Singh v Kaler, 2015 ABQB 738

Court of Queen ’ s Bench of Alberta Citation: Singh v Kaler, 2015 ABQB 738 Date: 20151123 Docket: 0501 17730, 0401 06123 Registry: Calgary Between: Harminder Singh and Balbir Singh Plaintiffs - and - Narinder Pal Kaur Kaler and Harjinder Singh Sahota Defendants And Between: Jarnail Sihota Plaintiff - and - Narinder Pal Kaur Kaler and Harjinder Singh Sahota Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice P.J. McIntyre _______________________________________________________ I. Introduction

[ 1 ] This is a dispute over a 9 acre parcel of land beside the Trans-Canada Highway near Chestermere, Alberta (the “Land”). The defendants purchased the Land in late 1996 for $220,000. Its value is now between $2,000,000 and $3,000,000. The plaintiffs contributed at least $39,000 to the purchase price. No written agreement or memorandum reflects why the plaintiffs contributed $39,000. [ 2 ] Of the purchase price, $165,000 was in the form of a mortgage from RBC. The defendants deposited $10,000. The cash-to- close was $56,300, inclusive of legal fees.

Of the cash-to-close, the defendants acknowledge receiving $29,000 from Jarnail Sihota, and $10,000 from Harminder Singh, but say these funds were repayment of debts owed by the plaintiffs to the defendants. The plaintiffs say they provided the $39,000 as a contribution to the purchase price, pursuant to an oral agreement that they would be co-owners. They say that pursuant to the oral agreement Jarnail Sihota should be recognized as a 50% owner of the land, Harminder Singh and Balbir Singh recognized as 25% owners, and the defendants as 25% owners.

The plaintiffs say if this was not a co-ownership agreement, it was a trust agreement, and if not a trust agreement, the circumstances give rise to a resulting trust. [ 3 ] I intend no disrespect in using first names. Counsel agreed to refer to the parties as follows: the plaintiffs are Harminder Singh (known as “Mandy”), Balbir Singh (known as “Bill”) and Jarnail Sihota. Despite their different surnames, Bill and Jarnail are brothers. Mandy is Bill’s wife. I will refer to these parties collectively as the “plaintiffs”.

The defendants are Harjinder Singh Sahota (known as “Harry”) and Narinder Pal Kaur Kaler, who are husband and wife. Despite the similarity in their surnames, Jarnail and Harry are not related. The parties have considerable history together. Although Bill and Jarnail did not get along well, both were close friends with Harry. Bill and Harry carried on a landscaping business after the purchase of the Land. II. The evolution of the claims [ 4 ] On April 1, 2002, the defendants listed the Land for sale for $599,000.

On April 17, 2002, by caveat 021 128 386, Mandy claimed a 25% interest in the Land, alleging a purchase agreement with the defendants for which there was written evidence. [ 5 ] On January 20, 2004, by caveat 041 026 802, Jarnail claimed a 25% interest in the Land, alleging an agreement with the defendants for which there was written evidence to purchase, operate and hold the Land as co-owners and partners.

David Laidlaw, the lawyer who acted for Jarnail in filing the caveat, testified that he had no recollection of preparing the caveat, nor did he have notes, but acknowledged that his standard practice would be to obtain the information to support the caveat from the client.

He acknowledged that he knew the difference between a co-ownership agreement and a trust agreement. [ 6 ] Neither Mandy’s nor Jarnail’s caveat referred to each other’s claim. [ 7 ] On April 16, 2004 Mandy and Bill filed a statement of claim saying that by oral agreement the Land was to have been purchased and held in the names of three parties -- themselves, Jarnail, and the defendants. They say the defendants failed to include the plaintiffs as registered owners and failed to acknowledge their 25% ownership of the Land.

Alternatively, the defendants received $11,300 which they are liable to repay as money had and received to the use of the plaintiffs. The statement of claim was renewed April 15, 2005. They sought specific performance of the oral agreement and damages in lieu of or in addition to specific performance and a declaration of 25% ownership. [ 8 ] On July 18, 2005 the defendants filed a statement of defence to the Singh action and counterclaimed for removal of caveat 021 128 386.

The defendants pleaded the Limitations Act and the Statute of Frauds , and said the Plaintiffs were indebted to them in excess of $10,000 and alleged that the plaintiffs would repay $10,000 as part of the defendants’ closing funds on the purchase of the Land. [ 9 ] On December 19, 2005 the defendants filed an originating notice of motion to have Jarnail’s caveat removed. [ 10 ] By consent order dated March 23, 2009 Justice Phillips consolidated the Singh statement of claim and the defendants’ originating notice of motion to proceed under action number 0501 – 17730 with Jarnail to file a statement of claim and the defendants to file a statement of defence and counterclaim. [ 11 ] Master Laycock heard the defendants’ applications to discharge caveats on September 15, 2009.

Laycock M. held in written reasons ( Singh v Kaler 2009 ABQB 632 ) that Mandy’s interest, as claimed in her caveat, could not be enforced because there was no evidence of a written agreement among the parties and because Mandy and Bill had neither claimed a trust interest nor pleaded one in their statement of claim. He granted the application to discharge the caveat, but did not grant

summary judgment because the defendants had not applied for it. Laycock M. also granted the application to discharge Jarnail’s caveat on the grounds that Jarnail had not filed any proceedings against the defendants within time, which in his view began to run at the latest on January 3, 2006, when Jarnail was served with the defendants’ originating notice of motion and affidavit (para. 37) and that “any claim by [Jarnail] for the enforcement of a trust agreement based on part performance or fraud would now be barred by virtue of the Limitations Act , s.3 ”(para 38).

In para 37 he held: “The statute does not provide that a caveat filed against land in dispute would satisfy the requirement of a proceeding being commenced. There are no judicial authorities to support this proposition.” [ 12 ] The plaintiffs appealed Master Laycock’s decision. On July 13, 2010 Justice LoVecchio adjourned the appeal sine die and ordered a trial of the trust issue. He ordered that the caveats remain registered against the Land, provided the plaintiffs post security for costs in the amount of $300,000.

Although Philips J.’s March 23, 2009 order had consolidated the two actions under action 0501-17730, another consent order was obtained March 22, 2012 in both actions by which the defendants would post costs, and that there would be a trial of the issues, including whether a trust (or trusts) was created in the circumstances. [ 13 ] On February 1, 2013 Jarnail filed a “Statement of the Claim” in the now-consolidated action.

The allegations were an agreement that the plaintiffs and defendants would all together contribute and be partners in the purchase of the Land, that the defendants would apply in their names for mortgage financing, and that the property would be held in trust by the defendants to be beneficially owned “proportionate to each partner’s respective partnership share”. Jarnail was said to have contributed $29,000, or 52%, Mandy contributed $10,000, or 18%, and the defendants $17, 530 or 30%. The parties are said to have agreed to a final reconciliation regarding

cash contributions, inflows and outflows, based on 50%, 25% and 25% shareholdings. Mandy was said to have contributed additional (unspecified) funds from 1996 onward.

Resulting trust was pleaded in the alternative and in paragraph 26, fraud: “It would be a fraud on [Jarnail and Mandy] for the [defendants] to deny the aforesaid trust entered into among and between the parties.” The remedies sought were specific performance of the trust agreement by which the defendants agreed to hold the property in trust for the benefit of Jarnail as to 50%, Mandy as to 25%, and the defendants as to 25%, plus an accounting and a reconciliation of all financial matters relating to the Land, various declarations of trust in accordance with the claimed percentages, and an accounting for all monies had, received and paid in respect of the Lands, or alternatively, that the plaintiffs have a beneficial interest in the Land by way of resulting trust. [ 14 ] On February 11, 2013 the defendants filed a statement of defence but no counterclaim.

They acknowledged receipt of $29,000 from Jarnail and $10,000 from Mandy but said these amounts were repayment of loans made to the plaintiffs when such repayment was required to fund the defendants’ purchase of the Land. [ 15 ] The claim has thus evolved from an allegation of a co-ownership agreement to purchase and hold land (for which there is no written evidence), to an allegation of a trust agreement, (for which there is no written evidence), or a resulting trust, or for money had and received. Jarnail’s caveat assertion of a 25% interest has increased to 50%. III.

Was this an investment by the plaintiffs or a debt to the defendants? [ 16 ] The critical factual issue is whether the plaintiffs have persuaded me that they paid money used for the Land purchase so that they would gain an interest in the Land as co-owners. The defendants say that the money used for the Land purchase was a payment of existing debts by the plaintiffs to the defendants. If the plaintiffs are not successful in persuading me of the purpose of the payment, that is an end to the case.

If they are successful in persuading me that they contributed the money to gain an interest in the Land as co- owners, or pursuant to a trust, or in circumstances that give rise to a resulting trust, the plaintiffs must demonstrate compliance with the legal requirements of the Statute of Frauds and Limitations Act . I will deal first with the core question – was this an investment or a payment of debt? [ 17 ] Credibility and plays an important role in this case.

The parties make confusing, contradictory, and highly interwoven assertions overlaid with references to aspects of the parties’ common Punjabi cultural background. Many of the assertions are relevant only to assessment of the credibility of the parties and not to the ultimate determination of the legal issues. I will address credibility specifically in a separate section. For purposes of the legal analysis, I will limit the recitation of assertions to those I find directly pertinent to resolution of the matter. [ 18 ] The testimony in this case is a morass.

Part of the challenge of this case is the amazingly vague agreement the plaintiffs advance. They offered no testimony that would support terms of how tenants were to be dealt with, rental rates, or shortfalls; how mortgage renewal financing might be arranged and on what terms; how repairs to the property would be paid for; how permits from the Western Irrigation District might be obtained; nor how development issues might be handled. [ 19 ] They gave no evidence about how profits or losses from the Land might be accounted for.

They did not ask for any accounting from the defendants. [ 20 ] The defendants deny any agreement but also question the certainty of whatever agreement the plaintiffs allege. To find facts in this case, I must turn to documents about which there can be no dispute, review the actions of the witnesses to see consistency with their testimony, and apply common sense. [ 21 ] The witnesses contradict each other and sometimes themselves. I am not satisfied that any of the parties to this lawsuit is a credible or reliable witness. By credible I mean whether the witness intends to tell the truth.

By reliable I mean whether the witness is capable of telling the truth. Memories fade, especially over the period of time this case took to get to trial. But this does not end the matter. Even though I may not believe the reason why the plaintiffs say they contributed money, there is no question but that their money was used to the purchase the Land - the defendants used $39,000.

Even though I may not believe the defendants’ denial of any purpose for the contribution but repayment of debt, that does not mean that the plaintiffs have succeeded in demonstrating that they have met the legal requirements to obtain an interest in land. [ 22 ] Ordinarily in a case depending on credibility and reliability I would look first to the documentation.

As Lumpkin J. stated in Miller v Cotton , 5 Ga. 341, 349 (1848): “I would sooner trust the smallest slip of paper for truth, than the strongest and most retentive memory, ever bestowed on mortal man.” I take this to mean that documents made contemporaneously with an event are important in assessing credibility. There are few documents from independent parties such as banks, to support testimony. Many documents depend on the witness who has written them for their meaning, for example, notes in a chequebook.

There are no notes or memoranda from the defendants to which the plaintiffs point as acknowledgements of their version of the arrangement. [ 23 ] These questions occurred to me: why would the plaintiffs, all of whom had little money to spare, run to give money to the defendants to close the sale, but for the hope of participating in an ownership share in the Land? Equally, if the plaintiffs believed they were obtaining an ownership share in the Land, why would they resist putting anything in writing to reflect that?

This question is even more curious for Jarnail, who as a licensed realtor for over 20 years would be aware of the need for written agreements in respect of interests in lands. A. The testimony of the parties [ 24 ] Jarnail testified that he discussed investing in the Land with Harry because Harry had told him that he wanted to invest in real estate with Jarnail, given Jarnail’s prior experience with property investment and development. Jarnail had been a realtor up until the late

1990s. Both Jarnail and Bill said that Harry wanted Bill to be involved in the purchase of the Land because of their friendship and that Jarnail agreed despite his uneasy relationship with Bill. The testimony was that Harry told Bill that Jarnail wanted a 50% interest in the Land and suggested that Harry and Bill split the other 50%. Bill’s evidence was that he did not have the funds, but that Harry told him to contribute whatever he could and assured him that he could pay Harry for the rest of the 25% contribution later.

Harry denies any discussion of co-ownership. [ 25 ] Jarnail’s evidence is that he discussed the investment in the Land with his father-in-law, Tarlok Singh Toor (“Tarlok”), who gave Jarnail the funds to contribute to the purchase of the Land. Jarnail testified that Tarlok wanted to invest through him, not through Harry or Bill, because he did not know Harry and did not trust Bill. [ 26 ] All parties acknowledge that the defendants had a better credit history than either Jarnail or Bill.

Jarnail’s position is that, for that reason, the parties “made a conscious decision” that the defendants would obtain the financing for the Land, notwithstanding the agreement for co-ownership. Jarnail had a large investment in property purchased in 1992 (the “Campground”), located just a few kilometres south of the Land. Harry’s position is that he and Narinder purchased the Land only for themselves, being the only ones with the credit to do so. [ 27 ] Jarnail contributed $29,000 to the purchase of the Land. Jarnail says that this reflects a 52% contribution to the cash-to-close.

The defendants acknowledge that this $29,000 went to purchase the Land. [ 28 ] Mandy says that she paid $1,300 toward the deposit . Mandy testified she provided a $10,000 bank draft at or around the time of closing, the latter funds being a loan from Bill’s cousin. Mandy says that this left her approximately $2,000 short of a 25% contribution and that Harry said she could pay him the rest later. She states that she paid Harry $2,000 in July 1998, completing her 25% contribution.

The defendants acknowledge the $10,000 contribution to the cash-to-close but deny receiving other funds from Mandy that were used to complete the sale of the Land. [ 29 ] The parties’ evidence in respect of the lawyer, Jagdev Dhanda’s involvement, was inconsistent. Jarnail recalled having spoken to Dhanda, but could not remember if he had attended at Dhanda’s office or spoken to him by telephone. [ 30 ] When the Land was purchased, the defendants arranged for one of the previous owners to continue to live there as a tenant.

The defendants testified they paid the mortgage, rented out the farmhouse on the Land, paid for maintenance and renovations to the farmhouse, collected rent from the tenants, obtained mortgage renewals, obtained water permits and paid the taxes.

The only evidence of any non-monetary contribution to the Land by the plaintiffs, and one of the few facts the parties agree on, is that Jarnail picked up the rent from a tenant “a few times”. [ 31 ] Mandy and Bill say that, between July 1998 and the end of 2001, they gave approximately $10,000 to Harry with a view to reducing the mortgage on the Land, so that Mandy could qualify for the smaller mortgage and be registered on title. The defendants deny this.

When Bill declared bankruptcy in 1998, he did not disclose any interest in the Land. [ 32 ] On April 1, 2002, Harry listed the Land for sale for $599,000, but without success. Jarnail testified that he became concerned about his interest in the Land, so he secretly tape-recorded a telephone conversation with Narinder on February 22, 2002.

He stated that his conclusion following that call was that Bill and Harry were going to have a problem, but that his investment would be honoured. [ 33 ] Mandy testified that she had a telephone conversation with Harry in early 2002 in which he indicated that he might give her a 4-5% interest in the Land. She also stated that she heard “from Jarnail through their common friends” about the recorded conversation with Narinder in which Narinder said the defendants would not “give” Mandy and Bill their 25% interest and that the Land had been listed for sale. Mandy filed a caveat against the Land on April 17, 2002.

She claimed a 25% interest as an unregistered owner pursuant to an agreement with the defendants “to purchase the property as co-owners, and for which there is written evidence.” [ 34 ] In December 2003, Jarnail saw his lawyer, David Laidlaw. Jarnail testified that it was then that he first discovered Mandy had filed a caveat against the Land. Laidlaw prepared a document to be registered on title. Jarnail signed it. Jarnail’s caveat was registered January 20, 2004.

However, Jarnail also testified that it was not until the defendants filed their originating notice in 2005 that he learned that the defendants were taking the position that he had no ownership interest in the Land. [ 35 ] The defendants testified that the $39,000 contributed by the plaintiffs to the purchase of the Land were either loans or repayment of amounts owing by the plaintiffs to the defendants.

Harry testified that, at the time of closing, he was owed money by Jarnail, and by Mandy and Bill, so he decided to call in repayment of these debts and to use the repaid funds as the cash to close for the Land purchase. The plaintiffs deny that the contributions were loans and deny any debt to the defendants. B. Other witnesses [ 36 ] Baljit married Jarnail in 1980. She said the Campground was purchased in 1992; planning and consulting took place in 1993, and in 1995 it opened. She said Harry did no work there. She said her father, Tarlok, was the source of Jarnail’s investment in the Land.

She said she was present for the making of the deal. She also said Harry confirmed the shareholdings to her after the deal closed. She was not sure of the date. Perhaps they spoke at the end of 1997. She wrote down what he said: Exhibit 1, # 25. She learned in 2002 that Harry had the Land for sale. Jarnail was upset. She helped Jarnail secretly tape Jarnail and Narinder’s conversation.

She did not, she said, listen to the conversation. [ 37 ] Baljit testified that even though Jarnail and she became suspicious of the defendants, they did not ask for the arrangement to be put on paper, fearing that the defendants would believe they were not trusted. She confirmed that Jarnail could not qualify for a mortgage. [ 38 ] The evidence of the lawyer Jagdev Dhanda was significant. Dhanda, Jarnail’s brother-in-law, acted for the defendants at their request. He also acted for RBC, for the mortgaging of the Land. He testified that Bill had brought a bank draft to the closing of the

purchase on the sale of the Land. Dhanda questioned Bill why he was contributing this money. This was important to Dhanda because Dhanda was also acting for RBC. The money contributed by the purchasers could not be owed to others; it had to be their own funds. Bill said he was investing in the transaction. Dhanda testified that he told Bill that he recommended investors get a written agreement or a trust agreement. According to Dhanda, Bill said that was not necessary, that he trusted Harry. I accept Dhanda’s testimony that this conversation occurred in the presence of the defendants. This was not hearsay.

If this was a debt being repaid, the defendants would have contradicted Bill’s statement that he was investing. Harry and Narinder’s silence in these circumstances is an admission. [ 39 ] Malkit Sihota is a friend of Jarnail’s, Bill’s, and Harry’s. He is not related to them. He described meeting with them at the Campground for parties. He said that all three often talked about the Land they purchased in 1996. He said that Harry said that Jarnail had 50% and that Bill and Harry each had 25%. He said that in 1998 or 1999 Harry told Malkit that Harry’s share should be one-third, not 25%.

Malkit asked how this could happen because Jarnail had paid more. Malkit said that he reported to Jarnail what Harry said. He testified that Harry said nothing about Jarnail’s share after 1998 or 1999, but that Harry said that he gave Bill an 18% share rather than a 25% share. He said that after Harry put up the land for sale in 2002 he knew this was going to court. Counsel cross-examined on what Malkit understood the land price to be. Malkit recalled $900,000 or $800,000, he wasn’t sure. [ 40 ] Bahadur Singh Sihota is not related to Jarnail or Bill although he came from the same village.

In 1992 he heard that Bill and Jarnail had purchased the Campground. In 1993 he began to work on the Campground on weekends. He described discussions with Harry, Bill, and Jarnail when they bought the 9 acre parcel close to the highway. Harry said that they bought it together, and that the percentages were 25% to Harry, 25% to Bill, and 50% Jarnail. He recalls in 2001 being at Bill’s house when Bill was complaining that Harry was not giving him a share of the property. This information was passed on to Harry in Bahadur’s presence. Harry did not say that he would not give them the 9 acres.

He did not say that Bill or Jarnail did not own a share. He said that he got along with Jarnail, who had a 50% ownership, but not with Bill in their landscaping business. Counsel for the defendants did not cross-examine Bahadur. [ 41 ] Melvin Acres was a former owner of the Land and lived there as Harry’s and Narinder’s tenant between 1996 and 2001. He did not know Jarnail. The only people who picked up rent were Harry and his nephew. [ 42 ] Bob Book is a friend of Harry’s who did some design work for him. He knows Jarnail having worked for him in 1990, before he met Harry.

He had discussions with Harry and the renter about how the property might be developed. He had no discussions with Jarnail or Bill. He was surprised by a suggestion that Jarnail owns 75% of the property. He would have expected Jarnail to say something about it. Counsel for the plaintiffs did not cross-examine Book. [ 43 ] Richard Johnson was a handyman for Harry. He spoke of the repairs that were necessary to the Land, including a time when the well went dry and the defendants had to put in a tank for city water.

He also recalls fixing broken pipes, cleaning up after tenants with dogs, doing floors, walls, exterior, and an electrical update in 2003. He repaired the roof in 2007. One repair cost $27,000. He recalled Jagga Bains, a nephew of Narinder, doing some work on the property, but after 2000 being the one who looked after it. [ 44 ] Bains testified he used to help Narinder collect the rent and do chores. In 1996 he collected most of the rent. He worked at fixing a sewer backup and leaky toilets. None of Jarnail, Bill, or Baljit had anything to do with rent or repairs.

He heard no discussions at family gatherings that they owned a share. He was surprised of their claim since he never saw them around the property. [ 45 ] Gurpreet Bains separated from Bains in February 2012 having married in 1995. She said that she was with him all the time and he never picked up rent. She said that he had no time for her and no time for tenants. [ 46 ] Sony Subarmani testified that he has known Jarnail for 30 to 35 years. He met Harry through Jarnail in the early 1990s. He spoke of a debt of $69,000 owed by Jarnail to him. He said that he received $72,000 from Jarnail in 1998.

He testified that he had land he had purchased from Qualico, the land developer. Qualico had made a call on him to pay for the lot. He had to clear the loan or he would lose the lot. He said that he told this to Jarnail who the next day brought Harry who said he would loan the money. Jarnail brought a cheque from Harry the next day. It was a blank personal cheque signed by Harry. Tab 42, a cheque register reflecting the amount of $34,801.39, is what Subarmani said was going to Qualico. In cross-examination he admitted that he is in litigation with Jarnail. C. Other contested topics 1.

Recorded telephone conversation [ 47 ] Jarnail said no documents were prepared because he trusted Harry. That trust, if it existed, did not continue. Jarnail heard that Harry was selling the Land without recognizing Jarnail’s interests. Jarnail said he made at least three telephone calls to Harry and Narinder that he secretly recorded on cassette tapes. He lost two of the tapes. The third tape was a conversation with Narinder. Jarnail did not know when he recorded it. Jarnail says it contains admissions by Narinder, although he acknowledges much of the conversation is about Bill and Harry’s landscaping business.

Narinder denies that the tape was about the Chestermere property. She does acknowledge that there was much conversation about Jarnail’s brother Bill, and how she felt insulted by him. Their conversation was in Punjabi. Neither “Chestermere property” nor “9 acres” is found on the translations, although the word “Bobcat” is. Harry and Bill used a Bobcat in their landscaping business. [ 48 ] I turn to the quality of the tape. The tape seems to start mid-sentence. There are many references in the translations to “indistinct speech”, “voice not clear” or “inaudible”.

Jarnail admits he may have deleted some of it (Transcript 169, line 26). [ 49 ] The quality of the translations is concerning. There are 4 versions of the conversation (Exhibits 4-7), all different. Two versions are by the same translator. The translations are not vernacular or idiomatic English but seem to be literal translations from Punjabi, which makes them difficult to understand. [ 50 ] Considering the quality of the tape and the differing translations it would be dangerous to draw any inferences from it. I place no weight on it.

2. Insult [51] Much court time was spent on an alleged insult by Bill to Narinder, which became known to Harry. There was also talk of Billdriving around the property owned by Harry and Narinder. [52] The purpose of introducing evidence about an insult seemed to be to explain why there was a falling out between the parties,and why Harry and Narinder would not recognize the interests of Jarnail or Bill and Mandy. I am not persuaded the alleged insult playeda relevant role in this case. 3. Alleged threat about testifying [53] Sony Subarmani testified he saw Bill at Balbir Gill’s house about a month before court.

He testified that Bill told him that hehad heard that Sony would testify for Harry, and that it might not be a good idea. Bill was not cross examined on this allegation. [54] Balbir Gill was called in rebuttal about the meeting at his house with Bill and Sony. He has known them both for 30 years. Heheard no talk about possible testimony or the lawsuit. [55] I do not know who to believe on this allegation. I make no finding on it. D.

Peripheral issues [56] The plaintiffs alleged that Narinder’s divorce from Harry, her marriage to an Indian national who came back to Canada withher, her divorce from that person and remarriage to Harry was a marriage sham and thus an immigration scam. The plaintiffs say thisgoes to Harry’s and Narinder’s credibility. The defendants dismiss these allegations as peripheral and irrelevant. It is true that credibilityis always an issue but when questions are asked about facts that are irrelevant to determinative issues in the case, these are properlycharacterized as collateral questions.

The questioner is bound by the answer. The defendants deny such a scheme. The plaintiffs arebound by this answer. See, e.g., R v Rafael (ON CA), [1972] 3 OR 238 (CA) and R v Sherwood, [1989] AJ No 966.

Itis not necessary for me to make a finding on this issue in view of my later finding on the critical issue of characterization of the funds. [57] The defendants alleged that the plaintiffs committed a mortgage fraud in obtaining a mortgage for others who secretly ownproperty or in failing to tell the RBC the true ownership of the property (defendants’ brief para 61-65), and use this mortgage fraudallegation again at para 270 as evidence of unclean hands. No authority is given for this proposition. The use of a straw buyer is wellknown.

Master Prowse Q.C. defined a “straw buyer” in Kindrachuk v Belseck, 2012 ABQB 515 at para 1 in this way: “He obtainedmortgage financing from [the bank] and used the mortgage funds to purchase a house that he had no intention of occupying or, in thelong run, owning.” And see also Kulaga v First National GP Corporation, 2013 ABQB 377, appeal dismissed 2014 ABQB 400. Thedefendants intended to use and own the Land on either the plaintiffs’ or the defendants’ case so they were not straw men.

While Iunderstand why a bank would insist that a down payment not come from borrowed funds, I am not persuaded in the circumstances of thiscase that failing to disclose another investor would be fraud. [58] The defendants did not plead that the defendants are relying on an illegal transaction. See Zimmerman v Letkeman, (SCC), [1978] 1 SCR 1097. Zimmerman quoted Clark v Hagar, (1893) 22 Can. S.R. 510 where at p. 525 Gwynne J statedillegality must be pleaded. IV. Conclusion on the main issue – investment or debt? [59] The plaintiffs contributed $39,000 to the purchase of the Land.

They say they did so to become owners. The defendants saythat the contribution was repayment of debt owed by the plaintiffs to the defendants. [60] The onus is on the plaintiff to prove the money they contributed was in the capacity of a contribution towards ownership ofthe Land, and not repayment of debt. [61] The agreement the plaintiffs advance is vague.

They give no details about the roles each of the alleged owners would play,what accounting there might be for money earned by the Land, how the defendants might be compensated for labor expended thatmoney paid in respect of the Land, or how and on what terms the mortgage might be renewed. It would seem, on the plaintiffs’ view ofthe agreement, that Harry and Narinder would look after the Land, and they would benefit. [62] The plaintiffs neither received nor asked for reports on their investment, nor did they do anything to preserve and protect theirinvestment.

For some years Harry and Narinder lived in Calgary while Jarnail lived just a few kilometers south of the Land, yet Jarnaildid nothing in respect of the Land, save for picking up rent twice at Harry’s request. The plaintiffs did not act as purchasers. They left theLand completely in the hands of Harry and Narinder. [63] Even though Jarnail was a realtor, he resisted advice to put the alleged agreement about Land in writing. He says he resistedthe lawyer Dhanda’s suggestion that he put the agreement in writing, and to get a lawyer, because he “trusted” Harry.

Both Jarnail andBill delivered money for the purchase of the Land without imposing any conditions on Harry and Narinder or on the lawyer. [64] Jarnail filed material in support of his caveat that made no mention of co-ownership with Bill or Mandy, nor did Mandy’scaveat make mention of Jarnail’s alleged co-ownership. Jarnail claimed the 25% interest in the Land in his caveat and later increased thatto 50%. Both Jarnail and Mandy say this was a co-ownership agreement for which there was written evidence. There is no writtenevidence.

They now say it was a trust agreement or that I should find a resulting trust. [65] It is significant how the plaintiffs’ claim has evolved. Filing a caveat is a serious act. The credibility of the plaintiffs’ claims

are weakened by the changing description of the alleged agreement and the assertion that there was written evidence to support the caveat, when there was none. [ 66 ] In assessing Jarnail’s credibility I also note his admission at transcript page 189 that he does not have a good memory. It was apparent from his testimony that he did not have a good memory. [ 67 ] Bill’s credibility is substantially weakened by his statement in questioning April 7, 2011 that he had no recollection of speaking to the lawyer Dhanda at the closing, yet testifying before me that he had spoken to him.

Further, Bill did not list 25% of the Land as an asset in his 1998 bankruptcy. Nor, as he headed for bankruptcy, did he ask for his contribution to be returned. [ 68 ] I conclude that I must look very carefully at the plaintiffs’ testimony and their actions or lack of actions. I need to have confirmatory evidence about their statements. [ 69 ] I now examine the defendants’ position as to why the money was contributed by the plaintiffs. The defendants say that the plaintiffs were happy to pay their debts on his simple request that they do so.

The plaintiffs went to great efforts to obtain money that they used for the contribution. Jarnail had to borrow money from his father-in-law. Mandy had to borrow money from Bill’s cousin. The defendants would have me believe that the plaintiffs incurred more debt to pay a debt to Harry simply because he asked. I have trouble with this notion. The plaintiffs were in financial difficulties. Jarnail was overextended with the Campground. Bill was near to bankruptcy.

It makes no sense to me that the plaintiffs would make great efforts to pay back debt, just because Harry asked them to. [ 70 ] I turn to the alleged debt. The defendants gave two explanations of how Jarnail’s alleged debt was incurred. [ 71 ] The first version was that Jarnail owed money to them for loans and work by Harry and Narinder at the Campground. The defendants provided a document following questioning that purported to quantify the hours Harry had worked at the Campground (Ex. 1, #40).

Harry was said to have worked 560 hours in 1992, 700 hours in 1993, and 350 hours in 1994 at $10 an hour for a total of $16,100. The loans were said to be $7000 to Jarnail in 1991 to buy the Campground and $3000 loan in 1995. Narinder was said to be owed $1632 for work she had done at the Campground from October 12 to November 12, 1993 and $7000 for work from November 21, 1994 to April 22, 1995. I am satisfied from the evidence that Harry did not work the claimed hours. No substantial work was being done by anyone at Campground during the periods Harry said he was accumulating hours.

A development permit was not issued until May 12, 1994. Moreover, Harry testified he did not expect to be paid for any work at the Campground. [ 72 ] As for Narinder, she was the Appellant from a decision of the Minster of National Revenue denying her unemployment insurance Narinderpal Kaler v The Minister of National Revenue (23 April 2001, Tax Court of Canada, 1999-3884(E.I.)). Deputy Judge Michael Porter held there was a genuine contract of service for the first period of time Narinder said she had worked in Ex 1, #40 (October 12 to November 12, 1993) but not for 1994 (Ex. 1, #34).

According to the decision Narinder said she was paid in cash, and produced one receipt for $1132 dollars. Having told one tribunal she was paid in cash, she took the position in questioning in this lawsuit she had not been paid. I do not accept her testimony that Jarnail owed her money. [ 73 ] The second version the defendants advanced was that Jarnail’s debt arose from a blank cheque Harry said he had given to Jarnail to pay a debt Jarnail owed to Sony Subarmani. Harry made no mention of this debt by Jarnail when he was questioned in 2008.

Exhibit 1, #42 is a cheque register with an amount of $34, 801 said to be payable to Jarnail. According to Jarnail, any payment by Jarnail to Subarmani that might have represented such a debt took place in 1998. Jarnail said no cheque for $34, 801 was received by him. The defendants called Subarmani. [ 74 ] The defendants’ and Subarmani’s testimony about Jarnail’s alleged debt was contradictory, confusing, and not persuasive. The defendants offered two contradictory explanations for the debt. The first explanation was false, the second, unpersuasive.

I do not believe the defendants when they say that Jarnail was indebted to them. [ 75 ] As for Bill’s debt, the defendants produced a document in questioning (Ex. 1, #50) that purported to list accumulated unpaid loans to Bill for various reasons, including tree purchases. Bill denies the loans. Rabjir Chata, who bought trees in Idaho with Bill and Harry said that each paid for their trees. There are no supporting documents.

I am not persuaded there were any debts owing by Bill to Harry in 1996. [ 76 ] As to the characterization of the purchase of the Land as a home or as a sole investment by Harry and Narinder, or by all the parties, I take the following into account. [ 77 ] Harry testified that he purchased the property with a view to living in the house on the Land and because it was perfect for him to park his tractor-trailer truck. Harry and Narinder have never lived in the house on the Land; it has always been rented. Harry never parked his tractor-trailer on the Land.

His explanation for never living on the Land is that Narinder did not find the house acceptable. One might accept that a husband would buy a house without viewing it with his wife. However, with respect to the tractor-trailer, Harry’s explanation is that the Land was not suitable for parking a tractor-trailer unit, something that was plain and obvious to him before the Land was purchased. This supports the plaintiffs’ contention that the Land was purchased purely as an investment. [ 78 ] I look at actions and inactions by the parties.

Jarnail says that as a licensed realtor he could have claimed the commission on the sale of the Land but did not because he acted as an investor. Yet Harry and Narinder took care of the Land, rented it out, renewed the mortgage, and acted throughout as the sole owners. They were never asked for an accounting, nor did they provide one. The only act of any of the plaintiffs that related to the Land was that Jarnail picked up the rent “a couple of times”.

This is not consistent with ownership, but it may be the plaintiffs were pleased that Harry and Narinder did all the work and spent money on the Land. [ 79 ] The defendants attacked Dhanda’s credibility in a curious fashion. After noting that he was Jarnail’s and Bill’s brother-in-law, counsel for the defendants stated at paragraph 129 of her written submissions: “Dhanda provided evidence through answers to undertakings that he had no recollection of any attendees at any meeting in this matter (Exhibit 25, undertaking 14).

Never mind, his evidence at trial became remarkably more fulsome.” Dhanda was acting for defendants in the transaction. This undertaking answer was given by counsel for the defendants, not counsel for the plaintiffs. So counsel who produced the undertaking did not cross-examine

Dhanda that he had earlier stated he had no recollection of any attendees at any meeting in this matter. The defendants were under a duty to cross-examine Dhanda on this issue. They were duty-bound to suggest to him that he had no recollection about the matter and had said so earlier. [ 80 ] The defendants also say it was important that Dhanda failed to disclose the purported true ownership of the property to his client, RBC. Dhanda was satisfied that this was money received from his clients without any conditions or restrictions on its use. He had advised Bill to get a written document.

He also testified that he spoke to Jarnail and suggested the same to him. Ordinarily, his testimony about a conversation with Jarnail would not be admissible, but in the circumstances of the suggestion of fabrication by Jarnail, I take his report of a telephone conversation with Jarnail as confirmatory of his testimony on this point. He had satisfied his obligations as a lawyer to confirm that this was not a loan.

He was not obliged to report to RBC of co-ownership or trust arrangements that did not affect the RBC security. [ 81 ] Bill described the circumstances in much the same way as the lawyer, but I am not prepared to use his testimony as confirmatory evidence on this conversation. Bill denied recalling any conversations at the lawyer’s office at pre-trial questioning. This is a major inconsistency. Further, Bill’s evidence throughout was often not responsive to the question asked, and defensive.

I do not find him to be a credible witness. [ 82 ] Harry testified that only he and Narinder met with Dhanda and that Bill had dropped off the $10,000 bank draft prior to the meeting. Narinder said in questioning in 2006 that she did not remember meeting with Dhanda. However, in response to a question from Jarnail’s counsel, she agreed that when she says “I don’t remember”, sometimes she means she has no memory and sometimes she means “I didn’t do it”.

Whatever she meant in questioning, I accept Dhanda’s testimony that Narinder was at the closing. [ 83 ] I accept Dhanda’s testimony as to the closing of the sale meeting in his office. I note that, notwithstanding his familial relationship with Jarnail and Bill, the defendants both testified that they had used Dhanda as their lawyer on previous occasions. Indeed, Harry testified that he was the one who contacted Dhanda to act on the real estate transaction. [ 84 ] I accept Dhanda’s evidence on Bill’s statement, but not Bill’s testimony.

I am entitled to accept some, none, or all of a witness’s testimony. [ 85 ] Turning to monies that the plaintiffs claim to have provided in addition to the $39,000, I do not accept Bill’s testimony that $5100 was paid by him on behalf of Mandy to pay down the mortgage. He was involved in a landscaping business with Harry at the time. The payments could have been for a Bobcat he was using that Harry had paid for. One cheque had “Bobcat” in the memorandum.

Further, Mandy, who signed the cheques, gave no evidence about them. [ 86 ] The parties’ complicated inter-dealings over the years, and self-serving documents produced during the trial, compel me to accept only documents in which I have confidence. In this case, the only documents about which I have confidence are the documents evidencing the monies that went through Dhanda’s office [ 87 ] I find that the $39,000 contributed to the purchase of the Land was not in repayment of debts owed to the defendants. It was not a gift. The plaintiffs say it was not a loan. What was the contribution in law? V.

Legal Issues [ 88 ] Having found that the money used to purchase the Land was not repayment of debt, I turn to legal issues: (

i) Does the alleged agreement with respect to the Land contravene the Statute of Frauds, 1677 29 Car. c. 3 and, if so, is the alleged agreement saved by the doctrine of part performance? (ii) Are the defendants holding the Land on resulting trust for themselves and the plaintiffs? (iii) Are the plaintiffs’ claims barred by the Limitations Act , RSA 2000, c L-12? VI. Analysis A. Statute of Frauds [ 89 ] This dispute centres on an alleged agreement in respect of land.

Section 4 of the Statute of Frauds provides in part as follows: No action shall be brought ... upon any contract for sale of the lands ... or any interest in or concerning them, ... unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. [ 90 ] In addition, s. 7 of the Statute of Frauds provides for a requirement of writing in respect of trusts involving land: All declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void, and of none effect. [ 91 ] The plaintiffs point out that the Statute of Frauds deals only with evidence to prove an oral agreement and not with the validity of such an agreement.

Thus, an oral agreement with respect to land may be valid, but will be unenforceable if it cannot be proved.

[92] Two exceptions to these requirements may be relevant to this matter. First, the common law has created an exception for casesin which there has been part performance of an oral contract. [93] The Supreme Court of Canada discussed the requirements for part performance in the seminal case of Deglman v BrunetEstate (SCC), [1954] SCR 725.

Citing English case law, Cartwright J then quoted from the Court’s earlier judgment inMcNeil v Corbett (1907) (SCC), 39 Can SCR 608 at 611 and 612 where Duff J. (as he then was) cited Maddison vAlderson 8 App.Cas. 467at 479: All the authorities shew that the acts relied upon must be unequivocally and in their own nature, referable to some such agreement as thatalleged.

And then Duff J. stated: ... it is only after such acts unequivocally referable in their own nature to some dealing with the land which is alleged to have been thesubject of the agreement sued upon have been proved that evidence of the oral agreement becomes admissible for the purpose ofexplaining those acts. It is for this reason that a payment of purchase money alone can never be a sufficient act of performance withinthe rule. [Emphasis added] [94] I see no part performance in this case.

Apart from the plaintiffs providing funds contemporaneous with the purchase of theLand, none of them has done any other “act” that is unequivocally referable to an agreement that they would acquire an interest in theLand. While Jarnail picked up rent from the tenant “a few times”, this is not unequivocal. [95] The plaintiffs also point to the statements made by Bill and Jarnail to Dhanda during the closing of the Land purchase.

TheCourt in Deglman spoke of acts that are “unequivocally and in their own nature” referable to the alleged agreement (emphasis added).This requirement precludes reliance on otherwise equivocal acts accompanied by oral statements. Given that the purpose of the Statute ofFrauds is to avoid oral contracts respecting land, Deglman draws a distinction between actions and assertions.

If an action becomesunequivocal only by virtue of an accompanying assertion, that is not sufficient. [96] Therefore, the plaintiffs’ arguments in respect of part performance in support of a contract or declaration of trust fail. [97] The second exception to the application of the Statute of Frauds is that set out in s. 8 of the Statute itself, which provides: Provided always that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise orresult by the implication or construction of law, ... then and in every such case such trust or confidence shall be of the like force andeffect as the same would have been if this Statute had not been made. [98] The courts have confirmed in a number of cases that a trust that “shall or may arise or result by the implication or constructionof law” includes a constructive trust and a resulting trust.

See, for example, Canada Trustco Mortgage Co v Wycott, 2002 ABQB 399,311 AR 348 and Kulay v Janeen, 2011 ABQB 633. Accordingly, if the plaintiffs can establish that the defendants hold part of theinterest in the Land on resulting trust for them, the requirements of the Statute of Frauds do not apply. B. Resulting Trust [99] The plaintiffs allege, inter alia, that the defendants hold part of the interest in the Land on resulting trust for them. [100] In Pecore v Pecore, 2007 SCC 17, 1 SCR 795, the Supreme Court of Canada altered the presumptions applicable to gratuitoustransfers of property.

In situations in which there is a gratuitous transfer of property between individuals who are at arm’s length, there isa rebuttable presumption that the transferee holds the property on resulting trust for the transferor. [101] However, the courts have also made clear that the situation is more nuanced when property is acquired by one party using fundsobtained wholly or in part from another.

In that case, what has been called a purchase money resulting trust may arise, but only if certaincriteria are met. [102] In Nishi v Rascal Trucking Ltd, 2013 SCC 33, 2 SCR 438, the Supreme Court of Canada held at para 21 that purchase moneyresulting trusts are a subset of resulting trusts: The purchase money resulting trust is a species of gratuitous transfer resulting trust, where a person advances a contribution to thepurchase price of property without taking legal title.

Gratuitous transfer resulting trusts presumptively arise any time a person voluntarilytransfers property to another unrelated person or purchases property in another person’s name: D.W.M. Waters, M.R. Gillen and L.D. Smith, eds., Waters’ Law of Trusts in Canada (4th ed. 2012), at p. 397. [103] The Supreme Court of Canada in that case reversed the British Columbia Court of Appeal, finding that the trial judge correctlyhad concluded that the transfer of funds in question was, in law, a gift.

Nevertheless, the following comments of the Court of Appeal in its decision at 2011 BCCA 348, 21 BCLR (5th) 330 at paras 39-42 are instructive: Resulting trusts are commonly found where one party has contributed to the purchase price of property but legal title is put in anotherparty’s name. In this situation, equity presumes a resulting trust over the property in proportion to the amount of the monetarycontribution.

In the American case law, this type of trust is called a “purchase money resulting trust” or “purchase price resulting trust”.This terminology has been adopted by the courts in Ontario, Newfoundland and the Northwest Territories [citations omitted]. A purchase money resulting trust is simply a specific kind of gratuitous transfer resulting trust. ...

The classic statement of the principles underlying a purchase money resulting trust is found in Chief Baron Eyre’s judgment in Dyer v.Dyer (1788), 30 E.R. 42 at 43, 2 Cox Eq. Cas. 92 (Eng. Ch. Div.): The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold,whether taken in the names of the purchasers and others jointly, or in the names of others without that of the purchaser, whether in onename or several, whether jointly or successive, results to the man who advances the purchase-money.

In order to take advantage of a purchase money resulting trust, the claimant must show that he, in fact, advanced the purchase money (ora portion of the purchase money) and that he acted throughout as a purchaser and not as a lender or creditor for the alleged trustee whoholds legal title to the property: Waters, at 368. [Emphasis added.] [104] This latter requirement was echoed by our Court of Appeal in B & R Development Corp (cob Abbey Lane Homes) v TrailSouth Developments Inc, 2012 ABCA 351, 539 AR 157 at paras 60 and 61 (leave denied 2013 SCCA No 34): For the law to recognize a purchase money resulting trust, the appellants must establish that: (1) the trustee has title to the property; (2) the claimant supplied the whole or part of the purchase price when the property was being purchased from a third party andtransferred to the name of the trustee; and (3) the claimant acted throughout as the purchaser. [Citations omitted.] The claimant must establish that it did more than simply provide funds: it must prove that it advanced the money in the character of apurchaser.

Otherwise, the claimant is merely a creditor: DiFrancesco (cob DiFrancesco & Sons Mushrooms) v. Annapolis Valley PeatMoss Co. 2005 NSCA 57 at para 24, 232 NSR (2d) 115; Fobasco Ltd v. Cogan (1990), (ON SC), 72 OR (2d) 254 atparas 26, 28 (HC). Where a claimant advances the purchase funds as a financier it will not be considered to have acted as a purchaserthroughout: DiFrancesco at para 23. [Emphasis added.] [105] In this case, only the characterization of those funds is in dispute.

The outstanding question, then, is whether the plaintiffsadvanced those funds in the character of purchasers, as distinct from creditors. The evidence does not satisfy me that they advancedfunds as purchasers. Their actions throughout are more consistent with lenders than purchasers. The plaintiffs did nothing more thanprovide funds. [106] As the Court of Appeal noted in B & R, a claimant to a purchase money resulting trust must do more than merely establish thatit provided the funds. The evidence before me, however, shows that the plaintiffs did nothing more in respect of the Land than providefunds.

In his Reply Brief, Jarnail asserts that the plaintiffs “advanced the funds as purchasers and for no other reason” and takes theposition that “[t]here is no suggestion by their evidence that they were advancing the funds for any other reason”. As claimants to apurchase money resulting trust, the onus is on the plaintiffs to prove that they acted throughout as purchasers. To say they werepurchasers is not sufficient proof that they acted as purchasers. [107] Mandy and Bill say that Mandy took actions consistent with being a part owner of the Land, namely that she made payments toreduce the mortgage.

A series of cheques, totalling $5,100, was entered as an exhibit at trial in Bill’s evidence, not Mandy’s (Ex 47). Thedefendants, however, asserted that the cheques provided by Mandy and Bill were for repayment of “small loans” the defendants hadmade to them. I am prepared to accept that $39,000 was contributed. I do not accept that an additional $5,100 can be considered a furthercontribution by Mandy.

If I am wrong, this contribution, like her initial contribution to the cash to close, is not sufficient to demonstratethat Mandy “acted throughout” as a purchaser of the Land. [108] Various witnesses testified to statements they heard respecting the plaintiffs’ ownership interests in the Land. Again, I draw adistinction between statements and actions, with the latter being required to show that a claimant acted throughout as a purchaser. Theevidence before me is conflicting, with witnesses giving different versions of what was said, when, and to whom. The evidence ofactions is not conflicting.

The plaintiffs provided funds. [109] I hold that the plaintiffs have failed to prove a resulting trust. I accept that the plaintiffs’ transfer of funds at closing to thedefendants was not a repayment of debt. However, they did not act as purchasers when the money was transferred. They refused to put inwriting the agreement they allege.

They placed no conditions on the defendants or the defendants’ lawyer about the use of the money.Further, their actions thereafter are not consistent with acting throughout as purchasers, as required by the case law. [110] I am not prepared to find, when the actions of the plaintiffs were limited to providing funds, that it was fraud for the defendantsto deny their claim. [111] Accordingly, I hold that the plaintiffs’ claim to a purchase money resulting trust fails. The plaintiffs are creditors in law for the$39,000 contributed. C.

Limitations [112] As noted above, the Land was purchased and funds were advanced by the plaintiffs in 1996. No claim was filed until 2004. [113] Bill and Mandy say that, while Mandy had troubling conversations with Harry in early 2002, she did not “lose hope” withrespect to her investment in the Land until April 17, 2002, when she filed her caveat. Thus, they take the position that their Statement ofClaim filed April 16, 2004 was in time.

[ 114 ] Jarnail argues that his recorded conversation with Narinder in February 2002 gave him comfort that his investment would be honoured and that he did not become aware until 2005 that the defendants’ position was that he had no ownership interest in the Land. [ 115 ] The Limitations Act requires a claimant to seek a remedial order within two years of the time that claimant knew or ought to have known of the claimant’s injury. [ 116 ] The best characterization of the plaintiffs’ “injury” is as an unjust enrichment of the defendants.

The plaintiffs advanced funds that were used by the defendants in acquiring the Land. Thus, the defendants were enriched and the plaintiffs were correspondingly deprived. In para 87, supra, I rejected the defendants’ assertions that the funds were advanced to repay existing loans.

Therefore, there is no juristic reason for this enrichment and deprivation. [ 117 ] Applying the limitations analysis, the plaintiffs knew or ought to have known of their injury when it became clear to them (or, in the circumstances, ought to have become clear) that the defendants did not intend to return the funds advanced. [ 118 ] In respect of Mandy, I find that this was at the point when Mandy indicates she “lost hope” and filed her caveat, being April 17, 2002. Accordingly, I find that Mandy’s claim, filed April 16, 2004, was brought in time. [ 119 ] Jarnail’s Statement of The Claim was filed in 2013.

The March 23, 2009 consent order provides that Jarnail may file a statement of claim “to stand in place of the issues as currently identified in the Originating Notice”. Rule 3.12 of the Rules of Court deals with actions started by originating application. The commentary to that Rule provides as follows: If the court directs pleadings, then the party who has the onus of proof should file a document called “Statement of the Applicant’s Claim”.

This is not a statement of claim, does not start a new proceeding, uses the action number of the existing suit (originating application), and there is no fee for filing it. [Emphasis in original.] [ 120 ] Jarnail’s evidence is that he was aware in 2005 that the defendants were denying his interest in the Land. Accordingly, his Statement of The Claim, whatever its nature, was filed too late. [ 121 ] The only other document filed by Jarnail is his caveat registered January 20, 2004. This document does not meet the requirements of the Limitations Act .

Section 3(1) of the Limitations Act provides that a claimant must seek a “remedial order” within the limitation period. In s. 1(

i) of the Limitations Act , “remedial order” is defined as follows: (i) “remedial order” means a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with a duty or to pay damages for the violation of a right, but excludes (

i) a declaration of rights and duties, legal relations or personal status, (ii) the enforcement of a remedial order, (iii) judicial review of the decision, act or omission of a person, board, commission, tribunal or other body in the exercise of a power conferred by statute or regulation, or (iv) a writ of habeas corpus. [ 122 ] Jarnail’s counsel said in oral and written argument that this is a novel case relating to limitations of actions. The plaintiff’s caveat, it was argued, reflects a co-ownership interest as effectively as if a certificate of title had been issued in the parties’ names as co- owners.

Thus, there was no need for Jarnail to commence an action. It was sufficient that the defendants, whom Jarnail would classify as co-owners, took a remedial step. I disagree. Jarnail was a claimant within the meaning of the Limitations Act . He seeks specific performance. The burden was on Jarnail to obtain a remedial order. Filing a caveat is not seeking a remedial order. A caveat does not seek a judgment or order of a court, is not filed in a civil proceeding, and does not require a defendant to comply with a duty or to pay damages.

In any event, this argument depends on the plaintiffs being characterized as co-owners, which I am not prepared to do. [ 123 ] That being the case, Jarnail has not sought a remedial order within the limitation period and, on that basis, the defendants are entitled to immunity from his claim. VII. Conclusion [ 124 ] To answer the questions I posed, I find that the plaintiffs intended to invest in the Land, but did not want to be identified as owners or purchasers, nor did they act as owners or purchasers at the time of sale, or during the 19 years the Land was in the name of the defendants.

Their choices result in non-compliance with the requirements of the Statute of Frauds for a contract or a trust and the requirements of the doctrine of resulting trust. In the circumstances of this case the defendants’ denial of their claims is not fraud. In law, the plaintiffs are creditors, not co-owners or beneficiaries. [ 125 ] Jarnail’s claim, filed outside the limitation period for debt, is dismissed. [ 126 ] Bill did not advance any funds to the defendants. The funds came from Mandy. Bill’s claim is dismissed. [ 127 ] Mandy filed a claim within two years of its accrual.

The Limitations Act does not bar her claim. The funds advanced by Mandy, in the amount of $10,000 shall be returned to her. She is a creditor in law. She is entitled to interest under the Judgement Interest Act, RSA 200, c. J-1. [ 128 ] Title to the Land shall remain in the names of the defendants. The caveats filed against the Land shall be discharged.

[ 129 ] Costs may be addressed in writing if no agreement is reached. Heard on the 3 rd – 7 th days of February, 2014, the 3 rd – 7 th days of November, 2014 and the 17 th day of August, 2015. Dated at the City of Calgary, Alberta this 23 rd day of November, 2015. P.J. McIntyre J.C.Q.B.A. Appearances: Meenu Ahluwalia Merani Reimer LLP for the Plaintiffs Harminder Singh and Balbir Singh Clive O. Llewellyn Llewellyn Law for the Plaintiff Jarnail Sihota Shanna L. Hunka Bishop & McKenzie for the Defendants, Narinder Pal Kaur Kaler and Harjinder Singh Sahota