Court File and Parties
COURT FILE NO.: CV-23-93741
DATE: 2023/12/20
SUPERIOR COURT OF JUSTICE – ONTARIO
RE:
LES ENTREPRISES RGMSP LTÉE (PARISEN CONSTRUCTION), Plaintiff, moving party
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DANAI MAKORE, DANAI BY HANNAH FASHION DESIGNS-WINNIPEG; PETER MAUPATIN, GLADINUS BATURE; MOFOGOFUNOLUWA SOMUIYIWA; JUDE OGBONNA; SIMISOLA ONAYINKA AND NDUWIMANA JACOB), Defendants
BEFORE:
C MacLeod RSJ
COUNSEL: Christopher P. Morris, for the Moving Party (Plaintiff)
HEARD: December 20th, 2023
ENDORSEMENT
[1] On November 2nd, 2023 I granted a "Norwich" order and an order to freeze certain funds held in a bank account at CIBC. (see 2023 ONSC 6235). This is a motion brought pursuant to Rule 37.17 which, in an urgent case, permits a motion to be brought before the commencement of a proceeding on the moving party's undertaking to commence the proceeding forthwith.
[2] The background is set out in the earlier endorsement. It appears from the evidence that someone was able to divert funds the plaintiff owed to S & R Mechanical by providing the plaintiff with a fraudulent email to deposit the funds into a new bank account. S & R had not in fact changed its bank and the sum of $318,235.80 was consequently deposited into a bank account at the CIBC.
[3] Since the order was granted, in obedience to the court order, the CIBC froze the amount remaining in the account (approximately $80,000) and provided information to the plaintiff identifying individuals and bank accounts to which the funds appear to have been transferred.
[4] The plaintiff now seeks a further ex parte order freezing the funds that can be traced to these additional bank accounts and requiring those financial institutions to provide information as to any additional transfers and the identity and location of the funds. The target financial institutions were put on notice to the extent it was possible to do so and none of them have taken a position on the motion. For obvious reasons, no notice was given to the target account holders.
[5] I am prepared to grant the order requested. We are still dealing with an identifiable fund of money which appears to be the property of the plaintiff and to which the defendants appear to have no colour of right. Unlike a Mareva Injunction freezing all assets of defendants who appear to be in the process of moving funds out of the jurisdiction or otherwise disposing of assets, an order to preserve a specific fund is a more restrictive and more readily available remedy.
[6] Without prejudice to the right of the plaintiff to seek broader interlocutory relief (with or without notice as may be appropriate), the order I have granted is a targeted freezing order combined with a further Norwich order for disclosure of information.
[7] Certain narrow injunctive relief is also granted in respect of any additional accounts or locations to which the identified transferred funds may have subsequently been transferred.
[8] An order may go as signed.
Justice C. MacLeod
Date: December 20, 2023
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COURT FILE NO.: CV-23-93741
DATE: 2023/11/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE:
LES ENTREPRISES RGMSP LTÉE (PARISEN CONSTRUCTION), Moving Party
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JOHN DOE; JOHN DOE CORPORATION; CANADIAN IMPERIAL BANK OF COMMERCE (CIBC), Responding Parties
BEFORE:
Regional Senior Justice Calum MacLeod
COUNSEL: Christopher P. Morris & Jessica Barrow, for the Moving Party (Plaintiff)
ENDORSEMENT
Regional Senior Justice C. MacLeod
Released: November 2, 2023