Pedestrians walk in front of The One, a skyscraper currently under construction in downtown Toronto, on Feb. 13, 2022.Eduardo Lima/The Globe and Mail
The Chinese lender that provided early financing for The One, Sam Mizrahi and Jenny Coco’s luxury condo development in Toronto, is suing its Canadian legal counsel for negligence and a breach of fiduciary duty, according to court documents.
China-East Resources Import & Export Co., or CERIECO, a state-owned Chinese enterprise, is suing Dentons Canada LLP and Philip Rimer, the head of Dentons’ real estate practice in Ottawa, alleging the law firm recommended a middleman to co-ordinate its financing for The One who then acted against CERIECO’s best interests.
In the lawsuit filed in Ontario’s Superior Court in August, CERIECO also alleges Dentons and Mr. Rimer did not properly consult on key matters after the financing arrangement was signed, including changes that brought in other lenders who now rank senior to the Chinese firm. Because of this subordination, which means other lenders must be repaid first, CERIECO alleges it is unlikely to get its money back on the much-delayed condo development.
The One project, located in Toronto’s upscale Yorkville neighbourhood, has now accumulated over $1.5-billion of charges encumbering the lands, with CERIECO ranking last. The lawsuit alleges that “this is in excess of the project’s fair market value, even if construction is completed. As such, even if the project is sold or enters a receivership, the proceeds will be insufficient to repay CERIECO.”
In an e-mailed statement to The Globe and Mail, Dentons said the allegations against the law firm and Mr. Rimer are unfounded: “We deny the assertions in their entirety and cannot provide further comment as CERIECO’s lawsuits are currently before the court.”
The allegations have not been tested in court, and Dentons has yet to file its statement of defence.
Court filings allege that around 2016, Mr. Mizrahi, a real-estate developer, and Ms. Coco, a road paving magnate who co-founded Bridging Finance Inc., the private debt lender that collapsed in 2021, were looking for funding to get their condo project up and running, and turned to CERIECO for financing.
After some negotiations, CERIECO agreed to advance a $213-million contractor’s loan to fund phase one of the project’s development. By June, 2021, however, the project’s first debt repayment to CERIECO had come due and was not paid. In response, the Chinese lender hired insolvency lawyers to investigate.
Roughly a year later, in May, 2022, CERIECO sued Mr. Mizrahi, Ms. Coco and the middleman, Bosco Chan, alleging they had improperly released Ms. Coco’s paving business and Bridging Finance as guarantors for the loan without CERIECO’s knowledge. At the time, Bridging Finance’s 26,000 mostly retail investors likely did not know about the loan guarantee.
In the same lawsuit, CERIECO alleged Mr. Chan, a Chinese and Canadian citizen living in Ottawa, switched the guarantors in exchange for a “release fee” of $7.5-million to be paid from Coco Paving, Ms. Coco’s family paving company, to CERIECO.
Ultimately, however, “none of the purported cash consideration for the release was paid to CERIECO,” the 2022 lawsuit says. Mr. Chan allegedly admitted to the Chinese lender that he accepted a personal payment of $4.5-million and directed a further $3-million to be paid to Mr. Mizrahi’s personal account.
In the latest lawsuit filed in August, CERIECO alleges it recently discovered that between 2018 and 2020, there were a number of subordinations registered against the property, purportedly on its behalf.
“The name of the registering agent was Dentons Canada LLP,” the lawsuit says.
CERIECO alleges that as part of its financing arrangement, it was at all times communicated to Dentons and Mr. Rimer that instructions on its behalf were to come from Long Hai Wang, the president of CERIECO China.
CERIECO also alleges “it was at all times communicated to Dentons and Mr. Rimer that Mr. Chan was not authorized to make decisions on behalf of CERIECO or CMEC in any capacity, including as an agent,” according to the lawsuit. (CMEC, or China Machinery Engineering Corporation, is CERIECO’s parent company.)
“Accordingly, Dentons and Rimer drafted (and Bosco agreed to) a provision in the agency agreement specifically acknowledging that Bosco had no authority to sign documents on behalf of CERIECO.”
As well, CERIECO alleges that when it registered a Canadian subsidiary – which ultimately lent the money to The One project – “Dentons drafted (and CERIECO adopted) the following provision as part of CERIECO’s By-Law No. 1: Contracts, documents or instruments in writing requiring the signature of the corporation shall only be signed on behalf of the corporation by Mr. Long Hai Wang.”
Yet CERIECO alleges it discovered after the fact that other lenders had been brought in to finance the project without its knowledge, and claims it “was never consulted by Dentons and Mr. Rimer on any purported change in priorities, and it never agreed to the subordination of its rights in this manner (or at all).”
Instead, the subordination agreements were allegedly executed by Mr. Chan alone, even though he had allegedly told Dentons: “I cannot sign without authorization from China, it’s beyond my capacity to do it.”
In the lawsuit, the Chinese lender alleges Dentons and Mr. Rimer repeatedly insisted that Mr. Chan execute the subordination agreements on behalf of CERIECO, “and threatened that Mr. Chan and CERIECO would be subject to ‘significant litigation’ by Sam and Jenny if he did not do so.”
CERIECO also alleges it has discovered documentation that shows Mr. Chan ultimately agreed to sign the subordination agreements, “but in his covering e-mail attaching the executed signature pages, he wrote: ‘I am only signing on my own behalf not representing CHINA.’”
The Chinese lender confronted Mr. Chan about his purported role in executing the subordination agreements and alleges he admitted to doing so. He also allegedly wrote a letter to CMEC and wrote the following (translated from Chinese to English): “I personally chose not to report to the leaders and took full liability because of the pressing deadline.”
In one e-mail that CERIECO discovered during its investigation, Mr. Mizrahi allegedly instructed Dentons to: “[S]tay on top of [Bosco] every 15 minutes. Please it’s [sic] now or never. Thank you … Trust me on this one. You need to micro manage this and tell [him] its urgent or we will miss the funding date.”
Mr. Chan and Mr. Mizrahi did not respond to questions from The Globe.
CERIECO also alleges it has discovered documentation that contains a standstill provision preventing it from taking any enforcement action in connection with its loan until The One’s largest lender, KEB Hana Bank Canada, is fully repaid. The Chinese lender alleges that it never authorized or signed such a provision.