Professional Documents
Culture Documents
ONTARIO
SUPERIOR COURT OF JUSTICE
PERELL, J.
[1] In this action, Rong Juan (Judy) Wang and her corporation Yi Hao Investments (“YH-
Investments”) sue: Mr. Arden Al, Ms. Hershey Guevera Al, Yan-Ling Ding, Mr. Rahul
Kesarwani, Mrs. Malti Kesarwani, 994179 Ontario Ltd. (“Kesarwani Corp.”), and Sherry Wong.
The Plaintiffs allege that the Defendants conspired to commit three mortgage frauds and that Mr.
Kesarwani, who is a lawyer and who acted for the Plaintiffs, was professionally negligent and in
breach of his fiduciary duties.
[2] On August 9, 2017, without notice, the Plaintiffs obtained an interim Mareva injunction
(freezing the assets of the Defendants), an interim Norwich Order (requiring the disclosure of
information from the Defendants), and certificates of pending litigation against properties owned
by the Kesarwanis, Ms. Al, and Ms. Ding. The interim orders were continued on August 18,
2017 pending the completion of cross-examinations.
[3] On September 5, 2017, the Plaintiffs abandoned the Mareva injunction as against Mr.
Kesarwani and Kesarwani Corp. On September 12, 2017, the Plaintiffs abandoned the Norwich
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Order as against Mr. Kesarwani and Kesarwani Corp. On September 13, 2017, the Mareva
injunction and the Norwich Order as against Mr. Kesarwani and Kesarwani Corp. were vacated.
The injunctions as against the other Defendants were extended until October 24, 2017.
[4] On the return of the main motion to continue the injunctions, in one of the other motions
B. Factual Background
1. Introduction
[6] Affidavit and or cross-examination evidence were proffered for the motions now before
the court from 16 witnesses; namely: Mr. Al, Ms. Al, Ms. Ding, Adamo Fucile, Neeraj Jain,
Annysha Jaiswal, Mr. Kesarwani, Mrs. Kesarwani, Rachel Pilc, Yan Yan Su, Jack Tannerya,
Susan Turton, Ms. Wang, Ms. Wong, Daniel Woods, and Mr. Zhang.
[7] The Plaintiff Ms. Wang speaks Mandarin and does not speak or read English. She
emigrated to Canada with Mr. Zhang, whom she says she divorced in 2013. They have two
children that live with her. She was a 50% owner of Y-H Investments along with Mr. Zhang
until March 2016, when Mr. Zhang conveyed his 50% interest in the company to her in gratitude
for her having paid for providing the stakes for his high stakes gambling. Mr. Zhang is a
profligate high stakes gambler.
[8] Mr. Al is a former jewellery importer, who emigrated to Canada in 1999, where he
carried on business between China and Malaysia until his bankruptcy in 2014. He has three
children, a son and two daughters, the older daughter being the Defendant Hershey Guevera Al
(Ms. Al). Mr. Al is fluent in English and Cantonese and has a working knowledge of Mandarin.
He was a friend of Ms. Ding, Ms. Wang, and Mr. Zhang, and Mr. Al referred legal work to Mr.
Kesarwani and immigration work to Daniel Woods, a non-lawyer immigration consultant.
[9] Ms. Al is Mr. Al’s 26-year-old daughter and a university student enrolled in a business
management course. She speaks only English.
[10] Ms. Ding is a licensed real estate agent. She was born in China and is fluent in Mandarin
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and Cantonese. She emigrated to Canada in 2002 and learned English as a second language. Ms.
Ding met Mr. Zhang in Canada through her husband, and the Plaintiffs engaged Ms. Ding as a
real estate sales agent to sell their properties.
[11] Mr. Jain has an engineering degree but now carries on business as a private investor. He
interferences. There are countless instances where it is not clear that the witness understood the
question and countless instances where the questions are unintelligible. There are numerous
refusals of proper questions that should have been answered. Large portions of the evidence have
the quality of pulp fiction.
2. Factual Background
[21] In December 2010, Ms. Wang (born 1977) and Mr. Zhang (born 1964) emigrated to
Canada from China pursuant to the immigrant investor program. Ms. Wang and Mr. Zhang speak
Mandarin and they are non-lingual in English. They have two children, the eldest daughter being
an American citizen having been born during Ms. Wang’s brief visit to the United States.
[22] Ms. Wang and Mr. Zhang arrived in Canada with at least six million dollars. How this
was so and how they have sustained themselves in Canada, where neither of them has any
employment or businesses, apart Mr. Zhang’s gambling and YH-Investments land development
projects, is not explained. On the instructions of counsel, during her cross-examinations, Ms.
Wang refused to answer any questions about the source of her wealth or about her business
affairs in China and about her travel to China. The explanation of some of the Defendants for the
Wang-Zhang wealth is that they believe that Mr. Zhang was a criminal who managed to get his
wealth out of China to become a money launderer in Canada. I make no finding other than
saying that it is unknown how Ms. Wang and Mr. Zhang acquired their considerable wealth or
how they got it out of China for investments in Canada.
[23] In 2011, the Wang-Zhang family moved into a house at 77 May Avenue, Richmond Hill.
The house was purchased for $1,255,000 cash with no financing.
[24] Ms. Wang and Mr. Zhang deposed that in February 2011, they separated. Mr. Zhang may
believe that a separation is the same as divorce. They signed a separation agreement dated
February 10, 2011. The agreement was prepared by the immigration consultant, Daniel Woods,
who was introduced to Ms. Wang and Mr. Zhang by Mr. Al, who had been introduced to them
by Ms. Ding. Mr. Woods was associated with a law firm that reviewed his work outside the
immigration area, and he testified that he recommended that Ms. Wang and Mr. Zhang obtain
independent legal advice because of the extent of their property holdings. Mr. Woods says that
he was not given instructions to proceed with divorce proceedings.
[25] After the separation, Mr. Zhang moved out of the family home, but he would return from
time to time to visit the children. According to Ms. Wang, Mr. Zhang would sometimes stay
overnight in a separate bedroom. According to Mr. Zhang, he would stay overnight only if Ms.
Wang was away.
[26] Although separated, Ms. Wang and Mr. Zhang remained business partners. On
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September 1, 2011, YH-Investments was incorporated. Its books and records are kept by a
Mandarin speaking accountant. The corporation was owned equally by Ms. Wang and Mr. Zhang
and its purpose was to purchase and develop real property.
[27] On November 7, 2011, shortly after YH-Investments’ incorporation, it purchased 55
income, and he has lived on the support of his family in Malaysia, who provide monthly
payments to him of between $2,000 and $15,000.
[34] Mr. Al deposed that by the time of his bankruptcy, he had loaned Mr. Zhang over
$400,000 for Mr. Zhang’s gambling habits and debts. These loan receivables are not documented
1130. Q. When did you give him that money, the 5 to 6 million dollars?
A. Ever since coming to Canada, the money was advanced to him at different times.
1132. Q. What's the most you gave to him at any one time?
A. 2.5 million, I think.
….
1146. Q. Since March 4, 2016, how much money have you given Peter [Mr. Zhang]?
A. Maybe less than 100,000.
1147. Q. Altogether?
A. Yes. No, sorry, less than 1 million.
1148. Q. Less than 1 million.
A. Sorry, yes.
[37] Mr. Zhang frequently gambled at Casino Rama. It seems that Ms. Ding was also a
gambler as was Mr. Al. Ms. Wong, another of the Defendants who gambled at Casino Rama,
says that she met Mr. Zhang at the baccarat tables. Ms. Wong and Mr. Zhang became
acquaintances. In undocumented loans of gambling chips and cash, Ms. Wong says she loaned
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Mr. Zhang $180,000. Ms. Wong says that she understood that Mr. Zhang owned YH-
Investments. She testified that he promised to repay his indebtedness to her by selling or
mortgaging the properties of his corporation. Mr. Zhang denies even knowing Ms. Wong.
[38] Ms. Ding testified that she also loaned money to Mr. Zhang for his gambling. This too is
purchased a condominium for approximately $0.5 million. Ms. Ding deposed that she visited Mr.
Zhang and his girlfriend Yang Fang in Montreal. Ms. Ding deposed that she lent Mr. Zhang
more funds to gamble including paying $20,000 interest on his pawning of an expensive watch.
This loan is denied by Mr. Zhang.
was to be personally guaranteed by Mr. Zhang. Mr. Kesarwani says that apart from indicating
urgency, Mr. Zhang did not explain the purpose of the borrowing, but Mr. Kesarwani came to
understand that the money from the mortgage was to be used to pay gambling debts. Mr.
Kesarwani says that he was not told that Mr. Zhang was not still the owner of the YH-
1
R.S.O. 1990, c. M.40.
2
R.S.C. 1985, c. I-15.
3
R.S.C., 1985, c. C-46.
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although the mortgage was in the face amount of $300,000, the sum actually advanced by the
lenders was more. Mr. Kesarwani’s trust ledger statement indicates that $331,523 was advanced.
However, the trust ledger statement for the subsequent discharge of the $300,000 mortgage
indicates that the additional principal was $51,600.
[68] In early 2017, Ms. Wong chanced to meet Mr. Zhang at a mall, and he promised to repay
his debt to her. She says that shortly after this meeting, she went with Mr. Zhang to an illegal
casino where she saw Mr. Zhang harassed for repayment of a $700,000 gambling indebtedness.
As noted above, Mr. Zhang deposed that he does not know Ms. Wong, never gambled with her,
Either Ms. Wang is lying or all of Mr. Al, Ms. Ding, Mr. Kesarwani, and Mr. Woods are lying.
[76] In any event, on March 1, 2017, the $1,175,000 mortgage was registered. The one-year
mortgage charged interest at 12% per annum. The mortgage was granted to Maria Kapetanios.
The mortgage funds were paid: (a) $440,600 to discharge the $300,000 mortgage and Mr.
[82] Returning to the narrative, in April 2017, Ms. Wong met Mr. Zhang at Casino Rama, and
she deposed that because she had been repaid $150,000, she was prepared again to lend him
more money. In partially documented loans of ATM withdrawals or transfers, Ms. Wong says
she loaned Mr. Zhang and his girlfriend Yang Fang from Montreal another $60,000 raising the
[91] On May 5, 2017, Ms. Wang’s lawyers at Dickinson Wright LLP contacted Mr.
Kesarwani making inquiries about the $1,175,000 mortgage. At this time, Ms. Wang’s lawyers
were not aware of the $550,000 mortgage.
[92] Again on May 9, 2017, Ms. Wang’s lawyers requested details about the $300,000
[105] On August 9, 2017, the Plaintiffs brought motions without notice before Justice Dow and
were granted a Mareva injunction, a Norwich Order, and certificates of pending litigation. Ms.
Wang deposed that all of the $300,000, $1,175,000 and $550,000 mortgage transactions were
frauds and forgeries and that YH-Investments had received no funds from these transactions and
1. Introduction
[111] I have already explained at the outset why I am dismissing without costs the Plaintiffs’
motion to strike various allegations in the affidavits delivered for the motions.
[112] To explain why I am making orders without costs to vacate the Mareva injunction the
Norwich Order, and the certificates of pending litigation and dismissing the Kesarwanis’ motion
to enforce the undertaking as to damages, I shall in this introduction set out the applicable legal
principles. Then, in the sections that follow, I shall apply the principles to the circumstances of
this bizarre case as it has developed so far.
[113] To obtain a Mareva injunction, a plaintiff must satisfy the normal criteria for an
injunction and also several additional criteria. For a Mareva injunction, the moving party must
establish: (1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and
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(3) that there is a serious risk that the defendant will remove property or dissipate assets before
the judgment. A Mareva injunction should be issued only if it is shown that the defendant's
purpose is to remove his or her assets from the jurisdiction to avoid judgment. The moving party
must also establish that he or she would suffer irreparable harm if the injunction were not granted
4
02 Electronics Inc. v. Sualim, 2014 ONSC 5050.
5
Vieweger Construction Co. v. Rush & Tompkins Construction Ltd., [1965] S.C.R. 195; Nelson Burns & Co. v.
Gratham Industries Ltd., [1987] O.J. No. 1100 (C.A.), leave to appeal to S.C.C. refused [1988] S.C.C.A. No. 165;
Ontario (Attorney General) v. Harry (1982), 35 O.R. (2d) 248 (H.C.J.); Metropolitan Toronto (Municipality) v.
N.B. Theatrical Agencies Inc. (1991), 2 O.R. (3d) 260 (Gen. Div.); United States of America v. Yemec, [2013] O.J.
No. 1473, 2013 ONSC 50 at para. 14, affd. 2014 ONCA 274.
6
Nelson Burns & Co. v. Gratham Industries Ltd., supra at paras. 10-11; United States of America v. Yemec, [2009]
O.J. No. 3546 (S.C.J.) at para. 111.
7
United States of America v. Yemec, 2010 ONCA 414 at paras. 54-88, reconsideration allowed 2010 ONCA 845;
Vieweger Construction Co. v. Rush & Tompkins Construction Ltd., supra.
8
1654776 Ontario Ltd. v. Stewart, 2013 ONCA 184, leave to appeal refused [2013] S.C.C.A. No. 225; GEA Group
AG v. Ventra Group Co. (2009), 96 O.R. (3d) 481 (C.A.); Tetefsky v. General Motors Corp., 2010 ONSC 1675,
affd., 2011 ONCA 246.
9
Isofoton S.A. v. Toronto Dominion Bank (2007), 85 O.R. (3d) 780 (S.C.J.); Hudspeth v. Whatcott, 2017 ONSC
1708 at paras. 267-274.
10
(2009), 96 O.R. (3d) 481 (C.A.).
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required to permit a prospective action to proceed, although the firm commitment to commence
proceedings is not itself a condition precedent to this form of equitable relief.
[117] On a motion for an interlocutory injunction made without notice, there must be full
and fair disclosure of all material facts.11 A material fact is one that the court may need to
know in coming to its decision and that if not disclosed may affect the outcome of the decision.12
2. Fraud or Folly
[118] The evidence before the court gives me the choice of attributing the Plaintiffs’ loss of
approximately $1.1 million to fraud or to folly. The above description of the factual background
reveals that the Plaintiffs either have a strong prima facie case of being the victims of several
frauds and forgeries or that the Defendants have a strong prima facie defence that the Plaintiffs
are the victims of their own greed and or stupidity.
[119] For present purposes, I prefer the folly version of the facts. In general, I found Ms.
Wang’s, and particularly Mr. Zhang’s evidence, self-serving, implausible, inconsistent, illogical,
incredible, unreliable, evasive, and inconsistent with the documentation. That is not to say that
the Defendants were in every respect credible and reliable witnesses. In particular, Mr. Al’s, Ms.
Ding’s, and Mr. Kesarwani’s evidence is suspect and in many respects, their evidence is
incredible and unreliable.
[120] There is the prospect that some witnesses committed perjury or were dishonest, but for
the purposes of this motion, it is not necessary for me to make a final determination. For present
purposes, I limit myself to saying that the Defendants’ accounts were better collaborated by
common sense, by the documents - to the extent that the documents were reliable, and by the
non-party witnesses who may have had bad memories but who had no or little motive to
prevaricate or to lie or to expose themselves to perjury charges.
[121] I have no doubt that Mr. Justice Dow made the correct interim interlocutory orders based
on the evidence before him, but the factual record is now substantially different.
[122] Since in the context of the Mareva injunction and the Norwich Order, I do not believe
Ms. Wang and Mr. Zhang’s evidence, I conclude that the Plaintiffs have not shown a strong
prima facie case of fraud and this is particularly true with respect to the Plaintiffs’ claims against
11
Chitel v. Rothbart (1982), 39 O.R. (2d) 513 (C.A.); Sherwood Dash Inc. v. Woodview Products Inc., [2005] O.J.
No. 5298 (S.C.J.); Parallel Medical Services Ltd. v. Ward, [2002] O.J. No. 1498 (S.C.J.) at paras. 15- 19.
12
Pazner v. Ontario (1990), 74 O.R. (2d) 130 (H.C.J.).
13
United States v. Friedland, [1996] O.J. No. 4399 (Gen. Div.); United States v. Yemec (2005), 75 O.R. (3d) 52
(Div. Ct.).
14
830356 Ontario Inc. v. 156170 Canada Ltd., [1995] O.J. No. 687 (Gen. Div.); Cimaroli v. Pugliese, [1987] O.J.
No. 2464 (H.C.J.).
15
Forestwood Co- operative Homes Inc. v. Pritz, [2002] O.J. No. 550 (Div. Ct.); Bardeau Ltd. v. Crown Food
Service Equipment Ltd. (1982), 38 O.R. (2d) 411 (H.C.J.).
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Ms. Wong. For this reason alone, I shall not continue the Mareva injunction, the Norwich Order,
and I shall vacate the certificates of pending litigation.
[123] The Plaintiffs’ case against Ms. Wong is very weak. Her evidence that she lent money to
Mr. Zhang and that he told her that he would repay her is at least partially corroborated and Mr.
why he made interim interlocutory Orders against Mr. Kesarwani and Kesarwani Corp.
However, the record now clearly reveals that the requirements for a Norwich Order, which is an
extraordinary-extraordinary order, were not satisfied. The Plaintiffs did not need any information
from Mr. Kesarwani to confirm their own knowledge and belief that YH-Investments had not
D. Conclusion
[134] For the above reasons, I dismiss all of the motions without costs.
___________________
Perell, J.
ONTARIO
BETWEEN:
Plaintiffs
– and –
Defendants
PERELL J.