A urgency of the Motion on Feb. 28 to release frozen funds，I need a commercial litigation lawyer

I am looking for a commercial litigation lawyer and I need a counsel for my corporation asap.

 

A Urgency of the Motion on Feb. 28, 2017 to release frozen funds

 

On March 17, 2009, the Ontario Securities Commission (OSC) issued a temporary freezing order and $440,000 is at issue and subsequently on April 14, 2009 and repeatedly frozen by AUTORITE DES MARCHES FINANCIERS in Quebec to date.

 

The fact is that $150,000 was deposited by Qiu and Wang; $200,175 was deposited by me to Interactive Brokers Canada on March 15, and 17th, 2009; in three days this money ($150,000.00 + 200,175.00 = $350,175.00) made a trading profit of $90,000.00 (See Exhibit “B” and “C”) before frozen.

 

The fact is as of the time my account was frozen I had $440,175.00.

their motion is due to the expiry of the freeze orders on the funds held in Quebec.

In particular, counsel for AMF in Montreal, Steeven Plante, advised Mr. Zavaglia from Gowling that in order to renew the freeze orders they must provide proof that a motion to distribute the funds was filed by Representative Counsel before January 26, 2017. In the absence of such proof, Mr. Plante advised Mr. Zavaglia that AMF has instructions to close its file.

Weizhen Tang

17 Silk Court

Richmond Hill

Ontario,

L4B 4A4

Tel: (416)886-8715

Email: weizhentang@gmail.com

For Respondents

WEIZHEN TANG

Oversea Chinese Fund Limited Partnership

WEIZHEN TANG &ASSOCIATES INC.

  

INDEX

 

 

FACTUM... 1

PART I :   STATEMENT OF THE CASE.. 1

PART II -ISSUES AND THE LAW... 2

PART III: ADDITIONAL ISSUES. 12

IV - ORDER REQUESTED.. 13

Schedule A - Authorities to be Cited. 14

Affidavit of Weizhen Tang. 17

 

FACTUM

           PART I :   STATEMENT OF THE CASE

 

1.     This is response to the applicant’ application for an order for the release of the respondent’s money that is held in a frozen account for additional their legal fees in the amount of $15,745.61and  cy-pres distribution  Justice Fund of The Law Foundation of Ontario.

2.     According to the application, the funds in a frozen account is  not to be distributed to the respondent who owns the money or to the investors, which is contrary to the order from Justice Pepall in this honourable court who stated clearly that the frozen money was to be given on a pro rata basis to the respondent and the investors after the conclusion of the criminal case

[8] As to distribution , as suggested by Representative Counsel , the subject funds should be distributed to investors on a pro rata basis subject to an appropriate claims process following the conclusion of the Ontario Court of Justice trial. At that time, a full evidentiary record will be available. This process would include the Applicants . Accordingly, at this stage the applicants are not entitled to the return of the $50,000 and $100,000 respectively requested by them.”

 

Ref: Endorsement of Pepall, J., November 18, 2010, Responding Motion Record, Tab B  

3.  On March 17, 2009, the Ontario Securities Commission (OSC) issued a temporary freezing order and $440,000 is at issue and subsequently on April 14, 2009 and repeatedly frozen by AUTORITE DES MARCHES FINANCIERS in Quebec to date.

 

4    On March 18, 2009, the OSC issued a Notice of Hearing which set out the Commission’s intention to hold a hearing to consider whether it was in the public interest for the Commission to extend the temporary freezing order beyond 15 days. On April 1, 2009, and on numerous subsequent dates, the temporary order was extended and has been renewed several times thereafter.

 

5   Although I was charged on May 24, 2011, of $5,000 over and subsequently found quilt on October 30, 2012, the finding of guilty was on funds allegedly spent of $2.84 Million for renting an office and paying employees and promoting business by a small group of investors who testified against me and majority of my investors are supporting me.

 

5  However, two investors, namely Si Yi Qiu and Guosheng Wang (Qiu and wang), did not sue me or testify against me in the courts of law because the monies that was held in the Oversea Chinese Fund account was part of their money. These moneys are part of the moneys being held and, in fact, frozen in the Interactive Brokers Canada Inc.

6  The said two investors brought a Motion/Application, Court File No. 09-8410-000L, wherein they sought the return of $150,000 held in an account with Interactive Brokers Canada Inc. (See Exhibit “A” – unofficial transcript of Endorsement of Justice Pepall – December 3rd, 2009).

 7. Although submitted by alleged counsels who had attended the aforementioned application hearing that the funds in the said account was trust fund, that money was neither a trust account nor served as trust fund but was my company account and personal money not gotten through any trustee or fraudulently.

8 The money held in Interactive Brokers Canada was my investment account.

9.  Further, the said money held in the Interactive Brokers Canada account was put in there by the two investors, Qiu and Wang after Feb. 27, 2009 and all other investors withdraw and these who withdraw are the same,  a few investors who testified against me at trial.

10  Qiu and Wang never testified against me because they understood that I was legitimately conducting business fairly on their beheld. Their investments money was held up in the Interactive Brokers Canada which is the $150,000.

11  The fact is that $150,000 was deposited by Qiu and Wang; $200,175 was deposited by me to Interactive Brokers Canada on March 15, and 17th, 2009; in three days this money ($150,000.00 + 200,175.00 = $350,175.00) made a trading profit of $90,000.00 (See Exhibit “B” and “C”) before frozen.

12  The fact is as of the time my account was frozen I had $440,175.00.

13. On or around December 9th, 2013, Justice Newbould in this court  while I was in prison, ordered that $201,352.42 be distributed to the legal representatives of Gowling LaFleur Henderson LLP from Oversea Chinese Fund Limited partnership account in the Interactive Brokers Canada Inc . , Montreal. I appealed this ruling to the court of appeal for Ontario because it was prejudicial to my interests and other two investors as the money that was ordered to be paid to the representatives belonged to my family and Qiu and Wang and NOT to other Canadian investors.

14  On or around December 15th, 2015, the court again ordered that $76,458.22 to be distributed to Gowling LaFleur Henderson LLP for its own legal proceedings. I am yet to appeal this decision because the Court delayed in releasing the reasons for the decision.

15. The fact is that by the time of this application, the amount of money remaining in the Interactive Brokers Canada account should be $440,175.00 + $76,458.22 - $201,352.42 = $162,364.36. This amount of money is far less than what myself and Qiu and Wang invested into the Interactive Brokers Canada, and it was not and is not the money owed to the Canadian investors as claimed.

I.                   LAW

 

[15] In the regard of frozen my accounts and monies including funds belonging personally to me, my family and other investors (namely Mr. Qiu and Mr. Wang), which are evidently separated from any alleged proceeds of crime/fraud if there is any, there is no justification for the continued freezing of the said funds. Any and all amounts of fund to be outside the alleged proceeds of crime ought to be released to the rightful owners without any further delay. This is what Justice Melvyn Green had to say in Canada (A.G.) v. Jamal, 2015 ONCJ 687 (CanLii) at para. 112 with regard to releasing property bellowing to innocent parties in a similar circumstance:

                 

[112]  Put otherwise: I am satisfied that they appear innocent (indeed, are innocent) of complicity or collusion, and see no reason in all the circumstances to exercise any residual discretion under s. 19(3) to do other than “order that the property be returned to” the Respondents. Independently, and in the alternative (if I am wrong as to the Respondents’ eligibility for relief under s. 19(3), I am equally satisfied, upon due consideration all the relevant statutory factors, that “the impact of an order of forfeiture … would be disproportionate” and, consistent with my consequent discretion under s. 19.1, “decide not to order the forfeiture” sought by the A.G. and, further, to revoke the restraint order currently prohibiting disposition of the 15 Tamora Court property

 

[16] Also, in the unreported matte of R. v. Abdirahman, Justice Sean Dunphy of the Ontario Superior Court in a ruling of June 7, 2016 stated as follows:

 

“Money is not deemed to be proceeds of unlawful activity merely because possessed outside of the confines of a bank.”

 

This was in a case in which the crown sought to seize $8,740 in cash that was found on the Respondent. The learned Judge went to on to say:

 

“While the applicant Attorney General does not necessarily bear the burden of establishing precisely what unlawful activity the particular property was the proceeds of, the burden cannot be satisfied by the mere casting of suspicion or speculation that does not rise to the level of proof on the balance of probabilities,”

 

II.                SUBMISSIONS

 

[18]       Here are my submissions. The money held up in the Interactive Brokers Canada Oversea Chinese Fund Limited Partnership account is my personal money – the money I had invested as an investor myself – and this is not the money earmarked as proceedings of crime. The money that belongs to my family is $200,000.00 and borrowed from TD Bank against our house. The money that Qiu and Wang invested was $150,000.00. The profit was $90,000.00.

 

[19] Further, it is herein submitted, that while the share of the investment profit, $90,000.00 may be determined by both me and the duo (Qiu and Wang) because of their investment of $150,000.00 together, the amount of $200,000.00 is my personal money (family investment) and these moneys are not subject to scrutiny of the BDR and Ontario Securities Commission (OSC). As explained in (I), all the other investors who may or may not claim that I defrauded them testified or ought to have testified that they were part of the close to $2.84 million of business expenses. Granted. And that finding led to my conviction and imprisonment. However, the moneys involved here, namely the $440,175.00 (see paragraph [11] and preceding paragraphs how this money came about), is and was never part of the close to $2.84 million for which I was punished. It is important to note here that the over $2.84 million was mere business expenses.

 

[20] And further, and to explain my argument in paragraph [19], consider the determination of the Court (Justice I. Nordheimer) on August 15th, 2011:

 

“This matter proceeded, at least initially, and it might still, on the basis that there was no real dispute that the $200,000.00 of funds belonging to Mr. Tang had gone into this particular account, even though it may be that subsequent to that other monies came in and others went out such that you can’t tell one dollar from the other. But there was no dispute that at least $200,000.00 of Mr. Tang’s own money went into this account,” (transcript of August 15th, 2011 in R. v. Weizhen Tang), see Exhibit “D”.

 

[21] I have argued repeatedly that the money which was held and continues to be held in Interactive Brokers Canada was and continues to be my money. The money is supposed to help me in my defense as of the claim as I have a constitutional right to be represented by counsel or to hire adequate counsel. Justice Nordheimer alluded to this when he asked:

 

“Do their claim that these funds [$440,175.00] may be used to redress their losses in some fashion have to take a back seat to Mr. Tang’s right to use those funds to fulfill this constitutional rights to counsel and to make full answer and defence?”

 

Ref: compendium court transcript before Nordheimer J. 

It is my submission that, I am entitled to using these moneys to defend myself, to live and work, not because it is my constitutional right alone, but also because these funds do not constitute any  proceeds of crime. But even if these funds constituted proceeds of crime, I still have the right to use them to make answer and defense in court, in this case, to defend against continued freeze of my personal investment money currently being held in Interactive Brokers Canada Inc.

 

[22] The order to freeze the money was a temporary one. But this order has been renewed several times and several years during this time, I have been maliciously prosecuted, wrongfully convicted, false imprisoned and a late APR legislation released. Why should the temporary order to continue to be in effect or renewed when I have been already punished? The purpose of the order was to temporarily freeze the account until the criminal matter was decided. That matter has been determined and decided. I am no longer a subject of a criminal or otherwise investigation, I am one of those three or four investors, why should I not have access to my money so that I may carry out a reasonable living or defend myself against the freezing of my account? As it stands, I am stranded, broke and bankrupted with no means of funding my defense and earning a living. This money is mine and must be relapsed and the freeze lifted.

 

23  Granted, I was the managing partner of Weizhen Tang and Associates, in fact, the owner of this company. I still am the person who invested my personal money into this account and was followed or other two investors followed suit and they, too, deserve their $150,000.00 and part of the $90,000.00 investment profit accrued from this account.

24. None of my company has charge and all the charges to my companies have been withdrawn by OSC in August 22, 2013 and no police charge ever and have no penalty or restrictions lifted on Sept. 18, 2015. 

25  Unless the two investors object, which they have not, I as manager have the responsibility to access this money and share it with the two. It is for this reason that I submit that this money be released, the freeze be lifted so that I may be able to access my account and manage it. I ask that my personal money and the moneys invested by the two investors be freed with immediate effect. I have been banned from trading by OSC but not to have access to my personal account and personal money.

 

26 OSC and the Courts agreed that after the completion of the criminal process, the moneys frozen would be unfrozen and returned to the investors (Tang and the other two) on a pro rata basis:

 

Counsel for OSC “And you will have all of the investors watching that litigation, believing that their interest in those funds will be preserved until the end of the criminal trial on a pro rata basis once all of these issues can work themselves through the system” .

 

27  It is submitted that, pursuant to paragraph [25] on a pro rata basis, I have 56.18% and the other two investors who invested $150,000.00 (Qiu and Wang) have 42.13% interest (28.1% for Wang; and 14% for Qiu), and the rest of the other investors who had invested before and who leveled the accusation of fraud against me have only 1.68% negligible amount. In other words, as far as these amounts are concerned, the one  being held in the Interactive Brokers Canada.

 

28  In other words, of the frozen amount, only 1.68% of $440,175.00 = $7,392.00 belongs to the other Canadian investors at most  and this is the amount that should be frozen or gave to investors’ class counsel.

 

29 It is submitted that, given the fact that other investor representative counsel  have wrongfully already taken out $276,000.00 in two installments through their lawyers (Gowling LaFleur Henderson LLP), those  investors have no share in this account held at Interactive Brokers Canada.

 

30. It is further submitted that Gowling LaFleur Henderson LLP has no right under any law in Canada to take out over $276,000.00 from the Interactive Brokers Canada account since only 1.68% of their client investors had interest in this account. If anything, Gowling LaFleur Henderson LLP was only entitled to $7,392.00 of the frozen money but they have defrauded the Interactive Brokers Canada account of more than $276,000.00.

 

30. Granted, Gowling LaFleur Henderson LLP through their associate Alex Zavaglia in a letter to Qubec authority dated June 8th, 2016 claim that, “[They are] representative counsel for the Canadian class of investors who invested funds with Weizhen Tang or any of the corporations or entities controlled by Mr. Tang,” (See Exhibit “E”).

 

31. Did Gowling LaFleur Henderson LLP also represent the two investors (Qiu and Wang) with a stake in Interactive Brokers Canada? If so, where is their retainer agreement to that effect? Why is it that Gowling LaFleur Henderson LLP got paid over $276,000.00 from the account which has only about $7,392 of their representative investors’ money?

 

32  It is my submission that Gowling LaFleur Henderson LLP has received unlawful payment from an account for which their entitlement is only $7,392 at most. Qiu and Wang were represented by Adam Ezer, and not by Gowling LaFleur Henderson LLP.

33  It is my submission that Gowling LaFleur Henderson LLP should have been watched and investigated over its mis-conduct and conflicting interest by the authority and law society,

34 It is my submission that Gowling LaFleur Henderson LLP is not a party to this proceeding, no power over the government and either to the court, unless the OSC and BDR and the lower court influenced and controlled by Law firms like Gowling LaFleur Henderson LLP.  

 

35. That there are new issues that have arisen that have never been adjudicated and therefore no issues of estoppels arise.

36. This factum builds on what has already been submitted to the Court and served on the applicants in the previous factum.

37.  That the new and updated affidavit raises the new issues in the first several paragraphs of the affidavit.

38  That the most significant new issues are the fact that the respondent did not have an interpreter in all his appearances in the civil matter and therefore did not get a fair hearing as his English language skills both in speaking and writing, leave a lot to be desired.

39  The second significant new issue is the conflict of interest involving counsel for Gowlings who was working for the OSC during the investigation and prosecution of the respondent and her working relationship with the person who charged him.

40   The issues relating to the conflict of interest involving Kelly McKinnon and the law firm that she works with are dealt with in the new affidavit.

41. That it has to be remembered that OSC froze the respondent’s accounts, disabling him from hiring counsel and this disability directly benefitted Kelly McKinnon and her law firm and it is also to be noted that Kelly McKinnon still works for the OSC that froze the accounts.

42.   That the OSC froze the accounts to benefit the investors and in fact there is a court order to that effect but by claiming the frozen money for herself and her law firm, Kelly McKinnon and her law firm are in a conflict of interest position.

43.  There is also an issue of reasonable apprehension of bias here.

44.  That Kelly McKinnon’s law firm is also representing TD Canada Trust and there this same law firm has claimed legal fees from my equity instead of being paid by their client., another conflict of interest, reasonable apprehension of bias and the course of conduct to destroy the respondent financially in any every which way.

45,  That these and other issues have not been litigated at all or fully.

46. Two law firms in Ontario have already taken a chunk of the money for themselves to the tune of close to half a million dollars from the Canadian and one million dollars from US accounts involving the respondent, even before the final conclusion of the criminal case and for themselves instead of the respondent or the investors.

                 -          Affidavit of Applicant

47. The respondent was not represented by counsel or was not present or was in prison when all the proceedings in the OSC that led to the various orders took place.

                 -          Affidavit of the Applicant.

48. The respondent is seeking leave to introduce new evidence on this motion.

49. The respondent as can be seen from his affidavit, did not understand the process in the civil or criminal trial at all.

50. The respondent was clearly incompetent and ineffective in his self-representation both in the civil and criminal matters and the civil matters were never resolved on the merits after full knowledgeable representation.

                 -          Affidavit of Applicant.

51. The respondent is self represented on this leave to introduce fresh evidence and to argue the motion.

           PART II -ISSUES AND THE LAW

 

52.            It is submitted that this Honourable Court has the discretion to vary, terminate, set aside, modify or annul all previous orders that permitted the this law firm to claim the money for themselves instead of allowing access to the respondent to retain counsel or to wait until the final conclusion of the case at the Supreme Court of Canada as per Justice Pepall’s order.

53.  It is submitted that new issues have been raised as can be seen from the affidavit, therefore the issue of the various forms of estoppels do not arise.

54. The issue of interpretation is a constitutional issue which needs full adjudication and not technical avoidance.

55.  The issue of conflict of interest as fully elaborated in the affidavit and summarised above raises a serious issue needing discretionary intervention at this point.

56.  The balance of the factum contains what has already been pleaded.

57.   It is submitted that the respondent did not get a fair hearing in the civil courts pertaining to the issue of the frozen accounts and the involvement of the two law firms because he had no legal representation, the respondent was clearly incompetent and ineffective and had no Amicus curiea in the civil matters as there is no provision in the law for that.

58.  That the respondent was denied his right to a fair trial because he was denied counsel, was self-represented and this self-representation was incompetent and ineffective, resulting in a miscarriage of justice and this lack of legal counsel was occasioned by the OSC, the crown, legal Aid and the two law firms.

59. It is submitted that in order to get a full flavour of the consequences on the respondent not having legal counsel in both tribunals can be gleaned from the affidavit and submissions below on the issue of what courts have stated relating to the right to have legal representation in the criminal context, which applies with modifications to the civil context.

60. It is submitted that the court derives jurisdiction from the type of order that I am seeking in Rule 6.14 (2) which states that “where the court may set aside or vary an order obtained without notice or in other circumstances (emphasis added).

62. That this case comes under the rubric or colour of right of “in other circumstances” or Interests of justice umbrella, as the respondent did not have counsel throughout the process.

63. It is submitted that this kind of discretion is what is alluded to by Justices Perell and Morden in their book The Law of Civil Procedure in Ontario (2014) at page 13 paragraph 1.37 when they state that “the rule-makers are sensible in making the application of many rules discretionary and flexible because it is not possible to foresee in any detail the wide range of differing fact situations that will present themselves for decision, and justice requires that each case should be decided upon its own particular facts”. Citing the Clairmonte v. CIBC [1970] O.J No. 1506, [1970] 3 O.R 97 at 111 (Ont. C.A) the authors state that “Discretion means choice and in some cases the discretion may be so wide that opposite decisions could both be acceptable”. That is the spirit of discretion that is requested here.

64. The predicament the respondent found himself in not having counsel both at the civil motions and the criminal process was because the OSC froze his account. In the interests of justice, discretion must be exercised to right this imbalance which had severe reverberations in the criminal process as well as the balance of this factum will show.

65. As the respondent’s affidavit shows, the respondent was not effective both in the civil and criminal process to his prejudice and severe consequences, just because he did not have counsel.

66. With necessary modifications, what happened in the criminal process recall the severe consequences that started in the civil process and the severe consequences continue to reverberate in both.

67.  A person who demands the assistance of counsel because he knows his weaknesses but is not afforded or is prevented from having counsel whom in fact he can afford, cannot be said to have had a fair hearing or trial or has been afforded the highest indulgence of the principles of fairness and procedural justice. Khan Supra.

68. It would be one thing if the respondent raised the issue of counsel at this stage, it is another if he raised the issue of counsel earlier. The respondent has been raising the issue of counsel from the beginning both in the OSC and criminal proceedings. The respondent knows the facts, but he stated he does not know the law and needed representation.

 

IV - ORDER REQUESTED

 

1.     It is respectfully submitted that the Court should dismiss the applicants’ application, order to return of all money to the respondent, order that the money frozen must be given back to the respondent

2.      the alternatively order a trial

3.      the further alternative set aside or vary or modify previous orders and have the process start all over again as the respondent was not represented on the merits that resulted in previous orders pertaining to the monies in question and

4.     Or  for any just order based on the judicial exercise of discretion.

 

ALL OF WHICH is respectfully submitted this 18th day of Feb. 18, 2017.