Malhotra v, 2017 ABQB 34

Court of Queen’s Bench of Alberta Citation: Malhotra v 1743134 Alberta Ltd, 2017 ABQB 34 Date: 20170117 Docket: 1503 03417 Registry: Edmonton Between: Rajiv Malhotra Applicant/Plaintiff - and - 1743134 Alberta Ltd., Rajiv Aggarwal, Amit Aggarwal and Aggarwal Holdings Ltd. Respondents/Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________ Introduction [ 1 ] The Applicant, Mr. Rajiv Malhotra, claims to own a one-third interest in a development project relating to a commercial condominium complex known as the Royal Center North. He seeks

summary judgment for one-third of the profits realized on the condominium development, plus $50,000, representing an additional contribution made by him. [ 2 ] The Respondents allege that Mr. Malhotra, a lawyer, acted on their behalf at all material times. They deny that he acquired an ownership interest in the development.

Facts [ 3 ] Rajiv Malhotra is a practicing lawyer. He provided legal services to Rajiv Aggarwal and his corporations for approximately 18 years. [ 4 ] Rajiv Aggarwal is the authorized representative of 174313 Alberta Ltd. (“174”) and Aggarwal Holdings Ltd. (“Holdings”). The directors of 174 are Rajiv Aggarwal, Amit Aggarwal and Nirmala Brar. The two shareholders of 174 are Aggarwal Holdings Ltd. (50 percent) and Brar Medical Centre Inc. (50 percent) (“Brar Medical”). Ms. Brar holds all of the shares of Brar Medical. [ 5 ] Mr.

Malhotra deposed that he owned certain lands in Edmonton (the “Entity Lands”) with Entity Homes Ltd. He owned one- third and Entity Homes owned two thirds. In late 2012, Mr. Aggarwal told Mr. Malhotra that he wanted to purchase the Entity Lands. Mr. Malhotra arranged the purchase by 174 of the Entity Lands for $1,200,000. The Entity Lands were developed by 174 into a 12-unit commercial condominium complex known as the Royal Center North. Eight of the twelve units were sold; four remain unsold. [ 6 ] Mr. Malhotra deposed that he met with Mr. Aggarwal and that a joint venture agreement was reached in July 2013.

The agreement provided that each of Mr. Malhotra, Mr. Aggarwal, and Mr. Makhan Brar (also referred to herein as “Mike Brar”) would contribute one-third of the purchase price, receive a one-third interest in the lands and share profit and liability accordingly. Mr. Malhotra deposed that his portion of the purchase price was comprised of his existing ownership of a one-third interest in the Entity Lands which would pass to 174 on the purchase, with Mr. Aggarwal and Ms. Brar each paying $400,000, for a total purchase price of $1,200,000. [ 7 ] Mr.

Malhotra prepared a Conflict of Interest letter dated July 8, 2013, advising that he was acting on behalf of both parties with regard to the sale. Mr. Aggarwal signed the letter. [ 8 ] The Commercial Purchase Contract was signed in July 2013. In the Commercial Purchase Contract and in the Statement of Adjustments initialled by Mr. Aggrawal, the “Investment of Rajiv Malhotra” in the amount of $400,000 is noted. [ 9 ] Mr. Aggarwal deposed that Mr.

Malhotra did not disclose to him or to any of the Respondents that he was a silent investor or owner in, or in any way associated with, Entity Homes nor that he owned a one-third interest in the Entity Lands. [ 10 ] Mr. Aggarwal deposed that Mr. Malhotra and Mr. Aggarwal, on behalf of 174 and Holdings, entered into an agreement or arrangement whereby Mr. Malhotra would lend 174 the sum of $400,000, payable only out of the net sale proceeds of the Equity Lands once they were developed and sold. The precise interest rates were not discussed. Mr.

Aggarwal further deposed that there was never any discussion at all between himself and Mr. Malhotra regarding a joint venture agreement, and he denies that such an agreement was ever reached. Mr. Aggarwal deposed that he did not understand that Mr. Malhotra was or would be claiming an ownership interest in the Equity Lands. [ 11 ] Ms. Brar also deposed and confirmed at Questioning that she had been advised by her husband, Mike Brar, who was involved in negotiating the transaction on her behalf, and understood that the agreement with Mr. Malhotra pertained to a loan of $400,000 and that Mr.

Malhotra was not an equity partner. [ 12 ] Mr. Malhotra confirmed at Questioning that he did not give Mr. Aggrawal any legal advice on the legal concept of a joint venture, nor did he advise Mr. Aggarwal or Mr. Brar to seek independent legal advice. [ 13 ] Mr. Malhotra prepared a Memorandum of Understanding dated August 1, 2013, a signed copy of which is attached to Mr. Aggarwal’s April 16, 2015 Affidavit. The one-page Memorandum of Understanding records, inter alia , that it is “agreed and understood” that Mr.

Malhotra had invested a sum of $400,000 with 174 and that he “shall be entitled to one third (1/3) of the profits and shall also be liable for one-third (1/3) of the losses”. Mr. Malhotra deposed that he signed the Memorandum of Understanding, and sent it to Mr. Aggarwal (at Questioning Mr. Malhotra states that he gave it to Mr. Aggarwal) for his signature on behalf of Aggarwal Holdings Ltd. and Ms. Brar’s signature, with instructions that they both sign and return an executed copy to him. Mr. Malhotra imposed no deadline for the signed Memorandum to be returned. At Questioning, Mr. Malhotra stated that Mr.

Aggarwal signed the Memorandum in his presence. Mr. Aggarwal deposed that he signed the Memorandum of Understanding as part of a package of documents regarding one transaction or another, none of which was explained to him, and that he does not know how the signature of Ms. Brar came to be on the Memorandum of Understanding. Mr. Malhotra confirmed that he did not tell Mr. Aggarwal or the Brars to obtain independent legal advice regarding the Memorandum of Understanding. [ 14 ] Mr.

Malhotra deposed that he held each of the three investors responsible for one-third of the total expenses from the purchase transaction, including the tax adjustment and his legal fees and disbursements. Mr. Aggarwal deposed that Mr. Malhotra did not pay one-third of those expenses. [ 15 ] Mr. Malhotra deposed that he provided an additional sum of $50,000 to 174 on September 5, 2013 to help get the development on the Entity Lands started. Mr. Malhotra understood that each of the three parties would pay $50,000. Mr.

Malhotra deposed that repayment of this amount does not result in an increased expense, nor does it change the calculation of his share of the project. Mr. Aggarwal deposed that the $50,000 which Mr. Malhotra paid to him on September 5, 2013 was actually a repayment of monies that Mr. Aggarwal had provided to Mr. Malhotra personally. [ 16 ] On February 12, 2015, Mr. Malhotra received a cheque in the amount of $400,000 from 174, with a notation “paid back loan”, which he understood to mean that his original investment was paid back.

He cashed the cheque. [ 17 ] A reconciliation prepared by the Respondents shows a surplus on the Royal Center North project of $1,123,918. The Applicant claims a one-third share of that surplus, or $374,639.33. The Applicant disputes amounts included in the calculation of total project costs. He concedes that there are triable issues regarding the expenses. The expenses in dispute are the payment of $1,900 to Rekha Aggarwal, the Accounting Fee of $25,000, the Management Fee of $250,000 to Makhan Brar and the loan interest of $100,000,

arguing that is should properly be only $51,484.86. The Applicant submits that adjustments to these figures lead to an adjusted surplus of $1,435,818, with the Applicant’s one-third share being $478,606. [ 18 ] On December 7, 2015, Nirmala Brar and Brar Medical filed a statement of claim in Action 1503 18512 against the Respondents as well as 1865221 Alberta Ltd., Joginder Deel, 886120 Alberta Ltd. and Rekha Aggarwal, making allegations and seeking orders that substantially match or mirror the allegations of Mr.

Malhotra in this action, including allegations of a “joint venture” and 174 being a “bare trustee”. [ 19 ] On February 12, 2016, the Respondents filed a statement of claim in Action 1603 02642 against Nirmala Brar, Mike Brar, Mr.

Malhotra and Brar Medical alleging, inter alia , that the defendants conspired with each other and made allegations in the 512 Action, and in other related actions, that were calculated and intended to lend material and evidentiary support to the claims in this action, and to exert undue pressure upon the Respondents and to give control or additional control to Mike Brar, Nirmala Brar and Brar Medical over the affairs and business activities of 174. [ 20 ] On February 12, 2016, the Respondents filed an application to consolidate the three related actions. [ 21 ] In December 2016, the parties reached agreement that this action may be heard together with Court of Queen’s Bench Actions 1503 18512 and 1603 02642, one right after the other, on all matters remaining after determination of the

summary judgment application. Alberta Rules of Court , Alta Reg 124/2010 [ 22 ] The following Rules are relevant: Application for judgment 7.2 On application, the Court may at any time in an action give judgment or an order to which an applicant is entitled when (

a) admissions of fact are made in a pleading or otherwise, or (

b) the only evidence consists of records and an affidavit is sufficient to prove the authenticity of the records in which the evidence is contained. Application and decision 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. Proceedings after

summary judgment against party 7.4 If

summary judgment is given against one or more defendants or plaintiffs, the action may be continued by or with respect to any plaintiff or defendant not bound by the judgment. Law [ 23 ] Modern civil procedure has come to recognize that a full trial is not always the sensible and proportionate way to resolve disputes: Windsor v Canadian Pacific Railway Ltd , 2014 ABCA 108 , 94 Alta LR (5th) 301, citing Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87.

Summary judgment is one option for parties to consider where a fair and just disposition for both parties can be made on the existing record. In Hryniak , Karakatsanis J. held that the evidence on a

summary judgment motion need not be equivalent to that at trial, but must be such that the judge is confident that s/he can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. In

summary judgment applications, the record is critical. [ 24 ]

Summary judgment applications must be considered from the perspectives of both process and substance: 776826 Alberta Ltd v Ostrowercha , 2015 ABCA 49 , [2015] AJ No 118 at paras 9-13 .

[25] From the process perspective,

summary judgment can be given if the Court can make a disposition that is fair and just to bothparties on the existing record. The Court is to look at the record and the dispute to decide whether it is essential that the Court hear vivavoce evidence in order to resolve the dispute. If so, the matter must go to trial: Papaschase Indian Band No 136 v Canada (AttorneyGeneral), 2008 SCC 14 at paras 10 to 11, [2008] 1 SCR 372, 1214777 Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301 at para 17,[2014] AJ No 538. [26] From a substantive perspective,

summary judgment can be granted if, within that fair and just process, it is revealed that thenon-moving party’s position has no merit in law or in fact, even assuming the accuracy of its position. The test is whether the claim is socompelling that the likelihood it will succeed is very high such that it should be determined summarily: WP v Alberta, 2014 ABCA 404at para 26, [2014] AJ No 1320, leave denied [2015] SCCA No 41. The moving party’s position must be unassailable or so compelling,on the facts and law, that the likelihood of success is very high: Access Mortgage Corp

(2004) Ltd v Arres Capital Inc, 2014 ABCA 280at para 45, 584 AR 68. [27] As Slatter J.A. observed in Tottrup v Clearwater (Municipal District) No 99, 2006 ABCA 380 at paras 11-12, [2006] AJ No1532, in some cases the application is simply based on the factual merits of the case. In such a case, the plaintiff must prove, on abalance of probabilities, each and every fact necessary to support its claim. The evidentiary burden then shifts to the defendant. [28] A party faced with an application for

summary judgment must put its best foot forward, and present evidence on the record toshow sufficient merit to establish a genuine issue requiring a trial with respect to the outstanding issues: Canada (Attorney General) vLameman, 2008 SCC 14 at para 11, [2008] 1 SCR 372; Windsor at para 21. However, the ultimate burden remains, as always, with theplaintiff. If the defendant proves there is a genuine issue for trial, the plaintiff fails to meet its ultimate burden.

The plaintiff mustestablish that it is beyond doubt that no genuine issue for trial exists. [29] In analyzing the evidence, the chambers judge need not determine whether the respondent’s evidence actually proves the factsought to be proven. A party can defeat a

summary judgment application by showing on the record the existence of evidence that couldbe sufficient to defeat the applicant at trial: Bemum Petroleum Ltd v Birch Lake Energy Inc, 2014 ABQB 652, [2014] AJ No 1199 atparas 19-20; AT Films Inc v AT Plastics Inc, 2014 ABQB 422, [2014] AJ No 731 at para 22. However, a

summary judgment motioncannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed: Lameman at para 19.The mere assertion of a position by the non-moving party in a pleading or otherwise, or the mere hope or speculation of the non-movingparty that something will turn up at a trial, does not suffice: Ostrowercha at para 11, Windsor at para 21. Raising issues of fact in astatement of defence is insufficient to meet the burden imposed on the defendant on a

summary judgment application: Quinney v1075398 Alberta Ltd, 2015 ABQB 452, [2015] AJ No 790 at para 43. [30] In Hryniak, the Supreme Court determined that some conflict in affidavit evidence of opposing parties in an application forsummary judgment does not mandate setting the matter for trial in every situation. The key is whether the necessary findings of fact canbe made on the record.

The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as theinferences are strongly supported by the facts: Guarantee Co of North America v Gordon Capital Corp, (SCC),[1999] 3 SCR 423, [1999] SCJ No 60 at para 30; Lameman at para 11. [31] Where the judge finds that s/he can make a fair and just determination on the merits, the matter should proceed without oralevidence even in the face of alleged factual conflicts. It may be that the conflicts do not arise on essential facts.

It may be that analysisshows no factual conflict exists, but only a conflict of the litigants’ separate opinions. It may be that issues can be resolved on the basis ofthose portions of the affidavits which are not in dispute.

It may be that one party relies on several affidavits containing internallyconflicting evidence, including some evidence which agrees with or supports the evidence led by the opposite party, amounting toadmissions against interest: Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101, [2015] AJ No 271 at paras 79-81,leave denied [2015] SCCA No 184. [32] A self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supportingevidence in the record: Guarantee Co v Gordon Capital, (SCC), [1999] 3 SCR 423, [1999] SCJ No 60 at para 31.Self-serving opinion evidence is inadmissible and is properly ignored by the chambers judge on a

summary judgment application:Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12, [2016] AJ No 129 at para 22. [33] On a

summary judgment application, the chambers judge does not weigh the evidence or assess credibility; that is the functionof a trial judge. However, the weight of affidavit evidence may properly be found to be reduced if the judge is satisfied that the deponentwas attempting to engineer circumstances so as to preclude testing on credibility, one party’s evidence on material facts is destroyed bycross-examination on affidavit, or the evidence is not consistent with other evidence and known circumstances.

Further, statements in anaffidavit have no weight if the statements are self-serving in the sense of being merely conclusory, argumentative, a bare assertion withno evidence supporting the claim: R Floden Services Ltd v Solomon, 2015 ABQB 450, [2015] AJ No 771 at paras 22-23. [34] Slatter J.A. in Tottrup noted that in other cases, the facts are clear and undisputed. The ultimate outcome of the case maydepend on the

interpretation of some statute or document, or on some other issue of law that arises from undisputed facts. In such cases,the test for

summary judgment is not whether the issue of law is “beyond doubt”, but whether the issue of law can fairly be decided onthe record before the court. If the legal issue is unsettled or complex or intertwined with the facts, it is sometimes necessary to have a fulltrial to provide a proper foundation for the decision. In other cases, it is possible to decide the question of law summarily. Trials are notgenerally held to find out the answers to questions of law; they are primarily to determine questions of fact. Issue [35] The sole issue is whether the Court should grant

summary judgment in respect of all or part of the claim. Argument

Applicant [36] The Applicant argues that his ownership interest in the Royal Center North Project is clear on the face of all of the documentsproduced between the relevant parties. The Offer to Purchase and Interim Agreement reflected that $400,000 of the purchase price wasto be paid by “Investment of Rajiv Malhotra”.

The offer was made by 174 and signed on behalf of the corporation by Rajiv Aggarwal.The Statement of Adjustments prepared in conjunction with the transaction, initialed by Rajiv Aggarwal on behalf of 174, reflected acredit against the purchase price of $400,000 representing the “Investment of Rajiv Malhotra”. 174 was only required to put up $800,000of the $1,200,000 purchase price of the Entity Lands, as the balance was covered by the Applicant’s interest in the property.

Finally, theMemorandum of Understanding, executed after the Equity Lands were acquired, recites that the Applicant has a one-third interest inwhat became the Royal Center North project and that the Applicant was entitled to one-third of the profits on the project. [37] The Applicant submits that the parol evidence of Rajiv Aggarwal to the effect that the contribution of the Applicant’s equityin the Entity Lands was a loan to 174 is inadmissible as it seeks to vary the written agreements: Gainers Inc v Pocklington FinancialCorp, 2000 ABCA 151, [2000] AJ No 626.

The Applicant submits that the allegation he loaned the money to 174 defies common sense.There is no documentation to reflect a loan. There are no terms alleged to have been agreed to regarding the time for repayment, themanner of repayment or the interest payable. [38] Further, Mr.

Aggarwal’s evidence that he did not read the Memorandum of Understanding before signing it is no defence; bysigning it, he caused it to be legally binding: Marvco Color Research Ltd v Harris, (SCC), [1982] 2 SCR 774, [1982]SCJ No 98 at paras 24-27. [39] As noted, the Applicant disputes amounts included in the calculation of total project costs and concedes that there are triableissues regarding the expenses.

Nevertheless, the Applicant argues that the only live issue is whether the parties had an agreement thateach had a one-third interest in the project. [40] The Applicant argues that although this transaction may give rise to other proceedings, those proceedings are not a defence tothis claim. In particular, the counterclaim filed in this action does not raise liquidated claims and is not a defence to this action. Respondents [41] The Respondents take the position that the $400,000 contributed by Mr.

Malhotra was a loan, similar to other loans made inthe past. [42] The Respondents argue that there are numerous genuine issues of material fact on the merits which require a trial. Theyfurther argue that their defence and counterclaim raise a valid defense to numerous genuine issues of potentially decisive material fact inthis case and these cannot be summarily found against the Respondents. [43] The Respondents make serious allegations against Mr. Malhotra of fraud and negligence in his duties as a lawyer. TheRespondents allege that Mr. Malhotra never advised Mr.

Aggarwal that he was in a conflict of interest or potential conflict of interest bybeing a beneficial owner on both sides of the transaction with respect to the sale and purchase of the Equity Lands while also being thelawyer for the Entity Homes and 174. He never discussed or gave any legal advice regarding a joint venture or the Memorandum ofUnderstanding. He never advised the Respondents to get independent legal advice. They argue that the documents, such as theMemorandum of Understanding, were prepared in a fraudulent manner.

They further argue that the doctrine of non est factum does notapply when the other party to the document is a lawyer with a fiduciary duty to explain and provide advice on the contents of thedocuments he presents to his clients for signature. [44] The Respondents argue that there are many contested facts and substantial contradictions in Mr. Malhotra’s evidence in theexisting record. The primary issues turn on the credibility of the parties which cannot be determined without viva voce evidence. [45] The Respondents submit that Mr.

Malhotra has not been able to prove on the record before the Court that he owned anyinterest in the Entity Lands, either initially through Entity Homes or after the lands were acquired by 174. There is no evidence to provethe existence of a joint venture agreement. The documents between the relevant parties do not reflect an ownership interest of Mr.Malhotra in the Royal Centre North project. The evidence establishes that 174 was not incorporated for the sole purpose of purchasingthe Entity Lands from Entity Homes nor to act as a “bare trustee” with respect to Mr. Malhotra’s alleged investment. Mr.

Malhotra is nota shareholder or a director of 174. Mr. Malhotra had no part whatsoever in developing the Royal Center North Lands, signed no personalguarantees and was not involved in the development or sale of any of the resulting condominium units. [46] The Respondents argue that allegations contained in the statement of claim contradict the alleged agreement of a one-thirdjoint venture between Mr. Malhotra, Mr. Aggarwal and Mr. Brar. There is contradictory evidence with respect to what each partybelieved the actual agreement to be. [47] The Respondents state that Mr.

Malhotra treated the $50,000 differently at various times in his evidence. Mr. Aggarwaldeposed that the $50,000 was a repayment to Mr. Aggarwal regarding monies that he had provided to Mr. Malhotra personally by chequeon July 10, 2013. [48] Finally, the Respondents submit that Ms. Brar and Brar Medical’s claim contradicts the Retainer Agreement of Hajduk GibbsLLP signed by Nirmala as a director of 174, as well as the evidence of Ms. Brar and Mike Brar during their Questionings. Analysis [49] The primary issue in this action is whether or not Mr. Malhotra became an equity partner in the Royal Centre North Project

undertaken by 174, or whether he merely loaned $400,000 to 174. [ 50 ] There are a number of facts in dispute in this litigation. They relate primarily to what the parties understood and intended when the Offer to Purchase and Interim Agreement, the Statement of Adjustments and the Memorandum of Understanding were prepared and executed. [ 51 ] The record suggests that the $400,000 “Investment of Rajiv Malhotra” reflected in the Offer to Purchase and Interim Agreement and the Statement of Adjustments was understood by Mr.

Malhotra to be the acquisition of a one-third interest in the Equity Lands which later became the Royal Center North Project. However, there is contradictory evidence as to the parties’ intentions. In his Statement of Claim, Mr. Malhotra claims to be entitled to 36 percent of the profit from the Royal Centre North Lands, not one-third. That same investment was understood by Mr. Aggarwal to be a loan to 174.

However, there is no documentation to reflect the alleged loan, nor are any terms alleged to have been agreed to regarding the time for repayment, the manner of repayment, or the interest payable. [ 52 ] The Memorandum of Understanding, executed after the Equity Lands were acquired, recites that the Applicant has a one-third interest in what became the Royal Center North project and that the Applicant was entitled to one-third of the profits on the project.

The Applicant admits to failing to explain or give any legal advice on the contents of the Memorandum of Understanding or on the alleged transaction as a whole and acknowledges that he did not advise Mr. Aggarwal or Nirmala Brar to seek independent legal advice. Nonetheless, the Applicant argues that the parol evidence of Mr. Aggarwal contradicting the contents of the Memorandum of Understanding is inadmissible. [ 53 ] I need not decide on this application to what extent, if any, parol evidence can be admitted in these circumstances. The goal of contractual

interpretation is to ascertain the objective intentions of the parties. It is an inherently fact-specific exercise. Examining evidence of the context in which the various documents were drafted deepens the Court’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract: Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 , [2014] 2 SCR 633. Evidence of the factual context extends to anything which would have affected the way in which the language of the document would have been understood by a reasonable person.

Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact. [ 54 ] In reviewing the record in light of the parties’ arguments, I am not satisfied that a fair and just determination of all or part of this litigation can be made without the benefit of viva voce evidence. The issues will require hearing from the witnesses in order for a credibility assessment to be made.

Some of the evidence before the Court is not inconsistent with the Respondents’ position, as pled in the defence and counterclaim. [ 55 ] I conclude that it cannot be said that the Applicant’s position is clearly unassailable on the facts and the law. Conclusion [ 56 ] The application is dismissed. Costs [ 57 ] If the parties are unable to agree on costs, they may speak to me within 30 days of the date this decision is issued. Heard on the 25 th day of August and 15 th day of December, 2016. Dated at the City of Edmonton, Alberta, this 17 th day of January, 2017. J.H. Goss J.C.Q.B.A. Appearances: Murray L.

Engelking

Engelking Wood for the Applicant/Plaintiff Richard B. Hajduk Hajduk Gibbs LLP for the Respondents/Defendants