Handelsman v Ghani, 2023 ABKB 398

Court of King’s Bench of Alberta Citation: Handelsman v Ghani, 2023 ABKB 398 Date: 20230630 Docket: 1701 10806 Registry: Calgary Between: Ilan Handelsman Plaintiff - and - Ali Ghani, Ali Ghani as Litigation Representative for the Estate of Abdul Ghani, Broadmoor Commercial Plaza Development Corp., Horizon Commercial Development Corp., Heritage Plaza Developments Inc., Prism Place Development Ltd., Prism Real Estate Investment Corporation, Summerside Development Trust, Summerside Commercial Trust, Prism Summerside Limited Partnership, Prism Summerside Development Corp., Jane Doe, John Doe and ABC Corp.

Defendants _______________________________________________________ Memorandum of Decision of the Honourable Justice J.T.

Eamon _______________________________________________________ Introduction [ 1 ] The Plaintiff brought this action on behalf of investors in various members of a group of companies and trusts known as the Prism Entities to recover damages for the loss of their investments therein. [ 2 ] Among other things, the Plaintiff alleges in the action that the Defendant Ali Ghani Jr, his father the Defendant Abdul Ghani Sr, and others, are liable for their losses because they misrepresented the investments, made false assurances to the investors, breached

obligations owed to the investors in operating these entities, and engaged in unlawful, imprudent or dishonest self dealing with these entities. [ 3 ] The allegations include, in respect of self dealing, that Ghani Jr and Ghani Sr caused the Prism Entities to enter transactions designed only to benefit them or their families. The Plaintiff also alleges that monies were diverted to Ghani Jr’s holding company, “PREIC”. Funds were commingled among the Prism Entities through PREIC.

The Plaintiff alleges Ghani Sr was also involved in PREIC. [ 4 ] After years of opportunity to investigate the allegations of diversion of funds to Ghani Sr, Ghani Jr or other family members, the Plaintiff applied to amend the proceedings in this action, including to join Naheed Ghani as a party to the lawsuit and amend the class action certification accordingly. [ 5 ] Naheed Ghani is Ghani Sr’s widow and Ghani Jr’s mother. Abdul Ghani Sr passed away in February 2020.

Naheed Ghani is 75 years old and retired. [ 6 ] The Plaintiff says, in support of the amendment application, that as the action proceeded into the discovery phase (records disclosure under the Mareva injunction and questioning of Ghani Jr) and the Plaintiff sought to collect a costs award against Ghani Jr, he discovered that Ghani Jr had made himself judgment proof, that Ghani Jr claimed there were no funds or accounts controlled by him or PREIC, and that Naheed Ghani was more involved with the Prism Entities than initially known, so it appeared she was a proper and necessary party to the proceedings. [ 7 ] The Plaintiff says the proceedings should be amended to include allegations that she knowingly participated in and assisted the numerous acts of dishonest fiduciary breaches alleged against Ghani Sr and Ghani Jr, knowingly received monies wrongfully dissipated from the Prism Entities, was unjustly enriched, and should be ordered to pay damages or equitable compensation or “rectify” the matter. [ 8 ] Naheed Ghani opposes the amendment application.

She says that whether the evidentiary standard to support pleadings amendments joining an individual to an existing lawsuit is high or low, in this case there is simply no evidence to support the proposed amendments. [ 9 ] I have concluded that the amendments, so far as they relate to Naheed Ghani, should not be permitted. The Trivial Amendments and the Prism Place Amendments identified in

Schedule F to the Applicant’s written brief filed 15 November 2022 are allowed . Law [ 10 ] The Court has broad discretion to amend pleadings after certification of a class action, including adding a new Defendant.

Generally, the Court may allow an amendment adding a party where it is satisfied the order should be made and no prejudice would result that cannot be remedied by costs, adjournment, or imposing terms (Rule 3.74). [ 11 ] Generally, amendments should be permitted no matter how careless or late and should generally be allowed ( Balm v 3512061 Alberta Ltd , 2003 ABCA 98 at para 43 ; Condo Corp No 0610078 v Pointe of View Condominiums (Prestwick) Inc , 2016 ABQB 609 at para 1 , 6, 27), subject to exceptions: (

a) The amendment seeks to add a new party or a new cause of action after the expiry of the limitation period unless otherwise permitted by statute (for example, the extensions provided for in the Limitations Act , RSA 2000, c L-12,

section 6 ). Where there is uncertainty in the evidence, the Court should allow the limitations amendment subject to determination of the limitation at the trial. (

b) The amendment is hopeless, in that an amendment if it had been in the original pleadings would have been struck (in other words, if it is plain and obvious that there is no triable issue). (

c) The amendment would cause serious prejudice to the opposing party, not compensable in costs [1] . (

d) There is an element of bad faith associated with the failure to complete the amendment in the first instance. ( Domenic Construction Ltd v Primewest Capital Corp , 2020 ABCA 265 at para 20 ; Remington Development Corporation v Enmax Power Corporation , 2022 ABCA 71 at paras 34 - 37 , 48; and authorities cited therein). [ 12 ] Aside from minor, technical or clarifying amendments (including adding a cause of action against existing Defendants based on facts already pled), a party seeking substantive amendments must present a modest degree or a small measure of evidence or some evidence in support of the application to amend.

The judge may engage in some limited assessment of the evidence in determining if the threshold is met: As noted, the evidentiary standard for amendments is low, but the test does not preclude all weighing of the tendered evidence by the judge. While it is true that the mere presence of contradictory evidence would not necessarily prevent an amendment, it does not follow that merely providing "some evidence" on each point is sufficient.

The judge is allowed to engage in some limited assessment of the evidence presented in determining if the threshold necessary to justify amendment has been met. ( Attila Dogan Construction and Installation Co.

Inc v AMEC Americas Limited , 2014 ABCA 74 , at para 29 ). [ 13 ] Where fraud, highhandedness or malicious conduct is alleged, the evidentiary test is “stiffer” and there must be “good ground” or “exceptional circumstances” with “significant evidence in support of the amendments” ( Canadian Natural Resources Limited v Arcelormittal Tubular Products Roman S.A. , 2013 ABCA 87 at para 11 - 12 ; Goldhart v Westlake Developments Inc , 2015

ABQB 543 at para 43 ; Brewin v Magyar , 2022 ABKB 729 at para 35 ). [ 14 ] In Fluor , the proposed allegations that CNRL and Fluor intentionally concealed (or, as revised, intentionally “did not disclose”) that they had ordered and installed the wrong pipe, was found to fall within the class requiring a higher evidentiary standard. [2] Plaintiff’s position [ 15 ] The Plaintiff seeks to add allegations that Naheed Ghani knowingly assisted in breaches of fiduciary duties by Ghani Jr and Ghani Sr; knowingly received property from Ghani Sr or Ghani Jr in breach of such duties; knowingly participated in or assisted breaches by entering into improper below-market leases; participated formally or informally as a director of PREIC and in the business and affairs of PREIC or the Prism Entities; directly or indirectly received monies wrongfully dissipated from the Prism Entities; and, was unjustly enriched by the alleged activities. [ 16 ] The Plaintiff deposed, among other things, that: (

a) He knew, when the action began in 2017, that Naheed Ghani was the sole officer and director of 1243599 Alberta Ltd (“124”); (

b) He knew, when the action began, that 124 had been a tenant in a building owned by one of the entities (Heritage Developments) and that tenants had been given significant rent free periods; (

c) The initial statement of claim in this action included allegations that Heritage Developments entered into related party or undervalue transactions that had no honest business purpose, were concealed from the investors, and were made for the sole purpose of benefitting Ghani Sr, Ghani Jr or their family members, including significant rent free periods to persons who may be related parties or non-arm’s length including Naheed Ghani. (

d) One of the tenants (Prism Pet & Car Wash) in another Prism development owned by a Prism Entity (Summerside Developments), was operated by Naheed Ghani or 124 and paid lower rent rates than most of the other tenants. These rates were documented in an appraisal that was received by the Plaintiff’s counsel in October 2017. The property was sold under Court supervision in late 2017. (

e) A dissolution statement for PREIC states Naheed Ghani was a former director or shareholder of PREIC. The statement indicates she was a shareholder and director from March 20 until April 16, 2010 [3] . (

f) A corporate search turned up 210040 Alberta Ltd. (“210”) of which Naheed Ghani is the sole shareholder and director. (

g) Corporate searches for 210 and 124 list their respective email addresses as info@theprismgroup.ca (

h) Ghani Jr lives with Naheed Ghani. Naheed Ghani pays all his living expenses [4] . (

i) Naheed Ghani owns the family home, where she and Ghani Jr live. The address was the registered office for some of the Prism Entities. (

j) He believes Naheed Ghani had a greater role than initially believed, and that she knew of and participated in the wrongful schemes conducted by Ghani Sr and Ghani Jr. (

k) Naheed Ghani owned, directed or controlled five companies (not Prism Entities). (

l) He believes the evidence indicates Naheed Ghani has significant financial resources, pointing to a settlement of unrelated litigation by 2293832 Alberta Ltd (“229”, a company owned by Naheed Ghani and not a Prism Entity) and to the fact that other companies that she owns (not Prism Entities) have bank accounts [5] . (

m) In February 2021, 229 settled a claim brought against it by a Mr Sanderson (not alleged to have been involved in Prism Entities). Sanderson claimed that he and Ghani Jr were involved in two other companies (1622959 Alberta Ltd and 2006375 Alberta Ltd – not Prism Entities) that failed to remit GST and made improper claims under pandemic relief programmes for companies known as Some of the money was allegedly paid to 229. A court appointed receiver sought to recover the funds. In the settlement, 229 paid back an amount of just over $600,000. (

n) Naheed Ghani is the “presumptive owner”, following the death of Ghani Sr in 2020, of shares in the “Ghani Sr Family Trust” (including 45% of the voting shares of a Prism Entity -- Summerside Corp) and of all of Ghani Sr’s interests generally in the Prism Entities. [ 17 ] The Plaintiff notes that 229 must have had substantial financial resources to fund its settlement, in contrast to Naheed Ghani’s evidence that her careers were in day care and an ESL [English as a Second Language] assistant and that Ghani Sr had few assets when he passed away. [ 18 ] The Plaintiff submitted that the foregoing information met the low evidentiary requirement for pleadings amendments.

None of the proposed amendments fall into the class requiring a higher evidentiary standard. Gaps in the evidence or contradictory evidence are matters for trial, not the amendment application. The modest evidence standard may be met by hearsay evidence, contradicted evidence, uncertain evidence, evidence that does not exclude a possible defence, or evidence from which inferences might be drawn. [ 19 ] The Plaintiff emphasizes that it does not have bank statements for PREIC, and Naheed Ghani has not disclosed her bank

statements or bank statements for her companies. [20] The Plaintiff observed that both sides agree the relevant date for limitations issues is November 28, 2019. If the Plaintiff knewor ought to have known, before that date, of the material facts on which a plausible inference of liability on Naheed Ghani’s

part couldhave been drawn, the action is barred. However, the Plaintiff discovered the key and essential facts to the proposed claims againstNaheed Ghani after that date. Alternatively, this is a case where it would be appropriate to permit the amendments and send thelimitations issues to the trial. Naheed Ghani’s position [21] Naheed Ghani submitted that the amendments alleging knowing assistance in a breach of fiduciary duty and knowing receiptof property/funds attract a higher evidentiary standard instead of the low evidentiary standard required to justify most substantiveamendments.

The Plaintiff’s allegations are not supported by any significant evidence. [22] As to the unjust enrichment claim, counsel conceded this is subject to the low evidentiary threshold. Counsel submitted thelow standard is not met, and after having more than five years access to financial records the Plaintiff cannot trace a penny to NaheedGhani. [23] Naheed Ghani submitted she has no obligation to disclose any records for inspection by parties wanting to know if it is worthsuing her (my paraphrase of more colourful phrasing in oral argument). She swore an affidavit explaining the matter. She was not cross-examined.

Her explanations are not contradicted. She cooperated with and disclosed records to the court appointed receiver in theSanderson matter. After years of claims and receivers’ activities no one has suggested she personally did anything wrong or thatwarranted suing her. [24] Naheed Ghani further submitted that the claims are barred by the Limitations Act because the Plaintiff knew or ought to haveknown of potential claims against Naheed Ghani prior to November 28, 2019. New information discovered after that date does notchange this fact.

Further, there is no evidence that would support an extension of a limitation period under

section 6 of the LimitationsAct. [25] Naheed Ghani submitted that she would be irreparably prejudiced by the amendments. The alleged wrongdoings occurredbetween eight and 16 years ago. She would naturally turn to her spouse, Ghani Sr, for information about the underlying allegations. Hehas passed away.

The evidentiary standards [26] The Plaintiff divided his proposed amendments concerning Naheed Ghani into three categories: (1) knowing assistance ofbreach of fiduciary duty; (2) knowing receipt of property obtained through breach of trust or breach of fiduciary duty; and (3) unjustenrichment. [27] The Plaintiff asserts the elements of the first claim are: (1) a fiduciary duty; (2) a fraudulent and dishonest breach of the duty by the fiduciary; (3) actual knowledge by the stranger to thefiduciary relationship of both the fiduciary relationship and the fiduciary's fraudulent and dishonest conduct; and (4) participation by orassistance of the stranger in the fiduciary's fraudulent and dishonest conduct.

Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v Garcia, 2020 ONCA 412 [28] Although "actual knowledge" by the stranger of the fiduciary relationship and of the fiduciary's fraudulent and dishonestconduct will satisfy the knowledge requirement, so, too, will "recklessness or wilful blindness to the fiduciary relationship and thefiduciary's fraudulent and dishonest conduct" (ibid at para 34). However, the underlying basis of this tort is "want of probity", "meaninglack of honesty" (ibid at para 31).

Consequently, wilful blindness is a subjective standard of fault that depends on the stranger's actualstate of mind (ibid at para 37). Or as Iacobucci J observed in Air Canada v.

M & L Travel Ltd. (1993), (SCC), [1993] 3SCR 787 at p 811 - 812 SCR "of course, in both cases a person wilfully shutting his eyes to the obvious is in no different position than ifhe kept them open". [29] The Plaintiff submits the elements of the knowing receipt claim are: The legal test for knowing receipt therefore requires that (1) the stranger receives trust property, (2) for his or her own benefit or in his orher personal capacity, (3) with actual or constructive knowledge that the trust property is being misapplied.

In addition to actualknowledge, including wilful blindness or recklessness, requirement (3) can be met where the recipient, having "knowledge of facts whichwould put a reasonable person on inquiry, actually fails to inquire as to the possible misapplication of the trust property" .... Garcia at para 57. [30] Since liability rests in restitution and not wrongdoing, a lower level of knowledge will suffice than in knowing assistancecases.

In knowing receipt cases, constructive knowledge, based on knowledge of facts that would put a reasonable person on notice orinquiry, may serve as a basis for restitutionary liability (ibid at para 56). [31] The Plaintiff describes the well-known requirements of unjust enrichment as follows: (1) an enrichment; (2) a correspondingdeprivation; and (3) the absence of a juristic reason for the enrichment.

[ 32 ] The allegations against Naheed Ghani must be read in the context of the entire proposed amended pleading to ascertain the nature of her alleged misconduct. [ 33 ] The statement of claim is lengthy and the allegations of dishonest or highhanded misconduct are widely cast. The Plaintiff repeatedly alleges the following sorts of activity on the part of Ghani Jr and Ghani Sr in soliciting investors’ funds and operating the Prism Entities: (

a) numerous related party transactions that had no honest business purpose, which were concealed from the investors and entered into for the sole purpose of benefitting Ghani Sr, Ghani Jr or family members; (

b) fraud; (

c) concealment; (

d) intentional misrepresentation; (

e) failing to keep books; (

f) failing to honour representations and undertakings made to investors; (

g) intentionally falsifying records; (

h) commingling assets; (

i) self-dealing. [ 34 ] The Plaintiff repeatedly pleads the investor’s losses were caused by “high handed, oppressive, unremitting and wrongful conduct”, followed by non-exclusive lists of “this high-handed conduct” (paras 62, 75, 90, 107, 114, 133). The prevalence of this allegation throughout, encompasses not some of the entities but all of the entities.

Similarly, para 6 generally pleads the Defendants committed “high-handed, malicious, arbitrary and/or highly reprehensible conduct, as described herein”. [ 35 ] The Plaintiff alleges that Naheed Ghani knew Ghani Jr and Ghani Sr dishonestly breached their fiduciary duties; participated in or assisted the breaches; and knowingly received monies wrongfully dissipated from the Prism Entities. Finally, the Plaintiff alleges Naheed Ghani was unjustly enriched by virtue of the wrongful transactions, payments or transfers to her. [ 36 ] Civil fraud consists of dishonest conduct, an intention to deceive, and damages.

The intention element of fraud is established by proof of subjective knowledge of the prohibited act, and subjective knowledge that a consequence of the act could be deprivation. There is no requirement that the Defendant subjectively appreciate the dishonesty of their acts. [ 37 ] It is obvious that the thrust of this pleading against Ghani Sr and Ghani Jr is a knowingly dishonest scheme akin to fraudulent conduct and easily falls, at least, into the category of high-handed misconduct.

The Plaintiff’s attempt to draw Naheed Ghani into this scheme as a knowing participant, necessarily attracts the higher evidentiary standard under the Fluor principle because the knowledge element of this claim is inextricably tied to alleged lack of probity on her part. [ 38 ] The knowing receipt claim requires a less rigorous degree of knowledge on the part of the recipient of property.

In my opinion, this lower standard places the knowing receipt claim into the default threshold requiring only some evidence or a modest amount of evidence. [ 39 ] The Respondent’s counsel concedes the lower threshold standard applies to unjust enrichment. Based only on the concession, I will apply the lower standard to the unjust enrichment claim.

Whether the amendments meet the evidentiary threshold [ 40 ] I agree with counsel for Naheed Ghani that the Applicant has not satisfied the evidentiary threshold required to join Naheed Ghani in respect of claims for knowing assistance for breach of fiduciary duty. [ 41 ] The Plaintiff relied on his affidavit filed March 4, 2022 together with previously filed affidavits providing a picture into the history of the litigation and information which was learned over the years.

Considering this substantial volume of material, there is simply no evidence that Naheed Ghani received funds or other property from Ghani Sr or Ghani Jr or under what circumstances; or knew or even had reason to believe that those Defendants were involved in the schemes alleged in the Statement of Claim. [ 42 ] The Plaintiff suggests that Naheed Ghani received hundreds of thousands of dollars, “perhaps millions” from Ghani Jr or Ghani Sr in this scheme. With respect, there is no evidence of this. [ 43 ] Naheed Ghani says Ghani Jr is broke and lives with his mother.

She pays for his cel phone plan and other expenses. The cel phone plan is a corporate plan but that is the phone account he has. The fact she pays this for her indigent son does not suggest knowing participation in a fraud or highhanded scheme. The Plaintiff characterizes her living with her son and paying his expenses as “bankrolling Ghani Jr’s lifestyle”. There is no evidence of his lifestyle and this inflammatory remark does not help in the analysis. [ 44 ] The Plaintiff notes Naheed Ghani’s company 229 paid a settlement just over $600,000 to Sanderson.

This settlement is described in a report of a court appointed receiver, MNP and the background of the claim is described in Sanderson’s affidavit appended to the Plaintiff’s most recent affidavit. Both are evidence the Plaintiff may rely on in the application. Allegedly funds received by a company on account of GST and certain Covid pandemic assistance or subsidy programmes were placed in 229. The transferor was

owned by Ghani Jr. Sanderson was an employee. 229 transferred these funds back under a settlement. MNP reported the parties cooperated. The receivership was closed. The transfer in and, later, back to the payor does not suggest that Naheed Ghani participated in fraudulent or highhanded schemes against unrelated real estate development companies operated by her husband or son in years past.

Nor does it suggest she or her companies received monies years earlier from Prism Entities. [ 45 ] Turning to evidence of knowledge of impropriety by the Defendants, there is nothing in the record to suggest she knew of impropriety in the operations of the Prism Entities or the dishonest conduct asserted by the Plaintiff. [ 46 ] The record only discloses that she was connected to two tenants in the properties, who arguably received a discount on the rent. In one case, it appears other tenants also received a rent discount. The Plaintiffs knew of the rent issues for years and did not add or pursue Naheed Ghani.

If Mrs Ghani knew she was getting a discount on account of a family relationship, this would not nearly support joining her to answer for the wide-ranging misconduct alleged against her and others in the proposed third amended statement of claim. [ 47 ] The Plaintiff says that Naheed Ghani was a director of PREIC during some of the events in question.

The only evidence is a corporate dissolution return prepared by Ghani Jr that states Naheed Ghani was a director of PREIC for about 4 weeks in 2010. [ 48 ] The Plaintiff has not articulated any alleged activity or role played by Naheed Ghani in PREIC other than possibly being a director (and perhaps shareholder) named in paper filed with the corporate registry by Ghani Jr. There is no evidence she took any active role in PREIC, participated in any decisions, or that any decisions or wrongful acts were carried out during the short period where this paper recorded her as a director and possibly a shareholder.

The Plaintiff has not, in this long-standing action, provided any records suggesting she had a real role in PREIC. Naheed Ghani’s uncontradicted evidence is that she has no recollection, knowledge or record of ever having been a director or shareholder of PREIC. The Plaintiff did not address whether and to what extent corporate or business records exist for that time period.

If there are significant gaps in the records, which is not in the evidence, then there is no evidence that Naheed Ghani is responsible for such gaps. [ 49 ] The Plaintiff suggests the matrimonial home is the registered office for some of the companies, that she owns companies, and that of the two companies provided the email address info@theprismgroup.ca in corporate registry filings. Her husband allegedly operated the Prism Entities. The fact the companies used his home address does not suggest that other residents of the building are also involved with the companies.

Naheed Ghani provided an explanation under oath for the email address, that the corporate registry required her numbered company to have an email address, she does not have email, so her son provided an address. She is a 75 year old retired person. Some people do not choose to have email accounts. The explanation is plausible. She was not cross-examined. The alternative explanation that she has some role in the Prism Entities is speculation. [ 50 ] The Plaintiff says Naheed Ghani is the “presumptive” beneficiary of a family trust and a beneficiary of Ghani Sr’s assets.

There is no evidence of the terms of the trust or the beneficiaries or that Ghani Sr had any assets when he passed. [ 51 ] I must consider the evidence collectively, not only individually. I agree with the Plaintiff that the evidence need not be uncontradicted, certain, complete, or sufficient to draw inferences.

However, in the case of the knowing assistance allegations, it must meet the higher standard in Fluor , and the Court has a limited ability to weigh the evidence to ascertain whether it meets the applicable evidentiary standard. [ 52 ] After years of conducting the litigation, the Plaintiff has not uncovered any book or record showing flow of funds to Naheed Ghani or companies controlled by her. The Plaintiff asserts that it would be unreasonable to require tracing evidence in the amendment application.

The Plaintiff says PREIC has not disclosed records and Naheed Ghani is “stonewalling” them by not disclosing records. [ 53 ] I strongly disagree with the suggestion of stonewalling. [ 54 ] Naheed Ghani is not stonewalling the Plaintiff. She is not obliged to submit to disclosure of her private life to claimants for the asking. In late 2021 she objected (through counsel) to attending for questioning under Rule 5.17(1) as an alleged former director of PREIC on the basis she did not believe she was ever a director of that entity.

She legitimately disputed that she was obliged to attend, and the Plaintiff did not apply to Court for an order that she attend. In April 2022 she provided an affidavit responding to the application to join her after it was filed in March 2002. She did not take the impermissible path of proffering an affidavit from someone without involvement in the matter as is sometimes seen in litigation. She personally swore an affidavit in response to the application, exposing herself to potentially lengthy and aggressive cross-examination.

The Plaintiff has not cross-examined her. [ 55 ] The real problem here is lack of financial records that would show where the funds of the Prism Entities went including into the accounts of Ghani Sr, Ghani Jr and out of those accounts, and lack of records of her involvement.

However, this does not justify adding Naheed Ghani without significant or even some evidence or modest evidence of her involvement or receipt of funds as the Plaintiff seems to suggest. [ 56 ] There is no evidence that the absence of records is a problem of Naheed Ghani’s making. [ 57 ] In claims such as this tracing is typically a first priority. Funds can be quickly dissipated, records can be lost, the trail can go cold, and eventually third parties like banks and corporate accountants might be unable to respond to records demands due to passage of time.

The court has considerable power to aid those who seek to locate and recover dissipated funds in fraudulent schemes. That includes ordering alleged wrongdoers and scam artists, corporate managers, banks, institutions and property recipients to disclose records.

Disclosure provisions against the wrongdoers are often included in Mareva injunctions, and when the wrongdoer delivers an affidavit or declaration making whatever disclosure is ordered the claimants may cross-examine and seek more records. [ 58 ] The Plaintiff has not shown in this application much effort in the past to conduct rudimentary tracing by seeking records from banks or other institutions.

It could have availed itself of the Court’s power to order records preservation, production and disclosure from third parties but the extent to which it sought tracing orders (apart from a Mareva injunction in 2021, many years after the issues arose) is not apparent from the record.

[ 59 ] Overall, mere familial relationships are not sufficient and the limited evidence of her activities does not nearly establish an issue that she knowingly participated in the wrongful schemes allegedly conducted by her husband and son.

Rather, the evidence combined with the wide-ranging allegations is an invitation to speculate that maybe she had some involvement in something that was inappropriate. [ 60 ] I also agree with counsel for Naheed Ghani that there is no evidence meeting the low evidentiary standard to support the other categories of proposed amendments against Naheed Ghani. [ 61 ] I come to this conclusion for similar reasons.

I will not repeat my observations on the details of the evidence as they apply here as well, and I recognize the much lower evidentiary threshold in respect of the second and third types of claims advanced against Naheed Ghani. [ 62 ] Her familial connection is not evidence of receipt of any funds for the purpose of a knowing receipt or unjust enrichment claim, nor evidence of actual or constructive knowledge of the derivation of the funds to constitute knowing receipt.

The other evidence, separately or collectively, does not suggest that she received funds of the Prism Entities, let alone under circumstances of actual or constructive knowledge or with evidence of any circumstances by which one might judge whether there was an absence of a juristic reason for any enrichment. Overall, the Plaintiff’s information is very speculative. [ 63 ] Again, the lack of records or even rudimentary tracing are significant problems, but not problems shown to be of Naheed Ghani’s making. As mentioned, she is not stonewalling the Plaintiff.

She is not obliged to disclose her private life for inspection by claimants, the Plaintiff did not seek a Court order to question her as an alleged former director of PREIC, and when the Plaintiff applied to amend, she promptly and voluntarily provided an affidavit thus exposing herself to cross-examination where the Plaintiff could seek information to substantiate its allegations. [ 64 ] In view of the foregoing it is not necessary to address the matter of potential expiry of limitation periods or prejudice to Naheed Ghani. [ 65 ] I refuse the amendments pertaining to Naheed Ghani.

The other amendments [ 66 ] The other amendments do not relate to Naheed Ghani. Ghani Jr did not oppose the amendments. None of the other Defendants appeared or objected, but most have been noted in default. I do not suggest it is proper to add new allegations of substance against Defendants after noting them in default, but in this case, the proposed amendments are technical in nature, arise from facts already pled against the existing Defendants and do not change the substance of the case. The amendments are supported sufficiently by the exhibits to the Plaintiff’s affidavit to the extent evidence is required.

I allow these amendments. Conclusion [ 67 ] The application to add Naheed Ghani and make the amendments pertaining to her is dismissed. The Trivial Amendments and the Prism Place Amendments identified in

Schedule F to the Applicant’s written brief filed 15 November 2022 are allowed. The parties can arrange to speak to costs if required. Heard on the 11 th day of January, 2023. Dated at Calgary, Alberta this 30 th day of June, 2023. J.T. Eamon J.C.K.B.A. Appearances: J.R. Maslen and T. Haggstrom (student-at-law) for the Applicant/Plaintiff

B. C. Yorke-Slader, KC for the Respondent Naheed Ghani A. Ghani, Jr, self represented litigant