NEWMARKET COURT FILE NO.: CV-24-398-00 DATE: 20240612 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: VANESSA YANG and SUNDAY UNIVERSE INC. o/a TSUKIJI FOODS TRADING LTD. Plaintiffs

– and –

YUEH-TANG YANG a.k.a. TIN FONG YANG a.k.a. TOM YANG, TEION INTERNATIONAL INC., TSUKIJI FOODS CANADA INC., 2840188 ONTARIO LTD. and JANE DOE Defendants

Counsel: Adam Wygodny and Jason Moore, for the Plaintiffs Defendants, Without Notice and Not Appearing

HEARD: June 5, 2024

REASONS FOR DECISION

HEALEY, J.:

Nature of the Motion

[1] The Plaintiffs, Vanessa Yang (“Vanessa”) and Sunday Universe Inc. o/a Tsukiji Foods Trading Ltd. (“TFTL”) (collectively the “Plaintiffs”) bring this motion on an ex parte basis seeking a Mareva injunction against the Defendants; an interim order for the recovery of personal property, an order freezing assets, including but not limited to bank accounts belonging to the Defendants, and leave to issue a Certificate of Pending Litigation (“CPL”) against two properties: 10952 Woodbine Avenue, Unit 2; and 10952 Woodbine Avenue, Unit 3, located in Markham, Ontario.

[2] In the underlying action the Plaintiffs claim for $25,000,000 in damages against the Defendants, jointly and severally, for fraud, interference with contractual relations, unlawful interference with economic interests, passing off, conversion, oppression, and unjust enrichment. Vanessa also claims against the Defendant, Yueh-Tang Yang, a.k.a. Tin Fong Yang, a.k.a. Tom Yang (“Yueh-Tang”) for $2,000,000 for assault, battery, conversion, intrusion upon seclusion, and intentional infliction of mental distress, and against Yueh-Tang and Jane Doe for $1,000,000 for appropriation of personalty and civil conspiracy.

[3] In addition to the affidavits filed in support of this motion, Vanessa’s evidence includes the particulars pled in her Amended Statement of Claim, which she has affirmed to be true.

[4] Following the argument of this motion on June 5, 2024, this court granted most of the relief sought, with reasons to be released later. These are the reasons for making that order.

The Parties

[5] Vanessa and Yueh-Tang are former romantic partners who have one child of their union born June 17, 2017. Their relationship has broken down and they are now involved in a Family Court proceeding in Newmarket. The pleadings in that proceeding were provided to this court. At issue in the Family Court proceeding, in addition to legal arrangements for the parenting of their son and child support, is whether Vanessa and Yueh-Tang were ever validly married, and the date of their separation. None of those issues are germane to this motion.

[6] The Plaintiff TFTL was incorporated by Vanessa on October 27, 2017 pursuant to the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 (“OBCA”) with a registered office in Markham, Ontario.

[7] The Defendant Teion International Inc. (“Teion”) is a corporation incorporated on July 3, 2015 under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended, with a registered office in Toronto. Yueh-Tang is the sole director of Teion.

[8] The Defendant 2840188 Ontario Ltd. (“HoldCo”) is a corporation incorporated on May 14, 2021 under the OBCA with a registered office in Markham. Yueh-Tang is the sole director of HoldCo.

[9] The Defendant Tsukiji Foods Canada Inc. (“TFCI”) was incorporated by Yueh-Tang under the OBCA on January 13, 2022. He is TFCI’s sole director.

[10] Mr. Wygodny advised that, to the best of his and Vanessa’s knowledge, no shares were ever issued for any of these corporations.

[11] Jane Doe is Yueh-Tang’s current girlfriend. Her identity is unknown to Vanessa.

The Evidence

[12] Vanessa’s evidence is that she met Yueh-Tang in 2009 while she was studying business at Concordia University in Montreal. Five years earlier, Vanessa had moved to Montreal from Shanghai, China, where she was born.

[13] Yueh-Tang is a dual citizen of Canada and the Republic of China (“Taiwan”). Vanessa has produced a copy of his National Identification Card.

[14] It is her evidence that Yueh-Tang persuaded her to leave Montreal to move to Toronto, abandon her studies, and give up a job opportunity in Asia to start a business together. That business became Teion. At the time of Teion’s incorporation, Vanessa’s evidence is that she trusted Yueh-Tang completely and signed documents at an accounting firm without understanding their particulars. As a result, even though the intent was to build the business as a partnership with both being equal owners, Yueh-Tang became the sole registered director.

[15] Before Teion was incorporated and Vanessa was still living in Montreal, her evidence is that Yueh-Tang told her that any money that she gave to him would be used exclusively to invest in real property and businesses to their mutual benefit, and that all the money that she gave to him would be repaid by him. These representations continued to be made by Yueh-Tang at various times throughout their relationship until their marriage breakdown, which, according to Vanessa’s pleading in the Family Court proceeding, occurred on June 15, 2023. She believed those representations to be truthful at the time and relied on them whenever giving money to Yueh-Tang.

[16] Teion’s business is the importation and distribution of seafood to wholesalers in Canada. It occupies warehouse space at 5-115 Apple Creek Boulevard in Markham. It currently shares this leased space with TFTL. When Vanessa incorporated TFTL in 2017, it was to complement Teion’s business, by distributing imported seafood to sushi restaurants and retailers in the Greater Toronto Area.

[17] After Teion’s incorporation, Vanessa worked for the company. Yueh-Tang told her that she would receive a monthly salary plus commissions of 10 to 20%. Her salary was transferred by Yueh-Tang into her personal account at the Bank of Montreal branch in Pointe-Claire, Quebec, for which she has produced records. Her evidence is that she never received commissions, and there were months that she was not fully paid by Teion. She claims to be owed the sum of $97,365 for unpaid compensation. This, however, is the least of her claims.

[18] Vanessa’s evidence is that beginning around August 2016, Yueh-Tang repeatedly induced her into transferring large sums of money to him. She has also alleged - and produced some photographs in support of this allegation - a coercive and overtly violent intimate partner relationship with Yueh-Tang, physically, sexually and emotionally. Her Statement of Claim contains detailed particulars of physical violence and non-consensual sexual intercourse. He has also told her that he wishes to see her dead.

[19] Further, he somehow gained access to her and TFTL’s bank accounts, for which he has no signing authority, and has removed large amounts of money. Vanessa says that he did this without her knowledge or consent. Vanessa discovered these transactions in late 2023, as she did not regularly scrutinize her business or personal bank statements, relying instead on the accountant and updates from the bookkeeper.

[20] Vanessa has produced copies of cheques with accompanying bank statements which indicate that Yueh-Tang wrote a series of cheques totaling $1,455,948.08 from the TFTL TD account to Teion between February 21, 2019 and March 22, 2022. In December 2019, Yueh-Tang was added as a primary account holder to Vanessa’s BMO account, but she has no knowledge of how this was accomplished by Yueh-Tang.

[21] On July 13, 2020, unbeknownst to Vanessa, Yueh-Tang issued a bank draft in the amount of $215,000 from her BMO account to an unknown recipient.

[22] In November 2020, Yueh-Tang completed an RBC Personal Statement of Affairs form in Vanessa’s name and forged her signature on that document. On December 10, 2020, he forged Vanessa’s signature on a guarantee given to RBC for a $200,000 non-revolving term loan for Teion. Those steps were taken without her knowledge or consent.

[23] Between January 27, 2021 and March 30, 2022, he transferred another $11,447.03 out of her BMO account to an unknown recipient.

[24] On or about January 11, 2021, Vanessa states that Yueh-Tang and Jane Doe forged her signature on a RBC Guarantee and Postponement of Claim, that, amongst other things, made her personally liable for Teion’s indebtedness to RBC. She denies signing those documents. Her evidence is that Yueh-Tang and Jane Doe conspired to have Jane Doe impersonate her in a meeting with representatives of RBC and forged her signature.

[25] Between March 1, 2021 and December 20, 2022, Yueh-Tang wrote and signed a series of cheques on the TFTL RBC account payable to Teion totaling $1,981,825.83, even though only Vanessa had signing authority for the TFTL RBC account.

[26] On April 6, 2021, Yueh-Tang transferred $10,000 from TFTL’s RBC account to Teion, and a week later used the credit card associated with that account to make a purchase of $2,237.40.

[27] On September 10, 2021, Yueh-Tang forged Vanessa’s signature on documents that he submitted to RBC to obtain an $80,000 business line of credit for TFTL, (the “RBC LOC”), which includes an RBC Business Loan Insurance Plan Application dated September 10, 2021, and an RBC General Security Agreement dated September 14, 2021. Vanessa’s evidence is that she never applied for the RBC LOC and that this is another instance of Jane Doe impersonating her in meetings with RBC and forging her signature.

[28] Vanessa confronted Yueh-Tang about the RBC LOC in September 2021 after receiving email communication about it from a business account manager at RBC. Yueh-Tang represented to her that it should not concern her, and she would not be liable for the LOC. Relying on Yueh-Tang’s representations, Vanessa did not pursue the matter.

[29] There is evidence of Jane Doe’s existence. Exhibit OOO to Vanessa’s Affidavit are screenshots of texts and photographs sent to her by Yueh-Tang in which he asks, “you want to see my new date?” and attaching pictures of their child seated beside a woman who Vanessa believes to be Jane Doe. The child’s school also alerted Vanessa to the fact of a female coming to pick the child up.

[30] Other payments have come out of TFTL’s RBC account: $1,000 to a vehicle wrapping service, payments to Aviva Insurance, and the downpayment on a Tesla motor vehicle of $10,000. It appears from the evidence that Yueh-Tang initiated the purchase of the vehicle on May 31, 2022, with Vanessa present, and insisted that she signed the lease in her name. Unbeknownst to her, the TFTL RBC account because pre-authorized to make the monthly payments to Tesla Canada, and to CAA Insurance. Up to September 1, 2023, $22,643.88 was debited from TFTL’s RBC account for the lease payments, and $6,537.72 debited for the insurance payments. Vanessa disclosed during the hearing of this motion that the vehicle is currently in her possession.

[31] The total amount of illicit transfers that Vanessa alleges that Yueh-Tang has orchestrated, not including payments that she knowingly made while relying on his representations of repayment, is $4.1M.

[32] Vanessa asserts that Yueh-Tang incorporated TFCI in January, 2022 to deliberately create confusion between that company and TFTL.

[33] On December 29, 2022, he changed the online passwords for TFTL’s bank accounts at TD and RBC, as well as for the passwords for the domain name, TFTL’s website, Facebook and Instagram accounts, all of which had been set up by Vanessa. He assumed control of them without Vanessa’s knowledge or consent, and used them to divert TFTL’s customers and payments to TFCI. On that same date, he deliberately destroyed Vanessa’s laptop computer, which contained substantially all of Vanessa’s and TFTL’s business and banking information.

[34] By the end of April 2023, Yueh-Tang had diverted all profits earned by Teion and TFTL to himself. He laid off employees from TFTL without consulting with Vanessa.

[35] In or around September 2023, again unbeknownst to Vanessa, Yueh-Tang forged her signature to take out a $60,000 TD Canadian Emergency Business Account loan.

[36] Vanessa’s affidavit also discloses that, on occasion, Yueh-Tang has made transfers to her. She has detailed each of these in her evidence. However, these transfers are a small portion of what has been removed from Vanessa’s or TFTL’s accounts.

[37] Vanessa has also knowingly transferred money to Yueh-Tang over the years, separate from what he has taken without her knowledge. She maintains that she did so when relying on his express representations that the money would be repaid to her. She refers to these as “induced payments”. The largest of those transfers, $200,000, was from a joint HSBC account to Teion in December 2021. From 2016 to 2023, as summarized on Schedule “D” to her factum, Vanessa transferred approximately $331,145 to Yueh-Tang or Teion, or to TFTL after Yueh-Tang had taken control of that company. Her evidence is that the payment to TFTL was by bank draft, and occurred after the parties’ separation, when Yueh-Tang had her accompany him to the RBC branch and have a draft of $34,645 drawn from the RBC LOC. This was the same RBC LOC for which Vanessa was solely responsible after her signature had been forged.

[38] Most of the above evidence was discovered, Mr. Wygodny advised the court, by lawyers retained by Vanessa following her separation from Yueh-Tang as they pieced together the parties’ financial history.

[39] The parties have also owned real estate over the years. Beginning on November 21, 2015, Vanessa and Yueh-Tang signed an agreement of purchase and sale for a condominium at 38 Cedarland Drive, Markham for a purchase price of $505,900. Yueh-Tang convinced her that title to the property should be in his name alone. Vanessa has produced copies of bank drafts drawn on her personal BMO account on March 15, 2016 and February 7, 2017 totaling $82,237.50. This money was for the down payment for the Cedarland property. Vanessa says that she was also the source of all other closing costs. A mortgage of $379,425 was registered against the property, which required payments of $1,858.30 monthly. Her evidence is that she contributed substantially all the funds to make the mortgage payments. The Cederland property did not sell until April, 2018. Vanessa’s affidavit is silent as to whether there were net sale proceeds, and if so, how they were used.

[40] In the meantime, on October 14, 2017, Yueh-Tang and Vanessa entered into an agreement of purchase and sale for the property municipally known as 50-280 Paradelle Drive, Richmond Hill, at a purchase price of $1,018,000. Yueh-Tang told her that the Paradelle property was being purchased as an investment property. Again, Vanessa paid the deposit. Relying on the Yueh-Tang’s representations of repayment and, at his request, Vanessa arranged for the issuance of two bank drafts totaling the sum of $22,500 from her BMO account to Yueh-Tang for the deposit for the Paradelle property.

[41] The purchase of the Paradelle property closed on December 17, 2017, and title was placed in joint ownership. A mortgage was registered for $814,400, with the remainder of the purchase price and all closing costs paid by Vanessa. Between March 26, 2018 and February 5, 2020, relying on Yueh-Tang’s repayment representations, Vanessa electronically transferred the sum of $72,358.31 from her BMO account to Yueh-Tang’s TD account for the monthly mortgage payment on the Paradelle property.

[42] On January 30, 2020, Vanessa and Yueh-Tang granted BMO a charge on the Paradelle property for the face amount of $775,000. Without Vanessa’s knowledge or consent, her BMO account became pre-authorized to make direct mortgage payments for the Paradelle property to the lender. Between February 19, 2020 and May 1, 2020, BMO debited the total sum of $13,444.87 from Vanessa’s account for the Paradelle mortgage.

[43] In or about May 2020, Yueh-Tang told her that it was imperative that they sell the Paradelle property immediately due to an imminent housing market crash. Vanessa eventually gave in to Yueh-Tang’s demand and agreed that the Paradelle property be listed for sale.

[44] On May 30, 2020, the family moved into a rental property at 252 Conklin Crescent, Aurora. The rental cost was $2,850 per month. At Yueh-Tang’s insistence, Vanessa paid the rent from her personal funds because Yueh-Tang claimed that he had run out of cheques.

[45] On June 3, 2020, the Paradelle property was sold for $1,070,000. The net proceeds from the sale of the Paradelle property were $239,463.06. Shortly after its sale, Yueh-Tang informed Vanessa that he deposited some of the net proceeds into his personal RRSP and some of the funds into Teion for “cash flow”. She has never received any of the proceeds from the sale of the Paradelle property, nor an accounting of what Yueh-Tang did with them. For the purposes of making full disclosure, Mr. Wygodny informed the court that his client has told him that there has been discussion in the Family Court proceeding of a lump sum payment being made to Vanessa from those proceeds.

[46] On July 5, 2022, HoldCo purchased the following industrial condominium units: (i) the property municipally known as 10950 Woodbine Avenue, Unit 2, Markham, Ontario for $2,685,480.; and, (ii) the property municipally known as 10950 Woodbine Avenue, Unit 3, Markham, Ontario, for $2,685,480.

[47] Vanessa’s evidence is that Yueh-Tang used her funds and, with Jane Doe, forged her signature on loan documents to purchase the Woodbine properties.

[48] On October 25, 2022, Yueh-Tang purchased a residential property municipally known as 22 Joyce Boulevard, in the Town of Whitchurch-Stouffville, Ontario for the sum of $895,000. He took title in his name only. That same day, Yueh-Tang charged the Joyce property with a mortgage from the Bank of Nova Scotia, registered for the face amount of $1,118,750 (notwithstanding the purchase price being only $895,000). Yueh-Tang sold the Joyce property for $1,080,000 on May 5, 2023. If there were any proceeds of sale, Vanessa does not know what happened to them.

[49] On April 11, 2023, Vanessa flew to Scotland, United Kingdom, to attend a holistic retreat. Yueh-Tang agreed that he would meet her with their child in Barcelona on April 25. However, he called her in a fit of rage on April 22, 2023, and told her that he would not be meeting her in Barcelona.

[50] On May 18, 2023, Yueh-Tang purchased another property, located at 68 Mannar Drive, Markham, for $1,520,000. Again, title was taken solely in Yueh-Tang’s name. He told Vanessa that he intended the Mannar property to be the home for the family. According to Vanessa’s perspective on their separation, this occurred the month before their relationship permanently broke down. In contrast, Yueh-Tang claims a separation date in 2022.

[51] Yueh-Tang charged the Mannar property with a mortgage from the Bank of Nova Scotia for the face value of $1,900,000. It is unknown to Vanessa - and certainly difficult to understand - how Yueh-Tang again had a lender provide financing that exceeded the purchase price of the property.

[52] In or around early June 2023, Yueh-Tang called Vanessa to advise her to not disturb his personal life and that she should not come back to Canada.

[53] In late June 2023, Yueh-Tang informed Vanessa for the first time that he had taken their child to Taiwan. She had not given him her permission to do so, and surmises that whatever documents he showed the authorities purportedly providing her permission to leave Canada with the child likely contained her forged signature.

[54] On September 3, 2023, Yueh-Tang and their child returned from Taiwan. Vanessa returned from Scotland two days thereafter. Yueh-Tang refused to allow her to move back into the Mannar property. He rented two different Airbnb properties for Vanessa and the child to live in between September 5 and 29, 2023.

[55] On September 25, 2023, Yueh-Tang sent Vanessa a message stating that she would have to pay down the Tesla lease and the RBC LOC by herself.

[56] In late September 2023, while Yueh-Tang was absent from the Mannar property, Vanessa entered to search for her personal belongings. While she was searching, Vanessa discovered that Yueh-Tang had purchased an accidental death insurance policy on her life, with Yueh-Tang as sole beneficiary. She believes that Yueh-Tang forged her signature on the consent required for an insurer to issue a policy insuring a person against the accidental death of another individual.

[57] Schedule B to Vanessa’s Notice of Motion lists her personal property and their value, which includes items of expensive jewelry, luxury fashion items and accessories, electronics, and a massage chair, all of which she believes remains in Yueh-Tang’s possession, along with Vanessa’s identification cards, credit card, and their child’s passports.

[58] On September 26, 2023, Vanessa reported Yueh-Tang’s conduct to the York Regional Police. The following day he was arrested and charged with one count of assault, one count of assault by choking, one count of fraud exceeding $5,000, one count of mischief/damage to property exceeding $5,000. During submissions, Mr. Wygodny advised the court that those charges have since been resolved by Yueh-Tang entering into a peace bond, and that the police consider the matter to be largely a civil dispute.

[59] Vanessa’s evidence is that she has delayed in bringing this motion because she and Yueh-Tang have been engaged in productive resolution discussions about child support and parenting issues in the Family Court proceeding, as recently as April 25, 2024.

[60] On May 10, 2024, Vanessa caused a caution to be registered both against the Mannar property and the Woodbine properties. The caution did not stop the Mannar property from being sold and transferred to a third-party purchaser on May 27, 2024. It sold for $1,580,000. In her supplementary affidavit sworn May 31, 2024, Vanessa has reproduced the content of a letter sent from Yueh-Tang’s family law lawyer, Lawrence Liquornik, to Vanessa’s family law lawyer, in which Mr. Liquornik explained that the Registrar agreed that the registration of the caution was unlawful and expunged it prior to closing.

[61] Although the motion seeks leave to register a CPL against the Mannar property, Mr. Wygodny advised that the Plaintiffs were seeking to register a CPL only against the Woodbine properties now that it has been confirmed that the Mannar property has been transferred.

[62] Vanessa has not received any of the proceeds from the Mannar property.

[63] Once Vanessa became aware that Yueh-Tang had sold the Mannar property, she formed the belief that Yueh-Tang intends to liquidate his assets. This belief is also based on Yueh-Tang having advised her during their Family Court proceeding that he intends to leave Canada and return to Taiwan permanently once they finalize their settlement. By way of full disclosure, Mr. Wygodny advised the court in his submissions that since Vanessa’s final supplementary affidavit was filed for this motion, Yueh-Tang has also indicated to her that he is undecided about whether he will leave Canada.

[64] Nonetheless, Vanessa remains of the belief that there is a real risk that he will leave Canada or, in the alternative, transfer his assets to recipients outside of Canada.

[65] Vanessa has included text messages exchanged between herself and Yueh-Tang on April 22, 2023, which are written in a Chinese language. These have been reproduced in English through “Google translate”. For the purpose of this motion, I do not accept the reliability of the translations found at Exhibit AAA – many are nonsensical. However, as Vanessa was raised in China and moved to Canada at the age of 16, I infer that she can communicate in that language, especially since the text messages contain a response. I therefore accept Vanessa’s evidence that Yueh-Tang’s messages include a statement from him that he could return her money anytime but would fight to the end. It is her position that this is an admission that he and/or the other Defendants have money that belongs to her or TFTL.

[66] Vanessa asserts in her Amended Statement of Claim that all the bank accounts listed in Schedule A to the Claim, repeated in Schedule A to her Notice of Motion, are solely or jointly controlled by the Defendants.

[67] The moving parties have attempted to make full and fair disclosure to the court, not only by providing updated information through counsel where applicable, but by setting out the anticipated defences that Yueh-Tang might make to this claim. Specifically, Vanessa anticipates that Yueh-Tang will raise the following defences to the action, and to this motion: (a) There was never any partnership agreement with Vanessa in relation to Teion; (b) All of the monetary transfers were done with Vanessa’s knowledge or approval; (c) This action is statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”); (d) The repayment representations were not made or, if they were made, were not reasonably relied upon; (e) Vanessa did not make reasonable efforts to mitigate her losses; (f) Vanessa’s monies to Yueh-Tang were gifts, or, alternatively, interest-free loans; and, (g) Vanessa did not move with urgency in bringing this motion.

[68] Vanessa acknowledges no written partnership agreement but submits that it is unreasonable to believe that she gave up her university degree and the job opportunity in Asia, worked long hours, took on so much responsibility and provided Yueh-Tang with funds for Teion without their mutual understanding that Teion was to belong to them equally.

[69] She further asserts that it is not reasonable that she would have approved of millions of dollars of transfers from the Plaintiffs’ bank accounts, or that she would gift that amount of funds, to Yueh Tang. There is no evidence of any gifts, interest-free loan agreements or other loan agreements.

[70] Her evidence is that she could not have found out about most of the conduct within the basic limitation period because Yueh-Tang went to lengths to conceal the conduct from her. She has pleaded that the ultimate limitation period set out in s. 15 of the Limitations Act should apply.

[71] With respect to any denial of the repayment representations, Vanessa submits that it is unreasonable to believe that she would have provided Yueh-Tang with millions of dollars and funded down payments and mortgage payments on properties with no expectation of any return.

[72] Vanessa’s response to any mitigation defence is that she was in an abusive relationship with Yueh-Tang for many years and he took her agency from her. It is her evidence that she lost control over her own life when Yueh-Tang repeatedly physically, sexually and psychologically abused her. Further, she says that she did not understand the extent of the losses until after she retained lawyers to assist her.

[73] Yueh-Tang has not defended Vanessa’s claim in the Family Court proceeding by filing a reply. In addition to child-related claims, Vanessa has sought an equalization of net family properties, declarations of trust interest in Yueh-Tang’s business interests and the Mannar Drive property and an order freezing assets, specifically an order restraining Yueh-Tang from depleting his real property interests and/or business interests.

[74] Finally, Yueh-Tang has confirmed via text message that he could repay Vanessa her money, presumably if he wished to.

Mareva Injunction and Freezing Order

[75] Rule 40.02 (1) of the Rules of Civil Procedure, R.R.O 1990 Reg. 194 permits an interlocutory injunction or mandatory order to be granted on motion without notice for a period not exceeding ten days.

[76] In her claim, Vanessa has claimed an interim, interlocutory and permanent order enjoining the Defendants or their agents from, directly or indirectly, disposing of any assets, including the bank accounts listed in Schedule A to the Amended Statement of Claim and also attached to the Notice of Motion.

[77] It is recognized that an ex parte motion for such extraordinary relief should only be granted where there is good reason to believe that a defendant would frustrate the process of justice before the motion can be decided, resulting in irreparable harm to the plaintiff, or time does not permit notice to be given: Robert Half Canada Inc. v. Jeewa, (2004), 71 O.R. (3d) 650 (S.C.J.). However, in 2092280 Ontario Inc. v. Voralto Group Inc., 2018 ONSC 2305 (Div. Ct.) [“Voralto Group”], at paragraph 21, the court concluded that the motion judge erred in refusing to grant a Mareva injunction in the case of alleged fraud, where serious risk of dissipation could be inferred, citing Strathy J. in Sibley & Associates LP v. Ross (2011), 2011 ONSC 2951, 2011 CarswellOnt 4671(Ont. S.C.J.), at paragraph 63:

Rather than carve out an “exception” for fraud, however, it seems to me that in cases of fraud, as in any case, the Mareva requirement that there be risk of removal or dissipation can be established by inference, as opposed to direct evidence, and that inference can arise from the circumstances of the fraud itself, taken in the context of all the surrounding circumstances. It is not necessary to show that the defendant has bought an air ticket to Switzerland, has sold his house and has cleared out his bank accounts. It should be sufficient to show that all the circumstances, including the circumstances of the fraud itself, demonstrate a serious risk that the defendant will attempt to dissipate assets or put them beyond the reach of the plaintiff. [Emphasis added.]

[78] Voralto Group was cited by Hooper J. in McRae-Yu v. Profitly Inc., et al., 2024 CarswellOnt 3675, 2024 ONSC 1593, at para. 22, in a case in which a Mareva injunction was sought in an action alleging fraud:

… A Mareva injunction is an injunctive order that restrains the defendant from dissipating assets or from conveying away its property pending the court's determination in the proceedings. It is an extraordinary remedy as it, in effect, permits pre-judgment execution against the defendant's assets. In cases of fraud, however, the court's general reluctance to allow pre-judgment execution is outweighed by the more important goal of ensuring the civil justice system provides a just and enforceable remedy against unconscionable conduct.

[79] In Chitel et al. v. Rothbart et al., the Court of Appeal established the following criteria to be considered by the court when deciding to grant a Mareva injunction on a motion brought without notice to the defendant: (a) The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know. (b) The plaintiff should give particulars of his claim against the defendant, stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant. (c) The plaintiff should give some ground for believing that the defendants have assets here. (d) The plaintiff should give some grounds for believing that there is risk of the assets being removed before the judgment or award is satisfied. (e) The plaintiff must give an undertaking as to damages.

[80] The Plaintiffs and their counsel, in this court’s view, appear have gone to lengths to satisfy the first two criterion. It is trite law that a person who brings an ex parte motion has a duty to disclose all material facts, including facts which are not favourable to the moving party. The Plaintiffs appear to have taken care to do so.

[81] The Plaintiffs have also provided ample evidence that the Defendants have assets that could be dissipated. The Plaintiff has also provided her undertaking as to damages.

[82] Taking into account the entirety of Vanessa’s evidence in relation to Yueh-Tang’s treatment of her and their business and financial affairs throughout their relationship, I find that she has raised a prima facie case of fraud perpetrated against the Plaintiffs by Yueh-Tang for the benefit of himself personally and his corporate interests. She has put before the court abundant, albeit untested, evidence to support the claims made in this proceeding. Her evidence is that Yueh-Tang has absconded with $4.1M of the Plaintiffs’ money over the years without Vanessa’s consent or knowledge. She does not fully know what he has done with it. He has taken control of TFTL. He has ties to Taiwan, has been there recently without letting her know in advance that he was going, and has indicated up until two months ago an intention to return there to live. I find that this evidence collectively demonstrates a serious risk that Yueh-Tang will attempt to dissipate assets or put them beyond the reach of the Plaintiffs and permanently frustrate their claims in this proceeding. All of the criteria required by Chitel have been satisfied, and the balance of convenience favours the granting of a temporary Mareva injunction at this stage.

[83] While hearing this motion, I deliberated over whether this motion should be granted when a freezing order has been requested in the Family Court proceeding, and in light of Mr. Liquornik’s correspondence noting that any motion seeking a non-dissipation or preservation order would be strongly contested. As pointed out by Mr. Wygodny, he did not request that such motion be made on notice to his client and for the reasons discussed above, I consider it reasonable that neither he nor his client were informed in advance of this motion.

[84] Further, the date on Vanessa’s Family Court Answer is January 18, 2024. This action was issued on May 10, 2024. A comparison of the two pleadings indicates that far more is known now about Yueh-Tang’s corporate interests and financial dealings than at the start of the Family Court case. Further, the Family Court proceeding does not include the corporate defendants. Accordingly, I was and am satisfied that granting the injunction in this action will not result in the possibility of inconsistent rulings in the Family Court proceeding, a duplication of judicial resources, or add to the complexity and length of that proceeding.

[85] It was also necessary to make an interim order requiring Yueh-Tang to provide a sworn statement of his own or corporate assets controlled by him, as the evidence establishes that Vanessa does not have a complete understanding of what has transpired with the money that has been moved from the Plaintiffs’ accounts over the years.

Recovery of Personal Property

[86] Vanessa has not sought an order for the return of her personal property in the Family Court proceeding.

[87] Section 104 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that the court may, on motion, make an interim order for the recovery of personal property that is alleged by the plaintiff to be unlawfully taken and/or detained by the defendant.

[88] Rule 44.01 of the Rules of Civil Procedure provides:

(1) An interim order under section 104 of the Courts of Justice Act for recovery of possession of personal property may be obtained on motion by the plaintiff, supported by an affidavit setting out, (a) a description of the property sufficient to make it readily identifiable; (b) the value of the property; (c) that the plaintiff is the owner or lawfully entitled to possession of the property; (d) that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the defendant; and (e) the facts and circumstances giving rise to the unlawful taking or detention. (2) The notice of motion shall be served on the defendant unless the court is satisfied that there is reason to believe that the defendant may improperly attempt to prevent recovery of possession of the property or that, for any other sufficient reason, the order should be made without notice.

[89] I am satisfied that it is reasonable to dispense with service on Yueh-Tang, because the evidence allows for the inference that he would further attempt to prevent recovery of these items. Vanessa’s affidavit contains evidence of Yueh-Tang destroying her personal property, not all of which has been repeated in these Reasons. There is certainly no basis raised in the evidence to create the belief that Yueh-Tang respects Vanessa and would protect her belongings. Only Yueh-Tang and the child resided in the Mannar property before it was sold – although potentially Jane Doe may also have, since there is evidence that she participated in picking the child up from school with Yueh-Tang in May 2023. It is a reasonable inference that Yueh-Tang has knowledge of their location, or did at one time, and that he may intend to dispose of these items if he has not done so already.

[90] Vanessa’s evidence meets the requirements of rule 44.01(1), and the draft order presented by counsel contains a description of the property sufficient to make it readily identifiable, along with its value, as required by rule 44.01(3).

[91] For these reasons the requested order was granted.

Certificate of Pending Litigation

[92] Vanessa has claimed the issuance of a CPL against several properties, but only seeks to encumber the Woodbine properties as they appear to be the only ones in which Yueh-Tang retains an interest, through HoldCo.

[93] Rule 42.01(3) of the Rules of Civil Procedure permits a motion to register a CPL to be brought without notice. For the same reasons previously explained, it is reasonable in all the circumstances for Yueh-Tang to not have been alerted to this motion and to have thereby been given an opportunity to sell or further encumber the Woodbine properties before the motion could be heard.

[94] The test to be satisfied on a motion to register a CPL was set out in Transitions Farms Ltd. v. Sieber, 1999 CarswellOnt 234, [1999] O.J. No. 300, (Ont. C.J., Gen. Div. [Commercial List]), at paragraph 62.

The party seeking the certificate need not prove its case at this point. The test is met where there is sufficient evidence to establish a reasonable claim to an interest in the land based upon the facts, and on which the plaintiff could succeed at trial…

[95] Vanessa pleads at paragraph 142 of her Amended Statement of Claim that she has an interest in the Woodbine properties. This interest is based on her assertion that her assets were used to purchase the Cedarland, Paradelle, and Joyce properties, the proceeds of sale of which were used by Yueh-Tang to purchase the Woodbine properties.

[96] Further, if Vanessa’s claim of a valid marriage is successful, the Woodbine properties may be determined to form part of Yueh-Tang’s net family property for equalization purposes, or alternatively, her claim for a trust interest in those properties which has yet to be determined in the Family Court proceeding.

[97] Vanessa has provided enough evidence of her contribution to Yueh-Tang’s real estate interests from 2015 on to satisfy this court that she more than a frivolous claim to an interest in the Woodbine properties, and has met the test for a CPL. Had it not already been sold, it would have been appropriate for a CPL to issue for the Mannar property as well.

[98] Although Vanessa has alleged that Yueh-Tang, possibly with the assistance of Jane Doe, forged her signature on loan documents used to purchase the Woodbine properties, she has not produced evidence of those loan documents in her affidavits. Accordingly, the court does not have enough evidence to find that fraud was involved in their purchase and, accordingly, the Plaintiffs’ argument of fraud is not an applicable ground for granting the CPL in this case. Nonetheless, as previously stated, Vanessa has established a reasonable claim in the Woodbine properties by virtue of not only her contributions to former properties owned by Yueh-Tang or jointly, but also the $4.1M that has left the Plaintiffs’ bank accounts over the years.

Costs

[99] Costs of this motion are reserved for the motions judge who hears any motion to extend the interim injunction or to set aside the order made on June 5, 2024.

Madam Justice S.E. Healey

Released: June 12, 2024