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Court File No. CV-09-390024

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ONTARIO SUPERIOR COURT OF JUSTICE


BET WEE N: NO. 933 Plaintiff - and -

METROPOLITAN TORONTO CONDOMINIUM CORPORATION

BROOKFIELD RESIDENTIAL SERVICES LTD., CHRISTINE MAITLAND, and HELEN KENNERNEY Defendants AFFIDAVIT OF JUDY SUE SWORN ON JUNE 7, 2010

I, Judy Sue, of the City of Toronto, in the Province of Ontario, MAKE OATH AND
SAY:

1.

I am the Vice President and Treasurer of the plaintiff condominium

corporation

("MTCC 933").

I was first elected as a director on June 4, 2008. I am also a Certified

General Accountant employed by the Royal Bank of Canada as a Senior Financial Analyst.

Background 2. True copies of the pleadings in this lawsuit will be filed with the Court together with

this affidavit and the notice of motion. Included also is a copy of the Notice of Change of Lawyers filed with the court which resulted in all of the defendants being represented by a

single firm, Stieber Berlach, after the defendant Christine Maitland ("Maitland") first defended the claim with separate counsel.

3.

This motion is for a Norwich Order to aid MTCC 933 in obtaining and preserving

information and property so that it can ultimately obtain compensation for the failed toilet purchase order described at paragraphs 12 to 24 of the Statement of Claim.

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4.

As set out in greater detail in the Statement of Claim, while the defendants were

supplying management services to MTCC 933, a cheque in the amount of $142,276.65 was paid to AGG Alliance Contracting Group, a company operated by Gregory

Chatzisavvas, an individual also known as Greg Hatsisavvas and Greg Hatasisavvas ("Chatzisavvas"). (During the time that AGG Alliance Contracting Group did some

contracting work at the condominium property prior to the receipt of the cheque, it went by the name of Alliance Contracting Group and Alliance Contracting Group Inc.; all of these shall henceforth be referred to as "AGG Alliance").

5.

The money advanced in this fashion was supposed to be used to purchase water-

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efficient toilets for installation in approximately 300 condominium suites at 38 Elm Street, Toronto (the "property"), which is where I reside and am a condominium owner.

6.

The cheque in the amount of $142,276.65 represented 100% of the purchase price

of the toilets. A true copy of the cheque as dated July 17, 2007 is attached as exhibit "A".

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7.

MTCC 933 has alleged and I believe that this amount was advanced to AGG

Alliance and Chatzisavvas on the recommendation of the defendants. Maitland, the on-site manager at the property recommended to then-members of the MTCC 933 board that the
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toilet purchase order be awarded to AGG Alliance. As shown on exhibit "A", the defendant Helen Kennerney ("Kennerney"), Maitland's supervisor, was one of the signatories on the cheque. We say she failed in her duties to MTCC 933 in permitting the advance payment to take place. The president of MTCC 933 at the material time, Leo Seto, also signed the cheque. Mr. Seto has advised me, and I do believe, that he signed the cheque trusting

Maitland's advice as the on-site manager, and because he trusted the competence of Kennerney, who had already signed it.

8.

After several months of chasing after AGG Alliance and Chatzisavvas to deliver and

install the toilets, it became apparent to the board of MTCC 933 and to condominium owners that AGG Alliance and Chatzisavvas were never going to deliver and install them.

9.

MTCC 933 eventually sued AGG Alliance and Chatzisavvas and obtained default MTCC 933 was unable to execute on the judgment, however, as AGG Alliance A true copy of the investigative report

judgment.

had no assets and Chatzisavvas had disappeared.

of Peter McNulty & Associates dated August 6, 2008 detailing the unsuccessful efforts to find Chatzisavvas is attached as exhibit "B".

Involvement of Others in Theft

1.

Maitland

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MTCC 933 has pleaded that: "Maitland assisted in perpetrating this fraud upon

MTCC 933, either knowingly as a party to AGG Alliance and Chatzisavvas's fraud and in exchange for a payment from them in an amount unknown to the plaintiff, or by her negligence."

11.

I believe Maitland played a role in the fraud for several reasons: (a) MTCC 933 possesses considerable evidence that Maitland had a non-arms length relationship with Chatzisavvas that she never disclosed to MTCC 933; (b) AGG Alliance correspondence to MTCC 933 respecting the toilet purchase order was prepared by Maitland; and (c) Maitland defrauded MTCC 933 prior to the toilet purchase order cheque being advanced.

(a)

Non-arms length relationship

12.

In respect of the prior non-arms length relationship with Chatzisavvas,

I have

carefully reviewed the telephone

records of calls initiated by Maitland with cellular

telephones provided by MTCC 933 and have come to the following conclusions: (a) During the period from April 19, 2006 to February 19, 2008, Maitland appears to have made 121 calls to AGG Alliance and Chatzisavvas of which: (i) 40 were made from outside of Toronto (i.e., not from the property); and
(ii)

19 were made on evenings or weekends; and

. (b)

Of these 121 calls, 42 were made during a five-month period in 2006 when MTCC 933 had not contracted any work to Chatzisavvas or any companies

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known to be associated with him.

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13.

These calls were made to 6 different telephone numbers of AGG Alliance and

Chatzisavvas as follows: (a) 4164648352, the cell telephone number shown on Chatzisavvas's business

card, a true copy of which is at exhibit "C"; (b) 416 424 4161, the main telephone business card at exhibit "C"; (c) 4169899917, the cell telephone number shown on Chatzisavvas's brother number shown on Chatzisavvas's

Paul's business card, a true copy of which is at exhibit "0" (14 of the calls were made to this number); (d) 416 678 9903, another telephone number shown in handwriting on

Chatzisavvas's business card at exhibit "C", which is the same as a number which was given to a condominium owner named Ida Seto (An e-mail by Ms. Seto, which contains information that I believe to be true, advises that Maitland gave her this number; a true copy of the e-mail is attached as exhibit "E"); (e) 647500 1828, the telephone number of an associate of Chatzisavvas named 'Tony" as given to Ms. Seto as shown in exhibit "E" (three of the calls were made to this number); and (f) 416 508 5083 another telephone number given to Ms. Seto as shown in exhibit "E". Attached at exhibit "F" is a true copy of a summary I prepared of these telephone calls, and at exhibit "Gil the telephone records from which I prepared the summaries.

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14.

I note that my summary at exhibit "F" only shows calls made, not received - as can

be seen from exhibit "Gil, TELUS does not record the caller number on incoming calls. Furthermore, Maitland may have also initiated calls to Chatzisavvas on her home

telephone number or on other telephones used by her. At this point in the lawsuit we have no records relating to these possibilities from Maitland.

15.

Maitland's own use of more than one cell telephone number to make these calls is

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itself suspicious. As noted in the third page of my summary at exhibit "F", in May 2007 she stopped using her old telephone number and began using the telephone number 416688 2242 for her telephone calls to AGG Alliance and Chatzisavvas. The name of Marte Cruz, a cleaner at the property, is shown on the TELUS invoices as the user of this telephone. Iffat Ladha, the current property manager (who is unassociated with Brookfield), has

spoken to Mr. Cruz and otherwise reviewed the matter herself and she has advised me, and I do believe, that Mr. Cruz was never given a cell phone for his own use. A true copy of an e-mail from Ms. Ladha confirming her discussions with Mr. Cruz is attached as exhibit

"H",

16.

I only reviewed the lists of telephone calls after Maitland stopped acting as the on-

site property management on April 30, 2008. MTCC 933 had no idea that Maitland had such frequent contact with AGG Alliance and Chatzisavvas at the time she worked at the property.

17.

In addition to the information about AGG Alliance and Chatzisavvas's telephone

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numbers, Ida Seto has provided me with information that leads me to believe that one of Maitland's daughters, Laura Silva, was married to a subcontractor who did work for AGG Alliance and Chatzisavvas at material times. Ms. Seto advised me and I do believe that when she hired AGG Alliance and Chatzisavvas to do work in her condominium suite, he sent a tile installer to do part of the job. She further told me and I do believe that this tile installer asked that payment for extra work done by him be made by a cheque payable to Laura Silva, his wife. I know that one of Maitland's daughters is named Courtney Silva. I therefore believe that Laura Silva is her other daughter. A true copy of an e-mail that I

received from Ms. Seto on May 30,2010 confirming this information, the contents of which I believe to be true, is attached as exhibit "I".

(b)

Preparation of correspondence for AGG Alliance and Chatzisavvas

18.

Maitland not only had the above-described

connections with AGG Alliance and

Chatzisavvas prior to his being awarded the toilet purchase order, she also helped them create correspondence respecting the toilet purchase order almost three months after AGG Alliance and Chatzisavvas were given the $142,276.65 cheque. Attached as exhibit "J" to this affidavit is a composite exhibit consisting of: (a) A letter from AGG Alliance and Chatzisavvas to MTCC 933 dated October 3, 2007 assuring MTCC 933 that the work on installing the toiletswould on October 23,2007; (b) A printout of the same letter from a "Word" document stored on the computer that was exclusively used by Maitland while she was the manager at the property; begin

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(C)

An e-mail report of Phillip D. Bidinoff dated September 30,2009 concluding that the "Word" document of the letter from AGG and Chatzisavvas to MTCC 933 dated October 3,2007 was created, edited, and printed by Maitland on the same computer on October 2, 2007;
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(d) (e)

The metadata scan results; and A further e-mail report of Phillip D. Bidinoff dated September 30, 2009

responding to follow-up questions by William Stratas, the President of MTCC 933.

(c)

Maitland's known thefts

19.

After Maitland stopped working at the property in April 2008, MTCC 933 discovered

that Maitland used MTCC 933 credit cards, petty cash belonging to MTCC 933, and cheques drawn on MTCC 933's operating account in order to purchase goods and services for her own benefit, including what appear to be renovation materials for her home, during her time as on-site property manager.

20.

My own review of the relevant documents has led me to conclude that Maitland misrepresenting the purposes for which items

concealed her activities by fraudulently

appeared in credit card statements, entering false information into petty cash expense records, misrepresenting temporary staffing expense allocations, and diverting cash

payments for employees of MTCC 933 that ought to have been paid as Christmas bonuses and qratuities. I ultimately concluded that the total amount stolen by Maitland from MTCC 933 in this manner was $33,533.90.

21.

Prior to litigation

being commenced,

Brookfield

Residential

Services

Ltd.

("Brookfield") undertook its own examination of MTCC 933's records and appears to have acknowledged a " .,. systematic abuse of trust and care in expenses that [Maitland]

recorded over a period of 28 months while assigned as a manager at 38 Elm Street." This admission was confirmed in a letter from MTCC 933's lawyer Armand Conant to the President and CEO of Brookfield, John Oakes, dated June 29,2009, a true copy of which is attached as exhibit "K".

22.

Some aspects of this part of the lawsuit were settled earlier this year with the

defendants agreeing to pay MTCC 933, in full, all amounts that MTCC 933 claimed in respect of the thefts plus some costs.

23.

It should be noted that the defendants settled the claims relating to Maitland's thefts

without any admission of liability. MTCC 933's lawyer has advised me, and I do believe, that outstanding issues related to the thefts remain. These include MTCC 933's right to prove the thefts in respect of MTCC 933's claim for full indemnity for all consequential damages flowing from them (such as the bills of pre-litigation lawyers), punitive damages, and in respect of whether the pre-litigation efforts to resolve issues relating to the known thefts were entered into in good faith (see paragraphs 4 to 6 of the Kennerney and Brookfield defence included in the Motion Record, and paragraphs 3 to 5 of MTCC 933's Reply to that defence). Maitland's participation My lawyer tells me that MTCC 933 also intends to argue that in the toilet purchase order was part of a dishonest pattern of

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conduct that characterized her entire 29-month tenure as on-site manager, and that the

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other defendants engaged in a continuous course of negligent conduct that included the failure to supervise Maitland both while she was stealing money and in relation to the toilet purchase order.

2.

Hexil

24.

Chatzisavvas's did some construction work at MTCC 933 under the business name

Hexil General Contracting ("Hexil"). Attached as exhibit "L" is a true copy of a log book entry made by a concierge's recording that Chatzisavvas (identified as "Greg") was to be contacted in respect of work being done by Hexil at 416464 8352. This is the same as the cellular phone number shown on his AGG Alliance business card at exhibit "C".

25.

Hexil has or had a bank account at the same branch of TD - Canada Trust as I know this from

Maitland, which is branch no. 1802 on Whites Road in Pickering.

examining the back of MTCC 933 cheques deposited by Hexil and by Maitland, true copies of which are attached at exhibits "Mil and "N", respectively.

3.

Paul "Hatsisavvas"

26.

Chatzisavvas's brother Paul was with AGG Alliance at material times, as shown by

his business card at exhibit "D". Telephone records showing Maitland calling him 14 times, as aforesaid. One of the calls Maitland made to him was made from Belleville. The

private investigator's report at exhibit "8" documents attempts to speak to Chatzisavvas's brother Paul that were unsuccessful.

4.

Others whose involvement may be recorded

in bank records

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27.

As stated above 1 believe Maitland has two daughters and that one of them - Laura

Silva - was married to a sub-tradesman working with Chatzisavvas at material times.

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28.

Maitland's other daughter - Courtney Silva - appears on the payroll of MTCC 933

for the first two months in 2007, the same year that AGG Alliance and Chatzisavvas received the $142,276.65 cheque. She was supposedly hired by Maitland to fill in for an employee who was on maternity leave.

29.

Another employee or representative of AGG Alliance repeatedly called by Maitland MTCC 933 is in the possession of a business card belonging to Antonio

was "Tony".

Mazza, a true copy of which is attached as exhibit "0". I believe that "Tony" and Antonio Maza are the same person, though I note that the number on the business card is different from that given to Ms. Seto for "Tony". As shown in exhibit "F", Maitland appears to have called this associate of Chatzisavvas on September 25, 2007, February 18, 2008, and February 19, 2008. Toronto. The last two calls were made from Oshawa and Pickering, not

These last two cails were made over seven months after AGG Alliance and (Exhibit "F" also shows how Maitland

Chatzisavvas received the $142,276.65 cheque. made 7 calls to one of Chatzisavvas's

many telephone numbers in December 2007 to

January 2008, all but one of which were made from outside of Toronto.)

The forgery 30. . Persons unknown to MTCC 933 attempted to forge and deposit a cheque drawn on

MTCC 933's bank account in the amount of $221,670.45 to an account held at a Bank of

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Nova Scotia branch in Mississauga

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in July 200S, one year after the cheque for The back of the cheque tells me that the

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$142,276.65 was advanced to Chatzisavvas.

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cheque was received at a branch in Brampton for deposit to the Mississauga account but it appears that it was not cleared by the bank's processing centre because it lacked a date. A true copy of the undated forged cheque is attached as exhibit "P". There is a striking similarity between the forged signatures on the cheque at exhibit "P" and the genuine signatures on the cheque for $142,276.65 at exhibit "A".

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Possible fabrication and suppression

of evidence by defendants

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31.

The defendants have provided a draft affidavit of documents, a true copy of which is

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at exhibit "Q". Listed at items 25 and 27 are s-mails allegedly sent by Maitland to a former MTCC 933 board member, Dr. Walter Howell (also known as Pete Howell), on July 4, 2007. Photocopies of these a-mails, as produced by the defendants with handwritten

notations by unknown persons thereon, are attached as exhibits "RI)and "S" respectively. These s-malls appear to show Dr. Howell being told, prior to the toilet purchase order being made, that AGG Alliance and Chatzisavvas wanted MTCC 933 to pay 100% of the acquisition cost of the toilets up front.

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32.

There is no other evidence of any sort known to MTCC 933 that suggests that

MTCC 933 was told, in anyway, thatAGG Alliance and Chatzisavvas required payment in full up front in the event that the toilet purchase order was awarded to them.

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33.

_ I have spoken to Dr. Howell, shown him copies of items 25 and 27, and he has

advised me, and I do believe, that he never received these e-rnails.

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34.

MTCC 933's lawyer, Paul Dollak, has on three occasions made requests for

electronic versions of these documents. A true copy of his most recent request made on May 21,2010 is attached as exhibit ''1''. Mr. Dollak advises me, and I do believe, that he has yet to receive a response to this letter.

35.

MTCC 933 recently engaged a company called Digital Wyzdom to conduct further

forensic reviews of the data on the hard disk drive of the computer that had been exclusively used by Maitland while she worked at the property. After Maitland left, the

same computer was used by Maitland's replacement Wendy Wright. Digital Wyzdom very recently provided MTCC 933 with a series of recovered e-mails between Wright and Kennerney dated July 31, 200S in which Wright advises Kennerney in response to an email titled "RE payment": I have gone through the emails three times and can't find anything prior to July Nor nothing which states that Greg needs the money up front. Sorry Helen.

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A true copy of Digital Wyzdom's report dated June 3, 2010 respecting the e-mails dated July 31, 200S as recovered by Digital Wyzdom is attached as exhibit "U" together with the CV of Rene Hamel of Digital Wyzdom.

36.

The July 31, 2008 e-mails uncovered by Digital Wyzdom are not disclosed in the

defendants' draft Affidavit of Documents in any way and have not been produced by them. I note that these s-malls were sent more than one year before this lawsuit was commenced, at a time when Brookfield was still supplying management services to the plaintiff and while Brookfield was purporting to assist the plaintiff in pursuing Chatzisavvas.

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Banks and Bank Accounts

37.

I believe that documents and information relating in the following bank accounts

would assist in identifying wrongdoers besides AGG Alliance and Chatzisavvas, preserve evidence against them, determine whether a cause of action exists against them, and possibly preserve funds belonging to MTCC 933: (a) TD - Canada Trust account no. 522-011-5 at branch 0192 (1846 Lawrence Avenue East, Scarborough ON M1 R 2Y4). This is the account to which the $142,276.65 deposited. (b) TD - Canada Trust account no. 520-827-5 (or 520-827-9 -the handwriting is unclear) at branch 1802 (1822 Whites Road, Pickering ON L1V 4M 1). This is the Hexil account described above to which the cheque found at exhibit "Mil, appears to have been deposited. (c) TD - Canada Trust account no. 622-026-4, also at branch 1802. This is the Maitland account described above which the cheque found at exhibit "N", appears to have been deposited. (d) Royal Bank of Canada account no. 101-021-4, at branch 06192 (65 Overlea Blvd., Toronto ON, M4H 1P1). This is an AGG Alliance account that appears to have been used by AGG Alliance and Chatzisavvas to deposit cheques for work done prior to the receipt of the $142,276.65 cheque. A true copy of a cheque that appears to have been deposited to this account is at exhibit "V". / (e) Bank of Nova Scotia account no. 007-271-0, Goreway Drive, Mississauga ON, L4T 2T9). at branch 67082 (7205 cheque, which is at exhibit "A", appears to have been

The attempt to deposit the

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forged cheque, at exhibit "P", was made to this account.


(f)

Bank of Nova Scotia account no. 003-421-5,

at branch 07906 (2290

Lawrence Avenue East, Scarborough ON, M1 P 2P9). This is another AGG Alliance account that appears to have been used by AGG Alliance and Chatzisavvas to deposit cheques for work done prior to the receipt of the $142,276.65 cheque. A true copy of a cheque that appears to have been deposited to this account is at exhibit "W".

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38.

I determined the account numbers and the location of the above accounts from the My

information printed on the back of the cheques that have been attached as exhibits.

handwritten summary of my work is attached at exhibit "X" as it may assist this Honourable Court.

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Indemnification 39. MTCC 933 hereby undertakes to indemnify all banks ordered to make disclosure for

the costs to which they may be exposed or which they may incur for making the disclosures sought.

Status of Proceeding

40.

There is a litigation plan forthis proceeding. A true copy of a letter from Paul Dollak

to Barry Cox dated January 11, 2010, which sets out this litigation plan, is attached as exhibit "Y". The exchange of productions referred to in the tetter has taken place and discoveries are booked. We have not received sworn affidavits of documents from the

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defendants, though, even though MTCC 933's lawyer has demanded them.

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41.

In addition to the matters discussed in the litigation plan, the parties have agreed to

mediate this dispute before Gary Caplan on September 14, 2010.

42.

I make this affidavit in support of a motion for equitable discovery and no improper

purpose.

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SWORN BEFORE ME at the City of Toronto, in the Province of Ontario this 7th day of June 201 0

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Paul Dollak, a commissioner etc.

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