Court File and Parties
COURT FILE NO.: CV-23-00695711 DATE: 20230331 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARY YOUNG, Plaintiff
AND: MASONRY DOCTORS, PATRICK HIGGINS, PATRICK MICHAEL HIGGINS also known as MICHAEL PATRICK HIGGINS, PATRICK ALAAADIN ALRADHI also known as ALAAALDIN ALRADHI, MOHANNED IRFAN WAJDI, KIYANA KAMALI, INFORM INTERIORS, MOHAMMAD JAVAD HOOSHMAND, JALEH MARANDI, MOHAMMADHOSSEIN ARABKARIMI, AMIR FAKROLDIN RAHIMI, SHIBAN CANADA INC., SEYEDEH SEPIDEH HOSSEINI DINANI, LAETH HISHAM AL-NAKDY, JOHN DOE ACCOUNTHOLDER(S) and JOHN DOE CONTRACTOR(S), Defendants
BEFORE: Justice Papageorgiou
COUNSEL: Micheal Simaan, and Rahul Gandotra for the Plaintiff msimaan@kramersiimaan.com & rgandotra@kramersimaan.com
Samir Gebrael, sgebrael@zaylaw.com, for the defendant AlaaAldin AlRadhi
Jason E. Bogle, jason@bogleslawoffic.com, for the defendant Amirfakhroldin Rahimi
HEARD: March 31, 2023
Endorsement
Background and Nature of the Motions
1The plaintiff brings a motion to extend the interim and interlocutory Mareva Injunction ordered by Merritt J. dated March 10, 2023 (the “Mareva Injunction”). At that time, Merritt J. also made a Norwich Order in respect of TD Bank.
2The Mareva Injunction was extended by Justice Chalmers on March 21, 2023.
3The details of the underlying factual circumstances of this case are set out in Merritt J.’s decision dated March 10, 2023.
4In essence, the plaintiff (who is an elderly woman who takes care of a child with a disability) engaged the services of Patrick Higgins, Mike Higgins (who he alleged to be his father) and Masonry Doctors to perform work at her home. Higgins directed her to make payments to himself and a variety of individuals who he told her were subtrades in respect of this work (the “Work”) through direct payments and bank drafts to various bank accounts held at TD Bank. He advised her that the Work could not be commenced without these payments. Higgins developed a friendship with the plaintiff and her daughter and at one point the man purporting to be Higgins’ father expressed a romantic interest in her.
5The Work was not completed. Higgins has not responded to follow up inquiries from the plaintiff. At present, she has paid over $1 million through various payments to the defendants.
6As of today’s date, the only defendants who have responded to this proceeding are the defendants AlaaAldin AlRadhi (“Alradhi”), Amirfakhroldin Rahimi (“Rahimi”), and Laeth Hisham Al-Nakdy (“Al-Nakdy”).
7Alradhi and Rahimi attended today but Al-Nakdy did not. The plaintiff’s counsel has exchanged email communications with him.
8These are all individuals who held accounts which the plaintiff made payments to at Higgins’ direction.
9As well, although the plaintiff has forwarded all the details of the Norwich Order to the TD Bank, to date, TD Bank has not provided the information requested or responded, although it has apparently advised its clients of the Mareva Injunction since Alradhi, Rahim and Al-Nakdy contacted plaintiff counsel in response.
Rahimi
10The defendant Rahimi brings a cross motion to lift the interim and interlocutory Mareva Injunction and filed a brief affidavit.
11He is a real estate investor who earns approximately $150,000 per annum.
12He denies meeting or engaging in any business with the plaintiff. He also denied having ever met Higgins and says that he first learnt of Higgins when he read the Mareva Injunction Order.
13He admits that he has a registered company known as Seven Centre Canada Inc which performs renovation work but he does not receive any cheques for renovation work in his personal name.
14He admits that he received the amount of $22,800 on October 11, 2022 which was paid directly into his personal TD account. He says he did not know who the sender of the draft was.
15He believed that the payment related to the sale of his Rolex to an acquaintance known to him as “Amir”. He provided the sales receipt for the Rolex which he purchased in 2017 but did not provide any evidence as to the purported sale to Amir apart from his statement in his affidavit.
16He argues that he is suffering prejudice as a result of the Mareva Injunction in that there are apparently over $150,000 of funds being deposited into his account monthly as well as $10,000 in preauthorized debits to this account. He says that the Mareva Injunction impacts both his ability to pay his expenses as well as his business dealings which result in the $150,000 deposits to his account monthly. He has offered to pay the $22,800 into Court.
17However, he has not as yet complied with the Mareva Injunction. He did not provide information as to his Ontario assets as required by paragraph 6 of the Mareva Injunction. He simply stated that the account in question where the moneys were paid was his personal bank account and that he owned a home, but did not say whether it was owned solely or jointly.
18While he has provided bank statements, they are partial. The months of November and December are missing.
19As well, paragraph 7 of the Mareva Injunction contemplates that he will undergo cross examination on any affidavits filed and until today, he has not advised the plaintiff that he will attend for this purpose.
20I add that he did not provide Amir’s last name in his affidavit or any evidence that would explain how the plaintiff’s money ended up in his account or how Higgins would have even known who he was for this to have occurred.
21His argument that he is only potentially liable for the moneys deposited into his account misses the point. There was a fraud perpetrated against the plaintiff and the proven receipt of these funds does not mean that he did not receive other funds paid by the plaintiff. As noted, TD Bank has not yet complied with the Norwich Order and there are many deposits into his account over the time period in question. The plaintiff has not been able to determine where those moneys have come from and whether he may have received other funds paid by her through an indirect avenue.
22The fact that he received these funds, without any satisfactory explanation as to why, is sufficient to raise concerns as to his potential involvement in the wider fraud perpetrated against the plaintiff.
23In my view, it is premature to lift the Mareva Injunction but I agree that he should be permitted to access $10,000 from his account for his preauthorized expenses and I will be making that Order. The plaintiff has also consented to this.
Alradhi
24The defendant Alradhi seeks an Order that he is allowed to spend a fixed amount per month for ordinary living expenses and legal advice and representation.
25He says that he is a College professor in the tech field at Seneca and Sheridan College. He provided evidence of teaching awards he has received.
26He admits that he received funds which Higgins directed the plaintiff to transfer into his TD Account in the amount of $30,000 on June 15, 2022. He says that this was repayment for $30,000 which his family in Iraq paid an associate of Wael Al-Modhaffer in respect of property which was sold in Iraq which had a value of roughly $30,000 CAD. He says he did not see the bank draft before it was deposited and thought that this was the money representing the sale of the property.
27He says he does not know the plaintiff and did not know that the funds came from the plaintiff. He says that had he known that the bank draft was not issued by Al-Modhaffer, he would have rejected the transfer.
28He currently resides with his daughter in Milton at a property which he does not own. He only has one bank account in Canada which is the TD account which is the subject of the Mareva Injunction. This account has a balance of approximately $285,000 CAD and $79,000 USD. He also owns a house in Canada which he will be moving into soon.
29His monthly personal expenses total $4,787 per month and most of these are pursuant to preauthorized payments. He seeks $5,000 to permit him to pay expenses for the previous month, $5,000 for this month, and $5,000 for legal expenses for a total of $15,000.
30I agree that this is reasonable and I add that the plaintiff consents.
31He does not yet seek the lifting of the Mareva Injunction as he agrees that it is premature and he wishes to attend for cross examination and provide additional evidence.
32Therefore, the Mareva Injunction shall continue and return before the Court on April 10, 2023.
33With respect to TD Bank, I am ordering that it immediately comply. If it does not prior to the April 10, 2023 return date, then it should be aware that there may be a costs order made against it and/or other relief granted to the plaintiff.
Justice Papageorgiou Date: March 31, 2023