Court File and Parties

COURT FILE NO.: CV-19-00618632-0000 DATE: 2022-11-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BLUEKEY EDUCATION LTD., ONTARIO CORPORATION NUMBER 1908809, Plaintiff – and – JIAN WANG also known as LIVIA WANG, ZHE LI also known as JOY LI, and BLUEKEY EDUCATION LTD., ALBERTA CORPORATION NUMBER 2021252180, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Shahryar Mazaheri, for the Plaintiff Justin Necpal (written submissions), for the Defendants

HEARD: November 23, 2022

Endorsement

[1] The Plaintiff seeks payment of funds misappropriated by the Defendants, Jian Wang, and by the corporate Defendant which is a company she set up to impersonate the Plaintiff.

[2] The funds at issue were made subject to a Mareva injunction by Justice Kimmel dated May 17, 2019. Part of the funds are being held in a WeChat/Alipay account set up by Ms. Wang, and another part of the impugned funds were ordered paid into court to the credit of this action. Kimmel J. also ordered that the Defendants produce various financial books and records which have never been produced.

[3] The Defendants were ordered to pay certain further funds into court by Justice Koehnan on June 9, 2022. Those funds have not been paid into court.

[4] Ms. Wang has already been held in contempt of court for failure to comply with court orders. Plaintiff’s counsel advises that Ms. Wang has also been charged with criminal fraud in relation to this matter and that on August 31, 2021, the Toronto Police Service issued a warrant for her arrest. Although she has been in contact by email, she has not been seen in Canada since that time. Plaintiff’s counsel has stated that his client assumes that Ms. Wang is in China.

[5] Counsel for the Defendants has filed a written submission indicating that the Defendants have not been served with the present motion and requesting an adjournment. He states that although he is no longer retained by Ms. Wang, he is still formally on record and that he only saw the motion materials when he was alerted a few days ago by CaseLines that they had been uploaded by Plaintiff’s counsel.

[6] Defendants’ counsel has been telling Plaintiff’s counsel for the past few months that he no longer represents the Defendants and has no instructions from them. However, he has never removed himself as solicitor of record. Accordingly, he should have been served with the Plaintiff’s motion record and factum. I don’t know how much good that would have done if he is out of communication with the Defendants, but that is how the Rules of Civil Procedure work. Either he is still on the record or he is not on the record; there is no middle ground where he can say he does not represent the Defendants but has not gone off record.

[7] That said, Defendants’ counsel did have notice that the Plaintiff was bringing the present motion. He does not appear to have had all of the motion materials until he was notified that they were on CaseLines, but he did know what that the motion is about and that it was scheduled for November 23 (today). He also apparently knew what the motion was all about. In fact, in his written request for an adjournment, Defendants’ counsel does not say that he or the Defendants do not know what is going on or that there is a substantive response to the motion coming; rather, he focuses on the fact that he was not formally served as solicitor of record.

[8] Having been advised that the Defendant and her counsel were no longer in communication, Plaintiff’s counsel served the motion materials directly on Ms. Wang by email. Plaintiff’s counsel explained to me at the hearing that he asked Defendants’ counsel if he were planning to remove himself from the record, and was under the impression that counsel’s removal would be forthcoming, but it never occurred.

[9] In any case, the record submitted by the Plaintiff contains affidavits of service evidencing service of the motion materials on Ms. Wang by email. The email address used for this service is apparently one to which Ms. Wang responds and which has served as the means of communicating with her previously.

[10] I do not blame Defendants’ counsel for requesting an adjournment. He is still solicitor of record and has a duty to do whatever he can to preserve the Defendants’ position until they get a new lawyer or until he removes himself from the record. Nevertheless, in the scheme of this action Ms. Wang’s non-response to the motion appears to be one more diversion or delay in a long series of diversions and delays. She has notice of the motion and has all of the materials that support it.

[11] Ms. Wang has gone out of communication with her own lawyer and has done nothing to facilitate this action otherwise moving forward. Her lawyer should accelerate his efforts to remove himself from the record in order to alleviate any confusion, but I do not see that as a reason to thwart the Plaintiff from enforcing its rights. Nothing I have read or heard indicates that Ms. Wang is actually prejudiced by this motion not being adjourned. She did not respond to it despite being fully informed that it was taking place.

[12] The Defendants have been subject to an injunction for over two years. That injunction required financial disclosure that has not been forthcoming. It froze assets that the evidence shows were misappropriated from the Plaintiff. To allow the Defendants to go silent and hide behind the fact that they have not replaced a lawyer with whom they are not in contact, would be to put legal form before substance.

[13] The record before me establishes the Plaintiff’s case. As indicated, there is no evidence to counter the Plaintiff’s evidence that the Defendants have misappropriated its funds.

[14] The Plaintiff is entitled to an Order that the $91,478.33 that has been paid into court to the credit of this action be paid to the Plaintiff. In addition, the Plaintiff is entitled to ownership of the three Bluekey accounts with WeChat (Bluekeyyork, Bluekeyyork2016, Bluekeyyork2017) and one Alipay account (1150377484@qq.com) containing funds in the amount of $178,671.37 that were misappropriated by the Defendants.

[15] The Plaintiff is also entitled to an Order that the Defendants pay the Plaintiff $97,915.00, which is the amount that the record shows she misappropriated from the Plaintiff’s TD Bank account. Additionally, the Plaintiff is entitled to an Order that the Defendants pay to the Plaintiff $53,253.03 that Ms. Wang withdrew from the Bluekeyyork2017 and Bluekeyyork accounts with WeChat.

[16] Finally, the Plaintiff is entitled to an Order that Ms. Wang provide the Plaintiff with a sworn statement tracing the funds that she misappropriated from the Plaintiff, including where the funds were deposited, transferred, and spent.

[17] The Plaintiff may make written submissions on costs. There will be a formal Judgment to go as submitted to me today.

Date: November 24, 2022 Morgan J.