credibility regarding the evidence he gave under oath about the dealings with the Spectrum Way Property and eventual sale of shares in 189, Mr. Grillone’s bald statements in his affidavits on this motion to the effect that all of the plaintiffs’ loan monies were used to fund the operating expenses of the Grillone Law Firm do not carry much, if any, weight.

[72] I am satisfied that there is sufficient record before me to find that Mandeep Saggi has met the requirement of demonstrating a strong prima facie case in respect of the claims against the Grillone Law Firm and Mr. Grillone for misrepresentation, misappropriation of the plaintiffs’ loan monies and unjust enrichment to satisfy this aspect of the test for a Mareva injunction.

[73] The counter-arguments advanced on behalf of the defendants that certain of the plaintiffs’ evidence should not be accepted because of defects in the commissioning of the exhibits to Mr. Saggi’s October 23, 2019 supporting affidavit (some of which, in any event, were identified and separately marked as exhibits on the cross-examination of Mr. Grillone, and others of which were attached to Mr. Grillone’s own affidavits filed on this motion), was argued and addressed by me in my reasons on the CPL Discharge Motion. I adopt and rely upon those reasons in reaching the same conclusion on this motion: the objections raised to the manner in which the exhibits to Mr. Saggi’s affidavit were commissioned are not grounds for me to refuse to admit and consider those exhibits in the circumstances of this case.

[74] Without rehashing this issue entirely, I concluded on that motion that I was not prepared to decide it on the basis that the exhibits appended to Mr. Saggi’s affidavit must be disregarded because they were not properly marked with the notary’s/commissioner’s stamp. This is ultimately a matter for the court’s discretion. See Gibb v. Pereira, 2017 ONSC 4762, at para. 28; Mansfield v. Ottawa, 2012 ONSC 5208, 37 C.P.C. (7th) 333, at para. 52, and Rules 1.04 and 2.01. In the exercise of my discretion, I was prepared to admit and consider the exhibits without notarial stamps on that earlier motion and I am prepared to do so as well on this motion, if I need to. However, as was the case on the CPL discharge motion, if I were to disregard these exhibits, it would not change the outcome of this motion, having regard to the other available evidence.

[75] There is a further request for information about the whereabouts of the files from Mr. Grillone’s law practice, over which a trust is asserted by the plaintiffs. In the latter regard, the Grillone defendants point out that the client files have already been dispersed to other lawyers as part of the winding up of the Grillone defendants’ law practice. They also point out that there may be privilege and other concerns associated with ordering the production of, or disclosure of the contents of, third party client files. I am not satisfied that a strong prima facie case has been made out for the plaintiffs’ entitlement to gain access to, or a trust over, the Grillone Law Firm client files.

Irreparable Harm and the Balance of Convenience

[76] Although little time was spent directly on these aspects of the injunction test by the parties in either their written or oral submissions, I would be remiss if I did not address them as they do form part of the requirements for any injunction and the plaintiffs have the onus to demonstrate both. See RJR — MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311.

[77] Given the nature of the allegations of misrepresentation and misappropriation of the loan monies, the conduct of the Grillone defendants, outlined previously in this endorsement, and my finding that the plaintiffs have formed a reasonable belief that there is a risk of the Grillone defendants’ assets being dissipated, I am satisfied that there is a risk of irreparable harm to the plaintiffs if the Grillone defendants render themselves “judgment proof”.

[78] No evidence of harm to the defendants was presented, but I am mindful of the obvious concern about execution before judgment and the inconvenience of such an extraordinary order being granted. However, I find that the balance of convenience favours the granting of certain aspects of the Mareva injunction that the plaintiffs seek and justifies the extraordinary relief sought on this motion by the plaintiffs prior to them having judgment on their claims against the Grillone defendants.

[79] Conversely, the balance of convenience does not favour granting the order requested by the plaintiffs in respect of the third party client files at this time, although the requests for production and information about them may be renewed as part of the discovery process. Accordingly, they will be excluded from any order made. However, I am going to order as part of the accounting of the worldwide assets of the Grillone defendants that they disclose the amounts of any reimbursement of disbursements or referral fees in respect of the transferred client files and maintain detailed records and the supporting documents in respect of same so that those can be readily accounted for in the future, if determined appropriate.

The Discovery and Production Orders

[80] I am not satisfied, at this time, that it would be appropriate to order production and disclosure in support of accounting and tracing of the plaintiffs’ loan monies. Those requests are more properly addressed in the normal course of the discovery or conduct of the action itself. I am not prepared to exercise my discretion to order advance discovery of this nature based on the record and submissions I have been given.

Disposition, Costs and Implementation

Final Disposition

[81] The following orders requested by the plaintiffs are granted:

a. An order granting leave to the plaintiff Mandeep Saggi to file the fresh evidence contained in the affidavits of Mandeep Saggi sworn January 28 and August 6, 2020 and the affidavit of Marco De Luca sworn February 24, 2020, except the specifically identified Excluded Fresh Evidence contained therein, and granting a corresponding order for leave to the Grillone defendants to file the fresh evidence contained in the affidavit of Sergio Grillone sworn March 5, 2020;

b. An order restraining Sergio Grillone and the Grillone Law Firm (the “Grillone defendants”) from transferring, alienating, encumbering, or otherwise dissipating their assets pending the disposition of the action herein and for ancillary orders, all as provided for in paragraphs 1(a) through (c) and 2 of the Commercial List Model Order for Mareva Injunctions;

c. An order directing the Grillone defendants to provide to the plaintiffs within 60 days of this order a sworn statement describing the nature, value and location of their worldwide assets, whether owned solely or jointly, and whether in their own names directly or indirectly through holding companies or agents or trustees or the like, as at October 30, 2019 and as of the date of this sworn statement; and

d. An order for disclosure by the Grillone defendants of the amount and fact of receipt of any referral fees or reimbursement of disbursements on client files received since May 2019 to date and going forward, directly or indirectly, whether in cash or in kind, from any other lawyer or law firm to whom the Grillone Law Firm client files were transferred without any requirement to disclose the specific source of those monies at this time, but the Grillone defendants are directed to keep detailed accounting records and all supporting documents relating to those receipts.

[82] The plaintiffs are ordered and directed to disclose to such other creditors of the Grillone defendants who may ask them any and all of the documentation and information that is provided by the Grillone defendants pursuant to the preceding paragraph of this endorsement and order. To the extent that secured creditors claim priority and security over any assets identified, this endorsement and order are not intended to in any way change or interfere with the rights of secured creditors.

[83] If the Grillone defendants determine that the provision of any of the information or documents ordered produced by them is likely to incriminate them, they may refuse to provide it, but it is recommended that they take legal advice before refusing to provide it. Wrongful refusal to provide the information and documents referred to is contempt of court and may render Sergio Grillone liable to be imprisoned and/or the Grillone defendants fined or subject to their assets being seized.

[84] Although not requested by them, should they determine it to be necessary, the Grillone defendants may apply for an order on at least seven (7) days’ notice to the plaintiffs specifying an amount of funds that they require to have available from those funds or assets that they disclose in their statement of worldwide assets, which are subject to the freezing order granted herein, to spend for ordinary living expenses and legal advice and representation.

[85] The plaintiffs’ request for an accounting of the use and disposition of the plaintiffs’ loan monies and for the production of banking and financial records, tax returns, general ledgers and credit card statements from the Grillone defendants is dismissed at this time, without prejudice to their right to renew this request in the normal course of their prosecution of this action having regard to the relief sought in their statement of claim.

[86] The plaintiffs’ request for disclosure of the number, identity and current location of the client files of the Grillone Law Firm is dismissed.

[87] The plaintiffs’ request for a Mareva injunction as against Lisa Gatto is noted to be withdrawn (with both sides reserving their position on costs). The plaintiffs’ request for a Mareva injunction as against 189 is also noted to be withdrawn, in light of the fresh evidence and payment into court of 239’s share sale proceeds. The plaintiffs’ requests for a Mareva injunction against the remaining defendants (Grillone Bekiaris LLP and George Bekiaris) was not pursued or responded to and is noted to have been withdrawn.

Costs

[88] The parties agreed to exchange cost outlines, which exchange was to occur shortly after the January 14, 2020 hearing and I assume that has occurred. At the hearing of the CPL Discharge Motion counsel for Ms. Gatto asked to be provided the opportunity to participate in any cost submissions following the court’s determination of the fresh evidence and the Mareva injunction motions. At the hearing of the fresh evidence motion, all participating parties indicated that they would like the opportunity to make written submissions on the costs of both fresh evidence and Mareva injunction motions with the benefit of this decision.

[89] Having regard to the mixed outcome of these motions and the procedural history, I encourage counsel to try to reach an agreement on costs. If an agreement on costs is reached, counsel are asked to advise the court of such by October 30, 2020. If counsel require more time to negotiate an agreement on costs, they may ask to extend the deadlines for their cost submissions.

[90] If no agreement on costs is reached, then each party may deliver to any adverse party and file with the court a brief written cost submission (of no more than 3 pages double spaced) together with their respective cost outlines for the various motions (there are three in total and the costs for each motion of each participating party should be separately indicated) on or before November 13, 2020 and each may deliver to each other and file with the court a brief written response to the other’s submission on costs (of no more than 1.5 pages double spaced) on or before November 20, 2020. All submissions are to be uploaded into the existing sync.com file and also sent by PDF to my assistant, linda.bunoza@ontario.ca.

[91] If the court has not received any cost submissions from the parties by November 13, 2020, or such later date as the parties may ask the initial and subsequent deadlines for submissions to be extended to and the court may permit, the issue of costs will be deemed to be settled without the necessity of any further ruling from the court.

Implementation

[92] Notwithstanding Rule 59.05, this decision and the orders and directions herein are effective from the date indicated below and are enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this endorsement may nonetheless submit a formal Order for original signing, entry and filing when the Court returns to regular operations.

Kimmel J.

Released: October 20, 2020

[^1]: Saggi v. Grillone, 2020 ONSC 4140, dated July 3, 2020 (the “CPL Discharge Motion”), discharging a Certificate of Pending Litigation that the plaintiffs’ had registered against the Dickson Park Property (as defined therein). [^2]: Counsel for the plaintiffs advised the court on October 1, 2020 that they have determined that the defendant they identified as Grillone Bekiaris LLP is not a legal entity. It was confirmed that no relief is being sought on the motions before me as against that “firm” or as against the defendant George Bekiaris. [^3]: The Dickson Park Property was sold in July 2020 after I ordered the unconditional discharge of the plaintiffs’ CPL registered against it. A new home was purchased. Although the CPL was discharged and the plaintiffs no longer seek a Mareva injunction against Ms. Gatto in respect of her assets, the claims for equitable tracing and constructive or resulting trust are still being pursued. There is no motion before me for the dismissal of the claims against Ms. Gatto for constructive trust or tracing of the plaintiffs’ loan monies. [^4]: There remains a dispute about the costs as between the plaintiffs and Ms. Gatto for the Mareva injunction motion briefed and argued before the motion to discharge the CPL against the Dickson Park Property arose, as well as for the motion to discharge the CPL. [^5]: The plaintiffs believe that the Spectrum Way Property is the only asset of 189. No one appeared for 189 on either motion. 189 has been noted in default. I was advised that the plaintiffs are in negotiations with counsel for 189 for that to be set aside so that it can deliver a statement of defence. In the meantime, the fresh evidence discussed later in these reasons discloses that the shares of 189 indirectly owned by Sergio Grillone through his holding company 239 were sold and the proceeds of that sale were paid into court pursuant to the order of Koehnen J., dated August 3, 2020. At the hearing of the fresh evidence motion, counsel for the plaintiffs agreed that they are no longer seeking a Mareva injunction against 189, in light of the fresh evidence. [^6]: The motion for fresh evidence in this case was argued before I had rendered a decision on the Mareva injunction motion. In these circumstances, I am aware of recent authority (not cited by the parties) for the proposition that the court can apply the criteria less stringently. See Brasseur v. York, 2019 ONSC 4043, at paras. 37-49. See also Paftali v Paftali (2020 ONSC 5325) for a more recent consideration of the test for fresh evidence. Both Brasseur and Paftali also reflect the more recent appellate authority that directs the court to consider in the exercise of its discretion concerning the admission of fresh evidence, beyond the two traditional requirements, other factors such as finality, the apparent cogency of the evidence, delay, fairness and prejudice. [^7]: I note that there was an objection by the plaintiffs at the original hearing on January 14, 2020 to the admission of this late filed January 8, 2020 affidavit of Sergio Grillone on behalf of the Grillone defendants. While the delivery of such should have been addressed by the Grillone defendants at the time of their motion to set aside their noting in default in December 2019, I nonetheless have admitted it. I address, later in these reasons, issues of Mr. Grillone’s credibility and the weight that his evidence (contained in this affidavit and elsewhere) is afforded, having regard to all of the evidence, including his earlier cross-examination on November 11, 2019 as well as the fresh evidence now admitted. [^8]: This is the evidentiary discrepancy that I referred to earlier in this endorsement and part of the reason why, for simplicity, I am treating the request for the Mareva injunction to be only made by the plaintiff Mandeep Saggi. [^9]: Accounting only for the ones that were part of the original record and not including the ones that have been identified in the fresh evidence of claims by creditors dating back to 2019 that I did not admit on the fresh evidence motion, the aggregate amount has been demonstrated to exceed $5 million.