Court File and Parties

Court File No.: CV-23-00708208 Date: 2024-02-07 Ontario Superior Court of Justice

Between: WENDY-LEAH MEINTJIES Plaintiff – and – JOHN DOE, MOHAMMED ALI SARFARAZ AWAN also known as MOHAMMED AWAN, and 10066567 CANADA INC. carrying on business as OTTO SECURITY Defendants

Counsel: Daniel Ebady, for the Plaintiff

Heard: February 7, 2024

Before: Papageorgiou J.

Overview

[1] The plaintiff is a retired senior living on a fixed income.

[2] The plaintiff claims that she directed funds to the defendant Ali Sarfaraz’s (“Awan”), who represented that he was a Royal Bank of Canada employee. She says that he told her that these funds would be invested in an RBC guaranteed investment account.

[3] After the wire transfer was completed, the defendants became non-responsive, she discovered that this was a sham, and that the funds that she believed would be wired to RBC were in fact wired to an account held by the defendant 10066567 Canada Inc. (“100”). Awan is a director.

[4] She seeks a Mareva injunction over the assets and the bank account held by 100 to prevent them from being dissipated. She also seeks a Norwich Order as against RBC. This motion was brought on notice to the defendants, but they did not appear.

Decision

[5] For the reasons that follow I am granting the Orders sought with the Mareva injunction limited to $200,000.

Issues

[6] In arriving at my decision, I have considered the following issues:

• Issue 1: Does the plaintiff meet the test for a Mareva injunction?
• Issue 2: Is the test for a Norwich Order made out?

Issue 1: Does the plaintiff meet the test for a Mareva injunction?

The Legal Test for a Mareva Injunction

[7] The requirements for a Mareva Injunction are as follows:

• A strong prima facie case on the merits of the main action.
• Grounds for believing that the Defendant has assets in the jurisdiction.
• Real risk of dissipation.
• Irreparable harm and that the balance of convenience favours the plaintiff; and
• An undertaking as to damages: Pugliese v. Acruri, 2011 ONSC 3700 at para 6; RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

Strong Prima Facie Case

[8] I find that the plaintiff has made out a strong prima facie case.

[9] The plaintiff’s evidence establishes that in or around September 2022, she was browsing online for investment products that yielded high returns. She filled out various online forms on multiple websites.

[10] Thereafter, the plaintiff received an email and phone call from someone who identified himself as David Wilkinson. He introduced himself to be an Account Manager with RBC Private Wealth Management. The email address contained “RBC” in the domain name.

[11] This individual told the plaintiff about an investment opportunity described as a guaranteed investment income account that would be insured by the Canada Deposit Insurance Corporation with interest at 8.2 per cent per annum. This individual emailed documents that went into a great deal of detail about the investment terms.

[12] The plaintiff had multiple calls with this individual, and she also satisfied herself that someone named David Wilkinson worked at RBC.

[13] Thereafter she directed a transfer of $99,980 to an account she understood was this investment account.

[14] After she directed these funds, she attempted to contact the individual who she believed was David Wilkinson, but he did not respond. She then contacted RBC’s main line and was advised that there was no such investment held by her at RBC.

[15] She realized that she had been duped and contacted the Toronto Police Service. The police investigated the matter and discovered that the plaintiff’s funds were deposited into an account held by the defendant 100.

[16] The police contacted Awan, 100’s director, about this transaction. Awan informed the police that the plaintiff had deposited these funds on account of the sale of security equipment he sold someone on Kijiji. Awan failed to provide the police with any evidence of this transaction.

[17] The plaintiff wrote a demand letter on August 24, 2023. Then, the police advised the plaintiff that Awan advised them that he would return the funds after his return from Dubai. Awan also told the plaintiff’s lawyer by email that he would repay these funds.

[18] He never returned the funds and never responded to any further inquiries.

[19] The above evidence establishes a prima facie case for unjust enrichment, civil fraud, conspiracy, and misrepresentation: Quizno’s Canada Restaurant Corp v. 1450987 Ontario Corp, 2009 ONSC 20708 at para 40.

Grounds to believe the defendant has assets

[20] I am satisfied that there are grounds to believe that the defendants have assets in Ontario given the fact that the moneys in question were deposited into an Ontario bank account in 100’s name. The Personal Property Security Register also demonstrates that Awan owns a Toyota Camry 2020: Original Traders Energy Ltd. (Re), 2023 ONSC 1887 at para 49; Christian-Philip v. Rajalingam, 2020 ONSC 1925 at para 33.

Real risk of dissipation

[21] I am satisfied that there is a real risk of dissipation given the circumstances of the fraud itself for which the plaintiff has demonstrated a prima facie case: Sibley & Associates LP v. Ross, 2011 ONSC 2951 at para 63; Original Traders Energy Ltd. (Re), 2023 ONSC 1887 at para 75; Christian-Philip v. Rajalingam, 2020 ONSC 1925 at para 33.

Balance of convenience & irreparable harm

[22] I am satisfied that the plaintiff will suffer irreparable harm and that the balance of convenience also favours her because of the strong evidence of fraud and the risk of removal which will render any judgment meaningless if the accounts in question are not frozen. The plaintiff has limited the Mareva Injunction Order to the monetary limits of the funds received by the defendants together with her claim for punitive damages and costs: Original Traders Energy Ltd. (Re), 2023 ONSC 1887 at para 102.

Undertaking as to damages

[23] The plaintiff has provided an undertaking as to damages but submits that this requirement ought to be dispensed with. Rule 40.03 of the Rules of Civil Procedure specifically states that an undertaking must be provided “unless the court orders otherwise”, thus confirming that the Court has jurisdiction to dispense with the requirement.

[24] However, the plaintiff was unable to reference any case where the court dispensed with the requirement. Although I can appreciate the stress that this matter has caused the plaintiff as well as her personal circumstances of being retired and on a fixed income, this is a customary requirement and in my view the circumstances do not warrant dispensing with it.

Issue 2: Is the test for a Norwich Order made out?

[25] I am also satisfied that a Norwich Order should be made compelling the Royal Bank to disclose information and documents. The plaintiff has demonstrated a bona fide claim against the defendants, that the Royal Bank is the only practicable source of information, and that the interests of justice favour granting the relief sought: Alberta (Treasury Branches) v. Leahy, 2000 ABQB 575, [2000] A.J. No. 993 (Q.B.) aff’d (2002), 51 Alta L.R. (4th) (C.A.); Isofoton S.A. v. Toronto Dominion Bank, 2007 ONSC 14626 at para 40.

[26] I am also satisfied that the Order sought is necessary and is not intended to circumvent the normal discovery process but is sought for the legitimate objective of tracing funds and determining the identity of a wrongdoer: GEA Group v. Flex-N-Gate Corporation, 2009 ONCA 619.

Papageorgiou J. Released: February 7, 2024.