Brar v Brar, 2017 ABQB 792

Court of Queen’s Bench of Alberta Citation: Brar v Brar, 2017 ABQB 792 Date: 20171222 Docket: 1101 12991 Registry: Calgary Between: Dr. Darshan Singh Brar, Gurtej Brar and Dr. Darshan Singh Brar Prof. Corp. Plaintiffs - and - Manjit Brar, Hardev Kaur Brar, Moga Corp., 1242085 Alberta Ltd. and Moga Holdings Corp. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.T. deWit _______________________________________________________ Introduction [ 1 ] This case involves a family business where the family has become completely divided. There is a dispute with respect to how

some of the family’s assets should be distributed between the father, Darshan Brar, and his eldest son Manjit Brar. The properties in dispute consist of the Castleridge property, the Chestermere property and the Edmonton Trail property. [ 2 ] There are three plaintiffs in this case, Dr. Darshan Brar, Darshan Singh Professional Corporation (Brar PC), and Gurtej Brar, Dr. Brar’s second oldest son.

However, Gurtej Brar has abandoned his claim, conceding that he has not plead a claim or the facts necessary for a claim. [ 3 ] There are three defendants in this case, Manjit Brar, and two corporations he controls: Moga Corporation and 1242085 Alberta Ltd. Moga Corp. has title to the Castleridge Plaza property. 1242085 Alberta Ltd. has title to the Chestermere property. Manjit Brar has title to the Edmonton Trail property. [ 4 ] Brar PC claims that it is owed $1.6 million from Moga Corp. for the repayment of loans. Dr.

Brar further asserts that an agreement was made between himself and his three sons, Manjit Brar, Gurtej Brar and Inderjot Brar wherein Manjit Brar was to transfer the three properties to Dr. Brar, including one half of the Castleridge Plaza property, the Chestermere property and the Edmonton Trail property. [ 5 ] Manjit Brar takes the position that Moga Corp. has repaid all monies owed to Brar PC and there is no debt owing or the debt was forgiven.

He also takes the position that if the debt has not been paid back or forgiven, the doctrine of laches or promissory estoppel applies and the debt is not enforceable. [ 6 ] The defendant Manjit Brar also takes the position that there was never an agreement for him to transfer the three properties. With respect to the Edmonton Trail property, he states the parties made a separate deal where he paid his father $500,000 instead of transferring the property. In addition, the defendant submits that the Statute of Frauds would prevent enforcement of any such agreement because the alleged agreement is not in writing.

Issues [ 7 ] The issues in this case can be listed as follows: 1) Have the plaintiffs proven on a balance of probabilities that an agreement was reached between the parties that Manjit Brar would transfer one half of the Castleridge Plaza property, the Chestermere property and the Edmonton Trail property to Dr. Brar? Does the Statute of Frauds apply to this transaction? 2) Have the plaintiffs proven on a balance of probabilities that money was lent from Brar PC to Moga Corp. and that the loan was not repaid or forgiven?

Does the doctrine of laches or promissory estoppel apply? [ 8 ] In this case, the issue of credibility is of the upmost importance because the parties did not prepare documents with respect to the agreements that they reached. I have been asked to determine whether the plaintiffs have proven their version of the events on a balance of probabilities.

Law of Credibility [ 9 ] In many cases finding one party’s evidence more credible then that of the opposing party is determinative of the case. ( FH v McDougall , 2008 SCC 53 at para. 86 ) In this case there are significant issues of credibility between Darshan Brar and Manjit Brar with respect to whether there was an agreement to transfer the three properties in question. The onus is on the plaintiffs to prove their case on a balance of probabilities. That is – is it more likely than not that their version of events actually occurred?

Unlike a criminal case, the parties in a civil case do not have significantly different standards of proof or a standard which is not employed in everyday life. A balance of probabilities is a well-known standard and is a standard often used by people making everyday decisions. Therefore, understanding such a standard is not difficult. [ 10 ] Knowing what to consider in coming to a determination that something occurred on a balance of probabilities can be more challenging.

Assessing evidence requires the court to consider a number of factors. [ 11 ] In order to determine the honesty and reliability of a witness’ evidence, a court will consider factors such as: • Opportunity and ability to observe the circumstances in question • Certainty of memory • Motive to lie • External suggestions that may alter memory • Evasiveness and Inability to concede clear facts • Making concessions not favourable to their position (balance) • Demeanor • Inconsistencies and contradictions

• Corroboration • Character • Bias • Inherent improbability and implausibility See: Bradshaw v Stenner, 2010 BCSC 1398, at para 186, aff’d 2012 BCCA 1360, leave to appeal to SCC refused [2012] SCCA No 392;Pitcher v Brown 2015 BCSC 1415, at paras 48-51. Some factors will be more probative than others depending on the circumstances ofthe case and the specific witnesses.

Although any of the factors listed above can become important, inconsistencies between what aperson has said on one occasion and what they said on another are extremely important gauges of credibility and reliability. [12] In R v G(M), (1994), (ON CA), 93 CCC (3d) 347 (ONCA), Galligan J.A. stated at para 23: Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what thewitness said in the witness box and what the witness has said on other occasions, whether on oath or not.

Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This isparticularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken the inconsistency can demonstrate carelessness with the truth.

The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. [13] Significant inconsistencies will not always be present in cases of credibility, but where they are present they may be the mostcogent factor to consider when determining the issue. [14] The other often quoted factor is inherent improbability and implausibility of a witness’ evidence.

In Faryna v Chorny, (BC CA), [1952] 2 DLR 354 (BCCA), 1951 CarswellBC 133, O'Halloran J.A. stated at para 10: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities, which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth”, is to come to aconclusion on consideration of only half the problem. In truth, it may easily be self-direction of a dangerous kind. [15] The probability of a version of events can be a determinative factor in assessing credibility or it can be an adjunct to otherfactors mentioned above.

Regardless it remains an important consideration. [16] Determining credibility requires an objective assessment and weighing of all the evidence. Trustworthiness and reliability arethe core prerequisites of credibility and a review of the evidence, with the factors listed above, will ensure a proper evaluation anddetermination of the issue of credibility in the civil law context.

Issue #1 Have the plaintiffs proven on a balance of probabilities that an agreement was reached between the parties that Manjit Brarwould transfer one half of the Castleridge Plaza property, the Chestermere property and the Edmonton Trail property to Dr.Brar? Does the Statute of Frauds apply to this transaction? Family History [17] Dr. Darshan Brar was born in India and grew up in the Philippines. He married Hardev Brar in 1969 and they resided inManila.

While in the Philippines, they had two children, Japant Brar, who was born in 1971 and Manjit Brar who was born in 1972.Because of political problems in the Philippines, Hardev Brar and the two children moved back to India in 1972. Dr. Brar remained in thePhilippines until 1976 while he completed his medical studies and internship. He did not see his wife and children for four years until abrief reunion with them in 1976. After this brief reunion, Dr. Brar divorced his wife, Hardev Brar and immigrated to Canada in 1977,where he married his second wife Parveen Mohammed.

He divorced Parveen in 1980. [18] Although married to another woman, Dr. Brar would continue to see his prior family, and in fact bore two more children withHardev Brar, Gurtej Brar in 1977 and Inderjot Brar in 1979. Dr. Brar described his marriage to Hardev Brar as being an arrangedmarriage and that there were problems from day one. He testified that he did not want to marry her but did so, on the insistence of hisparents. He also agreed in his testimony that he didn’t really know his children. [19] It was suggested to Dr.

Brar, in cross examination, that his father died and left nothing to him in 1980 but left part of his estateto Hardev. Dr. Brar testified that he did not know if this occurred and Hardev Brar was never called as a witness. However, Dr. Brar andHardev were remarried in 1984. Dr. Brar fathered another child, Alaina, with another woman in 2001. Dr. Brar and Hardev separated in2004. [20] Dr. Brar was involved with another woman in 2003, Lolita, who he eventually married and with whom he fathered anotherson, Daxon, who is now nine years old.

[ 21 ] Throughout the years, Dr. Brar worked as a physician through his professional corporation Brar PC. He was able to accumulate funds in Brar PC and began purchasing and developing land. [ 22 ] In the 1990s, Dr. Brar acquired what would become known as the Balzac Lands which was property north of Calgary. This property was held in the Balzac Land Corporation. By 2005 two companies, Moga Corp. and Moga Holdings had been formed and held the majority of the Brar family properties. Dr. Brar held 70% of Moga Corp. while Manjit held 30%. Both Dr. Brar and Manjit Brar held 50% of Moga Holdings. [ 23 ] In 2006, Dr.

Brar and Hardev Brar were in the midst of divorce proceedings and Dr. Brar transferred his interests in both Moga Corp. and Moga Holdings to his sons. After this transfer took place, each of the brothers owned one third of the shares of Moga Corp. and Moga Holdings. [ 24 ] In 2011, Dr. Brar and Hardev, with the assistance of their family, came to an agreement to separate their matrimonial property: the “Brar family settlement agreement”. Hardev received a significant amount of cash and properties that were held outside of Moga Corp. and Moga Holdings. Dr.

Brar was to receive a number of properties, including the Edmonton Trail property. Around the same time, the Brar sons agreed to a share swap between themselves whereby Manjit Brar held all the shares of Moga Corp. and his brothers Gurtej and Indojet each held 50% of the shares of Moga Holdings. [ 25 ] Dr. Brar alleges that around this time Manjit agreed to transfer half of the Castleridge Plaza property and the Chestermere property to him. Manjit denies he made any such agreement.

Regarding the Edmonton Trail property, Manjit states that after the family settlement agreement was reached there was a change to the arrangement such that Dr. Brar was provided with funds as compensation for the property, rather than a transfer of title. Contributions of Manjit Brar [ 26 ] Throughout his testimony, Dr. Brar gave little to no acknowledgement of the contributions of his eldest son, Manjit Brar, towards the development of the Brar family real estate acquisitions and the subsequent increase in value of those acquisitions. During his testimony, Dr.

Brar portrayed his eldest son, both before and after he was married, as never contributing to living expenses, requiring Dr. Brar to pay for everything. Dr. Brar testified that he was the only one in the family that worked and the rest of the family never worked. [ 27 ] During cross-examination, Dr. Brar admitted that when Manjit first began to work in the family business he was never paid a salary. He agreed that Manjit was running the companies and building the projects and wasn’t paid a salary. However, Dr. Brar would not simply make these admissions and was very evasive in his testimony.

After admitting that Manjit was not being paid for his efforts, Dr. Brar then said that Manjit had access to the check books of the family business and that he thought that Manjit had paid himself. Defendants’ counsel pressed him on this assertion, putting to him that he would have reviewed the bank accounts of the companies and known if Manjit had been paying himself. Dr. Brar showed further evasiveness and first said that he didn’t review the bank accounts of these companies. Then he said he did review the bank accounts up until 2006 which was the time in question.

When it was again put to him that he would review the bank statements up to 2006 he answered “I probably would’ve received it, probably would not have received it.” This is but one example of the evasiveness on the part of Dr. Brar, and his reluctance to admit certain clear facts which I must consider in assessing his credibility. [ 28 ] It was put to Dr. Brar that the Balzac Lands Corporation was started in the mid-90s, around 1995, and Moga Holdings and Moga Corp. were started in 1996, and that at the time Manjit was at university and started working for the companies. Dr.

Brar responded by downplaying the kind of work that Manjit did in the mid-1990s, saying work can be anything from cleaning to being a runner. Dr. Brar made it clear that he believed he was the one who had built the “plazas” and Manjit had only contributed minimally by doing menial work. Dr. Brar testified that Manjit took orders from him, Manjit was under his command, and Manjit did nothing on his own initiative. [ 29 ] Only after lengthy cross-examination did Dr. Brar admit that beginning in 1997, he would purchase properties and then turn them over to Manjit who would do all the work developing them. Dr.

Brar finally admitted that he had no experience in the construction of commercial properties. In cross-examination it was put to Dr. Brar that in 1997 he would buy a property and turn it over to Moga Corp. and Manjit would take care of it from that point on, and Dr. Brar said: “yes that’s true.” Dr. Brar agreed that Manjit took on greater responsibilities in 1997 when he graduated with his degree. However, Dr.

Brar would only grudgingly admit, after being pressed in cross-examination, that Manjit was a significant contributor to the development and eventual increase in the value of the Brar family properties. [ 30 ] For example, Dr. Brar would not agree in cross-examination that Manjit was the general contractor for the properties. Dr. Brar was then shown prior statements from the divorce proceeding discoveries where he stated that he would buy the properties and then give them to the kids, especially Manjit, to manage. One statement included him saying “I would say to Manjit take care of this property.

He’s the builder. He’s the engineer. He talks to the architects. He builds. He manages. And that’s what he did since 1992.” He also stated in the divorce proceedings that one of their properties, Amber’s Plaza, was bare land that they purchased and that Manjit developed it and built it from scratch. [ 31 ] When Dr. Brar was asked, in cross-examination, why he would say in his previous testimony that Manjit did nothing when he was in fact developing the properties and in charge of the building, Dr. Brar would not admit that he made the prior statements. He stated: “I doubt that statement, sir.

I did not say that.” [ 32 ] Finally, after being shown numerous prior statements, including one where he admitted that when they developed the Castleridge properties and started building buildings Manjit took care of all that work, that Dr. Brar finally said “yes there is no question.” He finally agreed that Manjit was running the companies and building the projects, but was never paid a salary. [ 33 ] In my view, Dr.

Brar’s reluctance to admit to Manjit’s instrumental role in developing the properties negatively affected his credibility because he needed to be pushed in cross-examination to make these clear admissions. There were significant contradictions

and inconsistencies in his testimony that show evasiveness and an inability to concede clear facts. Not only do these factors negatively affect Dr. Brar’s credibility, but, in my view, they provide context as to why there is such discord within the Brar family and between Manjit and Dr. Brar. [ 34 ] It is with this background and context in mind that I assess the evidence to determine whether the plaintiffs have proven Manjit agreed to transfer the three properties to Dr. Brar, either through a written or oral agreement.

Evidence Relating to a Written Agreement [ 35 ] The defendants submit that the Statute of Frauds need only be considered if the court comes to the conclusion that there was an agreement to transfer the properties in question. The purpose of the Statute of Frauds was to prevent fraudulent allegations of agreements relating to land by requiring such agreements be in writing ( Bjornson v Gabel , 2010 ABQB 649 , at para18). The Statute of Frauds also underscores the importance of having unassailable agreements with respect to the transfer of lands.

Ensuring such agreements are in writing allows for easy determination of whether there was an agreement and what the terms of the agreement were. In this case, we have no such written agreement and a disagreement as to whether the parties ever agreed that there would be a land transfer. [ 36 ] The only written documentation relating to assets and land that was to be transferred amongst members of the Brar family are the handwritten notes of Japant Brar. These notes were made in relation to the “Brar family settlement agreement” which came out of meetings held in December 2010 and January 2011.

During those meetings Japant represented her mother, Hardev, and the rest of the family was also present. The goal of these meetings was to separate the matrimonial property of Hardev and Dr. Brar. During these meetings Japant took handwritten notes and in the end there was an agreement with respect to how the matrimonial property would be divided. The agreement determined that Hardev Brar would receive certain properties and certain amounts of cash. Dr. Brar, according to Japant’s notes, her affidavit, and her testimony at trial, was to receive a number of properties including the Edmonton Trail Property.

There was nothing in this family settlement agreement, or Japant’s notes, which indicated that Dr. Brar was to receive the Castleridge or Chestermere properties. There was also nothing in the hand written notes that indicated that Dr. Brar was to receive any shares to Moga Corp. or Moga Holdings. In fact the notes, and Japant’s testimony at trial, suggested that Moga Holdings would belong to Gurtej and Inderjot Brar and that Moga Corp. would belong to Manjit. Japant Brar [ 37 ] The evidence of Japant Brar, at trial, was the most credible of any of the witnesses.

She had no bias, no motive to lie, had taken notes to refresh her memory and was not evasive in her testimony. Neither was she contradicted with respect to any important evidence. Although she was the oldest child of Hardev and Dr. Brar, she would receive none of the Brar family properties. [ 38 ] Japant adopted her affidavit evidence which stated that the family settlement agreement was premised on the understanding that Dr. Brar and Hardev would receive similar value and properties and cash after the settlement of Dr. Brar’s debts and obligations.

However, she indicated that it was never Hardev’s intention to obtain a 50-50 split, she just wanted a settlement that was fair for her moving forward. [ 39 ] Japant clearly testified that the Edmonton trail property, which was estimated to be worth $450,000, was to go to Dr. Brar so that he could pay off his tax debt. Japant testified that she recalled that money would be given to Dr. Brar in relation to his tax debt and the money was related to the Edmonton Trail property. [ 40 ] Dr. Brar testified that the Chestermere property was also to go to him to deal with some of his debt.

However, Japant testified that the Chestermere lands and the Castleridge property were not discussed in relation to the settlement. If the Chestermere property were to be part of the deal to remove some of Dr. Brar’s debt, one would think that it would have been discussed during the family settlement agreement meetings. She also agreed that Moga Holdings and Moga Corp. were not part of the settlement agreement discussions. She testified that it was her understanding that Moga Corp. had no financial obligations under the agreement except to pay legal fees of $30,000 to her mother and $20,000 to Dr. Brar.

She also recalled that the discussions included Moga Corp. forgiving a debt owed to it by Moga Holdings of $500,000. Japant testified that she had no knowledge with respect to the shareholdings in Moga Corp. or Moga Holdings. [ 41 ] Japant’s evidence does not contradict or corroborate whether an agreement was reached between Manjit and Dr. Brar with respect to the transfer of the Chestermere and Castleridge properties. However, some of her evidence corroborates that there was a later agreement to provide Dr. Brar with funds as compensation for the Edmonton Trail property, rather than actually transferring it.

Her evidence does confirm that there was no agreement with respect to the Castleridge and Chestermere properties as a result of the family settlement agreement. Evidence Relating to an Oral Agreement [ 42 ] With no written documentation, the Court is left with the testimony of Dr. Brar, Manjit Brar, Gurtej Brar and Karin Brar as to whether there was an oral agreement to transfer the lands. [ 43 ] Manjit was clear in his evidence that after the settlement of the matrimonial property division between Dr.

Brar and Hardev, Japant left the meeting and went upstairs and at that time there was an agreement between the brothers that Manjit would take over Moga Corp. and Gurtej and Inderjot would receive the shares of Moga Holdings. Manjit indicated that this meeting was in January 2011 which is consistent with the evidence of Japant.

Manjit testified that there were no other meetings between him and his father or his brothers regarding the properties other than a meeting in March where the brothers signed and swapped shares and a meeting in June 2011 which was surreptitiously recorded by Gurtej Brar, but provided no evidence of an agreement to transfer lands. Manjit was very sure there was no other meetings and positive that he did not agree to transfer the lands in question to his father. He was asked by his counsel how he

could be sure of that and he answered “I would remember if somebody was going to take 20 acres or 18 acres of my land.” There was no impeachment of Manjit’s testimony in this regard and he was not contradicted by any previous statements indicating that he had agreed to transfer the properties. [ 44 ] In examination in chief, Dr. Brar testified that after the family settlement agreement meeting there were two further meetings and it was at one of these meetings that Manjit agreed to transfer the three properties. In cross-examination, Dr.

Brar indicated that there were four to five further meetings after the settlement agreement meeting and it was at the last meeting that Manjit agreed to transfer the three properties. When asked if the last meeting was at Gurtej’s place Dr. Brar answered: “I don’t remember.” Dr. Brar was asked by his counsel whether Manjit had agreed to transfer the Castleridge property, the Chestermere property and the Edmonton Trail property and he said yes.

When he was asked specifically how Manjit indicated his agreement to this he said “well, he said, okay.” No other evidence was given with respect to the specifics of what Manjit said during these alleged meetings. [ 45 ] Dr. Brar did not testify that he was getting shares in Moga Corp. during his examination in chief. However, when he was cross examined Dr. Brar stated that Manjit was supposed to give him half of Moga Corp.

Again, there were no specifics with respect to what Manjit said with respect to this agreement and his testimony was vague and inconsistent regarding what the agreement entailed. [ 46 ] The transfer of properties that are worth millions of dollars is a serious matter and as mentioned above is the main reason for the Statute of Fraud’s requirement there be a written agreement. Therefore, evidence of an agreement to transfer property of substantial worth must be clear and unequivocal.

In this case, there is no such clear and unequivocal evidence. [ 47 ] In my view the plaintiff has not provided evidence of a clear and unequivocal agreement between Dr. Brar and Manjit regarding the transfer of the properties in question. In addition, when I consider the credibility of Dr. Brar and Manjit with respect to whether there was an agreement, I find that there was no such agreement on a balance of probabilities. I will review the evidence taking into consideration factors of certainty of memory, evasiveness, corroboration and inherent improbability and implausibility.

Certainty of Memory [ 48 ] There are many factors which, in my view, give me concern with respect to Dr. Brar’s credibility regarding the agreement he alleges he made with Manjit. The vagueness of Dr. Brar’s recollection as to whether the agreement was to transfer property or exchange shares is obviously troubling. However, Dr. Brar’s memory in general is also suspect. He was unable to recall the date when he married his present wife. Defendants’ counsel asked Dr. Brar questions regarding his father’s ownership of apartments in New Delhi and he indicated “I don’t know.

No idea.” He was then taken to the transcript of his divorce proceedings where he indicated that he inherited the three apartment buildings in New Delhi and had sold those buildings and put the proceeds in the bank. He was asked where he obtained the $200,000 deposit on the Castleridge property and he indicated “I’m not sure, but probably my personal -- most likely my money. My lenders money.” When asked questions regarding what percentages of Moga Holdings and Moga Corp. he and his sons held, he indicated that he was not sure.

These were important issues in the lawsuit and yet he had little memory of the numbers. [ 49 ] There are many other examples of this lack of memory. When Dr. Brar was reminded by defendants’ counsel that he was to produce the divorce file as an undertaking and questioned why he did not do this he said: “I could have been asked, I don’t know, I don’t remember.” Dr. Brar was asked by defendants’ counsel whether he said in June 2010 that he had no interest in the ownership of Chestermere and his answer was “I don’t remember”.

He was asked whether he recalled that Inderjot and Gurtej did not want to continue in joint ownership with Manjit and again he answered “I don’t know.” This lack of memory may be understandable considering Dr. Brar’s busy

schedule and I would not reject his evidence based solely on his difficulty recalling certain events. However, some of these events are pertinent to this lawsuit and negatively affect Dr. Brar’s credibility. Evasiveness and Inability to Concede Clear Facts [ 50 ] In my view, Dr. Brar was evasive when answering questions in cross-examination and would not concede clear facts even when he was shown prior statements where he admitted those facts. Edmonton Trail Property [ 51 ] An example of such evasiveness was the questioning with respect to the Edmonton Trail property.

It was clear from everybody’s testimony that Manjit was to transfer the Edmonton Trail property to Dr. Brar as part of the family settlement agreement. There was also agreement that there had been discussions that Dr. Brar wished to have this property so that he could quickly sell it in order to pay his tax debt. There was also evidence from Manjit and Japant that Manjit would give Dr. Brar $500,000 in cash for the Edmonton Trail property even though the property was only worth $450,000. Manjit and Dr. Brar agreed the money was transferred.

Yet the plaintiffs continue to argue that the Edmonton Trail property was not transferred to Dr. Brar in breach of the alleged agreement. This is a significant factual issue. [ 52 ] Dr. Brar was confronted in cross-examination about being paid $500,000 by Manjit in exchange for the Edmonton Trail property. Dr. Brar first would not agree that this had occurred but he finally did agree that he received $500,000 from Manjit. He indicated first that this $500,000 was from the Gordon Hoffman trust.

However it was pointed out to him that the money in the Gordon Hoffman trust was in a lawyer’s trust account over which Manjit had no control. Dr. Brar then stated that the $500,000 was part of the Brar family settlement. He was asked to point to anything that suggested that he was to get $500,000 from Manjit as a result of the family settlement agreement and he could not do so. Dr. Brar admitted that his intention was to immediately sell the Edmonton Trail property in order to raise money to pay the debt he owed to revenue Canada.

He would not admit that the $500,000 he received from Manjit was for the Edmonton Trail property. However, I find there is no other explanation for him receiving this money. I have no difficulty in finding that, in effect, Dr. Brar sold the Edmonton Trail property to Manjit for $500,000. [ 53 ] This is a clear example of Dr. Brar being evasive in his testimony and not conceding clear facts on matters directly related to issues before the Court.

Inconsistency with Divorce Proceedings [ 54 ] It appears that Dr. Brar will colour his testimony to suit his position as evidenced by the inconsistencies between his statements during the divorce proceeding discoveries and his position during trial in this matter. Inconsistencies are always a consideration during assessments of credibility and in this case, in my view, these inconsistencies negatively affect Dr. Brar’s credibility. [ 55 ] In 2010, Dr. Brar was in the midst of his divorce proceedings and was being examined with respect to the matrimonial property.

Japant Brar had given evidence that Hardev Brar would have settled the matrimonial property issues if she had received $1 million in cash. Japant went on to testify that Dr. Brar would not accept this resolution and ended up paying much more than $1 million to Hardev. [ 56 ] During his divorce proceeding questioning, Dr. Brar was asked questions regarding some of the properties and assets that he had.

He was asked whether he expected to receive any loan repayments from Moga Corp. and he answered “I doubt because Moga is trying to pay for its own mortgages and to me that was the property that I had given to the kids. They’re my children, they are entitled to that.” He then indicated that he did not expect to be paid back this money. Now Dr. Brar is asking for this money back as part of the loan repayment to his professional corporation. Although this is factually pertinent to the next issue regarding the loan from Brar PC to Moga Corp., it is another example of Dr.

Brar colouring his testimony to suit his position. [ 57 ] During those same divorce proceedings in 2010, Dr. Brar indicated that he did not own nor had he owned any properties in Chestermere. When it was suggested to him that there was a farm close to the highway in Chestermere he indicated that it must be in his kid’s name and he agreed he had nothing to do with that property. Dr. Brar later explained that he meant that the property was in Manjit’s name. However, it can certainly be inferred that Dr.

Brar’s position with respect to his properties changed depending on whether he was in divorce proceedings, and having less matrimonial property was to his advantage, or in this action where he claims the properties belonged to him. These examples show that Dr. Brar will colour his testimony in a manner which favours his best interests instead of being completely forthright. [ 58 ] I have already discussed Dr. Brar’s evasiveness with respect to admitting the contributions of Manjit to the development of the family properties. In my view Dr.

Brar’s evasiveness in regards to numerous issues has a significant negative effect on Dr. Brar’s credibility and the reliability of his version of events. Corroboration [ 59 ] Plaintiffs’ counsel argues that the evidence of Gurtej Brar and his wife Karin Brar corroborates the evidence of Dr. Brar that there was an agreement between Manjit and Dr. Brar with respect to the properties in question. The plaintiffs recognize that having more witnesses to testify to the same thing does not necessarily add credence to that assertion. In this case, in my view, the evidence of Gurtej and Karin Brar does not enhance Dr.

Brar’s credibility with respect to whether the agreement in question occurred. Gurtej Brar [ 60 ] Although demeanour should be considered sparingly when determining issues of credibility, the evasive and flippant manner in which Gurtej gave his evidence caused me some concern.

When asked whether his father was paying his tuition when he was attending school in India he indicated “I’m not sure.” He was then confronted with the fact that he was sure of that during his discovery he indicated “it must have been.” This was clearly a fact that was beyond reproach and Gurtej’s answer that he was not sure if his father was paying for his schooling is a clear example of evasiveness for no reason.

Further, when being asked why he was in school for so long he indicated that he didn’t have any type of pre-degree and that it was his sister-in-law and her father who got him into medical school by “including a nice little bribe that they gave the school.” This flippant answer was unnecessary and portrayed a lack of recognition of the solemnity of giving evidence in court.

When asked about receiving 50% of the shares of Moga Holdings he indicated that he didn’t pay anything for the shares or work for the shares and when asked why he thought they were given to him he indicated “I’m not sure.” [ 61 ] Gurtej was asked whether Manjit rejected a suggestion of transferring the Chestermere and Castleridge properties to Dr. Brar. Gurtej indicated that these properties did not come up in discussions at the family settlement agreement meetings. He also agreed that Manjit had no interest in transferring these two properties to Dr. Brar at the time of the family agreement meetings.

During discoveries, when asked whether Manjit was in agreement with transferring these two properties to Dr. Brar, Gurtej answered by saying “he didn’t want to give up anything”. This of course begs the question as to why Manjit would agree to do this later on and this was asked of Dr. Brar during trial. No answer was given to this question. However, this evidence flies in the face of any suggestion that Manjit believed that these properties should be transferred to his father in order to ensure there was a fair distribution of property between Dr.

Brar and Hardev. [ 62 ] The most troubling part of Gurtej’s evidence was its inconsistency with respect to what the agreement was. He first said “yes” when asked whether an agreement was made to transfer the Chestermere and Castleridge properties. He then changed his evidence, saying the agreement was for Dr. Brar to receive 50% of the shares of Moga Corp. However, he agreed that when 50% of the Moga Holding shares were signed over to him he signed all of his shares in Moga Corp. over to Manjit. This would have been contrary to the agreement he says was made between Manjit and his father.

Gurtej’s only response was that he realized this was a mistake later. This is a clear inconsistency directly related to the issue in question and Gurtej could not give any explanation for this inconsistency. [ 63 ] In redirect, defendants’ counsel asked for some clarity with respect to what was intended to be transferred, shares or property and Gurtej’s answer was “I believe it was half the shares or -- I don’t know. I’m getting mistaken here. It was supposed to be half the Plaza.

Sorry, my mind is just going -- I can’t recall right now.” This is the most important part of the agreement and the witness could not remember exactly what was said. In my view, Gurtej was clearly biased in his father’s favour in this case because he completely relies on his father for his well-being. His lack of certainty of memory, inconsistency, bias and questionable demeanour not only fails to corroborate Dr. Brar’s testimony, but in fact detract from the credibility of the plaintiffs’ version of events with respect to the transfer of

the properties. Kiran Brar [ 64 ] Karin Brar testified that she was present when the agreement was made between Manjit and Dr. Brar to transfer the properties to Dr. Brar. She testified that it was her understanding that Dr. Brar and Manjit would have 50-50 percent of Moga Corp. and that Chestermere was also to be transferred to Dr. Brar. When asked if she could recall the discussion setting out the rationale for these arrangements she could not give any specific comments by individuals other than them saying “okay, I’m fine with that”.

Her evidence indicates that there was to be a share swap and not a transfer of lands which is arguably contradictory to Dr. Brar’s evidence and neither corroborative nor contradictory of Gurtej’s testimony. [ 65 ] Karin Brar testified that she wanted Dr. Brar to win this lawsuit and she works for Dr. Brar. She is clearly a biased witness in these proceedings and I find her bare assertion that this agreement took place does not add any probative value to the plaintiff’s version of events that there was an agreement to transfer shares or property.

Inherent Improbability and Implausibility [ 66 ] As stated above, the probability or improbability and implausibility of a party’s position can be a determinative factor in assessing credibility. In this case, plaintiffs’ counsel argues that Dr. Brar was shortchanged with respect to the division of the matrimonial property if he does not acquire the Chestermere and Castleridge properties. He bases this argument on estimations of the value of certain properties that he says were prepared by Indojet Brar after the meetings in question.

However, Indojet did not testify as to how these numbers were arrived at and some of the documents indicate that they were prepared by Dr. Brar. [ 67 ] Everyone in this case agrees that no proper estimates were gathered with respect to the value of the properties to be divided. Dr. Brar testified that he was uncertain of the value of properties like Chestermere, Edmonton Trail and Castleridge and that they didn’t put any value on these properties in 2010. It was put to Dr.

Brar in cross-examination that he was claiming that he had been left with so little, yet no proper appraisals were put before the Court and it was all his “own say-so”. He agreed. Japant also testified that during the family settlement meetings they did not use any appraisals and that the values of the properties were not specific figures, but were approximate.

Therefore, in my view, this plaintiffs’ argument has little probative value because we simply do not know the actual values of the lands in question. [ 68 ] There is one other factor that is significant with respect to the probability that Manjit agreed to transfer the lands in question. That is, why would he endeavor to do such a thing and give up significant properties for no reason. This question was put to Dr. Brar during cross-examination and he could not give a logical answer. As stated earlier, Gurtej Brar was of the view that Manjit was not prepared to transfer these properties to Dr.

Brar during the family settlement meetings. [ 69 ] During cross-examination Dr. Brar was asked about discussions that he had with Manjit about the lands. It was put to him that Manjit had made several proposals to him prior to the family settlement agreement with Hardev and none of them were acceptable to Dr. Brar. It was further put to Dr. Brar that once he struck a deal with Hardev he went back to Manjit and started making demands and Manjit essentially told him no. Dr.

Brar responded to this set of facts from defendants counsel by saying “no that’s wrong.” He was then shown his discovery transcript where this scenario was put to him and his answer was “True. Probably. Okay.” At trial, when counsel put to Dr. Brar that he had given different answers to the same questions, Dr. Brar said: “No, I answered truly, straightforward both times”. [ 70 ] Dr. Brar later testified in redirect that although Manjit told him “no” earlier on, Manjit later agreed to transfer the lands.

This still leaves the question as to why Manjit would agree to transfer the lands and reduce his holdings for absolutely no compensation. [ 71 ] Manjit of course has testified that he did not agree to transfer any lands or shares. Dr. Brar agreed that Manjit said no to his demands. There was no reason given for Manjit to completely change his mind in that regard and his actions in not forwarding these properties or shares to Dr. Brar are consistent with his testimony.

In my view, a reasonable person would clearly view Manjit’s position that he never made an agreement to transfer these properties as being more probable. When one then adds the issues of Dr. Brar’s evasiveness and inability to admit to clear facts, the difficulties with memory, the inconsistency as to whether the agreement was for a transfer of shares or transfer of property and other contradictions in Dr.

Brar’s evidence, Manjit’s version of events is the more probable scenario. [ 72 ] Plaintiffs’ counsel admitted during oral submissions that they had some hurdles to overcome with respect to the issue of credibility. I would agree and, in my view, they have not overcome those hurdles.

Therefore, I find that the plaintiffs have not met their burden of proving that there was an agreement as alleged in the circumstances of this case. [ 73 ] Although the Statute of Frauds was argued in this case, my finding that the plaintiffs have not proven an agreement to transfer the properties in question makes it unnecessary to discuss the Statute of Frauds any further. Issue #2 Have the plaintiffs proven on a balance of probabilities that money was lent from Brar PC to Moga Corporation and that the loan was not repaid or forgiven?

Does the doctrine of laches or promissory estoppel apply? [ 74 ] Salim Allibhai was the accountant for both Moga Corp. and Dr. Brar’s Professional Corporation (Brar PC) until 2004. The financial statements of both Moga Corp. and Brar PC indicated that as of July 14, 2004 there was an amount owing by Moga Corp. to

Brar PC of $1,172,508. A further amount of $79, 004 was also added to the amount paid from Brar PC to Moga Corp. In his testimony, Manjit admitted that this amount was owing to Brar PC. The defendants do not argue otherwise. [ 75 ] Eight further cheques totaling $330,531.92 were issued by Brar PC to Moga Corp. after July 15, 2004. Again Manjit, in a forthright manner during his testimony, agreed that these cheques were cashed by Moga Corp. This leaves an amount owing of $1,692,043.92 ($1,582,043.92 according to my calculations) from Moga Corp. to Brar PC.

The defendants concede that the books of Brar PC and Moga Corp. showed these amounts were owing. However, the defendants raise a number of arguments to counter the loan: the reliability of the books is questionable, loans were paid back to third-party lenders with respect to the Brar PC loan, the loan was forgiven by Dr. Brar, and that the doctrines of laches and promissory estoppel apply. Forgiveness and Disavowal [ 76 ] The defendants argue that the amounts owed to Brar PC by Moga Corp. were forgiven by Dr. Brar, as principal of Brar PC, and therefore the amounts owing were gifted to Moga Corp.

There need not be any consideration flowing between the parties when there is a gift or disavowal. The defendants rely on a number of pieces of evidence for their proposition that Dr. Brar forgave and disavowed the loan; a letter to the children dated April 11, 2005 (Cri de Coeur letter), the transfer of shares of the family corporations to his sons, statements of disavowal made during the divorce proceedings discoveries, evidence that all inter-corporate loans would be forgiven at the time that the shares were redistributed amongst the three sons in 2011 and Dr.

Brar’s admission during questioning for discovery in this matter that the amount of the loans only became owing when Manjit failed to transfer the properties claimed under this action. Cri de Coeur letter [ 77 ] A letter was written by Dr. Brar in 2005 to his children at the time that his marriage to Hardev was ending. In this letter Dr. Brar indicates that he is depressed, suffering from a number of ailments and admits to abusing alcohol. In fact, at the time he was convicted of impaired driving. He further indicates that he “doesn’t care about the properties and the money and I just want to be free.

You guys can have everything.” In my view, this letter was very vague and not specific with respect to what was owed, especially any loans that were payable to Brar PC. Certainly on its own it does not provide enough specificity or solemnity to legally divest Dr. Brar of all of his assets including property and money. [ 78 ] However, the defendants argue that Dr. Brar’s actions in transferring his interests in Moga Corp. and Moga Holdings to his three sons, in 2006, was further confirmation of his desire to forgive all loans including loans from Brar PC to Moga Corp.

Although, as the defendants state, at the time when Dr. Brar transferred his interest he may have assuaged his pain, it is more likely than not that Dr. Brar was attempting to shield some of his assets from being labelled as matrimonial property because of the pending divorce proceedings. There was no mention of the loans from Brar PC to Moga Corp. during this transfer of shares and the books of Moga Corp. continued to recognize the Brar PC loans and made entries paying these loans off through payments to third parties.

Therefore, in my view this transfer of shares in 2006 does not significantly raise the probative value of the cri de coeur letter in showing that Dr. Brar was forgiving the Brar PC loan to Moga Corp. Statements of Disavowal Made During the Divorce Proceedings [ 79 ] The defendants produced a read-in of a statement given by Dr. Brar during the divorce discovery proceedings wherein he was asked about funds he had advanced to Moga Corp. He was specifically asked whether he advanced the funds personally or through his Professional Corporation. He answered “one or the other.” It appeared to me from Dr.

Brar’s testimony that he did not consider the detail of whether the money he gave to Moga Corp. was from himself or his Professional Corporation. Later during this discovery proceeding Dr. Brar was asked if he expected to see some payback from Moga Corporation. He answered “I doubt, because Moga is trying to pay for its own mortgages, and to me, that was the property that I’ve given to the kids. They’re my children: they’re entitled to that.” He was then asked “you don’t really expect to have any of this money paid back to you then?” And he answered “no”. Later in redirect during trial, Dr.

Brar explained that the monies he was referring to were his personal loans to Moga Corp. and not the loans from Brar PC. [ 80 ] The questions during the divorce proceeding discoveries were clearly specific with respect to loans made by Brar PC to Moga Corp. However, these statements were made with respect to the divorce proceedings. As I indicated earlier, it is likely Dr. Brar was attempting to minimize his assets in light of the divorce proceedings. In addition, his comments indicate that he did not expect to receive these monies but do not suggest that he is forgiving the loan or making it a gift. When Dr.

Brar talks about the things he gave to his kids he refers to property and not money. He is certainly not asked specifically whether he forgives the Brar PC loans to Moga Corp. Share Swap in 2011 [ 81 ] The defendants argue that in 2011 after the family settlement agreement all corporate debts were forgiven and this included the Brar PC loan. There is no doubt that Manjit gave up his shares in Moga Holdings and acquired shares in Moga Corp. During that time there was a loan from Moga Corp. to Moga Holdings that was forgiven. As well there were monies owed to Moga Corp. from Balzac Land Developments.

It was agreed by numerous witnesses that the intra-corporate loans between the entities of Moga Corp., Moga Holdings, and Balzac Land Developments were forgiven. However, these witnesses did not testify about the forgiveness of the Brar PC loans to Moga Corp. and this loan was not discussed during the family settlement meetings. This may be because Moga Corp. had already written off the Brar PC loans by that time on the basis due to payments it made to third parties. However, just because the loans had been written off by Moga Corp., in their financial statements, does not mean that they were not owing.

In my view, because there was no conversation or recognition of the Brar PC loans during the share swap and forgiveness of intra-corporate loans in 2011, there is little support for the proposition that the Brar PC loans to Moga Corp. had been forgiven. Loan Only Owing after Properties Not Transferred [ 82 ] The defendants argue that Dr. Brar’s comments during discovery of this action indicate that he had previously forgiven the

loan. Dr. Brar’s commented that he first demanded payment of the Brar PC loan to Moga Corporation after Manjit refused to turn overthe properties. The defendants suggest this shows the loan had been forgiven prior to this date. [83] However, in discoveries and at trial Dr. Brar indicated that the Brar PC loans were still owing. He differentiated between hispersonal loans and the Brar PC loans and stated that he did not expect to be paid back personally. He did not say that he did not expect tobe paid back for the Brar PC loans. With respect to these loans, Dr.

Brar stated he could determine when he wanted them to be paid. Justbecause he did not charge Moga Corp. interest or demand that the loan be paid earlier did not mean that he forgave or disavowed theloan. [84] In this case, Dr. Brar’s refusal to recognize the contributions of time, labour and ingenuity by Manjit towards developing theproperties and increasing their value, was a roadblock to Dr. Brar being able to come to a resolution and agreement with his oldest son.However, Dr.

Brar’s contribution of money and loans was also important, and allowed for the acquisition of these properties and theirdevelopment by Manjit. This is recognized by the defendants. Therefore, in my view, one cannot separate the Brar PC loan from theproperties and claim the loan was forgiven until the properties were not transferred. Dr. Brar may very well have not enforced the loansmade from his Professional Corporation to Moga Corp. if he had received certain properties.

However, if he does not receive thoseproperties, then he has the right to collect on his loan, unless there was a clear and unequivocal indication that the loan was forgiven. Asdiscussed above, I do not find that there was such a clear and unequivocal indication that the loan was forgiven in this case. [85] When I consider all of the defendants’ arguments with respect to the forgiveness or disavowal of the loan, I conclude that Dr.Brar would often confuse his personal loans with those made by Brar PC.

There is no doubt that his personal loans are not an issue in thiscase likely because Moga Corp. paid off some of Dr. Brar’s debts, including the debt to Hunter Financial which was in the amount ofapproximately $800,000 plus almost that much in interest. However, the financial statements of both Brar PC and Moga Corp., alongwith the forthright admissions of Manjit, recognize that there was a loan made from Brar PC to Moga Corp. which was never paid off toBrar PC. This was not a loan from a parent to a child but a loan from one corporation to another.

As I stated when discussing the issue ofthe transfer of lands, these are significant amounts of money. The evidence needed to prove that such amounts of money were forgiven ordisavowed on a balance of probabilities. A gift must be clear and in my view, in this case, the forgiveness of the Brar PC loan to MogaCorp. is not clear enough to warrant the elimination of a $1.6 million debt. Laches [86] The defendants argue that the doctrine of laches applies to this matter because the plaintiffs took too long in moving forwardwith their enforcement of the Brar PC loan.

As a result of the delay and changing circumstances, enforcing the loan would no longer be ajust remedy. In M (

K) v M (H), (SCC), [1992] 3 SCR 6 the Supreme Court of Canada discussed the doctrine of lachesand stated at para 98: The rule developed in Lindsay is certainly amorphous, perhaps admirably so. However, some structure can be derived from the cases. Agood discussion of the rule and of laches in general is found in Meagher, Gummow and Lehane, supra, at pp. 755-765, where the authorsdistill the doctrine in this manner, at p. 755: It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he candemonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (

a) acquiesced in the defendant's conductor (

b) caused the defendant to alter his position in reasonable reliance on the plaintiff's acceptance of the status quo, or otherwisepermitted a situation to arise which it would be unjust to disturb. Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediatelyobvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches.

Rather, the doctrineconsiders whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the actionunreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine. [87] The plaintiffs argue that the doctrine of laches does not apply to legal claims such as a loan or debt. The defendants cite M (K)v M (H), for the proposition that the doctrine of laches may apply to some legal matters and should not be restricted to only equitablematters.

However, in making these comments Justice Laforest was referring to a case involving the breach of a fiduciary obligation andnot a case involving a loan or debt. The plaintiffs have provided a number of cases which indicate that the doctrine of laches would notapply to a debt/loan situation (Attorney General of Nova Scotia v City of Halifax (1968), (NS CA), 2 DLR (3d) 576(NSCA); Power, Re (2006), (ON SC), 18 CBR (5th) 265 (ONSC); Walters v Talop Estates Ltd, 2004 BCSC 879).

Theremay be cases where the equitable doctrine of laches may apply in a case of a loan or debt, but in my view it does not apply in this case. [88] Even if I were to find that the doctrine of laches could apply, delay, on its own, does not trigger the doctrine of laches. It mustbe shown that the defendant altered their position so that it would be unjust to have the defendant pay the loan in the circumstances. Thedefendants, Moga Corp., and Manjit, argue that they altered their positions first by Manjit agreeing to a share redistribution in 2006wherein he gave up 16.4% of Moga Holdings.

Second, when Manjit entered into a share redistribution with his brothers in 2011 andforgave the $500,000 loan owed to Moga Corp. by Moga Holdings, he was unaware the Brar PC loan continued to be in existence. Hewould not have made the deal he did if he was aware that Dr. Brar was claiming the full amount of the Brar PC loan. [89] The difficulty in determining whether the payment of this loan would be unjust is that we do not have any proper appraisals ofthe value of the property that belongs to Moga Corp. Just as the lack of proper appraisals made it difficult to determine if Dr.

Brarreceived his fair share of the matrimonial properties; the lack of proper appraisals leaves the Court unable to determine if Manjit’sagreements to alter his shareholdings in Moga Corp. and Moga Holdings was prejudicial to him and if he would have done so even if hehad taken the amounts of the Brar PC loan into account. [90] After listening to the evidence of Dr. Brar and of Manjit, both in examination in chief and in cross examination, it appearsclear that Dr.

Brar was not a good businessman in the sense that he did not pay attention to details with respect to the numbers, theamounts he owed and the debts he had. On the other hand, Manjit appeared to have a good command of the numbers involved in the

businesses and he specifically stated that he would take care of his brothers’ and father’s debts. There was significant evidence that hedid so, including paying off his father’s debts to Hunter Financial. In the end, I am unable to determine if Manjit and Moga Corp. wereprejudiced by Dr. Brar not seeking to enforce the loans from his professional Corporation at an earlier time. Therefore, I find that thedoctrine of laches does not apply in the circumstances of this case.

Promissory Estoppel [91] Promissory estoppel is not confined to matters of equity and is a remedy that could apply to cases involving loans or debts. InMaracle v Travelers Indemnity Co of Canada, (SCC), [1991] 2 SCR 50 the Court discussed promissory estoppel andstated at para 13: Issue 1: Promissory Estoppel The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by wordsor conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on.

Furthermore, therepresentee must establish that, in reliance on the representation, he acted on it or in some way changed his position. In John BurrowsLtd. v.

Subsurface Surveys Ltd., (SCC), [1968] S.C.R. 607, 68 D.L.R. (2d) 354, Ritchie J. stated [at p. 615, S.C.R]: It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties enteredinto a course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not beenforced, and I think that this implies that there must be evidence from which it can be inferred that the first party intended that the legalrelations created by the contract would be altered as a result of the negotiations.

This passage was cited with approval by McIntyre J. in Engineered Homes Ltd. v. Mason, (SCC), [1983] 1 S.C.R. 641,51 B.C.L.R. 273, 49 C.B.R. (N.S.) 257, 47 N.R. 379, 146 D.L.R. (3d) 577, at p. 647 [S.C.R.]. McIntyre J. stated that the promise must beunambiguous but could be inferred from circumstances. [92] As discussed earlier, Dr. Brar seems to confuse the loans he made from his Professional Corporation and his personal loans tothe corporations. The defendants must prove that Dr. Brar, through his actions or words, clearly made a promise to forgive the loans fromhis Professional Corporation to Moga Corp.

I do not intend to repeat my comments made under the heading of forgiveness anddisavowal; however, those comments are apt with respect to this issue. There was clearly confusion with respect to whether Dr. Brar wasforgiving his personal loans or those made by his Professional Corporation. In addition, as I have previously indicated, without knowingthe value of the lands obtained by Moga Corp., I cannot determine if Manjit would have changed his position with respect to fullyacquiring Moga Corp. if this included the liability of the Brar PC loan.

Therefore, in my view promissory estoppel does not apply in thiscase so as to make the Brar PC loan unenforceable. Was the Loan Repaid? [93] The evidence in this case is quite clear that certain monies were paid by Brar PC to Moga Corp. and they were entered on thebooks of both corporations as loans owing. Manjit agreed that there were loans from Brar PC to Moga Corp. and he also agreed with thenumbers put forward by the plaintiffs in that regard.

Therefore, in my view, the plaintiffs have proven, on a balance of probabilities, thatloans from Brar PC to Moga Corp. were made in the amounts alleged. [94] Manjit confirmed at trial that no direct payments were made from Moga Corp. to Brar PC to pay off these loans. However,Manjit argues that Moga Corp. paid off the loan by making payments to third parties on behalf of Dr. Brar. [95] The defendants argue that there was no forensic accounting presented to the Court and the accounting is unreliable.

Theplaintiffs’ accountant Salim Allibhai, who was the accountant for both Brar PC and Moga Corp. until 2004, admitted that his accountingwas based on information from the company’s management and that therefore it was not very reliable. In fact, Salim Allibhai, admittedin his testimony that the financial statements prepared by Moga Corp. and Brar PC did not accord with generally accepted accountingprinciples.

Although better documentation would be preferable, the only documentation in evidence for me to rely on is the books ofMoga Corp. and Brar PC. [96] There is no doubt that Moga Corp. paid some of the debts owed by Dr. Brar. The Court heard evidence with respect to theHunter Financial loan made to Dr. Brar and this loan, which was over $1.5 million, was indeed paid back to the Hunter Financialsyndicate. This payment was subtracted from the amounts owing to Brar PC in the Moga Corp. financial statements. This left the amountowing to Brar PC, according to the Moga Corp. financial statements, at $122,000 in 2008.

However, the writing off of the loan was doneat the instruction of Manjit, not as a part of any agreement with Dr. Brar or with his approval. [97] Additionally, both Dr. Brar and Manjit testified that Dr. Brar borrowed significant amounts of money from many differentlenders. Dr. Brar suggested that he had borrowed approximately $8 million over the years from different lenders and provided someevidence of promissory notes. This is obviously much more than the debt owed by Moga Corp. to Brar PC. The plaintiffs pointed outthat Dr.

Brar did not assert a claim for monies he personally advanced to Moga Corp. [98] The question becomes whether the amounts paid by Moga Corp. directly to third-party lenders of Dr. Brar should besubtracted from the amounts owing to Brar PC by Moga Corp. The general rule is that a debtor must make payment to the creditorpersonally in order to discharge the debt unless the creditor has asked the debtor to pay a third party directly.

In Canadian Pacific Shipsv Industry’s Lyon Corduroys (1982), (FC), 21 BLR 185 (FCTD) the Court discussed this issue directly at para 13: Where a debtor, instead of paying his creditor, chooses to pay a third party, he does so at his peril.

Where the money is not turned over tothe creditor, the onus is then on the debtor to establish either: (1) that the creditor actually authorized the third party to receive themoney on his behalf, or (2) that the creditor held the third party out as being so authorized, or (3) that the creditor by his conduct orotherwise induced the debtor to come to that conclusion, or (4) that a custom of the trade exists to the effect that in that particular trade

and in those particular circumstances, both the creditor and the debtor normally would expect the payment to be made to the third party. No such facts have been established in the case at bar. [ 99 ] In this case, there was no evidence that Dr. Brar requested that Moga Corp. pay off Dr. Brar’s creditors in lieu of paying the Brar PC loan to Brar PC. I have no doubt that Manjit was attempting to help his father by paying off other debts that his father had. In fact, Manjit’s evidence indicated that he was paying off debt for not only Dr. Brar but his brothers.

Nonetheless, as the case law indicates he did so “at his peril” and he should have paid these amounts to Hunter Financial by first paying Brar PC or he should have made a formal arrangement with his father to pay off the loan through a payment to a third-party. [ 100 ] Therefore, with respect to issue number two, the plaintiffs have proven that there is a loan owing from Moga Corp. to Brar PC in the amount of $1,582,043.92 (based on my calculations, as it appears the plaintiffs made a mathematical error).

This loan is enforceable as it has not been repaid or forgiven, and the doctrine of laches and promissory estoppel do not apply. Interest [ 101 ] Dr. Brar himself testified that he never intended to charge Moga Corp. any interest with respect to the loan given by his Professional Corporation. He only asked that the loan be paid as a result of this action which was brought in 2014. Therefore, in the circumstances of this case interest should be paid from the time that this action was brought. No further interest should be ordered.

Conclusion [ 102 ] On issue one, I find that the plaintiffs have not proven there was an agreement for Manjit Brar to transfer the properties to Dr. Brar. On issue two, I find that the plaintiffs have proven that Brar PC lent funds to Moga Corp. and the loan remains outstanding. Accordingly, I award judgment in the amount of $1,582,043.92, plus interest as noted. [ 103 ] If the parties are unable to agree on costs, they may make an appointment to speak to me. Heard on the 26 th , 27 th , 28 th , 29 th and 30 th day of June, 2017. Dated at the City of Calgary, Alberta this 22 nd day of December, 2017.

W.T. deWit J.C.Q.B.A. Appearances: Gabor Zinner, for the Plaintiffs Timothy Boyle for the Defendants