ONTARIO SAMEH SADEK also known as SAM SADEK, ST. … › sites › default › files › ... ·...

Court File No. CV-18-602745-00 CL

ONTARIO SUPERIOR COURT OF JUSTICE

(Commercial List) BETWEEN:

ASTRAZENECA CANADA INC. Plaintiff

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SAMEH SADEK also known as SAM SADEK, ST. MAHARIAL PHARMACY INC. dba MD HEALTH PHARMACY, ST. MAHARIAL CLINIC INC., SRX INVESTMENT INC., SHEPHERD RX PHARMACY INC. and LILIAN FAM

Defendants

MOTION RECORD TO APPOINT A RECEIVER (Returnable September 11, 2018)

September 10, 2018 BLAKE, CASSELS & GRAYDON LLP Barristers & Solicitors 199 Bay Street Suite 4000, Commerce Court West Toronto ON M5L 1A9

R. Seumas M. Woods LSO #30169I Tel: 416-863-3876 [email protected]

Erin Hoult LSO #54002C Tel: 416-863-4011 Fax: 416-863-2653 [email protected]

Lawyers for the plaintiff





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Defendants










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Defendants






INDEXINDEX



(Commercial List)

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Defendants

TABLE OF CONTENTS

TAB NO. DESCRIPTION PAGE NO.

1 Notice of Motion 1

2 Affidavit of Tim Rutherford affirmed September 7, 2018 7 A Exhibit "A" — Order of Justice Dunphy dated August 9, 2018 22 B Exhibit "B" — Order of Justice Dunphy dated August 17, 2018 31 C Exhibit "C" — Order of Justice Dunphy dated September 5,

2018 36

D Exhibit "D" — E-mail from Erin Hoult to Sam Sadek and Lilian Fam dated August 17, 2018

40

E Exhibit "E" — Requisition to note the Defendants in default dated August 29, 2018

42

F Exhibit "F" — Correspondence between Erin Hoult and TD Bank between August 10 and September 6, 2018

46

G Exhibit "G" — Corporation Profile Report for Lilian Fam Pharma Inc.

109

H Exhibit "H" — Excerpt from TD Bank Visa statements of Sam Sadek dated August 13, 2018

113

I Exhibit "I" —TD Bank account statements of Lilian Fam Pharma Inc. bank account between July 30 and August 13, 2018

116

J Exhibit "J" —TD Bank account statements of SRX Investment 119 Inc. bank account between June 1, 2017 and August



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Defendants

TABLE OF CONTENTS




2018 36


40


42


46


109


113


116

J Exhibit "J" —TD Bank account statements of SRX Investment Inc. bank account between June 1, 2017 and August

119



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TABLE OF CONTENTS




2018 36


40


42


46


109


113


116

J Exhibit "J" —TD Bank account statements of SRX Investment Inc. bank account between June 1, 2017 and August

119

15, 2018 K Exhibit "K" — TD Bank account statements of SRX Investment

Inc. bank account between June 1, 2017 and August 15, 2018

142

L Exhibit "L" — Supporting documents for transfers undertaken in SRX account on August 8 and 9, 2018

156

M Exhibit "M" — Excerpts from http://www.emaarmisr.com 160 N Exhibit "N" — Excerpts from https://www.orascomdh.com 180 0 Exhibit "0" — Statement of Defence, Counterclaim and

Crossclaim of Emily Rx Pharm Inc., Sameh Sadek, Lilian Fam, St. Maharial Pharmacy Inc. and St. Maharial Clinic Inc.

183

P Exhibit "P" — Decision of the Discipline Committee of the Ontario College of Pharmacists regarding Lilian Fam dated August 16, 2018

203

Q Exhibit "Q" — Public View Terminal Results regarding Toronto actions involving Defendants

222

R Exhibit "R" — Notice of Discontinuance filed in Sadek v. Bank of Montreal et al. proceeding

288

S Exhibit "S" — Statement of Claim, Notice of Discontinuance, Requisition to Note in Default and Default Judgment filed in filed in Teva Canada Limited v. St. Maharial Pharmacy Inc. et al. proceeding

302

T Exhibit "T" — Printout of "Timeline" page of Facebook profile of "Lilian Fam" from August 29, 2018

313

U Exhibit "U' — Writs of execution against the Defendants 332 V Exhibit "V" — Personal Property Security Act search results

showing registrations against the Defendants 335

3 Affidavit of Doug Quan sworn September 10, 2018 423 A Exhibit "A" — Photographs taken by DJ Kona on August 15,

2018 431

B Exhibit "B" — Photographs taken by DJ Kona on August 24, 2018

436

C Exhibit "C" — Photographs taken by DJ Kona on August 30, 2018

444

D Exhibit "D" — Photographs taken by Geoff Hall on September 3, 2018

452

E Exhibit "E" — Photographs taken by Geoff Hall on September 10, 2018

463

F Exhibit "F" — Documents presented to on August 22, 2018

470

4 Consent of Alvarez & Marsal Canada Inc. to act as Receiver 471 5 Draft Order 473 6 Blackline against Model Receivership Order 498



142


156



183


203


222


288


302


313




2018 431


436


444


452


463


470




142


156



183


203


222


288


302


313




2018 431


436


444


452


463


470


TAB 1

Tab 2

Tab 1

Commercial List No. CV-18-602745-00 CL




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Defendants

NOTICE OF MOTION TO APPOINT A RECEIVER

The plaintiff ("AstraZeneca Canada") will make an ex parte motion to a Judge on Tuesday,

September 11, 2018 at 10:00 a.m., or as soon after that time as the motion can be heard at 330

University Avenue, Toronto, Ontario, M5G 1E6.

PROPOSED METHOD OF HEARING: The motion is to be heard orally.

THE MOTION IS FOR

(a) an order substantially in the faun attached at Tab 5 of the Motion Record, which

includes without limitation:

(i) an order under section 101 of the Courts of Justice Act appointing Alvarez

& Marsal Canada Inc. ("A&M") as receiver (the "Receiver") of the

Canadian assets, property and undertakings of the defendants, and with

investigative powers in respect of the assets, property and undertakings of

the defendants, wherever situate, and related powers;





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Defendants






THE MOTION IS FOR












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Defendants






THE MOTION IS FOR








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(ii) an order temporarily sealing the Motion Record, Factum, and Book of

Authorities of the plaintiff all dated September 10, 2018;

(iii) orders continuing and extending the existing Mareva injunction and

granting the plaintiff leave to, among other things, pursue judgment against

the defendants in this action; and

(iv) an order awarding the plaintiff the costs of this motion, and of the prior

motion and attendances relating to the Mareva injunction, in each case on a

full indemnity basis; and

(b) such further and other relief as this Honourable Court deems just.

THE GROUNDS FOR THE MOTION ARE

(a) on August 9, 2018, Justice Dunphy granted an Order in the nature of a Mareva

injunction (the "August 9th Order") against the assets of the defendants, save

Shepherd Rx Pharmacy Inc. Justice Dunphy granted further orders regarding,

among other things, service and extending certain terms of the Mareva injunction

to additional financial institutions on August 17, 2018 (the "August 17th Order")

and September 5, 2018 (the "September 5th Order", together with the "August 9th

Order" and "August 17th Order", the "Mareva Orders");

(b) in breach of the Mareva Orders, the relevant defendants have not provided sworn

statements of assets;

(c) there is good reason to believe that Ms. Fain and Mr. Sadek have left the Province

of Ontario in breach of the Mareva Orders;

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(d) the defendants took steps on August 8 and 9, 2018, to further dissipate their assets

in Ontario after having received short notice of the then-pending motion for a

Mareva injunction, including transfers of over $180,000 into a TD Bank account in

the name of one of Sadek and Fam's minor children (the "DS Account");

(e) the defendants were noted in default in this proceeding on August 29, 2018;

(f) as was determined on the motion for a Mareva injunction, there is a strong prima

facie case that the defendants undertook a scheme to fraudulently misappropriate

over $7.7 million from AstraZeneca Canada. Further, the defendants are now taken

to admit the allegations in the Statement of Claim;

(g) the value of the defendants' assets in Ontario appears to be well below the amounts

taken from AstraZeneca Canada by way of the fraudulent scheme;

(h) there is a serious risk that the defendants, or any of them, will continue to attempt to

dissipate their assets to try to prevent or otherwise frustrate execution by

AstraZeneca Canada. In addition, there is a serious risk that the most valuable

assets remaining in Ontario — namely, two residential properties — are wasting;

(i) if a Receiver is not appointed, the ability of AstraZeneca Canada to execute

judgment against the defendants will be in serious jeopardy, and AstraZeneca

Canada will suffer irreparable harm;

(j) A&M has consented to act as the Receiver;

(k) the defendants have other known creditors. However, the appointment of a

Receiver will not jeopardize the rights of third parties, including those creditors;

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(1) the balance of convenience strongly favours granting the appointment of a

Receiver. Further, in all the circumstances, it is just and convenient to appoint a

Receiver;

(in) sections 101, 135(2) and 137(2) of the Courts of Justice Act, R.S.O. 1990, C. 43;

(n) rules 19.02, 37.07 and 41 the Rules of Civil Procedure; and

(o) such further and other grounds as the lawyers may advise.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the Motion:

(a) the four-volume Motion Record dated August 8, 2018, Supplemental Motion

Record dated August 17, 2018, Second Supplemental Motion Record dated

September 5, 2018;

(b) the affidavit of Tim Rutherford affirmed September 7, 2018;

(c) the affidavit of Doug Quan sworn September 10, 2018;

(d) the Consent of A&M to act as the Receiver; and

(e) such further and other evidence as the lawyers may advise and this Honourable

Court may permit.

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Receiver;







September 5, 2018;





Court may permit.

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Receiver;







September 5, 2018;





Court may permit.

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R. Seumas M. Woods LSO #301691 Tel: 416-863-3876 [email protected]



5 -5-





5 -5-





5

ASTRAZENECA CANADA INC. -and- SAMEH SADEK aka SAM SADEK et Commercial List No. CV-18-602745-00 CL al.

Plaintiff Defendants


(Commercial List) Proceeding commenced at Toronto

NOTICE OF MOTION FOR A RECEIVER

BLAKE, CASSELS & GRAYDON LLP Barristers & Solicitors 199 Bay Street Suite 4000, Commerce Court West Toronto ON M5L 1A9






















ASTRAZENECA CANADA INC. -a

nd- SAMEH SADEK aka SAM SADEK et

Comm

erci

al List No. CV-18-602745-00 CL

al.

Plaintiff

Defendants

ONTARIO

SUPERIOR COURT OF JUSTICE

(Commercial List)

Pro

ceed

ing commenced at To

ront

o


BLAKE, CASSELS & GRAYDON LLB'

Barristers & Sol

icit

ors

199 Bay Street

Sui

te 4000, Commerce Court West

Toronto ON M5L 1A9

R. Seumas M. Woods LSO 4301691

Tel:

416-

863-

3876

s eum

as.w

oods

@bla

kes.

com

Erin Moult LSO #54002C

Tel:

416-863-4011

Fax:

416-863-2653

e [email protected]

Lawyers for

the plaintiff

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8 8 8 8

9 9 9 9

10 10 10 10

11 11 11 11

12 12 12 12

13 13 13 13

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15 15 15 15

16 16 16 16

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for the efficient administration of these proceedings, in the event that there is insufficient liquidity

in the defendants' estates.

AFFIRMED BEFORE ME at the City of Toronto, in the Province of Ontario on September 7, 2018

21

Commissioner for Taking Affidavits (or as may be)

S'Oritioth

/ r TIM RUTHE 'ffi RD

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for the efficient administration of these proceedings, in the event that there is insufficient liquidity

in the defendants' estates.

AFFIRMED BEFORE ME at the City of Toronto, in the Province of Ontario on September 7, 2018

21

Commissioner for Taking Affidavits (or as may be)

S'Oritioth

/ r TIM RUTHE 'ffi RD

21 21

Tab 2A

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23 23 23 23

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25 25 25 25

26 26 26 26

27

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ENTERED AT / 1NSCRIT A TORONTO ON / BOOK NO: LE / DANS LE REG!STRE NO:

AUG 10 2018

PER / PAR:

27

- 5 -

ENTERED AT / 1NSCRIT A TORONTO ON / BOOK NO: LE / DANS LE REG!STRE NO:

AUG 10 2018

PER / PAR:

27 27

28 28 28 28

29 29 29 29

Tab 2B

This is Exhibit "B" referred to in the Affidavit of

TIM RUTHERFORD

Affirmed before me this 7th day of September, 2018

A Commissioner, etc.

txKie I SL,i4.4 A

31

This is Exhibit "B" referred to in the Affidavit of

TIM RUTHERFORD

Affirmed before me this 7th day of September, 2018

A Commissioner, etc.

txKie I SL,i4.4 A

31 31 31

32 32 32 32

33 33 33 33

34 34 34 34

Tab 2C

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Tab 2D

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Tab 2E

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ONTARIO SAMEH SADEK also known as SAM SADEK, ST. … › sites › default › files › ... ·...

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