SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ATTORNEY GENERAL OF ONTARIO, Applicant

AND:

CONTENTS OF TD BANK ACCOUNT #1175-6485516, TD WATERHOUSE ACCOUNT #1253-7CXA35A, RBC GIC ACCOUNT #00160187727 0012 and RBC GIC ACCOUNT #00160187727 0013, Respondents

BEFORE: A.A. SANFILIPPO J.

COUNSEL: Jeffrey Costain, for the Applicant/ Moving Party William E. Pepall and Rebecca Shoom, for the responding parties Kaiwen Luan and Yanchun Lu (RBC GIC Accounts #00160187727 0012 and #00160187727 0013) Hue (Chung) Calvin Huong, for the responding parties Yuyu Han and Huimang Han (TD Bank Accounts #1175-6485516 and #1253-7CXA35A)

HEARD (By Videoconference): September 24, 2021

ENDORSEMENT

[1] The Attorney General of Ontario (“AG”), sought an order for the forfeiture of the contents of bank accounts named as Respondents, pursuant to sections 3 and 8 of the Civil Remedies Act, 2001 (“CRA”). For the reasons that follow, this Application could not proceed on September 24, 2021 and is rescheduled to November 25, 2021 for a one-day hearing in accordance with the timetable set out in this endorsement.

A. Procedural Background

[2] The AG issued its Notice of Application on January 20, 2021, for the forfeiture of the contents of the four bank accounts named as Respondents in this in rem proceeding. The responding parties Huiming Han and Yuyu Han are joint owners of TD Bank Account #1175-6485516, said to have a balance of approximately $3,000,000, and TD Waterhouse Account #1253-7CXA35A, said to have a balance of approximately $100,000 (collectively the “Han Respondents”). The responding parties Kaiwen (Kevin) Luan and Yanchun Lu are joint owners of RBC GIC Accounts #00160187727 0012 and #00160187727 0013, said to have a combined value of approximately $580,000 (collectively the “Luan Respondents”).

[3] On January 22, 2021, the AG brought a motion without notice for an interlocutory preservation order, on the basis of ss. 4 and 9 of the CRA. Myers J. granted an order preserving the contents of the four bank accounts for thirty days, directing that the motion be returned for hearing, with notice, by February 22, 2021. On February 22, 2021, the AG together with the Luan Respondents and the Han Respondents consented to an extension of the preservation order for a further period of thirty days. Myers J. granted this order, on consent, directing that the motion be returned for hearing on March 23, 2021.

[4] On March 17, 2021, the parties consented to a further extension of the preservation order. Vella J. granted this extension, on consent, scheduling the preservation motion to be heard as a long, contested motion on March 31, 2021. Pollak J. heard this motion on March 31, 2021, and on the basis of Reasons delivered on April 30, 2021 (Attorney General of Ontario v. REM, 2021 ONSC 3094), granted an order for preservation of the contents of the four accounts until the forfeiture application is heard (the “April 2021 Preservation Order”).[^1] The April 2021 Preservation Order also granted other relief in the preservation of the accounts and in requiring disclosure of further records pertaining to the issues raised by this Application.

[5] At a case conference conducted on June 17, 2021, Diamond J. ordered that the AG deliver any further Application materials by July 16, 2021 and scheduled a further case conference for July 30, 2021 to address the remining steps leading to a hearing date. On July 30, 2021, Diamond J. scheduled this Application for hearing on September 24, 2021.

B. The Application Record

[6] The Application Record uploaded by the AG to CaseLines for use by the Application Judge totaled 112,998 pages, consisting of 112,533 pages uploaded to the Applicant’s folder and 465 pages inadvertently uploaded to the Respondents’ folder. To visualize the size of this record, if the Applicant had physically brought this record to Court, in the process used pre-pandemic prior to the expansion of electronic document management for virtual hearings, now with CaseLines, the Applicant would have brought to a one-day hearing a record consisting of 198 3-inch binders.

[7] The Respondents uploaded 1,340 pages of responding material, raising the total page count uploaded by all parties to CaseLines for this Application to 114,338 pages.

[8] The 114,338 pages of material slowed down the operation of the CaseLines “search” tool, the “download” tool and the “find page” tool, and the ability of the CaseLines program to load documents for scrolling were all slower than usual. This is understandable and to be expected. It is just a function of sheer size of the data base.

[9] The first task on the Application was to identify the material in the CaseLines folder. The Applicant relies on the following evidence:

(a) The affidavit of Detective Constable Peter Jadczyk, sworn January 16, 2021 (doc# A27; page A63) (53 pages) (“Jadczyk Affidavit”). DC Jadczyk tendered 15 exhibits, of which 14 were uploaded: Exhibits “A” through “N” (doc# A-28 to A-41, inclusive). Exhibit “O” could not be located. These uploaded Exhibits comprised 2,072 pages, of which 1,915 were documents obtained from the Toronto-Dominion Bank and Royal Bank of Canada (Exhibits “F”, “I” and “M”).

(b) The affidavit of Constable Lucas Kortbeek, sworn July 12, 2021(document A43; page A2486) (14 pages) (“Kortbeek Affidavit”). Constable Kortbeek purported to tender 16 exhibits, lettered “A” to “P”. Unlike the Jadzcyk Affidavit, none of these exhibits were identifiable on the CaseLines folder. I will have more to say about this.

(c) The affidavit of Lori Blaskavitch, sworn July 15, 2021 (doc# A10891; page A111889) (3 pages) (“Blaskavitch Affidavit). Ms. Blaskavitch, a law clerk with the AG’s Crown Law Office, purported to tender three exhibits, as follows: Exhibit “A” (Doc# A10892; page A111892) – TD Bank records (36 pages); Exhibit “B” (Doc# A10893; page A111928) – RBC Bank records (14 pages); Exhibit “C” (Doc# A10894; page A111942) – single page coversheet – no contents. If the contents of Exhibit “C” are in the CaseLines folder they are not identifiable.

(d) Opinion of Dwayne King dated July 15, 2021 and Form 53 (Doc# A10963 and A10964; pages A112051 and A112052) (19 pages).

(e) Forensic Accounting Report of Caroline Dixon dated July 15, 2021 and Form 53 (Doc# A10963 and A10964; pages A112070 and A112071) (14 pages).

(f) Opinion of Jinjuan Shi dated July 16, 2021 and Form 53 (Doc #10967 and A10968; pages A112084 and A112085) (14 pages).[^2]

[10] These Applicant materials comprise a total of 2,082 pages. The endorsements and orders comprise 41 pages. The Amended Notice of Application is 15 pages; the Applicant’s factum is 170 pages (with schedules) and the Applicant’s compendium is 244 pages. This totals 2,552 pages of material. What then is contained in the other 110,436 pages of material uploaded by the Applicant to the CaseLines folder (112,988-2,552=110,436)? This question could not be answered – at least in the time available – because it would require scrolling through tens of thousands of pages of uncategorized documents. However, I observe that this material includes the following:

(a) The 16 exhibits to the Kortbeek Affidavit contain “document and data” collections obtained by the Calgary Police Services from non-party sources (the “Source Document Collections”). The affiant does not describe or itemize or even categorize the Source Document Collections but rather describes thousands of pages of documents only by the description: “document and data”. These Source Document Collections are not uploaded into CaseLines in single folder for each exhibit, as was done in relation to the Jadczyk Affidavit. Rather, they were uploaded into CaseLines indiscriminately, interspersed throughout the CaseLines bundle, without meaningful description, without identification as to which exhibit they form part of, and without any discernible organization. By a random spot audit, many of the documents are blank pages, corrupted video files and undifferentiated text or images with no apparent indication of their relevance to this Application.

(b) The Source Document Collection annexed as Exhibit “C” to the Blaskavitch Affidavit is similarly undescribed.

(c) There is duplication, in that many documents were found to have been uploaded twice.

[11] These 110,436 pages of material uploaded by the Applicant to the CaseLines folder were incapable of being used during the hearing in their current form, and by their sheer volume significantly increased the processing time for reference to properly filed documents in the CaseLines folder.

[12] The Responding Application materials uploaded by the Respondents were as follows:

(a) The Luan Respondents filed the following:

i. Responding Application Record (Doc# B-2-20, page B-2-277 (230 pages). The Luan Respondents also filed the content of this Responding Application separately, as two individual documents (Index at Doc# B-2-21, page B-2-507) and the supporting affidavit (Doc # B-2-22, page B-2-1). These are duplicates.

ii. Supplementary Responding Application Record (Doc# B-2-23, page B-2-559) (7 pages). The Luan Respondents also filed the content of this Supplementary Record separately (Doc# B-2-25, page B-2-566; and Doc# B-2-24, page B-2-226) These are duplicates.

(b) The Han Respondents filed a factum and compendium but did not file a Responding Application Record. They purported to rely on their Responding Motion Record that was filed on the March 31, 2021 motion before Justice Pollak for a preservation order. This Motion Record was not before the Court in this Application hearing. If the Han Respondents seek to rely on the evidence from their Motion Record, they must upload it for use on the hearing of the Application.

[13] The Luan Respondents filed a factum (Doc# B-2-27; page B-2-511) (48 pages, with schedules) and a compendium (B-2-26, page B-2-569) (325 pages). The Han Respondents filed a factum (Doc# B-1-31; page B-1-1141) (81 pages with schedules) and a compendium (Doc# B-1-21, page B-1-364) (2 pages, hyperlinked). The Respondents’ evidence and written submission, unduplicated, totaled 693 pages.

C. Electronic Documents in an Application Conducted Remotely

[14] The hearing of this Application could not proceed because of how the Applicant uploaded its documents to CaseLines. Materials uploaded as exhibits must be identified accordingly in the CaseLines folder. The uploading of inadequately described and unorganized material meant that the documents could not be accessed in any efficient manner. The document base was too large to allow for submissions to be made in an orderly manner, due to the time-out for documents to load. And, last, the factums and compendiums filed by the AG and the Luan Respondents were not hyperlinked to the documents.

[15] Rules 38.06, 38.09 and 39.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provide that the Notice of Application must be served on all respondents, and that the Notice of Application and all affidavit evidence in support must be filed with proof of service with the Court. The Applicant confirmed that it did so here, serving this voluminous Application Record and filing it with the Court with the use of a drop-box.

[16] In accordance with s. C.4.2 of the Notice to Profession –Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic, effective June 18, 2021 (“Notice to Profession”), “in addition to filing the documents through the Civil Submissions Online portal” all documents to be used in the hearing shall be uploaded to CaseLines. The purpose of this double-filing protocol – filing with the Civil Submissions Online portal for court filing and filing on CaseLines – was explained by Justice Myers in Mann v. Chac-Wai, 2020 ONSC 3428, at para. 7, referable at that time to the use of Sync.com as an electronic document platform. The two distinct filing processes fulfilled the two purposes of ensuring “that the court receives and stores all the proper material” and ensuring “that the judge receives material in a manner that is organized and user-friendly”. This latter objective is now accomplished using CaseLines.

[17] The Court has set out protocols that govern the use of documents on CaseLines:

(a) Counsel and self-represented parties are expected to refer the court to documents using the page numbering on CaseLines: Notice to Profession, s. C.4.3.

(b) Counsel and self-represented parties are expected to utilize hyperlinks for tabs in large documents: Notice to Profession, s. C.4.3.

(c) Affidavits of service should not be uploaded to CaseLines unless there is a dispute regarding service or they are otherwise required for use during the hearing: Notice to Profession, s. C.4.4.

(d) “For all long motions and applications, each of the parties shall also file and upload to CaseLines a “Compendium” containing only the brief portions of the cases and the brief portions of the evidence to which each party intends to refer during the hearing”: Notice to Profession, s. C.4.11.

[18] These requirements are all intended to enhance the efficiency of the hearing and the consideration of the issues raised. They are designed to eliminate or reduce time spent in scrolling through pages of pdf documents and to allow for focus on the precise evidence under analysis. These considerations are particularly prominent in hearings involving large document collections.

[19] And, of course, these technological developments in electronic document use do not supplant the tools available to parties to refine the matters in issue, including: the use of agreed statement of facts, including through requests to admit (Rule 51.02), to narrow the matters in issue and the resultant need for documentary proof; and, the use of case conferencing (Rule 50.13), to obtain procedural orders and directions on the assembly of the record.

D. Disposition - Steps Required to Advance this Application to Adjudication

[20] Considering the myriad issues affecting the document collection currently on the Application “bundle” in CaseLines for this Application, rendering it incapable of use in a hearing, the Motion Coordinator will open a new bundle for use at the hearing of this Application, named “Application – November 25”, and provide permissions to the lawyers for the parties. The parties shall then prepare this new bundle for use on the hearing of this Application.

[21] After hearing submissions from counsel, I order that this Application shall be prepared for adjudication on November 25, 2021 in accordance with the following timetable:

(a) The Applicant shall, by October 8, 2021, upload to the new Application bundle the following:

i. Using folder “A: Applicant Documents”, its Application Records, factum and compendium.

ii. The exhibits must be uploaded in a manner that allows for identification, as was done in relation to the Jadczyk Affidavit.

iii. The Source Document Collections tendered as part of the Kortbeek Affidavit and as Exhibit “C” to the Blaskavitch Affidavit shall not be uploaded to CaseLines. Barring agreement by the Respondents on the Source Document Collections and their use by the Applicant, the Applicant shall upload into CaseLines a single page for each of the 16 exhibits in the Kortbeek Affidavit and Exhibit “C” of the Blaskavitch Affidavit, identifying the Exhibit and providing a weblink to a drop-box or storage platform for the Source Document Collections outside of CaseLines, so that each exhibit containing a Source Document Collection will be accessible to the Application Judge, if required, but will not otherwise affect the presentation of argument on the hearing of the Application.

iv. Using Folder “C”, the Applicant shall upload the Amended Notice of Application and all orders and endorsements issued in this Application, including this endorsement.

(b) The Respondents shall, by October 22, 2021:

i. Audit the documents uploaded by the Applicant to the CaseLines folder and make any request of the Applicant that they consider advisable regarding the organization and operation of the CaseLines folder.

ii. The Han Respondents shall upload their Responding Application Record in CaseLines Folder B-1. If they intend to rely on evidence filed on the Motion of March 31, 2021, the Han Respondents shall file this evidence as their Responding Application Record, for clarity of the record on the hearing of this Application.

iii. The Luan Respondents shall upload their Responding Application Record in CaseLines Folder B-2.

(c) The parties shall, by October 29, 2021:

i. File their respective CaseLines folders, their factums and compendiums. The compendiums shall be compliant with s. C.4.11 of the Notice to Profession.[^3]

ii. All factums and compendiums shall be hyperlinked to the evidentiary references within the CaseLines bundle, and to the case law and statutory provisions on which the parties rely.

iii. Satisfy themselves, by audit of the CaseLines folder, of its completeness for the hearing of the Application and of the operation of the hyperlinks.

(d) The Applicant shall, by November 10, 2021, deliver its Application Confirmation Form, after consultation with the Respondents, and a participant sheet: Notice to Profession, ss. C.1.7 and C.4.10; Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, Part I, B.24.

(e) The parties may agree to modify any of the timetable deadlines set out in paragraphs (a) to (c), above, on their written consent and without necessity of variation of this order, provided that, in any event, all steps required by paragraphs (a) to (c) are completed by November 10, 2021.

(f) In regard to all documents uploaded to CaseLines:

i. In no circumstance shall a document be uploaded twice.

ii. Each document uploaded shall be a single document. That is, the practice used in the previous CaseLines folder of dividing a document into multiple parts for uploading into CaseLines as multiple documents, producing multiple documents from a single document, shall not be used. For clarity, a factum shall be uploaded as a factum, and not divided into sections and the same applies to a compendium and all other documents. The only exception is an affidavit, wherein the affidavit shall be uploaded as one document, and each exhibit shall be uploaded as its own document, properly described and following sequentially the affidavit to which it pertains on the CaseLines document list.

iii. Affidavits of service shall not be uploaded into CaseLines: Notice to Profession, s. C.4.4.

(g) If any party considers that it would enhance the efficient argument of this Application, or if any dispute should arise on the preparation of this Application for hearing, any party may request the urgent scheduling of a case conference, in accordance with Rule 50.13.

(h) The hearing of this Application is adjourned to November 25, 2021 at 10:00 a.m., for a full day, being a date convenient to the parties and made available by the Court.

(i) The costs of today’s hearing are reserved to the Judge hearing the Application.

(j) I am not seized of this Application.

[22] In accordance with Rules 59.04(1), 77.07(6) and 1.04, this order is effective from the date that it is made and is enforceable without any need for entry and filing, and without the necessity of a formal order.

A.A. Sanfilippo J.

Released: September 27, 2021

[^1]: April 2021 Preservation Order, para. 1: “THIS COURT ORDERS preservation of the contents (balances) of the financial accounts listed below [TD Bank Account # 1175-6485516 (account holders: Yuyu Han and Huiming Han); TD Waterhouse Account # 1253-7CXA35A (account holder: Yuyu Han); RBC GIC Account #00160187727 0012 (account holders: Yanchun Lu and Kaiwen Leung); RBC GIC Account #00160187727 0013 (account holders: Yanchun Lu and Kaiwen Leung)], until the forfeiture application is heard”.

[^2]: The Opinions and Reports of Mr. King, Ms. Dixon and Ms. Shi are not tendered in affidavits by these witnesses: Rules 39.01(1), (5) and (7).

[^3]: “The following should be included in the Compendium: a. Where portions of cases are included in the Compendium, the name of the case, citation, and the headnote from each case should be included as well; and b. Where portions of the evidence are included in the Compendium, the first page of the document and identification of where it may be found in the record should also be provided.”