Court File and Parties

COURT FILE NO.: CV-11-00009210-00CL DATE: 20231031 ONTARIO - SUPERIOR COURT OF JUSTICE – COMMERCIAL LIST

RE: CAJA PARAGUAYA DE JUBILIACIONES Y PENSIONES DEL PERSONAL DE ITAIPU BINACIONAL, Plaintiff AND: EDUARDO GARCIA OBREGON et al., Defendants

BEFORE: Peter J. Osborne J.

COUNSEL: J. King and J. Miller, for the Plaintiff Eduardo Garcia Obregon and Patricia Garcia, self-represented

HEARD: January 13, July 6 and August 10, 2023

Endorsement

The Motion and the Positions of the Parties

[1] The Plaintiff moves for:

a. a declaration that the Defendants Eduardo Garcia and Patricia Garcia (together, the “Garcias”) are in contempt of court for failing to comply with the Order of Dunphy, J. dated October 12, 2018 (the “Dunphy Order”); b. an order directing Eduardo Garcia to direct Mr. Nicholas de Leon Morales (“Morales”) to transfer any funds received by him from Eduardo Garcia to the trust account of counsel for the Plaintiff; c. an order directing Eduardo Garcia to direct Morales to transfer any and all funds traceable to the funds of the Plaintiff, including but not limited to the funds within the G&T Continental Bank Account No. 03-01-600-000-2466-2 (the “G&T Account”); d. an order directing Eduardo Garcia to account to the Plaintiffs for the contents of the funds in the G&T Account; e. an order directing Patricia Garcia to sell the property she owns located at 9 th Street A 9-34, Zone 8, Cluster 1, Sector A-1-, House #54, Mixco, Guatemala (the “Guatemala Property”); f. an order directing Patricia Garcia to transfer the proceeds of sale of the Guatemala Property to the trust account of counsel for the Plaintiff; g. an order directing the Garcias to disclose to the Plaintiff any and all records regarding their attempts to comply with the order sought, if granted; h. the consent of the Garcia Defendants to cease posting information contrary to the facts and findings contained in orders of the Court made in this proceeding; i. an order that the Garcias pay the outstanding costs ordered by the Supreme Court of Canada and make regular payments regarding the outstanding costs awarded by the Court of Appeal for Ontario; j. an order that the Garcias produce their tax returns for the last three years together with proof of income, and attend again for a further examination in aid of execution; k. an order that Ms. Maria Garcia, the eldest daughter of Eduardo and Patricia Garcia, attend for examination under oath (on the basis of evidence from the Garcias that she pays their bills and has a joint account with them); and l. its costs of this motion on a full indemnity basis. [1]

[2] The Garcias oppose the relief sought as described above at paragraphs 1 (a) – (d) inclusive, (g) and (h). As set out below, the Garcias consent to the sale of the Guatemala Property and the payment to counsel for the Plaintiff in trust of the sale proceeds, although as described below even the chronology of the giving of that consent was not clear, at least until the hearing of this motion.

[3] At the hearing of the motion, which proceeded effectively over three days on January 13, July 6 and August 10, 2023, the Plaintiff elected not to proceed at that time with the relief sought regarding the Defendants Antonio Duscio and Leanne Duscio, without prejudice to the right of the Plaintiff to seek that relief in the future.

[4] A court reporter and a Spanish translator were both present at the hearing of this motion. As specifically confirmed with the Garcias, each of them speaks and understands English. That was evident from my exchanges with them (as well as from the history of this action: their examinations in aid of execution were conducted in the English language). However, Spanish is their first language, and they submitted that, from time to time, they required assistance in the form of having more complex concepts in English translated to Spanish.

[5] With their express consent, and that of counsel for the Plaintiff, the hearing proceeded in English, with the Spanish translator available to translate into Spanish as required at their request. This occurred from time to time during submissions.

[6] I have reviewed all of the materials filed by the parties. They are extremely voluminous. Much of the material filed by the Garcias (which itself exceeds 1400 pages) is repetitive and includes copies of materials already filed or is non-responsive to the motion. While I have reviewed all of the materials, I have placed particular emphasis on those materials referred to by the parties in their facta and oral submissions.

Background and Context: the Trial, the Reasons and Fraud Judgment

[7] This action has a lengthy history. It has been before this Court many times already.

[8] The Plaintiff (or “Cajubi”) is a Paraguayan pension fund.

[9] Following a trial of this action that was heard over 17 days in the spring of 2018, Dunphy, J. found the Garcias liable to Cajubi in fraud, and rendered judgment. (See Reasons for Judgment 2018 ONSC 5379 (the “Reasons”). The order (the “Dunphy Order”) was finally settled and then issued and entered on February 15, 2019.

[10] In his Reasons, Dunphy, J. found that the President, Vice President and Treasurer of Cajubi had accepted kickbacks from, among others, the Garcias, to assist them in diverting and misappropriating investment funds deposited with Cajubi. The particulars of how the fraud by the Garcias and others was carried out on Cajubi is set out in the Reasons.

[11] As the Reasons reflect, the Garcias had proposed three separate “investment products” to the Board of Directors of Cajubi, with the guidance of the Insiders [2] , which so-called investment products purported to be advanced by one of three separate regulated Canadian institutions: Genesis Land Development Corporation, First Canadian Capital Markets Ltd., and Union Securities Limited. Each of those entities was in fact a deceptively named shell company controlled by the Garcias. None of those entities was in fact regulated or licenced at all, but each was given a name designed to mimic the relevant regulated or licenced Canadian institution.

[12] Investment proposals were prepared with input from the inside using the logos and names of the Canadian institutions targeted, but without referring to the Garcia Defendants [3] by name. As reflected in the Reasons, the proposals deliberately and fraudulently misrepresented the attributes of the proposed investments and presented each as being that of the corresponding regulated or licenced Canadian institution. Web domain names and multiple internet addresses were created to associate the relevant shell company with the relevant existing Canadian institution.

[13] Once approved by the Board of Cajubi, wire transfer instructions to fund the investments were given by the Garcia Defendants using the letterhead and logos of the regulated Canadian entity but dividing the approved investment into two separate payments instead of one.

[14] The larger payment was directed to the actual Canadian institution with which the investment was eventually made through the intermediary of the Garcia Defendants.

[15] The Reasons go on to describe how the smaller payment was described as “in trust”, sometimes said to be needed to satisfy unnamed “regulatory requirements”. This smaller payment, generally near 10% of the total investment, was simply retained by the Garcia Defendants and characterized by them as an “upfront fee”. The bulk of these upfront fees were used to fund the agreed kickbacks and were promptly directed to the Swiss bank account of a Panamanian nominee company at the direction of the Insiders. A portion was retained by the Garcias.

[16] As reflected in the Reasons, the Garcia Defendants shared in the wealth, diverting millions of dollars in fees to themselves while receiving substantial commissions from the various Canadian investee companies on the side, none of which were disclosed to or approved by Cajubi.

[17] When the whole fraudulent scheme unraveled and was discovered by Cajubi, the Insiders along with the other directors of Cajubi were removed from office and were, at least at the time of the Reasons, in jail in Paraguay.

[18] New management of Cajubi then brought this action to attempt to recover its losses.

[19] As stated by Dunphy, J. in the Reasons:

[H]aving failed to paint themselves as whistleblowers and victims of the cupidity of the insiders, the Garcia Defendants must finally account to the victims of their schemes. … The Garcia Defendants are responsible for all of Cajubi’s losses arising from these transactions, none of which would have been made but for their fraudulent misrepresentations. Funds obtained by the Garcia Defendants through fraudulent payment of kickbacks and through fraudulent misrepresentation of the nature of the investments are impressed with a constructive trust as are any benefits obtained from the use of such funds including secret commissions. Those of the Garcia Defendants who received funds subject to these constructive trusts and those who caused the corporate defendants to breach their fiduciary duties or make such fraudulent misrepresentations, are liable on the theories of knowing receipt of trust funds or knowing assistance and breach of trust. Cajubi is entitled to judgment against the Garcia Defendants … in the amount of $20,843,888 and an order requiring an accounting to permit the tracing of such of the funds received and their proceeds as may yet be traceable.

[20] Dunphy, J. made clear findings as to the credibility of the Garcias as follows:

I found both witnesses prepared to be dishonest whenever they thought a dishonest answer might advance their cause. ... I attach no credibility to the testimony of either Mr. or Mrs. Garcia except in matters without controversy, where contrary to their interests or where satisfactorily corroborated by other sources. [4]

[21] Among other things, the Dunphy Order included a provision ordering the Garcias to pay to Cajubi $20,843,888 as damages for fraudulent misrepresentation. That amount was in respect of liquidated damages and excluded constructive trust and tracing remedies, which were granted in addition thereto. [5]

[22] The following amounts (and any traceable proceeds thereof) were impressed with the constructive trust in favour of Cajubi:

a. all amounts transferred to or received by the relevant Garcia Defendants arising directly or indirectly from Cajubi’s Genesis Land/LPLP 2007investment to a maximum amount of $1 million; b. all amounts transferred to or received by the relevant Garcia Defendants arising directly or indirectly from Cajubi’s First Canadian investment including all commissions or other amounts received by the Garcia Defendants from First Canadian and any proceeds of the sale of any securities purchased through First Canadian in trust for Cajubi and not remitted to Cajubi to a maximum amount of $5,825,000; c. all amounts transferred to or received by the relevant Garcia Defendants arising directly or indirectly from Cajubi’s Union Securities investment including all commissions or other amounts received by the Garcia Defendants from Union Securities and including any proceeds of any account at Union Securities in the name of Cajubi remitted to or at the direction of the Garcia Defendants or any of them to a maximum amount of $14,018,888 (in combination with the amounts referred to in the subparagraph next following); and d. all amounts transferred to or received by the Garcia Defendants arising from the Columbus Notes investment from any source including Catan and Columbus Capital including any commissions or other amounts directed by any of the Garcia Defendants to Mr. Nicholas de Leon Morales or any account controlled by him and any amounts arising from transfers made by any Garcia Defendant to Catan or Columbus Capital to a maximum amount of $7,379,958. [6]

[23] The Garcias were ordered to account to Cajubi for all amounts referenced above, and Cajubi was entitled to letters of request permitting them to seek further information pertinent to the tracing of such funds from:

a. Clariden Leu Bank in Zurich, Switzerland; b. Mr. Nicholas de Leon Morales (“Morales”) in Guatemala; c. Mr. Ronald Timcke; and d. other parties on application with evidence as to the information sought from such person. [7]

[24] Each of the Garcias was ordered to pay Cajubi punitive damages in fixed amounts that were subject to post-judgment interest only: Eduardo Garcia in the amount of $250,000; and Patricia Garcia in the amount of $100,000. [8]

[25] These punitive damages were awarded, as stated by Dunphy, J. since:

the brazen fraud of the Garcia Defendants has caused significant losses to a pension plan and is well deserving of an exemplary award of punitive damages in its own right. However, the vicious scorched-earth campaign that I find Mr. Garcia engaged in to damage or seek revenge from witnesses or professionals he deemed to be his enemies is deserving of a still greater sanction. [9]

[26] The Dunphy Order further provided that the interim relief granted by way of orders of May 23, 2018 and September 21, 2018, was confirmed and not superseded by the judgment, such orders to continue as if incorporated by reference in the Dunphy Order. The Dunphy Order also dismissed the counterclaim and cross-claim of the Garcias, and awarded Cajubi costs, assessed on a full indemnity basis and including investigation costs of the action as against the Garcia Defendants (and the Duscio Defendants). [10]

[27] The May 23, 2018 order granted freezing and non-dissipation relief (which relief was granted from the bench at the conclusion of final submissions at the trial, and subsequently formalized in the order) as against both Garcias (the “Non-Dissipation Order”). The Non-Dissipation Order was granted on motion of Cajubi given its concern about the dissipation of assets or funds by the Garcias pending the rendering of judgment. It provided, in relevant part, the following:

a. the Garcias, together with their servants, agents, employees, assigns, family and any person acting on their behalf or in conjunction with them, and any and all persons with notice of this Order, are restrained from directly or indirectly, by any means whatsoever:

i. selling, removing, dissipating, alienating, transferring, assigning, encumbering or dealing with any assets, whether solely or jointly owned, wherever situated in the world, including but not limited to the assets and accounts listed in Schedule “A”, any other accounts which may have received any funds of Cajubi, including any accounts of family members, and any other assets into which any funds of Cajubi may be traced or have been transferred; ii. instructing, requesting or encouraging any other person, including family, to do so; and iii. facilitating, assisting in, aiding, abetting or participating in any acts which would have the effect of doing so; [11]

b. the order applies to all of the accounts and assets of the Garcias, whether or not held in their own name, whether solely or jointly owned, and wherever located in the world, including any accounts and assets which they have the power or authority, directly or indirectly, to dispose of or to deal with, including where a third party holds or controls the accounts and assets in accordance with their instructions; c. the Garcias are ordered to provide to counsel for Cajubi sworn affidavits setting out the particulars of, value and location of any and all their current and historical worldwide assets, whether in their own name or not, and whether solely or jointly owned, including without limitation: i) all tax returns for the years 2005 to current; ii) any statements from banks or investment accounts, securities, cash, real property, vehicles and other personal property; iii) any and all accounts and assets; and iv) any accounts and assets situated anywhere in the world including, but not limited to, Colombia, Guatemala, Liechtenstein, Panama, Paraguay, Switzerland and the United States; d. the affidavits shall disclose, to the full extent of the knowledge, information and belief of each of the Garcias, the particulars of the current whereabouts of the funds transferred to them, directly or indirectly, by Cajubi, including the identities and whereabouts of any third parties who were recipients of such funds, and the dates and amounts transferred to such third parties; e. the Garcias shall submit to an examination under oath in respect of their affidavits and assets; f. financial institutions shall disclose all assets and accounts of the Garcias and other relevant account and investment information as shall the accountants to the Garcias and any other accounting firm served with the order who provided services to the Garcias; and g. the Registrar is directed to prepare and issue Commissions in accordance with Rule 34.07 naming Commissioners to take the evidence of the [listed] witnesses for use in proceedings before this Court, including Morales. [12]

[28] The Garcias appealed. The Court of Appeal for Ontario dismissed the appeal with costs to be paid by the Garcias fixed in the amount of $125,000: 2020 ONCA 124. The Garcias then sought leave to appeal to the Supreme Court of Canada, which application for leave was dismissed with costs in the amount of $1147.43. Those costs awards in favour of the Plaintiff remain outstanding and unpaid by the Garcias.

The Positions of the Parties

[29] The position of Cajubi on this motion, supported principally by the affidavit of Sam Zucchi sworn November 4, 2022 together with Exhibits thereto, is that both Garcias should be found in contempt for failing to provide the accounting as required by the Reasons and the Non-Dissipation Order continued thereby, or alternatively, that they be required to provide a full accounting of funds received from Cajubi by them or their company, and specifically an accounting of funds they or anyone on their behalf sent to anyone in Guatemala, their country of origin.

[30] This specifically includes, but is not limited to, Morales. He is, as Cajubi came to know albeit belatedly, Eduardo Garcia’s uncle.

[31] It also includes family members of Patricia Garcia together with anyone involved in the purchase of the Guatemala Property. Patricia Garcia’s mother has resided or currently resides at the Guatemala Property.

[32] Dunphy, J. found that the Garcias had sent to Morales at least $1,287,571 of funds belonging to Cajubi. $175,000 was wired to Morales in 2008, and $1,112,571 was wired to Morales in 2009. [13]

[33] Prior to trial, Eduardo Garcia had spent years concealing the fact that there was any significant relationship between himself and Morales, admitting that Morales was his uncle only on the eve of trial. As described by Dunphy, J. the [statements of the Garcias made in pre-trial examinations to the effect that Morales was a friend, a colleague and/or that he was a broker for Cajubi’s investments]: “were deliberate lies and lies told with a purpose - to keep Cajubi off the trail of funds that led to him and to his family…. This façade of lies re: [Morales] was not dismantled until immediately prior to trial when the escape of the cat from the bag was imminent and inevitable”. [14]

[34] In fact, the Garcias, together with Morales, owned an Ontario corporation together (2388568 Ontario Inc.).

[35] Moreover, as stated above and as found by Dunphy, J., the Garcias, or at least Eduardo Garcia, had been sending funds to Morales in Guatemala. It appears that some funds, albeit in different amounts, were transferred to the Garcias or entities controlled by them. In September 2013, a deposit of $915,000 was made to a bank account owned by one of the Garcias’ numbered companies.

[36] Cajubi became aware that, even after the 2013 transfer referred to above, Morales held at least $387,857.19 in funds for Eduardo Garcia as of August 6, 2014. The funds were held in an account at the G&T Continental Bank in Guatemala.

[37] Cajubi also became aware through the sworn affidavit of assets from Patricia Garcia required by the Dunphy Order that she owns a home in Guatemala (the Guatemala Property in respect of which relief is sought on this motion).

[38] Patricia Garcia swore that the funds used to purchase the Guatemala Property are traceable to commissions paid to Genesis (LA) by Genesis Land Development. Genesis (LA) was one of the shell companies found by Dunphy, J. to have been one of the corporate vehicles through which the Garcias perpetrated their fraud. Dunphy, J. imposed a constructive trust on all amounts transferred to or received in connection with that investment, to a maximum amount of $1 million.

[39] When asked on examination in aid of execution whether she intended to sell the Guatemala Property and use the proceeds to pay the outstanding judgment, Patricia Garcia refused the question.

[40] The Garcias have refused, notwithstanding the Dunphy Order and the Non-Dissipation Order, to provide any other information generally, or particularly with respect to funds transferred to and/or received from Morales. Instead, they take the position, as they did on this motion, that Cajubi already has all of the information it requires or that they are required to provide. This is discussed further below.

[41] Faced with a lack of cooperation, and in particular the failure to disclose and account for assets and transferred funds by the Garcias (including funds to and/or from Morales and the Guatemala Property), Cajubi brought this motion for contempt.

[42] On December 15, 2022, both Eduardo Garcia and Patricia wrote to counsel for Cajubi, stating that they consented to the relief sought on this motion. This also is addressed further below, since the Plaintiff did not accept that consent as genuine or substantive.

[43] Despite that expressed consent, however, it is the position of Cajubi that real and substantial cooperation continues to be lacking in that the Garcias are not complying in any meaningful way with the Dunphy Order or the Non-Dissipation Order. By way of example, they point to the following, among other things:

a. Eduardo Garcia, having first not admitted any relationship with his uncle, Morales, and then having conceded on the eve of trial such a relationship and the business transactions referred to above with him, Eduardo Garcia now takes the position that he no longer has any relationship with his uncle, Morales, but invites counsel for Cajubi to accompany him to Guatemala to speak with Morales if she wishes to do so; b. on her cross-examination in January, 2023, as provided for in the Dunphy Order, Patricia Garcia stated that she had spoken with her mother just the day prior to the examination but did not tell her mother, who in fact resides in the house on the Guatemala Property, that she (Patricia) was going to sell the Guatemala property as she asserted that she consented to do; c. during their respective cross-examinations in January, 2023, the Garcias were obstructive, obstinate and refused to participate in a meaningful way. For example, Eduardo Garcia refused to answer any questions about what assets he had in Guatemala, including but not limited to a Guatemalan bank account specifically referred to in an email message authored and sent by him and provided to Cajubi, because such questions “were irrelevant to the consent” that he says he had given in December, 2022; d. when asked on his cross-examination why his affidavit of assets did not disclose this bank account, Eduardo Garcia replied that: “well, you know, I gave the information to lawyer. Maybe because it was 20 years back he decided not to include it. I don’t know”. He refused to provide further information “because it was 20 years ago”; e. Eduardo Garcia continued to be evasive and substantively refused to answer questions, or he continued to frustrate the cross-examination, or both. The following exchange, which follows on questions to Eduardo Garcia as to why he directed money that was intended to be received by him be paid to his uncle, Morales, in an account that was not in his (Eduardo’s) name, is illustrative of how the cross-examination went:

Q. Why did you send the money to Nick de Leon [Morales]? A. So I prefer to have the funds send to that account instead of paying funds over here. Q. Why? A. For tax reasons. Q. Why? A. What do you mean why? For tax reasons. Q. why? A. For tax. To reduce the amount of taxes. Q. Why? Explain how that works. A. Well, why-why a person wants to reduce the amount of taxes they pay? Q. Well, how did you-how did that work? How did you reduce the amount of taxes you had to pay? A. Well, I don’t remember the details but that was the reason. You asked me why. You got the why already. Q. Well, explain the tax reasons. Whose idea was that? Who told you to do that? Had you come up with that on your own? A. I don’t remember the details but I guess it was my idea. It’s my taxes. My taxes is my idea, right? [15]

[44] Eduardo Garcia than refused to answer the question as to which account his money was deposited into when it was allegedly sent back to him by Morales. Instead, he responded simply: “bank records”, as if somehow that answered the straightforward question being asked.

[45] On her examination, Patricia Garcia similarly refused to answer numerous questions, again on the purported basis that the questions were not related to her consent to the motion.

[46] Further actions of the Garcias, including actions on the eve of the hearing of this motion, continue their evasive and obstructive conduct. But one example is correspondence from Eduardo Garcia dated December 30, 2022 in which he refers to Mr. Ronald Timcke (referred to above Reasons and in the Non-Dissipation Order), and states that Mr. Timcke “is the son-in-law of Paraguayan Supreme Court Justice Ms. Miryam Pena Candia. Ms. King [counsel to the Plaintiff in this action] and her client continued to cover up for him and consequently the ultimate beneficiaries of that very money.”

[47] Even in their own factum filed on this motion, the Garcias allege that counsel for the Plaintiff have “committed contempt of the orders of two judges, have lied to one judge, and have falsified a judgment of three judges. All to protect the common denominator: Timcke and hence their lucrative Ontario 12-year lawsuit”.

[48] The Garcias rely upon:

a. The Affidavit of Eduardo Garcia sworn November 27, 2022 together with Exhibits thereto, totaling over 925 pages; b. the Affidavit of Patricia Garcia sworn November 27, 2022 together with Exhibits thereto; c. the Supplementary Affidavit of Eduardo Garcia sworn January 10, 2023 together with Exhibits thereto which itself comprises approximately 230 pages; and d. a second Supplementary Affidavit of Eduardo Garcia sworn January 12, 2023 together with Exhibits thereto; e. the Supplementary Affidavit of Patricia Garcia sworn January 10, 2023 together with Exhibits thereto; and f. a second Supplementary affidavit of Patricia Garcia sworn January 12, 2023.

[49] The Garcias also served their own Notice of Motion, discussed further below, as well as a lengthy factum.

[50] On December 15, 2022, the Garcias sent a joint letter from the two of them together to counsel for the Plaintiff via electronic mail (the “December 15, 2022 Letter”). As stated above, there was a disagreement between the parties as to whether the Garcias had, in fact, consented to certain of the relief sought, and in particular, the sale of the Guatemala Property where Patricia Garcia’s mother resided.

[51] I pause to observe that all of the responding materials, including all of the Affidavits of both Garcias and the December 15, 2022 Letter from them, are all in the English language and prepared without any evidence of any involvement of an interpreter or translator. At the hearing of the motion, the Garcias advised the Court that they had personally authored the December 15, 2022 Letter.

[52] In the December 15, 2022 Letter, the Garcias responded to the heads of relief set out in the Plaintiff’s Notice of Motion and summarized above at subparagraphs 1 (a) to (g) to the following effect:

a. a declaration that the Garcias are in contempt of the Dunphy Order;

No response in Letter. (Note: the Garcias obviously oppose the granting of such a declaration on this motion).

b. an order directing Eduardo Garcia to direct Morales to transfer any funds received by him from Eduardo Garcia to the trust account of counsel for the Plaintiff;

The funds received by Morales consist of the commissions that Catan/Columbus Capital wire transferred to his account at Banco G&T which totalled $1,112,571. According to their records, Morales sent all that money back to Canada 14 years ago, between October 2008 and February, 2009 and the Plaintiff has (and has had for many years) their banking records.

The motion seeks an accounting, and Morales sent $1.39 million, 30% of which went to the Garcias ($428,505).

The Garcias have “already provided you with what we can logically and reasonably give you”.

“If what you expect as “accounting” includes bank statements of Morales or any other financial or bank records of his from 14 years ago, we do not have and have never had access to that. Only someone with enough legal and financial resources and Ontario court-issued Letters of Request could get that. We don’t have any of that. You do”.

“Our family and Morales’ family became completely estranged and have not communicated with each other in any way whatsoever in approximately 4 ½ years”.

“We will ask Morales to transfer to [Plaintiff’s counsel’s] trust account any funds he has received from us … We cannot promise that he will respond or do anything or nothing for the reasons stated above”.

c. an order directing Eduardo Garcia to direct Morales to transfer any and all funds traceable to the funds of the Plaintiff, including but not limited to the funds within the G&T Continental Bank Account No. 03-01-600-000-2466-2 (the “G&T Account”):

“We will ask Morales to transfer any traceable funds to the Plaintiff”.

d. an order directing Eduardo Garcia to account to the Plaintiffs for the contents of the funds in the G& T Account:

“We hereby confirm that to the best of our knowledge and belief it was comprised of funds from two bank drafts issued by email [from specific numbered accounts]” of which the Plaintiff knew”.

e. an order directing Patricia Garcia to sell the Guatemala Property:

“We will sell the Guatemala Property where Patricia is on title … As you have been informed before, we do not have any kind of resources (neither financial nor of any other kind) neither in Canada nor Guatemalan or anywhere else to undertake any of the steps of the sale by ourselves. We also do not have the original documents of the property. We will need support from [Plaintiff’s counsel] for the entire process. In the end, it will be [them] who sets the pace for this to happen”.

f. an order directing Patricia Garcia to transfer the proceeds of sale of the Guatemala Property to the trust account of counsel for the Plaintiff:

“We’ll transfer the proceeds of the sale to [Plaintiff’s counsel’s] account”.

g. an order directing the Garcias to disclose to the Plaintiff any and all records regarding their attempts to comply with the order sought, if granted:

“We will disclose to the Plaintiff any records related to the attempts to carry out what is indicated in this letter”.

[53] The December 22, 2022 Letter is signed by each of the Garcias.

[54] In their submissions on the motion, the Garcias reiterated their consent as described in the December 15, 2022 Letter.

[55] With respect to the sale of the Guatemala Property, they advised that they had no resources to hire any professionals to effect the sale and that the Plaintiff should arrange for whatever real estate agent and lawyer the Plaintiff wish to use. The Garcias did confirm that Patricia Garcia’s mother, the resident of the Guatemala Property, had “full knowledge of the sale” although that had been given very recently and just prior to the hearing of the motion.

Analysis and Disposition

[56] In my view, the Dunphy Order and the Non-Dissipation Order are, while understandably lengthy due to the number of transactions and assets involved, straightforward and clear with respect to the obligations of the Garcias. They have been found liable for fraud and have been ordered to account for the funds they defrauded from the Plaintiff. The Garcias appealed, and that appeal was unsuccessful. The Garcias clearly understand this.

Relief to which the Garcias Consent

[57] I will address first those elements of the relief sought by the Plaintiff to which the Garcias consent. As noted above, the position of the Plaintiff was that this consent, delivered late in December and on the eve of the scheduled cross-examinations of the Garcias, was intended to simply thwart, frustrate or avoid entirely those examinations, and /or was, at best, equivocal, unclear or conditional.

[58] The Plaintiff submits that its concern was borne out on the cross-examinations which proceeded as directed by me at the case management case conference in December. The Plaintiff submits that the cross examinations, such as is illustrated by the excerpted summarized above at para. 43(e), show the substantive disregard of the Garcias for the Court process and the fact that their answers on the examination were, in the main, non-responsive to even the most straightforward questions asked. This is addressed further below.

[59] At the hearing of the motion, the Garcias were adamant that they consented to at least certain heads of relief sought by the Plaintiff. Accordingly, and to the extent that their consent was unclear, or was conditional, or was otherwise contingent on certain events when it was given prior to the hearing of the motion, the Garcias were clear with the Court in their consent at the hearing of the motion to an order that Morales be directed to transfer all traceable funds for the benefit of the Plaintiff and to an order directing the sale of the Guatemala Property with the net proceeds for the benefit of the Plaintiff.

[60] Accordingly, and on the consent of the parties, an order will go giving practical effect to the consent of the Garcias and to the following:

a. directing Eduardo Garcia to direct Morales forthwith to transfer any and all funds traceable to the funds of the Plaintiff, including but not limited to the funds within the G&T Continental Bank Account No. 03-01-600-000-2466-2 (the “G&T Account”), to the trust account of counsel for the Plaintiff; b. directing the sale of the Guatemala Property owned by Patricia Garcia forthwith. This sale will be conducted at the direction of the Plaintiff, which shall be at liberty to retain such real estate professionals and/or real estate lawyers, including in Guatemala, as are reasonably necessary to effect the sale.

The Garcias state that they consent to the sale, but have no ability to retain any professionals to give effect to that consent, although they agree to cooperate with professionals retained by the Plaintiff. Accordingly, all costs of the sale, including but not limited to the fees and disbursements of the professionals (such as real estate agents and/or lawyers or notaries as may be required to effect the sale in Guatemala) retained by or on behalf of the Plaintiff, shall be borne by the Garcias such that only the net proceeds of the sale shall accrue to the credit of this action.

The Garcias are ordered and directed to facilitate, assist and cooperate in the sale of the Guatemala Property and take all steps, immediately upon being requested to do so, in furtherance of that sale. This includes but is not limited to executing all documents and removing all personal contents and effects (whether belonging to them, to Patricia Garcia’s mother, or any other occupant) so that possession of the Guatemala Property can be delivered on the closing of any sale transaction as soon as possible;

c. directing the Garcias to disclose to the Plaintiff forthwith upon request any and all records, including but not limited to email and other communications with any and all other individuals and/or entities, regarding their efforts to comply with this order; and d. directing the Garcias to take any other steps reasonably necessary to give effect to the above.

[61] I should observe two things. First, I would have granted the above orders even absent the consent of the Garcias, based on the record before the Court and as summarized above. Second, no such order ought not to have been necessary in any event: the Reasons, the Dunphy Order and the Non-Dissipation Order were and are clear in their terms.

Civil Contempt

[62] Second, I will address the request for a declaration that the Garcias have committed civil contempt of court.

[63] The Supreme Court of Canada has set out a three-part test for civil contempt:

a. the order alleged to have been breached must state clearly and unequivocally what should and should not be done; b. the party alleged to have breached the order must have had actual knowledge of it; and c. the party allegedly in breach must have intentionally done the act the order prohibits or intentionally failed to do the act the order compels.

[64] See Carey v. Laiken, 2015 SCC 17 (“Carey”) at paras. 17-35.

[65] The evidence must show the contempt beyond a reasonable doubt. It is not, however, necessary for the moving party to establish that a contemnor intended to disobey the order, since such a requirement would put the test “too high”: Carey, at para. 38.

[66] Rule 60.11(5) of the Rules of Civil Procedure provides that the judge may make such order as is just, and where a finding of contempt is made, may order that the person in contempt (among other things) do or refrain from doing an act, and comply with any other order that the judge considers necessary.

[67] Pursuant to Rule 60.11(9), where a person fails to comply with an order requiring the doing of an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.

[68] The Plaintiff acknowledges that contempt proceedings are usually bifurcated into two proceedings; the first being a liability hearing and the second being a penalty hearing, with the delay between the two to allow the contemnor an opportunity to purge their contempt.

[69] The Plaintiff further submits that it is in the discretion of the court to combine both hearings when appropriate to the circumstances of the case, and for that proposition relies upon Boily v. Carlton Condominium Corporation 145, 2014 ONCA 574 (“Boily”) at para. 121. The Plaintiff asks the Court here to combine both hearings. As set out below, I decline to do that in the circumstances.

[70] In my view, the decision in Boily is clear that there is no formally mandated process for contempt proceedings, and the procedure followed may vary (Boily, at para. 121). However, the decision equally describes how, if a contempt finding is made, the matter is adjourned to provide the contemnor an opportunity to purge the contempt and prepare for the sentencing portion of the process, and any action undertaken by a contemnor to purge his or her contempt may serve as a mitigating factor in sentencing.

[71] The Court of Appeal goes on to observe that there is good reason to bifurcate contempt hearings, since liability and penalty are discrete issues, and in a hearing in which they are dealt with together, there is a risk that evidence relevant, material and admissible to liability will be improperly applied to penalty or vice versa. (Boily, at paras. 120 – 128).

[72] Obviously, the issue of bifurcation is moot if there is no finding of contempt, since there is naturally no penalty phase.

[73] Accordingly, the issue of contempt must be determined first: should a declaration be made that the Garcias or either of them are in contempt?

[74] As to the first element of the test, the Dunphy Order states clearly and unequivocally what should be done by the Garcias: account for all of the funds impressed with a constructive trust in favour of Cajubi, including those set out at paragraph 21 above. To be clear, this specifically included tracing all funds from Morales, among others, and further specifically included all transfers to and from the G&T bank account.

[75] As to the second element of the test, there is no issue whatsoever that the Garcias and each of them have actual knowledge of the Dunphy Order and what they were required to do.

[76] As to the third element of the test, have the Garcias or either of them intentionally done what the Dunphy Order prohibits or failed to do what it compels? This requires a detailed analysis of the record.

[77] I accept the submission of the Plaintiff that rather than providing a substantive accounting of funds transferred to Morales, the Garcias have repeatedly refused to cooperate (and continue to do so even on their respective cross-examinations), and instead state, in the main, that the information regarding tracing sought by the Plaintiff is either already in the possession of the Plaintiff or has not been specifically requested. Neither is a satisfactory response to what the Dunphy Order and the Non-Dissipation Order compel them to do.

[78] The Garcias, smugly and defiantly, take the position that they have done all they can and are required to do, when in fact neither is accurate.

[79] For example, the failure to comply is illustrated by the cross-examination transcript of Eduardo Garcia set out above at paragraph 43 (e). The questions in the line of inquiry were clear and straightforward: why did he send the money (in excess of $1 million) to Morales? The answers are evasive and non-responsive. There is no evidence offered by the Garcias, nor did they even assert, that Morales beneficially owned the funds, had some entitlement to receive the funds from them, or that Morales was for any other reason entitled to receive or keep the funds. Yet the funds were transferred to him. I accept that it appears that some funds came back to them, although as described below the evidence of the Garcias themselves is not consistent on whether those funds were Cajubi funds.

[80] As noted above, the Garcias did not even admit any familial relationship with Morales until the evidence was overwhelming that he was Eduardo Garcia’s uncle. In fact, not only did they not admit the familial relationship, they gave evidence that was deliberately false and misleading, describing Morales as a friend, colleague or Cajubi broker. Patricia Garcia initially denied knowing him.

[81] Even when the fact of the familial relationship was established, the Garcias now take the position, without evidence beyond their bald statement in the December 15, 2022 Letter, that they are now “estranged from him” so that they will make inquiries of him, but without any promise as to whether he may or may not respond or comply.

[82] Beyond that, the Garcias have repeatedly delivered to the Plaintiff voluminous records described as a “data dump” and indeed continue to do so in their 1400 pages of responding materials on this motion.

[83] However, a review of that material reflects that it consists of documents already in the record, material that is completely unresponsive to the requests made, or comprises documents that are irrelevant to the action altogether. Most substantively, however, it does not provide the tracing required in the Dunphy Order and demanded repeatedly by the Plaintiff. In the simplest terms, it does not show where the money went and where it is now.

[84] The Plaintiff is justified in being sceptical of bald assertions, given the findings at trial as to how the fraud was perpetrated by the Garcias, and the specific finding, for example, to the effect that the Garcias simply made up documents to suit their needs and that no weight could be attached to the sworn testimony of either of the Garcias or the documents they tendered in evidence (Reasons, paras. 414 and 430).

[85] In addition, the Reasons include the following findings with respect to the Garcias:

a) Mr. Garcia prepared monthly statements “that bore less relationship to reality with each passing month that he knowingly agreed to prepare for the express purpose of being relied upon as accurate by Cajubi into which he inserted just enough to confuse and create plausible deniability. It is evident the letters forged or obtained by subterfuge…or letters or emails were sent out under Ms. Roberts’ or Ms. Ponciano’s name without their knowledge; [16] b) Mr. Garcia’s “ lies were prepared, refined and repeated with meticulous calculation over a period of one year…this deception was calculated, persistent and served a defined goal ” [17] c) as discovery of his schemes became increasingly likely, Mr. Garcia “resorted to still more dishonesty. Fictitious email accounts were created and correspondence sent without authority. One by one, persons who played any role in these matters, be it deliberate or unwitting, fell victim to anonymously sent vicious letters that I have concluded were sent by Mr. Garcia. Many lost their jobs or advantageous connections as a result – Marty Hibbs and Ms. Ponciano in particular. Police were sent on false trails by Mr. Garcia attempting falsely to portray himself as a whistleblower.” [18] ; and d) Mrs. Garcia: “was deliberately dishonest…she lied and lied with a purpose – to keep Cajubi off the trail of funds that led to her and to her family.” [19]

[86] While the chronology of this action and of the various steps in the proceeding have been multifactorial, the findings made against the Garcias and the orders as to what they were required to do, are straightforward: they were found to have defrauded the Plaintiff of in excess of $20 million, and ordered to account for it.

[87] I am satisfied from the Record, and reinforced in this conclusion by the submissions of the Garcias made on their own behalf on this motion, that they understood exactly what this meant in plain terms: the money that belonged to the Plaintiff was diverted to them and/or entities they controlled.

[88] Their obligation was, and remains, to explain the basics of what, when, where, how and why: what funds were transferred by them or on their behalf; from whom and to whom; when and on what dates; where; how (by wire transfer, cheque or any other means); and why in the sense of explaining the basis and justification for such transfers to the extent that such exists; all such that the Plaintiff can understand where the funds are now such that they can be recovered.

[89] I observe that this approach is consistent with that adopted by Koehnen, J. in Thrive Capital Management v. Hyman et al, 2021 ONSC 482 at para. 14.

[90] The trial judge found, and Eduardo Garcia confirmed, that he sent in excess of $1 million to Morales (in fact, at least $1,287,571). Morales, his uncle, was a banker in Guatemala from which the Garcias had emigrated to Canada in 2002.

[91] The information, particulars and supporting documentation of those transfers ought to be straightforward for the Garcias to produce, from either or both of their own records and those of Eduardo Garcia’s uncle which he could, and should, request from him. In my view, it is not sufficient for the Garcias to simply offer (belatedly, and only on the eve of this motion) to ask Morales for the records, but say in the very same correspondence (the December 15, 2022 Letter referred to above) that they have become estranged from him and “cannot promise that he will even respond”.

[92] This is not a situation where the Garcias, originally and throughout trial represented by counsel and now self-represented, do not understand their obligations or are confused. Rather, and by their own admission, they understand completely their obligations, and purport to be in compliance with the Dunphy Order and to be fully cooperating with the Plaintiffs while in fact doing most everything in their power to frustrate the Plaintiff in its efforts to find the money misappropriated from it by the fraudulent scheme in which the Garcias were central participants.

[93] The disdain of the Garcias for this Court and its processes continues through, among other things, the LinkedIn profile of Edward Garcia (in which he describes himself as “Eduardo Garcia, International Corruption and Investment Consultant”) that he updated following the trial and the release of the Reasons to state, among other things, that:

a. he had “learned firsthand about Canada’s racist judiciary, enforcement and legal system; b. he was “internationally persecuted” by Cajubi; and c. was the victim of “the shady, racist Ontario judge’s [ name of judge ] miscarriage of justice”. [20]

[94] Eduardo Garcia submitted to the Court on the first hearing date of this motion on January 6, 2023, that the LinkedIn post had been removed (or at least the relevant statements had been removed) and that he had apologized to the judge. However, when the motion was continued on July 6, 2023, the Plaintiff filed a screenshot of the same LinkedIn page from June 30, 2023, which still included the above statements.

[95] As stated above, Eduardo Garcia has also served his own motion seeking various relief, including an order from this Court directing the Law Society of Ontario to investigate counsel for the Plaintiff on the basis of his allegation that counsel “knowingly lied to Justice Newbould”. That allegation is completely without foundation.

[96] Eduardo Garcia also asserts in his Notice of Motion, in relevant part, and falsely, that:

a. “the plaintiff and its lawyers continue falsely asserting in Ontario courts that the “corrupt” board members did receive the “bribe money from Garcia, without even the slightest shred of evidence to it” . That was a finding of Dunphy, J.; b. “the plaintiff and its counsel have covered up for Timcke and his Swiss bank accounts (before and after the trial), and hence the ultimate beneficiaries of those “kickbacks”; c. “Judge Dunphy’s order of October 12, 2018 does not direct the Garcias to provide an accounting of those funds [$1,287,571]. In fact, the Dunphy Order and the Non-dissipation Order do exactly that; and d. “[Plaintiff’s counsel] went to great links by knowingly lying on the record to cover up for [Timcke]”.

[97] Another example of the intentional non-compliance by the Garcias in the guise of purported cooperation is the electronic mail communication to counsel for the Plaintiff dated January 7, 2023, in which Eduardo Garcia proposes to her that: “you and I travel to Guatemala City to meet in person with [Morales] … He would bring to the meeting the bank records for you to be satisfied that he did send that $1.39 million back to Ontario 14 years ago.” [21]

[98] I recognize that the Garcias take the position that they are not in contempt of the Dunphy Order, at least with respect to the funds transferred to Morales, since those funds of been returned to Canada and the Plaintiff is already in possession of all banking records confirming that this has occurred. This position is set out in both affidavits filed by Eduardo Garcia and in particular his Supplementary Affidavit sworn January 10, 2023. I do not accept that the Garcias have accounted for these funds.

[99] A review of Eduardo Garcia’s Supplementary Affidavit as a whole demonstrates the failure to comply and the fact that it continues under the guise of purported compliance. The examples in the Supplementary Affidavit are numerous, and include the following:

a. Mr. Garcia states that he proposed to plaintiff’s counsel before the motion that Plaintiff’s counsel should “indicate what evidence she had that such an amount of money (or any amount for that matter) could be currently sent from Guatemala back to Canada. She did not produce anything. The motion was scheduled, and here we are now; the plaintiff is arguing its case again, more than four years after the trial concluded.” (para. 3); b. Mr. Garcia asserts that “prior to this motion, (Plaintiff’s counsel) never raised the issue of either a “full accounting” or judgment’s paragraph 499 at all” (para. 12); c. [Plaintiff’s counsel] “has repeatedly failed to state clearly and unequivocally, what she means or seeks by “full accounting” since paragraph 499 of the judgment does not say “accounting” or “full”; and d. “I’ve also written to [Plaintiff’s counsel] asking her to disclose what the Plaintiff has found outside Canada to be set off against the amount she keeps trying to collect from me” and “she didn’t provide anything”.

[100] The Supplementary Affidavit goes on to state the following, under the (telling) heading: “The Plaintiff’s Failure to Identify the Slightest Bit of Evidence” [22] :

5. The plaintiff, four and a half years after the end of the trial, alleges that they cannot trust any type of bank records that the Garcias can provide to them because they are not legitimate, and that, consequently, the Garcias now have to come up with a million dollars out of thin air.
6. The part that the plaintiff’s counsel continues ignoring is that, to this day, they have for several years, failed, consistently and repeatedly, to point to or identify even the slightest bit of evidence or proof of: a) what funds or assets (how much? where? how?) for a Million Dollars are still in Guatemala after more than 14 years? b) exactly how could the Garcias have the ability, access or control to return it to Canada?
7. If all the bank records are false (as Cajubi's lawyers now are alleging), how can they be certain that $1,112,571 is the exact amount that Mr. Morales received in his bank account in Guatemala from Columbus and Catan? Or according to them, are only some, but not all, of the bank records fake?
8. On Nov 10, 2022, I wrote to the Plaintiff’s lawyers in my Offer to Settle, “If you produce such proof, we will sign any documents necessary for it to be transferred to your client, today”. I am still waiting to see their proof.

[101] As stated above, paragraph 499 of the Reasons states: “the Garcia defendants are ordered to account to Cajubi for all amounts referenced in the preceding paragraph”. Eduardo Garcia’s Supplementary Affidavit has it all backwards: the Plaintiff is not required to first identify what funds might be available to be sent from Guatemala to Canada, nor is the Plaintiff required to provide further production to the Garcias as they have purportedly requested.

[102] Indeed, in many respects, the above examples sum up the fundamental challenge here and explain what is in many respects a simple issue notwithstanding a record that is extremely voluminous and complex. The Garcias take the position, essentially and throughout, that they are required to account for funds only to the extent that the Plaintiff can prove they have the funds, or have knowledge of their whereabouts. That was not the order made.

[103] Moreover, the Garcias maintain that they have already complied with the Dunphy Order to the extent that they are able to do so. They maintain, for example, that the approximate amount of $1.2 million that was transferred to Morales was all returned to Canada, approximately 13 years ago, and further that the Plaintiff has long had the records that confirm this.

[104] However, as with many things involving the Garcias, both their position and the objective evidence, is far from clear.

[105] For example, in his cross-examination, Eduardo Garcia was asked about 2388568 Ontario Inc. in the context of questions about Morales. His evidence was to the effect that the main purpose of the corporation was to hold assets and investments of Morales. He testified that, in 2013, Morales gave him $915,000 to invest in Canada although he [Morales] did not tell Garcia where the money came from, although Garcia “presumes that some of the funds … are related to Cajubi’s investments”. [23]

[106] Patricia Garcia testified in her cross-examination with respect to a $350,000 cheque she received from Morales that the funds were not related to Cajubi. [24] Through her counsel, Patricia Garcia refused further questions on the basis that they were irrelevant given that the funds were not related to Cajubi.

[107] Later in the same examination, however, Ms. Garcia testified that the $350,000 cheque had been made out to her in error, and approximately two years later, she fixed the mistake and the funds were returned to Morales’ investment account. [25]

[108] In the same examination, Patricia Garcia then confirmed that she had no direct knowledge of the transactions in any event, and that her information was based on what her husband, Eduardo Garcia, had told her. [26]

[109] For the purposes of this motion, however, the Garcias now take the position that the funds transferred are in fact related to Cajubi, and in part “account” for the funds in accordance with the Dunphy Order and the Non-Dissipation Order.

[110] That position was maintained at the hearing of the motion. In his submissions, Eduardo Garcia directed me to various bank statements and other documents which he has produced and which, Eduardo Garcia submits, shows that the funds of approximately $1.3 million transferred to Morales came to Canada, and moreover that these funds specifically include the $350,000.

[111] He directed me to correspondence sent by TD Canada Trust to counsel for the Plaintiff at his direction dated October 16, 2014, together with attached bank statements for various accounts. As noted, he maintains that when the various transfers and deposits are added up, they account in the aggregate for all of the funds sent to Morales, which he says, were returned to Canada as is clearly demonstrated by the bank statements.

[112] However, all the bank statements show is debits or credits in and out of the various accounts. Whether or not they add up in the aggregate to approximately $1.3 million (and they can, depending on which transactions and for what date ranges one uses), there is no way of telling from those bank statements from whom or from where they came.

[113] The Plaintiff takes the position that the inconsistent answers of the Garcias demonstrate that they have indeed failed to account for the funds, but further that, even if their (inconsistent) explanations were accepted, an arithmetic calculation and the application of applicable exchange rates demonstrates that the funds have not been accounted for in any event.

[114] The bottom line is that, because of the inconsistent positions taken by the Garcias, and what appear to be either inconsistent documents or uncorroborated evidence without documentary support, I cannot determine where the funds are, what has been accounted for and what has not.

[115] In the result with respect to contempt, I cannot be satisfied, beyond a reasonable doubt, that the Garcias are in contempt of the Dunphy Order or the Non-Dissipation Order. In my view, it is more likely than not that each of them is in contempt, but I cannot be satisfied to the requisite threshold.

[116] Accordingly, I decline to make a finding of contempt against either Eduardo Garcia or Patricia Garcia. I do so, however, expressly without prejudice to the right of the Plaintiff to seek further contempt orders in this proceeding, including in respect of the Dunphy Order or the Non-Dissipation Order.

[117] I observe for completeness, that even if I had found the Garcias or either of them to be in contempt, I would not have conflated and heard together both phases of the contempt hearing as the Plaintiff requested, but rather, would have made the finding and adjourned the sentencing phase of the contempt hearing in order to afford the Garcias an opportunity to purge their contempt, as is usually appropriate in such matters (see: Boily).

[118] However, and notwithstanding that I am not prepared to make a finding of contempt at this time, I have no hesitation whatsoever in making an order directing the Garcias and each of them to comply with the Dunphy Order and the Non-Dissipation Order and provide a full accounting as directed at paragraph 499 of the Reasons.

[119] I recognize that the Garcias submit vigourously that they have already done so. However, I reject that submission and further find it to be inconsistent with their contemporaneous submission that the Reasons and particularly paragraph 499 do not direct a “full accounting” which it unequivocally does.

Examination of Ms. Maria Garcia (the Garcias’ Daughter)

[120] By way of supplementary relief sought at the Case Conferences of July 6, 2023, the Plaintiff seeks an order that the eldest daughter of the Garcias, Ms. Maria Garcia, be produced and attend for an examination in aid of execution.

[121] This request is based on the evidence given by Eduardo Garcia on his own Examination in Aid of Execution on May 11, 2021, filed at the case conference, which included evidence to the effect that the Garcias “ask our daughter to take care of the payments. We gave the money to her because we don’t have an account, so she pays those bills, you know, on our behalf.”

[122] Asked which account their daughter uses to pay the bills on behalf of the Garcias, Eduardo Garcia replied that: “I don’t know how she pays it but we just give her the money”. Subsequent evidence was to the effect that the various expenses paid on behalf of the Garcias by their daughter includes ordinary household and utility expenses for their home. [27]

[123] The evidence of Patricia Garcia given on her Examination in Aid of Execution on May 10, 2021 was to the same effect: her daughter pays the accounts and she (Patricia) gives her daughter the money to do so. [28] Patricia Garcia testified that she did not know which bank account her daughter used to pay the bills on their behalf. [29]

[124] Asked whether their daughter, Maria Garcia, would confirm the evidence of Patricia Garcia, Patricia Garcia replied that: “you would have to ask her”. [30]

[125] At the hearing of the case conference, Eduardo Garcia submitted that their daughter, Maria Garcia, would not consent to be examined.

[126] Pursuant to Rule 60.18(6), where any difficulty arises concerning the enforcement of an order, the court may make an order for the examination of any person who the court is satisfied may have knowledge of the matters set out in subrule (2); and may make such order for the examination of any other person as is just.

[127] The challenge for me, based on the state of the Record at present, is that there is no evidence other than that summarized above with respect to the requested examination of Maria Garcia. I do not have any clear evidence of even the fact of whether she resides in the jurisdiction. The evidence discloses only, by the admission of Patricia Garcia and Eduardo Garcia, that she pays many of the bills relating to their home. The further evidence from Patricia Garcia is to the effect that they give her money to do so, and she pays the bills from an account, the particulars of which Patricia Garcia has no knowledge.

[128] There is no evidence, for example, of whether any of the funds that Maria Garcia uses to pay bills on behalf of her parents can be traced back to funds of the Plaintiff.

[129] Accordingly, in the circumstances, and while I would have no difficulty concluding that, as required by Rule 60.18(6), there have clearly been difficulties that have arisen concerning the enforcement of the Dunphy Order, I find that I do not have a sufficient basis to make an order pursuant to Rule 60.18 at this time.

[130] However, this is without prejudice to the right of the Plaintiff to bring a motion, on a proper record and with proper service, for an order to examine Maria Garcia in aid of execution related to the Dunphy Order and the Non-Dissipation Order. I also observe that such a motion would be consistent with the application originally contemplated by Dunphy, J. referred to at paragraph 23(d) above.

Result and Disposition

[131] I decline to make a finding of contempt or an order for the examination in aid of execution of the non-party, Maria Garcia, at this time. I do so expressly without prejudice to the right of the Plaintiff to bring either or both such motions at any time.

[132] I make the consent orders as set out above with respect to the sale of the Guatemala Property and the transfer of proceeds of sale to the Plaintiff via the trust account of Plaintiff’s counsel as described at para. 60 above. The Guatemala Property should be sold forthwith and the proceeds transferred to the Plaintiff to the credit of this action.

[133] In addition, I direct and order the Garcias to account, fully, for the funds as already ordered by Dunphy, J. I make this order not because the Garcias have not already been ordered to do precisely this, but because they purport to be confused about what, in particular, they are required to provide, or take the position that they have already provided it.

[134] To put it in the simplest, if high level, terms, the Garcias were found to have taken and received the “smaller payments” as described by Dunphy, J. amounting to $20,843,888. They are required to account for those funds not limited by any amounts that the Plaintiff might be able to prove are in Guatemala or may otherwise be available for transfer to the benefit of the Plaintiff in Canada.

[135] In my view, this means accounting for every dollar of the $20,843,888 taken, literally from the point at which the funds ought to have been directed to or for the benefit of Cajubi and were diverted to or for the benefit of the Garcia Defendants or at their direction or with their participation and knowledge, right through however many subsequent steps or transfers were undertaken to show where the funds are now.

[136] To be very clear to the Garcias, it is not a satisfactory answer to state that the information and/or supporting documentation has already been provided. To the extent that the accounting I am directing them to provide includes information or documentation they have already provided, so be it. That information and documentation should be provided in a manner and in a form such that the exact dollar amounts of each individual transaction can be traced.

[137] This also means that the Garcias need to make inquiries of third parties, including but not limited to family members such as Morales.

[138] I also order and direct the Garcias to provide full particulars to the Plaintiff of all of their efforts undertaken to comply with this order, including copies of all correspondence and communications, in whatever form.

[139] The accounting, and the particulars of all efforts undertaken by the Garcias to provide same, shall be provided to the Plaintiff through its counsel within 90 days. To the extent that items or inquiries or steps remain outstanding, the Garcias will clearly identify such, together with their efforts undertaken to comply within the 90 day period, and their proposed timetable for the completion of those steps.

[140] I further direct and order the Garcias, who are residents of Canada, to provide to counsel for the Plaintiff, within the same 90-day period, their income tax returns and Notices of Assessment from the Canada Revenue Agency for the years 2020, 2021, and 2022. They are directed to provide the same materials for 2023 as and when filed and/or received.

[141] The Garcias are further directed to cease publishing or posting on social media or in any other manner whatsoever defamatory statements and statements purportedly of fact that are inconsistent with the various orders and endorsements of this Court.

[142] The Garcias are further directed to pay the outstanding costs awards referred to above.

[143] Finally, the Garcias are required to re-attend to be examined in aid of execution on dates to be agreed with counsel for the Plaintiff. I am satisfied based on their Record before me and as summarized above that the earlier examinations were frustrated and not completed such that they must be continued.

[144] Those examinations may, at the option of the Plaintiff, be conducted in stages in the sense that if the Plaintiff wishes, it may direct its counsel to examine the Garcias now, and again following the delivery of the full accounting as I have directed above or alternatively, the Plaintiff may examine the Garcias following the delivery of the full accounting.

[145] The Plaintiff seeks its costs in respect of this motion. The plaintiff shall file brief submissions on costs, not exceeding three pages in length, together with its Bill of Costs, within 10 days. The Garcias shall have 10 days thereafter to file submissions on costs, also not exceeding three pages in length. All submissions are to be delivered to the Court via my Judicial Assistant, Ms. Mary Sibenik, at mary.sibenik@ontario.ca.

[146] Order to go to give effect to these Reasons. Counsel for the Plaintiff is directed to prepare the form of order. If the parties cannot agree on the form of order, counsel for the Plaintiff may schedule through the Commercial List Office a Chambers appointment to settle the terms of the order.

Osborne J.

[1] The relief sought by the Plaintiff is as set out in the Notice of Motion returnable January 13, 2023 and the Case Conference Memoranda of the Plaintiff returnable July 6, 2023 and August 10, 2023. [2] Defined in the Reasons at Footnote 2: essentially senior corrupted executives of Cajubi. [3] Defined in the Reasons at Footnote 1: the Garcias and the entities controlled by them that played a role in the schemes. [4] Reasons, para. 430. [5] Dunphy Order, para. 1. [6] Dunphy Order, para. 6. [7] Dunphy Order, paras. 7 and 8. [8] Dunphy Order, paras. 14 and 15. [9] Reasons, para. 12. [10] Dunphy Order, paras. 13, 14, 16 and 17. [11] Non-Dissipation Order, para. 1 [12] Non-Dissipation Order, paras. 2, 6, 8, 9, 10, 11, 12 and 16 [13] Reasons, paras. 197 and 406. [14] Reasons, paras. 428 and 429. [15] Transcript, p. 40-44, Q. 107 – 126. [16] Reasons, para. 422. [17] Reasons, para. 425. [18] Reasons, para. 461. [19] Reasons, para. 427. [20] Motion Record, Tab B(4). [21] Motion Compendium, Tab 5 [22] Supplementary Affidavit of Eduardo Garcia, paras. 5 – 8. [23] Transcript of Cross-examination of Eduardo Garcia, Q 292 – 295 and 1156 – 1160. [24] Cross-examination of Patricia Garcia, Q 272. [25] Cross-examination of Patricia Garcia, Q 276 – 279. [26] Cross-examination of Patricia Garcia, Q 101. [27] Transcript of Eduardo Garcia, May 11, 2021, Q 171 -173, 468 - 473. [28] Transcript of Patricia Garcia, May 10, 2021, Q 87 – 88, 227 – 228. [29] Transcript of Patricia Garcia, May 10, 2021, Q 240. [30] Transcript of Patricia Garcia, May 10, 2021, Q 228.