NOTICE OF APPLICATION

Transcription

1 ONTARIO SUPERIOR COURT OF JUSTICE (Commercial List) Court File No. CV CL BETWEEN: BRUNO-MANSER-FONDS, Association for the Peoples of the Rainforest and MUTANG URUD Applicants and - ROYAL BANK OF CANADA, TORONTO-DOMINION BANK, MANULIFE FINANCIAL CORPORATION AND DELOITTE & TOUCHE Respondents NOTICE OF APPLICATION TO THE RESPONDENT(S) A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicants. The claim made by the applicants appears on the following page. THIS APPLICATION will come on for a hearing on February 5 and 6, 2018 at 10:00 a.m., at 330 University Avenue, 7th Floor, Toronto ON M5G 1R7. IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application you or an Ontario lawyer acting for you must forthwith prepare a notice of appearance in Form 38A prescribed by the Rules of Civil Procedure, serve it on the applicants' lawyer or, where the applicants do not have a lawyer, serve it on the applicants, and file it, with proof of service, in this court office, and you or your lawyer must appear at the hearing. IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you or your lawyer must, in addition to serving your notice of appearance, serve a copy of the evidence on the applicants' lawyer or, where the applicants do not have a lawyer, serve it on the applicants, and file it, with proof of service, in the court office where the application is to be heard as soon as possible, but at least four days before the hearing.

2 -2- IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO OPPOSE THIS APPLICATION BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LO L L EGAL AID OFFICE. N atash4 Brow; Finfetroir Date December 2017 Issued by Local Registrar Address of court office: pe 'or Co rt of Justice 330 niver ity Avenue, 7th Floor Toronto M5G 1R7 TO: MCCARTHY, TETRAULT LLP Banisters and Solicitors TD Bank Tower 66 Wellington Street West Suite 5300 Toronto ON M5K 1E6 Junior Sirivar (# ) jsirivar mccarthy.ca Telephone: (416) Facsimile: (416) Lawyers for the respondents, Royal Bank of Canada and Toronto-Dominion Bank AND TO: TORYS LLP 79 Wellington Street West Suite 3000 P.O. Box 270, TD Center Toronto ON M5K 1N2 Andrew Gray (#46626V) agray@torys. corn Telephone: (416) Facsimile: (416) Lawyers for the respondent, Manulife Financial Corporation

3 -3- AND TO: CASSELS BROCK & BLACKWELL LLP Banisters and Solicitors Scotia Plaza 40 King Street West Suite 2100 Toronto ON M5H 3C2 William J. Burden corn Lara Jackson (#41858M) Telephone: (416) Facsimile: (416) Lawyers for the respondent, Deloitte & Touche

4 APPLICATION The applicants, Bruno-Manser-Fonds, Association for the Peoples of the Rainforest ("BMF") and Mutang Urud ("Urud"), MAKE APPLICATION FOR: 1. A Norwich Pharmacal Order that requires the defendant institutions, Royal Bank of Canada ("RBC"), Manulife Financial Corporation ("Manulife"), Toronto Dominion Bank ("TD Bank"), Deloitte & Touche ("Deloitte") and any branches of those entities served with a copy of the Order to provide to the applicants or their legal representatives, Bennett Jones LLP, as they may request, financial, customer and other information with respect to transactions, loans and mortgages, which information relates to Abdul Taib Mahmud, Jamilah Taib Murray, Sean Murray, Onn Bin Mahmud, and any corporations owned or controlled by these individuals (collectively the "Taib Entities"). 2. Such further and other relief as counsel may request and this Honourable Court may permit. THE GROUNDS FOR THE APPLICATION ARE: 3. The applicant, BMF, is a not-for-profit organization based in Switzerland that advocates for rainforest conservation in Malaysia and combatting corruption in the Malaysian government. 4. The applicant, Urud, is a Canadian citizen who was born in Malaysia on October 20, 1958 and is of Kelabit descent (the Kelabit are an indigenous people of Sarawak). He currently resides in Canada. Mutang Urud grew up in Long Napir, a village in the interior of Sarawak. In the late 1980s he assisted the indigenous Kelabit and Penan people in organizing the resistance against logging on their lands and subsequently founded and chaired the Sarawak Indigenous Peoples' Alliance.

5 5. The respondent, RBC, is a chartered bank carrying on business throughout Canada The respondent, TD Bank, is a chartered bank carrying on business throughout Canada. 7. The respondent, Manulife, is an insurance and finance company carrying on business throughout Canada and its head office is located in Toronto, Ontario. 8. The respondent, Deloitte, is a large accredited accounting firm whose locations include Toronto, Ontario. I. Purpose of the Application 9. The applicants seek a Norwich Pharmacal disclosure order to obtain financial records detailing the flow of funds from a public official in Malaysia, Abdul Taib Mahmud ("Taib"), directly or indirectly to his daughter, Jamilah Taib-Murray ("Jamilah"), Jamilah's husband, Sean Murray, and to Jamilah and Sean Murray's numerous Canadian companies in Canada related to them. 10. It appears that such funds are proceeds from corrupt activity carried out by Taib and his associates and that the flow of funds from Taib's corruption into Canada, via Jamilah, Sean Murray and/or their companies or other Canadian-based Taib related companies, constitutes money laundering pursuant to the Criminal Code of Canada. The information sought by way of a Norwich Pharmacal order is to determine whether a case exists for a private prosecution against the Taib Entities for the Canadian criminal offence of possession of property obtained by crime and laundering the proceeds of crime as identified in sections 354(1) and (1) of the Criminal Code of Canada.1 'See also related provisions dealing with the history of these provisions: Criminal Law Amendment Act, SC , c93, s29 and An Act to Amend the Criminal Code, the Food and Drugs Act and the Narcotic Control Act, SC 1988, c.51, 52

6 Because of the services provided, the respondents have documents in their possession that the applicants require for the purposes of evaluating whether a criminal case for a private prosecution exists and for which entities a private prosecution for the offence of money laundering and any related offences can be brought. 12. If there is evidence of money laundering within the documents obtained from the Norwich Pharmacal disclosure order the applicants would bring an application (in the form of laying an information) to bring a private prosecution for the offence of money laundering, and related offences, in Canada. Specifically, such documents would be used to lay an information and would be used in the subsequent pre-enquete in the private prosecution process. In consideration of the global reach of the flow of funds, and in particular the accumulation of corrupt wealth in the U.K. and the Taib's family connections to companies in the U.K., to the extent such documents evidence money laundering in the U.K., BMF may seek leave of this court to use such documents in support of a private prosecution in that jurisdiction in addition to Canada. II. Taib Corruption and Laundering 13. Taib is the current Governor, and former Chief Minister of Sarawak which is a state within the sovereign nation of Malaysia. Since approximately 1983 Taib has been completely in charge of the state of Sarawak and responsible for all of the timber contracts and concessions. He provided such concessions to companies related to himself and his family. His corruption has been widely acknowledged and studied and is apparent on its face. 14. Allegations of corruption, cronyism and conflicts of interest have followed Taib throughout his 33-year tenure as Chief Minister of Sarawak. During this time, 90% of the state's primeval tropical rainforest has been destroyed as a result of logging, the proliferation of palm oil plantations and flooding for hydro dams. Also during this time, Taib and many of his closest family members,

7 -7- particularly his daughter Jamilah, have become extremely wealthy and acquired stakes in hundreds of companies around the world. It is estimated that Taib's family wealth is in the billions of dollars as a result of the proceeds of Taib's corruption. 15. The Taib family's rapid climb to become one of South East Asia's wealthiest families is as a result of corruption and the abuse of public office by Taib. Neither Taib, his spouse nor other of his family members were independently wealthy prior to Taib holding any official position in Malaysia. Taib family members and related companies have benefitted from numerous timber licences, land leases and state contracts awarded to them in an obvious conflict of interest. When dealing with third parties, through cousin's and representatives, Taib requires a bribe payment made to him, indirectly, in exchange for the sale of Malaysian land or for timber concessions. 16. There has been a significant acquisition and development of real estate in numerous countries around the world, including Canada, by Taib family members. Jamilah and her husband, Sean Murray, and related companies began purchasing and developing Ottawa real estate, both commercial and residential in The multi-million dollar purchases of such Ottawa properties commenced when she was just 23 years old with no apparent independent source of wealth other than her father / family. BMF has attempted to uncover the nature of these real estate transactions and the origin of the money that has funded the rapid growth of Canadian Taib-related companies. BMF has conducted an extensive investigation in this regard which was compiled and set out in BMF's report of 2016 entitled Safe Haven Canada ("Safe Haven Report"). 17. It appears that the Taib Entities have and are laundering proceeds of corruption from Malaysia through the receipt of funds, directly or indirectly (through companies or nominees) from Taib and/or his brother Onn Bin Mahmud ("Onn"). Onn is Taib's younger brother, and, together with Jamilah, is a founding director of the Ottawa-based Canadian company Sakto Development

8 -8- Corporation ("Sakto"). Onn was born in 1949 and has acted as Taib's point person in establishing companies internationally, including in Canada, Hong Kong and Australia. Onn had a key role in the takeover of massive Sarawak state-enterprises by the Taib family and has also accumulated extreme wealth while conducting business for Taib. Such business and industries include logging, exporting and banking. 18. Over the years, and commencing immediately upon graduating from university in her 20s, Jamilah and her husband, Sean Murray, and related companies have amassed a significant real estate portfolio in Ottawa, Canada. Their businesses include purchasing and developing and/or constructing commercial and residential properties. 19. Sakto, based in Ottawa, was one of the primary companies used by Jamilah and Sean Murray in such ventures. Taib has admitted to providing Jamilah with money to start Sakto. Although he characterizes the source of such funds as his gratuity from his government employment. 20. For at least the time from 1983 to 1993, Sakto operated at constant losses. Despite these constant losses, Sakto's assets grew significantly as a result of the influx of at least CAD$28.8 millions of dollars-worth of "shareholder loans". These shareholder loans appear to have been funded by Taib and his family members, as Sean Murray, president of Sakto, and Jamilah's husband, has admitted that the shareholders were Jamilah and three of her family members, including Onn. Jamilah has also admitted that Sakto's investors are located overseas, primarily in Malaysia. This influx of capital constitutes the money laundering of just part of the proceeds of Taib's corruption.

9 Jamilah has a personal interest in at least 90 Malaysian companies. Of significance, and as an example of her involvement in her father's corruption, is her direct involvement in the privatization of a former Malaysian state company, which company has become Sarawak's largest infrastructure development group, benefiting from numerous public contracts worth over MYR$4.9 billion (CAD$1.54 billion). 22. Laundering money in Canada through Jamilah, related companies and other family members is consistent with Taib's pattern of laundering funds around the world. Taib has a company or familial connection to over 400 companies in 25 countries around the world. This is notwithstanding that Sarawak's constitution forbids the Chief Minister and the Governor from engaging in commercial activities. III. Underlying Offences 23. The designated offence for the purposes of laundering the proceeds of crime is any offence that may be prosecuted as an indictable offence and a conspiracy or attempt to commit any such offence. For the offence of laundering the proceeds of crime, criminal liability extends to not only dealing with the proceeds of designated offences committed in Canada but also to dealing with the proceeds of "an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence."2 Likewise, for the possession of property obtained by crime, the proceeds must be derived from the commission in Canada of an offence punishable by indictment or an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.3 2 Criminal Code, ss 462.3(1) & (1)(b). 3 Criminal Law Amendment Act, s 29.

10 Here, the applicants have some reason to believe that the Taib Entities and their associated individuals have dealt with property that they knew or believed to be the proceeds of acts or omissions that would have constituted designated offences if they had occurred in Canada. 25. Specifically, the acts and omissions in question correspond to the following indictable offences in Canadian law: (a) Frauds on the government, s. 121(1) Criminal Code; (b) Breach of trust by public officer, s. 122 Criminal Code; and (c) Fraud, s. 380(1) Criminal Code. 26. Taib's actions in Malaysia are sufficient to meet the actus reus and mens rea of these crimes. IV. Documents Are Required From The Respondents 27. Notwithstanding the extent of the information available, documents that are only in the possession of the respondents will be important evidence to establishing any money laundering and what parties are participating in it. 28. Each of the respondents have dealt with one or all of the Taib Entities in Canada and based on such involvement possess documents that would and should include, for example, beneficial ownership information, client information, the source of the down-payments on properties, mortgage payments, shareholder loans and large pay-outs of such loans. Such respondents may also have information on private intercompany loans among the Taib Entities, which on their face appear to facilitate the movement of corrupt funds. Further, Deloitte, who are the accountants for

11 -11- Sakto, and possibly the accountants for other Taib Entities, can further confirm important ownership and financial information beyond the information that has been located to date. 29. Canada has been used by the Taib family as a safe haven to harbour their misappropriated and corrupt funds. It is in the public interest that the requested disclosure be made so that this important evidence is considered and any offences of money laundering in Canada by Canadians can be pursued by way of a private prosecution so that there is a potential for justice to subsequently be achieved in relation to decades of rampant and destructive corruption. V. Further Grounds 30. Section 101 and 104 of the Courts of Justice Act, RSO 1990, c. C Rules 14.05(3)(g), 38 and 40 of the Rules of Civil Procedure. 32. The inherent jurisdiction of this Honourable Court. 33. Such further and other grounds as counsel may advise and this Honourable Court may permit. THE FOLLOWING DOCUMENTARY EVIDENCE WILL BE USED AT THE HEARING OF THE APPLICATION: 34. The affidavit of Lukas Straumann sworn June 27, The supplementary affidavit of Lukas Straumann sworn August 21, The affidavit of Misha Boutilier sworn August 18, Such further and other evidence as the lawyers may advise and this Honourable Court may permit.

12 -12- DecembeD02017 BENNETT JONES LLP 3400 One First Canadian Place P.O. Box 130 Toronto ON M5X 1A4 Lincoln Caylor (#37030L) Maureen M. Ward (LSUC #44065Q) corn Telephone: (416) Facsimile: (416) Lawyers for the applicants

13 BRUNO-MANSER-FONDS and MUTANG URUD -and- ROYAL BANK OF CANADA, TORONTO-DOMINION BANK, MANULIFE FINANCIAL CORPORATION and DELOITTE & TOUCHE Applicants Respondents Court File No. CV CL- WSLEGAL\077636\00001\ v2 ONTARIO SUPERIOR COURT OF JUSTICE (Commercial List) Proceeding commenced at Toronto NOTICE OF APPLICATION BENNETT JONES LLP 3400 One First Canadian Place P.O. Box 130 Toronto ON M5X 1A4 Lincoln Caylor (#37030L) Maureen M. Ward (#44065Q) Telephone: (416) Facsimile: (416) Lawyers for the applicants