Marciano (Syndic de), 2013 QCCS 1533

Transcription

Marciano (Syndic de)
2013 QCCS 1533
SUPERIOR COURT
(Commercial Division)
CANADA
PROVINCE OF QUEBEC
DISTRICT OF
MONTRÉAL
500-11-041322-112
No:
DATE:
April 15, 2013
______________________________________________________________________
PRESIDING : THE HONOURABLE CHRISTIANE ALARY, J.S.C.
______________________________________________________________________
IN THE MATTER OF THE FOREIGN BANKRUPTCY OF GEORGES MARCIANO
GEORGES MARCIANO
Debtor
and
MICHEL BENSMIHEN, in his capacity as Trustee for the CKSM Family Trust
9204-7570 QUÉBEC INC.
LAND REGISTRAR OF THE LAND REGISTRY OFFICE FOR THE REGISTRATION
DIVISION OF MONTREAL
Impleaded Parties
and
DAVID GOTTLIEB
Foreign Representative
and
PRICEWATERHOUSECOOPERS INC.
Interim Receiver
______________________________________________________________________
JUDGMENT
______________________________________________________________________
1. INTRODUCTION
[1]
The Court is seized with a motion entitled “Re-re-amended Motion of the Interim
receiver for an order which is necessary to protect the rights of the debtor’s creditors and
for directions.” (“PWC’s Motion”).
[2]
This motion is submitted by PriceWaterhouseCoopers Inc. (“PWC”) in its quality of
Interim Receiver to the Estate of the debtor, Georges Marciano (the “Debtor”). PWC’s
Motion is supported by David Gotlieb, in his quality of Trustee to the US Bankruptcy of the
Debtor (the “Foreign Representative“).
[3]
PWC’s Motion is contested by the Debtor, by 9204-7570 Québec Inc., 9211-9882
Québec Inc. and 9213-4568 Québec Inc. (the “Numbered companies”) as well as by
Michel Bensmihen, in his quality of Trustee to the CKSM Family Trust (“CKSM”) (the
Numbered companies and CKSM being collectively called the “Impleaded Parties”).
[4]
The Parties agreed to proceed by filing detailed affidavits followed by examinations
out of Court. PWC has filed the affidavit of its representative, Mr Jonathan Zidel and of the
Foreign Representative’s US Attorney, Mr Jeremy Richards. The Debtor and the
Impleaded Parties have filed the affidavit of Mr Michael Reznick, the Debtor’s US attorney.
[5]
PWC’s Motion is part of a judicial saga which was initiated in the State of California
in August 2007 and that has continued since, in the United States and in Canada.
[6]
It follows a series of ex parte orders issued by Justice Chantal Corriveau[1] on
September 15 and 16, 2011 (the “Corriveau Judgments”), an order issued by Justice JeanYves Lalonde[2] on October 5, 2011, a judgment of Justice Mark Schrager[3] (the
“Schrager Judgment”) of December 8, 2011 reviewing and rescinding the
Corriveau Judgments pursuant to section 185 (7) of the Bankruptcy and Insolvency
Act[4] (“BIA”), and five Court of Appeal Judgments[5] issued on October 23, 2012 (the
“Court of Appeal Judgments”).
2. FACTS[6]
2.1
HISTORICAL BACKGROUND OF THE CASE
[7]
The facts of this case, up to the Court of Appeal hearing of March 28, 2012, are
summarized by Justice Pierre Dalphond at paragraphs [7] to [31] of one of the Court of
Appeal Judgments[7]:
[7]
Respondent Georges Marciano is a wealthy businessman. He estimates his
net worth at about US$175,000,000. Marciano's de facto spouse is a Montreal
native. Between 2006 and 2009, he acquired 18 buildings in Old Montreal, including
a boutique hotel. Currently a Montreal resident, he has brought with him from
California various moveable items, such as luxury cars worth $3,225,000, a
collection of jewellery and watches worth $30,736,821, and an art collection
(paintings and sculptures) worth $36,205,953.
[8]
In August 2007, while a California resident, he sued five former employees,
in Los Angeles Superior Court including the appellants Joseph Fahs, Steven
Chapnick and Elizabeth Tagle ("Fahs et al."), for embezzlement and related claims
(L.A. Sup. Ct Case No. BC375824). He also filed complaints against them with the
local police, the FBI and the tax authorities. He claimed from them about
US$400,000,000 in total. The employees filed cross-complaints in which they
claimed damages for defamation and intentional infliction of emotional harm. During
the proceedings, Marciano often changed attorneys and failed to comply with
various discovery obligations. At one point, a judge concluded that he had
committed an abuse of process, which led to the summary dismissal of his
complaint and of his answers to all of the cross-complaints and the authorization to
cross-complainants to proceed by default (called in California "terminating
sanctions"). An ex parte prove-up hearing took place in front of an advisory civil jury
which in July 2009 rendered five identical verdicts of US$74,000,000 for future
economic loss, moral and punitive damages, significantly in excess of the amounts
sought, totalling US$370,000,000. Later, the awards were reduced as follows by the
trial judge so as to not exceed the amounts claimed by the cross-complainants in
their proceedings:
Joseph Fahs
US$55,000,000
(instead of US$74,044,000
including US$5 million in
punitive damages)
Steven Chapnick
US$25,000,000
punitive damages)
Elizabeth Tagle
US$15,300,000
punitive damages)
Miriam Choi
US$55,000,000
punitive damages)
Camille Abat
US$55,000,000
punitive damages)
These Los Angeles Superior Court Judgments total US$205,300,000.
[9]
In separate proceedings instituted in 2008, Marciano also sued his former
tax accountant, Gary Iskowitz and two related parties for considerable amounts. The
defendants later filed cross-complaints for emotional harm and defamation (L.A.
Sup. Ct Case No. BC384493). On August 26, 2009, Marciano's claim was
summarily dismissed and subsequently the cross-complainant Iskowitz was
awarded US$45,000,000 (including US$5,000,000 for loss of professional and
personal reputation, 10,000,000 for emotional harm and US$10,000,000 on for hurt
feelings the whole without expert evidence of emotional harm), and the two other
co-cross-claimants were awarded US$5,000,000 each.
[10]
The total amount of the awards against Marciano is a little over
US$260,000,000 ("Civil Judgments"). Most of the amounts awarded are not related
to economic losses, but rather to emotional distress, harm to reputation, hurt
feelings and punitive damages, all granted without the benefit of fully contested
evidentiary hearings.
[11]
Marciano appealed the Civil Judgments. According to California law, a bond
of an amount of one and a half times the amounts awarded must be posted for the
judgments not to be enforceable notwithstanding appeal, unless appellant obtains a
judicial stay pending appeal, called "supersedeas". Marciano's attempts to obtain a
stay were unsuccessful, including a majority decision by a panel of the California
Court of Appeal. Despite his considerable wealth, Marciano was unable to post the
required statutory bond. Accordingly the Civil Judgments remained enforceable
despite the appeal proceedings, a situation that the creditors, including the
appellants, decided to act upon to their advantage, as will be further explained
below.
[12]
Concurrently, Marciano caused the transfer of his 18 Montreal buildings to
three companies: 9204-7570 Québec inc., 9211-9882 Québec inc. and 9213-4568
Québec inc. that are now controlled by the CKSM Family Trust the beneficiaries of
which are Marciano and his four children. Michel Bensmihen is the representative of
the three companies and the trustee of the family trust, which are together
designated as the "Interveners".
[13]
Unable to seize any property of significance, some of the US creditors,
including the appellants, decided to petition Marciano into bankruptcy in October
2009. Despite the fact that appeals were pending that might drastically reduce the
awards, a California bankruptcy judge declared Marciano bankrupt on December
28, 2010. For a time, Marciano remained in possession of his assets as "debtor-inpossession" until he failed to comply with specific orders of the Bankruptcy Court.
David Gottlieb was then named as trustee and took control of Marciano's Californian
assets evaluated at about US$50,000,000, including his L.A. residence estimated at
US$25,000,000.
[14]
On September 15, 2011 the bankruptcy judgment was upheld by a majority
of a Bankruptcy Appellate Panel. The dissenting judge strongly objected to the use
of bankruptcy proceedings in such a context.
[15]
On September 14, 2011 the legal saga moved to Montreal where Marciano
now lives. That day, Fahs et al., Gottlieb and PricewaterhouseCoopers inc. (PWC)
filed four motions:
i) a "Motion to Obtain the Recognition of a Main Foreign Proceedings
(section 272 of the Bankruptcy and Insolvency Act)", dated September 13,
2011. In this motion Gottlieb sought recognition of the bankruptcy judgment
as a foreign main proceeding under the BIA and of him as the foreign
representative. Orders were also sought to allow for the examinations of
various persons including, Marciano, and the appointment of PWC as
receiver pursuant to s. 272(1)(d) BIA with various powers over the assets of
Marciano, the interveners and other corporate and trust entities;
ii) a "Petition for a Receiving Order" under s. 43 BIA, dated September 13,
2011 filed by Fahs et al. in order to have Marciano declared bankrupt in
Canada, presentable October 4, 2011;
iii) a "Motion to Appoint an Interim Receiver (section 46 of the Bankruptcy
and Insolvency Act)", dated September 13, 2011 filed by Fahs et al.
pursuant to which PWC was to be appointed as interim receiver under the
BIA with respect to Marciano's Canadian assets and those of various related
entities;
iv) a "Motion to Obtain the Issuance of a Search Warrant and the
Authorization to Seize the Property of the Debtor (section 189 of the
Bankruptcy and Insolvency Act)", dated September 13, 2011 filed by PWC
pursuant to which an authorization to search various premises was sought
with the power to seize property found therein belonging to Marciano and
related corporate and trust entities.
[16]
The very same day, these proceedings, save for the Petition for a Receiving
Order, were presented ex parte to the Commercial Division of the Superior Court,
supported by thirteen binders of exhibits. The following day, September 15, 2011,
Corriveau J. granted the three motions. Her judgments are in fact endorsements of
draft judgments prepared by the petitioners with extremely brief reasons. The first
declares that the United States bankruptcy proceeding is a foreign main proceeding,
recognizes that Gottlieb is entitled to act as a foreign representative, orders that the
administration and realization of all Marciano's Canadian assets shall be carried out
by PWC acting as a receiver and gives PWC a number of powers. The second
appoints PWC as an interim receiver pursuant to s. 46 BIA and grants it all powers
provided by law. The third issues a warrant authorizing PWC to enter and search
several premises and to seize any item of Marciano's property. On September 16,
2011, an additional search warrant order was granted ex parte by Corriveau J. at
the request of PWC.
[17]
In the following hours, the full might of the law was made manifest and the
events made headlines in the local media. PWC proceeded with searches and
seizures at various locations. Seven hundred paintings, prints and sculptures, 375
watches, an 84.37 carat diamond worth over $16,000,000, 16 cars (including 10
Ferraris, 2 Rolls-Royces, 2 Mercedes), 18 buildings, cash, computers and various
documents belonging to Marciano and related entities (corporations or trusts) were
seized. PWC assumed control of the hotel, posted guards there and removed art
works, in some instances having to use a crane.
[18]
On September 26, 2011, Montreal lawyers acting for Marciano filed Notices
of Appeal against the appointing orders and the search orders. Judgments in these
appeals are being rendered concurrently with the judgment in this appeal.
[19]
On September 28, 2011, Marciano filed a motion to review, rescind and
vary the various orders rendered ex parte (Marciano's Motion). Other lawyers did
likewise on behalf of the family trust and the three Quebec corporations
(Interveners' Motion).
[20]
On October 5, 2011, Marciano appealed the judgment of the Appellate
Panel before the United States Court of Appeals, Ninth Circuit.
[21]
That same day, the Quebec Superior Court (Lalonde J.) granted in part a
motion of PWC to authorize the payment of its judicial costs up to an amount of
$554,796.56 and a provision for costs of $250,000. Unable to ascertain whether the
fees dedicated to the execution of the orders of Corriveau, J. were reasonable and
considering that PWC as receiver must be compensated for the costs incurred, the
motions judge granted PWC the sum of $556,636.98 to pay its judicial costs up to
an amount of $56,636.98, the balance ($500,000) being only a provision for costs.
The funds come principally from accounts held by the numbered companies; these
companies and the family trust filed an appeal against that order and a judgment
released concurrently deals with it.
[22]
On October 14, 15 and 17, 2011, the motions to rescind of Marciano and
the Interveners were heard by Schrager J.
[23]
In the course of the US bankruptcy appeal, the creditors were invited to
mediate their claims with the trustee. Between October 17 and 19, 2011, a
mediation took place presided by Cruz Reynoso, a former judge of the California
Supreme Court. The judgment creditors agreed to resolve their claims for
US$8,625,00 each to Fahs, Chapnick, Tagle and Abat, US$9,625,000 to Choi,
US$17,250,000 to Gary Iskowitz, and US$2,250,000 to Theresa Iskowitz, plus
interest. The total amount due to civil creditors for bankruptcy purposes would then
be around US$63,625,000, which means the Civil Judgments would be reduced to
an amount slightly more than the value of Marciano's Californian assets. According
to the representations made by counsel for the appellants at the hearing before this
Court, this settlement agreement is not enforceable because the bankruptcy judge,
Madam Justice Kaufman, has decided to wait for the judgments of the California
Court of Appeal in the civil appeals. Schrager J. was informed of the results of the
mediation in California.
[24]
On December 8, 2011, Schrager J. granted Marciano's Motion as well as
the Interveners' Motion. PWC as receiver/interim receiver was dismissed and
ordered to return all property seized at its own costs.
[25]
On December 28, 2011, the Interveners filed a motion for contempt of court
against Gottlieb before the Quebec Superior Court alleging that some documents
seized were not remitted on time.
[26]
On January 12, 2012, the Interveners filed an action in damages in the
Quebec Superior Court asking for the condemnation of Fahs et al. in the amount of
$3,200,000 for what they consider to be abusive seizures.
[27]
On January 13, 2012, a judgment was rendered by the US Bankruptcy
Court condemning Marciano for contempt of court and ordering the issuance of a
warrant for his arrest.
[28]
On March 6, 2012, the hearing of the civil appeal in the related action of
Iskowitz et al. took place in the California Court of Appeal (Marciano v. Iskowitz, 2d
Cir. No. B216029, 219558). At the opening of the hearing, the panel issued the
following tentative ruling:
We do not think there was an abuse of discretion in the imposition of the
terminating sanctions, which resulted in the entry of Marciano's default. But,
the amount of damages, which were awarded on the default prove up, we
felt were excessive. What we plan to do, short of listening to counsel here
today, is to reverse the judgment and remand the matter for a new prove up
before a different judge. I don't think it's fair to send this thing back to the
judge who felt really put upon by this fact situation and by Mr. Marciano.
[29]
During the exchange that followed, the Court pointed to the lack of evidence
of ongoing treatment or of economic loss and said that the amounts of damages
awarded were often duplicative. In reply to a question from the Court, Gottlieb's
attorney suggested that it would have been fair to award Iskowitz about $1,000,000
for all emotional harm, exclusive of punitive damages[8]. Counsel
for Iskowitz replied that the amount should not be less than 50% of the amounts
granted by the Superior Court. The case is now under advisement and it is not clear
if the Court of Appeal will suggest numbers or just remand. It bears noting
thatIskowitz agreed during the mediation in the bankruptcy file to an amount of
US$17,250,000. In all likelihood, he will be awarded less than that at the end of the
day from the civil courts.
[30]
In a brief filed on March 23, 2012 in the civil appeal dealing with the first five
former employees, including the three respondents before us, Gottlieb's attorney,
acting on behalf of Marciano as bankrupt, wrote that the L.A. Superior Court
judgments "lack sufficient evidentiary support and are internally duplicative",
"appear to result from passion and prejudice, rather than from a reasoned analysis
based upon compensatory or constitutional law" and "the trial court abused its
discretion by imposing terminating sanctions rather than other serious sanctions that
would, nonetheless, have permitted Marciano's counsel to participate in the
determination of damages". The conclusion to this brief states that these judgments
"should be reversed and vacated".
[31]
From the latest developments, it appears that the argument over what
amounts should be awarded to all the defendants/cross-plaintiffs is to resume
before the L.A. Superior Court, unless settlements are reached, and that the civil
awards eventually to be awarded will most likely be considerably less than the initial
ones. It is even possible that Marciano's US Chapter 11 estate will be solvent in the
end unless the US trustee fees and disbursements prevent it (the latter amounting
to over US$12,000,000 thus far).
2.2
DEVELOPMENTS IN CALIFORNIA SINCE THE
QUEBEC COURT OF APPEAL HEARING
[8]
On June 20, 2012, the California Court of Appeal reversed and remanded the
$55,000,000[9]default judgment entered against the Debtor in favour of the Iskowitz
Creditors, only with respect to the award of damages. It further ordered that a new default
prove-up hearing on damages be held.
[9]
On October 29, 2012, the California Court of Appeal[10] reduced the damages
awarded to the Fahs Creditors to $10,000,000 each ($5,000,000 in compensatory
damages and $5,000,000 in punitive damages).
[10] By way of a proceeding called “remittitur”, the California Court of Appeal offered to
Fahs Creditors the possibility of accepting the reduced damages. Failing consent within a
certain delay, the matter would be remanded for a new trial to determine the amount of
damages.
[11] On October 30, 2012, three of the Fahs Creditors, Mr Fahs, Mr Chapnick and Mrs
Tagle, agreed to accept the reduced damages according to the California Court of Appeal
Judgment [11].
[12] On November 2, 2012, the two other Fahs Creditors, Mrs Choi and Mrs Abat, also
agreed to accept the reduced damages[12].
2.3
DEVELOPMENTS IN CANADA SINCE THE
QUEBEC COURT OF APPEAL JUDGMENTS
[13] On October 23, 2012, the Quebec Court of Appeal reversed the Schrager Judgment
in part, reinstated the Orders rendered by Corriveau J. on September 15 and 16, 2011,
with certain amendments, except for the Order concerning the appointment of an Interim
Receiver under s. 46 BIA, which remained rescinded[13].
[14] In the days following said judgments, the Debtor and the Impleaded Parties remitted
a substantial number of movable assets to Garda. These assets are substantially the ones
that were previously seized by PWC.
[15]
They also remitted to JDT Auto a collection of automobiles
[16] On October 29, 2012, PWC caused the issuance of writs of seizure by garnishment
against the garnishees Garda and JDT Auto (the “Writs of Seizure”).
[17] The Writs of Seizure are the subject of a Motion to Oppose and to Annul filed by the
Debtor on November 2, 2012, which is currently pending.
[18] On November 12, 2012, the garnishees JDT Auto and Garda appeared in order to
declare which movable property belonging to the Debtor or the Impleaded Parties they had
in their possession.
[19] On November 14, 2012, PWC, the Debtor and the Impleaded Parties concluded an
Undertaking Regarding the Preservation of Certain Movable Assets, (the “Undertaking”),
namely artwork, which undertaking was homologated by this Court on November 16, 2012.
It was later amended and the new version dated February 21, 2013 was homologated by
this Court on January 25, 2013.
[20] Pursuant to the Undertaking, the Debtor and the Impleaded Parties have agreed not
to sell or otherwise dispose, transfer, move or hypothecate the works of art covered by the
Undertaking.
[21]
On December 10, 2012, PWC’s Motion was served.
[22] On December 20, 2012, the Debtor and the Impleaded Parties filed an application
for leave to appeal to the Supreme Court of Canada from the Court of Appeal Judgments.
2.4
DEVELOPMENTS SINCE THE COURT HAS
TAKEN THE MATTER UNDER ADVISEMENT
[23] On February 27, 2013, the Court was advised by the Foreign Representative’s
attorney that, the same day, the United States Court of Appeal for the Ninth Circuit had
confirmed the Bankruptcy Appellate Panel’s decision and upheld the Bankruptcy
Judgment[14].
[24] On March 14, 2013, the Court was advised by CKSM’s attorney that the Debtor had
filed before the United States Court of Appeal for the Ninth Circuit a Petition asking
permission to be heard by a panel of nine judges who would reconsider the February 27,
2013, decision.
[25] On the civil front, on March 11, 2013, the Foreign Representative’s attorney advised
the Court that the California Superior Court had awarded an amount of $36,250,000 to the
Iskowitz Creditors. The Court is unaware whether any party will appeal this judgment.
3. PARTIES POSITION
3.1
PWC’S MOTION
[26] PWC’s Motion states that PWC seeks guidance from the Court with respect to the
protection of the rights of the Debtor’s creditors in light of the Debtor’s conduct while the
Court of Appeal files were under advisement and since the judgments were rendered on
the Appeals on October 23, 2012.
[27] PWC alleges that a significant number of assets which had previously been seized
by PWC in September 2011 have not been remitted by the Debtor to Garda.
[28] PWC also submits that the Debtor and the Impleaded Parties have not complied
with the requests formulated by counsel for PWC regarding information on any transfers of
assets between the Impleaded Parties and the Debtor, directly or indirectly subsequent to
December 8, 2011.
[29]
PWC petitions the Court to order the Debtor and the Impleaded Parties to:
•
provide detailed monthly statements of all bank accounts opened and of funds held
in trust in their names for the period of December 1, 2011 to the date of this Order;
•
disclose to PWC the location of any cash or negotiable instruments under their
control which are not held in a bank account including, without limitation, sums
deposited in securities accounts, brokerage accounts, and sums held in trust by
third parties;
•
provide detailed monthly statements of all bank accounts and of funds held in trust
in their name and of other accounts containing cash or negotiable instruments
belonging to anyone of them, including, without limitation, securities accounts,
brokerage accounts, and trust accounts with third parties, on an ongoing basis;
•
remit to Garda the missing movable assets previously seized in September, 2011;
•
remit to PWC in trust the proceeds of the contract of sale of three real estate
properties from 9211-9882 Québec inc. to Edifice le Coin Inc. (the “Contract of
Sale”) and the amounts borrowed pursuant to a loan agreement entered into
between First National Financial GP Corporation and 9211-9882 Québec inc. (the
“Loan Agreement”);
•
refrain from selling or otherwise disposing of, transferring or hypothecating any
movable or immovable property.
[30] It also asks the Court to allow PWC to apply for an advance registration in the land
register on any immovable property in the name of the Debtor or the Impleaded Parties
and to order the Land Registrar to grant any such application presented to it by PWC.
3.2
DEBTOR AND THE IMPLEADED PARTIES JOINT
CONTESTATION
[31] In their Amended Joint Contestation, the Debtor and the Impleaded Parties plead
that the Court should dismiss PWC’s Motion principally because:
•
the assets currently subject to seizure by PWC and the Foreign Representative are
sufficient to cover the potential outstanding claims in the United States;
•
PWC has manifestly failed to perform its duties as an officer of the Court.
4. ISSUES TO BE DECIDED
[32] What should be considered when deciding if the orders requested by PWC, are
necessary or appropriate to protect the Debtor’s property and the rights of the Debtor's
creditors?
[33]
What should be the impact on the Court’s decision of:
•
the claims and the secured assets’ value?
•
PWC’s performance as Interim Receiver?
[34]
Should the Court order the Debtor and the Impleaded Parties to:
•
provide detailed monthly statements for all bank accounts opened or for funds held
in trust in their names for the period of December 1, 2011 to the date of this Order?
•
indicate to PWC the location of any cash or negotiable instruments under their
control which are not contained in a bank account including, without limitation, sums
deposited in securities accounts, brokerage accounts, and sums held in trust by
third parties?
•
provide detailed monthly statements for all bank accounts opened or for funds held
in trust in their name and for any other accounts containing cash or negotiable
instruments belonging to one of them, including, without limitation, securities
accounts, brokerage accounts, and trust accounts with third parties, on an ongoing
basis?
•
remit to Garda the missing movable assets previously seized in September, 2011?
•
remit to PWC in trust the proceeds of the Contract of Sale and the amounts
borrowed pursuant to the Loan Agreement?
•
refrain from selling or otherwise disposing of, transferring or hypothecating any
movable or immovable property?
[35] Should the Court allow PWC to apply for an advance registration in the land register
on any immovable property in the name of the Debtor and the Impleaded Parties and order
the Land Registrar to grant any such application presented to it by PWC?
[36] Should the Court order the provisional execution of this Order notwithstanding
appeal?
5. COURT OF APPEAL JUDGMENTS
[37] The Court’s power to authorize the Interim Receiver to take any action against the
Debtor’s assets results from the principles established by the Court of Appeal Judgments
combined with the large discretion created by s. 272 (1) BIA.
[38] In the Court of Appeal Judgements, Dalphond J.C.A. has set a general framework in
order to analyze what should be considered when deciding on the appropriate measures
to protect the Debtor’s assets and the interests of the creditors, in the context of this case.
5.1
RECOGNITION OF FOREIGN MAIN PROCEEDING
AND PWC’S APPOINTMENT AS INTERIM RECEIVER
[39] The Court of Appeal Judgments have confirmed the Corriveau Order recognizing
the foreign main proceeding under section 270 (2) BIA[15] and the appointment of PWC as
Interim Receiver.
[40] Section 272(1) BIA provides that when an order recognizing a foreign proceeding is
made the Court may, at the request of the Foreign Representative, make any order
deemed necessary for the protection of the debtor’s property or the interests of a creditor
or creditors:
272. (1) If an order recognizing a foreign proceeding is made, the court may, on
application by the foreign representative who applied for the order, if the court is
satisfied that it is necessary for the protection of the debtor’s property or the
interests of a creditor or creditors, make any order that it considers appropriate,
including an order
(a) if the foreign proceeding is a foreign non-main proceeding, imposing the
prohibitions referred to in paragraphs 271(1)(a) to (c) and specifying the exceptions
to those prohibitions, taking subsection 271(3) into account;
(b) respecting the examination of witnesses, the taking of evidence or the delivery of
information concerning the debtor’s property, affairs, debts, liabilities and
obligations;
(c) entrusting the administration or realization of all or part of the debtor’s property
located in Canada to the foreign representative or to any other person designated
by the court; and
(d) appointing a trustee as receiver of all or any part of the debtor’s property in
Canada, for any term that the court considers appropriate and directing the receiver
to do all or any of the following, namely,
(i) to take possession of all or part of the debtor’s property specified in the
appointment and to exercise the control over the property and over the debtor’s
business that the court considers appropriate, and
(ii) to take any other action that the court considers appropriate.
Restriction
(2) If any proceedings under this Act have been commenced in respect of the debtor
at the time an order recognizing the foreign proceeding is made, an order made
under subsection (1) must be consistent with any order that may be made in any
proceedings under this Act.
Application of this and other Acts
(3) The making of an order under paragraph (1)(a) does not preclude the
commencement or the continuation of proceedings under this Act, the Companies’
Creditors Arrangement Act or the Winding-up and Restructuring Act in respect of
the debtor.
(Emphasis added)
[41] The Court of Appeal[16] found that the Debtor’s past behaviour justified the
appointment of a court officer appointed ex parte with specific powers to prevent the
disappearance of easily moved assets:
[10] Past behaviour of the appellant in California, namely the surreptitious removal
of moveable assets worth tens of millions of dollars and important documents could
justify to proceed ex parte to have a court officer appointed with specific powers to
prevent the disappearance of easily moved assets. For the moveable assets like
cars, jewellery, watches, etc., the bank account and the cash, there was an
apparent need for a seizure, including search warrants in order to have them placed
in the hands of justice pending the final outcome of the US bankruptcy proceeding.
By necessity such orders had to be made ex parte.
(Emphasis added)
[42] Although Dalphond J.C.A. wrote that Corriveau J. was right to appoint PWC to
assist the US representative in order to protect the interest of the US creditors, he
added[17] that before determining the extent of the powers to be granted ex parte to PWC,
she had to take into consideration not only the apprehension expressed by the US trustee
and his allegations about the Debtor past behaviour, but also:
•
that the claims from the creditors were not final;
•
that there was a likelihood that the Civil Judgments would be considerably reduced;
•
the automatic stay of proceedings in Canada and the interdiction for the Debtor to sell
his assets provided by s.271 BIA, and
•
the fact that there were no allegations that the Debtor was running his business in
Montreal in an inadequate manner and that his Canadian creditors were not paid in due
course or that their interests were at risk.
[43] For these reasons, the Court of Appeal[18] modified the Corriveau Order, the
conclusions of which now read as follows:
[8] ORDERS that the Debtor shall not sell or otherwise dispose of or transfer any of
its property in Canada; (…)
[11] APPOINTS PricewaterhouseCoopers
Marciano's property located in Canada;
as
interim
receiver
of
Georges
[12] EMPOWERS PricewaterhouseCoopers to seize any moveable assets that
belong or could have been under the control of Marciano and that could easily be
moved or otherwise disposed of, and RESERVES to PricewaterhouseCoopers
the right to apply to this Court for any further orders that may be necessary or
appropriate to protect the rights of Marciano's creditors.
(Emphasize added)
5.2
ISSUANCE OF A SEARCH WARRANT AND
AUTHORIZATION TO SEIZE PROPERTY
[44] The Court of Appeal[19] also came to the conclusion that PWC was justified in
obtaining ex parte search warrants and authorizations to seize:
[97]
In PWC's motion to obtain the issuance of a search warrant and the
authorization to seize, the four premises to be searched are well-defined as places
where Marciano either lives or stores his property and the items to be seized therein
are movable alleged to belong to him. As pointed out by Schrager J., it was difficult
to ascertain allegedly belonging ownership of these items so that the seizures
relating to them could not be quashed on the basis of arguments relating to title of
property. In these circumstances, the orders authorizing search of these premises
and seizure of any movables that belong or could be under the control of Marciano's
currently located therein complied with s. 189 BIA and should not have been
rescinded.
[98]
As for the eleven bank accounts for which an authorization to seize was
granted, it was alleged that they contain funds belongings to Marciano.
(Emphasis added)
[45] As for the 18 immovable properties, the Court of Appeal[20] stated that the
authorization to seize them issued by Corriveau J., was not justified, since the registry
office records indicate that they belong to third parties, namely the Numbered Companies:
[99]
However, PWC should not have been authorized to seize the immovables
since,according to the registry office, they belonged to numbered
companies. Seizure would only be valid if Corriveau J. had been convinced that
these entities were mere alter ego of Marciano and that there was a serious risk of
an attempt to dispose of them before a contradictory hearing, a conclusion she did
not express in her judgments.
(Emphasis added)
[46] Dalphond J.C.A. also exposed the view that said seizures were unnecessary since,
once the foreign main proceeding was recognized, the Interim Receiver could publish the
order against the Debtor’s real estate:
[9]
However granting ex parte to PWC the power to seize 18 immovables was
unnecessary. Once the foreign main proceeding recognition order was issued at the
request of the US Trustee, Marciano could no longer sell or otherwise dispose of his
property in Canada (s. 271 BIA). PWC acting as court officer was then in a position
to publish the order against all the real estates of Marciano.
(Emphasis added)
5.3
DISCUSSION
[47] This Court agrees with PWC when it summarizes as follows the Court of Appeal
Judgments:
•
the Debtor shall not sell or otherwise dispose of or transfer any of its property in
Canada;
•
the prohibition to sell or otherwise dispose of or transfer his Canadian assets
includes the property owned or controlled by the Debtor indirectly;
•
PWC is authorized to seize any movable assets that belong or could have been
under the control of the Debtor and that could easily be moved or otherwise
disposed of;
•
PWC has the right to apply to this Court for any further orders that may be
necessary or appropriate to protect the rights of the Debtor’s creditors.
[48] Nevertheless, in a context where the situation is in constant evolution in the United
States, both on the bankruptcy and on the civil sides, the Court of Appeal also said that the
Court should exercise its discretion with prudence, having in mind the potential changes
that might occur.
[49] In short, the message stemming from the Court of Appeal Judgments is one of
balance and proportionality, taking into account the particular facts of this case.
[50] It is in that context that this Court must evaluate the following arguments submitted
by the Debtor and the Impleaded Parties and their effect on the orders sought:
•
the assets currently seized are sufficient to cover the potential outstanding claims in
the United States;
•
PWC has manifestly failed to perform its duties as an officer of the Court.
6. SUFFICIENCY OF THE ASSETS TO COVER THE CLAIMS
[51] The Debtor and the Impleaded Parties submit that the Court should not grant PWC’s
Motion because the assets currently under seizure are sufficient to cover the potential
outstanding claims in the United States.
[52] PWC and the Foreign Representative take the position that the value of the
Creditors’ claims are irrelevant to the performance of PWC’s duties.
[53] They argue that the Interim Receivership of the Debtor is not a proceeding seeking
to recognize and to execute U.S. civil judgments. It is a proceeding which stems from the
recognition of a foreign main bankruptcy proceeding.
[54] Since this recognition has been made, the Debtor is now prohibited from selling or
otherwise disposing of any of its property in Canada[21]. In this context, the Debtor’s
assets should be protected without regard to the value of Creditor’s claim.
[55] In the Court’s opinion, the Court of Appeal has made it clear that the uncertainty of
the value of the claims must be taken into account when deciding on the appropriate
measures to be taken for the protection of the Debtor’s assets and of the Creditors’ rights.
[56] At the same time, although the Debtor and the Impleaded Parties have voluntarily
remitted significant assets to Garda and JDT Auto and given an undertaking concerning
the art collection, there is no admission whatsoever from the Debtor that these assets will
be available to satisfy the Creditors’ claims.
[57] On the contrary, the Debtor claims that he owns no assets in Canada. In fact the
situation may be that PWC has secured nothing that could ultimately be used to satisfy the
Creditors’ claims.
[58] Nevertheless, with a view to applying a certain degree of proportionality in deciding
what kind of order should be granted, the Court will consider the Parties submission
concerning the claims and the secured assets’ value.
6.1
CLAIM’S VALUE
[59] At the time Corriveau J. heard the ex parte Motions, the damages awarded by the
California Superior Court to the Fahs and the Iskowitz Creditors totalled approximately
$260,000,000[22]($205,300,000 to the Fahs Creditors and $55,000,000 to the Iskowitz
Creditors).
[60] When the Quebec Court of Appeal hearing took place, the damages awarded to the
Fahs Creditors had not changed.
[61] However, in the case of the Iskowitz Creditors, the California Court of Appeal had
ordered a new default prove-up hearing on damages[23]. Based on a tentative ruling
issued at the opening of the California Court of Appeal hearing and the exchange that
followed, Dalphond J.C.A. expressed the opinion that the damages would most likely be
considerably reduced[24]:
[31]
From the latest developments, it appears that the argument over what
amounts should be awarded to all the defendants/cross-plaintiffs is to resume
before the L.A. Superior Court, unless settlements are reached, and that the civil
awards eventually to be awarded will most likely be considerably less than the initial
ones. It is even possible that Marciano's US Chapter 11 estate will be solvent in the
end unless the US trustee fees and disbursements prevent it (the latter amounting
to over US$12,000,000 thus far).
[62] Since the hearing before the Court of Appeal, the damages awarded to the Fahs
Creditors have been reduced to $10,000,000 each ($5,000,000 in compensatory damages
and $5,000,000 in punitive damages), for a total of $50,000,000.
[63] In their Plan of argument, the Debtor and the Impleaded Parties, have prepared a
chart showing each parties position concerning the claims value:
Scénario du
Représentant
étranger
($US)
Scénario le plus
pessimiste
(Mise-en-cause et
Débiteur)
($US)
Créances
Dossier Iskowitz et
al.
20 000 000
4 000 000 à
(1)
15 000 000
4 000 000
Créances
Dossier Fahs et al.
50 000 000
50 000 000
50 000 000
Intérêts
Dossier Fahs et al.
16 000 000
16 000 000
1 867 500
Intérêts Dossier
Iskowitz et al.
6 500 000
0
0
Taxes sur le gain en
capital
Vente des
Propriétés
2 390 000
2 390 000
Réclamation
Scénario le plus
optimiste
(Mise-en-cause et
Débiteur)
($US)
(2)
(3)
(8)
2 390 000
Dettes fiscales
Frais administratifs
Réclamations
diverses
Total
(1)
(2)
8 000 000
15 500 000
(6)
2 000 000
(4)
5 000 000
15 500 000
(6)
2 000 000
+ 2 600 000
15 500 000
750 000
(5)
(6)
(7)
94 890 000 à
71 907 500
105 890 000
e
Valeur maximale des créances dans le Dossier Iskowitz et al. selon M Reznick – Voir
e
paragraphe 31 de l’affidavit de M Reznick.
Valeur estimée en utilisant les représentations faites par le Représentant étranger lors de
l’audition du 6 mars 2012 en Californie et le témoignage de Jeremy Richards lors de son
interrogatoire sur affidavit.
120 390 000
(3)
Montant total des intérêts calculé en utilisant la méthode prévue par l’arrêt In Re Cardelucci.
(4)
(5)
(6)
(7)
Valeur estimée par le Représentant étranger sur un « worst-case scenario basis » dans son
Amended Disclosure Statement – Voir Annexe B de l’« Amended Disclosure Statement »,
Pièce D-7.
Remboursement d’impôt que devrait toucher le Débiteur selon les plus récentes déclarations
e
déposées auprès de l'IRS – Voir paragraphe 23-24 de l’affidavit de M Reznick.
Ne constitue pas une admission quant à la justesse – Contient des créances non liquidées
e
et qui seront vigoureusement contestées – Voir paragraphe 32 de l’affidavit de M Reznick.
e
Valeur estimée – Voir paragraphe 21 de l’affidavit de M Reznick.
(8)
Dans la mesure ou la faillite du Débiteur serait annulée par la Cour d’appel des États-Unis
ième
pour le 9
District.
[64] This
chart shows
a
$48,482,500
difference
between the
Foreign
Representati
ve’s
claims
evaluation
($120,390,00
0) and the
Debtor’s and
the
Impleaded
Parties’ best
case
scenario
($71,907,500
).
[65] If the Court takes into consideration the new damages awarded to the Iskowitz
Creditors since the hearing of this case, the difference is increased by $16,250,000
($36,250,000 - $20,000,000 = $16,250,000), for a total difference of $64,732,500.
[66] The contradictory testimony of Mr Richards, the Foreign Representative’s US
attorney, and of Mr Reznick, the Debtor’s US attorney, demonstrate that the calculation of
interest on the damages awarded to the Fahs and the Iskowitz Creditors is litigious.
[67] As for the Debtor’s tax liabilities, the Debtor’s and the Impleaded Parties’expert
expect a $2,600,000 reimbursement, while PWC envisages a $8,000,000 potential liability.
[68] It is not possible at this time to reconcile all these figures and to clearly assess the
value of the claims.
6.2
VALUE OF THE DEBTOR’S SECURED
PROPERTIES
[69] The value of the Debtor’s secured properties is no more certain than that of the
claims.
[70] According to the Debtor and the Impleaded Parties, PWC and the Foreign
Representative have under control, up to now, $121,858,9789 of assets, as shown in the
following chart from their Plan of argument:
Élément d’actif
Diamant Chloé
Œuvres d’art
Collections d’automobiles, de bijoux et de montres
Immeubles saisis par le Représentant étranger aux États-Unis (les
« Propriétés »)
Argent comptant
Total
(1)
[71]
Valeur ( $US)
Pièce
25 000 000
34 735 978
9 000 000
D-11
(1)
D-12
(1)
D-13
D-8
52 100 000
1 023 000
121 858 978
(1)
Annexe CC
Valeur utilisée par le Représentant étranger lors de la présentation de la « Motion to obtain the
recognition of a Main Foreign Proceedings », tel qu’il appert des pièces R-14 et R-44 invoquées au
soutien de cette même requête.
These estimates are challenged by PWC and the Foreign Representative.
[72] For instance, they submit that today, the Debtor declares that the diamond, art, car,
jewellery and watch collection are worth a total of $68,735,978. They underline that in an
earlier declaration, made on August 2, 2009 by Mr. Michael Milam[25], the diamond, art,
car, jewellery and watch collections, were declared to be worth $35,083,888 ($68,735,978
- $35,083,888) - a difference of $33,652,090.
[73] They also emphasize the fact that the Debtor considers the value of the assets
located in California, under the control of the U.S. Trustee, as being $53,123,000 when the
U.S. Trustee’s own valuation is of $46,400,000 - a difference of $6,723,000 ($53,123,000
$ - $46,400,000).
[74]
Everything considered, the different scenarios may be described as follows:
SCENARIOS
CLAIMS VALUE
VALUE OF SECURED
ASSETS
MAX
$136,640,000
$121,858,978
MIN
$71,907,500
$81,438,888
[75] If the Debtor’s most optimistic scenario becomes real, and the claim’s value is
approximately $71,907,500 the secured assets appear adequate to cover the claims.
[76] On the contrary, even if the maximum asset value is considered, the secured assets
are not sufficient to cover the claims.
[77] For these reasons it appears to the Court that the Debtors and the Impleaded
Parties’ argument that the assets seized are sufficient to cover the claims is not correct or
at least not conclusive.
[78] In this context, at least at this time, it is difficult to limit the Interim Receiver’s rights
over the Debtor’s assets within the jurisdiction of this Court.
7. PWC’S PERFORMANCE OF ITS DUTY
[79] According to the Debtor and the Impleaded Parties, the Court should dismiss PWC’s
Motion, because the Interim receiver failed to perform its duties as an officer of the Court.
[80] They submit that contrary to its duty, PWC has not fully informed the Court of the
developments in the US legal proceedings.
[81]
They also argue that PWC should have made an assessment of the value of:
7.1
•
the claims outstanding in the context of the US bankruptcy proceedings;
•
the assets it seized in September 2011 and since October 23, 2012.
DUTY TO INFORM
[82] The Interim Receiver has a duty to inform the Court of all relevant information
necessary for the Court to take a decision[26].
[83] The Debtor and the Impleaded Parties emphasize the fact that PWC’S Motion does
not mention the last developments in the US legal proceedings, more particularly the fact
that the claims have been considerably reduced.
[84] The Court discussed earlier PWC’s position regarding the relevance of the claim’s
value. Although the Court does not fully agree with such position, it explains PWC’s
silence on the matter.
[85] Furthermore, although the duty to inform exists, its degree is much more limited
than in the context of an ex parte procedure.
[86]
7.2
The Court is of the opinion that this argument is not sufficient to dismiss the Motion.
DUTY TO ASSESS THE VALUE
[87] The Debtor and the Impleaded Parties express the view that PWC should have
assessed the value of the claims outstanding in the context of the US bankruptcy
proceedings.
[88] Considering the fact that these claims are subject to US judgments, which are not
final, the Court fails to see how they could have been assed more thoroughly.
[89] As for the value of the assets seized in September 2011 and since October 23,
2012, the seizures have been contested from the very beginning. In the Court’s opinion, it
would have been a waste of money and energy to expend more effort to evaluate those
assets.
[90] In conclusion, the Court has no cause to reproach to PWC regarding its duty as an
officer of the Court.
8. REQUESTED ORDERS
[91] Applying the principles above discussed to the on-going factual development in this
case, the Court is of the opinion that some further measures are required, at this stage, to
protect the Creditors’ claims.
[92]
The Court will now study each of the requested orders.
8.1
DEBTOR AND IMPLEADED PARTIES BANK
ACCOUNT MONTHLY STATEMENTS
[93] PWC requests the detailed monthly statements of account for each of the bank
accounts of the Debtor and the Impleaded Parties for the period of December 2011 to the
present. It also asks that the Debtor and the Impleaded Parties be ordered to provide
monthly account statements for each of their bank accounts and any other accounts on a
going forward basis.
[94]
The Impleaded Parties argue that PWC has no right over their bank accounts.
[95] The Corriveau Judgments as modified
Judgments[27] authorized PWC to seize[28]:
by
the
Court
of
Appeal
(…) any other (…) account opened at the Royal Bank of Canada or the Canadian
Imperial Bank of Commerce in the names of Georges Marciano, (…) the CKSM
Family Trust, 9204-7570 Québec inc., 9211-9882 Québec Inc. or 92134568 Québec Inc.
[96] Moreover, it has authorized PWC to use the funds from bank accounts belonging to
the Impleaded Parties, in the judgment confirming Lalonde J.’s decision[29]:
[7] Cette taxation étant vivement contestée, le juge Lalonde l'a continuée à une date
subséquente pour en permettre une contestation complète par les appelants et
Marciano, tout en accordant un montant de 56 636,98 $ pour acquitter des
déboursés. Il a aussi autorisé 500 000 $ à titre d'avances pour honoraires et
déboursés, à être prises à même les comptes de banque des appelantes.
[8] Ces dernières contestent le bien-fondé de cette dernière partie du jugement
faisant valoir qu'elles sont des tiers par rapport à Marciano et que PWC ne peut
prétendre à des droits sur leurs biens.
[9] Leurs prétentions doivent être rejetées.
[10] Les allégations des requêtes présentées devant la juge Corriveau font valoir un
degré élevé de proximité entre Marciano et la fiducie, dont il est un des fiduciaires et
un bénéficiaire.Quant aux sociétés à numéro, elles semblent contrôlées de fait par
lui. À ce jour, rien ne démontre que ces allégations étaient fausses. Dans ces
circonstances, la juge Corriveau pouvait nommer PWC séquestre aux biens de
Marciano, incluant la fiducie et les trois sociétés.
(Emphasis added)
[97] In paragraph 37 of its Motion, PWC explains its reasons for requesting these
documents:
The Interim Receiver requires this information in order to determine what sums
should be seized, where said sums are located and which payments have been
made from any such accounts, and the Debtor and the Impleaded Parties should be
ordered to provide said information forthwith, along with a confirmation of any cash
money or other negotiable instruments which has not been deposited in bank
accounts, including, without limitation, sums deposited in securities accounts,
brokerage accounts, and sums held in trust by third parties.
[98] The Debtor and the Impleaded Parties have provided a list[30] showing the balance,
as of November 5, 2012, of certain bank accounts held under the name of the Impleaded
Parties.
[99] According to PWC, this list is incomplete and does not cover the entirety of the bank
accounts earlier seized.
[100] It appears that the Debtor has omitted from that list two accounts at the Bank of
Montreal in the name of CKSM: account numbers 00018516-814 and 0018516-822. These
two accounts, at the time of their seizure by PWC in September 2011 contained
$8,199,540,60, which sum represents more than 76% of the total of the balances in all of
the bank accounts seized by PWC at that time.
[101] Furthermore, this list indicates that many of these accounts are now closed or
contain no funds.
[102] In the Court’s opinion, in order to give effect to the Court of Appeal Judgment
relating to the Bank accounts, PWC should have the right to obtain the detailed statements
of account requested, as of the date of the Court of Appeal Judgments.
[103] Nevertheless, this right should not apply retroactively. PWC should not be permitted
to obtain the statements of accounts for periods where no orders were in force.
[104] Despite PWC and the Foreign Representative’s efforts, the Motion to suspend the
provisional execution notwithstanding appeal ordered by Schrager J. was dismissed, first
by one judge[31] of the Court of Appeal and subsequently by a panel of three judges[32].
[105] Thus, between December 8, 2011, date of the Schrager Judgment and October 23,
2012, date of the Appeal Judgments, PWC had no right to this information.
9.
LOCATION OF ANY CASH OR NEGOTIABLE
INSTRUMENTS UNDER THE DEBTOR OR THE
IMPLEADED PARTIES CONTROL WHICH ARE NOT
CONTAINED IN A BANK ACCOUNT, INCLUDING
SUMS DEPOSITED IN SECURITIES ACCOUNTS,
BROKERAGE ACCOUNTS, AND SUMS HELD IN
TRUST BY THIRD PARTIES.
[106] PWC petitions the Court to order the Debtor and the Impleaded Parties to declare
the location of any cash or negotiable instruments under their control which are not
contained in a bank account including sums deposited in securities accounts, brokerage
accounts and sums held in trust by third parties.
[107] As earlier mentioned, the Court of Appeal has empowered PWC to seize any
movable assets that belong or could have been under the control of Marciano and that
could easily be moved or otherwise disposed of.
[108] Clearly, cash and negotiable instruments are covered by that definition of the
seizable assets.
[109] Furthermore, the Court of Appeal has confirmed PWC’s power to obtain a warrant
to enter and search the Debtor’s personal residence, his office, his parking lot and the
hotel.
[110] It seems reasonable and in conformity with the general guidelines given by the
Court of Appeal to order the Debtor and the Impleaded Parties to declare the location of
the cash or other negotiable instruments under their control.
[111] The Court is of the opinion that PWC is justified, in the execution of its duty as
Interim Receiver to protect the Debtor’s assets and the rights of the Creditors, to obtain
this information.
10.
PROCEEDS OF THE CONTRACT OF SALE AND
THE AMOUNTS BORROWED PURSUANT TO THE
LOAN AGREEMENT
[112] On October 1, 2012, 9211-9882 Québec Inc., one of the Numbered Companies,
entered into a pre-contract for the sale of three real estate properties to Édifice Le Coin
Inc.[33].
[113] On October 31, 2012, 9211-9882 Québec inc. proceeded with the closing of the
Contract of Sale[34].
[114] On October 5, 2012, 9211-9882 Québec Inc. entered into a Loan Agreement with
First National Financial GP Corporation for an amount of loan of $4,665,357.17 and
granted an immovable and movable hypothecs as described in Section 2 of said
agreement[35].
[115] PWC asks that the Debtor and the Impleaded Parties be ordered to remit the
proceeds of the Contract of Sale and the amounts borrowed pursuant to the Loan
Agreement.
[116] According to PWC, these transactions appear to have been concluded in violation
of an earlier undertaking provided by the Debtor and the Impleaded Parties to the Court of
Appeal.
[117] More specifically on January 16, 2012, at the hearing of PWC’s Motion for the
Issuance of a Safeguard Order and of the Foreign Representative’s Amended Motion to
Suspend the Provisional Execution Notwithstanding Appeal of a Judgment and Safeguard
Orders in Court of Appeal File 500-09-022220-115, the Debtor and the Impleaded Parties
assured the Court that they would refrain in any way from alienating their property.
[118] The problem is that the Debtor’s and the Impleaded Parties’ undertaking before the
Court of Appeal[36], only related to the period from the date of the hearing of the motion
before the Court of Appeal, namely January 16, 2012, until the hearing before the Court of
Appeal, on the merits of the case, which took place on March 28, 2012:
[34]
PWC, Gottlieb et le groupe Fahs plaident avec insistance l'existence du
préjudice irréparable qu'ils subiront en raison des constantes velléités d'évasion qui
caractériseraient depuis longtemps la conduite de M. Marciano. À l'inverse, force
est de constater que plusieurs actifs en cause ne sont guère susceptibles de
s'évaporer. De plus, plusieurs immeubles sont détenus par ces tiers
intéressés auxquels les requérants attribuent d'ores et déjà la qualité de purs prêtenoms. Si cela est exact, ils n'auront pas perdu cette caractéristique au mois de
mars prochain. De plus, toutes les parties intimées sont impliquées dans le débat
judiciaire de sorte qu'il pourrait se révéler bien hasardeux pour quiconque
d'entreprendre des gestes d'aliénation durant la courte période de temps qui
s'écoulera d'ici à l'audition des pourvois. D'ailleurs, à l'audience, les avocats de M.
Marciano et ceux des tiers intéressés ont assuré que leurs clients ne poseraient
aucun geste de cette nature.
[119] Consequently, without a new undertaking or in the absence of a Safeguard order,
the Debtor and the Impleaded Parties were free to sell their assets or encumber them
during the period from the hearing date, until the Court of Appeal Judgments rendered on
October 23, 2012.
[120] In these circumstances, this Court is of the opinion that PWC has no right to the
proceeds of the Contract of sale or to the amounts borrowed under the Loan Agreement.
11.
MISSING MOVABLE ASSETS PREVIOUSLY
SEIZED IN SEPTEMBER, 2011
[121] It is admitted that the Debtor has not remitted to Garda the entirety of the assets
previously seized in September 2011.
[122] PWC petitions the Court to order the Debtor and the Impleaded Parties to remit said
assets to Garda, namely:
•
•
•
•
•
•
•
•
•
•
the two 18 carat gold Zippo lighters, (items two and three),
the 1901 U.S. 10 dollar bill (item 15),
the 1907 U.S. five dollar bill (item 16),
the 1923 U.S. five dollar bill (item 17),
the sheet of 16 uncut 1995 U.S. two dollar bills,
the 20 U.S. 50 dollar coins of one ounce of platinum (item 1 of the “coffre-fort”
listing),
the 10 gold ingots (each of 10 ounces) (item 5 of the “coffre-fort” listing),
the six Mont Blanc pens (item 10 of the “coffre-fort” listing),
the Parker pen (item 11 of the “coffre-fort” listing) and
the 35 watches.
[123] In the Amended Joint Contestation, the Debtor and the Impleaded Parties submit
that some of these assets are untraceable, and that others belong to Ms. Sasha Romer or
the Debtor’s children.
[124] As mentioned earlier, there was a period of time during which the assets were not
subject to any form of order or seizure.
[125] Considering their value relative to other secured assets, the Court is of the opinion,
in the exercise of its discretion, that their return should not be ordered.
12.
APPLICATION FOR AN ADVANCE
REGISTRATION IN THE LAND REGISTER ON ANY
IMMOVABLE PROPERTY IN THE NAME OF THE
DEBTOR AND THE IMPLEADED PARTIES
[126] PWC petitions the Court to be authorized to effect an advance registration in the
Land Register on any immovable property in the name of the Debtor and the Impleaded
Parties.
[127] The Debtor and the Impleaded Parties submits that the Court of Appeal only
recognized the right to an advance registration on the “real estates of Marciano”. Since all
the immovables belong to third parties, namely the Numbered companies, no such
advance registration should be allowed.
[128] In the Court of Appeal Judgments, Dalphond J.C.A. states that it was not necessary
for Corriveau J. to grant to PWC the power to seize ex parte 18 immovables.
[129] Dalphond J.C.A. writes[37] that considering that these properties are registered in
the name of the Numbered companies, Corriveau J. had to be convinced of two things:
1)
that said companies were mere alter egos of the Debtor and;
2) that there was a serious risk of an attempt to dispose of them:
[99]
However, PWC should not have been authorized to seize the immovable
since, according to the registry office, they belonged to numbered companies.
Seizure would only be valid if Corriveau J. had been convinced that these entities
were mere alter ego of Marciano and that there was a serious risk of an attempt to
dispose of them before a contradictory hearing, a conclusion she did not express in
her judgments.
[130] Nevertheless, he adds that by the mere issuance of the foreign main proceeding
recognition order, PWC was in a position to publish the order again all the real estate of
the Debtor:
[8]
Past behaviour of the appellant in California, namely the surreptitious
removal of movable assets worth tens of millions of dollars and important
documents, could justify the court-appointed PWC to obtain ex parte search
warrants and authorizations to seize.
[9]
However granting ex parte to PWC the power to seize 18 immovables was
unnecessary. Once the foreign main proceeding recognition order was issued at the
request of the US Trustee, Marciano could no longer sell or otherwise dispose of his
property in Canada (s. 271 BIA). PWC acting as court officer was then in a position
to publish the order against all the real estates of Marciano.
[131] In the opinion of this Court, since the Court of Appeal was well aware that the
immovable properties all belonged to the Numbered companies, in referring to the “real
estates of Marciano”, it necessarily meant, the real estate under the Debtor’s control.
[132] As written by Dalphond J.C.A., at this time, nothing in the file demonstrates that the
Debtor does not control the Numbered Companies[38]:
[10]
Les allégations des requêtes présentées devant la juge Corriveau font
valoir un degré élevé de proximité entre Marciano et la fiducie, dont il est un des
fiduciaires
et
un
bénéficiaire.
Quant
aux
sociétés
à
numéro,
elles semblent contrôlées de fait par lui. À ce jour, rien ne démontre que ces
allégations étaient fausses. Dans ces circonstances, la juge Corriveau pouvait
nommer PWC séquestre aux biens de Marciano, incluant la fiducie et les trois
sociétés.
(Emphasis added)
[133] It appears that the Land Registrar of the Land Registry Office will not accept the
publication of an order against an immovable, unless there is a clear prohibition on its
alienation by its registered owner within the meaning of Article 2939 C.c.Q:
Art. 2939: Restrictions on the right to alienate, other than purely personal
restrictions, and clauses of resolution, resiliation or eventual extinction of any right
which shall or may be published, and any transfer or transmission of such rights,
themselves shall or may be published.
[134] To remedy this technical issue, the Court will prohibit the alienation and authorize
the advance registration.
13.
ORDER TO REFRAIN FROM SELLING OR
OTHERWISE DISPOSING OF, TRANSFERRING OR
HYPOTHECATING MOVABLE AND IMMOVABLE
PROPERTY
[135] The Corriveau Order concerning the recognition of the foreign main proceeding, as
amended by the Court of Appeal, already contained a conclusion ordering the Debtor “not
to sell or otherwise dispose of or transfer any of its property in Canada”.
[136] This conclusion derives from the effect of the recognition of a foreign main
proceeding, pursuant to s. 271 (1) c) BIA:
271. (1) Subject to subsections (2) to (4), on the making of an order recognizing a
foreign proceeding that is specified to be a foreign main proceeding,
(…)
(c) if the debtor is an individual, the debtor shall not sell or otherwise dispose of any
property of the debtor in Canada.
[137] As previously discussed, this interdiction applies, at this interim stage, to the
movable and immovable property belonging to the Debtor or under his control.
14.
PROVISIONAL EXECUTION NOTWITHSTANDING
APPEAL
[138] Article 547 C.c.p. authorizes the Court to
notwithstanding appeal for any reason deemed sufficient:
order
provisional
execution
Art. 547: Notwithstanding appeal, provisional execution applies in respect of all the
following matters unless, by a decision giving reasons, execution is suspended by
the court:
(…)
In addition, the court may, upon application, order provisional execution in case of
exceptional urgency or for any other reason deemed sufficient in particular where
the fact of bringing the case to appeal is likely to cause serious or irreparable injury,
for the whole or for part only of a judgment.
In the cases provided for in this article, the court may, upon application, make
provisional execution conditional upon the furnishing of security.
[139] Allowing the Debtor to suspend the execution of the safeguard measures necessary
to protect the rights of the Debtor’s creditors by appealing the present Order is likely to
cause serious and irreparable injury to these same creditors, as any such suspension
would seriously hinder the ability of the Interim Receiver to carry out its mandate. As
expressed by Jonathan Zidel[39]:
The potential for irreparable harm or injury to the creditors manifests itself in the
situation where the debtor lodges an appeal, suspending the execution of any
measures ordered by the Court to protect the rights of the creditors. If the debtor
makes these measures impossible to execute by taking certain actions while the
Order is stayed, the creditors could lose the benefit of the protective measures
contained therein.
[140] As already mentioned, while no order was in place, some assets were “lost”, real
estate immovable properties were sold, etc.
[141] Although at this stage, the Court does not suggest that the Debtor has deliberately
caused certain assets to disappear or that the real estate sale was not made for good and
valid commercial reasons, it remains that these assets are no longer available to secure
the debts.
[142] Finally, past behaviour of the Debtor in California, which Dalphond J.C.A. describes
as the “surreptitious removal of movable assets (…) and important documents” also justify
such an order.
[143] In the circumstances the Court is of the opinion that there are sufficient reasons to
order provisional execution notwithstanding appeal.
FOR THESE REASONS, THE COURT,
[144] GRANTS PWC’s Motion in part;
[145] ORDERS Georges Marciano, Michel Bensmihen (in his capacity as Trustee for
the CKSM Family Trust), 9204-7570 Québec Inc., 9211-9882 Québec Inc. and 9213-4568
Québec Inc. within five juridical days of this Order, to provide detailed monthly statement
of account for all bank accounts opened in the name of Georges Marciano, Michel
Bensmihen (in his capacity as Trustee for theCKSM Family Trust), the CKSM Family
Trust, 9204-7570 Québec Inc., 9211-9882 Québec Inc. and 9213-4568 Québec Inc. for the
period of October 23, 2012 to the date of this Order;
Québec Inc. within five juridical days of this Order, to declare to the Interim Receiver the
location of any cash or negotiable instruments under their control which are not contained
in a bank account including, without limitation, sums deposited in securities accounts,
brokerage accounts, and sums held in trust by third parties;
Québec Inc. to provide detailed monthly statement of accounts for all bank accounts
opened in the name of Georges Marciano, Michel Bensmihen (in his capacity as Trustee
for the CKSM Family Trust), the CKSM Family Trust, 9204-7570 Québec Inc., 9211-9882
Québec Inc. and 9213-4568 Québec Inc. and for any other accounts containing cash or
negotiable instruments belonging to Georges Marciano, Michel Bensmihen (in his capacity
as Trustee for the CKSM Family Trust), the CKSM Family Trust, 9204-7570 Québec Inc.,
9211-9882 Québec Inc. and 9213-4568 Québec Inc., including, without limitation,
securities accounts, brokerage accounts, and in trust accounts with third parties, on an
ongoing basis, within five juridical days of such statements becoming available;
Québec Inc. to refrain from selling or otherwise disposing of, transferring or hypothecating
or otherwise encumbering any movable or immovable property;
[149] ORDERS 9204-7570 Québec Inc. to refrain from selling or otherwise disposing of,
transferring or hypothecating or otherwise encumbering the following immovable
properties (collectively, the “9204 Immovable Properties”):
(a)
« La fraction de l’immeuble détenu en copropriété divise ayant front sur la
rue Saint-Jacques, en la ville de Montréal, province de Québec,
comprenant :
i. La partie privative (unité commerciale étant notamment « L’Hôtel »,
anciennement « Hôtel XIX siècle ») connue et désignée comme étant
le lot numéro TROIS MILLIONS QUATRE CENT DOUZE MILLE
SEPT CENT CINQUANTE-NEUF (3 412 759) du cadastre du
Québec, circonscription foncière de Montréal;
ii. La quote part afférente à ladite partie privative dans la partie commune et
connue et désignée comme étant le lot numéro TROIS MILLION
QUATRE CENT DOUZE MILLE SEPT CENT CINQUANTE-SIX
(3 412 756) du cadastre du Québec, circonscription foncière de
Montréal.
Le tout tel qu’établi à la déclaration de copropriété publiée au bureau de la
publicité des droits de la circonscription foncière de Montréal sous le numéro
13 061 075.
Avec la bâtisse dessus érigée portant le numéro 266, Saint-Jacques, Montréal,
province de Québec, H2Y 1N1 ».
(b)
comprenant :
i. La partie privative (unité résidentielle) connue et désignée comme étant le
lot numéro TROIS MILLIONS QUATRE CENT DOUZE MILLE SEPT
CENT CINQUANTE-SEPT (3 412 757) du cadastre du Québec,
circonscription foncière de Montréal;
Montréal.
13 061 075.
(c)
comprenant :
i. La partie privative (unité résidentielle) connue et désignée comme étant le
lot numéro TROIS MILLIONS QUATRE CENT DOUZE MILLE SEPT
CENT CINQUANTE-HUIT (3 412 758) du cadastre du Québec,
circonscription foncière de Montréal;
Montréal.
13 061 075.
transferring or hypothecating the following immovable property (collectively, the “9211
Immovable Properties”):
(a)
« Un certain emplacement situé sur la Place Jacques Cartier, dans la Ville
de Montréal, province de Québec, connu et désigné comme étant le lot
numéro UN MILLION CENT QUATRE-VINGT-UN MILLE SIX CENT
TRENTE-HUIT (1 181 638) du cadastre du Québec, circonscription
foncière de Montréal, avec la bâtisse dessus érigée portant les
numéros 444-454 Place Jacques Cartier, Ville de Montréal, province
de Québec H2Y 3C3. »
(b)
« Espaces de stationnement tenus en copropriété divise composés de
i. La partie privative connue et désignée comme étant le lot numéro TROIS
MILLIONS CINQ CENT SOIXANTE-DIX-HUIT MILLE CINQ CENT
DIX (3 578 510) du cadastre du Québec, circonscription foncière de
Montréal, étant l’espace de stationnement 101 dans la bâtisse située
au 81 rue de Brésoles, Ville de Montréal, province de Québec,
H2Y 0A1;
ii. La partie privative connue et désignée comme étant le lot numéro TROIS
MILLIONS CINQ CENT SOIXANTE-DIX-HUIT MILLE QUATRE CENT
QUATRE-VINGT DOUZE (3 578 492) du cadastre du Québec,
circonscription foncière de Montréal, étant l’espace de
stationnement 105 dans la bâtisse située au 81 rue de Brésoles,
Ville de Montréal, province de Québec, H2Y 0A1;
iii. La partie privative connue et désignée comme étant le lot numéro TROIS
SIX (3 578 506) du cadastre du Québec, circonscription foncière de
H2Y 0A1;
iv. La partie privative connue et désignée comme étant le lot numéro TROIS
SEPT (3 578 507) du cadastre du Québec, circonscription foncière de
H2Y 0A1;
v. Les quotes parts afférentes auxdites parties privatives dans les parties
communes, tel qu’établi à la déclaration de copropriété passée devant
Me Helen BOUGAS, notaire, publiée au bureau de la publicité des
droits de la circonscription foncière de Montréal (« Montréal ») sous le
numéro 12 872 741 et de ses amendements.
c) « Un certain emplacement ayant front sur la rue Saint-Jacques ouest,
dans la Ville de Montréal, province de Québec, connu et désigné comme
étant le lot numéro UN MILLION CENT QUATRE-VINGT MILLE SIX
CENT TRENTE-SEPT (1 180 637) du cadastre du Québec,
circonscription foncière de Montréal, avec l’immeuble ci-dessus érigé
portant les adresses 249-251, rue Saint-Jacques, Ville de Montréal,
province de Québec H2Y 1M6. »
d) « Un certain emplacement situé sur la Place Jacques Cartier, dans la
Ville de Montréal, province de Québec, connu et désigné comme étant le
lot numéro UN MILLION CENT QUATRE-VINGT-UN MILLE SIX CENT
QUARANTE (1 181 640) du cadastre du Québec, circonscription foncière
de Montréal, avec la bâtisse dessus érigée portant les numéros 438-442
Place Jacques Cartier, Ville de Montréal, province de Québec H2Y
3B3. »
e) « Un certain emplacement situé sur la rue de la Commune Ouest, dans
la Ville de Montréal, province de Québec, connu et désigné comme étant
le lot numéro UN MILLION CENT QUATRE-VINGT-UN MILLE DEUX
CENT SOIXANTE-TROIS (1 181 263) du cadastre du Québec,
circonscription foncière de Montréal, avec la bâtisse dessus érigée
portant le numéro 133, rue de la Commune Ouest, Ville de Montréal,
province de Québec H2Y 2C7. »
f) « Un certain emplacement situé sur la rue Notre-Dame ouest dans la
lot numéro UN MILLION CENT QUATRE-VINGT MILLE SEPT CENT
QUATRE-VINGT QUATORZE (1 180 794) du cadastre du Québec,
circonscription foncière de Montréal, avec l’immeuble ci-dessus érigé
portant les numéros 200-212, rue Notre-Dame ouest, Ville de
Montréal, province de Québec H2Y 1T3. »
g) « Un certain emplacement situé sur la rue de la Commune Ouest, dans
le lot numéro UN MILLION CENT QUATRE-VINGT-UN MILLE DEUX
CENT SOIXANTE-ET-ONZE (1 181 271) du cadastre du Québec,
circonscription foncière de Montréal, avec l’immeuble dessus érigée
portant les numéros 109, 111, 115, 117 et 119, rue de la Commune
Ouest et 115, rue de la Capitale, Ville de Montréal, province de
Québec H2Y 2C7. »
h) « Un certain emplacement ayant front sur la rue Saint-Paul est dans la
Ville de Montréal, province de Québec, connu et désigné comme
composé du le lot numéro UN MILLION CENT QUATRE-VINGT-UN
MILLE HUIT CENT DIX-NEUF (1 181 819) du cadastre du Québec,
circonscription foncière de Montréal, avec les bâtisses dessus érigées
notamment celle portant le numéro 320, rue Notre-Dame Est, Ville de
Montréal, province de Québec H2Y 1C7. »
i)
« Un certain emplacement situé sur la rue Notre-Dame ouest dans la
lot numéro UN MILLION CENT QUATRE-VINGT MILLE NEUF CENT
QUARANTE-SEPT (1 180 947) du cadastre du Québec, circonscription
foncière de Montréal, avec les bâtisses ci-dessus érigées notamment
celles portant les numéros 54 et 56, rue Notre-Dame ouest, Ville de
Montréal, province de Québec H2Y 1S6. »
j) « Un certain emplacement situé sur la rue Notre-Dame ouest dans la
lot numéro UN MILLION CENT QUATRE-VINGT MILLE NEUF CENT
QUARANTE-SIX (1 180 946) du cadastre du Québec, circonscription
foncière de Montréal, avec l’immeuble ci-dessus érigé portant le
numéro 60, rue Notre-Dame ouest, Ville de Montréal, province de
Québec H2Y 1S6. »
k) « Un certain emplacement ayant front sur la rue Saint-Paul est dans la
MILLE HUIT CENT ONZE (1 181 811) du cadastre du Québec,
circonscription foncière de Montréal, avec la bâtisse de cinq étages
dessus érigée portant les numéros 281 et 295, rue Saint-Paul est, Ville
de Montréal, province de Québec H2Y 1H1. »
l) « Un certain emplacement ayant front sur la rue Notre-Dame ouest dans
les lots numéros UN MILLION CENT QUATRE-VINGT MILLE NEUF
CENT CINQUANTE-HUIT (1 180 958) et TROIS MILLIONS DEUX CENT
QUARANTE-QUATRE MILLE SIX CENT QUATRE-VINGT-SEPT
93 244 687) du cadastre du Québec, circonscription foncière de
Montréal, avec l’immeuble ci-dessus érigé portant l’adresse 11 - 21, rue
Notre-Dame ouest, Ville de Montréal, province de Québec H2Y
1S5. »
m) « Un certain emplacement ayant front sur la rue Saint-Paul est dans la
MILLE NEUF CENT QUATRE (1 181 904) du cadastre du Québec,
circonscription foncière de Montréal, avec la bâtisse de cinq étages
dessus érigée portant les numéros 262 et 264, rue Saint-Paul est, Ville
de Montréal, province de Québec H2Y 1G9. »
transferring or hypothecating or otherwise encumbering the following immovable property
(collectively, the “9211 Immovable Properties”):
a) « Un certain emplacement ayant front sur la Place d’Armes dans la Ville de
Montréal, province de Québec, connu et désigné comme composé du lot
numéro UN MILLION CENT QUATRE-VINGT MILLE NEUF CENT
QUARANTE-ET-UN (1 180 941) et la moitié indivise (1/2) du lot numéro UN
MILLION CENT QUATRE-VINGT MILLE NEUF CENT TRENTE-NEUF
(1 180 939) du cadastre du Québec, circonscription foncière de Montréal,
avec la bâtisse dessus érigée portant le numéro 501-507 Place d’Armes,
Ville de Montréal, province de Québec H2Y 2W8. ».
[152] DECLARE THAT PricewaterhouseCoopers Inc. has the right to apply for an
advance registration of this judgment in the land register on any immovable property
registered in the name ofGeorges Marciano, the CKSM Family Trust, 9204-7570 Québec
Inc., 9211-9882 Québec Inc. or 9213-4568 Québec Inc and ORDERS the Land Registrar
to grant any such application presented to it by PricewaterhouseCoopers Inc;
[153] ORDERS the provisional execution of this Order notwithstanding appeal;
[154] THE WHOLE with costs.
__________________________________
CHRISTIANE ALARY, j.s.c.
Me Martin Desrosiers
Me Éric Préfontaine
Me Alexandre Fallon
OSLER, HOSKIN & HARCOURT LLP
Attorneys for the Interim Receiver, PRICEWATERHOUSECOOPERS INC.
Me Bernard Boucher
BLAKE, CASSEL & GRAYDON LLP
Attorney for David Gottlieb, Foreign Representative
Me Jean-Yves Fortin
Me Mélanie Martel
DAVIS LLP
Attorneys for the Debtor
Me Jean Fontaine
Me Pierre-Paul Daunais
STIKEMAN ELLIOT LLP
Attorneys for 9204-7570 QUÉBEC INC., 9211-9882 QUÉBEC INC., 9213-4568
QUÉBEC INC.
Me Sylvain Rigaud
NORTON ROSE CANADA LLP
Attorney for CKSM Family Trust
Dates of hearing:
[1]
[2]
[3]
[4]
[5]
February 25 and 26, 2013
PWC’s List of documents in support of its Motion, Tab. 54, 55 and 56.
Marciano (Séquestre de), 2011 QCCS 5254 .
Marciano (Séquestre de), 2011 QCCS 7086 .
R.S.C., 1985, c. B-3.
Marciano (Séquestre de), 2012 QCCA 1876 ; Marciano (Séquestre de), 2012 QCCA 1878
; Marciano (Séquestre de), 2012 QCCA 1881 ; Marciano (Séquestre de), 2012 QCCA 1879
; Marciano (Séquestre de), 2012 QCCA 1877 .
[6]
In this judgment, every quotation from the Court of Appeal Judgments is reproduced as is.
[7]
Marciano (Séquestre de), 2012 QCCA 1881 .
[8] Footnotes omitted.
[9] All amounts mentioned in this judgment are in US dollars.
[10] Exhibit D-4.
[11] Exhibit D-5.
[12] Exhibit D-6.
[13] Marciano (Séquestre de), 2012 QCCA 1881 ; Marciano (Séquestre de), 2012 QCCA 1877 ; Marciano
(Séquestre de), 2012 QCCA 1878 ; Marciano (Séquestre de), 2012 QCCA 1876 ; Marciano (Séquestre
de), 2012 QCCA 1879 .
[14] Under s. 276 BIA, the Foreign Representative has a duty of information towards the Court. Further to
receiving the Foreign Representatives’ correspondence, the Court has given the other parties an
opportunity to reply or comment.
[15] Marciano (Séquestre de), 2012 QCCA 1877 .
[16] Id.
[17] Marciano (Séquestre de), 2012 QCCA 1881 , par. 83.
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
Id.
Subsection 271 (1) BIA.
Marciano (Séquestre de), 2012 QCCA 1881 , par. 10.
Id., par. 28.
Id, par. 31.
Exhibit R-12 in support of the Motion to Obtain Recognition of a Foreign Main Proceeding of
September 13, 2011.
[26] Produits forestiers Bellerive Ka’N’Enda inc. (Proposition de), 2007 QCCS 1530 .
[28] The Court excludes Chloe M ULC and 1305066 Alberta ULC bank accounts since these two
corporations are no longer parties to this litigation.
[30] Exhibit R-13.
[31] Marciano (Syndic de), 2011 QCCA 2428 .
[33] Exhibit R-15.
[34] Id.
[35] Exhibit R-16.
[39] Answers of Jonathan Zidel to questions subject to objections which were dismissed by the Court,
January 24, 2013.

Marciano (Syndic de), 2013 QCCS 1533

Transcription

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