Court File and Parties

Date: 2022-05-02 Superior Court of Justice - Ontario

Re: Capital SCL Inc., 2593820 Ontario Inc., and EMC3 Technologies Inc., Plaintiffs – AND – Spotless Consultancy Inc., Ciara McHale, and Yahya Dikeni Hashiru a.k.a. Yahya Hashiru, Defendants

Before: E.M. Morgan, J.

Counsel: Jordan Goldblatt, for the Plaintiff Sarah Spitz, Leah Cummings, and Morgan McKenna, for the Defendant, Yahya Dikeni Hashiru

Heard: May 2, 2022

Endorsement

[1] The Plaintiffs seek to further extend a Mareva injunction that was first issued on February 14, 2022 and has been extended for short terms several times since.

[2] The action alleges fraud. The basic facts were set out succinctly by Justice Akbarali in her endorsement of March 3, 2022, the salient parts of which are as follows:

[1] The plaintiffs have brought motions seeking to extend a Mareva order made by Ramsey J. on February 14, 2022, and extended by Ramsey J. on February 24, 2022. They seek to amend the claim to add a party, Yahya Dikeni Hashiru, and seek an order for substituted service on that party. Finally, they seek a Mareva injunction with respect to Mr. Hashiru.

[2] These motions relate to what appears to be a fraud perpetrated on the plaintiffs. The plaintiff Capital SLC is a landscaping/snow removal business in Ottawa run by a father and daughter team, Jim and Ciara McKenzie. The defendant Ms. McHale is Saera McKenzie’s mother, and Jim McKenzie’s ex-wife. On the sudden death of Capital’s bookkeeper, Mr. and Ms. McKenzie asked Ms. McHale if she could take over as bookkeeper, a role similar to one she had filled prior to Ms. McHale’s and Mr. McKenzie’s divorce. She agreed.

[3] There is compelling evidence in the record to suggest that Ms. McHale met a fraudster online, and believed that he had 320 gold bars that he could not get released to him without the payment of significant funds. It appears Ms. McHale transferred some of her own and her mother’s money to the fraudster, and thereafter, used her position as Capital’s bookkeeper to transfer funds from Capital, and its related companies, the other plaintiffs, to the fraudster.

[4] Over $2.8 million has been removed from Capital’s bank account. The record supports a conclusion that there was no legitimate business purposes for the transfer of these funds, which amount to nearly a year’s worth of revenue for the company.

[5] Bank statements reveal that the funds were deposited into an account of the defendant Spotless Consultancy Inc., which was closed the day after this claim was commenced. I understand that, on the basis of the evidence I have just described, Ramsey J. granted a Mareva injunction against Ms. McHale and Spotless. Subsequently, she extended it as against Spotless…

[3] Mr. Hashiru, the incorporator and director of Spotless, has now responded to the motion and retained counsel. He moves here to vacate or, alternatively, vary the injunction. It is his position that he had nothing to do with this transaction except to facilitate it by allowing the actual parties to it to use his corporate bank account as a conduit for funds. He also submits that the injunction is preventing him from accessing his bank accounts in the CIBC and RBC, and that he requires the funds in those accounts for paying rent, child support, and legal fees.

[4] It is not disputed that at least $2.7 million was transferred from the Plaintiff’s account to accounts owned by Spotless. The Plaintiffs contend that from there, $600,000 was transferred to accounts in Mr. Hashiru’s personal name or controlled by Mr. Hashiru. Mr. Hashiru disputes that amount, and contends that it is only $250,000 that went from Spotless to accounts in his name. Those are for the most part not in Canada. Mr. Hashiru is originally from Ghana, and at the last extension of the Mareva injunction appeared personally at the motion on Zoom from Ghana. The accounts to which the funds were transferred are, for the most part, located in Ghana.

[5] It is Mr. Hashiru’s position that another Ghanaian and acquaintance of his, Mr. Djabiri Dauda, was the one with whom the Plaintiffs and/or the Defendant, Ciara McHale, contracted and to whom the money was really sent. According to Mr. Hashiru, Mr. Dauda has been seeking investors in a West African gold mining operation, and the Plaintiff is one of those investors. Mr. Hashiru says that there is nothing fraudulent or illegitimate about the transaction, and that his only involvement was as a middleman for payment of the investment funds. Hashiru says that he had an agreement with Mr. Dauda to channel the funds to Mr. Dauda’s business once they were transferred to him by the investors, and that Mr. Hashiru’s only interest was that he was to earn a commission on the payment of those funds.

[6] There is nothing credible about Mr. Hashiru’s explanation. According to him, a Canadian company was not defrauded, but rather engaged in an ordinary investment of $2.8 million in a Ghanaian gold mining enterprise without any written agreement or other documentation whatsoever. Then, at least $250,000 and possibly up to $600,000 was transferred to accounts in Mr. Hashiru’s name, but he had nothing to do with that. Mr. Hashiru explains that someone else – either Mr. Dauda or perhaps Mr. Hashiru’s own father – controlled those accounts unbeknownst to him.

[7] As indicated by Justice Akbarali, the Mareva injunction was issued on February 14, 2022. It was served on Spotless on Feb 25, 2022. Mr. Hashiru knew about the injunction on Feb 16, 2022, as he had a telephone conversation with the process server that was attempting to serve the injunction order on him. That conversation is attested to by the process server in his affidavit of attempted service.

[8] Mr. Hashiru was served personally with the injunction Order on March 3, 2022. That same day, he sent $50,000 from Spotless’ account to an RBC account in his own name. Two weeks later, on March 16, 2022, he sent $10,000 from Spotless to another of his accounts, and the following day, March 17, 2022 he transferred from Spotless to himself another $40,000. These were all transfers made with notice of the Mareva and not in compliance with it. Mr. Hashiru’s counsel points out that the March 3rd transfer was done at 9:00 a.m. and so was prior to the injunction Order actually being served on him; but the fact is, Mr. Hashiru knew about the Order and transferred funds in anticipation of being served.

[9] In Chitel v. Rothbart, (1983), 39 O.R. (2d) 513, the Ontario Court of Appeal set out the 5-step test for granting a Mareva injunction:

(1) The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know. (2) The plaintiff should give particulars of his claim against the defendant, stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant. (3) The plaintiff should give some grounds for believing that the defendants have assets here. (4) The plaintiff should give some grounds for believing that there is risk of the assets being removed before the judgment or award is satisfied. (5) The plaintiff must give an undertaking as to damages.

[10] There is certainly a strong prima facie case against Mr. Hashiru and Spotless. The evidence establishes that funds went to Spotless, that Mr. Hashiru is a director of Spotless, that funds then went from Spotless to various accounts in Canada and offshore in Mr. Hashiru’s name. The evidence strongly suggests that if the Mareva injunction were to be lifted, any remaining funds would also disappear.

[11] As indicated, Mr. Hashiru’s explanation for all of this lacks credibility. I would also add that his counsel’s explanation that at least one substantial payment from Spotless to Mr. Hashiru personally was done prior to being served with the injunction Order does not impress me as validating Mr. Hashiru’s actions. Even if he had not yet received a copy of the Order, he knew about it; and even if he hadn’t known about it, he knew about the Plaintiffs’ claim which had been issued weeks before. Separate and apart from the existence here of a Mareva injunction, persons involved in litigation are prohibited from transferring their assets beyond the reach of claimants once they know that a claim is being made. Mr. Hashiru has established himself as being untrustworthy in some of the most fundamental ways embraced by the legal system.

[12] In any case, Ontario courts have also indicated that one can infer a risk of dissipation of assets in view of the circumstances of the fraud claimed against a defendant: Shibley & Assoc. v Ross, 2011 ONSC 2951, at para 63. In the present case, Mr. Hashiru has facilitated money being moved offshore after being paid a large amount of funds for which he has no credible explanation. I would infer from these circumstances that the rest of the funds paid to Spotless and/or Mr. Hashiru will vanish as soon as the Mareva is vacated.

[13] I also do not believe that Mr. Hashiru requires a lifting of the injunction in order to pay personal debts or legal fees. He has several hundred thousand dollars of the Plaintiff’s money and has not adequately explained why he received it or where it has gone. To lift the injunction because Mr. Hashiru says that he needs even more money at this stage in the action would be to compound the loss to the Plaintiff.

[14] The Mareva injunction as extended to include Mr. Hashiru by Justice Akbarali on March 3, 2022, and as further extended by me on March 11, 2022 and by Justice Myers on March 30, 2022, is hereby extended until further order of this court. I would take this opportunity to remind Mr. Hashiru that the injunction applies to his worldwide assets and to all funds in all accounts in his name, wherever they may be located and regardless of whether the particular bank or other financial institution has received notice of the injunction. Mr. Hashiru has himself received notice and he is expected to adhere to the terms of the injunction.

[15] The parties may make written submissions on costs. I would ask counsel for the Plaintiffs to email brief submissions to my assistant within two weeks of today, and counsel for Mr. Hashiru to email brief submissions to my assistant within two weeks thereafter.

Morgan, J. Date: May 2, 2022