Nature of the Motion

[1] This is a motion to compel answers to refusals made at the examination for discovery of the Defendants’ witness, Charles Perry, conducted on March 26, 2018 and May 14, 2018. By order of Regional Senior Justice Edwards dated October 10, 2024, the Plaintiff was granted leave to bring this motion on an expedited basis. The order also schedules the Defendants’ summary judgment motion to be heard during the week of December 2, 2024. I conclude that it was the intention of the order to have a ruling on this motion such that any information ordered would be available for use on the summary judgment motion.

[2] This action is 12 years old. Discoveries were completed in May 2018. The Defendants served answers to undertakings arising from the examination of its representative in August 2018. By order of Associate Justice Brott dated October 26, 2022, the Plaintiff was to deliver his motion record on or before November 30, 2022 if he intended to proceed with an undertakings and refusals motion.

[3] While submissions were made with respect to legal wranglings between the parties thereafter, there is no evidence in the record that a motion to compel answers to refusals was ever served before the one now before the court dated September 5, 2024.

The Pleadings

[4] In this action, the Plaintiff sues the Defendants to recover funds in accounts that were placed on hold or suspended by the Defendants in 2012. He also seeks damages in the amount of $2,000,000 and punitive damages in the amount of $500,000. The causes of action that he asserts are breach of contract, the tort of unlawful means (formerly intentional interference with economic relations) and conversion. The Plaintiff pleads that the conduct of the Defendants in refusing to permit the Plaintiff to withdraw funds from his accounts is “wrongful” and contrary to all banking and trading agreements held with the Defendants.

[5] The Plaintiff has not pled breach of privacy as a cause of action, nor has he alleged that the Defendants breached any banking regulations or requirements, or any statutes governing financial institutions such as the Defendants.

[6] The Defendants’ defence is simple: the terms of the account agreements for the commercial and trading accounts opened by the Plaintiff entirely govern the parties’ rights and obligations with respect to the accounts. Accordingly, when the Defendants exercised their contractual right to freeze the accounts on June 11, 2012 after the Plaintiff was charged with several criminal offences including fraud, possession of the proceeds of crime and money laundering, it did so in accordance with the terms of the agreements that governed the parties’ banking relationship.

[7] In January 2016, the Plaintiff was acquitted of all criminal charges related to the allegations of fraud and money laundering.

[8] Before the court are multiple refusals and questions taken under advisement for which a refusal has been maintained.

[9] In deciding this motion, I have applied the law regarding the scope of permissible questions on discovery as summarized by Perell J. in CIBC v. Deloitte & Touche, 2013 ONSC 917, at paras. 65-69 and 81, and have adopted the definitions of the terms set out by him in those paragraphs.

[10] The court’s decision on each refusal, containing a brief explanation where warranted, is found on Schedule A to these Reasons. I have used the Schedule found on Case Center uploaded by Mr. Basmadjian, which indicates the Defendants’ position on each refusal. That Schedule, initially prepared by Mr. Bakos, also contains undertakings that may be ignored as irrelevant to this ruling.

[11] It is noted that Mr. Bakos did not complete his submissions in the time permitted for this motion (2 hours) and asked to rely on the written information contained in Schedule A. The court has acceded to that request. Where the ruling indicates that the format is not compliant with r. 37.10 (10)(a)(i), this is because the chart indicates that the entirety of the refusals (and undertakings) are relevant to the issue of liability, and refers the court to only one paragraph in the Statement of Defence.

[12] Where the Defendants have provided an answer to an undertaking or a question taken under advisement, no ruling is appropriate given the scope of this motion.

Ruling

[13] Of the 79 refusals being maintained at the time that this motion was argued, the Defendants are required to answer 6 of them as indicated in Schedule A.

Costs

[14] The Defendants have been almost entirely successful in resisting this motion, with only 8% of the refusals being ordered to be answered. They are entitled to their costs, with some reduction to account for the Plaintiff’s minor success.

[15] The Defendants’ counsel has provided the court with a cost outline setting out partial indemnity costs in the amount of $10,012.36 and substantial indemnity costs of $15,018.54. The Plaintiff’s counsel has submitted a bill of costs seeking partial indemnity costs in the amount of $10,102.20 and substantial indemnity costs of $15,153.30.

[16] There is no basis on the evidence to award costs on a substantial indemnity scale for this motion. While it was brought forward very late in the litigation, Regional Senior Justice Edwards permitted it to be scheduled and heard.

[17] This court orders that the Plaintiff shall pay costs of this motion to the Defendants fixed in the amount of $9,211.37 on a partial indemnity basis and payable within 30 days.

Madam Justice S.E. Healey

Released: November 22, 2024

Schedule “A”

UNDERTAKINGS

Undertakings on the examination of Charles Perry, conducted on March 26, 2018

Issue & relationship to pleadings or affidavit (Group the questions by issues)

Question No

Page No

Specific Question

Answer or Precise Basis for Refusal

Disposition by the Court

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

13-14

To review Craig Finkbeiner’s files to determine whether or not he has any notes, memoranda, or reports pertaining to the incident that involved Kenneth James and if so, produce them.

Answer: All documents that are relevant to the matters at issue in this action, and are not subject to privilege, have been produced. Plaintiff’s Position: The Defendants have failed to fulfil the undertaking. They do not provide any insight as to whether Craig Finkbeiner’s file has been reviewed or if any documents therefore are pertaining to the incident. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 114. This question was also answered on the record by counsel for the defendants. See transcript from the examination for discovery of Charles Perry conducted on March 26, 2018 at q. 56, pgs. 13-14. All relevant and non-privileged documents, including anything in Craig Finkbeiner’s files, have been produced.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

182

50-52

To produce Lawrence Hopkinson’s file as to all the notes and memoranda he has pertaining to Kenneth James.

Answer: All documents that are relevant to the matters at issue in this action, and are not subject to privilege, have been produced. Plaintiff’s Position: The Defendants have failed to fulfill the undertaking. Lawrence Hopkin’s file along with the notes and memoranda are crucial to the Plaintiff’s case and should be produced. Defendants’ Position: The defendants took under advisement the question to go back and determine if there is in fact a file that Lawrence Hopkinson has pertaining to this matter. This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 115.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

456

136

To produce the entire investigation file of Jane Eom with respect to Kenneth James.

Answer: All documents that are relevant to any matter at issue in this action, and are not subject to privilege, have been produced. Plaintiff’s Position: The Defendants have failed to fulfill the undertaking. Jane Eom’s investigation file is crucial to the Plaintiff’s case and should be produced. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 124. The defendants again confirm that all relevant and non-privileged documents, including Jane Eom’s files, have been produced.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

458

138-139

If the transactions were in-branch transactions before a teller, to advise of the name of the teller.

Answer: The name of the teller is irrelevant. Plaintiff’s Position: The name of the teller is not privileged, and is important as it could lead to further details that are crucial to the Plaintiff’s case. Defendants’ Position: The defendants did not undertake to provide the name of the teller. The question was taken under advisement and ultimately refused. See transcript from the examination for discovery of Charles Perry conducted on March 26, 2018 at q. 458, pg. 139. The refusal is maintained. The name of the teller is irrelevant.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

794

209

On page 3 of the F.I.U AML Investigation report at tab 39 of the Affidavit of Documents of HSBC Bank Canada, it states that “[a]t this time of the investigation, the conducting branch has been instructed to trace the copies for all deposits however due to our internal process the turn-around time is about 3 to 4 weeks to retrieve the images.” Did the branch carry out its instructions to trace copies for all deposits?

Answer: Jane Eom is no longer an employee of HSBC Bank Canada. Neither Kenji Kasubuchi nor Anna Iannacchino has any recollection as to whether the branch carried out its instructions to trace copies for all deposits referenced in the F.I.U. AML Investigation Report at tab 39 of the Affidavit of Documents of HSBC Bank Canada. Plaintiff’s Position: The Defendant is not clear as to whether or not the branch carried out its instructions to trace copies. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 138-139.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

794

209

On page 3 of the F.I.U. AML Investigation Report at tab 39 of the Affidavit of Documents of HSBC Bank Canada, it states that “[a]t this time of the investigation, the conducting branch has been instructed to trace the copies for all deposits however due to our internal process the turn-around time is about 3 to 4 weeks to retrieve the images.” If the branch carried out its instructions to trace copies for all deposits, to produce the tracing which was done.

Answer: All documents that are relevant to the matters at issue in this action, and are not subject to privilege, have been produced. Plaintiff’s Position: The Defendant has not clarified whether or not the tracing was done. If it was done, then the undertaking should be completed to reflect the request. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 139.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

795

209

On page 3 of the F.I.U AML Investigation Report at tab 39 of the Affidavit of Documents of HSBC Bank Canada, it states that “[a]t this time of the investigation, the conducting branch has been instructed to trace the copies for all deposits however due to our internal process the turn-around time is about 3 to 4 weeks to retrieve the images.” If the tracing was done, was it given to Jane Eom?

Answer: Jane Eom is no longer an employee of HSBC Bank Canada. Neither Kenji Kasubuchi nor Anna Iannacchino has any recollection as to whether the tracing was given to Ms. Eom. Plaintiff’s Position: The Defendant has failed to answer the undertaking as to whether the tracing was done. If it was done, was Jane Eom in receipt of the tracing? Although Jane is no longer an employee, this undertaking is asking about what had happened when she was an employee. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 139-140.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

796

209

Answer: Jane Eom is no longer an employee of HSBC Bank Canada. Neither Kenji Kasubuchi nor Anna Iannacchino has any recollection as to what, if anything, Ms. Eom did with the tracing. Plaintiff’s Position: The Defendant failed to answer the undertaking. The question being asked is what happened with the tracing at the time in which Jane Eom was an employee of HSBC Bank Canada. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 140.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

806

213

On page 3 of the F.I.U AML Investigation Report at tab 39 of the Affidavit of Documents of HSBC Bank Canada, it states that “[t]he transfers between James & Associates account and his personal account also appears to be suspicious where is [sic] does not appear to be a normal practice.” What did Jane Eom mean by “normal practice” and what is she basing or formulating the basis for stating its “normal practice”?

Answer: Jane Eom is no longer an employee of HSBC Bank Canada. HSBC Bank Canada and HSBC Securities believe that Ms. Eom’s understanding of “normal practice” was based on her experience as an investigator. Plaintiff’s Position: Jane Eom’s understanding of “normal practice” had to be in relation to policies that were in place by the Bank. It is unclear as to why the transfers by James & Associates was seen as not following “normal practice”. The explanation of this is crucial to the Plaintiff’s case. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 140.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

1020

269

To make inquiries with other representatives of HSBC Bank Canada to determine what instructions Matthew Pang had in allowing cheques to clear the James & Associates trust account or did he make his own decisions.

Answer: Any instructions and advice that Matthew Pang received were provided by internal counsel at HSBC Bank Canada and are therefore privileged. Plaintiff’s Position: The Defendant failed to answer the undertaking. The answer to this undertaking is crucial to the Plaintiff making his case. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 148.

UNDERTAKINGS

Undertakings on the examination of Charles Perry, conducted on May 14, 2018

Issue & relationship to pleadings or affidavit (Group the questions by issues)

Question No

Page No

Specific Question

Answer or Precise Basis for Refusal

Disposition by the Court

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

1213

49-50

With respect to the person at HSBC Securities (Canada) Inc. that gave authorization for the freezing of Kenneth James’ securities accounts, to produce any note, memorandum, or document in that person’s possession concerning what led to his or her decision, anything he or she was given to make that decision, and any report he or she made to anyone else as to the fact that the accounts were frozen.

Answer: All documents that are relevant to the matters at issue in this action, and are not subject to privilege, have been produced. Plaintiff’s Position: The undertaking goes to center of this litigation, and as a result is crucial to the Plaintiff’s case. Withholding this information would unfairly prejudice the Plaintiff’s case, and therefore, should not be privileged. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 149.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

1269

62-63

To produce the internal reports concerning the permission to withdraw the funds from the general account of James & Associates at the time the Restraint Order and Management Order of Justice Edwards dated October 22, 2012 did not include the same.

Answer: All documents that are relevant to the matters at issue in this action, and are not subject to privilege, have been produced. Plaintiff’s Position: The Defendant’s have failed to answer the undertaking. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 149-150.

UNDER ADVISEMENTS

Under advisements on the examination of Charles Perry, conducted on March 26, 2018

Issue & relationship to pleadings or affidavit (Group the questions by issues)

Question No

Page No

Specific Question

Answer or Precise Basis for Refusal

Disposition by the Court

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To have a review done of Mr. Finkbeiner’s files to determine whether or not he has any notes, memoranda or reports pertaining to the incident that involved Mr. James and if so, to provide them

Answer: All documents that are relevant to the matters at issue in this action, and are not subject to privilege, have been produced. Defendants’ Position: This question was already set out above. In any event, this undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 114. This question was also answered on the record by counsel for the defendants. See transcript from the examination for discovery of Charles Perry conducted on March 26, 2018 at q. 56, pgs. 13-14. All relevant and non-privileged documents, including anything in Craig Finkbeiner’s files, have been produced.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To produce from HSBC Securities the historical prices and volumes during the time period from the date the account was frozen until the date of sale of June 15th for the stocks listed that were sold out in the June Statement

Defendant’s Position: Refusal maintained. The information requested by the plaintiff is publicly available information. See transcript from the examination for discovery of Charles Perry conducted on March 26, 2018 at q. 214, pg. 61.

Refusal may be maintained. Publicly available information.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

136

To produce the entire investigation file of Jane

Answer: All documents that are relevant to any matter at issue in this action, and are not subject to privilege, have been produced. Defendants’ Position: This question was already set out above. In any event, this undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 124. The defendants again confirm that all relevant and non-privileged documents, including Jane Eom’s files, have been produced.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

139

To provide the name of the teller if it was an in-branch transaction before a teller

Answer: the name of the teller is irrelevant. Defendants’ Position: This question was already set out above. In any event, the defendants did not undertake to provide the name of the teller. The question was taken under advisement and ultimately refused. See transcript from the examination for discovery of Charles Perry conducted on March 26, 2018 at q. 458, pg. 139. The refusal is maintained. The name of the teller is irrelevant.

Irrelevant. Memory of a teller about a transaction occurring over 12 years ago will not advance the issues.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

140

To provide the current and last known contact information for each of the tellers

Defendants’ Position: Refusal maintained. The current and last known contact information for each of the tellers is immaterial and irrelevant.

Irrelevant how any teller viewed any transaction.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

146

To provide Kenji’s file on the matter, other than dealing with Counsel

Answer: All documents that are relevant to the matters at issue in this action, and are not subject to privilege, have been produced. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 131. All relevant and non-privileged documents, including Kenji Kasubuchi’s files, have been produced.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

153

To produce the electronic version of the document at Tab 35

Answer: HSBC Bank Canada has not located an electronic copy of the document at tab 35 of the Affidavit of Documents of HSBC Bank Canada. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 132.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

179

To provide the electronic version of the summary sheet at Tab 37

Answer: HSBC Bank Canada has not located an electronic copy of the document at tab 37 of the Affidavit of Documents of HSBC Bank Canada. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 136.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

192

To provide the electronic version of the note on the document tab Tab 38

Answer: HSBC Bank Canada has not located an electronic copy of the document at tab 38 of the Affidavit of Documents of HSBC Bank Canada. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 136.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

221

To advise whatever was done with respect to the grid warning

Answer: HSBC Bank Canada believes that it received the BCPIO Grid Warning on or about June 8, 2012, and, in any event, no later than June 13, 2012. Other than as referred in the various reports produced in this action. HSBC Bank Canada has no further knowledge. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 141.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

222

To produce what was done with the results of the grid warning search and advise who it was reported to

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

222

To provide all of the emails that Jane looked at to deal with the production of the report

Answer: Jane Eom is no longer an employee of HSBC Bank Canada. Other than as written on the document, HSBC Bank Canada and HSBC Securities are unable to advise of all of the “Emails” that Ms. Eom looked at to deal with the production of the report. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 142.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

230

To produce the unredacted email from Jane to Kenji, and from Kenji to Jane [at tab 39]

Defendants’ Position: The unredacted pages are enclosed. The remaining redaction on page 3 of 5 is based on solicitor-client privilege.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

242

To produce an unredacted copy of the document at Tab 41

Defendants’ Position: The unredacted pages are enclosed. The remaining redaction on page 4 of 5 is based on solicitor-client privilege.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

253

To produce the unredacted document [at tab 41]

Defendants’ Position: The unredacted pages are enclosed. The remaining redaction on page 4 of 5 is based on solicitor-client privilege.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

253

To advise why the document was redacted in the first place

Answer: The [document produced at tab 41 of the Affidavit of Documents of HSBC Bank Canada was] redacted on the basis of statutory requirements and solicitor and client privilege. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 121-122. The document was redacted pursuant to section 8 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17. The remaining redaction is based on solicitor and client privilege.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

255

To advise what was discussed and what the template is

Answer: Kenji Kasubuchi and Jane Eom likely had discussions on July 11, 2012. Mr. Kasubuchi does not recall the details of what was being discussed. The “template” referenced by Kenji Kasubuchi is the F.I.U. AML Investigation Report. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 146.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

263

To provide an unredacted copy of the document at Tab 45

Answer: The documents produced at tabs 44, 45, 46, 47, and 51 of the Affidavit of Documents of HSBC Bank Canada are redacted and pages are omitted on the basis of solicitor and client privilege. Defendants’ Position: Refusal maintained. With respect to tab 44 of the Affidavit of Documents of HSBC Bank Canada, the omitted and redacted pages are subject to solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Lorna Strong (Deputy General Counsel at HSBC Bank Canada) (with Michael Lam, Mark Lavitt, Kenji Kasubuchi, and Anna Iannacchino cc’d) dated June 19, 2012; (2) E-mail from Lorna Strong (Deputy General Counsel at HSBC Bank Canada) to Matthew Pang (Account Manager, GTA at HSBC Bank Canada) (with Anna Iannacchino, Kenji Kasubuchi, Mark Lavitt, and Michael Lam cc’d) dated June 19, 2012; and (3) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012. With respect to tab 45 of the Affidavit of Documents of HSBC Bank Canada, the omitted and redacted pages are subject to solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Lorna Strong (Deputy General Counsel at HSBC Bank Canada) (with Mark Lavitt, Michael Lam, and Kenji Kasubuchi cc’d) dated June 19, 2012; and (2) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012.

Refusal may be maintained due to privilege.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

265

To produce the unredacted copies of the documents at Tabs 46 and 47

Answer: The documents produced at tabs 44, 45, 46, 47, and 51 of the Affidavit of Documents of HSBC Bank Canada are redacted and pages are omitted on the basis of solicitor and client privilege. Defendants’ Position: Refusal maintained. With respect to tab 46 of the Affidavit of Documents of HSBC Bank Canada, the omitted and redacted pages are subject to solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) dated June 22, 2012; and (2) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012. With respect to tab 47 of the Affidavit of Documents of HSBC Bank Canada, the omitted and redacted pages are subject to solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) dated June 27, 2012; and (2) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012. With respect to tab 50 of the Affidavit of Documents of HSBC Bank Canada, the redacted page is subject to solicitor-client privilege: E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012. With respect to tab 51 of the Affidavit of Documents of HSBC Bank Canada, the omitted and redacted pages are subject to solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) (with Michael Lam cc’d) dated July 3, 2012; and (2) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012.

Refusal may be maintained due to privilege.

UNDER ADVISEMENTS

Under advisements on the examination of Charles Perry, conducted on May 14, 2018

Issue & relationship to pleadings or affidavit (Group the questions by issues)

Question No

Page No

Specific Question

Answer or Precise Basis for Refusal

Disposition by the Court

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise on what dates his Counsel had discussions with Sergeant Aristotle or anyone else from RCMP concerning when an application for a restraint order would be made to the Court

Defendant’s Position: This question is not relevant to any matter at issue, as defined by the pleadings.

Irrelevant to the issues in the action

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise on what dates, and any incidents, that his counsel had discussions with the Crown concerning the application for a restraint order

Defendant’s Position: This question is not relevant to any matter at issue, as defined by the pleadings.

Irrelevant to the issues in the action

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To produce all internal reports concerning permission to withdraw the funds from the general account at time the restraint order did not include same

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To disclose anything else HSBC is relying upon to justify the initial freeze and then continuing the freeze pending the Court Order

Defendant’s Position: Refusal maintained. Unanswerable. Further, and in any event, all relevant and non-privileged documents have been produced.

Defendants to advise whether they are relying on anything other than grounds previously identified to justify freezing the accounts prior to the Court order

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if any communication had with HSBC Hong Kong dealing with monies not transferred, since Statement of Claim issued and served upon HSBC Canada

Answer: As previously advised, HSBC Bank Canada has no knowledge of nor any control over any accounts that Kenneth James may have with The Hong Kong and Shanghai Banking Corporation Limited (“HSBC Hong Kong”). HSBC Bank Canada has made inquiries of HSBC Hong Kong who will only provide information about the accounts to the account holders. Mr. James should direct any inquiries he may have regarding accounts held at HSBC Hong Kong to HSBC Hong Kong. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 150-151.

REFUSALS

Refusals on the examination of Charles Perry, conducted on March 26, 2018

Issue & relationship to pleadings or affidavit (Group the questions by issues)

Question No

Page No

Specific Question

Answer or Precise Basis for Refusal

Disposition by the Court

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if prior to the incident involving Mr. James, he had any dealings on any matter with the Bank and with the RCMP

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Irrelevant and immaterial to the issues in the action

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if the Bank had a history of knowledge of law firms’ accounts in terms of the nature of the accounts

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Irrelevant to the issues in the action, unanswerable as vague

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if he agrees that a lawyer’s not supposed to divulge the affairs of his client

Defendants’ Position: Refusal maintained. Unanswerable.

Irrelevant to the issues in the action and unanswerable by this witness - requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if he agrees that when one deals with solicitor and client privilege, the privilege belongs to the client not to the lawyer

Defendants’ Position: Refusal maintained. Unanswerable.

Irrelevant to the issues in the action and unanswerable by this witness - requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if the Bank’s privacy code requires the Bank to keep the affairs of its customers confidential

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Irrelevant – breach of privacy has not been pleaded as a cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if the privacy code at the Plaintiff’s Production No. 26 is the Bank’s privacy code

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Irrelevant – breach of privacy is not a pleaded cause of action

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if he delivered to the RCMP a letter setting out all of the accounts of Mr. James, his law firm, both at HSBC Securities and at HSBC Bank, together with the balances

Answer: Yes. See the documents produced at tabs 56 and 64 of the Affidavit of Documents of HSBC Bank Canada. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pg. 114.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if it is contrary to the Bank’s privacy code to disclose information to a third party without proper notice

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Irrelevant – breach of privacy is not a pleaded cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if he had a court order at the time he provided the information to the RCMP

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Irrelevant – breach of privacy is not a pleaded cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if he had a search warrant served upon the Bank at the time he provided this information from the Bank

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Irrelevant – breach of privacy is not a pleaded cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise who else at the Bank was listed as the dedicated office under the BCPIO process

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise that because Securities is not a bank, it does not fall within this exception called BCPIO

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if it’s fair to say that none of the allegations in the criminal matter had anything to do with insider trading concerning the stock market

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Unanswerable by this witness - requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise what was suspicious about the way in which the trades were done

Defendants’ Position: Refusal maintained. Irrelevant. In any event, this question was answered on the record. See transcript from the examination for discovery of Charles Perry conducted on March 26, 2018 at q. 166, pg. 46.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise that there’s nothing in the Court Order which would prohibit HSBC Securities while it’s maintaining the freeze on the accounts, to simply transfer the money into an interest bearing account, so long as that account is also frozen

Defendants’ Position: Refusal maintained. Irrelevant and unanswerable.

Unanswerable by this witness - requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if HSBC paid any interest on the money it held for roughly four years to Mr. James

Answer: The prevailing interest credit rate on the account, at all material times, was zero percent such that no interest was payable. Defendant’s position. Question answered above.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if HSBC dealt with its customer concerning currency fluctuations between the U.S. dollar and the Canadian dollar while this thing was held over for years

Defendants’ Position: Refusal maintained. Irrelevant.

To be answered – relevant to material facts pleaded at para. 8(d) and (e) of Claim

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if the purpose of obtaining Mr. James’ consent prior to the doing the check is because there are privacy laws in Canada prohibiting disclosure of personal information without consent

Defendants’ Position: Refusal maintained. Irrelevant.

Irrelevant – breach of privacy is not a pleaded cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise why the Bank refused to offset his credit card debt against the money in the account before the Court Order

Defendants’ Position: Refusal maintained. Irrelevant.

To be answered – relevant to material facts pleaded at para. 15(b) of the Claim and damages

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if the Bank was charging Mr. James interest on the credit card at the same time

Defendants’ Position: Refusal maintained. Irrelevant. Further, and in any event, the plaintiff has not paid the credit card debt.

To be answered – relevant to material facts pleaded at para. 15(b) of the Claim and damages

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise why the Bank did not allow Mr. James to at least pay his credit card debt and avoid a claim for credit card interest

Defendants’ Position: Refusal maintained. Irrelevant. Further, and in any event, the plaintiff has not paid the credit card debt.

To be answered – relevant to material facts pleaded at para. 15(b) of the Claim and damages

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if the veiled [sic] [bail] conditions permitted Mr. James to use the law firm’s general account to pay proper disbursements of the law firm and expenses

Defendants’ Position: Refusal maintained. Immaterial and unanswerable.

Unanswerable by this witness - requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if HSBC ever attempted to set off as against the personal accounts or the law firm’s general accounts the monies owing to it for the credit cards

Defendants’ Position: Refusal maintained. Irrelevant.

To be answered – relevant to material facts pleaded at para. 15(b) of the Claim and damages

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

126

To advise if any of the transactions were above contract limits where a report had to be sent to the Federal Government

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

126

To advise if any reports were made by HSBC to the Federal Government under the contract requirements

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

134

To advise if in reference to the transactions that were labelled suspicious by Anna originally, if a reporting was made to FINTRAC

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

141

To advise whether each transaction was within the reporting limits imposed by FINTRAC and if imposed by FINTRAC, to advise if a report was ever made

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

174

To agree that a prudent person would keep his money in the high interest savings until he needs to write a cheque, and then move it over to his chequing account

Defendants’ Position: Refusal maintained. Irrelevant.

Irrelevant and unanswerable as speculative and vague

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

194

To advise if any report was made to FINTRAC concerning the deposit of the cash on March 26, 2012

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

195

If there was a report made to FINTRAC concerning the deposit of the cash on March 26, 2012

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

197

To answer the question regarding the general criminal lawyer

Defendants’ Position: Refusal maintained. Unanswerable.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

199

To advise if anyone knows whether or not a friend of Mr. James may have been charged and he was loaning money to him

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

200

To advise if he even knows whether the payment was made to this gentleman for legal services, or could it have been for repayment of a loan that Mr. James borrowed money from him

Defendants’ Position: Refusal maintained. Unanswerable and irrelevant.

Irrelevant

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

211

To advise if there’s any regulation he’s aware of that The Law Society has, that obligates Mr. James to keep a certain amount of money in his general account

Defendants’ Position: Refusal maintained. Irrelevant and unanswerable.

Unanswerable by this witness - requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

212

To advise how many law firms HSBC has as customers

Defendants’ Position: Refusal maintained. Irrelevant.

Disproportionate and irrelevant

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

212

To advise how many law firms the Bank keeps track of as to the transfers from the law firm’s general account to the lawyers who are involved in that law firm, and money transferring from the law firm to their personal accounts

Defendants’ Position: Refusal maintained. Irrelevant.

Disproportionate and irrelevant

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

212

To advise how many investigations the Bank has conducted as to whether or not when the law firm requires funds to make payroll or purchase equipment, that a cash call is made by lawyers who are the partners and ask to transfer money back into the law firm

Defendants’ Position: Refusal maintained. Irrelevant.

Unanswerable as beyond the scope of the examination, disproportionate and irrelevant

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

215

To advise who got the wire transfer to Ghana

Defendants’ Position: This question was answered by counsel on the record. See transcript from the examination for discovery of Charles Perry conducted on March 26, 2018 at q. 811, pgs. 214-215. The document at tab 39 of the Affidavit of Documents of HSBC Bank Canada identifies “Eric Agyarko” as the recipient of the wire transfer to Ghana.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

215

To advise why HSBC is not at liberty to disclose that has been redacted from the report

Defendants’ Position: This undertaking was answered on August 22, 2018. See Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 121-122.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

216

To explain the redaction in the document created in June 2013

Defendants’ Position: This undertaking was answered on August 22, 2018. See Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 121-122.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

229

To advise if the Bank was able to conclude on a balance of probabilities that any of the transactions looked at were actually suspicious

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable by this witness – requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

236

To advise if Mr. James requested $100 to go out and buy some groceries, whether the Bank would have permitted that

Defendants’ Position: Refusal maintained. Unanswerable and speculative.

Irrelevant and speculative

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

245

To advise that there’s nothing illegal if Ms. Cremar sold a piece of property and received a draft for $255,000.

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable by this witness – requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

248

To advise if there are 10,000 transactions in a customer’s account, is that customer supposed to come to you and explain all 10,000 transactions

Defendants’ Position: Refusal maintained. Unanswerable.

Immaterial and unanswerable as argumentative

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

261

To provide an Affidavit of Documents from somebody who actually did a search for the documents

Defendants’ Position: Refusal maintained. Unanswerable. The defendants had served affidavits of documents on October 4, 2017 sworn by an appropriate representative.

Unanswerable as oppressive as plaintiff could have moved for a further and better AOD

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

266

To advise if he would agree that the underlying transaction in which Mr. Agozzino was involved is confidential information to Mr. Agozzino

Defendants’ Position: Refusal maintained. Irrelevant. The plaintiff is not seeking any damages related to his practice of law. See transcript from the examination for discovery of Kenneth James conducted on May 31, 2018 at q. 211, pgs. 393-394.

Irrelevant as plaintiff has confirmed he is not seeking damages in relation to his legal practice.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

267

To advise what right the Bank had to demand disclosure because it necessitated Mr. James’ violating privilege to allow the cheques to clear

Answer: HSBC Bank Canada asked for information from James & Associates in order to allow cheques to clear the firm’s trust account because HSBC Bank Canada wanted and was contractually entitled to stake steps to ensure that the accounts would not be used to facilitate any unlawful activity by Mr. James or his law firm. Defendants’ Position: This undertaking was answered on August 22, 2018. See above and Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 147-148.

REFUSALS

Refusals on the examination of Charles Perry, conducted on May 14, 2018

Issue & relationship to pleadings or affidavit (Group the questions by issues)

Question No

Page No

Specific Question

Answer or Precise Basis for Refusal

Disposition by the Court

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To agree that are looking for communication with RCMP that he was telling pertained to investigating whether money in trust account was or was not part of the alleged money laundering

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable - question incomprehensible

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer what investigation HSBC did to determine whether any of monies frozen were involved in the criminal proceedings

Defendants’ Position: This question was answered on the record. See the transcript from the examination for discovery of Charles Perry conducted on May 14, 2018 at q. 1093, pg. 19; and q. 1097-1103, pgs. 19-21.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if bail order prevented Mr. James from withdrawing $5 out of his general account

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable by this witness – requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if bail order prevented Mr. James from withdrawing $5 out of his personal bank account

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable by this witness – requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To agree bail order did not apply to the trust account or to the general account to allow any movement of funds

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable by this witness – requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if sees anything in the bail Order which prohibits Mr. James from withdrawing $5 from any single account that had been frozen by HSBC

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable by this witness – requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if there were any Law Society directives or orders issued to HSBC which prohibited Mr. James from withdrawing funds out of his personal bank accounts

Defendants’ Position: This question was answered on the record. See the transcript from the examination for discovery of Charles Perry conducted on May 14, 2018 at q. 1124, pgs. 27-28.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To agree that the Law Society has no jurisdiction over personal bank accounts

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable by this witness – requests a legal opinion

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer why HSBC restrained Mr. James from getting his Canada Pension Plan

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial – material facts are not pleaded

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if the bank locked up money from Mr. James’ Canada Pension Plan deposits

Defendants’ Position: This question was answered on the record. See transcript from the examination for discovery of Charles Perry conducted on May 14, 2018 at q. 1139, pgs. 31-32.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if will produce all the transactional sources of deposits and cancelled cheques

Defendants’ Position: Refusal maintained. Irrelevant and disproportionate.

Disproportionate

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer why no review undertaken of the transactional data to determine whether any funds should be released

Defendants’ Position: Refusal maintained. Irrelevant and immaterial.

Immaterial – material facts are not pleaded

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer what did to investigation whether the funds in Plaintiff’s bank account were actually involved in money laundering or were proper funds

Defendants’ Position: This question was answered on the record. See transcript from the examination for discovery of Charles Perry conducted on May 14, 2018 at q. 1093, pg. 19; and q. 1097-1103, pgs. 19-21.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To produce transactional data information for all accounts kept because of this lawsuit

Defendants’ Position: Refusal maintained. Irrelevant and disproportionate.

Disproportionate

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if police requested from HSBC the transactional data information pertaining to Mr. James’ accounts

Defendants’ Position: Refusal maintained. Irrelevant.

Irrelevant

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if bank received a formal request under the BCPIO process for release of information by the RCMP

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer when a request made under BCPIO process must a copy be given to Canadian Bankers’ Association

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if HSBC breached Mr. James’ privacy

Defendants’ Position: Refusal maintained. Irrelevant and unanswerable. Further, and in any event, in R. v. Kenneth James, 2013 ONSC 5085 at para. 116, Justice Fuerst held that “the information about the accounts was not improperly disclosed by HSBC or improperly acquired by the RCMP in breach of PIPEDA.”

Irrelevant – breach of privacy is not a pleaded cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer what, in this case, led HSBC to freeze accounts simply because criminal charges were being laid

Defendants’ Position: This question was answered on the record. See transcript from the examination for discovery of Charles Perry conducted on May 14, 2018 at q. 1175, pg. 41. Further, as evidenced by the numerous documents produced in this action, in late May 2012, HSBC Bank Canada noted a number of suspicious transactions in Mr. James’ accounts. On June 7, 2012, Mr. James was charged with several offences under the Criminal Code, including fraud, possession of the proceeds of crime, and laundering the proceeds of crime (the “Fraud Charges”). On June 11, 2012, the defendants became aware of the Fraud Charges and related charges against Mr. James’ assistant. The Fraud Charges were publicized on the Toronto Star and the Globe & Mail websites. The Fraud Charges exacerbated the concerns which the defendants already had that the accounts were being used for unlawful purposes. On August 14, 2012, the defendants were notified that the RCMP had grounds to believe that Mr. James was holding proceeds of crime in his HSBC accounts.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer agree if the Crown decided not to bring its application until December, the funds still would have been frozen until December

Defendants’ Position: Refusal maintained. Unanswerable.

Unanswerable – vague and speculative

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer how long does HSBC wait for the Crown to bring their application and restrain the customer’s money before they say the delay is unreasonable

Defendants’ Position: Refusal maintained. Irrelevant and unanswerable.

Irrelevant

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if made any investigation as to why there was a delay

Defendants’ Position: Refusal maintained. Irrelevant and unanswerable.

Irrelevant

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer what illegal transactions did HSBC have knowledge of or was concerned about

Defendants’ Position: This question was answered on the record. See transcript from the examination for discovery of Charles Perry conducted on March 26, 2018 at q. 483-484, pgs. 149-150. The defendants were concerned about the transactions identified in the F.I.U. AML Investigation Report dated June 13, 2012, which is found at tab 39 of the Affidavit of Documents of HSBC Bank Canada. The defendants were also concerned about the transactions identified in the F.I.U. AML Investigation Report dated June 18, 2012, which is found at tab 41 of the Affidavit of Documents of HSBC Bank Canada, and the transactions identified in the F.I.U. AML Investigation Report dated June 18, 2012, which is found at tab 5 of the Affidavit of Documents of HSBC Securities (Canada) Inc.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise if, at the time the bank restrained Mr. James’ accounts, did they restrain Ms. Cremar’s accounts

Defendants’ Position: Refusal maintained. Irrelevant. Ms. Cremer is not a party to this proceeding.

Non-compliant with r. 37.10(10)(a)(i)

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if Ms. Cremar’s accounts released in fall of 2012

Defendants’ Position: Refusal maintained. Irrelevant. Ms. Cremer is not a party to this proceeding.

Non-compliant with r. 37.10(10)(a)(i)

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if they are aware there was no application by the Crown to restrain the accounts of Ms. Cremar

Defendants’ Position: Refusal maintained. Irrelevant. Ms. Cremer is not a party to this proceeding.

Non-compliant with r. 37.10(10)(a)(i)

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if anything found in investigation conducted of Ms. Cremar’s accounts by HSBC that related to Mr. James’ accounts

Defendants’ Position: Refusal maintained. Irrelevant. Ms. Cremer is not a party to this proceeding.

Non-compliant with r. 37.10(10)(a)(i)

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To provide list in Schedule B of what each redacted document pertains to in relation to tab 45

Defendants’ Position: This undertaking was answered on August 22, 2018. See Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 121-122. The redactions are based on solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Lorna Strong (Deputy General Counsel at HSBC Bank Canada) (with Mark Lavitt, Michael Lam, and Kenji Kasubuchi cc’d) dated June 19, 2012; and (2) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To provide list in Schedule B of what each redacted document pertain to in relation to tab 46

Defendants’ Position: This undertaking was answered on August 22, 2018. See Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 121-122. The redactions are based on solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) (with Michael Lam cc’d) dated June 22, 2012; and (2) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To provide list in Schedule B of what each redacted document pertain to in relation to tab 47

Defendants’ Position: This undertaking was answered on August 22, 2018. See Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 121-122. The redactions are based on solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) (with Michael Lam and Lorna Strong cc’d) dated June 27, 2012; and (2) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer what is page 1 of Tab 47

Defendants’ Position: This undertaking was answered on August 22, 2018. See Motion Record of the Plaintiff dated September 5, 2024, Tab 2H at pgs. 121-122. The redactions are based on solicitor-client privilege: (1) E-mail from Matthew Pang (Account Manager, GTA at HSBC Bank Canada) to Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) (with Michael Lam and Lorna Strong cc’d) dated June 27, 2012; and (2) E-mail from Mark Lavitt (Senior Legal Counsel at HSBC Bank Canada) to Mark Evans dated August 20, 2012.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if, at any time, requested from Sergeant Aristotle the information he was requesting be obtained by way of a search warrant

Defendants’ Position: Refusal maintained. Irrelevant.

Unanswerable - question incomprehensible

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if had discussion with Sergeant Aristotle about whether or not a search warrant would be issued

Defendants’ Position: Refusal maintained. Irrelevant.

Irrelevant – breach of privacy is not a pleaded cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer whether made recommendation to Sergeant Aristotle that before bank released any information the RCMP should obtain a search warrant

Defendants’ Position: Refusal maintained. Irrelevant.

Irrelevant – breach of privacy is not a pleaded cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if suggested to Sergeant Aristotle that he make a formal request under the BCPIO process

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer that merely because Sergeant Aristotle said he had a suspicion he gave him the information

Defendants’ Position: Refusal maintained. Irrelevant.

Irrelevant – breach of privacy is not a pleaded cause of action and collateral attack on ruling of Fuerst J.

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if HSBC was part of BCPIO process

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if HSBC Securities is a member of Canadian Bankers Institution

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if any person at HSBC Securities is designated as a BCPIO officer

Defendants’ Position: Refusal maintained. Irrelevant.

Immaterial

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To answer if Mr. Ko never carried out his duty to the client

Defendant’s Position: Refusal maintained. Unanswerable. Mr. Ko is not in a position to comment on legal duty. In any event, as acknowledged at para. 35 of the statement of defence dated September 12, 2012, in late May 2012, a letter of instruction was sent to The Hongkong and Shanghai Banking Corporation Limited (“HSBC Hong Kong”) requesting the transfer of funds held by Mr. James and Tithe Holdings S.A. at HSBC Hong Kong to HSBC Bank Canada. HSBC Bank Canada has consistently and repeatedly advised Mr. James, since at least September 2012, that it: (a) did not exercise any power or authority over HSBC Hong Kong; (b) did not have any authority or access to any accounts that may have been held at HSBC Hong Kong; and (c) had not received nor did it possess the funds being claimed by Mr. James at para. 14 and Schedule “B” of the statement of claim.

Irrelevant – HSBC Hong Kong is not a party and is a separate legal entity from these defendants

Liability – inter alia: Relevant to the defendants’ liability, Statement of Defence at para 11

To advise what HSBC has done to looking into non-transfer of funds from HSBC Hong Kong to HSBC Canada from date Statement of Claim served to date

Defendants’ Position: Refusal maintained. Irrelevant. Further, and in any event, HSBC Bank Canada has consistently and repeatedly advised Mr. James, since at least September 2012, that it: (a) did not exercise any power or authority over The Hongkong and Shanghai Banking Corporation Limited (“HSBC Hong Kong”); (b) did not have any authority or access to any accounts that may have been held at HSBC Hong Kong; and (c) had not received nor did it possess the funds being claimed by Mr. James at para. 14 and Schedule “B” of the statement of claim. Mr. James acknowledges that any funds held in accounts at HSBC Hong Kong were never sent to HSBC Bank Canada. See Affidavit of Kenneth James sworn May 7, 2024 at para. 9, Responding Motion Record of the Plaintiff dated May 7, 2024, Tab 1 at pg. 8. Reflecting this fact, and by statement of claim issued on February 27, 2020, Mr. James and Tithe Holdings S.A. commenced an action in the Ontario Superior Court of Justice against HSBC Hong Kong seeking the return, and damages in respect of, the amounts previously claimed against HSBC Bank in the within action. By reasons for decision dated August 4, 2022, Associate Justice R. Frank stayed the action on the basis that Ontario is forum non conveniens. See James et al v. Hongkong and Shanghai Banking Corporation Limited, 2022 ONSC 4567.

Irrelevant – HSBC Hong Kong is not a party and is a separate legal entity from these defendants

James v. HSBC, 2024 ONSC 6518

Case Summary

Nature of the Motion

The Pleadings

Ruling

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legislation 2