Court File and Parties

COURT FILE NO.: CV-22-683217 DATE: May 10, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHICAGO TITLE INSURANCE COMPANY, Plaintiff AND: JOHN DOE, JANE DOE, XUAN DIEU VY NGUYEN, 2735046 ONTARIO INC. o/a LPR GLOBAL, CANG TRAN a.k.a. TRAN VAN CANG a.k.a. CANG V. TRAN a.k.a. CANG VAN TRAN, TENG CHUN CHIAO a.k.a TENG CHUN CHAO, THUY DOANQUANG, NGUYEN HOANG DUY, ALBERT BAIRD and KERRY JAMES, Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Michael A. Katzman for the Plaintiff

READ: May 5, 2023

ENDORSEMENT

[1] The Plaintiff moves to extend the time within which to serve the Statement of Claim, to amend the Statement of Claim to add Ngoc Tran as a defendant, to obtain an order that a previously obtained Norwich Order apply to Ngoc Tran and to obtain a Mareva injunction as against all defendants. The Plaintiff seeks to hold the Mareva injunction in abeyance and not serve it until it has completed all investigations pursuant to the extended Norwich Order.

[2] This matter has already been the subject of a previous Norwich Order.

[3] This matter relates to a mortgage fraud. In that regard, on or about March 11, 2021, two individuals purporting to be the owners of real property municipally known as 7128 Baskerville Run Mississauga, Ontario (the “Property”) obtained mortgage proceeds in the amount of $585,700 from a lender, Ryan Mortgage Income Fund (the “Insured Mortgagee”). These mortgage proceeds were placed into an account held by BMO (hereinafter referred to as the “Fraudulent Mortgage Proceeds”)

[4] The Insured Mortgagee obtained title insurance from the plaintiff.

[5] The true title holders asserted that the mortgage was fraudulently obtained.

[6] A Tribunal Hearing was convened before the Deputy Director of Land titles who determined that the mortgage was fraudulent and who deleted the mortgage from title.

[7] The Tribunal ordered BMO to produce banking statements for the account into which the mortgage proceeds were deposited.

[8] The records disclosed that portions of the mortgage proceeds were moved from the BMO account to each of the defendants in the following manner:

a. On April 5, 2021 a bank draft made payable to 2735046 ONTARIO INC (“273”) in the amount of $250,000.00 was purchased using a portion of the Fraudulent Mortgage Proceeds, which bank draft was thereafter deposited into RBC bank account number 02186 100-703-8;

a. On April 10, 2021, a bank draft made payable to TENG CHUN CHIAO a.k.a TENG CHUN CHAO (“Chao”) in the amount of $50,000.00 was purchased using a portion of the Fraudulent Mortgage Proceeds but which was thereafter deposited into CIBC bank account no. 06422/8828733 on or about April 12, 2021;

b. On April 10, 2021, a bank draft made payable to NGUYEN HOANG DUY (“Duy”) in the amount of $35,000.00 was purchased using a portion of the Fraudulent Mortgage Proceeds, which bank draft was subsequently deposited into TD bank account no. 11042-6144854 on or about April 12, 2021;

c. On April 12, 2021, a bank draft made payable to 273 in the amount of $125,000.00 was purchased using a portion of the Fraudulent Mortgage Proceeds, which bank draft was subsequently deposited into RBC bank account number 02186 100-703-8;

d. On April 19, 2021, a certified cheque in the amount of $25,000.00 was purchased using a portion of the Fraudulent Mortgage Proceeds.

e. On April 19, 2021, a certified cheque in the amount of $25,000.00 was purchased using a portion of the Fraudulent Mortgage Proceeds.

[9] Following the BMO, the defendant CANG TRAN (“Tran”), the principal of 273 was summonsed to give evidence before the Tribunal as to 273’s receipt of a portion of the Fraudulent Mortgage Proceeds. Tran produced bank statements in respect of an RBC Business bank account in the name of 273 for the period of March 26, 2021 to June 25, 2021. The said records show the Fraudulent Mortgage Proceeds being deposited to the BMO account and further disclose that the same were subsequently withdrawn. The records to not identify those individuals or corporations to whom those funds were directed and Tran provided no such information.

[10] On or about June 7, 2022, the Plaintiff received a telephone call from the investigating officer, Constable Jeffrey Hepton, who advised that the defendants Albert Baird (“Baird”) and Kerry James (“James”) had appeared on video footage during the application footage for the Fraudulent mortgage and had been arrested in connection with the matters at issue as having been the individuals who represented that they were the actual title holders.

[11] On June 27, 2022, the Plaintiff’s Statement of Claim in this matter was issued but not served. Justice Myers made an Order extending the time for service until December 19, 2019.

[12] On August 19, 2022, the Plaintiff obtained a Norwich Order (the “2022 Norwich Order”).

[13] There were extensive productions by the following banks as a result of the Norwich Order: TD Bank, HSBC, CIBC, RBC, BMO, Scotiabank, ICCI Bank, National Bank of Canada.

[14] The financial productions pursuant to the confirmed that the Defendants set out in paragraphs 8(a) to (d) above received the funds which are set out in those paragraphs. The Plaintiff obtained the following additional information which confirmed that the Defendant Duy received the $25,000 cheque and cashed it and placed into an account which appeared to be a National Money Mart Company.

Proposed Addition of Ngoc Tran as a Defendant and extension of Norwich Order to him

[15] The financial productions disclosed by the non-party financial institutions also disclosed that on April 13, 2021, the Defendant 2735046 Ontario Inc. caused a bank draft payable to Ngoc Tran in the amount of $20,000.00 to be issued from RBC bank account no. 02186 100-703-8.

[16] The Plaintiff is seeking an amendment to add Ngoc Tran as a defendant and to extend the previous Norwich Order to him.

[17] I have considered the test set out in the Plaintiff’s factum, which is based upon B.(A) v. D. (C) CarswellAlta 169 at para 12, Raponi v. John Doe 2010 CarswellOnt 4683 at para 40 and GEA Group AG v. Ventra Group Co., 2009 CarswellOnt 4854 at para 51.

[18] I am satisfied that an Order adding him as a defendant and also extending the Norwich Order to him should be made. That is, I am satisfied that the Plaintiff has provided evidence to raise a valid, bona fide or reasonable claim. I am satisfied that the Plaintiff has established that the third parties have a relationship with the Defendants such that information and that they are the only practicable source of the information. I am satisfied that the third party can be indemnified for costs to which it may be exposed. I am satisfied the interests of justice favour the obtaining of the disclosure. I am satisfied that the disclosure is necessary for the Plaintiff to pursue its rights against the Defendants.

Extension of time to serve the Statement of Claim

[19] I am satisfied that the Plaintiff should be given an extension of time within which to serve the Statement of Claim on the basis that serving the Statement of Claim may result in the dissipation of assets.

[20] I am adjourning the balance of the motion which is the Mareva injunction until the Plaintiff completes its investigations.

[21] The Plaintiff had indicated that it would hold the Mareva injunction in abeyance if granted, but in my view it is preferable for the Plaintiff to complete its investigations and then return in respect of the Mareva injunction with a short additional affidavit.

[22] I am seized of this matter and the Plaintiff may arrange a further date when ready before me on an urgent basis.

[23] I am asking that the Plaintiff redraft its order in accordance with this endorsement and forward it to me for my execution.

Justice Papageorgiou

Date: May 10, 2023