June 2017: Bruno Manser Fonds (BMF) initiates secret court case using rare legal proceeding
BMF launched a private proceeding in the Superior Court of Justice in Ottawa, Canada.
BMF used a legal proceeding called a Norwich Order. It involves the Applicant (BMF) demanding documents from one party, to prove a case against another.
In this instance, BMF wanted the court to force four Canadian financial institutions to disclose confidential financial information regarding Sakto Corporation. The institutions were: Royal Bank of Canada (RBC), Toronto-Dominion Bank (TD Bank), Manulife, and Deloitte.
This was an unusual move, with no relevant precedent. Norwich Orders are generally made by innocent third parties that have been wronged by fraud – this was clearly not applicable to BMF.
In requesting the Norwich Order, BMF had to provide full and fair disclose of the evidence they had assembled against Sakto. That evidence, including over 2,000 pages of records, was all contained in an Affidavit (sworn statement and evidence) provided by Lukas Straumann, Executive Director of BMF.
BMF used a legal proceeding called a Norwich Order. It involves the Applicant (BMF) demanding documents from one party, to prove a case against another.
In this instance, BMF wanted the court to force four Canadian financial institutions to disclose confidential financial information regarding Sakto Corporation. The institutions were: Royal Bank of Canada (RBC), Toronto-Dominion Bank (TD Bank), Manulife, and Deloitte.
This was an unusual move, with no relevant precedent. Norwich Orders are generally made by innocent third parties that have been wronged by fraud – this was clearly not applicable to BMF.
In requesting the Norwich Order, BMF had to provide full and fair disclose of the evidence they had assembled against Sakto. That evidence, including over 2,000 pages of records, was all contained in an Affidavit (sworn statement and evidence) provided by Lukas Straumann, Executive Director of BMF.
August 2017: Court case becomes public
Judge Justice Myers of the Ontario Superior Court decided that a full and public hearing was more appropriate. Sakto was informed about BMF’s action and the Norwich Order, and given the right to defend itself in court.
January 2018: Lukas Straumann is cross-examined
Sakto’s legal team had the right to cross-examine Lukas Straumann on his affidavit and evidence. They formally interrogated Mr Straumann under oath, and the exchange was transcribed and included in the court evidence.
Lukas Straumann’s cross-examination testimony is a public document – it is summarised and available in full here.
What is clear from this testimony is that, firstly, his beliefs, assertions, and allegations regarding Sakto are not supported by evidence, and secondly, that his written affidavit (submitted to court under oath) is full of false, misleading, and inaccurate statements.
Lukas Straumann’s cross-examination testimony is a public document – it is summarised and available in full here.
What is clear from this testimony is that, firstly, his beliefs, assertions, and allegations regarding Sakto are not supported by evidence, and secondly, that his written affidavit (submitted to court under oath) is full of false, misleading, and inaccurate statements.
5 February 2018: The court decision: case dismissed
The final court hearing was scheduled for two full days of oral argument.
The lawyers from all concerned parties – BMF, RBC, TD Bank, Manulife, Deloitte, and Sakto – were assembled and prepared in the courtroom.
Before him, Justice Dunphy had two full boxes of documents and evidence. Indeed, BMF on its own had submitted seven volumes of evidence. BMF’s legal counsel was asked to present their case.
Before lunch, it was all over. Justice Dunphy dismissed the case, and none of the other lawyers was required to speak.
Justice Dunphy was clear that BMF’s application for a Norwich Order was overstepping the line. It would have given greater powers to individuals investigating a possible crime than those Parliament has conferred upon police and other public officials.
The Judge also made the following key points:
The court decision document, dated 7 February 2018, is available in full here.
The lawyers from all concerned parties – BMF, RBC, TD Bank, Manulife, Deloitte, and Sakto – were assembled and prepared in the courtroom.
Before him, Justice Dunphy had two full boxes of documents and evidence. Indeed, BMF on its own had submitted seven volumes of evidence. BMF’s legal counsel was asked to present their case.
Before lunch, it was all over. Justice Dunphy dismissed the case, and none of the other lawyers was required to speak.
Justice Dunphy was clear that BMF’s application for a Norwich Order was overstepping the line. It would have given greater powers to individuals investigating a possible crime than those Parliament has conferred upon police and other public officials.
The Judge also made the following key points:
- BMF filed a large volume of information relating to their allegations, yet “much of that information is of the hearsay variety, arising from media and similar accounts”.
- BMF’s evidence consists of “suspicions but very little concrete evidence”.
- BMF’s allegations against Sakto of money laundering “depend upon conjecture and suspicion more than evidence”.
- BMF is “looking not only to determine who committed a particular crime and how, they are looking to find if any crime has been committed at all”.
The court decision document, dated 7 February 2018, is available in full here.
So what happened? The truth and facts exposedJustice Dunphy was clear that BMF’s application for a Norwich Order was overstepping the line. It would have given greater powers to individuals investigating a possible crime than those Parliament has conferred upon police and other public officials. The Judge also made the following key points:
The court decision document, dated 7 February 2018, is available in full here. |
BMF ordered to pay…… CAD 176,272 in costs to Sakto and the other parties involved. This Costs Order is in in addition to the substantial costs of BMF’s own legal team (which BMF declined to disclose). In ordering BMF to pay the costs, the Judge also made the following key points:
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How the Canadian financial institutions responded
The four institutions, caught in the middle of the Bruno Manser Fonds campaign against Sakto, could have focused entirely on the legal basis for rejecting the BMF Norwich Order.
Instead, these reputable institutions – holders of the records that BMF said were necessary to show money laundering – actually defended the case on the merits, and pointed out to the court that there was no evidence of wrongdoing at all:
Instead, these reputable institutions – holders of the records that BMF said were necessary to show money laundering – actually defended the case on the merits, and pointed out to the court that there was no evidence of wrongdoing at all:
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There is, in fact, no evidence of an actual connection; there is only speculation. |
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[BMF] have not established the commission of a crime in Malaysia, nor do they have sufficient evidence of wrongdoing to establish that conduct occurred in Malaysia that, if it had occurred in Canada, would be considered a crime here.
Read their full legal position summary (factum) here.
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The evidence put forward by the Applicants is clearly insufficient to justify such extraordinary relief. |
Canadian Court Case Library
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Application Documents
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Endorsement |
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File Direction Order |
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Notice of Application |
Facta
The written arguments of the parties to the Canadian court case
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Factum of Sakto |
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Factum of Bruno Manser Fund |
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Factum of Deloitte & Touche LLP |
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Factum of Manulife Financial |
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Factum of Royal Bank of Canada & Toronto-Dominion Bank |
The affidavits filed as evidence in the proceedings
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Affidavit of Lukas StraumannThe affidavit submitted by Lukas Straumann and BMF which outlines the dismissed allegations of the Norwich Order
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Supplementary Affidavit of Lukas Straumann |
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Affidavit of Misha Boutilier |
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Affidavit of Kimberly Campbell |
Cross Examination of Lukas Straumann
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Transcript of the Cross Examination |
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Notice of Examination |
Court Rulings
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Reasons for Decision |
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Order for Security for Costs |
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Final Costs Order Against BMF: $176,272.04 |
