toronto condominium brookfield sworn affidavit
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Court File No. CV-09-390024
ONTARIOSUPERIOR COURT OF JUSTICE
BET WEE N:
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 933
Plaintiff
- and -
BROOKFIELD RESIDENTIAL SERVICES LTD., CHRISTINE MAITLAND, andHELEN KENNERNEY
Defendants
AFFIDAVIT OF JUDY SUESWORN ON JUNE 7, 2010
I, Judy Sue, of the City of Toronto, in the Province of Ontario, MAKE OATH AND
SAY:
1. I am the Vice President and Treasurer of the plaintiff condominium corporation
("MTCC 933"). I was first elected as a director on June 4, 2008. I am also a Certified
General Accountant employed by the Royal Bank of Canada as a Senior Financial Analyst.
Background
2. True copies of the pleadings in this lawsuit will be filed with the Court together with
this affidavit and the notice of motion. Included also is a copy of the Notice of Change of
Lawyers filed with the court which resulted in all of the defendants being represented by a
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single firm, Stieber Berlach, after the defendant Christine Maitland ("Maitland") first
defended the claim with separate counsel.
3. This motion is for a Norwich Order to aid MTCC 933 in obtaining and preserving
information and property so that it can ultimately obtain compensation for the failed toilet
purchase order described at paragraphs 12 to 24 of the Statement of Claim.
4. As set out in greater detail in the Statement of Claim, while the defendants were
supplying management services to MTCC 933, a cheque in the amount of $142,276.65
was paid to AGG Alliance Contracting Group, a company operated by Gregory
Chatzisavvas, an individual also known as Greg Hatsisavvas and Greg Hatasisavvas
("Chatzisavvas"). (During the time that AGG Alliance Contracting Group did some
contracting work at the condominium property prior to the receipt of the cheque, it went by
the name of Alliance Contracting Group and Alliance Contracting Group Inc.; all of these
shall henceforth be referred to as "AGG Alliance").
5. The money advanced in this fashion was supposed to be used to purchase water-
efficient toilets for installation in approximately 300 condominium suites at 38 Elm Street,
Toronto (the "property"), which is where I reside and am a condominium owner.
6. The cheque in the amount of $142,276.65 represented 100% of the purchase price
of the toilets. A true copy of the cheque as dated July 17, 2007 is attached as exhibit "A".
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7. MTCC 933 has alleged and I believe that this amount was advanced to AGG
Alliance and Chatzisavvas on the recommendation of the defendants. Maitland, the on-site
manager at the property I recommended to then-members of the MTCC 933 board that the
toilet purchase order be awarded to AGG Alliance. As shown on exhibit "A", the defendant
Helen Kennerney ("Kennerney"), Maitland's supervisor, was one of the signatories on the
cheque. We say she failed in her duties to MTCC 933 in permitting the advance payment
to take place. The president of MTCC 933 at the material time, Leo Seto, also signed the
cheque. Mr. Seto has advised me, and I do believe, that he signed the cheque trusting
Maitland's advice as the on-site manager, and because he trusted the competence of
Kennerney, who had already signed it.
8. After several months of chasing after AGG Alliance and Chatzisavvas to deliver and
install the toilets, it became apparent to the board of MTCC 933 and to condominium
owners that AGG Alliance and Chatzisavvas were never going to deliver and install them.
9. MTCC 933 eventually sued AGG Alliance and Chatzisavvas and obtained default
judgment. MTCC 933 was unable to execute on the judgment, however, as AGG Alliance
had no assets and Chatzisavvas had disappeared. A true copy of the investigative report
of Peter McNulty & Associates dated August 6, 2008 detailing the unsuccessful efforts to
find Chatzisavvas is attached as exhibit "B".
Involvement of Others in Theft
1. Maitland
1O. MTCC 933 has pleaded that: "Maitland assisted in perpetrating this fraud upon
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MTCC 933, either knowingly as a party to AGG Alliance and Chatzisavvas's fraud and in
exchange for a payment from them in an amount unknown to the plaintiff, or by her
negligence."
11. I believe Maitland played a role in the fraud for several reasons:
(a) MTCC 933 possesses considerable evidence that Maitland had a non-arms
length relationship with Chatzisavvas that she never disclosed to MTCC 933;
(b) AGG Alliance correspondence to MTCC 933 respecting the toilet purchase
order was prepared by Maitland; and
(c) Maitland defrauded MTCC 933 prior to the toilet purchase order cheque
being advanced.
(a) Non-arms length relationship
12. In respect of the prior non-arms length relationship with Chatzisavvas, I have
carefully reviewed the telephone records of calls initiated by Maitland with cellular
telephones provided by MTCC 933 and have come to the following conclusions:
(a) During the period from April 19, 2006 to February 19, 2008, Maitland
appears to have made 121 calls to AGG Alliance and Chatzisavvas of which:
(i) 40 were made from outside of Toronto (i.e., not from the property);
and
(ii) 19 were made on evenings or weekends; and
. (b) Of these 121 calls, 42 were made during a five-month period in 2006 when
MTCC 933 had not contracted any work to Chatzisavvas or any companies
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known to be associated with him.
13. These calls were made to 6 different telephone numbers of AGG Alliance and
Chatzisavvas as follows:
(a) 4164648352, the cell telephone number shown on Chatzisavvas's business
card, a true copy of which is at exhibit "C";
(b) 416 424 4161, the main telephone number shown on Chatzisavvas's
business card at exhibit "C";
(c) 4169899917, the cell telephone number shown on Chatzisavvas's brother
Paul's business card, a true copy of which is at exhibit "0" (14 of the calls
were made to this number);
(d) 416 678 9903, another telephone number shown in handwriting on
Chatzisavvas's business card at exhibit "C", which is the same as a number
which was given to a condominium owner named Ida Seto (An e-mail by Ms.
Seto, which contains information that I believe to be true, advises that
Maitland gave her this number; a true copy of the e-mail is attached as
exhibit "E");
(e) 647500 1828, the telephone number of an associate of Chatzisavvas named
'Tony" as given to Ms. Seto as shown in exhibit "E" (three of the calls were
made to this number); and
(f) 416 508 5083 another telephone number given to Ms. Seto as shown in
exhibit "E".
Attached at exhibit "F" is a true copy of a summary I prepared of these telephone calls, and
at exhibit "Gil the telephone records from which I prepared the summaries.
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14. I note that my summary at exhibit "F" only shows calls made, not received - as can
be seen from exhibit "Gil, TELUS does not record the caller number on incoming calls.
Furthermore, Maitland may have also initiated calls to Chatzisavvas on her home
telephone number or on other telephones used by her. At this point in the lawsuit we have
no records relating to these possibilities from Maitland.
15. Maitland's own use of more than one cell telephone number to make these calls is
itself suspicious. As noted in the third page of my summary at exhibit "F", in May 2007 she
stopped using her old telephone number and began using the telephone number 416688
2242 for her telephone calls to AGG Alliance and Chatzisavvas. The name of Marte Cruz,
a cleaner at the property, is shown on the TELUS invoices as the user of this telephone.
Iffat Ladha, the current property manager (who is unassociated with Brookfield), has
spoken to Mr. Cruz and otherwise reviewed the matter herself and she has advised me,
and I do believe, that Mr. Cruz was never given a cell phone for his own use. A true copy
of an e-mail from Ms. Ladha confirming her discussions with Mr. Cruz is attached as exhibit
"H",
16. I only reviewed the lists of telephone calls after Maitland stopped acting as the on-
site property management on April 30, 2008. MTCC 933 had no idea that Maitland had
such frequent contact with AGG Alliance and Chatzisavvas at the time she worked at the
property.
17. In addition to the information about AGG Alliance and Chatzisavvas's telephone
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numbers, Ida Seto has provided me with information that leads me to believe that one of
Maitland's daughters, Laura Silva, was married to a subcontractor who did work for AGG
Alliance and Chatzisavvas at material times. Ms. Seto advised me and I do believe that
when she hired AGG Alliance and Chatzisavvas to do work in her condominium suite, he
sent a tile installer to do part of the job. She further told me and I do believe that this tile
installer asked that payment for extra work done by him be made by a cheque payable to
Laura Silva, his wife. I know that one of Maitland's daughters is named Courtney Silva. I
therefore believe that Laura Silva is her other daughter. A true copy of an e-mail that I
received from Ms. Seto on May 30,2010 confirming this information, the contents of which
I believe to be true, is attached as exhibit "I".
(b) Preparation of correspondence for AGG Alliance and Chatzisavvas
18. Maitland not only had the above-described connections with AGG Alliance and
Chatzisavvas prior to his being awarded the toilet purchase order, she also helped them
create correspondence respecting the toilet purchase order almost three months after AGG
Alliance and Chatzisavvas were given the $142,276.65 cheque. Attached as exhibit "J" to
this affidavit is a composite exhibit consisting of:
(a) A letter from AGG Alliance and Chatzisavvas to MTCC 933 dated October 3,
2007 assuring MTCC 933 that the work on installing the toiletswould begin
on October 23,2007;
(b) A printout of the same letter from a "Word" document stored on the computer
that was exclusively used by Maitland while she was the manager at the
property;
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(C) An e-mail report of Phillip D. Bidinoff dated September 30,2009 concluding
Ithat the "Word" document of the letter from AGG and Chatzisavvas to MTCC
933 dated October 3,2007 was created, edited, and printed by Maitland on
the same computer on October 2, 2007;
(d) The metadata scan results; and
(e) A further e-mail report of Phillip D. Bidinoff dated September 30, 2009
responding to follow-up questions by William Stratas, the President of MTCC
933.
(c) Maitland's known thefts
19. After Maitland stopped working at the property in April 2008, MTCC 933 discovered
that Maitland used MTCC 933 credit cards, petty cash belonging to MTCC 933, and
cheques drawn on MTCC 933's operating account in order to purchase goods and services
for her own benefit, including what appear to be renovation materials for her home, during
her time as on-site property manager.
20. My own review of the relevant documents has led me to conclude that Maitland
concealed her activities by fraudulently misrepresenting the purposes for which items
t appeared in credit card statements, entering false information into petty cash expense
records, misrepresenting temporary staffing expense allocations, and diverting cash
payments for employees of MTCC 933 that ought to have been paid as Christmas bonuses
and qratuities. I ultimately concluded that the total amount stolen by Maitland from MTCC
933 in this manner was $33,533.90.
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21. Prior to litigation being commenced, Brookfield Residential Services Ltd.
("Brookfield") undertook its own examination of MTCC 933's records and appears to have
acknowledged a " .,. systematic abuse of trust and care in expenses that [Maitland]
recorded over a period of 28 months while assigned as a manager at 38 Elm Street." This
admission was confirmed in a letter from MTCC 933's lawyer Armand Conant to the
President and CEO of Brookfield, John Oakes, dated June 29,2009, a true copy of which
is attached as exhibit "K".
22. Some aspects of this part of the lawsuit were settled earlier this year with the
defendants agreeing to pay MTCC 933, in full, all amounts that MTCC 933 claimed in
respect of the thefts plus some costs.
23. It should be noted that the defendants settled the claims relating to Maitland's thefts
without any admission of liability. MTCC 933's lawyer has advised me, and I do believe,
that outstanding issues related to the thefts remain. These include MTCC 933's right to
prove the thefts in respect of MTCC 933's claim for full indemnity for all consequential
damages flowing from them (such as the bills of pre-litigation lawyers), punitive damages,
and in respect of whether the pre-litigation efforts to resolve issues relating to the known
thefts were entered into in good faith (see paragraphs 4 to 6 of the Kennerney and
Brookfield defence included in the Motion Record, and paragraphs 3 to 5 of MTCC 933's
Reply to that defence). My lawyer tells me that MTCC 933 also intends to argue that
Maitland's participation in the toilet purchase order was part of a dishonest pattern of
conduct that characterized her entire 29-month tenure as on-site manager, and that the
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other defendants engaged in a continuous course of negligent conduct that included the
failure to supervise Maitland both while she was stealing money and in relation to the toilet
purchase order.
2. Hexil
24. Chatzisavvas's did some construction work at MTCC 933 under the business name
Hexil General Contracting ("Hexil"). Attached as exhibit "L" is a true copy of a log book
entry made by a concierge's recording that Chatzisavvas (identified as "Greg") was to be
contacted in respect of work being done by Hexil at 416464 8352. This is the same as the
cellular phone number shown on his AGG Alliance business card at exhibit "C".
25. Hexil has or had a bank account at the same branch of TD - Canada Trust as
Maitland, which is branch no. 1802 on Whites Road in Pickering. I know this from
examining the back of MTCC 933 cheques deposited by Hexil and by Maitland, true copies
of which are attached at exhibits "Mil and "N", respectively.
3. Paul "Hatsisavvas"
26. Chatzisavvas's brother Paul was with AGG Alliance at material times, as shown by
his business card at exhibit "D". Telephone records showing Maitland calling him 14 times,
as aforesaid. One of the calls Maitland made to him was made from Belleville. The
private investigator's report at exhibit "8" documents attempts to speak to Chatzisavvas's
brother Paul that were unsuccessful.
4. Others whose involvement may be recorded in bank records
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27. As stated above 1 believe Maitland has two daughters and that one of them - Laura
Silva - was married to a sub-tradesman working with Chatzisavvas at material times.
28. Maitland's other daughter - Courtney Silva - appears on the payroll of MTCC 933
for the first two months in 2007, the same year that AGG Alliance and Chatzisavvas
received the $142,276.65 cheque. She was supposedly hired by Maitland to fill in for an
employee who was on maternity leave.
29. Another employee or representative of AGG Alliance repeatedly called by Maitland
was "Tony". MTCC 933 is in the possession of a business card belonging to Antonio
Mazza, a true copy of which is attached as exhibit "0". I believe that "Tony" and Antonio
Maza are the same person, though I note that the number on the business card is different
from that given to Ms. Seto for "Tony". As shown in exhibit "F", Maitland appears to have
called this associate of Chatzisavvas on September 25, 2007, February 18, 2008, and
February 19, 2008. The last two calls were made from Oshawa and Pickering, not
Toronto. These last two cails were made over seven months after AGG Alliance and
Chatzisavvas received the $142,276.65 cheque. (Exhibit "F" also shows how Maitland
made 7 calls to one of Chatzisavvas's many telephone numbers in December 2007 to
January 2008, all but one of which were made from outside of Toronto.)
The forgery
30. . Persons unknown to MTCC 933 attempted to forge and deposit a cheque drawn on
MTCC 933's bank account in the amount of $221,670.45 to an account held at a Bank of
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Nova Scotia branch in Mississauga in July 200S, one year after the cheque for
$142,276.65 was advanced to Chatzisavvas. The back of the cheque tells me that the
cheque was received at a branch in Brampton for deposit to the Mississauga account but it
appears that it was not cleared by the bank's processing centre because it lacked a date.
A true copy of the undated forged cheque is attached as exhibit "P". There is a striking
similarity between the forged signatures on the cheque at exhibit "P" and the genuine
signatures on the cheque for $142,276.65 at exhibit "A".
Possible fabrication and suppression of evidence by defendants
31. The defendants have provided a draft affidavit of documents, a true copy of which is
at exhibit "Q". Listed at items 25 and 27 are s-mails allegedly sent by Maitland to a former
MTCC 933 board member, Dr. Walter Howell (also known as Pete Howell), on July 4,
2007. Photocopies of these a-mails, as produced by the defendants with handwritten
notations by unknown persons thereon, are attached as exhibits "RI)and "S" respectively.
These s-malls appear to show Dr. Howell being told, prior to the toilet purchase order being
made, that AGG Alliance and Chatzisavvas wanted MTCC 933 to pay 100% of the
acquisition cost of the toilets up front.
32. There is no other evidence of any sort known to MTCC 933 that suggests that
MTCC 933 was told, in anyway, thatAGG Alliance and Chatzisavvas required payment in
full up front in the event that the toilet purchase order was awarded to them.
33. _ I have spoken to Dr. Howell, shown him copies of items 25 and 27, and he has
advised me, and I do believe, that he never received these e-rnails.
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34. MTCC 933's lawyer, Paul Dollak, has on three occasions made requests for
electronic versions of these documents. A true copy of his most recent request made on
May 21,2010 is attached as exhibit ''1''. Mr. Dollak advises me, and I do believe, that he
has yet to receive a response to this letter.
35. MTCC 933 recently engaged a company called Digital Wyzdom to conduct further
forensic reviews of the data on the hard disk drive of the computer that had been
exclusively used by Maitland while she worked at the property. After Maitland left, the
same computer was used by Maitland's replacement Wendy Wright. Digital Wyzdom very
recently provided MTCC 933 with a series of recovered e-mails between Wright and
Kennerney dated July 31, 200S in which Wright advises Kennerney in response to an e-
mail titled "RE payment":
I have gone through the emails three times and can't find anything prior to July io".Nor nothing which states that Greg needs the money up front. Sorry Helen.
A true copy of Digital Wyzdom's report dated June 3, 2010 respecting the e-mails dated
July 31, 200S as recovered by Digital Wyzdom is attached as exhibit "U" together with the
CV of Rene Hamel of Digital Wyzdom.
36. The July 31, 2008 e-mails uncovered by Digital Wyzdom are not disclosed in the
defendants' draft Affidavit of Documents in any way and have not been produced by them.
I note that these s-malls were sent more than one year before this lawsuit was
commenced, at a time when Brookfield was still supplying management services to the
plaintiff and while Brookfield was purporting to assist the plaintiff in pursuing Chatzisavvas.
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Banks and Bank Accounts
37. I believe that documents and information relating in the following bank accounts
would assist in identifying wrongdoers besides AGG Alliance and Chatzisavvas, preserve
evidence against them, determine whether a cause of action exists against them, and
possibly preserve funds belonging to MTCC 933:
(a) TD - Canada Trust account no. 522-011-5 at branch 0192 (1846 Lawrence
Avenue East, Scarborough ON M1R 2Y4). This is the account to which the
$142,276.65 cheque, which is at exhibit "A", appears to have been
deposited.
(b) TD - Canada Trust account no. 520-827-5 (or 520-827-9 -the handwriting is
unclear) at branch 1802 (1822 Whites Road, Pickering ON L1V 4M 1). This
is the Hexil account described above to which the cheque found at exhibit
"Mil, appears to have been deposited.
(c) TD - Canada Trust account no. 622-026-4, also at branch 1802. This is the
Maitland account described above which the cheque found at exhibit "N",
appears to have been deposited.
(d) Royal Bank of Canada account no. 101-021-4, at branch 06192 (65 Overlea
Blvd., Toronto ON, M4H 1P1). This is an AGG Alliance account that appears
to have been used by AGG Alliance and Chatzisavvas to deposit cheques for
work done prior to the receipt of the $142,276.65 cheque. A true copy of a
cheque that appears to have been deposited to this account is at exhibit "V".
/ (e) Bank of Nova Scotia account no. 007-271-0, at branch 67082 (7205
Goreway Drive, Mississauga ON, L4T 2T9). The attempt to deposit the
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forged cheque, at exhibit "P", was made to this account.
(f) Bank of Nova Scotia account no. 003-421-5, at branch 07906 (2290
Lawrence Avenue East, Scarborough ON, M1P 2P9). This is another AGG
Alliance account that appears to have been used by AGG Alliance and
Chatzisavvas to deposit cheques for work done prior to the receipt of the
$142,276.65 cheque. A true copy of a cheque that appears to have been
deposited to this account is at exhibit "W".
38. I determined the account numbers and the location of the above accounts from the
information printed on the back of the cheques that have been attached as exhibits. My
handwritten summary of my work is attached at exhibit "X" as it may assist this Honourable
Court.
Indemnification
39. MTCC 933 hereby undertakes to indemnify all banks ordered to make disclosure for
the costs to which they may be exposed or which they may incur for making the disclosures
sought.
Status of Proceeding
40. There is a litigation plan forthis proceeding. A true copy of a letter from Paul Dollak
to Barry Cox dated January 11, 2010, which sets out this litigation plan, is attached as
exhibit "Y". The exchange of productions referred to in the tetter has taken place and
discoveries are booked. We have not received sworn affidavits of documents from the
defendants, though, even though MTCC 933's lawyer has demanded them.
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41. In addition to the matters discussed in the litigation plan, the parties have agreed to
mediate this dispute before Gary Caplan on September 14, 2010.
42. I make this affidavit in support of a motion for equitable discovery and no improper
purpose.
SWORN BEFORE ME at theCity of Toronto, in theProvince of Ontariothis 7th day of June 201 0
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Paul Dollak, a commissioner etc.
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