AFF 1 of Bennett - Hordo Bennett Mounteer LLP

Transcription

This is the r'Affidavit
of Paul Bennett in this case
and was made on 13May12014
No. S-121627
Vancouver Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA
Between
LAWRENCE BRIAN JER, JUN JER AND JANETTE SCOTT
Plaintiffs
and
RASHIDA SAMJI, RASHIDA SAMJI NOTARY CORPORATION, SAMJI &
ASSOC. HOLDINGS INC., ARVINDBHAI BAKORBHAI PATEL aka ARVIN
PATEL, COAST CAPITAL SAVINGS CREDIT UNION, COAST CAPITAL
INSURANCE SERVICES LTD., TORONTO-DOMINION BANK, ROYAL
BANK OF CANADA, VANCOUVER CITY SAVINGS CREDIT UNION AND
WORLDSOURCE FINANCIAL MANAGEMENT INC.
Defendants
Brought under the Class Proceedings Act, R.S.B.C. 1996, C. 50
AFFIDAVIT
I, Paul R. Bennett, barrister and solicitor, of Vancouver, British Columbia, SWEAR THAT:
Introduction
1.
I am a lawyer with the firm Hordo Bennett Mounteer LLP, co-counsel to the representative
Plaintiffs in this proceeding, and as such I have personal knowledge ofthe matters deposed to in
this affidavit except where stated to be on information and belief in which case, I verily believe
them to be true.
Background
2.
This class action arises out of a Ponzi scheme known as the "Mark Anthony Investmenf
operated by a notary public, Rashida Samji ("Samji"), between about 2003 and January 2012.
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-23.
This action was certified on September 10, 2013, on behalf of the following class:
All persons, other than the Defendants, who have provided funds to invest
in the "Mark Anthony Investment" scheme promoted by Samji and who
have received payments fi:om the scheme which are lesser in total amount
than the total principal amount they invested (the "Class").
4.
The representative plaintiffs have reached a partial settiement of the case with the
defendants Royal Bank of Canada ("RBC") and The Toronto Dominion Bank ("TD") (collectively,
the "Banks").
5.
The action is ongoing against the other Defendants. The Plaintiffs have no signed
seti;lement agreements with Rashida Samji, Samji Notary Corp., Samji & Assoc. Holdings Inc.,
Arvin Patel, Coast Capital Savings Credit Union, Coast Capital Insurance Services Ltd.,
Worldsource Financial Management Inc. and the Society ofNotaries Public of British Columbia
("Non-Settiing Defendants").
6.
As described below, the settlement was reached after extensive document and oral
discovery, and protracted, difficult negotiations.
Conduct ofthe Litigation
7.
The action was filed on March 2,2012 against Samji, Samji Notary Corporation and Samji
& Assoc. Holdings Inc. (collectively, "Samji Defendants"), Arvin Patel, Coast Capital Savings
Credit Union and Coast Capital Insurance Services Ltd. (together, "Coast Capital").
8.
The Honourable Madam Justice Gerow was assigned as case management judge on April
25,2012.
9.
This action was not the only action arising out ofthe "Mark Anthony Investment" scheme.
In addition to the proposed class action, more than fifty other lawsuits were filed by various
investors against overlapping defendants. The majority of these actions were brought by the law
firm Hamilton Duncan Armstrong & Stewart ("HDAS"). Throughout the proceeding, these actions
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were case managed together with this action by Justice Gerow. These actions added significant
complexity to the matter.
10.
On May 15,2012, the Plaintiffs applied to add an additional representative plaintiff (Janette
Scott), to add RBC and TD as defendants, and to amend their pleadings to assert claims of breach
of trust and negligence against TD and RBC for negligent processing of trust instiranents, knowing
assistance in breach of trust and negligent failure to investigate. As fiirther described below, the
claims were based upon the repeated processing of cheques and other instruments dravm 'in trust'
into the Samji Defendants' non-trust accoxmts at the Banks.
11.
Also on May 15, 2012, the Plaintiffs made an application for pre-certification production
of documents from a third party, the British Columbia Securities Commission. The Securities
Commission had seized and made copies of records from Samji's office, and production of these
documents was necessary for the prosecution ofthe action.
12.
The first case management conference was held before Justice Gerow on May 28, 2012.
Both the orders adding parties and granting the third-party document production request were
granted at that time.
13.
Following review of the documents obtained by the Plaintiffs from the Securities
Commission, the Plaintiffs applied on August 9,2012 to add Vancouver City Savings Credit Union
("Vancity") as an additional defendant, alleging the same claims as against the Banks. The
Plaintiffs also applied at this time to add Worldsource Financial Management Ltd.
("Worldsource"), the financial services firm for whom Patel worked as agent, selling mutual funds,
and which provided backroom clearing for Coast Capital. Those orders were granted on August
22, 2012.
14.
On September 21, 2012, the Plaintiffs amended their pleadings to include claims of
conversion against the Banks, Vancity and the Samji Defendants.
15.
To push this litigation forward. Plaintiffs' counsel requested at a case management
conference on September 24, 2012 that dates be set both for the hearing of the Plaintiffs'
application to certify the action as a class proceeding and for the trial ofthis action and several of
the other individual actions which had been commenced by HDAS. Counsel were directed at the
-4
case management conference to provide their available dates for a certification hearing in the
spring of 2013 and for a trial in the spring of 2014.
16.
Counsels' available dates were submitted by electronic request and the Registry advised
on October 10, 2012 that the certification hearing had been set for April 15, 2013 for five days.
The Notice of Application for certification was subsequently filed by the Plaintiffs on November
7, 2012.
17.
At a case management conference held on November 13, 2013, as a result of dates
canvassed with counsel and the Registty, Madam Justice Gerow directed that the trial ofthis action
be set for May 26, 2014 for six weeks. The Plaintiffs filed their Notice of Trial on November 16,
2012.
18.
On December 5, 2012, the Samji Defendants made an assignment into bankruptcy.
19.
On January 18, 2013, the Plaintiffs applied for a lifting ofthe BIA stay against the Samji
Defendants for the purpose of certification. That order was granted by Justice Gerow on January
31, 2013 at a further Case Management Conference.
20.
After reviewing materials provided by Vancity, the Plaintiffs sought leave from the Court,
by way of Notice of Application dated March 6, 2013, to discontinue the claims against Vancity
which were based on the repeated processing of 'in trust' instruments, as it appeared from
documents provided by Vancity that that financial institution had not permitted such instruments
to be so deposited.
21.
The Plaintiffs delivered their Memorandum of Argument for Certification on March 14,
2013. The Defendants delivered their Response submissions on April 5, 2013. The Plaintiffs filed
their Reply submissions on April 12, 2013.
22.
The certification application was heard before Justice Gerow from April 15 to 19, 2013.
Certification was contested by all the Defendants except for the Samji Defendants.
23.
At the beginning ofthe certification hearing, the Society ofNotaries Public of British
Columbia appeared and asked to be added as a Defendant, with liberty to make submissions on
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certification. That order was granted, and additional submissions were delivered in writing on
April 26, May 3, and May 8, 2013.
24.
A central focus ofthe Banks' and Vancity's argument against certification was that claims
asserted for negligent failure to investigate and negligent processing of 'in-trust instruments' were
novel and did not disclose a cause of action, and that the claims of conversion were bound to fail.
25.
This action was certified as a class proceeding against all of the Defendants by Justice
Gerow on September 10, 2013: Jer v. Samji, 2013 BCSC 1671. Twenty-six common issues were
certified. The Court also approved a Case Management Plan.
26.
On October 21, 2013, the Plaintiffs again applied to amend their pleadings, in order to
particularise their claims against the Defendants, and to reflect the evidence provided by some of
the Defendants in response to the certification application, as well as to set out pleas regarding the
Notaries' Society. The order sought was granted on November 12, 2013.
27.
Notices of Appeal from the certification decision were filed by RBC, TD, Vancity, and
Worldsource on October 10, 2013. The Notaries' Society filed its Notice of Appeal on October
31,2013.
28.
On October 17, 2013, the Banks and Vancity brought a motion in the Court of Appeal for
a stay of proceedings pending determination ofthe appeals. The Plaintiffs opposed the motions for
a stay.
29.
On October 29, 2013, in Court of Appeal Chambers, Justice MacKenzie directed that any
motion for a stay was to be brought before the case management judge in this Court.
30.
On November 1, 2013, the Banks and Vancity filed Notices of Application in this Court
seeking materially the same relief as they had sought in the Court of Appeal. The Plaintiffs again
opposed the relief sought, and an agreement was reached between the parties that made certain
adjustments to the Case Management Plan in order to accommodate expedited appeals by the
appealing Defendants.
31.
On December 2, 2013, the Plaintiffs applied to lift the BIA stay against the Samji
Defendants for the purpose ofthe action. That order was subsequently granted on March 6, 2014.
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-632.
Factums were filed by the Banks, Vancity and the Notaries' Society in December 2013,
and the Plaintiffs delivered their responses on January 13,2014. Worldsource abandoned its appeal
prior to the hearing.
33.
The appeals were heard on January 27,2014 before Garson, MacKenzie and Willcock JJ.A.
The decision was reserved.
34.
The central focus ofthe appeals was whether the Plaintiffs' pleadings disclosed a cause of
action for negligent failure to investigate, negligent processing of 'in-trust' instruments, knowing
assistance in breach of trust by a bank, and conversion of trust funds by financial institutions.
35.
The Court of Appeal issued its judgment on March 28, 2014. With the exception of the
claims in conversion and common issues 19 and 20, which were de-certified, and the dismissal of
the claims against Vancity, the certification was upheld by the Court of Appeal. The Court of
Appeal concluded that the negligence claims and the knowing assistance claims were not bound
to fail.
36.
In the interim, and between September 10,2013 andMay2014, various pre-trial steps were
taken:
(a)
Jun Jer was examined for discovery by Coast Capital on February 3, 2014;
(b)
Larry Jer was examined for discovery by Coast Capital on February 4 and 5, 2014;
(c)
Larry Jer was examined for discovery Worldsource on February 25 and 26, 2014;
(d)
Jun Jer was examined for discovery by Worldsource on February 27, 2014;
(e)
Janette Scott was examined for discovery by TD on March 12, 2014;
(f)
Larry Jer was examined for discovery TD on March 25, 2014;
(g)
The Plaintiffs discovered a representative of TD on March 11, 2014;
(h)
The Plaintiffs discovered Samji on March 20, 2014;
(i)
The Plaintiffs discovered a representative of RBC on March 31,2014;
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-7-
(j)
The Plaintiffs produced five Lists of Documents (up to May 10,2014);
(k)
The Defendants collectively produced more than 10,000 documents, consisting of
tens of thousands of pages, in addition to the materials produced by the Securities
Commission, which included thousands more documents;
(1)
Trial briefs and witness lists were filed by the parties at the end of April 2014; and
(m)
Pre-trial preparations with respect to the claims against the Banks were continued
up to the signing ofthe Settlement Agreement.
37.
The action is set for trial ofthe common issues beginning May 26, 2014 for six weeks
before Justice Gerow.
38.
In addition to trial preparation, Class Counsel also took steps to protect the interests of
Class members in the related bankruptcy proceedings of the Samji Defendants. In particular,
counsel filed aggregate claims on behalf of the Class, attended creditors' meetings, filed
applications and materials to secure recovery for Class members, and Mathew Good, of our firm,
acted as a bankruptcy inspector as representative ofthe Class, which has been a significant time
commitment.
Notice and Opt-in/out Period
39.
Notice of Certification was given by Class Counsel in Fall 2013, by mail to the last-known
address for each Class Member,
and by posting on Class Counsel's website at
www.samiiclassaction.com, and by email for those Class members for whom Class Counsel had
email addresses.
40.
The opt-in period (for non-residents) and the opt-out period (for BC residents) for the Class
expired on January 14, 2014.
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Class Losses
41.
Following the end ofthe opt-out period, the make-up ofthe Class and investors' losses is
knovm v^th a great deal of certainty, to a degree unusual in most class proceedings.
42.
Investors signed "Letters of Direction" with Samji in order to invest in the "Mark Anthony
Investment" scheme. Those letters included addresses of investors, which the parties used to
identify Class Members.
43.
Under the Case Management Plan, the parties and HDAS jointly retained Grant Thomton
LLP in March 2013 to produce an expert report on the losses of investors in the "Mark Anthony
Investment" scheme. Based on materials produced by the various financial institutions and the
Securities Commission, the losses of investors' principal amounts are knovra with a relatively high
degree of certainty. A copy ofthe joint expert report is attached as Exhibit "A". A table setting
out the losses of Class members only is attached as Exhibit "B".
44.
The total net loss ofthe Class Members from the Mark Anthony Investment is estimated
to be $26,648,916.11 before pre-judgment interest, and the losses of Class Members who have
claims only against the Banks, and not against the Defendants Coast Capital, Arvin Patel and
Worldsource, is estimated to be $23,496,416.11 before pre-judgment interest.
The Claims against the Defendants
45.
46.
The certified claims against the Banks are as follows:
(a)
Knowing assistance in breach of trust;
(b)
Negligent processing of in-tmst instruments; and
(c)
Negligent failure to investigate.
The representative Plaintiffs asserted the following facts as against RBC:
(a)
At all material times, RBC knew that Samji was a notary public and that she carried
on her notarial practice under the name "Samji & Associates";
9(b)
At RBC, Samji held:
(i)
a trust account for her notary corporation that was opened December 29,
2000 and closed March 10, 2006 (the "Notaries Trust Account");
(ii)
an operating account for her notary corporation that was opened January 31,
1996 (the "Operating Account"); and
(iii)
(c)
personal accounts.
Between 2004 and 2010, approximately $70,000,000 in investors' funds flowed
through Samji's notarial accounts at RBC;
(d)
Samji was a valued customer at Branch 6520 and was extended many courtesies
and opportunities by RBC employees;
(e)
Between about 2003 and March 2006, Samji used the Notaries Trust Account to
operate the fraud;
(f)
In March 2006, in order to avoid an audit of the Notaries Trust Account by the
Society ofNotaries that would have led to the discovery ofthe fraud, Samji abruptly
requested that RBC close the Notaries Trust Account;
(g)
RBC prepared and issued the requested the letter to the Notaries' Society stating
that the Notaries Trust Account had been closed;
(h)
Samji then switched the activity she had been rurming through the Notaries Trust
Account into the Operating Account, which up until that time had minimal
transactions running through it, and no trust transactions;
(i)
Within weeks of closing the Notaries Trust Account, Samji presented instruments
payable for hundreds of thousands of dollars in trust for deposit into the Operating
Account, which had previously never occurred;
-10
(j)
From then until April 2010, Samji continued to deposit and withdraw a large
amount of investor ftmds into her general account at RBC including the deposit of
instruments made payable in trust;
(k)
In November 2009, RBC became concerned about the transactions in the Operating
Account and began an intemal review ofthe account and issued several FINTRAC
reports conceming transactions in the account; and
(1)
In April 2010, due to concems regarding the transactions in the Operating Account
RBC requested further information ftom Samji, in particular information regarding
the nature of her business and questioning her practice of making large cash
withdrawals. These inquiries prompted Samji to move her banking related to the
scheme to TD and Vancity.
47.
As against TD, the representative Plaintiffs asserted:
(a)
At all material times, TD knew that Samji was a notary public, and that she carried
out her notarial practice under the name "Samji & Associates";
(b)
In April 2010, Samji opened an account in the name of Samji & Assoc. Holdings
Inc. ("Samji Holdings") at TD. The account was not a trast account;
(c)
Between April 2010 and January 2012, the total volume of transactions through
Samji Holdings' account at TD was approximately $32,000,000;
(d)
Although it was not a trust account, more than 1/3 ofthe deposits into the account
by Samji were instruments drawn in-trast, and which TD permitted Samji to deposit
into the non-tmst account;
(e)
At all material times, TD had in place policies for the operation and classification
of trast accounts, including for notaries. The Samji Holdings' account was not
identified as a trust account. Nevertheless, TD permitted trast instraments to be
deposited by Samji into that ordinary operating account until the fraud was exposed
by Coast Capital in January 2012;
-11(f)
Upon the opening ofthe Samji Holdings' account, the branch employees did not
subject the account to enhanced due diligence; and
(g)
TD did not record "Samji & Associates" as a trade name for Samji Holdings, but
still allowed the majority of instruments made payable to "Samji & Associates" to
be deposited into Samji Holdings' account vwthout endorsement, despite the
knowledge that "Samji & Associates" was actually the name of Samji's notarial
practice.
Settlement Negotiations/Mediation
48.
On April 17 and 18, 2014, the parties attended a two-day mediation (which also included
the remaining individual actions). Prior to the mediation, the parties exchanged mediation briefs.
49.
The mediation was conducted by the Honourable Marion Allan. The mediation was
intensive, and ran late into the evening on the second day. The mediation concluded without any
agreement reached, despite the considerable effort expended by the parties.
50.
Negotiations between the Plaintiffs and the Banks continued in the weeks following the
mediation, while trial preparations continued apace. A settlement agreement was finally signed on
May 6, 2014, just 20 days before trial.
51.
The negotiations were at all times arm's length, difficult and contentious.
Partial Settlement with RBC and TD
52.
The representative Plaintiffs and Class Counsel have signed a settlement agreement with
RBC and TD ("Settiement Agreement"). Pursuant to the terms of the Settlement Agreement,
signed May 6, 2014, the Banks will collectively pay the agreed amount into a settlement fund for
the benefit of Class members in exchange for discontinuance ofthis action on a BC Ferries basis.
The amount of the settlement is confidential and will be disclosed to the Court at the hearing of
the settlement approval application. The amount of the settlement has been provided to Class
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-12members by way of direct notice. A copy of the Settlement Agreement, redacted with respect to
the financial terms ofthe settiement, is attached as Exhibit "C".
53.
The key terms of the settlement agreement are as follows:
(a)
Within 14 days ofthe expiry after the day on which all appellate rights with respect
the approval order have expired or been exhausted, the Banks will pay the total
settlement funds to Hordo Bennett Mounteer LLP in trast. Those funds will be held
in trast by our firm, in an interest-bearing account, pending approval of the
distribution plan, and distribution to Class members;
(b)
the Settlement Agreement represents no admission of liability on behalf of the
Banks;
(c)
upon approval ofthe Settlement Agreement by the Court, a discontinuance will be
applied for in the action as against the Banks;
(d)
the Class members covenant not to bring or pursue anyftartherlegal action related
to the "Mark Anthony Investment" against the Banks; and
(e)
the Banks release and discharge all Class members from any action that has, or
could be, brought against the Class members in relation to the "Mark Anthony
Investmenf, with the exception of any funds borrowed by Class members from the
Banks to invest in the "Mark Anthony Investment".
Proposed methodology to determine claims
54.
Attached as Exhibit "D" is an outline ofthe Settiement Administration Plan proposed by
the Plaintiffs. A further hearing will be held to approve a comprehensive Settlement
Administration Plan, and notice of that hearing will be provided to Class Members.
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Notice and Objections
55.
A Notice of Application for approval of the notice of settlement was filed by the Plaintiffs
on May 8, 2014. That notice and the notice plan was approved by Chief Justice Hinkson on May
9, 2014. Justice Hinkson ordered that notice be posted on Class Counsel's website at
www.samiiclassactioii.com, and sent by courier to the last known address for each Class member,
and by email to those Class members for whom Class Counsel had email addresses.
56.
Notice ofthe settiement approval hearing was provided to Class members by direct mail
and email as of May 9, 2014, and posted on the website maintained by Class Counsel at
www.samiiclassaction.com.
57.
There are six Class members for whom Class Counsel have not been able to locate an
address: Dilshad Jaffer, Mobina Jamal, Nurdin and Nasim Jesani, Rozina Jesani and Rahim
Meghji.
Factors Considered/Litigation Risk
58.
The claims advanced against the banks were novel. The primary theories advanced were
that the Banks were negligent in permitting trast instruments to be deposited into non-trast
accounts, and that the Banks had a duty to investigate suspicious banking activity by Samji. There
are no decided cases which hold a financial institution liable to fraud victims in analogous
circumstances.
59.
The duty to investigate alleged by the Plaintiffs in this case was based upon the knowledge
ofthe Banks ofthe repeated deposits of cheques payable to Samji's notary corporation in trast to
non-trast accounts. Similar allegations were previously determined as not being bound to fail in
Eaton V. HMS Financial Inc., 2008 ABQB 631 and in Pardhan v. Bank of Montreal, 2012 ONSC
229, leave to appeal denied 2013 ONSC 355. However, in Dynasty Furniture Manufacturing v.
Toronto Dominion Bank, 2010 ONSC 436, affd 2010 ONCA 514 the court held that there was no
general duty on banks in opening accounts to ensure that the accounts would not be used for
unlawful purposes. Also, in Groves-Raffin Construction Ltd. v. CIBC, [1975] B.C.J. No. 1173
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-14(C.A.), the Court of Appeal held that a bank owes no duty in negligence to a non-customer ofthe
bank, with respect to the processing of that person's cheques.
60.
The Banks relied heavily on s. 437 ofthe Bank Act, as negating any duty upon them with
respect to depositing trust cheques into trast accounts. Although courts have recognized that there
are limits on a bank's immunity from liability imder s. 437 ofthe Bank Act in the handling of trast
funds, the scope of those limits and the grounds for imposing liability are substantially unsettled.
61.
In the assessment of Class Counsel, this case involved considerable risk on the issues of
proximity, standard of care and causation. In particular:
(a)
there is considerable uncertainty as to whether the Banks owe a duty of care to nonclients in circumstances where the Banks are simply processing cheques and other
negotiable instruments;
(b)
issues of duty to care and proximity are heightened where, as here, the claims are
for pure economic loss;
(c)
the standard of care required of a Bank in these circumstances is not defined by the
case law;
(d)
to the extent that the standard of care is defined by regulatory standards, it was
arguable that the Banks complied with these standards by filing suspicious
transaction reports with the federal financial monitoring agency FINTRAC; and
(e)
even ifthe Banks had a duty to investigate Samji, it was unclear whether this duty
required them to report her to an investigative body such as the RCMP or Securities
Commission. Absent such a duty, the representative plaintiffs faced significant
causation issues as mere investigation of Samji may not have terminated the Ponzi
scheme.
62.
In light ofthe novel nature ofthe claims against the Banks, Class Counsel was ofthe view
that there was a significant risk that if these claims were litigated, the claims might fail and the
Class members who had only claims against the Banks would receive no compensation from the
litigation in respect of their $23-million loss.
-1563.
In addition, there was also a significant risk of contributory negligence with respect to the
claims against the Banks. In particular, the recent precedent in Brausam v. Roland, 2011 BCSC
1349 indicated that a court could assess a substantial amount of contributory negligence against
plaintiffs who lost monies investing an investment scheme that tumed out to be fraudulent. In
Brausam, as here, the plaintiffs invested in a scheme that tumed out to be a Ponzi scheme. In
finding that the plaintiffs were 40% contributorily negligent for their loss, the Court summarized
the situation as follows: "To put it colloquially, if something seems too good to be trae, it probably
is" (at para. 62).
64.
This risk of potentially significant contributory negligence, together with the significant
litigation risk presented by the novelty of the claims against the Banks, had a substantial impact
on the litigation value ofthe claims against the Banks for settiement purposes.
65.
In addition, for those Class members who invested in the Mark Anthony scheme on the
recommendation of their investment advisor Patel, and therefore had claims against him, Coast
Capital and, in most cases, Worldsource, in addition to their claims against the Banks, Class
Counsel was ofthe view that their potential recovery from the Banks was further minimized as a
result ofthe likely apportionment between the Banks and the other Defendants that would result
upon a finding of contributory fault.
Class Counsel were of the view that in any such
apportionment, a substantial degree of fault would be attributed to their investment advisor Patel,
thereby minimizing the extent to which these Class members could recover from the Banks.
66.
In addition to these risks, the Class faced the usual litigation risks including the prospect
of serial appeals, the risk of substantial delay, and the need to conduct individual trials following
the trial of the common issues in order to prove up their respective damages claims against the
Banks.
Recommendation of Counsel
67.
Taking into account the risks inherent in this action and the benefits to the Class from the
settlement. Class Counsel recommend the settlement as fair, reasonable and in the best interests of
the Class.
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Fee Arrangement
68.
Pursuant to a retainer agreement signed on Febraary 9, 2012, our firm was retained by
Larry and Jun Jer to pursue a class proceeding in respect ofthe investments they and others made
in the "Mark Anthony Investmenf scheme. A copy of that retainer agreement is attached as
Exhibit "E".
69.
After this action was commenced, our firm was contacted by the firm of Camp Fiorante
Matthews Mogerman, who had been approached by a group of investors in the "Mark Anthony
Investmenf scheme about commencing a class proceeding in respect ofthe scheme. As a result of
discussions between our respective firms, the Jers and other potential class members, it was agreed
that Camp Fiorante Matthews Mogerman would be part ofthe counsel team for this action. It was
also agreed that the fee terms of the retainer agreement would be varied to provide that Class
Counsel would receive up to a maximum of 25% of the value of any settiement obtained at any
time up to 60 days before trial, and up to a maximum of 33/4 %> ofthe value of any settlement or
judgment obtained thereafter.
70.
As stated above. Class Counsel considered it necessary to add the Banks to the action, and
considered it was appropriate to have a representative plaintiff who had written a cheque intrast
for that purpose. We had been contacted by Janette Scott, who agreed to act as such a representative
plaintiff
71.
As this settlement was reached within 60 days of trial. Class Counsel propose that legal
fees payable for this partial settlement ofthe action be set at 30%) ofthe Settlement Fund.
Legalfees and disbursements
72.
This action was jointly prosecuted by the firms of Hordo Bennett Mounteer LLP and Camp
Fiorante Matthews Mogerman ("Class Counsel"). The time spent by Class Counsel on this matter
was recorded in accordance v^th normal practice where time-based fees are billed. The value of
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17
the time recorded on this matter, at the firms' standard hourly rates in effect the time the services
were provided, up to May 9 (CFM) and May 10 (HBM), 2014 is as follows:
Hordo Bennett Mounteer LLP ("HBM")
$1,009,053.00
Camp Fiorante Matthews Mogemian $476,821.80
("CFM")
TOTAL:
73.
$1,485,874.80
The total includes the following hours spent by the following lawyers, with their current
hourly rates:
Paul R. Bennett (HBM)
1126.90 hours
$500 per hour
308.8 hours
$525 per hour
126.80 hours
$600 per hour
135.9 hours
$575 per hour
1029.60 hours
$275 per hour
251.3 hours
$225 per hour
692.1 hours
$175 per hour
217.2 hours
$200 per hour
(1988 call)
Reidar Mogerman (CFM)
(1997 call)
R.J. Randall Hordo, Q.C. (HBM)
(1977 call)
Joe Fiorante, Q.C. (CFM)
(1989 call)
Mathew P. Good (HBM)
(2011 call)
Gabrielle White (HBM)
(2011 call)
Preston Parsons (CFM)
(2011 call)
Naomi Kovak (CFM)
(2013 call)
-1874.
I have been advised by the representative Plaintiffs Jers that they approve ofthe proposed
fee. Arrangements are in place to review the proposed fee with Ms. Scott.
75.
In terms of disbursements, Class Counsel have incurred costs of $67,302.79 to May 10,
2014, including tax. A schedule of these expenses is attached as Exhibit "F" to this Affidavit. The
significant expenses include:
(a)
The Class's share ofthe Grant Thomton joint expert report ($14,500.20);
(b)
Fees for the expert report of Dana Cameron (expert in retail banking practices),
with respect to liability ofthe Banks (approximately $12,000);
(c)
Charges for court reporters and transcripts (approximately $8,300);
(d)
The Class's share ofthe expenses for the mediator ($6,266.17) and the mediation
facilities ($1,301.63);
(e)
Fees for a financial institution security consultant, with respect to the liability of
the Banks (approximately $6700); and
(f)
76.
Court filing fees (approximately $650).
It is my opinion that all these disbursements were reasonable and necessary for the conduct
of the action. Class Counsel do not propose to charge any interest on the disbursements, as
provided for in the retainer agreement.
Compensation to the Representative Plaintiffs
11.
Class Counsel propose that as part ofthe application for approval ofthe Settlement and of
the legal expenses relating to this action, this Court approve a payment of compensation to the
representative Plaintiffs in this action for the services they have provided and the contributions
they have made for the benefit ofthe Class.
http://sharepoint.hbmlaw.com/3660/000Draft/3660P/PLEA0142-PB AFF 1 (settlement),docx
-1978.
Mr. Jer first contacted our office in March 2012 upon learning that the "Mark Anthony
Investmenf scheme was a Ponzi scheme. He contacted our firm because he believed that a class
action was necessary to pursue recovery on behalf of all the victims ofthe scheme, and not only
on behalf of himself and his wife, Ms. Jer.
79.
Ms. Scott stepped forward so that the Class could bring claims against the Banks, which
claims would not otherwise have had the benefit of her evidence.
80.
The representative Plaintiffs played an active role in the prosecution ofthe action. Each of
the representative Plaintiffs provided affidavits in support of certification, and various
interlocutory steps in the proceeding. They were each examined for discovery by the Defendants:
Mr. Jer was examined on five separate days and Ms. Jer was examined on two separate days. The
representative Plaintiffs also produced significant personal information through the discovery
process, including almost ten years' worth of tax and investment information.
81.
In order to help promote investors' interests, Mr. Jer also volunteered for and served on the
"Receiver's Committee" strack by the Receiver, Patty Wood of MNP Ltd., in the related
receivership proceedings.
82.
The representative Plaintiffs each attended the two-day mediation, which took place during
the work week. They also made themselves available on multiple occasions in the following weeks
in order to instract counsel on behalf of the Class about the settlement discussions.
83.
ft
is my opinion that Mr. Jer, Ms. Jer and Ms. Scott have diligently discharged their
responsibilities as representative Plaintiffs. They have incurred burdens for the benefit ofthe Class
that they would not have been required to bear had they chosen to leave it to others to advance this
action as representative plaintiff.
-20-
84.
Class Counsel propose that the representative Plaintiffs each be paid $5,000 as honoraria
for their services and contributions as representative Plaintiffs, to be paid as a disbursement.
SWORN BEFORE ME at New
Westminster, British Columbia, on
13/May/2014.
-i^" "~"Taufk. Bennett
Mark W. Mounteer
A Commissioner for taking
Affidavits for British Columbia
http://sharepoint,hbmlaw.com/3660/000Draft/3660P/PLEA0142 - PB AFF 1 (settlement),docx
This is Exhibjl"//" asjeferred to in the
affidavit of mni
i2
f&n/wti'''
sworn before me at Vancouver, B.C.
this J i £ ^ a y of ffMiil
20//
GrantThornton
May 31, 2013
Pdvileged
&
ConEdential
GowHng Lafleur Henderson LLP
550 Burrard Street,
Suite 2300, BentaU 5
Vancouver, BC V6C 2B5
Grant Thornton LLP
Suite 1600, Grant Thornton Place
333 Seymour Street
Vancouver, BC
V6B 0A4
T (604) 687-2711
F (604) 685-6569
www.GrantThornton.ca
Attention: Mr. Shayne Strukoff
Hordo Bennett Mounteer LLP
1400 - 128 West Pender Street
Vancouver, BC V6B 1R8
Attention: Mr. Paul Bennett
Dear Sirs:
Re: Forensic A c c o u n t i n g Review - Lawrence Brian Jer, J u n e Jer a n d J a n e t t e
Scott ("the Plaintiffs") v Rashida Samji et al ("the Defendants")
Vancouver Registry N o . S-121627
We were engaged as independent forensic accountants joinfly on behalf of the Plaintiffs
and the Defendants (coUectively, "our Joint Clients") in the referenced matter. For
greater certainty, the Plaintiffs category also includes various parties represented by
Hamilton Duncan Armstrong & Stewart in various other actions against the
Defendants, not specifically stated above.
Summary
We were engaged to perform independent forensic accounting procedures to assess the
accuracy of the schedules prepared by Royal Bank of Canada ("RBC") personnel. The
personnel from RBC's Corporate Investigation Services compiled a data base and
prepared schedules relative to receipts and disbursements in various bank accounts
(including others distinct from RBC) associated with Ms. Rashida Samji ("Samji") and
her client investors. The RBC personnel prepared a summary schedule which included
the identities of cUent investors and the identified funds paid to and from the client
investors with respect to the aUeged Samji investment scheme for the years 2002 to
2012. The RBC summary schedule effective May 31, 2013 is attached as T a b 1.
Our role, more specificaUy, was to independenfly assess:
1. the methodology utiUzed by RBC personnel in their forensic accounting review
of the avaUable Samji accounts; and
Audit • Tax • Advisory
GrantThornton LLP, A Canadian Member of Grant Tiiornton intemalionai Ltd
z
GrantThornton
Jer et al v Samji et al
May 31, 2013
-
Page 2
2. the relative accuracy of the amounts aUocated to specific client investors in the
RBC data base and schedules.
Our independent review of the RBC work was to focus on the transactions already
identified by RBC as client investor-related and to utilize sampMng methodologies to
test the accuracy ofthe RBC aUocations and schedules. It was understood that our
independent review would not address the completeness of the RBC work given that
we were restricted to a review of the akeady identified investor transactions only and
we were utilizing sampUng techniques rather than tracing and verifying aU transactions.
In the course of our review, we observed that RBC personnel had prepared a data base
relative to the receipts and disbursements in various bank accounts (including accounts
distinct from RBC) associated witii Ms. Samji and her cUent investors. We further
observed that the data gathered by RBC personnel included the identities ofthe cUent
investors and the amounts and timing of funds paid to and from the cUent investors
with respect to the Samji bank accounts.
Our assessment is that the forensic accounting procedures described to us by RBC
personnel were reasonable in the circumstances. The RBC procedures and the results
of those procedures were subject to certain limitations encountered by RBC personnel
and various assumptions made by them. We have included a description provided to us
of the RBC methodology and their limitations and assiomptions below in "Assumed
Facts".
The RBC schedule in T a b 1 summarizes the data base compUed by RBC personnel.
The data base was prepared from the known and available Samji bank accounts and
consists of 14,357 transactions (the sum of both debits/payments, and credits/receipts)
and totals $277,537,736 (see T a b l e 2 below in "Observations" for a furtiier breakdown
of these amounts by category).
From the population of aU 14,357 transactions, RBC personnel identified a client
investor population with 7,496 transactions totaUing $209,880,141 of combined
payments and receipts ($99,499,171 of payments and $110,380,970 of receipts).
Our sampUng procedures and statistics are described more fuUy below. However, we
examined in detaU 485 transactions totaUing $23,940,145 (payments of $10,993,926 and
receipts of $12,946,219) or approximately:
®
•
6.5% of aU cUent investor transactions (3% of aU transactions), or
11.4% of all cUent investor payments and receipts (9% of aU payments and
receipts).
Our findings, with respect to the sampUng, were as foUows:
Grant Thornton LLP, A Canadian Member of Grant Thomton Intemaionai Ltd
GrantThornton
May 31, 2013
Page 3
1. We found no large errors in our samples. We did identify eleven (11) instances
where bank fees (totaUing $421) had not been properly adjusted in the
aUocation of funds to an investor. These constituted minor errors only. In
addition to these minor errors, RBC personnel advised us of a further 8
transactions which they subsequentiy discovered had also missed removal of
bank fees (totaUing $317), but for which they had now corrected their data base
and schedules. These additional errors were found by RBC in the portion ofthe
client investor population not tested by us. N o other errors relative to the
accuracy of the RBC schedules or data base were found.
2. We initiaUy found nineteen (19) transactions (totaUing $2,090,500) which were
identified as being "exceptions" for lack of "supporting documentation"\
Seventeen (17) of these transactions, upon further enquiry, had additional
supporting documentation provided to us. We await additional supporting
documentation or explanation for two transactions (totaUing $100,000).
In summary, in our sample the RBC procedures appear to have been foUowed as
described to us and we found no large errors. These findings are subject to the
restrictions, limitations and assumptions described in our Report.
As a result of these restrictions, limitations and assumptions, we have quaUfied our
Report and as such we cannot attest to:
1. the completeness ofthe aUocation of transactions made by RBC personnel to
the cUent investor category; or
2. the appropriateness of the aUocations made by RBC personnel to the other
non-cUent investor categories (the "potential investor" and "other
transactions" categories shown in T a b l e 2 in "Observations").
RBC personnel have identified other transactions which may be related to the cUent
investors already identified or additional cUent investors as yet unidentified. These
amounts are represented by several categories of transactions in the RBC schedules,
including cash and bank drafts, and are summarized below in T a b l e 2 in
"Observations". At this time, we are not aware of whether these "potential investor"
funds are related to the cUent investors or how they might be aUocated amongst the
cUent investors.
^ For the purposes of our sampling, we defined "supporting documentation" from both a quality and
quantity perspective. In terms of quaUty, we considered the nature, clarity and relevance of the
documents. This also extended to whether there were third party documents such as cheques, money
orders, bank drafts, wire confirmations, bank statements, or other such items. In terms of quantity, we
looked for a minimum of two or more agreeing records, which when taken/reviewed together, clearly
showed the payee/payor, date, and amount related to a specific transaction and supporting the RBC
classification. For pre June 2005 transactions, due to the bank record retention policies, we looked for a
minimum of at least one record clearly showing the payee/payor, date, and amount.
Grant Ttiornton LLP, A Canadian Member of Grant Thornton intemationai Ltd
14
GrantThornton
Jer e t a l v Samji etai
May 31, 2013
^^9®'*
Scope and Procedures
Our scope was Umited to reviewing and assessing the RBC metiiodology and to testing
the accuracy of their summary schedule for the years 2002 to 2012.
Our approach included, as deemed necessary, the foUowing:
1. Discussion with RBC personnel;
2.
Obtaining from RBC personnel a memorandiom documenting their scope,
procedures, assumptions and documents for review;
3.
Obtaining the RBC schedules and access to the relevant source documents,
including complete copies of the Samji bank account statements;
4.
Selecting a sample of transactions from the 7,496 transactions related to the 215
total chent investors for testing;
5. Reviewing, analyzing and verifying supporting documentary evidence for the
sample of transactions (see specific procedures described below in
"Observations"); and
6. Preparing our written report.
Assumed Facts fBackground)
We understand that Ms. Samji was a practicing notary pubUc, operating in the Lower
Mainland of British Columbia. We further understand that Ms. Samji is aUeged to have
operated a fraudulent investinent scheme commencing approximately in 2003 until her
suspension by the Society ofNotaries PubUc of BC in February 2012.
We were advised by RBC personnel that they commenced their investigation in 2012
and that flieir scope was restricted to their own internal bank records for Samji as weU
as the bank records provided to them by some ofthe other financial institutions known
to have accounts in the name of Samji. AdditionaUy they received copies of Samji
business records in electironic format from tiie British Columbia Securities Commission
('BCSC").
In flie course of performing their forensic accounting procedures, RBC personnel
experienced certain hmitations, most significantiy to us:
1. Due to record retention poUcies of the financial institutions, transactions predating June 2005 did not have fuU source documentation, meaning tiiese
transactions had Umited, if any, information as to source or use of funds on
account;
2. Most transactions were categorized on the basis of the payees or payors
involved in the Oransaction which may not have correctiy identified in every
instance flie true beneficiary ofthe funds (i.e. hinds may have been paid to one
party for the benefit of another party);
Audit'Tax .Advisory
GrantThornton LLP, A Canadian Member of GrantThornton intemationai Ltd
5"
GrantThornton
Jer et al v Samji et ai
May 31, 2013
Page 5
3. Transactions consisting of cash and bank drafts (amongst other "potential
investor" transactions — see T a b l e 2) were not identifiable as to specific
investors and were categorized simply as cash or drafts; and
4.
Several bank accounts were not included in the analysis or data base of RBC for
reasons beyond the control of the RBC personnel, including:
®
•
•
e
•
•
VanCity - account #174607 - Samji Notary Corp.
VanCity - account #143891 - Ms. Samji
CIBC - account #8002711 - Samji Notary Corp.
CIBC - account #8002819 - Rashida Samji, Notary Corp. Trust A / C
T D C T - account #3204407 - Rashida Samji
BMO - account #3067390 - Rashida Samji
With respect to the missing bank statements and support, we were advised that there
were very few transactions identified by RBC in the accounts in their possession which
intersected with these accounts. Notwithstanding this observation, there remains the
possibiUty that these accounts include additional cUent investors or cUent investor
transactions. SimUarly, the other limitations also present the opportunity for additional
cUent investors or chent investor transactions to exist. As such these limitations could
weU impact the results of any final accounting for the Samji investments.
The RBC procedures and assumptions were described to us in a March 5, 2013 memo
as foUows:
/.
RBC obtained / prepared transaction summariesfor the available activity in the accounts
listed in the attached schedule. For RBC accounts, this primarily consisted of electronic
transaction histories extractedfrom RBC computer systems. For non-RBC accounts, the
transaction histories were manually entered into spreadsheets. The total transaction values
were reconciled to the underlying account balances to check for completeness.
2.
The account histories were imported into a Microsoft A.ccess database.
3.
Supporting documentation (e.g., copies of cheques, items on deposit) for the vast majority of
bank transactions was obtained. The supporting documentation for RBC accounts was
obtained by retrieving images ofthe documentsfrom either microfiche or electronic records. The
supporting documentation for non-BJRC accounts was provided to R£>C's legal counsel by the
otherfinancial institutions. Supporting documentation for certaintypesof transactions (e.g.,
bank fees and service charges) was not obtained.
4.
The supporting documentation was reviewed and the following information (where applicable
and available) was manually entered into the database.
® Serial number— the number on the cheque or draft.
Audit. Tax • Advisory
GrantThornton LLP. A Canadian Member of Grant Thornton intemationai Ltd
t)
GrantThornton
Jer et ai v Samji et al
May 31, 2013
•
•
•
Page 6
Payor— The payor on the copy ofthe cheque or drcft that is being deposited, or the
payor of a wire that was being credited to the account The payor of cheques drawn on
the Samji accounts is, obviously, the account holder and this information was not
entered separately.
Tayee - The payee on the cheque or draft that was being deposited into the account,
or the payee on a wire that was being credited to the account The payee on the
cheque, draft or wire that was being debitedfrom the account
Reference - Any notation on the copy of cheque or draft, or details on the wire
® Fl- The financial institution of the payor (credit transaction) orpayee (debit
transaction).
5. Additional database fields ofmanually captured data included:
•
Common Name - This is the name ofthe investor or investor group - discussed
•
Samji Fist - Yes or No. This is to categorize ifthe investor is on the list of 203
names that was provided by Samji.
®
Comments - If it is unclear based on the payor, payee or reference information as to
which investor the transaction relates to, we've entered a comment in thisfield to
explain the reason for the allocation ofthis transaction to a particular investor.
® No Bank Stmt Trans Ace Number - For transactions that we do not have bank
account statements but we have identified this transaction based on other documents,
we have captured the bank account this transaction was completed in this field (to the
extent this information was available) - discussed below.
® Source — If it is unclear based on the payor, payee or reference information as to
which investor the transaction relates to, we've entered in the other source of
information used to help in the determination of transaction.
•
Source 2 — For those transactions that occurredpre-2005, we've indicated where the
information was found— e.g., BCSC document
6. The RBC review ofthe BCSC documentation (i.e. copies of cancelled cheques) identified a
small number of financial transactions occurring before June 2005 that were notpart ofthe
account histories, butfor which RBC have sufficient information to link to an investor. The
transactions were also included in the database.
7. All transactions in the database were categorit^d into one of the followinggroupings. Factors
used to determine the grouping included: the nature ofthe transaction, the payee/payor,
references on the cheque memo line, documentation in the BCSC productions, etc.
® Investor— Transactions we believe relate to an investor.
® Cash - Cash deposits or withdrawals. Many ofthe cheques that were cashed referred to
Grant Thomton LLP, A Canadian Member of Grant Thornton intemationai Ltd
GrantThornton
Jer et ai ¥ Samji et al
May 31, 2013
®
'^
Drafts - Bank drafts that were deposited andfor which we do not have sufficient
information to determine the purchaser of the drafts.
6
lawyer, notary, realty - These are transactions with lawyer, notay or realty trust accounts
We were unable to determine if these transactions relate to the investors, Samji's personal use
or her notary practice
Ofher - All other transactions that we have not been able to determine if it relates to the
®
investors, Samji's personal use or her notary practice
e
Brror- Errors captured in the bank statement There is a corresponding and equally
offsetting transaction, so there is no net inflow or outflow of funds.
8
Fees, charges, interest, etc - Fees and charges that were debitedfrom the bank accounts or
#
interest earned on the bank accounts
Term Investments - Term investments that were made with the funds from the hank account
and were credited back to the accounts with interest
e
Items < $1,000 - Source documentsfor transactions kss than $1,000 were generally not
obtained There are only 537 transactions that were categorized this way.
9
Items Retumed - Drafts, cheques that were retumed or cancelled There is a corresponding
and equally offsetting transaction, so there is no net inflow or outflow of funds
8.
The total number of transactions (by grouping contained in the database are as follow. ( N o t e
- these amounts were subsequentiy revised and are summarized below in T a b l e
2 in "Observations")
9.
All "Investor" transactions were allocated to a "Common Name", being an investor or group
of investors that seem to have been linked (i.e., spouses, family members, etc.). The R B C
analysis currently has approximately 218 (Note - this was later revised to 215)
Common Names, including the 203 Investors that Rashida Samji listed in her analysis. The
common name was primarily based on the payee!payor information on the transaction source
documents. In some instances, R B C utilised other information (such as information in the
BCSC documentation) to conduct this allocation.
10. Some ofthe assumptions used in preparing the analysis:
m
Documents such as copies of drafts and chequesfound in an investor'sfolder in the
BCSC documentation were considered related to that particular investor, and were
categorized accordingly in the database unless determined otherwise.
®
Transactions identified in investor schedules located in the BCSC documentation
relating to an investor were used to help identify transactions belonging to investors.
®
Referenced in database in Source.
If one payeeI company appeared to relate to only one investor, all transactions with
this payeeI company were allocated to the investor (E.g Other company owned by
•
an investor.) Explanations in Comments.
Schedules and emails in the BCSC documents that refer to cash payments that
appeared to match with a database transaction were categorized with the appropriate
investor.
8
GrantThornton
May 31, 2013
Pages
The RBC findings as at May 31, 2013 are summarized in their schedule included in T a b
1 and further summarized by us in T a b l e 2 in "Observations". The RBC summary
schedule is derived from the RBC data base which is extensive and too large to append
to our Report.
Documents
Our engagement, as described above, was Umited in scope to a review of a sample
selected by us from the transactions identified by RBC personnel as related to the 215
investors. We asked for and received copies ofthe avaUable Samji bank account
statements, including:
Table 1:
^:^:»:->^-<
.;\ :•.,.•::•., ;;vO;-
;.'jiyii:^•i
Wfi'iV
• wm
•
Royal Bank of Canada
Rashida Samji, Notary Corporation - Notaries General Trust
06520-1000835
June 30,2005-March 31,2006
Rashida Samji, Notary Corporation
06520-1001296
June 30,2005-January 31,2012
Rashida Samji & Rajesh Gajjar
05520-4508925
June 1,2005-May 31,2012
Rashida Samji
06520-5050083
June 1,2005-May 31,2012
06520-51???54
J une 15,2007-May 31,2012
05520-5111802
January 4,2006 - January 11,2007
Toronto Dominion Bank
Samji & Associates Holdings Inc.
9697-5209110
April 27,2010-February 1,2012
Vancity
Samji &Associates Holdings Inc.
225540 Branch 14
April 27,2010-May 23,2012
In addition to this, we were provided with various versions of the RBC summary
schedules and for each of our selected samples, the avaUable supporting documents
relevant to the transaction. This included internal bank records, third party cheques,
bank drafts, deposit sUps, debit and credit memos, and various other documents.
Included in the documents were records initiaUy provided to RBC by the relevant
financial institutions and the BCSC.
Our sample was selected from the Mayl, 2013 version ofthe RBC data base and
summary schedule. A final adjusted version ofthe RBC summary schedule dated May
31, 2013 was provided to us and is attached.
Observations
Our assessment was based on the selection of a sample of transactions by us and a
review of the related supporting documents to determine whether transactions were
attributed to the correct investor and in the correct amounts.
Our sample selection was based on a three tier categorization of tiansactions, consisting
of the foUowing:
1. Tier One - CHent investors with total fitnds received or paid of greater than $5
mUUon ($5 miUion being approximately 5% of investor funds paid and
received); there were four investors in this category; test aU transactions from aU
banks for one cMent investor in this tier; this selection resulted in testing 337
transactions;
GrantThornton LLP, A Canadian Member of Grant Thornton intemationai Ltd
GrantThornton
Jer et al ¥ Samji et al
May 31, 2013
Page 9
2. Tier Two - CMent investors identified by RBC personnel as having
reconcUiation issues with the Samji records; there were six investors in this
category, two of which overlapped with Tier One; test aU transactions from aU
banks for one cUent investor in this tier; this selection resulted in testing 103
transactions; and
3. Tier Three - a sample of 45 randomly selected transactions (satisfying Grant
Thornton sampHng methodology) from the balance of aU tiansactions for the
cHent investors from aU banks not akeady included in Tiers One or Two above.
The specific procedures for the samples included:
1. For Tiers One and Two, agree the total tiansactions in both number of
transactions and doUar amounts to the RBC summary schedule;
2.
For Tiers One and Two sample aU tiansactions for the selected investor;
3. Trace aU sample tiansactions to the appropriate bank statements;
4.
Locate supporting documents from the RBC SharePoint site^;
5.
Confirm that aU transactions include supporting documentation;
6. Agree the foUowing detaUs for supporting documentation, where it exists:
a.
name
b.
c.
d.
e.
date
amount
account numbers (to/from)
any other relevant data
The total cUent investor population consisted of 7,496 tiansactions (as identified by
RBC personnel), totaUing $209,880,141 of combined payments and receipts
($99,499,171 and $110,380,970 respectively).
There were 215 cUent investors, including 204 cUent investors identified by Samji and
an additional 11 identified by RBC personnel.
In addition to the $209,880,141 of payments and receipts attributed to the 215
investors identified by RBC personnel, there was another $67,657,595 of fiinds analysed
by RBC personnel. Ofthis amount, RBC identified $16,875,218 as being potentiaUy
related to the cUent investors or other unidentified cHent investors. The balance of
$50,782,377 appeared to be unrelated to the cHent investors.
2 RBC created a "SharePoint" site with limited access wherein we could share information and records
between RBC and Grant Thomton on-line.
/D
GrantThornton
Jer et al ¥ Samji et al
May 31, 2013
Page 10
Table 2:
Summary of Transactions in Samji Bank Accounts per Roya! Bank of Canada Summary Schedule
1 .11-1.-
i.i ' i ; . . •_
.1 '
~ii.
r
1
'
>ui
".'
r
Investor
Cash
99,499,171
12%
6,126,429
-
Draft
(10,881,7991
1 .
•. r-
m%
110,380,970
SOX
209,880,141
16%
4%
70,558
0%
6,136,387
1%
6,055,871
530
454
OK
1,129,443
U'o
1,129,443
OK
(1,129,449)
25
054
7,496
Lawyer
1,873,964
1%
842,404
1%
2,721,368
1%
1,036,561
23
054
No Source Doc
1.961,573
1%
2,432,746
2%
4,444,313
2%
(521,172)
79
154
a%
92,700
0%
93,420
0%
(91,980)
6
054
1%
175,571
2,152,544
154
722
•554
Notary
720
Other
1.976,974
-
Realty
a%
137,131
a%
0%
137,131
1,801,403
0%
(137,131)
s%
9%
4,930,558
4%
16,875,218
2,963,942
2S
2,963,942
2%
5,927,883
2%
33,574
054
1,534
0%
35,108
0%
32,039
5,900,000
4%
5,939,156
'1%
11,839,156
A%
71,250
054
12,189
0%
83,439
0%
I t m Rtn
1.704,799
1%
1,700,607
1%
3,405,406
IK
Notary Practice
5,507,570
45o
5,708,807
45'o
11,216,377
454
Personal
7,902,806
5%
3,686,403
3%
11,589,209
454
Transfer
703,429
1%
613,429
B%
1,316,858
054
T r a n s f e r - Notary Corp
850,531
1%
1,956,471
•1%
2,807,001
1%
1,738,940
1%
773,000
sub^total - p o t e n t i a l i n v e s t o r
Error
Fees, charges, m t e r e s t , etc.
Investtinent
Items < $1,000
Transfer-Personal
S u b - t o t i i - other transaetions
Total
11,944,661
27,426,840
138,870,672
Sample transactions
(% of t o t a l a l l o c a t e d t o investors)
23,355,537
183%
10,393,926
138,667,065
12,946,219
1««
7,014,103
26
054
1254
(39,156)
48
054
59,061
299
254
4,192
125
154
(201,237)
52
054
2,873
2054
100
154
123
154
4,216,404
0
2,561,940
17%
50,782,377
im%
277,537,736
s%
23,940,145
12%
127
WM
iOSSt
3%
054
m%
1,697
(0)
^
6
1,391
154
4,071,303
5,470
S8%
203,607
14,357
100%
(1,952,293)
485
11%
Prior to commencing our sampling we identified the foUowing definitions for "errors"
and "exceptions":
® Errors were defined as transactions where amounts were appHed incorrectiy to
the wrong investor or where the wrong dates or amounts were appUed to the
investor; and
•
Exceptions were defined as tiansactions where amounts were appHed to an
investor lacking supporting documentation.
The results of our testing were as foUows:
1. N o large "errors" were identified in our sampHng; however, eleven (11)
transactions were identified wherein the bank fee, usuaUy $42 or a simUar smaU
amount, was not removed from the amount attributed to the cHent investors as
they should have been. After advising RBC personnel of these minor errors,
they identified an additional eight (8) transactions in the cUent investor
population not tested by us, where bank fees should also have been removed.
This resulted in a total error, now adjusted, of $738;
2.
Nineteen (19) transactions (totaUing $2,090,500) were initiaUy identified as being
"exceptions" for lack of supporting documentation. Seventeen (17) of these
GrantThornton LLP, A Canadian Member of GrantThornton Intemationai Ltd
//
GrantThornton
May 31, 2013
Page 11
transactions, upon further enquiry, had additional documentation provided to
us. We await additional documentation or explanation for two tiansactions
(totaUing $100,000).
There are transactions predating June 2005 which have been attiibuted to the 215 cHent
investors. Most of these transactions have the basic supporting documents consisting
primarUy of internal historical bank records. Few of tiiese pre-June 2005 tiansactions
have supporting documents consisting of tiiird party cheques or deposits. Nonetheless,
these transactions (at least those included in our sample) had some evidence that they
were atttibuted to the correct cUent investor and in the correct amount.
In summary, in our sample the RBC data base and summary schedule correctiy aUocate
the payments and receipts identified as cUent investor fiinds to the correct cUent
investor with the correct dates and amounts, subject to the Hmitations expressed by
both RBC and Grant Thornton.
There remains the risk that due to insufficient information some of the iiunds correctiy
identified as being related to specific cUent investors have been incorrectiy categorized
as "investment funds" and thus related to tiie aUeged investinent fraud scheme, when in
fact the funds were intended for some other legitimate purpose. Witiiout further
information, Ukely from the cUent investors themselves, it may not be possible to
determine this.
The inverse ofthis scenario also exists. There is the risk that other non-cUent investor
funds identified by RBC personnel in the Samji accounts should correctiy be
categorized as cHent investor funds. This appHes primarUy to the other transactions
identified by RBC in the categories:
•
e
•
»
®
®
®
cash
bank drafts
payments to/from lawyers
payments to/from notaries
other
realty
payments and receipts with no source documents
The sum of these categories included in the RBC schedules as "potential investor"
tiansactions is approximately $17 mUUon (approximately $12 mUUon of payments and
$5 million of receipts). Some or aU of these ttansactions may weU represent cHent
investor ttansactions but it is not possible to determine this with any certainty without
further information, also Ukely from the cHent investors themselves.
We have not sampled or otherwise vouched any amounts or detaUs from this "potential
investor" categoty of ttansactions.
Audit'Tax-Advisory
Grant Thomton LLP, A Canadian Member of Grant Thomton intemational Ltd
a
GrantThornton
May 31, 2013
Page 12
The other ttansactions totaUing approximately $51 nuUion (approximately $27 mUHon
of payments and $23 miUion of receipts) were determined by RBC personnel to be
unrelated to the investors. These ttansactions represent amounts which RBC personnel
deemed to be related to Samji's business or personal matters, or immaterial (bank fees
and items under $1,000) or largely self-reversing. The latter category included the
foUowing:
® errors (errors within the bank accounts, not on the part of RBC)
® investments (mainly amounts invested in short term investments by Samji
which matured with interest in the overaU period of review)
® items returned (simUar to the errors noted above)
• ttansfers (between Samji's bank accounts)
We have not sampled or otherwise vouched any amounts or detaUs from this "other
transactions" category.
We reviewed and discussed with RBC personnel their forensic accounting procedures
and the Hmitations they encountered and the various assumptions tiiey made (as
described in "Assumed Facts"). We enquired as to specific steps taken by them to
determine the names of investors and the accuracy and completeness of their
aUocations. Our assessment is that the procedures described to us by RBC personnel
were reasonable in the circumstances.
Restrictions & Limitations
Our review was Hmited to assessing, with the use of sampUng, the accuracy of the RBC
personnel prepared data base and summary schedule relative to the cHent investors
only, and an assessment of the RBC forensic accounting methodology.
Our review focused on the cUent investor ttansactions akeady identified by RBC
personnel. As a consequence we encountered the same restrictions and Hmitations
encountered by RBC personnel as Hsted in "Assumed Facts". We also encountered the
restiictions and Hmitations inherent in using sampHng techniques as described
throughout our Report.
We have previously advised that analyses relying on the use of sampHng cannot provide
the same level of assurance or certainty as a complete review of aU transactions. There
are inherent risks and Hmitations in attributing the results of sampHng to a population
as a whole, especiaUy where fraud is suspected (i.e. potential bias) and/or where the
population is itself a subset (i.e. selecting a sample fiom the transactions related to tiie
215 total cUent investors only versus from aU ttansactions in aU oftiie Samji accounts).
As a result of these restrictions, Hmitations and assumptions, we have quaHfied our
Report and as such we cannot attest to:
Audit-Tax-Advisory
GrantThornton LLP, A Canadian Member of Grant Thornton intemationai Ltd
GrantThornton
May 31, 2013
PaS® ^ 3
1. the completeness ofthe aUocation of ttansactions made by RBC personnel to
the cUent investor categoty; or
2. the appropriateness of the aUocations made by RBC personnel to the other
non-cHent investor categories (the "potential investor" and "otiier
ttansactions" categories shown in T a b l e 2 in "Observations").
Our review focused on a specific data base and summaty schedule created by RBC
personnel and not the financial records of Samji. Our review does not therefore
constitute an audit as defined by the Canadian Institute of Chartered Accountants.
Readers are cautioned that our Report may not be appropriate for their purposes.
Responsibility & Certification
The undersigned is responsible for the analysis conducted and the opinions expressed
herein. The undersigned has previously quaHfied before the Supreme Court of British
Columbia, the Provincial Court of British Columbia and the Court of Queen's Bench
of Alberta as an expert in accounting and specificaUy forensic and investigative
accounting. A Curriculum Vita is appended to this report in T a b 2.
The undersigned is aware that under Sub-rule 11-2(1) ofthe Rules of Court, I have a
duty to assist the court and not be an advocate for any party. I have prepared this
report in conformity with my duty to the court as articulated in Sub-rule 11-2(1) ofthe
Rules of Court. If I am caUed upon to ghê oral or written testimony in relation to this
matter, I wUl give that testimony in conformity with my duty to the court as articulated
in Sub-rule 11-2(1) ofthe Rules of Court.
Yours truly.
Grant Thornton LLP
^f
N. P. McParland, CMA, CFE, CFI
Principal
attachments
Audit - Tax - Advisory
Grant Thornton LLP, A Canadian Member of Grant Thornton Intemationai Ltd
TABl
Rashida Samji Account Analysis
Details
i
SC
Funds In
Ahamed, Laila S. & Sadruddin
Ahluwalia, Apinder Singh
Ahmed, Ismail Hussein Sidi & Hamida
447,500.00
Amin, Shakuntala R.
Ansun Enterprises Ltd. - Amin, Krishna &
100.000.00
Prakash
Arbitrust AG - Jessani, Mohamedali
Badesha, Jasvinder Singh
Basi, Sukhbir Singh & Hardip Kaur
Belini Ventures Inc. - Makalai, Karim &
Sheneez
Bharwani, Al-Hashmi
Binnag, Nirmal Kaur & Sukhjinder (Steve)
Singh
Brar, Kewal
Burrows, Shameen LaIji
Cardiff, Bruce
Cello, Carmine & Gilda & Andrea &
Chahal, Amrik
Chan, Chung Man & Amy Kam
Chand, Harjit 8; Praveen & Doreen
Chapman, KathrynJean
Chatur, Azmina
Chatur, Zulfikar & Mumtaz
Cheema, Navtej Singh & Kamaljit
Chopin, Kevin & Susan
Chow. Matthew MangWin &Joan
Margaret Susan
Chowhan, Dinesh & Bharti
Cooper, Michael Leslie & Ayesha
Funds In (USD)
Funds Out
Funds Out
500,000.00
83,323.94
202,677.00
3,546,435.00
604,625.00
TDCT
Funds In
Funds Out (USD)
Funds in
554,000.00
66,000.00
Funds Out
77finnr^rt
No Bank Statement
Funds In
Funds Out
24,000.00
500,000.00
5,407,393.84
75,745.00
2,320.20
1,009,990.00
340,000.00
250,000.00
510,000.00
100,000.00
600.00
207,301.92
340,000.00
150,000.00
45,000.00
27,000.00
111.000.00
100,000.00
476,250.00
1,281,000.00
14,160.00
5,250.00
63,500.00
68,250.00
417,600.00
150,000.00
159,000.00
550,000.00
50,000.00
276.460.02
258,975.00
62,000.00
3,902,502.28
350,000.00
282,377.57
120,000.00
9,560,162.13
371.000.00
269.127.57
36,000.00
1,900,000.00
350,000.00
325,000.00
262,400.00
6,000.00
100,000.00
400,000.00
3,003,822.50
101,980.00
143,800.00
48,000.00
93,000.00
51.900.00
38,990.00
30,000.00
27,000.00
5,242.05
550,000.00
264,579.84
200,000.00
120,000.00
2,500.00
65.000.00
150,000.00
592,500,00
18,000.00
9,000.00
24,000.00
39,000.00
6,660.00
81,375.00
20,000.00
231,000.00
46,500.00
100,000.00
65,750.00
3,750.00
44,400.00
459.00
435,875.00
250,000.00
3,213.00
70,375.00
285,000.00
200,000.00
46,961.00
10,000.00
2,284,872.40
100.000.00
778,000.00
1,195,000.00
3,000.00
14,400.00
9,000.00
7,200.00
100,000.00
100,000.00
117,000.00
102,650.00
PRIVILEGED AI^D CONFIDENTIAL
SOLICITOR-CLIENT COMMUNICATION
PREPARED AT THE REQUEST OF COUNSEL
DO NOT CIRCULATE
DRAFT
11,500.00
200,000.00
50,000.00
10,000.00
15,000.00
9,500.00
Details
TDCT
R3C
Cumberland Ltd. - Manek, Yogesh
Datta Alka
Funds In
388,286.73
100,000.00
Funds In (USD)
Funds Out
415,000.00
Funds Out (USD)
Funds In
15,000.00
Funds Out
Funds In
m*:,
-<i:
Funds Out
19,200.00
18,000.00
36,000.00
416,500.00
20,000.00
6,000.00
20,000.00
150,000.00
92,250.00
No Bank Statement
Funds In
Funds Out
Dhaiia, Naguib & Lizabegum & Omar &
465,000.00
260,115.00
150,000.00
440,000.00
250.000.00
Dhanani, Karim & Shafina &
Nazneen/White Dove Healing Centre &
37,000.00
371.500.00
70,000.00
36,800.00
50,000.00
25,800.00
73,900.00'
100,000.00
400,000.00
50,000.00
6,000.00
13,500.00
465,150.00
92,500.00
6,000.00
103,000.00
985,000.00
10,000.00
50.000.00
5,400,000.00
31,500.00
21,000.00
3,102,532.03
Dharamshi Al-Nasir & Gulbanu
451,333.36
500,000.00
21,000.00
63,669.65
1,611,714.35
650,000.00
100,000.00
Dhutt Hardyal S & Gurneet K.
Dr. Andreas Manning & 0712199 BC Ltd.
&AE Manning MD Inc.
Farm Girl Productions Ltd. - Kavelaars,
150,000.00
6,617,674.35
72,000.00
634,440.73
1,933,700.00
202,000.00
20,250.00
50,000.00
1,724,979.00
292,100.00
25,583.57
70.000.00
Gilt Jatinder Kaur & Randip Singh
Gray, Andrew John & Clare Elizabeth
290,195.45
40,000.00
200,000.00
18.000.00
2,625.00
79,813.79
Gronlund, Fred Maurice & Wong, Patricia
400.000.00
Jaffer, Dilshad P.B.
75,000.00
18,000.00
15,000.00
133,501.87
131,200.00
117,000.00
9,900.00
5,500.00
54,000.00
4,900.00
200,000.00
100,000.00
112.158.75
140,000.00
12,000.00
18,000.00
72,000.00
98,500.00
43,227.32
60,000.00
6,000.00
568.01
2,625.00
17,000.00
100,000.00
18,000.00
115,000.00
25,000.00
46,500.00
6,900.00
15,000.00
199,990.00
335.500.00
30,000.00
278,800.00
PRIVILEGED AND CONFIDENTIAL
PREPAREDATTHE REQUEST OF COUNSEL
DO NOT CIRCULATE
12,500.00
10,000.00
60,000.00
Details
TDCT
RBC
JaJam Holdings Inc. - Jamal, Shaffin
Jamal, Mobina
Jamai-Pirant, Shamneez
Jesan , AInoor St Nazira
Jesan , Nurdin
Jesan , Nurdin & Nasim
tpsan . Mirza Sl Shahnaz
Jeshani, Ashak & Shabira & Fayaz
Jhajj, Bailbir S. & Barinder
Jhutti, Harmohinder & Bakhshish
Funds tn
253,424.00
110,179.00
100,000.00
300,000.00
215,000.00
133,000.00
1,658,441.53
3.450,000.00
525,000.00
Funds In (USD)
Funds Out (USD)
Funds Out
280,750.00
20,000.00
40,941.10
78,600.00
151,685.11
63,616.60
Funds in
,.-<,, , T " ^ ^ 1 f„„',»s™.:
Funds Out
50,000.00
90,000.00
6,000.00
90,000.00
2,447,107.07
3,342,500.00
98,400.00
Jiwa, Nazlin Jinny & Sayed & Thaker, Sunil
JJJ Properties inc. -Jesani, Nurdin
218,871.00
207,999.50
Juma, Naiia
Kaba, Yasmin & Afshan & Azeez
Kainth, Gurdev a Parkash Kaur &.
Sukhminder
Kambo, Davinder Kaur & Jack Jaspal
50,000.00
546,041.67
475,000.00
2,625.00
347,582.00
772,200.00
140,000.00
100.00
Kassam. Zahir & Rashida (Lucy) & Shabir
537,566.36
220,420.00
Kaumi, Etta
544,262.50
175,000.00
175,000.00
200,000.00
713,000.00
22,500.00
93,718.75
36,000.00
455,013.47
15,000.00
12,000.00
364,339.36
10,000.00
2,560.00
3,000.00
43,252.72
16,200.00
12,000.00
3,000.00
100,000.00
128,750.00
40,000.00
150,000.00
47,000.00
6,000.00
100,250.00
36,000.00
29,250.00
11.250.00
347,850.00
12,000.00
28,500.00
18,000.00
23,250.00
6,125.00
27,600.00
67,971.50
100,000.00
53.750.00
197,000.00
121,000.00
135,000.00
600,000.00
377,850.00
96,000.00
150,000.00
60,420.00
175,000.00
110,000.00
24,000.00
139,375.00
138,750.00
SOUCITOR-CLIENT COMMUNICATION
PREPAREDATTHE REQUEST OF COUNSEL
DO NOT CIRCULATE
No Bank Statement
Funds In
Funds Out
100,000.00
7.500.00
36,000.00
41,500.00
66.000.00
Jivraj, Shlraz
142,587.00
99,000.00
53,250.00
38,925.00
457,224.10
67,000.00
15,000.00
42,000.00
225,250.00
Funds Out
134,000.00
6,000.00
156,000.00
100.000.00
150.000.00
75,000.00
300,000.00
250,000.00
150,000.00
120,000.00
266,710.00
Funds In
20,500.00
10,000.00
53,000.00
75,215.68
830,889.36
135,600.00
20,000.00
3,750.00
27,000.00
8,000.00
66,320.10
49,475.00
6,000.00
27,375.00 j
55,574.OC
Details
R3C
Kelly, Calvin Si Marilyn
Keshvani, Karim Si Zabeen Si AabId & Adil
8i Faiyaz, Si Grewal, Rabinder
Khan, Mutmain (MInoo)
Kiarostami, Mostafa Si Fereshtech St Omid
Kilburn, Tove
King, Derek
Kirk, Beryl Evangeline
Knutson, Wade Thomas
Koshal, Narinder Kumar 8i Anita
Funds In
100,000.00
1,481,175.00
Funds In (USD)
Funds Out
26,400.00
3,665,700.00
126,000.00'
385,000.00
60,000.00'
178,550.00
49,932.00
1.049,415.98
158,000.00
1.163,079.85
100,000.00
12,000.00
Funds Out (USD)
TDCT
Funds Out
Funds In
26,400.00
140,000.00
719,400.00
Funds In
100,000.00
90,000.00
Funds Out
106,000.00
114,400.00
9,000.001
27,250.00
24,000.00
368,500.00
175,000.00
6,000.00
30,000.00
24,000.00
110,700.00
6,000.00
6,000.00
8,700.00'
12,000.00
Kratky, Kim
Kular.Khark Singh
Kundi. Amarjit Si Manjit
Lakhani, Adil Sabanali
Leveque, Rene Paul
Linsangan, Maria Glna
Loudoun, Marilyn St Michael
Maigrot, Raymond
Malsuria, Mohan Lai Si Pratlbha
Malen, Lome Stephen St Marrington, Koni
100,000.00
344,000.00
24,000.00
57,000.00
100,000.00
175,000.00
489,577.50
1,000.00
24,000.00
42,000.00
9,330.00
Malik. Bhim St Ramesh
Malik, Qamar St Laila St Shehla Si Hana
686,000.00
928,067.64
162,300.00
292,488.15
100,000.00
161,310.75
1,309,000.00
218,400.00
100.000.00
1,980,000.00
40,200.00
367,500.00!
3,900.00
1,567,000.00
742,508.00
3,256,743.65
475,750.00
2,142,584.00
167,833.00
252,923.00
165,500.00
Mann, Gurjeet St Ramandeep
Mathew. George Si Khamis. Natasha Si
Nazlin Sl Chilliwack Drugs St Chilliwack
Poultries Sl The Fraser Valley Rehab Shop
Ltd. St Waterpoint Development Inc.
Mayo, Paul SiSukhinder
Mayo Group
Meghji, Anilhussein St Zarina
Meghji, Rahim
250,000.00
190,000.00
12,000.00
17,000.00
35,400.00'
64,600.00
5,750.00
300,000.00
104,940.00
298,420.00
827,783.27
196,350.00
150.000.00
76,558.69
110,000.00'
PREPARED ATTHE REQUEST OF COUNSEL
DO NOT CIRCULATE
DRAFT
117,000.00
220.000.00
70,000.00
38,782.35
265,000.00
150,000.00
500.000.00
100,000.00
No Bank Statement
Funds Out
Funds In
45,000.00
100,000.00
100,000.00
12,000.00
13,900.00
100,000.00
8,787.50
9,000.00
39,600.00
18,500.00
Details
RBC
Funds In
Mesgarpoutousi, Esmaell
Ming, Chang Wei
Mitchell, Sharon
Mitha, Mahmud St Nasim 8i Dr. Nasim K.
Mitha Inc.
Moore, Francine
Nardone, Ernesto Si Rita
Nilsson. Lars Erik R. St Sail, Kindy
PC Resources, Inc. - Cooke, David
Parkington Corp. Ltd. - Kassam, Azim
Patel, Arvindbhai B.
Patel, Bharat 8i Kusum
Patel, Bhupendra C. Si Lata B.
Patel, Chetan St Nileshvari
Patel. Prakash St Rohinl
Patel, Shailesh 8i Jayashree
Peters. Fred
Peters. Randall St Lois
Peters, David St Togashi, Sanae
Priest, Elizabeth Si Stuart
Ral, Sanjeev St Parvinder
Ral, Harkiran St Mohan
Rajan, Sharim 8i Reena St Zahur
Reynoldson, Dale George
Romana, Gurmeet Singh St Gurdas Kaur
Rosling, Dale Edard St Lynn Bitzer
450,000.00
50,000.00
100,000.00
200.00
Funds In (USD)
Funds Out
108,000.00
4.500.00
42.425.00
Funds Out (USD)
TDCT
•'-/:••; . : c = ^ * - " r - ^ - ^ "
Funds Out
Funds In
Funds Out
Funds In
3,750.00
50,000.00
417,000.00
450,000.00
51,000.00
3,000.00
500,000.00
32,500.00
100,000.00
100,000.00
100,000.00
30,000.00
224,000.00
7,000.00
127,500.00
229,775.00
100,000.00
100,000.00
300,000.00
3,333.35
112,000.00
30,000.00
102,000.00
850,000.00
284,010.00
147,000.00
351,622.00
818.450.00
250,000.00
400,000.00
595.052.38
87,000.00
24.000.00
150.000.00
450,000.00
170,000.00
50,000.00
100,000.00
100,000.00
250,000.00
250,000.00
250,000.00
600,000.00
100,000.00
84.000.00
15,000.00
81,000.00
123,000.00
105,000.00
304,600.00
300.000.00
200,000.00
26,000.00
177,700.00
78,000.00
230,000.00
55,714.81
68,000.00
35,000.00
11,500.00
35,000.00
90,000.00
300,000.00
284,254.41
54,000.00
96,000.00
3,000,00
66,000.00
21,000.00
36,000.00
75,000.00
45,000.00
120,000.00
100,000.00
38,000.00
6,000.00
1,000.00
43,500.00
87,010.29
22,475.00
25,000.00
150,000.00
18,000.00
6,000.00
15,000.00
18,000.00
51,000.00
27,400.00
54,000.00
22,000.00
18,000.00
150,000.00
72,000.00
31,420.00
32,428.53
9,000.00
14,080.00
200.000.00
12,000.00
200.000.00
24.000.00
DO NOT CIRCULATE
No Bank Statement
Funds Out
Funds In
79,000.00
50,000.00
Details
Samji, Rozmin
Sandhu, Mohinder Singh
Sandhu, Surinder Kaur St Mondeep Si
Sukpaul
Sandhu, Satwinder
Sangha, Sarbjit Singh
Santos, Emma Josef
Schonberger, Ingeborg Agnes Margot St
Betina
Schunker, Diana
Scott, Janette P.
Sengupta, Sundrl
Shams, Kamruddin
Shivji. Mumtaz
Slcherman, Mark Si Naz
Sidhu, Lamber St Jasbir
Sidhu, Mohini Lata St Ajit Singh
Sidhu. Surinder Jit
Sidhu, Sanjeev Si Romas, Jennifer
SIdl. Karim St Shellna
Siekham, Satnam Singh Si Ravinder
Singh. Sheila Wati St Ranraj Si Sharmila
259,000.00
Funds In (USD)
'i.^^^^t^^^'^-^M
TDCT
RBC
Funds in
92,473.99
790,000.00
300,000.00
Funds Out
34,440.00
46,500.00
Funds Out (USD)
Funds In
330,000.00
500,000.00
Funds Out
180,048.60
156,467.00
112,500.00
100,000.00
Funds Out
No Bank Statement
Funds Out
Funds In
3,000.00
280,681.32
9,000.00
11,000.00
911,500.00
35,000.00
200,000.00
50,000.00
12,000.00
51,000.00
15,000.00
97,419.00
8,500.00
234,000.00
118,600.00
212,800.00
295,000.00
112,000.00
150,000.00
100,000.00
2,063,600.00
1.327,054.30
262,500.00
274,500.00
250,000.00
54.000.00
559,730.00
1,200.00
900,000.00
293,000.00
900,000.00
400,000.00
200,000.00
853,380.04
179,380.00
404,000.00
89,000.00
18,000.00
550,000.00
325,817.00
57,000.00
49,640.00
Singh, Ujagir 8i Malklt
Singh, Shalendra Si Khan, Adnan
SInha, Sunil
Sohi, Kulwinder Singh St Barjinder Kaur
166,625.00
370,000.00
83,050.00
109,250.00
1.156,069.37
Sallstrom, Christine Mary
Sommi, Gillian
Soni, Harjit Paul
Soon, Philip St Pattinson, Joyce
Soorani, Jamileh Si Ojaroodl, Shiva
Spencer, Kevin St Fahreen
Stockbrugger, Lola
Sureau, Rhonda Lea
Tang, John St Diana
225,000.00
100,000.00
152,500.00
150,000.00
298,000.00
350,000.00
50,000.00
860,000.00
Funds In
63,000.00
13.333.25
151,250.00
54,000.00
292,000.00
62,064.00
355,108.00
3,000.00
1,026,675.00
21,500.00
20,000.00
250.000.00
275,000.00
300,000.00
100,000.00
50,000.00
450,000.00
11,000.00
168,000.00
10,440.00
100,000.00
100,000.00
960,000.00
175,000.00
79,750.00
718,250.00
750,800.00
100.000.00
42,000.00
210.000.00
135,750.00
27,000.00
108,800.00
50,000.00
30,000.00
12,000.00
DO NOT CIRCULATE
80,000.00
50,000.00
36,100.00
15,600.00
30,000.00
9,000.00
100,000.00
6,000.00
18,000.00
9,632.00
50,000.00
46,500.00
9,000.00
138,500.00
14,700.00
42,700.00
5,000.00
3,000.00
100,000.00
12,500.00
Details
Tene Kusta (Gusl
Thiara Balbir S & Sukhjinder K.
Vickram, Parminder & Cameron &
Vohora, Pradeep K. & Ruth & Kiren &
Wall Glenn St Sandra
Funds In
Funds Out (USD)
Funds Out
362,118.00
28,750.00
36,600.00
74,250.00
190,151.47
6,000.00
18,000.00
5,405.97
177,475.00
22,800.00
15,000.00
80,000.00
100,000.00
Funds Out
46,666.00
12,500.00
25,200.00
128,249.71
100,000.00
18,000.00
6,000.00
12,000.00
12,000.00
50,000.00
6,000.00
6,000.00
1,430,000.00
825.000.00
260,400.00
502,074.00
1,151,000,00
1,557,285.00
50,000.00
405,000.00
6,000.00
804,129.98
70,500.00
300.000.00
605.500.00
150.000.00
200.000.00
787,750.00
95,782.00
146,500.00
544,519.85
15.000.00
54,000.00
1,209,750.00
2.250.00
50,000.00
20,000.00
54,545.00
80,000.00
100,000.00
$ 60,198,466.30
200,000.00
472,500.00
$
Funds Out
11,667.00
2,500.00
10,200.00
130,000.00
21,000.00
18,000.00
62,000.00
721,765.00
253,600.00
$
Funds In
No Bank Statement
Funds In
Funds Out
60,000.00
200,000.00
50.000.00
500.000.04
239,375.00
0.00
$ 69,872,071.45
T p n p Kellv
Funds In (USD)
-r-^^K^^^'^^rl
TDCT
RBC
Funds In
300,000.00
50,000.00
170,000.00
566,301.00
50,000.00
100,000.00
100,000.00
150.000.00
150,000.00
100,000.00
50,000.00
2,320.20
33,276.00
24,000.00
445,000.00
24,000.00
30,000.00
1,118,250.00
4,125.00
0.00
$ 32,165,013.94 $ 31,144,316.00
100,000.00
500,000.00
45,000.00
11,250.00
60,000.00
200,000.00
179,507.11
460,000.00
8,000.00
106,000.00
48,500.00
12,000.00
135,000.00
250,000.00
5,672.89
6,500.00
$ 3,955,950.00 $ 3,449,376.07 $ 3,463,889.36
S 4,219,538.87
53,000.00
20,900.00
4,800.00
109,000.00
34,860.00
400,000.00
130,000.00
2,018.80
50,000.00
23,000.00
4,800.00
1,250.00
100,000.00
Thobani, Mumtaz
SOUCITOR-CLIENT COMMUNICATION
DO NOT CIRCULATE
Details
TDCT
Funds Out
Funds in
60,000.00
RBC
Thobani, shlraz All
Varpaul, Surinder
Waugh, Rhaven
Other Potential Investors Identified - 1 1
$
Cash
Drafts
Lawyer
Notary
Other
Realty
<;
s
$
$
$
<;
s
Potential Investor Related Transactions
T
4,500.00
25,000.00
334,045.00
64,850.00
886,448.90
842,403.51
92,700.25
150,570.70
137,130.72
2,476,870.55
4,650,974.73
Transfers
Ail Other Transactions
2,953,941.70
28.06
5,538,641.54
12,185.35
s
694,706.36
5,385,293.94
3,614,464.35
s 3.170,399.55
$ 21,369,661.85
Total Transactions
$ 96,226,753.03
Fees, charges. Interest, etc.
Term Investments
Items < $1,000
Notary Practice
i
i
$
$
$
$
Funds Out
Funds In (USD)
Funds In
$
$
S
3,208.00
s
$
3,375.00
6,583.00
$
36.38
i
2.91
$
18,563.49
$
18,602.78
u=
25,185.78
55,400.00
26,125.00
304,085.00
s
6,005,859.30
$
$
$
1,878,964.44
719.90
1.608,112.90
i
1,961,573.20
Funds Out (USD)
$
$
$ 11,455,229.74 $
s 2,953,941.69
s 22,683.88 $
s 5.500,000.00
$ 71,250.00
$ 694,706.36
s 5,507,570.07
$ 7,155,430.08 $
$ 2.771,470.55
$ 24,677,052.63 $
11=96,634,833.67 $
$
590,000.00
$
243,000.00
8,230.00
2,500.00
$
38,800.00
$
25,000.00
$
38,715.79
s
$
2,500.00
30,000.00
i
77,515.79
$
$
61.49
400,513.98
s
$
1,505.91
400,000.00
5
34,029.10
5
37,979.10
$
s
$
29,374.73
80,500.00
544,479.30
s
$
$
360,135.85
174,600.00
974,222.86
$
73,540.00
s
$
330,144.99
s
403,684.99
31.00
$
$
10,000.00
1,408.55
$
i
10,000.00
9,237.72
s
971,871.62
5
972,113.70
$
$
$
24,000.00
92,000.00
1,099,280.17
$
$
$
378,860.34
306,829.00
1,677,040.76
18,960.09
4,800.00
$
243,000.00
8,409.89
s
76,268.80
J
$ 34,097,294.11 $ 33,301,310.55
SOLICITOR-CUENT COMMUNICATION
DO NOT CIRCULATE
No Bank Statement
Funds In
Funds Out
Funds In
$
8,230.00
8,378.89
^4%''r--'-> ^ • ^ f » 1 ^ Funds
Out
$ 4,530,429.30
S 4,505,914.72
$
$
s
$
S
323,512.93
$
323,512.93
S 3,787,402.29
100,000.00
$
114.00
$
$
90,000.00
90,114.00
S 4,409,652.87
TAB 2
GrantThornton
CURRICULUM VITAE
N. PATRICK McPARLAND, BA, CMA, CFE, CFI
Principal, Grant Thornton LLP - Vancouver
Education and Professional Affiliations:
University of Calgary, Bachelor of Arts in Archaeology, 1976
Certified Management Accountant, 1989
Certified Fraud Examiner, 1994
Certified Forensic Investigator, 2002
Additional Courses/Conferences
Association of Certified Forensic Investigators Conferences (various)
Association of Certified Fraud Examiners Conferences (various)
Pacific Rim Money Laundering & Financial Crimes Conference (2000)
Deloitte & Touche internal courses, including: Interviewing & Interrogation Techniques (2000); Audit
Command Language (1999); Expert Witness Course (1998); and SUPERText course (1997)
Calgary Police Service Arson for Profit - Investigators' Course (1998)
The Canadian Institute - Asset Tracing & Recovery (1997)
University of Calgary, course requirements ofthe Institute of Chartered Accountants of Alberta (1982 to 1984)
Professional History:
Principal, Forensic Accounting and Investigative Services, Grant Thornton LLP, May 2007 to present
President, NP McParland Inc., February 2002 to April 2007
Senior Manager/Accountant, Financial Advisory Services (including insolvency, litigation support and
forensic accounting), Deloitte & Touche, 1984 to 2002
Experience Relating to Forensic and Investigative Accounting:
Fraud prevention, detection and investigation assignments commencing in 1988
Consulting with clients to assess internal controls to reduce exposure and to detect fraud
Civil and criminal fraud investigations, including international assignments
Litigation support, due diligence and asset tracing for clients including corporations, regulators, governments
(including First Nations) and law firms
Risk and code compliance reviews for governmental and corporate entities;
Court appointment as investigator in civil investigations in Alberta and BC
Instructor of forensic accounting and fraud courses and seminars for various accounting bodies representing
Certified Management Accountants, Chartered Accountants, Certified General Accountants and Internal
Auditors, as well as for other educational, professional and corporate entities
Expert Testimony
Qualification before the Court of Queen's Bench of Alberta in civil and criminal proceedings
Qualification before the Supreme Court and the Provincial Court of British Columbia in civil and criminal
proceedings
Qualification before the quasi-judicial proceedings of the Metis Provincial Council of BC
This is Exhibit # „ as referred to in the
affidavit of ft/}UL-^- fl
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M
Loudoun, Marilyn & Michael
$
290,000.00
$
Maigrot, Raymond
Malsuria, Mohan & Pratlbha
$
175,000.00
$
$
503,477.50
$
Malik, Qamar, Laila, Shehla, Hana
$
1,089,378.39
$
Meghji, Anilhussein & Zarina
$
449,273.00
$
(71,400.00) $
(106,600.00) $
(23,867.50) $
(218,600.00)
(609,408.15) $
(242,058.69) $
(479,970.24)
(40,000.00)
(68,400.00)
(479,610.00)
(207,214.31)
Meghji, Rahim
$
150,000.00
$
Mesgarpoutousi, Esmaell
$
900,000.00
$
(110,000.00) $
(525,000.00) $
$
$
(42,425.00) $
(8,000.00) $
(57,575.00)
(120,000.00) $
(3,000.00) $
(280,000.00)
(254,000.00) $
(27,000.00) $
(296,000.00)
(126,000.00) $
(227,100.00) $
(124,000.00)
(9,000.00) $
(57,000.00) $
(141,000.00)
(114,000.00) $
(9,000.00) $
(211,000.00)
Mitchell, Sharon
$
100,000.00
PC Resources
$
100,000.00
Patel, Bhupendra & Lata
$
400,000.00
$
Patel, Chetan & Nileshvari
$
50,000.00
$
Patel, Prakash & Rohinl
$
550,000.00
$
Patel, Shailesh & Jayashree
$
125,000.00
$
Peters, Randy & Lois
$
250,000.00
$
Raflque, Ramiza
$
304,600.00
$
Rajan, Hamida
$
150,000.00
$
Rajan, Sharim, Reena, Zahur
$
219,000.00
$
Sallstrom, Christine
$
325,000.00
$
Sangha, Sarbjit
$
150,000.00
$
Santos, Emma
$
100,000.00
$
$
200,000.00
$
Sengupta, Sundrl
$
300,000.00
$
Shivji, Mumtaz
$
98,619.00
$
Singh, Sheila, Ranraj & Sharmila
$
386,817.00
$
Singh, Shalendra & Adnan Khan
$
470,000.00
$
Sommi, Gillian
$
100,000.00
$
Scott, Janette
Soni, Harjit
Sureau, Rhonda
Teng, Velio
Teranishl, Bob & Margaret
$
501,000.00
$
100,000.00
$
$
$
50,000.00
$
$
250,000.00
$
Thaker, Mahendra
$
666,301.00
$
Thompson, Doris
$
100,000.00
$
Thomson, Barbara D
Tripp, AJ
$
250,000.00
$
$
100,000.00
$
Verjee, Gulzar & Irfan
$
2,430,000.04
$
Wall, Glenn & Sandy
$
500,000.00
$
$
200,000.00
Zerny, Prudence
$
(11,000.00) $
(12,000.00) $
(375,000.00)
(92,000.00)
(47,000.00)
(98,000.00)
(77,500.00)
(162,000.00)
(141,000.00)
(89,000.00)
(188,000.00)
(120,000.00) $
(8,500.00) $
(180,000.00)
(69,712.00) $
(189,000.00) $
(317,105.00)
(13,333.25) $
(301,700.00) $
(18,000.00) $
(43,750.00) $
(72,000.00) $
(90,119.00)
(281,000.00)
(86,666.75)
(199,300.00)
(82,000.00)
(6,250.00)
(178,000.00)
(202,499.71) $
(45,000.00) $
(463,801.29)
(35,405.97) $
(6,000.00) $
(214,594.03)
(1,087,165.01) $
(276,500.00; $
(1,342,835.03)
(55,000.00)
(94,000.00)
(223,500.00)
(104,000.00)
(96,ooo.oo; $
TOTAL LOSSES:
$ (26,648,916.11)
/
This is Exhibit" " as referred to in the
affidavit of i'Ô-tu^ it
i^fivwuT
this {:< M day of / ? ? / ? /
20/^
A Commissioner for taking Affidavits
within British Columbia
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is dated for reference May _£_, 2014 by
and between the Royal Bank of Canada and The Toronto-Dominion Bank (together, "Settling
Defeadaffits"), and the Plaintiffs, Janette Scott, Lawrence Brian Jer and Jun Jer ("Plamtiffs"), in
Jer et al. v. Samji et al. Supreme Court of British Columbia, Vancouver Registry No. S-121627
("Action").
WHEREAS the Plaintiffs allege, among other claims in the Action, knowing assistance in
breach of trust and negligence by the Settling Defendants arising out of an investment scheme
perpetrated by notary public Rashida Samji known as the "Mark Antiiony Investment" ("MAI
Sciieme") and the use oftiie Settling Defendants' banking facilities by Rashida Samji to conduct
that scheme;
WHEREAS there are additional claims against Rashida Samji, Rashida Samji Notary
Corporation, Samji & Assoc. Holdings bic, Arvin Patel, Coast Capital Savings Credit Union,
Coast Capital Insurance Services Ltd., Woridsource Financial Msmagement Inc, and the Society
ofNotaries Public of British Columbia ("Remaining Defendants");
WHEREAS tiie B.C. Supreme Court certified the Action as a class proceeding on
September 10, 2013 and appointed the Plaintiffs to represent "all persons, other than the
Defendants, who have provided funds to invest in the 'Mark Anthony Investment' scheme
promoted by Samji and who have received payments from the scheme which are lesser in total
amount thantiietotal principal amount they invested" ("Class");
WHEREAS the time for opting-out ofthe Class action expired on January 14,2014;
r8liarapaiiu,hbiidiiw.Goiii/3«6(V000Draft/3660P/PLEA0130 • Setdainnl Agnsemem - Finsl (Banks).d(K:x
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WHEREAS, on March 28, 2014, tiie B.C. Court of Appeal upheld the certification of
certain ofthe claims against the Settling Defendants in the Action and set aside the certification of
certain other claims against the Settling Defendants intiieAction;
WHEREAS the Action is set for trial beginning May 26,2014;
WHEREAS the Settling Defendants deny each and every one of tiie allegations made in
the Action by the Plaintiffs, and, furtiier, deny any wrongdoing of any kind;
WHEREAS the total net loss oftiie Class Members from the MAI Scheme is estimated to
be $26,648,916.11 before pre-judgment interest, and the losses of Class Members who have claims
only against tiie Settling Defendants and not against Coast Capital, Arvin Patel and Woridsource
are estimated to be $23,496,416.11 before pre-judgment interest;
WHEREAS the Settling Defendants and tiie Plaintiffs in tiie Action (togetiier, "Parties")
have vigorously litigated their respective positions in connection with the Action;
WHEREAS, as a resuk oftiie litigation,tiieParties aretiioroughlyfamiliar witiitiiefactual
and legal issues presented by their respective claims and defences and recognise the uncertainties
as to the ultimate outcome ofthe Action, and the likelihood that any final resuk could require years
of additional complex litigation and substantial expense;
WHEREAS Hordo Bennett Mounteer LLP and Camp Fiorante Matthews Mogerman,
counsel for the Class (together, "Class Counsel"), believe that the claims asserted in the Action
against the Settling Defendants have merit; however, Class Counsel also recognise that (a) it would
be necessary to continue prosecuting the Action against the Settling Defendants through a
contested trial of the common issues and, even if successful there, through a series of possible
appeals, all of which will furtiier delay substantially the Class Members' receipt of benefits from
.coni/3«60/OOODnifi06«OP/PLEAOI30 • Seltlement Agreement - Final (BanksMocx
•ÎPT
-3-
the claims asserted against tiie Settling Defendants in the Action, and (b) tiiere are significant risks
in the claims advanced against the Settling Defendants; therefore, balancing the costs, risks and
delay of continued litigation against the benefits ofthe settlement, Class Counsel have concluded
that settiement as provided in this Agreement will be in the best interests ofthe Class;
WHEREAS tills Agreement was entered into after extensive arm's lengtii discussions and
negotiations between Class Counsel and counsel for the Settling Defendants;
WHEREAS the Parties desire to compromise and settle all issues and claims against the
Settling Defendants;
WHEREAS counsel for the Settling Defendants and Class Counsel agree that the
settlement contemplated by this Agreement ("Settlement") is a fair, reasonable and adequate
resolution ofthe claims advanced in the Action;
WHEREAS the total benefit to the Class under tiie Settlement is|
WHEREAS the Parties desire and intend to seek court approval of the Settlement as set
forth in this Agreement;
NOW THEREFORE it is agreed that in consideration of the promises and mutual
covenants set forth in this Agreement, and the entry by the court of final orders approving the
terms and conditions ofthe Settlement as set forth in this Agreement, the claims made against the
Settling Defendants shall be compromised on the terms and conditions contained herein.
1. This Agreement is for settlement purposes only, and conditional upon the making of fmal
orders approving the Settlement in the Action, and neither the fact of, nor any provision
contained in, this Agreement nor any action taken hereunder shall constitute, or be construed
2i5
as, any admission ofthe validity of any claim or any factual allegation that was or could have
been made by the Plaintiffs, Class Members or by tiie Settling Defendants in the Action, or of
any wrongdoing, fault, violation of law, or liability of any kind on the part ofthe Settling
Defendants. This Agreement shall not be offered or be admissible in evidence by or against
the Settling Defendants or cited or referred to in any other action or proceeding, except (a) in
any action brought by or against the Parties to enforce or otherwise implement the terms of
this Agreement, or (2) in any action involving the Plaintiffs, Class Members or any of them, to
support a defense of res judicata, collateral estoppel, release, or other theory of claim
preclusion, issue preclusion, or similar defense.
Approval Process
2. Following execution of this Agreement, the Plaintiffs will seek an order in the Action
before the B.C. Supreme Court that approves the Settlement ("Approval Order").
3. The Settling Defendants will consent to the application for the Approval Order for the sole
purpose of giving effect to the tenms of the Settlement.
4. Ifthe Approval Order is not granted, or is reversed or modified on appeal, then, unless the
Parties expressly agree otherwise in writing:
a. This Agreement and all orders made pursuant to it shall be null and void, shall have
no further force and effect with respect to the Parties, and shall not be offered in
evidence or used in any litigation for any purpose; and
b. All orders in existence as ofthe date on which this Settlement was executed shall
become operative and fully effective, as if proceedings relating to this Settlement
inLhbmIaw.coni/3660MX)OD<Bil/3660P/PLEA0130 - Setdement Agreemem • Final (Banks).docx
'jC
had not occurred. In such event, the Parties reserve all rights to object to or
otherwise challenge all such pre-existing orders.
Discontinuance
5. In conjunction with or following court approval ofthe Settlement, Class Counsel will apply
totiiecourt for a discontinuance oftiie Action against the Settling Defendants.
Establishment of Settlement Fund
6. Within 14 days after the next calendar day after the day on which all appellaterightswitii
respect to the Approval Order made in the Action have expired or have been exhausted,
the Settling Defendants will pay the total settlement funds ofm|[mm||("Settlement
Funds") to Hordo Bennett Mounteer LLP in trust ("Effective Date of Settlemenf).
7. Upon receiving the Settlement Funds, Hordo Bennett Mounteer LLP will deposit them in
an interest-bearing trust account for the benefit ofthe Class Members.
8. The Settlings Defendants' obligations under the Settlement are limited to those set out in
para. 6. For greater clarity, the payment of all expenses ofthe Settlement, including Class
Members' claims, legal fees, administration expenses, taxes and notice costs shall be paid
out ofthe Settlement Fund and the Settling Defendants shall have no further liability in
respect of those expenses.
9. The Settling Defendants shall have no legal or beneficial interest in the Settlement Fund.
.Goni/366(V000Drea/3660P/PLEA0130 - Setdement Agmment - Final (Banks).d<KX
••^0
-6Settlement Administration Plan
10. At tiie application for approval ofthis Settlement Agreement, tiie Plaintiffs will apply to
the court for approval ofthe terms for administration ofthe Settlement ("Settlement
Administration Plan"). The Settlement Administration Plan will set out:
a. The form and procedure by which notice oftiieSettlement shall be provided to tiie
Class Members;
b. The procedure by which such Class Members can claim" an entitiement under the
Settlement to the Settlement Fund;
c. The quantum of legal fees payable to Class Counsel;
d. The honourarium to be paid to the Plaintiffs for acting as Representative Plaintiffs;
and
e. The disposition of any fundstiiatare not claimed by Class Members.
11. The court shall have complete discretion to either approve or amend tiie Settlement
Administration Plan. The Settlement Administration Plan shall not form part of tiiis
Settlement Agreement and tiie approval of tiiis Settlement shall not be contingent on the
approval oftiie Settlement Administration Plan.
12. The Parties agree that the Settling Defendants shall not have standing to make submissions
regarding the Settlement Administration Plan.
13. The Settlement Fund shall be disbursed in accordance with a Settlement Administration
Plan or as otiierwise directed by the court.
http7/tIiafep<nm.hbDdaw.coni/366WOOODrafi/3660P/PLEAOI30 - Setdement Agreement - Final (Banls3).docK
o
^1
.7.
Covenant Not to Sue
14. Upon the Effective Date of Settlement, tiie Class Members covenant and agree that tiiey
will not bring, commence, prosecute or mamtain, or cause or permit to be brought,
commenced, prosecuted or maintained, against the Settling Defendants, as well as their
predecessors, subsidiaries, successors and affiliates and each of their respective officers,
directors, shareholders, employees, agents, assigns, solicitors and all other professional
advisors, any claims, demands, actions, suits or causes of action that have been brought or
could have been brought, whetiier known or unknown, asserted or unasserted, under or
pursuant to any statute, regulation, common law or equity, connected with the facts and
circumstances surrounding the MAI Scheme.
15. The Parties expressly acknowledge and agree that the covenant set out in para. 14 is not a
release, and shall not be construed to be a release, and tiiat the Class Members expressly
reserve all rights of action, claims and demands they have against the Remaining
Defendants in the Action, excepttiiattiieClass Members covenant and agreetiiattiieywill
not seek to recover in the Action, or by any other proceedings, any portion ofthe losses
they claim in the Action which a court or other tribunal may attribute to the fault ofthe
Settling Defendants. In particular, without limiting tiie generality of tiie foregoing, tiie
Class Members covenant and agree that:
a. The Class Members will not seek to recover such portion of their losses, which a
court or otiierti-ibunalmay attribute to tiie fault ofthe Settling Defendantsfromtiie
Remaining Defendants in the Action;
Rr.conifl660/000DraftO6«0P/PLEA0130 - SetUemem Agreement - Final (BanIai).do«x
• ^ > -
-8b. At the first reasonable opportunity following court approval ofthe Settlement, the
Class Members will advise the court that they waive anyrightto recoverfromany
ofthe Remaining Defendants any portion ofthe losses or costs which are claimed
in the Action and which the court may attribute and/or apportion to the fault ofthe
Settling Defendants;
c. At the first reasonable opportunity following court approval ofthe Settlement, the
Class Members will advise the court that they will not seek to recover from any
party in such further proceedings any portion ofthe losses or costs which the Class
Members claim in such matters and which the court may attribute and/or apportion
to the fault of the Settling Defendants;
d. At the first reasonable opportunity following Settlement Approval, the Class
Members will apply to amend the amended Notice of Civil Claim in the Action to:
i. Delete the names ofthe Settling Defendants as defendants; and
ii. Insert the following paragraph: "The Plaintiffs expressly waive any and all
rights to recover from the Defendants or from any other party, any portion
ofthe Plaintiffs' loss or costs that may be attributable to the fault or liability
of RBC and/or TD".
16. In conjunction with or following court approval ofthe Settlement, tiie Parties will seek a
bar order fiom the court that all claims for contribution, indemnity or other claims over,
whetiier asserted, unasserted or asserted in a representative capacity, relating to
investinents by the Class Members in the MAI Scheme, which were or could have been
brought in this Action, by any Remaining Defendant or any other person or party, against
a Settling Defendant, or by a Settling Defendant against any Remaining Defendant(s), are
http://sliaie]>oinLhbmIaw.coni/3660/000DrafiO6e0P/PLEA0l30 • Setdement Agreement - Final (Banke),docx
t2>
.9.
barred, prohibited and enjoined In accordance with the terms ofthis paragraph (unless such
claim is made in respect of a claim by a person who has validly opted out ofthis Action).
Release of Class Members
17. Upon tiie Effective Date of Settlement, the Settling Defendants forever release and
discharge all ofthe Class Members, whether they submit a claim for benefits pursuant to
this Agreement or not, from any and all claims, demands, actions, suits or causes of action
that have been brought or could have been brought, are currentiy pending or were pending,
or are ever brought in the future, whether known or unknown, asserted or unasserted, under
or pursuant to any statute, regulation, common law or equity, arising from the MAI
Scheme, except in connection with any funds borrowed by Class Membersfromany oftiie
Settling Defendants to invest intiieMAI Scheme.
18. This Agreement takes effect only iftiieHDAS Confirmation Letter, attached as Schedule
"A", has been executed by counsel for the HDAS Plaintiffs.
General
19. This Agreement and its attachments shall constitute the entire Agreement ofthe Parties and
shall not be subject to any change, modification, amendment, or addition without the
express written consent of counsel on behalf of all Parties to the Agreement. This
Agreement supersedes and replaces all prior negotiations and proposed agreements, written
or oral.
hltp://sIiarepointhbml8w.com/3660«)00Dra»36«0P/PLEA0130 - Setdement Agreemem - Final (Banks).docx
m
-10-
20. This Agreement shall be binding upon and inure to tiie benefit oftiie Parties hereof and
their respective representatives, heirs, successors and assigns.
21. In the event that any one or more ofthe provisions in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such invalidity, iUegallty or
unenforceability shall not affect any otiier provision ifthe Parties mutually elect to proceed
as if such invalid, illegal or unenforceable provision had never been included in this
Agreement.
22. The B.C. Supreme Court shall retain continuing and exclusive jurisdiction over the Parties
and over the administration and enforcement of the Settlement and the benefits to the
Plaintiffs and the Class Members hereunder.
23. Any disputes or controversies arising with respect to the interpretation, enforcement, or
implementation ofthis Agreement must be made by application to the B.C. Supreme Court.
24. The undersigned counsel warrant that they arefiillyauthorised to execute and legally bind
the Parties to this Agreement.
25. The Settling Defendants and the Plaintiffs acknowledge that they have been represented
and advised by independent legal counsel throughout the negotiations that have culminated
in the execution ofthis Agreement, and that they have voluntarily executed the Agreement
with the consent and on the advice of counsel.
iepojnt.libmlaw.com/3660/OOODrafiQifiOP/PLEAOI30 • Setdement Agreemem - Final (Banks).docx
' ^
.11.
26. This Agreement may be executed in counterpart by tiie parties hereto, and a facsimile or
electronic signature shall be deemed an original signature for tiie purposes of tiiis
Agreement.
27. This Agreement shall be construed under and govemed by tiie laws of the Province of
British Columbia.
28. The Parties have negotiated and fully reviewed the terms of tills Agreement, and the rule
that any uncertainty or ambiguity is to be construed against the drafter shall not apply to
tiie constioiction oftiiisAgreement by a court or any other adjudicator.
29. Following the execution oftiie Agreement, and provided that tiiere is written agreement
fit)m other financial institutions who provided data to Royal Bank of Canada, the Royal
Bank of Canada will comply with reasonable requests to deliver to Class Counsel
supporting data for the schedule to the Grant Thomton joint expert report prepared in the
Action, and the Parties agree that such data and the Grant Thomton report may be used for
the purpose of tiie Settlement Administi-ation Plan to allocate and distiribute Settlement
Funds.
30. No Class Counsel, no Plaintiff, and no Class Members may divulge to any person any
information obtained through the discovery of the Settling Defendants in the Action for
any purpose outside of the Action, except to the extent such information is otherwise
publicly available or otherwise ordered by a court in Canada. In no circumstances,
however, may Class Counsel or any ofthe Plaintiffs or Class Members apply for or consent
littp'7/sharei>oim.hbmlaw.com/3660/D00Dreft/3660P/PLEAO130 - Senlement Agreemem - Final (Bank8).docx
^t
-12-
to such an order and, promptly upon becoming aware of an application for such an order.
Class Counsel shall immediately notify the Settling Defendants.
31. Whenever, under the terms ofthis Agreement, a person is required to provide service or
written notice to the Settling Defendants or to Class Counsel, such service or notice shall
be directed to the individuals and addresses specified below, unless those individuals or
their successor(s) give notice to the other Parties in writing:
As to Class Counsel:
Paul R. Bennett
Hordo Bennett Mounteer LLP
1400 -128 West Pender Street
Vancouver BC V6B 1R8
Fax: 604-639-3681
Email: pb(Pibmlaw.com
Reidar Mogerman
Camp Fiorante Matthews Mogennan
#400 - 856 Homer Stiret
Vancouver, BCV6B2W5
Fax: 604-689-7554
Email: rmogerman(^cfhilawyers.ca
'Z^
-B.
Astothe Settlinff nefepdafit Roval Bank of
As to the Settiing Defendant The Toronto^
Shayne Strukoff
Gowlings LLP
S50 Burrard Stieet
Suite 2300, Bentall S
Vancouver, BCV6C2B5
Fax: 604-683-3SS8
Email: shayne.stnikof^gowlings.com
Lisa Martz
McCartfiy Tetrault LLP
Suite 1300,777 Dunsmuir Street
P.O. Box 10424, Pacific Centre
Vancouver BCV7YIK2
Fax: 604-643-7900
Email: [email protected]
IN WITNESS WHEREOF the Parties have executed this Agreement as follows:
Date; vik'^
L
.2014
By:
R.J. Raridall Hordo, Q.C. as Class Counsel
On behalf of the PlaintifFs,and Class Members
Date;Kâ>AC? .2014
By:_^
Date: N ^
By?
fc?
. 2014
Dominion Bank
ntensaAgia
•I
I •• '• — ? ?
SCHEDULE "A"
HD
AS
HAMILTQiSI DUNCAM ARMSTRONG-frSTEWAirr
BUSINESS -t- UTIGATION LAWYERS
TRADEMARK ACENTS
April 24,2014
McCalhy T^rault LLP
Suite b o o , 777 Dunsmuir Street
P.O. Box 10424, Pacific Centre
Vancouver BC V7yiK2
Gowlings LLP..
550 Burrard Street '
Suite 2300, Bentall 5
Vancouver, BCV6C2B5
Attention: Lisa Martz
Attention: Shayne Strukoff
Counsel forthe Toronto-Dominion Bank
Counsel for the Royal Bank of Canada
Dear Sirs/Mesdames,
Re: Peters et al. v. Samji et aL (various actions)
I am lead counsel for the plaintiff represented by Hamilton Duncan Armstrong and Stewart as set
out In Schedule "A" to tiiis letter (individually and collectively, "HDAS Plaintiffe"), who have
commenced claims against the Royal Bank of Canada ("RBC") and the Toronto-Dominion Bank
("TD") and other defendants arising out of tfie "Mark Anthony Investment" Ponzi scheme
perpetrated by Rashida Samji CMAT^.
I confirm that I have instructions-from the HDAS Plamtiffe to settle, as described
below ("Settlemenf), all claims against RBC and TD arising out oftiie MAI.
The Settlement Is made on the following terms:
I. PaymenttoHDAS in trastforthe HDAS Plaintiffe, tiie sum of
RBC and TD (the "Settiement Funds").
Ifrom
2. HDAS will sign on behalf of lhe HDAS Plaintiflfe a covenant(s) not to sue RBC or TD for
any and ail claims against RBC and/or TD arising out ofthe MAI, which covenant will
Cake effect upon receipt oftiie settiement fiinds by HDAS.
3. Upon payment to HDAS of the Settiement Funds, and before using or disbursing the
Settlement Funds, HDAS will cause discontinuances to be entered against RBC and TD in
each ofthe actions commenced by the HDAS Plaintiffe, without coststoany party.
HAMILTON DUNCAN ARMSTRONS *• STEWART LAW CORPORATION
WWW.HDAS.CiJM
WWW.HDASinJuiylaw.eOM
.,J\
•:» .J
•2-
In tiie event tiiat tiie HDAS Pfaintifis maintain tiieir actions against the otiier defendants
or against any otiier parties resultingfromdie MAI C'Remaining Defendants"), and where
the Remaining Defendants might claim contribution or indemnity, indemnity for defence
costs, or any declaratory relief in relation to KBC and/or TD, the HDAS Plaintiffs
covenant
to:
•
a. not seek to recover intiioseactions any portion ofthe losses or costs which the
HDAS Plaintiffe claim in the action and which the court may attribute and/or
apportion to the fault of RBC and/or TD;
b. at the first, reasonable opportunity, advise the court that the HDAS Plaintiffe
expressly waive any right to recover from any of the Remaining Defendants
any portion ofthe losses or costs which are claimed in the action and which the
court may attribute and/or apportion to the &ult of RBC and/or TD;
c. at tiie first reasonable opportunity, advise tiie court that the HDAS Plaintiffs
will not seek to recoverfi-omany party in such fiirther proceedings any portion
ofthe losses or costs which the HDAS Plaintiffe claim in such matters and
whichtiiecourt may attribute and/or apportion to the &ult of RBC and/or TD;
d. at the first reasonable opportunity seek an order from the court to amend the
HDAS Plaintiffs' pleadings by:
i.
ii.
deletingtiienames of RBC and/or TD as defendants; and
inserti'ng the following paragraph: "The plaintiff expressly waives any
and all rights to recover from the defendants or from any other parly,
any portion ofthe plaintiffs loss or costs that may be attributabletothe
feult or liability of RBC and/or TD." •
Yours
CC:
Paul R. Bennett and RJ. Randall Hordo, Q.C.
Reidar M. Mogerman and Joe Fiorante, Q.C.
end.: Schedule of HDAS Clients
LfO
<rf«-l
••1
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:.:..
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,. ... u . . *
••.••
i
HBAS CLIENTS
1. . Jasxdmier Badesha
2.
Sukhbir Basi and Hardip Basi
3.
Kewal Brar and Mndy Brar
4.
Carmine Cello and Gilda Cello
5.
Anthony Cello
6.
Andrea Cello
7.
Matthew Chow and Joan Chow
S.
Dinesh Chowhan and Bharti Chowhan
9.
Davinder Dhani
10.
SiMwinder Dhillon
11.
Hardyal Dhutt md Gurneet Dhutt
12.
Kevin Graham and Christine Daw
13.
Sanjeev Gill and Simmerdeep Gill
14.
Fred Gronlund and Patricia Wong
15.
Balbir Jhajj and Barinder Jhajj
16.
Harmohinder Jhutti and Bakshish JhMti
17.
Abdul Jiwa and Zarina Jiwa
IS.
NadeemJiwa
19.
Gurdev Kainth. Prakash Kainth and Sukhminder Kainth
20.
Surjit Singh Kang and Manjit Kaur Kang
21.
Mutmain Khan
22.
Narinder Koshal and Anita Koshal
23.
KharkKular
24.
Amarjeet Kundi and Manjit Kundi
•.—•
•-•••••
.•
I
..I
- • • - • !
.
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.-•-.-.-'".-.^ ;
,
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hi
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25.
Bhim Malik and Ramesh Malik
26.
Lome Malen and Koni Marrington
27.
Gmjeet Mann and Ramandeep Mann
28.
Naginder Mann
29.
Ernesto Nardone and Rita Nardone
30.
Cham Panghli
31.
Bharat Patel and Kustm Patel
32.
Joyce Pattinson and Philip Soon
33.
James Pearce
34.
Dave Pefers ami iSsrsfie Togashi
35.
Frederick Peters
36.
Sanjeev Rai and Parvinder Rai
37.
Gurdas and Gurmeet Romana
38.
Date Edward Rosling emd Lynn Bitzer Rosling
39.
Zifwfy 5al/ awrf iais Nilsson
40.
Mondeep Sandhu and Sukkpaul Sandhu
41.
Surinder Sandhu
42.
4/ft Slfrfte and Mohini Sidhu
43.
Jasbir Sidhu and Lamber Sidhu
44.
Sanjeev Si<Om and Jennifer Romas
45.
Surinder Jit Sidhu
46.
Satnam Siekham and Ravinder Siekham
47.
Kulwinder Sohi and Barjinder Sohi
48.
Balbir Ihiara and Sukhjinder Ihiara
49.
Frances Toews and Donald Toews
- ••
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50.
Dorathy Yang and Richard Hsieh
51.
Lara VishwanathoB
52.
Taylore BeUrose-Fm
This is Exhibit;^'-^" as referred to in the
îCfrArhfT
affidavit of ,'/'i'9•i.û it.
this / J / ^ day of / ^ ^ /
20/K'
((oner for taking Affidavits
feh Columbia
OUTLINE OF CLAIMS PROCESS
1.
Class counsel will work with the Trustee in Bankruptcy for the Estates of Rashida
Samji and her companies to confirm the calculation of each class member's
principal loss, as set out in Schedule "A" to the Grant Thornton Report.
2.
The class members will be divided into two groups. One group will be those class
members who only have claims against the Banks and do not have claims against
the Defendants Patel, Coast Capital or Worldsource (collectively "the Coast
Defendants"). The other group will be those class members who also have claims
against the Coast Defendants (the "Coast Claimants").
3.
The settlement fund payable by the Banks (the "Bank Settlement Fund") will also
be divided into two portions. One portion will be used to pay the claims of those
class members who only have claims against the Banks and not against the Coast
Defendants. The other portion will be used to pay part of the claims of the Coast
claimants.
4.
Each class member's principal loss will be reduced by a percentage factor
reflecting litigation risk, which may be based on such factors as whether their
investments were made through an instrument payable in trust, the time at which
their investment was made, and the financial institution into which their investment
was deposited. It will also include a factor for the risk of contributory fault. The
percentage reductions which may be applied to a Class members' principal loss
will be set out in the formal settlement distribution plan to be approved by the Court
and will not be subject to adjustment once approved by the Court.
5.
Each class member will be entitled to their pro-rata share of their respective portion
of the Bank Settlement Fund. This pro-rata share will be calculated as follows:
Each class member's claim, calculated as set out above (by applying the
applicable percentage reduction(s) to their principal loss), will be divided by the
total claims of class members, as calculated above, against that portion of the
settlement fund. This resulting percentage will then be multiplied by the settlement
fund portion available to pay a class member (after deduction of legal fees and
estimated settlement administration expenses), to arrive at the class member's
estimated prima facie claim entitlement in respect ofthe claims against the Banks.
6.
The calculations of Class members' entitlements will be performed by Class
counsel. If Class counsel considers it necessary to retain third-party assistance in
the calculation of the claims. Class counsel may apply to the Court to do so, in
which case, the costs of that assistance will be paid from the settlement fund.
http://sharepoint.hbmlaw.com/3660/000Draft/3660P/PLEA0146 - Outline of Claims Process.docx
l^lj-2-
7.
All class members for whom contact information is available will receive notice
from Class counsel of the calculation of their estimated prima facie claim
entitlement and the manner in which it was calculated, as set out above, together
with a simple claim form to claim their entitlement, or alternatively, to challenge the
calculation of their loss and claim. Estimated claim entitlements and claim forms
will also be posted on Class counsel's website.
8.
Any challenges by class members to their claim entitlement that cannot be
resolved through class counsel will be referred to a third party claims adjudicator
for final determination. There will be no appeal from that determination. The
claims adjudicator will be appointed by the Court upon approval of the formal
settlement distribution plan.
9.
All costs of settlement administration, including the cost of the claims adjudicator,
will be paid from the Banks' Settlement Fund, if a class member's challenge to
their entitlement is referred to the claims adjudicator and is unsuccessful, the
claims adjudicator will have the authority to deduct an award of settlement
administrator costs for that unsuccessful challenge from the amount payable to the
class member ifthe claims administrator concludes there was no proper foundation
for the challenge.
10.
No further fees will be paid to Class counsel in respect of the claims process.
11.
Once the claims process is completed, class members will receive their pro-rata
share of the portion of the Banks' Settlement Fund applicable to their claim. This
wili be calculated by dividing the amount of their claim, as determined above, by
the total amount of all claims made against their portion of the settlement fund to
arrive at a percentage, and then multiplying that percentage against the portion of
the remaining fund available to pay claims to arrive at the class member's final
claim entitlement.
12.
No actions may be brought against Class counsel or the claims adjudicator
concerning the claims administration without leave ofthe Court.
http://sharepoint,hbmlaw.coin/3660/000Draft/3660P/PLEA0146 - Outline of Claims Process.docx
This is Exhibit:
.
" as referred to in the
affidavit of
sworn befor,e me at Vancouver, B.C.
this O ^ ' d a y of., r7\MY
201^
TTT-
A Coramissiojier for taking Affidavits
withj/Britis/Columbia
CLASS ACTION RETAINER AGREEMENT
BETWEEN:
LAWRENCE BRIAN JER
(THE "CLIENT")
AND:
HORDO BENNETT MOUNTEER LLP
(THE "SOLICITORS")
1.
The Client hereby retains and employs the Solicitors with respect to a
class action to be commenced on his behalf and on behalf of other residents of British
Columbia who have invested in a scheme perpetrated by Rashida Samji loiown as the
"Mark Anthony Investment" (the "Class Action").
2.
Subject to instructions from the Client from time to time, the Solicitors
shall prosecute the Class Action and take such steps as the Solicitors consider necessary
and proper.
Terms of Payment of Fees and Disbursements
3.
The provisions of this agreement regarding fees and disbursements are
subject to the approval ofthe B.C. Supreme Court (the "Court") as provided in s. 38 of
the British Columbia Class Proceeding Act. The Solicitors shall seek the approval ofthe
Court at such time as the Solicitors consider it appropriate to do so and, in any event,
C:\Users\mgood.HORDOBENNET1ADesktop\8000.MG Samji\RETAINER LETTER - Jer.doc
-2
upon the request of the Client. If the Court does not approve this Agreement, the
Solicitors shall not be obliged to continue to act in the Class Action.
4.
The Client also has the right within three months after either this
Agreement was made or the retainer ofthe Solicitors is terminated to apply to the District
Registrar ofthe Court to have this Agreement examined.
5.
Legal fees shall be paid only in the event that the Class Action is
successful in whole or in part. The fees shall be paid by lump sum payment or payments
out of the proceeds of any Judgment or Order awarding rescission, damages, interest or
costs to the Class or any settlement that includes payments in favour ofthe Class or Class
member, or as otherwise may be directed by the Court.
6.
The Solicitors' legal fees shall be thirty five percent (35%) of the total
amounts recovered by the Class under any judgments, orders or settlement.
7.
The Solicitors and Client acknowledge it is difficult to estimate what the
expected fee will be, as the amount of the fee will depend upon such factors as the
number and value ofthe loans that were made. However, the following are examples:
(a)
If the Class Action results in the recovery of $500,000 for damages and
interest, then the Solicitors' fee shall be $175,000;
(b)
If the Class Action results in the recovery of $2 million for damages and
interest, then the Solicitors' fee shall be $700,000;
(c)
If the Class Action results in the recovery of $5 million for damages and
interest, then the Solicitors' fee shall be $1,750,000;
(d)
Ifthe Class Action results in the recovery of $10 million for damages and
interest, then the Solicitors' fee shall be $3,500,000;
C:\Users\mgood.HORDOBENNETTOesktop\8000.MG SamjiVRETAINER LETTER - Jer.doc
41.
-3-
(e)
Ifthe Class Action results in the recovery of $15 million for damages and
interest, then the Solicitors' fee shall be $5,250,000.
8.
Disbursements will be paid firstly out of any amounts raised from
members ofthe Class and then by the Solicitors. The Client shall not be obliged to fund
any disbursements.
9.
The Solicitors will incur disbursements to an aggregate of $25,000 without
immediate reimbursement but shall not be obliged to incur disbursements beyond that
amount although they may do so in their discretion.
10.
Unpaid disbursements will be a first charge paid out ofthe proceeds of
any Order, Judgment or settlement, with interest at 10% per annum not compounded, to
be calculated on the amount of disbursements incurred every six months.
Costs
11.
The Client has been advised by the Solicitors that under the Class
Proceeding Act, in the event the Class Action is unsuccessful, the Client will not be
responsible for the costs ofthe defendants.
Change of Solicitors
12.
The Client acknowledges that the Solicitors are incurring a significant
financial risk in agreeing to be paid only in the event the action is successful and the
Solicitors are doing so on the basis that they will have carriage ofthe Class Action. The
Client agrees that any request by the Client to terminate the retainer ofthe Solicitors will
be referred to the Court for directions.
C;\Users\mgood.HORDOBENNETT\Desktop\8000.MG Samji\RETAINER LETTER - Jer.doc
if%
Withdrawal or Conflict
13.
The Client has the right to withdraw from the Class Action for any reason.
Upon notice from the Client on an intention to withdraw, the Solicitors shall take such
steps as are necessary to remove the Client as a representative plaintiff in the Class
Action.
14.
If the Class Action is not certified, the Solicitors will have the right to
withdraw as Solicitors and will have no obligation under this Retainer Agreement to
continue to pursue the Client's individual claim.
Substitute or Addition of Representative Plaintiffs
15.
In the event that:
(a)
the Client withdraws as a representative plaintiff pursuant to para. 13
above;
(b)
the Client chooses to settle the Client's individual claims without settling
the claims ofthe Class;
(c)
the Court divides the Class into separate sub-classes; or
(d)
the Solicitors consider it in the best interest of the Class that one or more
additional representative plaintiffs be appointed;
the Client expressly agrees and acknowledges that the Solicitors are permitted to be
retained by another representative of the Class or subclass to continue the Class Action
on behalf of the Class. In such event, privileged communications between the Solicitors
and the Client made for the purpose of advancing the claims of the Class and the
Solicitors' proprietary information and documentation created for the purpose of
C:\Users\mgood.HORDOBENNETTDesktop\8000.MG Samji\RETAINER LETTER - Jer.doc
H^
advancing the claims ofthe Class, shall be disclosed to the new Class representative and
may be used on behalf of the Class or subclass.
Negotiations and Settlement
16.
The Client hereby authorizes the Solicitors, in their discretion, to enter
into negotiations with the defendant(s) or any other related persons or entities, for the
purpose of reaching a settlement. The Client understands that any settlement affecting
the Class is subject to approval by the Court. The Client agrees and acknowledges that
any negotiations are for the purpose of reaching a settlement of the claims of the Class
Action, not simply the individual claims ofthe Client.
17.
In the event that:
(a)
the defendant(s) makes an offer to settle the claims of the Class;
(b)
the Solicitors consider acceptance of the proposed settlement to be in the
best interest ofthe Class;
(c)
the Solicitors recommend acceptance of such offer to the Client; and
(d)
the Client does not consider the proposed settlement to be acceptable;
the Client agrees and hereby authorizes the Solicitors to apply to the Court pursuant to
the Class Proceedings Act for approval of the settlement on the basis that the Solicitors
shall place before the Court for its consideration ofthe Client's position that the Client
does not consider the proposed settlement to be acceptable.
Client's Fees
18.
The Client acknowledges that under this Agreement the Client will not be
entitled to any fees for acting as the representative plaintiff in the Class Action.
However, given that in the past representative plaintiffs have been given awards by the
C:\Users\mgood.HORr)OBENNETT\Desktop\8000.MG Samji\RETAINER LETTER - Jer.doc
so
Court in recognition of the time and expense involved in acting as the representative
plaintiff, the Solicitors will make their best efforts to seek similar compensation from the
Court for the Client.
Confidentiality
19.
The Client acknowledges being advised that the communications between
the Solicitors and the Client relating to the claims ofthe Class are legally privileged, but
that such privilege may be lost if the Client was to disclose such information to third
persons and that the interest ofthe Class could thereby be adversely affected. The Client
agrees to protect the confidentiality of such information and to discuss the matter with the
Solicitors prior to disclosing such information to any third party. The Client also agrees
to refer any requests the Client receives from the media for interviews or information to
the Solicitors.
20.
In the event that further representative plaintiffs are appointed to represent
the Class or separate sub-classes, the Client hereby acknowledges that no information
received from any of the representative plaintiffs relating to the Class Action, including
the Client, may be kept confidential from any ofthe other representative plaintiffs.
Client to Act in Best Interests ofthe Class
21.
The Client acknowledges the obligation to act in the best interests ofthe
Class and that the Solicitors are not obliged to follow instructions from the Client that are
not in the best interests of the Class. In the event of a disagreement between the Client
and the Solicitors conceming whether certain instructions are in the best interests of the
Class, the matter shall be submitted for arbitration to a retired judge of the British
Columbia Supreme Court as a sole arbitrator in accordance with the provisions of the
B.C. Arbitration Act. The Arbitrator shall resolve matters summarily, within 7 days, with
C:\Users\mgood.HORDOBENNETT\Desktop\8000.MG SamjiVRETAlNER LETTER - Jer.doc
srI
-7-
as littie formality as possible. The costs ofthe AibitratioE shall be paid as a disbursement
in the Class Action.
22.
In the event it is necessary or prudent to take stqss in the acti(Hi befiwe the
arbitration has resolved any dispute concerning instructions in accordance witii j ^ a . 21,
the Solicitors shall take such steps as the Solicitois consider to be in the best interest of
the Class.
DATED at British Columbia, this M _ day of fsSJiMy, 2012.
HdRDt> BENNETT MOUNTEElt yiP
Pen
C;\Uw.ta««»!.HORDOBENKEmD«ta!ip\a»0.MO SMnJiVRBTAlNER CCTim. tedoc
This is Exhibit!'
" as referred jo in the
affidavit of M^^x-^ M. J^tfY^t
Tf
i-Adavof, Vl/IM)/
20 /y
this
A Comr^ssiorWr for taking Affidavits
within Britishôlumbia
S7^
LIST OF DISBURSEMENTS
PAID BY Camp Fiorante Matthews Mogerman:
Courier
Court Registry Fees*
Court Reporter
Meals
Experts
Fax
Long Distance
Miscellaneous - Binding, disk copy**
Outside Professionals
Photocopying**
Photocopying - External
Postage
Process Service
Records
Registry Agent
Research
Search
Travel
Sub-TOTAL
GST on disbursements
PST on disbursements
TOTAL:
$
93.53
194.55
1,816.90
116.21
11,943.75
0.00
23.60
38.45
6,737.83
5,991.25
4.80
2.04
0.00
0.00
282.25
497.39
0.00
87.38
$27,829.93
1,381.77
422.08
$29,633.78
*= GST exempt
**= PST applicable
PAID BY Hordo Bennett Mounteer LLP:
Courier
Agents Fees
Website
Third Party Copies
Misc.
Experts re Blair Mackay
Experts re Grant Thornton LLP
Charest Reporting
Triage Data Solutions
BC Online Fees
Meals
$1,548.89
1,894.31
239.08
1,291.71
334.99
2,716.88
14,501.20
8,617.55
1,103.95
124.73
232.71
http://sharepoint.hbmlaw.com/3660/000Draft/3660P/List of Disbursements forPB AfSda-vit.docx
-2-
Hotel
Notary
Parking
Postage
Sub-TOTAL
GST EXEMPT & ZERO-RATED
DISBURSEMENTS
Court Fees
Transcript Copies
Sub-TOTAL of GST exempt
Sub-TOTAL of GST applicable
GST on disbursements
TOTAL
973.02
55.00
56.19
1,100.28
34,790.49
1000.00
139.00
$1,139.00
$34,790.49
$1,739.52
$37,669.01
http://sharepoint.hbmlaw.com/3660/000Draft/3660P/List of Disbursements for PB Affidavit.docx

AFF 1 of Bennett - Hordo Bennett Mounteer LLP

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