R v Iyer, 2016 ABQB 680

Court of Queen’s Bench of Alberta Citation: R v Iyer, 2016 ABQB 680 Date: 20161202 Docket: 120555024Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Vimal Chandra Iyer Accused _______________________________________________________ Reasons for Judgment - Sentencing of the Honourable Madam Justice A.B. Moen _______________________________________________________ Table of Contents I Introduction . 4 II Discussion . 4 A. The Law .. 4 1. Statutory Sentencing Principles . 4 2. Conditional Sentences . 5 3. Objective Seriousness of the Crime . 6 4. Minimum Sentence . 7 5.

Sentencing Facts following Conviction by a Jury . 7 6. Aggravating Factors . 8 B. Findings of Fact for Sentencing . 8

1. Crown’s Theory . 9 2. Court’s Instruction on the Elements of Fraud . 9 3. General Comments on the Evidence in relation to the Elements of Fraud . 10 a. Did Mr. Iyer deprive the complainant of something of value? . 10 b. Was the deprivation caused by Mr. Iyer’s deceit, falsehood or other fraudulent means? 16 c. Did Mr. Iyer intend to defraud the complainant? . 18 4.

Evidence on Individual Counts . 20 Count 5 . 20 Count 6 . 20 Count 7 . 21 Count 8 . 21 Count 9 . 22 Count 10 . 22 Count 11 . 22 Count 12 . 23 Count 13 . 23 Count 14 . 23 Count 15 . 23 Count 16 . 24 Count 17 . 24 Count 18 . 24 Count 19 . 24 Count 20 . 24 Count 21 . 25 Count 22 . 25 Count 23 . 25 Count 24 . 25 Count 25 . 26 Count 26 . 26 Count 28 . 26 Count 29 . 26 Count 31 . 27 Count 32 . 27 Count 33 . 27 Count 34 . 27 Count 35 . 27 Count 36 . 28 Count 38 . 28

Count 39 . 28 Count 40 . 28 5. Conclusion on Facts . 29 a. Inducement 29 b. Forbearance . 30 c. Spending Investor’s Money . 31 C. Pre-Sentence Report 33 D. Victim Impact Statements . 35 E. Crown’s Submissions . 36 F. Defence Submissions . 37 G. Factors relevant to Sentencing . 39 1. Gravity of Offence and Degree of Responsibility of Offender 39 2. Aggravating factors . 40 Large number of victims . 40 Fraud exceeding $1 million . 41 Position of Trust 42 Other Aggravating factors . 44 3. Mitigating factors . 44 III Appropriate Sentence . 45 A. Conditional Sentence Application . 45 B.

Objectives for this sentencing . 48 C. Duration . 48 D. Restitution . 50 E. Victim Surcharge . 55 F. Prohibition Order 55 I Introduction [ 1 ] On August 14, 2016, a jury found Vimal Chandra Iyer guilty of 33 counts of fraud. The wording of each charge was identical to the others except for the name of the complainant.

The first count on the indictment that was considered by the jury was Count 5 which read: On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud persons whether ascertained or not, the investors of trident properties ltd., of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . [ 2 ] The balance of the 32 charges with which the Crown proceeded related to individual investors. Although Count 5 contains general wording, the Crown’s position was that it covered another 4 investors. [ 3 ] Complainants filed 31 victim impact statements. [ 4 ] The Crown seeks a jail sentence of 8 to 10 years. In addition, the Crown asks that I impose the following ancillary sentences: a. Orders for restitution pursuant to s. 738 of the Criminal Code , RSC 1985, c C-46, to each victim who was defrauded and who did not receive a refund of the investment; b. Victim fine surcharges of $100 per count pursuant to s. 737 for a total of $3,300; and

c. A prohibition order pursuant to s. 380.2 for a period of 5 years, commencing upon the expiry of the custodial sentence. [ 5 ] The Crown withdrew its application for the prohibition order when it presented oral argument. [ 6 ] The Defence seeks a conditional sentence order and argues that a restitution order is not warranted in this case. II Discussion [ 7 ] It is now this Court’s task to determine a fit sentence for Mr. Iyer concerning 33 counts of fraud. I will start by discussing some of the applicable sentencing principles. A. The Law 1.

Statutory Sentencing Principles [ 8 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives listed in s. 718 of the Criminal Code : a. denouncing unlawful conduct; b. deterring the offender from committing the crime again; c. sending a message to the public and in particular to the offender’s friends, associates and community that criminal behaviour is not to be tolerated; d. protecting the public by separating the offender from the public where necessary; e. assisting the offender in his rehabilitation; f. providing reparation to the victim where harm has been done; g. promoting responsibility in the offender and encouraging the offender to acknowledge harm done. [ 9 ] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender pursuant to s. 718.1.

The Supreme Court of Canada emphasized the importance of proportionality as a sentencing principle in R v Pham , 2013 SCC 15 at para 6 , [2013] 1 SCR 739. [ 10 ] The gravity of the offence includes two components: the harm or likely harm to the victim, and the harm or likely harm to society and its values. The degree of responsibility of the offender goes to the offender's moral culpability: the greater the harm intended or the greater the degree of recklessness or willful blindness, the greater the moral culpability.

Other factors affecting the offender's culpability include the offender's personal circumstances, mental capacity or motive for committing the crime: R v Arcand , 2010 ABCA 363 at paras 57-58 , 499 AR 1. [ 11 ] The Court also confirmed the principle of parity and the value of individualization in sentencing: Pham at para 8 ; see also R v Seremet , 2013 ABQB 291 at para 19 , 562 AR 278. Parity means that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b). 2.

Conditional Sentences [ 12 ] Defence counsel requests a conditional sentence. The relevant provisions of the Criminal Code pertaining to conditional sentencing are found at

section 742.1 : 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under

section 742.3. [ 13 ]

Section 742.1 came into effect in 1995. In Proulx , the Supreme Court of Canada stated that by amending the Criminal Code to include conditional sentences, Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison and that we must, wherever possible and reasonable, not incarcerate offenders. In Proulx , the Supreme Court said that a conditional sentence has two primary elements: punishment and rehabilitation or restoration.

To accomplish punishment in a conditional sentence order, a judge imposes a sentence of house arrest or curfew, in other words, a means by which the offender’s liberty will be restricted. The second purpose of a conditional sentence is to encourage an offender’s rehabilitation. Conditional sentences also have restorative functions, such as community service or restoration to a victim. [ 14 ] A conditional sentence is only available if the offence is not punishable by a minimum term of imprisonment. If so, the Court must follow a two-step process for determining whether a conditional sentence is appropriate.

[ 15 ] In the first step, the sentencing judge must find that it is appropriate to reject a penitentiary term (two years or more) or probationary measures as fitting in the circumstances. If the Court rejects those two alternatives, the judge should then consider whether it is appropriate for the offender to serve his or her sentence of imprisonment in the community. [ 16 ] The second step requires the Court to be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community.

In making this determination, the judge is to consider the risk posed by the specific offender, not the broader risk of insufficient general deterrence or undermining general respect for the law.

In assessing the risk posed by the specific offender, there are two factors which must be taken into account: (1) the risk of the offender re-offending, and (2) the gravity of the damage that could ensue in the event of a re-offence. [ 17 ] Danger to the community includes financial danger: R v McKinnon , 2005 ABCA 8 at para 39 , 361 AR 271. [ 18 ] A conditional sentence may be rejected at this second step in appropriate circumstances. However, the Supreme Court emphasized that a conditional sentence can provide significant denunciation and deterrence.

The more serious the offence, the longer and more onerous the conditional sentence should be.

There are some circumstances where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. [ 19 ] The Supreme Court stated that the conditional sentence will be better than incarceration at achieving the restorative objects of rehabilitation, reparation to the victim and the community, promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community. [ 20 ] Therefore, where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.

A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. 3. Objective Seriousness of the Crime [ 21 ] The objective seriousness of the crime is informed by Parliament’s imposition of a maximum sentence of 14 years for the crime of fraud: s. 380(1)(a). 380.

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years , where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars… [ 22 ] On September 15, 2004, the maximum punishment for fraud increased from 10 years to 14 years. As a result, precedents pertaining to crimes committed before that date must be viewed with caution.

The Alberta Court of Appeal in R v Johnson , 2010 ABCA 392 , 493 AR 74 stated: 47 …the range may include cases that are perhaps of marginal value in light of amendments to the Code increasing or reducing sanctions for a particular offence. Here, sentencing decisions that predate the recent changes to the Code increasing the maximum penalty for fraud over $5000 should be viewed in that light. In addition, the judgments included in the range may be dated and inconsistent with contemporary social values. Or the judgments included for purposes of calculating the range may be of limited number, as is the case here.

Or they may not necessarily be representative of typical sentencing practices. [ 23 ] For example, in R v Thow , 2010 BCCA 538 , 2010 CarswellBC 3679, the sentencing judge found that the fit sentence would have been 7 years under the law before the change in 2004, but increased the sentence to 9 years to reflect the change in the maximum sentence. The B.C.

Court of Appeal upheld this decision, stating at para 10: "The law had changed, the maximum penalty had been increased and the court had to give effect to the will of Parliament". [ 24 ] The Alberta Court of Queen’s Bench adopted this approach in R v El-Sayed , 2013 ABQB 504 , [2013] AJ No 977 at para 28 , stating: " ... for Parliament's change to have meaning, sentences imposed for offences committed prior to the date of that change need to be grossed up, in some fashion, to correspond to the new maximum when used as comparators in seeking parity". 4.

Minimum Sentence [ 25 ] In 2007, 2008 and 2009, the years of the offences, there was no minimum sentence for fraud. In 2011, the Criminal Code was amended to include a minimum sentence of two years for a conviction of fraud where the total value of the fraud was over $1 million. [ 26 ] Where the sentencing provisions for an offence have been varied between the time of commission and the time of sentencing, an accused is entitled to the benefit of the lesser punishment as mandated by s. 11(

i) of the Charter . [ 27 ] Given that the minimum sentence amendment did not occur until after the dates of the offences, it does not apply to Mr. Iyer in this case. 5. Sentencing Facts following Conviction by a Jury [ 28 ]

Section 724 of the Criminal Code provides that where a jury has convicted, the court shall accept as proven all facts, express

or implied, that are essential to the jury's verdict, and may find any other relevant fact that was disclosed by evidence at the trial to beproven, or hear evidence presented by either party with respect to that fact. Where there is a dispute with respect to any fact, the courtmust request evidence unless the court is satisfied that sufficient evidence was adduced at the trial. The court must be satisfied on abalance of probabilities of the existence of the disputed fact.

If there is conflicting evidence with respect to factors going to the gravity ofthe offence, the Crown must establish the existence of any aggravating fact beyond a reasonable doubt. [29] Where there is a wide range of facts that could have been found by the jury it is up to the judge to decide the facts for thepurpose of sentencing. The law does not require the trial judge to take the view of the evidence most favourable to the accused.However, any reasonable doubt as to the basis of the jury’s verdict must be resolved in the accused’s favour.

Where the factualimplication is ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but may come to her ownindependent determination of the relevant facts: R v Punko, 2012 SCC 39, [2012] 2 SCR 396, R v Brown, (SCC),[1991] 2 SCR 518 at 522, [1991] SCJ No 57, R v Ferguson, 2008 SCC 6, [2008] SCJ No 6 at paras 18, 22, R v RTK, 2014 ABCA 349at para 11, 584 AR 242. The sentencing court is entitled to find a more serious intent than the minimum required for the offence: R vBalcha (2004), (ON CA), 184 CCC (3d) 1, [2004] OJ No 1217 (CA). 6.

Aggravating Factors [30] Aggravating and mitigating factors relate to the gravity of the offence or the degree of responsibility of the offender: Pham atpara 11. The Court may consider aggravating factors that are part of the common law and those that are set out in the Criminal Code. [31] In R v Gardiner, (SCC), [1982] 2 SCR 368 at 414-15, [1982] SCJ No 71, the Supreme Court of Canada heldthat aggravating factors must be proven beyond a reasonable doubt. However, the strict rules of procedure and admissibility applicable attrial do not apply in a sentencing hearing. [32]

Section 380.1(1) sets out certain factors which the Court must consider in imposing a sentence for fraud. Given that thosefactors have changed since the crimes were committed, I must consider the factors which constitute a lesser punishment, being those thatwere in place prior to the amendment in 2011. Those that may apply in this case are that the value of the fraud committed exceeded onemillion dollars, and the offence involved a large number of victims. [33] Another statutory aggravating factor which may apply came into effect in 2004, prior to Mr. Iyer’s offences.

Section 718.2(a)(iii) provides that a sentence should be increased to account for evidence that the offender, in committing the offence, abused a positionof trust in relation to the victim. B. Findings of Fact for Sentencing [34] The case before me was a jury trial, not a guilty plea. The sentencing court is required to make its own determination of thefacts. At trial, it is only elements of the offence and the offence itself which must be proved beyond a reasonable doubt. I am entitled tofind facts from the evidence at trial beyond the minimal findings that would be required for the jury to convict.

If there is conflictingevidence with respect to aggravating factors not proven at trial, they must be established beyond a reasonable doubt at the sentencinghearing. [35] At the request of Defence Counsel and with the concurrence of Crown Counsel, I provided them with a draft of the Court’sfact findings for sentencing purposes. I acceded to this request as Mr. Iyer represented himself during the trial, and engaged DefenceCounsel solely for the sentencing hearing.

Therefore, Defence Counsel has not had the benefit of around eleven months of hearings, inaddition to the two years of preliminary motions prior to the commencement of this jury trial. The Crown made some suggestions forminor changes to conform to the evidence at trial, which were reviewed and have been incorporated. The Defence provided me with itscomments late in the afternoon before submissions in the sentencing hearing. I have taken those submissions into account in myconsideration of the facts as they are set out below. [36] On August 10, 2016, the jury convicted Mr. Iyer on 33 counts of fraud over $5,000.

These counts related to more than 54victims. [37] It must be inferred from these convictions that the jury rejected any defences raised by Mr. Iyer to the charges against him.Therefore, the starting point in understanding the verdicts is the Crown’s theory as it was presented to the jury, as well as the Court’sinstruction to the jury on the law. 1. Crown’s Theory [38] The Crown urged the jury to find Mr. Iyer guilty of fraud against each of the complainants on three main bases: a. Mr.

Iyer knew, or was reckless regarding the fact, that investors were induced to invest money in land which Trident wasostensibly going to take steps to develop, without revealing the significant unlikelihood that the land would or could be rezoned,developed or serviced in the foreseeable future; b. Mr.

Iyer knew of, or was reckless with respect to, representations to investors after they invested which representations wereintended to string them along, such as continuing to affirm that the lands were developable and that Trident was taking steps towarddeveloping those lands; establishing an Advisory Board for appearances only; lying regarding the reason for failing to deliver the landinterest promised; misrepresenting that various professionals were involved in assisting Trident; and misrepresenting the experience ofTrident and its agents; and c. Mr.

Iyer spent investors’ money for purposes other than those relating to improving the value of the investment.

[ 39 ] The jury verdicts reflect that each individual juror found that Mr. Iyer was guilty on at least one of those theories. It was not necessary for all twelve to agree on which of the theories resulted in a conviction on each count. 2. Court’s Instruction on the Elements of Fraud [ 40 ] The Crown’s primary theory was that Mr.

Iyer was party to a scam whereby investors were induced to invest money in land to be developed by Trident, without revealing the significant unlikelihood that the land would or could be rezoned, developed or serviced at any time in the foreseeable future. [ 41 ] The Court asked the jury to consider three questions relating to the elements of fraud in relation to each count: 1. Did Mr. Iyer deprive the complainant of something of value? 2. Was the deprivation caused by Mr. Iyer’s deceit, falsehood or other fraudulent means? 3. Did Mr.

Iyer intend to defraud the complainant? [ 42 ] With respect to the third question, the Court asked the jury to consider two questions: 1. Did Mr. Iyer intend to say and/or do those things that amount to deceit, falsehood or other fraudulent means, and 2. Did Mr. Iyer know that saying and/or doing them could put at risk the economic (financial) interests of the complainant? [ 43 ] The jury was also told that the fraud did not have to be deliberate and planned for the mental element to be proved. It was possible to convict Mr.

Iyer if he had been merely reckless in his representations. [ 44 ] I turn now to a discussion of the facts relevant to sentencing. 3. General Comments on the Evidence in relation to the Elements of Fraud a. Did Mr. Iyer deprive the complainant of something of value? [ 45 ] All of the complainants invested over $5,000 in at least one of the Trident land projects named Sienna Sands, Prairie Rose and Deer Haven (the lands). With one exception, the complainants invested $40,000 or more. [ 46 ] Mr. Iyer was the principal and only Director of Trident. The evidence established that he controlled the finances of Trident.

There was no evidence that anyone else controlled Trident or its finances. The corporate documents did not reveal the names of the Trident shareholders. Trident was eventually struck off the corporate registry because it did not file annual returns. It did not file its first annual return which would have required it to name its shareholders. [ 47 ] Mr. Iyer was a promoter of the lands. He also engaged others to promote them. [ 48 ] Each of the complainants entered into a Sales and Purchase Agreement (Agreement) with Trident. Some early agreements were with Mount Everest Development Corporation (MED Corporation).

All agreements reflected sales of undivided interests in land (UDI) from Trident to the investors/complainants. In most agreements there was a

Schedule “A” which gave a legal description of the lands in which the complainants had agreed to purchase a UDI. The Agreement indicated that Trident had not yet purchased the land but was expecting to do so at an outside date (Outside Date) at which time the Agreement automatically terminated if the purchase of the land by Trident had not yet been accomplished, subject to an extension as mutually agreed between the Purchaser and Trident (clause 4).

I conclude that if the Agreement was terminated on this basis, and there was no mutual agreement to extend the time, there was no legal basis for Trident to continue to hold the investor’s money. [ 49 ] The evidence established that Mr.

Iyer never made provision for the possibility that a refund would be necessary if Trident did not acquire the land by the Outside Date established in the Agreement. [ 50 ] With the exception of complainants Paul Roque and Christopher Johnston, and all the investors in Prairie Rose, Trident delivered a Certificate of Title concerning the UDI purchased by each of the complainants in the land set out in

Schedule “A” of the Agreement. In most cases, this Certificate of Title was delivered a considerable period of time after the Outside Date. This should have been expected because Trident’s purchase of the property was to be done by that date. It would have taken further time to prepare the transfers to the Purchasers. [ 51 ] With respect to Prairie Rose, Trident delivered to each investor a Certificate of Title to an entirely different piece of land than the one set out in the Agreement without any initial indication from Mr. Iyer or Trident that this was happening nor any explanation as to why it was happening.

In no case did Trident advise the investors in Prairie Rose that Trident had not completed the purchase of the lands by the Outside Date. When Prairie Rose investors began to enquire about Mr. Iyer’s land exchange, Trident wrote, signed by Mr. Iyer, to Prairie Rose investors saying: The Trident offices have recently been contacted by a number of investors concerned that titles for land they obtained in the Prairie Rose development were different than those contracted for.

It would appear that due to a clerical error, Trident provided to some of its Prairie Rose investors lands closer to Redwater than contracted for, and accordingly would like to give an opportunity to those investors who would like to have the lands originally contracted for, to receive those titles.

Trident is not asking any investors who received the Phase I lands, who are happy with this realty, to exchange those lands for those in Prairie Rose Phase II. For those investors who wish to transfer their present holdings back for the ones contracted for, we would ask that you return to the Trident offices the attached Request for Transfer within 30 days. Our offices will immediately prepare a transfer of your present holding back to Trident, for your signature, and concurrently with that transfer, register in your name the appropriate parcel contracted for.

Trident sincerely apologizes for any misunderstandings that may have arisen due to our error. Trident continues to believe that the subject lands are prime investment properties, and will carry with them a significantly enhanced value into the future. [ 52 ] The evidence established that the different land was substituted because neither Mr. Iyer nor Trident owned the lands or had the funds to complete the purchase of the lands from the owner, not because of a clerical error. Mr.

Iyer misled the investors by suggesting that they could ask for a change to the original lands, which was never possible according to the evidence at trial. [ 53 ]

Article 8 of the Agreement provided, among other things, that the purchaser appointed Trident as the Operator of the UDI being purchased and of the property as a whole. The Operator was responsible for, among other things, establishing a Planning Fund to which the Operator would deposit $500 from the purchase price of each unit for the purpose of seeking development approval. No such fund was ever established by Trident. [ 54 ] Defence Counsel points out that such a fund would have held only the relatively small amount of $80,000 for all three projects.

He suggests that Trident was only responsible for “paper development”, that is, rezoning and seeking development approvals and that the funds for this were on the $80,000. Beyond that, the money Trident received was Mr. Iyer’s as the sole Director of Trident, and he was free to use it for his own personal use. [ 55 ] The evidence established that shortly after Mr. Iyer and Trident began selling UDI, Mr. Iyer purchased a family residence in his wife’s name, bought expensive vehicles and travelled in an extravagant style.

It was established at trial that all of those purchases were paid for with monies given to Trident by the investors. Essentially, Mr. Iyer treated the Trident bank accounts and the Trident Visa as his own personal accounts. [ 56 ] Further, the evidence is clear that no “paper development” was commenced by Trident and that the Planning Fund would not have gone far toward development of the Trident lands if it had. The evidence established that the Planning Fund was not close to enough money to do even the “paper development” suggested by Mr.

Iyer, that is, rezoning and an area structure plan. [ 57 ] Furthermore, Trident/Mr. Iyer made promises to the investors to do rezoning, planning and servicing as an inducement for them to enter into Purchase Agreements and pay significant funds to Trident for that promise.

There were promises made by Trident in many instances, notably for Deer Haven, that Trident would service the lands. [ 58 ] Early Trident brochures stated: “Once the land has been transferred and a title issued under individual investor’s names, Trident Properties Ltd., along with engineers, will then work with the Town and County planners to have the property rezoned for development”. [ 59 ] To the question in the brochure “Is there any cost associated with the rezoning?” the answer was: “As stated in the contract, a portion of the money from each sale is set aside to aid in planning and rezoning”. [ 60 ] The total amount invested in each of Sienna Sands and Prairie Rose by the investors, if all units were sold, would have been about $2.8 million ($40,000 times 70 Acres).

The Planning fund for each of those projects, if all of the units were sold, would have been $35,000. The evidence established that virtually all of Sienna Sands was sold. Most of the Prairie Rose units were sold. Fewer of the units in Deer Haven were sold. [ 61 ] The evidence established that Trident and Mr. Iyer had led the purchasers to believe that Trident would take care of “development” of the lands to the extent of rezoning, area structure plans, and preparation of the lands with services so that they could be developed into residential, or possibly commercial and some industrial.

While the minimum amount required to be set aside under the Agreement may have been relatively small, the fact that it was not set aside is consistent with the entirety of the evidence establishing that neither Trident nor Mr. Iyer did anything to move toward the objective of developing the land until the investors became restless, and even then, no genuine efforts or expenditures were made in this regard. [ 62 ] Mr. Iyer suggests that Trident had its own “skin in the game” because it “intended” to keep 10% of each development.

However, brochures given to the investors stated that Trident would retain less than 10% so that it would have a reason to do well for the investors (make the investment economically viable) and to ensure a democratic process (Trident could not outvote the other investors). Mr. Rillera, who invested in Deer Haven, testified that Mr. Iyer told him that Trident would not keep more than 10% so that Trident would not have a major controlling interest in the land. Mr.

Rillera said that this important to him and he expressed concern when Trident kept much more than that or where a related company, Mount Everest Development Corporation, held considerably more than 10% of the project. [ 63 ] The evidence as to how much was sold in Deer Haven was inconsistent. [ 64 ] With respect to the sales in Deer Haven, Mr. Iyer told Mr. Chalifoux on January 26, 2008 that Deer Haven was virtually all sold. [ 65 ] Mr. Iyer suggests that Trident’s “skin in the game” was evidenced by the money that Trident or Mr. Iyer put towards the investments. Mr.

Iyer suggests that the evidence is at least consistent with Mr. Iyer or Trident contributing a substantial portion of the purchase price from his or Trident’s own resources. To find this as a fact, I would have to find that Mr. Iyer had funds to put toward the purchase of the property. The evidence established that Mr. Iyer had no funds at the time that the Sienna Sands lands were purchased for the first project. There was no evidence that there were any investors who put money into Trident, except for the victims in this case.

Trident’s first bank account showed a zero balance when it was opened on April 30, 2007 and the only money that appeared to go into those accounts were those paid by the victims. [ 66 ] The funds that the Sienna Sands investors paid exceeded the amount required for the purchase of that property. According to Mr. Iyer’s

summary, a numbered company bought the lands known as Sienna Sands and transferred those lands to Trident for $980,000. Trident received title to the Sienna Sands lands on June 7, 2007. By then it had been selling UDIs in those lands. The bank statements show that the lands were purchased with investor monies with the exception of $15,000 that came from Mr. Iyer’s wife’s account. The evidence also establishes that his wife obtained funds from the Trident accounts for her own use. The sale of all of the UDIs for Sienna Sands would have generated $2.8 million.

The Planning Fund for Sienna Sands would have been $35,000. Mr. Iyer had no “skin in the game” as far as Sienna Sands was concerned. [ 67 ] The Deer Haven lands were divided into 308 interests. The sale price for each UDI was $20,000 per unit. As with Sienna Sands and Prairie Rose, if an investor bought more than one unit, there was a saving for the second and third. However, I will calculate as though the units were sold as individual units. This slightly inflates the total value received by Trident from the sale of UDIs in Deer Haven. As set out above, the number of units sold in Deer Haven is not clear. Mr.

Iyer told Mr. Chalifoux that they were all sold. Mr. Rillera discovered that about a third of the lands were in the name of Mount Everest Development Corporation. If units were sold to individual investors and to Mount Everest Development Corporation, the total potential amount that Trident could have received for the UDIs in Deer Haven was $6.16 million. For that project, the $500 per unit Planning Fund would have amounted to $154,000. [ 68 ] With respect to Prairie Rose, the purchasers did not get the property they bargained for. Instead, they were given UDIs in Wild Rose Meadows without their consent. Mr.

Iyer submits that he had entered into an Agreement to purchase the Prairie Rose lands which were originally intended to be sold to the Prairie Rose investors, but that the deal did not close because Mr. Iyer and Trident were unable to pay the entire purchase price to the owner. This is established on the evidence. In fact, Mr. Iyer had spent the funds Trident had received from investors on a number of other things. As a result, he was not able to close that deal. The evidence also established that Mr.

Iyer had spent investor funds through deposits made with the owner of the agricultural lands known as Prairie Rose in his attempt to purchase the property. Those deposits were lost. Had he been prudent with the investor’s funds from the outset, he would have had no difficulty paying for the land. [ 69 ] Mr. Iyer argues that Wild Rose was of equal or greater value than Prairie Rose. However, there was no evidence of the actual value of either parcel of land. There was evidence that the substituted parcel was located next to a railway line and that it was going to be very difficult to get water to it.

Therefore, there is no basis to accept his submission that the investors benefitted from this substitution. [ 70 ] As to Mr. Iyer’s “skin in the game” for Wild Rose, there is evidence that Mr. Iyer’s wife paid a deposit of $100,000 and that the property was bought by a numbered company in her name for $1.44 million. It was then transferred to another numbered company, owned by Raja Nazir. The title was then transferred to Mount Everest Development Corp (also owned by Raja Nazir) for $1 and subsequently to Trident for $2.4 million. This latter amount was the amount indicated in the Affidavit of Transferee.

The evidence from the Government of Alberta Land Titles Office was that the Affidavit of Transferee cannot be relied upon as evidence of the actual purchase price as the Land Titles Office does no independent verification. [ 71 ] It is clear from the Trident bank accounts that Trident money from investors was not used to purchase Wild Rose Meadow. There was no evidence as to where the money came from. I cannot conclude on the evidence that the monies came from Mr. Iyer; his argument that he had “skin in the game” for Prairie Rose is simply not substantiated, beyond perhaps $100,000 invested by his wife.

The evidence about his wife’s income was that she was a legal assistant in a law office and that she quit work fairly early in the Trident history. Where she obtained $100,000 is anybody’s guess. [ 72 ] The Transfer of Land from Chin Chen Kao to Trident Properties Ltd. for the lands that were known as Deer Haven showed that the consideration was $1.5 million. The cash that was used to pay the $1.5 million for the Deer Haven property did not appear to come from Trident’s accounts.

However, there were cheques from sales of Deer Haven UDIs amounting to $326,000 deposited to Trident accounts that could have gone toward the purchase of that land. There was evidence that Mr. Iyer was trying to purchase other lands during that time. However, for the purpose of sentencing, I will consider those funds ($326,000) to have come from the Trident accounts. This leaves $1,174,000 not accounted for, that is, monies that did not appear to come out of the Trident bank accounts.

The Affidavit re Value of Land shows the payment for Deer Haven as having been made in cash. [ 73 ] The net amount potentially received by Trident for the Deer Haven lands assuming Trident paid for the land at the value stated in the Transfer, and assuming that Trident sold all the lands, and deducting the amount that was to go to the Planning Fund, was $4.506 million ($6.16 million less $1.5 million, less $154,000). This amount does not take into account that Trident had told investors that it would keep less than 10% of the lands (worth $616,000).

Taking that into account, the net funds collected by Iyer/Trident would have been (277 units x $20,000 less $1.5 million less $138,500 =) $3,901,500. This calculation presumes that Mr. Iyer paid the $1.5 million from the investors’ funds, which is not what happened. Nor did Mr. Iyer put monies for the Planning Fund aside. Therefore, all of the monies collected by Trident/Mr. Iyer were used by him for his personal use or other business purposes. I also note here that there was no evidence that Mr. Iyer kept 10% of the UDIs.

There is evidence that, Mount Everest Development Corporation had about one- third of the UDIs if we accept the evidence of Drew Rillera. If that was the case, we do not know if Mount Everest Development Corporation paid the Trident rate for those UDIs, that is, paid $20,000 per unit. The bank accounts do not show that this was the case. [ 74 ] In

summary, there was no evidence to show that Mr. Iyer or Trident had any “skin in the game” as suggested by Mr. Iyer. The investors were the ones with the “skin in the game”. [ 75 ] Mr. Iyer also suggests that Trident purchased the lands in arm’s length transactions from the prior owners at prevailing market prices. There is no reliable evidence about the prevailing market prices for any of the lands in question. [ 76 ] Mr. Iyer suggests that the objective of the investment plan, as communicated to the investors, was to either: (

a) sell or “flip” the lands at a profit to a purchaser, or (

b) to conduct “paper development” of the lands and then to sell them to a purchaser. [ 77 ] The evidence establishes that the investors were told by Trident’s salespersons or Mr. Iyer and confirmed by Mr. Iyer in some

cases that there was a purchaser “in the wings” for Sienna Sands who could not be revealed because it was confidential. They were told that this purchase of Sienna Sands would occur very shortly. They were told that they would double their money in 5 to 6 months. To this extent, the evidence suggested a representation as to a “flip”. However, this was not the case with Prairie Rose nor with Deer Haven. Sienna Sands investors were also told that if the Sienna Sands sale did not go ahead, Trident would develop the lands.

No investors/complainants gave evidence that they understood that Trident would only do “paper development”. In any event, the evidence was to the effect that Trident took no steps to arrange for the appropriate zoning and planning for the site. [ 78 ] There was evidence from witnesses and from the Trident marketing materials that at the time of the sales, the news reported significant development around Redwater relating to oil upgraders. There was no evidence about the timing of this news, in particular whether this news was prevalent through the whole period of the offences, 2007 to 2009.

Certainly, the marketing materials continued to refer to those potential developments. [ 79 ] There was ample evidence from complainants, Trident marketing materials, Trident agents, and various non-complainant witnesses establishing beyond a reasonable doubt that investors were told by Trident and led to believe that the land was developable and that Trident would take steps to develop it.

The materials also gave the impression that Trident was experienced in this business, although no other evidence reliably substantiated this claim. [ 80 ] The evidence was also clear that none of the Trident land parcels was realistically developable even within the 2 to 5 year timeframe stated in some of the marketing materials. This was the longest time frame ever mentioned by the sales persons or the materials. Some of the complainants were told that the timeframe would be considerably less than that.

The jury heard evidence about the timeframe, in particular from planning staff from the towns of Redwater and Morinville, and from Sturgeon County, as well as from Paul Chalifoux, a consultant for Trident who had been invited to join the Trident Advisory Board. With respect to the Town of Redwater, the jury heard from a planner, Mr. McRae, that at the time of the events relevant to these charges, the Town considered that it had enough land within the Redwater boundaries to provide for development for 30 to 40 years. The Sienna Sands and Prairie Rose lands were outside the Town of Redwater. Mr.

Hofmann, a planner for the Town of Morinville, said that it was determined in 2012 that Morinville had an ample supply of land within the Town boundaries for 25 to 30 years. The Deer Haven lands were outside the boundaries of Morinville. All the relevant Trident lands were in Sturgeon County. The witnesses who gave evidence from that County said that the maximum density allowed in Sturgeon County was 2 lots per acre, whereas the Trident marketing materials were premised on denser development.

Further, those witnesses did not recall any contact with Trident about any of the three properties in question in the trial. [ 81 ] There was some evidence from Paul Chalifoux that he believed - and advised Mr. Iyer -that Deer Haven might have been developable in the “mid to long term”, however it was represented to investors in the marketing material as being “in” the town of Morinville and the evidence established that there were significant costs and obstacles to rezoning, developing and servicing of that land.

The jury would have had no difficulty in concluding that any suggestion that any of the lands were developable in the foreseeable future constituted an outright falsehood. [ 82 ] Therefore, I find that it was established at trial that all of the named and unnamed complainants were deprived of something of value, as the money they invested in these projects was subject to a significant undisclosed risk, i.e., that that land would only be valued as agricultural land for many years into the future. b. Was the deprivation caused by Mr.

Iyer’s deceit, falsehood or other fraudulent means? [ 83 ] The evidence of the planners was clear that it was relatively easy for any member of the public to determine that none of the lands were realistically developable within the foreseeable future. The jury would have had no difficulty in finding, at a minimum, that Mr. Iyer was initially reckless in not taking reasonable steps to determine whether the lands were developable in the foreseeable future when that information was readily available.

The planners testified that planning documentation relevant to the Trident lands was readily available, and planning staff routinely provided information and assistance to prospective developers. Expansions of Redwater and Morinville did not include the Trident lands, and further expansion was not contemplated by any of those municipalities for many years to come. [ 84 ] Mr. Iyer submitted that the land value dropped because the economy declined in 2008 and the plans for the anticipated upgraders did not proceed. Mr.

Iyer asks the Court to take judicial notice that the market collapsed causing the losses to the value of the lands in question here. I could perhaps take notice that the banking system in the USA was put under severe stress in 2008, which is irrelevant to this case, but I simply do not know what happened to the values of farmland in Sturgeon County at any relevant time. I therefore cannot take judicial notice that the value of the lands collapsed as a result of upgraders not proceeding.

Those facts are not notorious. [ 85 ] Further, there was no evidence that the expansion of Redwater or Morinville would have looked different, or that services to the lands would have been more readily available if the upgraders had come in. At the time that the UDIs were sold by Trident and the upgraders anticipated, the evidence from the planners was that Redwater and Morinville already had more than sufficient land for anticipated municipal growth for decades to come. [ 86 ] Mr.

Iyer took no steps before he sold the UDIs, and even after the investments had been made, to start the process for rezoning or development as residential, commercial or industrial lands. The evidence of those members of the Advisory Board who worked most closely with Mr. Iyer in early 2008 testified that to their knowledge Trident had taken very few of the inquiries or steps that one would normally expect to be taken in pursuing rezoning and redevelopment of any of the lands in question. These witnesses included Reid Lillico, Peter Abrametz, and Paul Chalifoux.

As well, none of the planning witnesses had been able to find any record of significant interaction with Trident, Mr. Iyer, Mount Everest or any agents on their behalf in relation to the parcels in question. There was also evidence that Mr. Iyer had some contact with engineers, such as David Yue and Rajesh Kaliandasani of Venture Engineering, but these interactions stopped short of providing anything useful in terms of advice on developability. David Yue testified that he tried to relay information he obtained back to Trident, but no one would return his call and his last invoice remained unpaid.

[ 87 ] “Deceit” means inducing a person to believe something is true, where the deceiver knows that it is false. The jury would have had no difficulty concluding on the whole of the evidence that Mr. Iyer knew that Trident was representing to investors that the land was developable in the foreseeable future, and knew that there was no reliable basis upon which to make this representation as he had made no inquiries of the people who could advise in that regard. [ 88 ] There was evidence that all investors were told about the investment by sales agents.

There was also evidence that all were exposed to Trident marketing materials in the form of brochures and/or PPT presentations except for Deborah and Mario Bilhete, and Patricia Roque’s father, Francis Roque. [ 89 ] Mr. Iyer suggested that other people involved in sales, such as Patricia Roque and Sal Narayan, were involved in deceiving investors, pointing out that he was out of the country at times and was often not present when the investors signed their contracts. However, the evidence was clear that Mr. Iyer was “hands on” with respect to the marketing materials.

Those materials made representations about rezoning and the developability of the lands. Also, the evidence establishes that some of the sales agents, including Patricia Roque, sold to their friends and family, which would be surprising if they knew the representations were false. In any event, even if others were complicit in the fraud, the evidence established that Mr. Iyer was aware, and approved, of the representations regarding developability. Further, there was evidence that some of the investors before they invested called Mr. Iyer and confirmed what they had been told.

It was proper for the jury to consider that evidence as confirmation of the evidence of the other complainants as to what they had been told by the sales agents. [ 90 ] The jury must have rejected, or considered irrelevant, Mr. Iyer’s submission that the value of the Sienna Sands property had risen drastically before he purchased it, even without development of those lands, in the months leading up to Trident’s acquisition of that land. Further, the suggestion that Trident may have overpaid for the land or that Mr.

Iyer might have hoped the value would continue to increase does not address the representations made by Trident to the effect that the land was developable, nor the fact that Trident failed to take any steps to rezone or develop the land. Mr. Iyer says that he innocently started out this venture. If Mr. Iyer had taken steps to rezone Sienna Sands in keeping with the timelines Trident contemplated in the brochures, he would have discovered very early on that this was not possible for many years to come, and certainly not in the longest time frame given to the investors (2 to 5 years).

If his intentions were innocent, this revelation would have at least stopped the sale of Prairie Rose and Deer Haven. [ 91 ] Mr. Iyer says that he hired Mr. Lillico and Mr. Chalifoux to carry out the planning and rezoning that was promised. That submission is ingenuous. Mr. Chalifoux made some enquiries but gave evidence that he did not do anything for Sienna Sands nor Prairie Rose because the potential development for those lands was only possible very far down the road. The only ones he looked at were Deer Haven and Kestrel Ridge. The latter project was not part of the charges before the jury, and Mr.

Chalifoux said that Deer Haven was only potentially developable in the “medium term”, longer than the 2 to 5 year timeframe. Mr. Lillico gave evidence that he was retained to do many things not related to Trident. He was a risk management specialist, not a planner, and he was on the Advisory Board. He assisted Mr. Iyer to set up the Board and his evidence was that his retainer was for that purpose, and for public relations and political activity. [ 92 ] Finally, the jury must have rejected Mr. Iyer’s submission that Trident’s failure was ultimately because it lost its sales force.

There was no evidence that the sales agents were engaged or asked to participate in developing the land. Further, the evidence established that two of the three projects at issue - Sienna Sands, and Prairie Rose - had been substantially sold prior to Trident losing its sales force. Almost all of the Deer Haven sales were also before Trident lost its sales force. c. Did Mr. Iyer intend to defraud the complainant? [ 93 ] The jurors were instructed that in order for Mr.

Iyer to be found guilty on any count, they would have to find beyond a reasonable doubt that he deliberately sold the investments on the basis of misrepresentations, knowing or being reckless, or wilfully blind to the facts and circumstances that make this conduct dishonest in the eyes of reasonable persons, and that this would create a risk of prejudice to the economic interests of one or more persons. [ 94 ] There was ample evidence upon which the jury would have concluded that Mr. Iyer was at least reckless in initially leading the investors to believe that the lands were developable.

The sales agents testified that they obtained their information from Mr. Iyer. Virtually all of Trident’s marketing materials would have led them to believe that Trident intended to increase the value of the land through rezoning and development. Mr. Iyer had direct communication with, and provided information and materials directly to, those who developed and printed marketing materials, including brochures, PPTs and the website. Those persons include Janice and Barry Oppen, the staff of Dynacor, High Speed Printing and Printing Impressions. He was present at some of the sales agents’ presentations.

Although there was evidence that other individuals may have approved some of the drafts of the marketing materials, it defies belief that Mr. Iyer himself was not aware of this content, which was consistent with the Trident marketing materials he approved. Three complainants, Lisa de Sousa, Kimberly Loh, and Alana Yim, said they spoke directly to Mr. Iyer before investing and that he confirmed that the Sienna Sands land would be developed if it was not sold to a buyer who was already in the wings.

All of the evidence supports the finding that when other investors were told those falsehoods, it was with the approval of Mr. Iyer. [ 95 ] With respect to the Prairie Rose investors, the evidence was clear that neither Trident nor Mr. Iyer ever acquired the land referenced in the contract. The investors were not contractually bound after the Outside Date and Trident should have returned their money. Trident did not advise the investors of its failure to acquire the land, but rather substituted other land without advising the investors. When investors complained, Mr.

Iyer provided false information to Peter Abrametz, a lawyer on the Advisory Board, that was included in a letter containing a false explanation for the wrong titles, and he offered investors the option of receiving the originally promised lands (which was impossible), the new land or a refund. Only two investors received a complete refund, one a partial refund. The jury would have had no difficulty in reaching the conclusion that the Crown had established all three elements of fraud beyond a reasonable doubt in relation to all of the Prairie Rose investors. [ 96 ] There was also ample evidence that Mr.

Iyer was involved in conduct intended to induce forbearance, or “string along” the investors. Certainly, the communications regarding Prairie Rose would fall into that category. Mr. Iyer entered into some agreements to refund which he never completed. There were investor meetings where the investors were told that development would take some time.

However, they were never told that the development would take 30 to 40 years. Mr. Iyer had very preliminary discussions with Broadbase, Incite and others and then represented that these entities were assisting Trident when they were not.

There were letters and website postings suggesting that Trident was in the process of taking steps to develop the lands, which it was not doing. [ 97 ] As for the third prong of the Crown’s theory, the jury was instructed that unwise business practices are not fraudulent, but the wrongful use of money in which others have a pecuniary interest for purposes that have nothing to do with business may, in appropriate circumstances, constitute fraud. There was no evidence that Mr. Iyer set aside any money as required by the contracts.

He devoted very little of it to taking steps to develop the land or even to determine whether it was in fact developable, as promised by Trident in the marketing materials. Most of those steps appear to have been short-lived, after many sales, and for appearances only, to assuage current and prospective investors. Biri Nikhanj, the owner of Broadbase, acknowledged in evidence that the letter he signed stating that Trident had acquired the developer Broadbase was false and was created to help Mr. Iyer sell investments in Dubai and elsewhere.

The information about Trident acquiring Broadbase was found in marketing materials that were given to Canadian investors, and was on the website. [ 98 ] The evidence as a whole established a pattern by Trident and Mr. Iyer of selling interests in future projects, or reselling interests to keep Trident afloat. There was no apparent organization to the way Mr. Iyer dealt with incoming and outgoing money. His wife was apparently his bookkeeper. There was no evidence that anyone involved in Trident activities, other than Mr. Iyer and his wife, ever gained access to Trident’s financial information. Mr.

Iyer resisted Reid Lillico’s advice to hire an accountant. Mr. Iyer pointed to various expenses including significant commissions paid to sales agents, and the high cost of purchasing land. However, the expenses relating to exploring development of the lands, as suggested by Mr. Iyer, paled in comparison with the evidence of personal spending on luxury items during the relevant time period, including an expensive home, vehicles, clothing, cosmetic surgery for his wife and accommodation during Mr. Iyer’s extensive travels overseas. [ 99 ] Above, I have set out how the jury could have found recklessness.

However, for the purposes of sentencing, I find that Mr. Iyer from the outset was deliberate in his commission of this fraud. This conclusion is buttressed by the fact that he made no attempt to set up a legitimate business from the outset. There was no documentation to show that he had identified and appointed appropriate people to necessary positions in the company, he did not set up any books, retain a bookkeeper, or retain an accountant for the purposes of audits. This was particularly important because of the trust imparted to him by the investors in the agreements.

However, he did set up a nice office and he prepared marketing materials and trained marketing persons all which gave a “glossy” impression to potential investors. In other words, the cover was impressive, but the underlying business was practically non-existent. Then, although the materials promised rezoning and other development of the lands, Mr. Iyer did nothing to start that process. There was evidence of some tentative steps some time later, but nothing that would indicate a sincere and timely attempt to develop the land.

I find he had no intention of doing so because this business was never intended to further development of the lands. [ 100 ] Finally, investors were encouraged to invest quickly because they were told that the price would increase in a short period of time. The marketing materials also showed an increase in prices, for example, the price of $40,000 for Sienna Sands and Prairie Rose escalated to $50,000 and some of the investors moved very quickly to invest so that they would not lose the price advantage. Some of the investors paid more than $40,000. Some paid $1,000 less for the second unit they purchased. 4.

Evidence on Individual Counts [ 101 ] Against this backdrop, I will briefly discuss the evidence relating to each count. Although Mr. Iyer challenged complainants and other witnesses in cross-examination, much of their evidence remained uncontroverted. Count 5 [ 102 ] Count 5 alleged that Mr. Iyer committed fraud generally against investors of Trident. With respect to Count 5, the jury was instructed to consider the evidence of complainants not named in the indictment. [ 103 ] Lisa de Sousa and her husband invested $79,000 in Sienna Sands for two units.

She understood that the land had been approved for rezoning and there was a subdivision plan already in place. She testified that she confirmed this information with Mr. Iyer prior to investing. After investing, she complained that the project was not going as promised. She received a letter stating that Trident was proceeding to apply for rezoning. When she and her husband became suspicious, they asked for their money back. They signed a document authorizing Trident to re-sell the land, failing which Trident would buy it back. Their land was neither resold nor repurchased by Trident.

They have not received any funds back from Trident. [ 104 ] Billy Ngu and Cecilia Lee paid $65,000 for an investment in Prairie Rose. They could not come up with the full amount for two units. Therefore, Mr. Iyer agreed to loan them the balance for $32,000. They understood that Trident would develop the property into residential lots. They never received an interest in Prairie Rose. They received a title in substitute land. They received a letter dated October 6, 2008 stating that the wrong title was due to a clerical error. [ 105 ] Nancy and Darcy Vickers invested $48,000 in Prairie Rose.

They understood that Trident would take steps to develop the land into residential lots. They never received an interest in Prairie Rose. They asked for their money back and received a letter stating that the transaction was complete and therefore money could not be refunded. [ 106 ] Ameet Prasad and Drew Rillera obtained information from Trident sales agents, which information led a group of investors (Rain City Sun) to invest USD $121,000 in Deer Haven. They understood the land would be developed into residential lots. They took a road trip with Satya Naidu, who was employed with Trident, and Mr.

Iyer that confirmed their understanding. Mr. Rillera learned at one point that Mount Everest owned a 150/308 interest in Deer Haven contrary to what Mr. Iyer had promised him about ownership by one owner, that is, that no owner would own more than 10%. Mr. Iyer told him that Mount Everest was going to transfer it over to Trident, but Mount Everest would be the development company in any event.

Count 6 [ 107 ] Kimberly and Adrian Loh invested $79,000 in Sienna Sands. They met with Patricia Roque and received brochures relating to Mount Everest Development Corporation. At the time, they understood that there was a possible buyer for the land failing which the land would be developed into residential lots. The timeline given by Ms. Roque was 6 months for a return on investment. A $40,000 investment would become $65,000. They understood that the land was already subject to an area structure plan from the County of Redwater and that the land was zoned for residential.

Kimberly testified that she confirmed this information with Mr. Iyer by telephone prior to signing the agreement and investing. The original agreement presented was with Mount Everest Development Corporation. Mr. Iyer’s wife was a Director of that corporation. The agreement they signed was with Trident, but they understood that the land was the same. [ 108 ] Ms. Loh also referred several other members of her family and friends. [ 109 ] When the timeline for the return on their investment did not pan out, she was unable to contact Mr. Iyer. Eventually, they did meet and agreed with Mr.

Iyer that Trident would re-sell the land or buy it back. She and her husband signed a document authorizing Trident to re-sell the land, and if it was not re-sold, Trident would buy it back. They never received a refund. Count 7 [ 110 ] Carolyn and Craig Melnychuk invested $40,000 in Sienna Sands and $49,000 in Prairie Rose. They dealt with Judy Stratford who communicated with Patricia Roque and directly with Mr. Iyer.

With respect to Sienna Sands, they understood that there was a potential buyer and a possibility to double their money in a year, but they understood the timeline to be 3 to 5 years if the buyer did not follow through. Their funds were to be used to market and/or develop the land. They also understood that Trident would develop Prairie Rose into residential lots and that the principal was guaranteed. In September 2008, they attended a meeting concerning Sienna Sands where they were told they would get from $65,000 to $68,000 by the end of the year. Trident said that it was taking steps to rezone the property.

There was other correspondence from Trident suggesting that active steps were being taken to develop the land. At a Sienna Sands meeting in November 2008, Trident discussed sales of the Sienna Sands lands to other investors. [ 111 ] They dealt with Brenda Jones for the purchase of the Prairie Rose interest. They never received an interest in Prairie Rose. Without their consent, they received a different interest in Wild Rose. They received a letter stating that the wrong title was issued for Prairie Rose due to a clerical error, which was untrue. They met with Mr. Iyer in November 2008.

He told them he never owned Prairie Rose, and he told them how much better the substituted land was. He promised that he would pay them back in 8 to 10 weeks. In November, they attended a Trident meeting with Prairie Rose investors. Mr. Iyer and Trident representatives discussed marketing the land to investors in Dubai. [ 112 ] Nothing happened with either the Sienna Sands or the Prairie Rose lands. At a subsequent meeting in January 2009, Mr. Iyer said they would be paid back in June 2009. Nothing has since happened.

Count 8 [ 113 ] Michael and Doris Calimente invested $79,000 in Sienna Sands and $49,000 in Prairie Rose. Mr. Calimente is Judy Stratford’s brother. She sold them the two interests in land. Judy Stratford got her information from Patricia Roque and from Mr. Iyer. The Calimentes understood that the Sienna Sands lands would increase in value as the town or city moved toward it. They understood Prairie Rose would be rezoned and redeveloped. They understood that a return on investment would be 2 to 5 years. They never received an interest in Prairie Rose.

Michael was told the wrong title for Prairie Rose was due to a clerical error. [ 114 ] They were referred to the Trident website and received promotional materials before investing in either project, which brochures gave them confidence in Trident. Count 9 [ 115 ] Jason Everett and Alana Yim invested $118,000 in Sienna Sands in April 2007. They dealt with Patricia Roque who gave them a 6 to 8 month time frame for a return on their investment. They understood that Sienna Sands would either be sold to a buyer who was already interested, or it would be developed.

Alana testified that she confirmed this information directly with Mr. Iyer before investing. They received a letter stating that Trident would submit an application for rezoning. They received a Report to Investors containing information about the Advisory Board, an engineer, and Sal Narayan’s experience. They received a memo stating that real progress was being made on selling the property, and that Incite, a marketing company, was working with Trident. Alana attended a meeting during which Mr.

Iyer said that he could pay back some investors, but he eventually acknowledged that he did not have the money to pay them back. [ 116 ] Mr. Everett and Ms. Yim both understood before they invested that the land was to be sold very soon. Later, they understood that the land would be developed and that Trident had professionals working with it to develop or sell the land. What they were told was confirmed by Mr. Iyer before they invested. They understood that the money they invested would go toward development. [ 117 ] By November 2008, they were taking active steps to have their money refunded.

Nothing has happened. Count 10 [ 118 ] Alvin and Jay-Lynn Loh invested $118,000 in Sienna Sands for three units in April/May 2007. They understood that the money was needed by Trident to buy the land. They understood from Patricia Roque that there was already a buyer. If the paperwork was done quickly, the Lohs would double or triple their money in 45 to 60 days as the land would be sold. They were given Mount Everest brochures.

[ 119 ] They understood later in 2008 that Trident would develop the land into residential lots. They received a letter stating that Trident would be submitting an application for rezoning. Jay-Lynn stated that when she signed the purchase Agreement, there was no talk of Trident developing the property, but at a meeting in the fall of 2008, there was talk about Trident developing it. She understood that she could not resell her interest as long as Trident was the manager. They entered into an agreement authorizing Trident to re-sell their interest, failing which Trident would buy it back.

At a meeting, Jay-Lynn was told that she was first on the refund list and the units were being sold overseas. Subsequently, Mr. Iyer’s wife wrote an NSF cheque to them. Mr. Iyer gave her a TriStar cheque for $20,000. At first, the cheque would not pass but it eventually did about two days later. Later, in November 2008, Ms. Loh attended a Trident meeting at which Mr. Iyer was present and from that meeting, she understood that Trident was trying to sell the units overseas so that the Trident investors in Alberta could be paid back. Count 11 [ 120 ] Francis Roque invested $90,000 in Sienna Sands.

Francis Roque died between these events and trial. Patricia Roque testified regarding the circumstances of his purchase. Francis purchased the investment from his daughter, Patricia, who promoted the sale. She also prepared the Sale Agreement and signed it, witnessing her father’s signature. Her father expressed concerns to her that she passed on to Mr. Iyer. He was concerned as he had not received title by May 2008. He eventually did receive title. Patricia testified that she understood that Trident intended to develop the land if it was not sold to a purchaser who was in the wings in the spring of 2007.

She provided this information regarding the investment to her father. Count 12 [ 121 ] Lorraine Jones and Brenda Jones invested $40,000 in Sienna Sands. Lorraine did not testify. She is Brenda Jones’ mother. The Agreement was signed by Brenda Jones. Brenda testified that Patricia Roque went through the Agreement with her and told her that Trident would develop the land. Brenda Jones and Patricia Roque provided information regarding the investment to Brenda’s mother, Lorraine. Brenda Jones wrote the cheque to Trident after receiving cash from her mother.

Brenda Jones at the time understood that the investment would be doubled or tripled in 3 to 6 months. Later, Trident extended this time to 12 to 18 months. Count 13 [ 122 ] Michelle Marusiak-Klassen and her husband, Andy Haggith, invested $40,000 in Sienna Sands. They were told about the project by Patricia Roque. They received promotional materials. They understood that there was a buyer in the wings, but if that did not work out, Trident would develop the land into residential lots. After they purchased their interest in Sienna Sands, they received more marketing materials.

They also received a Report to Investors mentioning: the Advisory Board that was comprised of experienced people, an engineer retained by Trident, and Sal Narayan’s experience. They recorded a meeting in July 2008 with Mr. Iyer during which they learned of prohibitive costs to service the lands with water. They received a memo to investors stating that progress was being made in selling the property and Incite was assisting. They attended meetings where they were told that they were on the list to be paid back.

They received a letter in January 2009 stating that Trident was unable to refund as agreed and was pursuing international sales to pay out investors. Count 14 [ 123 ] Ronald and Gloria Kwan in April/May 2007 invested $40,000 in Sienna Sands. They received promotional materials prior to investing. They understood the land would be serviced using the funds invested to bring the property to the point it could be bought by a developer and developed into residential lots. They understood at the time they bought the investment that there was a buyer in the wings.

Because of this they would double their money in 3 months. They received a letter referring to rezoning. After they invested, the anticipated sale did not go through. They received other promotional materials and correspondence from Trident which served to reassure them. This included a Report to Investors mentioning: the Advisory Board that was comprised of experienced people, an engineer retained by Trident, and Sal Narayan’s experience. In May 2008, they signed a letter authorizing Trident to resell their interest, failing which Trident would buy it back.

They received a memo to investors stating that real progress was being made in selling the property, and Incite was assisting. Nothing happened. Count 15 [ 124 ] Judy Stratford invested $79,000 in Sienna Sands in April 2007. She understood from Patricia Roque and Mr. Iyer that her investment in Trident would double in 1 to 2 years, that Mr. Iyer was rezoning the farmland and that he would develop the land into residential lots. She took the contract to a lawyer and researched Trident. She also communicated with Mr. Iyer who told her that Trident was going to develop Sienna Sands.

She attended training meetings where she was given information on the projects. She attended a meeting where she was told that people had been hired to carry out the development. Count 16 [ 125 ] Mirella Nardi invested $118,000 in Sienna Sands. She understood the land would be sold to a prospective buyer, failing which it would be developed into residential. Her investment would double in a year. She was given promotional materials. After she invested, Ms. Nardi met Mr. Iyer who talked about developing Sienna Sands and other property. She met with Mr.

Iyer and then with Satya Naidu, who both told her the project would take 2 to 3 years. She attended meetings where Mr. Iyer said that he was trying to figure out a way to pay the investors back. Count 17

[ 126 ] Deborah and Mario Bilhete invested $79,000 in Sienna Sands in April 2007. They saw no marketing materials before they invested. They were told there would be a short timeline when they would get their money back. They understood from Patricia Roque that Trident was planning to develop the land. They received a letter stating that Trident was submitting an application for rezoning. They also received a Report to Investors mentioning the Advisory Board, an engineer, and Sal Narayan’s experience. Count 18 [ 127 ] Paul Roque invested $40,000 in Sienna Sands in April 2007.

He understood from Patricia Roque that he would receive a return on investment in 2 years. He had previously owned the Sienna Sands lands and was hoping to see it developed. At first, he understood that it would be a passive investment, but before he invested he was told that it would be developed into residential lots. His sister, Patricia Roque was the person telling him about Trident and Sienna Sands. He received a letter about the Trident website, and worked for Trident in 2008 overseas, presenting what Mr. Iyer told him. Mr. Roque never did receive a title.

Count 19 [ 128 ] Kent Reader invested $40,000 in Sienna Sands. He understood the land was going to be rezoned and developed into residential lots. He expected a return of 4 to 5 times in a few years. He received marketing materials either before or after he invested. After he invested he received, among other correspondence from Trident assuring him his investment was proceeding to development, a Report to Investors mentioning the Advisory Board, an engineer, and Sal Narayan’s experience. He received a memo stating that real progress was being made on selling the property and Incite was assisting Trident.

Count 20 [ 129 ] Darrel and Michelle Pendry in 2007 invested $40,000 in Sienna Sands. They understood that Trident would rezone the land. They received a letter stating that Trident would be submitting an application for rezoning. They received a Report to Investors mentioning the Advisory Board, an engineer, and Sal Narayan’s experience. They received a memo stating that real progress was being made selling their property and Incite was assisting Trident. Darrel attended a meeting and was told he could ask for his money back. He met with Mr.

Iyer who said he was selling new developments and could use the land as security to finance paying back the investors. Mr. Iyer agreed to pay him back by the end of January 2009. Count 21 [ 130 ] Steven Andrade invested $40,000 in Sienna Sands in July 2007. He expected a return on his investment in 6 months because he understood an oil company had offered to purchase it, and Trident was at the last stages of development. He received promotional material prior to investing. Later, in June 2008, he met with Mr. Iyer and Satya Naidu who told him they were waiting to rezone the land, but there were water issues.

Steven also attended a meeting where Mr. Iyer said he would try to sell the land and refund investors’ money. Steven received a memo stating that progress was being made on selling Sienna Sands, and Incite was assisting Trident. Count 22 [ 131 ] Adele Hartum and 1200517 Alberta Ltd. invested $89,000 in Prairie Rose in August 2007. Ms. Hartum is the principal of the numbered company and as such made all the decisions. The land title she received was in the name of the numbered company. However, it never received an interest in the Prairie Rose land that was the subject of the Agreement. Before she invested, Ms.

Hartum understood the land would be rezoned and developed into residential lots. She also saw marketing materials before she invested. She met Mr. Iyer who said things were going to move ahead as indicated in the brochure. Later, she received a Report to Investors mentioning the Advisory Board, an engineer, and Sal Narayan’s experience. She also received a letter from Trident stating that the numbered company had been issued the wrong title and that this was due to a clerical error, and offering an exchange for the original lands. At a meeting, in November 2008, Mr.

Iyer said the property was not able to be rezoned at that time and Trident was going to look at different options. The investors were asked for patience. Count 23 [ 132 ] Jose and Leonila Salas invested $45,000 in Prairie Rose September 2007. They were related to Paul Roque, and knew Patricia Roque who told them about the investment. They never received an interest in Prairie Rose nor a title of any kind. They received marketing materials. They understood the land would be developed. Leonila asked Mr. Iyer for a refund. After she received an NSF cheque, Mr.

Iyer eventually wrote her a cheque for $45,000, which was not processed by the bank. Eventually, he gave her a cheque for $45,500 that she was able to cash. Count 24 [ 133 ] Edward Gallagher invested $89,000 in Prairie Rose in September 2007. He never received an interest in Prairie Rose. He did receive title to another parcel of land. He had been given Trident promotional materials from Patricia Roque. He understood that Trident was already working on the development process, Trident would rezone the property, it would put in services and roads and the land would be developed into residential lots.

After he invested he received materials, including a Report to Investors mentioning the Advisory Board, an engineer, and Sal Narayan’s experience. He went to the Trident office when he realized he had received the wrong title, and was told it was an error in printing and anyone who was not happy with the property would be given the correct property instead. He received a letter stating that the wrong title was given due to a clerical error and inviting investors to transfer the property back for the original one. Mr. Gallagher met Mr. Iyer who signed a document in which Trident agreed to purchase Mr.

Gallagher’s interest within 45 days for $120,000. Mr. Iyer gave him a post-dated cheque that turned out to be NSF.

Count 25 [ 134 ] Barry and Janice Open invested $50,000 in Prairie Rose in September 2007. They never received an int

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