Love v Parmar, 2023 ABKB 30

Court of King’s Bench of Alberta Citation: Love v Parmar, 2023 ABKB 30 Date: 20230117 Docket: 1901 17000 Registry: Calgary Between: Dr. Philip J. Love and Philip J. Love Professional Corporation Plaintiffs/ Respondents - and - Mayank Shekhar Parmar also known as Shekhar Parmar, Dr. Richa Love, Shekhar Corp., 1732581 Alberta Ltd., West Wind Design & Display Specialty Ltd., and Harvest Medicine Inc. Defendants/ Appellants _______________________________________________________ Reasons for Judgment of the Honourable Justice A. Loparco _______________________________________________________ I.

Introduction [ 1 ] Mayank Shekhar Parmar (Shekhar), Dr. Richa Love (Richa), Shekhar Corp. (SCorp), and Harvest Medicine Inc. (Harvest), collectively the Appellants, appeal portions of the November 8, 2021 decision of Master J.R. Farrington (as he then was) (Decision), which:

(

i) allowed the Plaintiffs’ proposed amendments to the Statement of Claim in relation to Richa, including allegations of fraudulent and/or negligent misrepresentation; and, (ii) dismissed the application for partial

summary judgment of claims as against Shekhar, SCorp, and Harvest. [ 2 ] The other defendants, 1732581 Alberta Ltd. (173) and West Wind Design & Specialty Ltd. (WW) are not parties to this appeal. As 173 and WW were amalgamated, future references in this decision will be to WW unless it is referring to a pre-amalgamation fact. II. Brief Conclusion [ 3 ] I dismiss the appeal from Master Farrington’s Decision and uphold his Order to permit the amendments and to dismiss the Appellants’ application for

summary dismissal. III. Background [ 4 ] This lawsuit is about whether the Plaintiff corporation advanced money totalling $360,000 by way of loans or rather, in exchange for beneficial ownership, to three corporations controlled by the Defendant Shekhar - SCorp, Harvest, and WW. [ 5 ] Dr. Philip Love (Philip) is the sole shareholder and director of the Plaintiff Corporation, Philip J. Love Professional Corporation (PhilipPC), and he is married to Richa, who is the sister of Shekhar. Philip is a dentist and Richa is a medical doctor. Philip and Richa were married in 1995 and separated in 2018.

They are involved in an acrimonious divorce. [ 6 ] Shekhar is an entrepreneur and has engaged in various business ventures. He was an active member of the Law Society of Alberta until approximately one year ago, but he has limited experience as a practicing lawyer. [ 7 ] Richa was never a shareholder, director, or officer of any of the Corporate Defendants. However, her professional corporation owns shares in WW. She also held the position of Medical Director and consulting physician with Harvest. a.

The Money Advances [ 8 ] Throughout their relationship, Philip and Richa, each through their respective professional corporations, advanced funds to SCorp, 173, WW, and Harvest (collectively, the Defendant Companies).

There was generally no documentation to explain the reason for the advances, except in one case where PhilipPC purchased $100,000 in shares in WW. [ 9 ] Philip alleges that except for a $150,000 demand loan to SCorp and $100,000 of the funds advanced to WW (discussed below), all other funds advanced to the Defendant Companies were not loans, but rather, investments with the expectation of eventually receiving a proportionate beneficial equity interest in the companies. [ 10 ] The reason given for Philip’s understanding that he (or his professional corporation) would obtain an equity interest in the Defendant Companies is based on what has been referred to as ongoing discussions of the concept of a “family pot”. [ 11 ] In

summary, Philip alleges that he trusted and relied on Richa and Shekhar’s representations that there is a cultural expectation that the family would pool its the resources to contribute to the well-being of its members—whether by providing accommodations, childcare, grocery shopping, loans, etc.—and in the end, any profit made by the family’s companies would result in a proportionate equity stake for those who contributed. [ 12 ] On December 2, 2019, the Plaintiff filed a Statement of Claim. The money advances are categorized below.

SCorp Loan [ 13 ] In early 2012, PhilipPC advanced $150,000 to SCorp as a flow-through loan intended for a related company. He received a series of post-dated monthly cheques in the amount of $5,000. A total of approximately $135,000 was repaid.

The payments stopped in April 2014. [ 14 ] At issue in this transaction is whether Philip knew at that time that he would not be paid the balance of the loan, making his claim, which was ultimately filed in December 2019, statute- barred. [ 15 ] PhilipPC asserts that the funds advanced were a demand loan and therefore his limitation period only began to run when he demanded repayment in conjunction with the filing of his Statement of Claim. WW Advances [ 16 ] PhilipPC advanced at total of $490,000 over a period of time to WW.

The initial advance of funds totalled $200,000; of this, $100,000 was acknowledged to be a loan, and $100,000 was documented as a share purchase. There was no documentation in respect of the rest of the funds advanced. [ 17 ] At issue is whether PhilipPC is owed equity in WW. However, the Appellants are not seeking

summary dismissal of this claim. It is discussed for context, as it is related to the other claims.

Harvest Advance [ 18 ] Harvest was incorporated by Shekhar in 2016 and is in the business of providing clients with access to medical cannabis. Richa was a medical director of Harvest but not a shareholder or director of the corporation. [ 19 ] PhilipPC advanced $70,000 to Harvest. On or about December 1, 2017, Harvest repaid Philip the money with 10% interest. At issue is whether the funds advanced were intended to be in exchange for an equity interest in the company (including in any subsequent sale proceeds).

The Appellants state that Philip knew more than two years prior to issuing his statement of claim in December 2019 that Shekhar treated the funds as a loan and would not be acknowledging any claim in the equity of Harvest. [ 20 ] On or about December 11, 2017, Shekhar signed a Letter of Intent with AbCANN Global Corporation (AbCANN) for the sale of Harvest, which was ultimately concluded around January 31, 2018, by a share purchase agreement for $1.5M. Philip claims that, based on his beneficial ownership, he is entitled to a proportionate share of profits. b.

Master’s Decision [ 21 ] Master Farrington permitted the amendments sought by PhilipPC to the Statement of Claim. He stated in part: …in my view there is sufficient evidence in the affidavit of Mr. Love to permit that amendment. The affidavit speaks extensively of various representations made by Richa. Time will tell whether those stand up under scrutiny or not in the context of the lawsuit. But it certainly speaks to the representations being made, in particular regarding the family pot concept and the sharing of interests in the businesses in a familiar sort of way and the like.

Fraudulent is more of a conclusion that someone draws having observed the facts than it is a fact that is sworn to. And in my view, the affidavit is sufficient to justify these amendments. [ 22 ] Since he permitted the Plaintiff’s amendments, Master Farrington dismissed the application to strike the claim against Richa personally for failure to disclose a cause of action. [ 23 ] He also declined to summarily dismiss certain claims against the SCorp and Harvest, finding it was not clear whether those claims are statute-barred.

He stated in part: Unfortunately for the parties, the affairs of the defendants, for better or worse, are intertwined with the finances of Dr. Philip Love and Dr. Richa Love. For example, both Shekhar Parmar and Dr. Richa Love were able to find a place in the operations of Harvest although the details were unclear in terms of whether there are significant benefits to them or not. […] I do not have sufficient confidence here for

summary disposition sought. The matter cannot be dismissed summarily based upon the record before the Court, having regard to the essential role, the oral testimony and credibility at play in the overall analysis as to the merits of the dispute between the parties, including whether the plaintiff ought to be (INDISCERNABLE) by constructive trust of otherwise the interest in some of the eventual proceeds arising from the investments. The limitations issue is not as clear as argued by the applicants and the merits are even less clear. IV.

What is the Applicable Standard of Review? [ 24 ] An appeal of a Master’s decision is de novo . [ 25 ] The standard of review of an appeal from a Master’s decision is correctness on all questions: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 , recently restated in Ginn v Feng , 2021 ABQB 292 at para 8 ; Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 at para 153 , leave to appeal to SCC refused, 38939 (16 April 2020); McDonald v Sproule Management GP Limited , 2018 ABCA 295 at para 1 . V. Position of the Parties a.

Appellants/Defendants [ 26 ] The Appellants state that Master Farrington incorrectly: (

a) relied on statements from counsel for the Plaintiffs that were not in evidence; (

b) allowed the Statement of Claim amendments including fraud and misrepresentation contrary to rule 13.7; and (

c) denied partial

summary dismissal of certain claims against SCorp and Harvest despite determining that the funds were loans. [ 27 ] On the question of the amendments, the Appellants take issue only with the addition of para 39 in the proposed Amended Statement of Claim, which states: The losses and damages suffered by the Plaintiff were caused or contributed to by its detrimental reliance on Richa’s representations to Phil that Parmar and the Parmar Companies would comply with the terms of the Agreement. Richa made such representations fraudulently or negligently, knowing they were false and with the intention to induce, coerce, or otherwise unduly influence the Plaintiff

to advance funds to the Parmar Companies. [28] First, the Appellants argue that this is a new claim, and that, given the fraud allegations sought to be added, the ‘stiffer’evidentiary threshold is not met. Secondly, they argue that such a claim is statute-barred since Philip knew, at least by November 26,2017, that his money was being treated as a loan and not equity; had he relied on a fraudulent or negligent misrepresentation made byRicha to advance those funds, those claims are hopeless and do not meet the legal test for amendments.

In other words, they are not justadding particulars to existing claims; the failure to plead the fraud claims within the two-year limitation period from the point he ‘knewor ought to have known’ it was false and caused him injury bars him from doing so now. [29] On the second question before this court—whether the claims against SCorp and Harvest should be summarily dismissed —the Appellants argue that since Philip knew that the funds advanced were being treated as loans by November 26, 2017, at the latest,those claims are statute-barred. b.

Respondents/Plaintiffs [30] With respect to the amendments, the Respondents argue that the fraud allegations against Richa are not new claims as wereraised in para 17 of their reply to the Statement of Defence and the addition is merely a particularization of an existing claim. Further,they argue that the evidence in Philip’s affidavit is sufficient to meet the low threshold to amend the pleadings. [31] In response to the

summary dismissal applications, the Respondents state the following: (

i) the SCorp loans were demand loans and, as such, the limitation period starts to run on the date the Statement of Claim wasissued. Philip deposed that he understood the cessation of payment in April 2014 to be temporary, contrary to the evidence of Shekhar; (ii) the limitation period applicable to his claim for part of the profit derived from the sale of Harvest only began to run on December 2nd, the date he received a cheque for the repayment of the money advanced plus interest.

His position is that any discussionprior to this date on the topic was not final and thus did not crystalize his injury sufficient to warrant advancing a claim. VI. Analysis a. Should the Court permit amendments which allege fraudulent or negligentmisrepresentation? [32] Pursuant to rules 3.62(1) and 3.65 of the Alberta Rules of Court, AR 124/2010 , amendments can be made to a pleading after itis closed with permission from the court subject to four exceptions:

a) the amendment would cause serious prejudice to the opposingparty, not compensable in costs;

b) the amendment requested is hopeless;

c) the amendment seeks to add a new party or new cause ofaction after the expiry of a limitation period; and

d) there is an element of bad faith associated with the failure to plead the element in thefirst instance: Attila Dogan Construction and Installation Co Inc v AMEC Americas Limited, 2014 ABCA 74 at para 25 [Attila]. [33] A helpful synopsis of the applicable principles is provided by Goss J in 513320 Alberta Inc v St Jean, 2015 ABQB 826 atparas 26-28 [513320 Alberta]: The Court has broad discretion to allow amendments, however late or careless, after pleadings have closed: Castledowns at para 16; Brarv Roy, 2005 ABCA 269 at para 17 [Brar]; Balm at para 43; Milfive Investments Ltd v Sefel (1998), 1998 ABCA 161 , 216 AR196 (Alta CA) at para 3.

This generous discretion enables the determination of the real issues between parties, even where the proposedamendment raises a doubtful plea – as long as it is arguable: Balm at para 12; Brar at para 17; Hur v 726913 Alberta Ltd, 2013 ABQB208 at para 30 [Hur]; Manson Insulation Products Ltd v Crossroads C & I Distributors, 2011 ABQB 51 at paras 43-44. The evidentiary threshold to amend pleadings is low.

Only a modest degree of admissible evidence is needed to support any new facts orsubstance alleged entailing a significant amendment to a pleading before the limitation period has expired; the evidence need not beenough to prove the new allegations on a balance of probabilities: Balm at paras 25-26, 29; Barker at para 12. Even hearsay willsuffice: Balm at para 25; Canadian Natural Resources Limited v Arcelormittal Tubular Products Roman SA (Mittal Steel RomanSA), 2012 ABQB 679 at para 50.

However, the evidentiary threshold is “significantly elevated” when the proposed amendment alleges fraud, and likely requires evidencewhich will pass a stiffer test: Balm at para 63; Mikisew Cree First Nation v Canada, 2002 ABCA 110 at para 61 [Mikisew]. In Mikisew,the Court of Appeal explained that there must be good ground, and significant evidence and particulars, to relax the general rule againstamending pleadings to allege fraud.

Some cases suggest that “exceptional circumstances” are needed. [34] While the evidentiary threshold is low, it is not “necessarily met by producing ‘one piece of evidence on each point’”: Attilaat para 26. [35] In addition, rule 13.7 requires pleadings give particulars of fraud or misrepresentation. [36] The Appellants argue that there is a lack of supporting evidence for the amendments, and that they are hopeless as they seekto add a new cause of action outside the applicable limitation period: AARC Society v Canadian Broadcasting Corp, 2019 ABCA 125 atpara 10. i. Do the proposed amendments add a new

cause of action after the limitation period expired? [ 37 ] Section 3(1) of Limitations Act , RSA 2000, c L-12 provides that a claimant must seek a remedial order within two years after the date on which the claimant first knew or ought to have known that:

a) the injury for which the claimant seeks a remedial order has occurred;

b) that the injury was attributable to the conduct of the defendant; and

c) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding. [ 38 ] The Appellants submit that when amendments are proposed after the expiration of the limitation period, they must also meet the test under s 6 of the Limitations Act : 6

(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied. …

(4) When the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, and… [ 39 ] The Appellants cite authorities that interpret

section 6 on the questions of what is meant by a pleading that arises from the same conduct, transaction, or events and whether the evidence needed to prove the new claim differs significantly from the originally pleaded facts: DeSoto Resources Ltd v Encana Corp , 2010 ABCA 110 at paras 8 , 10; 513320 Alberta at para 37-38. [ 40 ] These are correct citations; however, I do not agree that section 6(4) of the Limitations Act applies in this case.

The proposed amendments do not add or substitute a defendant, nor do they change the capacity in which a defendant is sued. [ 41 ] Even if I am incorrect in the above conclusion, I find that the added claim is sufficiently related to the conduct, transaction, or events described in the original pleading. In the Amended Statement of Claim, it was alleged at para 19 that Philip advanced monies “in reliance on his [Shekhar’s] and Richa’s representations that the Plaintiff would be issued a proportional number of shares in the Defendant Companies to reflect the value of the Plaintiff’s capital contributions…”.

It also states at para 20 that “[t]he terms of the Agreement were reiterated to Phil by Parmar and Richa variously throughout the time period comprising the Plaintiff’s Investments in the Defendant Companies.” ii. Would the amendments cause serious prejudice to the Defendants? [ 42 ] While the original pleadings do not use the word ‘misrepresentation’, they disclose a cause of action as they allege a tortious statement, reliance on that statement, and resulting damage. [ 43 ] The claims of fraudulent and negligent misrepresentations are related to the original claims advanced.

The Original Statement of Claim alleges that Richa made various representations to Philip that he relied on when advancing money to SCorp and Harvest. The allegation is that the representations were to induce him to advance funds, and those representations were tortious.

Classifying them as fraudulent or negligent does not prejudice the Defendants as they always knew the claim was grounded on alleged oral tortious representations that led to the injury alleged. [ 44 ] I do not find that the addition of para 39 to the Amended Statement of Claim would take Richa by surprise or cause prejudice since the allegations of negligent and fraudulent misrepresentation relate to the same conduct, transaction, or events described in the original pleadings.

Moreover, the classification of the representations as being negligent or fraudulent elaborates on the existing allegations of representation but do not broaden them beyond the parameters of the original pleadings: see paras 12-14, 21, and 38 of the original Statement of Claim, which set out the misrepresentation, alleged knowledge, reliance, and damages.

Although it does not form part of the original pleading, para 17 of the Reply to Statement of Defence, filed June 29, 2020, alleges that Richa engaged in fraudulent misrepresentation. [ 45 ] Putting too fine a point on the merits is inappropriate at this stage since I must be focused on whether the proposed amendments would cause surprise or prejudice. The answer is no. iii. Do the proposed amendments provide sufficient particulars? [ 46 ] The Appellants’ argument that a greater degree of evidence is required would create an impossibly high burden in cases where there is reliance on oral representations.

In D-Line Holdings Ltd v Ahlstrom , 2016 ABCA 351 at para 13 , amendments relating to misrepresentations were permitted based on hearsay. [ 47 ] The Appellants argue that there is no evidence documenting the specific content of the representations, Richa’s state of mind or intent while making the representations, or whether the representations happened at all. Philip cannot give evidence of Richa’s state of mind, as that is only known to her. As noted above, the merits, credibility, and reliability of the allegations are a question of weight for a trial judge.

[ 48 ] Further, the absence of supporting documentation does not negate the possibility that the evidence raises a triable issue. The Appellants argue that there are insufficient particulars as to: the alleged misrepresentation; when, where, how, by whom and to whom it was made; its alleged falsity; the resulting inducement of the investment; the intention that Philip rely on it; the act in reliance of the representation, and the alleged loss: WIC Premium Television Ltd v General Instrument Corp, 1999 ABQB 804 at para 1 .

This case was decided under the old rule 115 from the Alberta Rules of Court , AR 390/1968 , which required specific particulars for misrepresentation claims. [ 49 ] The case cited by the Respondent recognizes the need for a realistic and pragmatic approach and is in line with current expectations.

Wesley v Alberta , 2009 ABQB 418 at para 23 states that “[w]hile recognizing the need for defendants to understand the case against them at the pleadings stage, the court must also recognize that not every claim is capable of being pleaded with the same degree of particularity, and that subsequent stages in the litigation process may also function to clarify and narrow the issues.” [ 50 ] I further disagree with the Appellants that the affidavit contains bare statements.

The first statement— that prior to signing the November 26, 2016 cheque, both Shekhar and Richa expressly told Philip that he was making an investment in Harvest Medicine—is specific as to date, a payment given, and the purpose of the transaction.

The statement that there were various representations by Richa, contemporaneous with large advances of funds between 2012 and 2017 documented to total over $700K, that the concept of a family pot would reap beneficial interests is specific and presents a genuine issue for trial on the understanding and expectations of the family pot concept and whether it ultimately creates legal or contractual obligations. [ 51 ] The statements are not vague or unsubstantiated.

Richa’s affidavit, dated December 8, 2021, acknowledges that the term “family pot” had been used in family discussions since around 2002 and that business ventures were often discussed at family dinners with Shekhar. [ 52 ] Further, there are several material facts in dispute: whether Richa and/or Shekhar represented the money advanced would be as investments; whether they discouraged Philip from obtaining legal advice, relying instead on Shekhar’s knowledge; whether they told him the reason he could not hold shares directly in Harvest was because he was a dentist; and, whether Shekhar lied about the sale price of Harvest to dissuade Philip from commencing proceedings. [ 53 ] Certain particulars may be lacking simply because the intra-family transaction was completed with minimal formality—courts are aware of this reality; it does not bar amendments.

This court accepted that close family relationships may overcome the need for formality in intra-family business transactions: Gill v 1176520 Alberta Ltd , 2020 ABQB 274 at paras 84-85 , 137-139 [ Gill ]. Gill involved three friends that helped develop a truck park business; they never entered into a written contract and shares were never formally issued: paras 3, 10-11, 13. The plaintiffs succeeded in establishing that the three friends had a share purchase agreement, not a loan agreement: Gill at para 7 .

The court’s conclusion as to the type of agreement may depend mainly on the credibility and reliability of the viva voce evidence of each party, which is not available at the pleading amendment stage: see for e.g. Gill at para 136 . [ 54 ] In Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga , 2021 SCC 22 , the Court notes that “[m]any informal agreements that people undertake do not result in a contract” and “courts will often assume that such an intention is absent from an informal agreement among spouses or friends”: paras 21, 38.

However, the key question in every case the “what intention is objectively manifest in the parties’ conduct”: para 38. Whether there is a common understanding of the family pot that objectively manifests in the parties’ conduct such that it informs the

interpretation of the parties’ agreements is an assessment best left to the trial judge. [ 55 ] Richa deposes at para 20 that “[t]he concept of the Family Pot creating some kind of ongoing interest in business ventures is something that I have never heard prior to it being alleged in this Action”. This is opposite what Philip states; this underscores the need for a credibility assessment surrounding the parties’ understanding and

interpretation of their dealings, which cannot be adjudicated on the record: see Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at para 47 [ Weir-Jones ]; PricewaterhouseCoopers Inc v Perpetual Energy Inc , 2020 ABQB 6 at para 101 , dismissing the

summary dismissal of the Bankruptcy and Insolvency Act claim; dismissal upheld on appeal, 2021 ABCA 16 at para 111 , leave to appeal to SCC refused, 39597 (8 July 2021). [ 56 ] Moreover, the parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing: Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 at para 59 .

As there is no written contract, parol evidence is required in this case. [ 57 ] Without commenting on the merits of the fraudulent and negligent misrepresentation allegations, for the purpose of determining whether the threshold is met to permit the amendments, I find that the evidence in support is significant and sufficiently particularized given the nature of the claims. [ 58 ] Moreover, applying rule 13.7, I find that there are sufficient particulars alleged in relation to the fraud and misrepresentation. [ 59 ] Despite my finding that the Plaintiffs have met the threshold to add the specific fraud allegations, I highlight that it is a serious allegation.

The Plaintiff should be cautioned so that he appreciates the consequences of making fraud allegations that are not ultimately founded. Allegations of fraud must be made with care, and “courts penalize in punitive costs sanctions those litigants who claim fraud but do not prove it”: Miller v Miller , 2001 ABQB 359 at para 12 ; Abt Estate v Cold Lake Industrial Park GP Ltd , 2019 ABCA 16 at para 41 .

The basis for this principle is that “since allegations in pleadings are privileged, and therefore shielded from the discipline imposed by the law of libel and slander, the check and balance established by the justice system to prevent the exploitation of pleadings as a safe method of libelling others is the threat of discipline in costs”: SLT v AKT , 2008 ABQB 450 at para 25 . [ 60 ] The Supreme Court of Canada stated the following in Hamilton v Open Window Bakery Ltd , 2004 SCC 9 at para 26 : [A]llegations of fraud and dishonesty are serious and potentially very damaging to those accused of deception.

When, as here, a party makes such allegations unsuccessfully at trial and with access to information sufficient to conclude that the other party was merely negligent and neither dishonest nor fraudulent (as Wilkins J. found), costs on a solicitor-and-client scale are appropriate: see, generally, M. M. Orkin, The Law of Costs (2nd ed. (loose-leaf)), at para. 219.

iv. Are the proposed amendments hopeless? [61] Certainly, with the amendment, the stricter test for fraud or negligence will additionally need to be proven, but the evidenceand facts that underpin whether the representation has the additional characteristics would not significantly differ from what will alreadyneed to be in evidence. [62] To prove fraudulent misrepresentation, the Plaintiffs need to prove on a balance of probabilities, per Bruno Appliance andFurniture Inc v Hryniak, 2014 SCC 8 at para 21 and affirmed in Precision Drilling Canada Limited Partnership v YangarraResources Ltd, 2017 ABCA 378 at para 21: (

a) a false representation made by the defendant; (

b) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge orrecklessness); (

c) the false representation caused the plaintiff to act; and (

d) the plaintiff's actions resulted in a loss. [63] “[A] representor does not need to have actual knowledge of the falsehood to satisfy the knowledge element.

Recklessness orwilful blindness is sufficient”: Toronto Dominion Bank v Whitford, 2020 ABQB 802 at para 228. [64] To prove negligent misrepresentation, there needs to be a duty of care owed based on a special relationship; the representationmust be untrue, inaccurate, or misleading; the representor must have acted negligently in making the representation; the representee musthave relied, in a reasonable manner, on the negligent misrepresentation; and the reliance must haven been detrimental and resulted indamages: Queen v Cognos Inc, (SCC), [1993] 1 SCR 87 at 110; Condominium Corp No 0321365 v MCAP FinancialCorporation, 2012 ABCA 26 at para 65. [65] The existence of a special relationship may be found where:

a) the defendant ought reasonably to foresee that the plaintiff willrely on his or her representations; and

b) reliance by the plaintiff would, in the particular circumstances of the case, be reasonable:Hercules Management Ltd v Ernst & Young, (SCC), [1997] 2 SCR 165 at para 24 [Hercules]; Deloitte & Touche vLivent Inc (Receiver of), 2017 SCC 63 at paras 29-31. [66] Determining whether there was reasonable reliance will depend on a number of possible indicia, such as: having a direct orindirect financial interest in the transaction; whether the defendant is a professional or someone with special skill, judgment, orknowledge; whether the advice was provided in the course of the defendant’s business; whether the information or advice wasdeliberately provided; and, whether the information was given in response to a specific request: Hercules at para 43. [67] There is evidence that Richa was the Medical Director of Harvest.

She is also a physician and managed the medical cannabiscompany that her brother was the sole director and shareholder of.

Whether that is sufficient to establish a special relationship or whethershe had ostensible authority or was acting as an agent of Harvest or Shekhar is a question of law; at this stage, there is insufficientevidence to ascertain this fact from the record. [68] While I agree that distinct evidence is required to prove the claims against each of them, the lack of insider knowledge or arole as a director or shareholder does not preclude Richa from being liable. [69] The claims are therefore not separate and distinct given the family relationship between Richa and Shekhar and her role inhaving advanced her own monies to the same Defendant Companies, as noted by Master Farrington. [70] The following five cases, cited by the Appellants, are distinguishable from the current case. [71] In Gas Plus Inc v Levelton Consultants Ltd, 2017 ABQB 655 [Gas Plus], the proof of product liability was unlikely tosucceed in the absence of the availability of the alleged defective fuel line for testing.

There was no other evidence available to allow foran inference to be drawn that the fuel line was defective and as to who manufactured it: Gas Plus at paras 92, 97. In this case, there is noissue of preservation of necessary evidence. [72] In Camco Inc v Northwind Industrial Ltd, 1982 CarswellAlta 394, 36 AR 585 (ABQB) [Camco], the Court rejected onedefence as pled because it was based simply on a belief with no facts to support the position: paras 10, 17. A second defence was held tobe a sham and the third was unknown because it was not properly pled: Camco at para 34.

The defendant was allowed to amend hisstatement of defence to properly plead his defences and their associated facts: Camco at para 36. In the case at bar, the claims areproperly pled, anchored to some triable facts, and based on more than mere belief. [73] In Paraniuk v Pierce, 2018 ABQB 1015 [Paraniuk], the Court accepted there were fatal gaps in each cause of action pled andcertain claims were merely bald allegations: paras 13, 17, 28. The Court ultimately declared the entire proceeding vexatious and struckthe statement of claim: Paraniuk at para 99.

Given this proceeding was declared vexatious, it is easily distinguishable from the presentsituation. [74] In Waquan v Canada, 2002 ABCA 110 [Waquan], the government defendants appealed the amendments allowed anddeferred by the chambers judge. The only evidence to support the amendments was two affidavits by a legal assistant employed by co-counsel for the plaintiffs; she claimed no personal knowledge, the first affidavit was brief and vague, and the second was brief andrepeated the same formula of words: Waquan at paras 6-7.

There was no evidence tendered at all about some of the amendmentsproposed, including a sweeping allegation of fraud: Waquan at paras 7, 61. The Court concluded that “[m]ost of the contestedamendments lack any evidentiary foundation, but are of some substance, so they should be denied”: Waquan at para 130. In this case,there is sworn affidavit evidence to support the amendment relating to fraudulent misrepresentation that is not brief nor vague, and that is

sworn by Philip, who has personal knowledge of the events in question. As already noted, the evidence regarding Richa’s representations is sufficiently particular, keeping in mind the familial context of the transaction and the need for a legal determination on whether the statements created duties, or were misrepresented, negligent, or fraudulent, or none of the above.

Philip cannot speak to the content of Richa’s mind while making the representations, and whether the representations happened at all is a question of fact for the trial judge. [ 75 ] In 1664992 Alberta Ltd v 1260055 Alberta Ltd , 2018 ABQB 367 [ 1664992 Alberta ], the Court upheld on appeal the refusal to amend the appellants’ statement of claim: para 54. The proposed amendments raised a new claim of negligent or fraudulent misrepresentation with respect to an alleged oral representation that a set of financial statements were audited: 1664992 Alberta at paras 3, 51.

The claims were not allowed due to prejudice to the respondents, hopelessness, the expiration of limitations and a failure to satisfy the requirement of significant evidence to show that exceptional grounds exist to add allegations of fraud: 1664992 Alberta at para 52. With respect to prejudice, the Court noted that the respondents could have made better records to crystallize memories with respect to the meeting that was subject of the misrepresentation claim had they been aware of the claim earlier: 1664992 Alberta at para 26.

In the case at bar, the Defendants were made aware in the original Statement of Claim of the basis of the eventual misrepresentation claim—the detrimental reliance on statements allegedly made by Richa and Shekhar. [ 76 ] With respect to hopelessness, there was no evidence suggesting the information was actually false, the plaintiffs were contractually barred from relying on the alleged false information, and the financial statements at issue contained an express disclaimer that they were not audited: 1664992 Alberta at paras 33-35.

In this case, the nature of the exact representations is not written, so it is an open question to be determined based on evidence at trial. There are no written contractual limitations or disclaimers at issue. [ 77 ] Adequate particulars to allege fraud were not provided including:

i) when the meeting took place; ii) where the meeting took place; iii) who was present, other than the parties themselves; or iv) precisely what was said by the respective parties: 1664992 Alberta at para 41. While some of these particulars are lacking in this case, as already discussed, given the familial context, this does not render the amendments hopeless. [ 78 ] Finally, the amendments were barred by the Limitations Act : 1664992 Alberta at para 46.

As discussed below, starting at para 83, the Court cannot decide the limitations issue at this stage. [ 79 ] I also reject the argument that the amendments are hopeless on the basis that there is no evidence of a binding, implied agreement or evidence of commercial intent.

The cases cited by the Appellants may be correct statements of law, but the evidence does not definitively resolve the question. [ 80 ] A judge may find, after cross-examination, that Richa made representations that she knew or ought to have known were false, and that the discussion of a family pot rebuts the presumption against commercial intent. These questions necessitate credibility findings and may or may not be corroborated by other evidence.

Her bare denial could otherwise never be impugned. [ 81 ] What is being alleged discloses a cause of action, is not inconsistent with the record of an implied understanding based on oral representations and raises a genuine issue for trial. There is contradictory affidavit evidence on what was discussed, what was intended, what was known when the statements were made, all of which requires viva voce evidence and credibility findings. v.

Are the proposed amendments hopeless because they are statute-barred? [ 82 ] For the reasons stated below, the record has evidentiary gaps that do not permit a just determination of the limitations issue. There is sufficient dispute and lack of clarity on the dates, content, and effect of the alleged conversations to make the issue of limitations incapable of determination on a

summary dismissal application. It remains an issue for trial. b. Should

Summary Dismissal be granted for the following claims on the basis that they are statute-barred: (

i) In respect of the claims and allegations against SCorp and related claims against Shekhar that they are indebted to the Plaintiff? (ii) In respect of the claims and allegations against Harvest and related claims against Shekhar that the Plaintiff purchased or subscribed to shares in Harvest? (iii) Against Richa and Shekhar that arise from allegations of fraudulent and/or negligent misrepresentation? [ 83 ] The Defendants’

summary dismissal applications were brought under rule 7.3(1)(b): 7.3

(1) A party may apply to the Court for

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

b) there is no merit to a claim or part of it[.]

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

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

(

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

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

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. [ 84 ] Rule 13.18(3) supplements rule 7.3(2): 13.18

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit. [ 85 ] The Supreme Court of Canada in Hryniak v Mauldin , 2014 SCC 7 [ Hryniak ] set out a new approach to

summary judgment, an approach that has been adopted by the Alberta Court of Appeal. This approach recognizes that “[t]he theory that disputes eventually ‘went to trial’ was always something of a legal fiction”: Windsor v Canadian Pacific Railway Ltd , 2014 ABCA 108 at para 15 [ Windsor ]. In the interests of promoting timely and affordable access to the civil justice system, pre-trial procedures should be simplified and the emphasis moved away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case: Hryniak at para 2 . [ 86 ] The Court of Appeal in Weir-Jones clarified and summarized the principles governing

summary judgment and

summary dismissal, as I previously summarized in Van Grinsven v Kortbeek , 2022 ABQB 138 at para 57 : 1. The parties in a

summary judgment application do not have the same burden of proof. The party applying for

summary judgment (here the Defendants) must first prove two things: a. the facts of its case on a balance of probabilities, and b. that there is no genuine issue requiring a trial. Here, the Defendants must prove “no merit” to the claim. 2. The resisting party (here the Plaintiffs) do not need to prove the opposite to send the matter to trial; here the Plaintiffs must simply prove that the Defendants have failed to establish both that: a. there is no genuine issue requiring a trial, and b. a fair and just adjudication is possible on a

summary basis. 3. Once the applicant (here the Defendants) has proven the relevant facts and that there is no genuine issue requiring a trial, the resisting party (here the Plaintiffs) then has an evidentiary burden of persuading the court that there is a genuine issue requiring a trial by challenging the Defendants’ entitlement to

summary judgment (based on gaps or uncertainties in the facts, the record, or the law, etc.) Genuine issues requiring trial include disputes on material facts or questions of credibility. These must be grounded in the record, and not mere speculation. 4. Procedural and substantive fairness must always be a part of the

summary disposition process. Whether a

summary disposition will be fair and just will often come down to whether the chambers judge has a sufficient measure of confidence in the factual record before the court. In practical terms, that level of confidence will not often be reached in close cases. ( Weir Jones at paras 32-33, 35, and 46-47). [ 87 ] In Hannam v Medicine Hat School District No 76 , 2020 ABCA 343 at paras 147-151 , leave to appeal to SCC refused, 39442 (18 March 2021), the Court of Appeal reiterated that a court may grant

summary judgment where the material facts in dispute do not raise a genuine issue requiring trial. Thus, even where the moving party has proven the factual basis of their application on a balance of probabilities, the presiding judge must still consider whether

summary resolution is appropriate and fair and be sufficiently satisfied on the record that there is no genuine issue requiring trial: Weir-Jones at para 34 . Application of the Principles [ 88 ] The proper approach to

summary disposition, based on the Hryniak test at para 47 , should follow the core principles relating to

summary disposition, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are: 1. Having regard to the state of the record and the issues, is it possible to fairly resolve this dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial? 2. Have the Defendants met the burden to show that there is both no merit to the claim and there is no genuine issue requiring a trial? At a threshold level, the facts of the case must be proven on a balance of probabilities, or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

3. If the Defendants have met their burden, the Plaintiffs must put their best foot forward (see Canada (AG) v Lameman, 2008 SCC14 at para 11 [Lameman]; Windsor at para 21; Weir Jones at para 47) and demonstrate from the record that there is a genuine issuerequiring a trial. This can occur by challenging the moving party’s case, by showing that a fair and just

summary disposition is notrealistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,summary disposition is not available. 4. In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared toexercise the judicial discretion to summarily resolve the dispute. [89] To repeat, the analysis does not have to proceed sequentially or in any particular order. The presiding judge may determine,during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, theissues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issuerequiring a trial. [90] With respect to the “best foot forward” consideration, Renke J in Axcess Mortgage Fund Ltd v 1177620 Alberta Ltd, 2018ABQB 626, stated at paras 42-43: A

summary judgment application is assessed “on the record.” This is the record actually before the judge and not the record that mightor could have been before the judge. Each party is obligated to put its “best foot forward” in the application: [citations omitted] … If, however, the evidence on the record supports the inference that further and better evidence will be available at trial respecting anissue of merit, an issue “genuinely requiring trial,” then dismissing the application is warranted. In such a case, the link between theevidence-to-come and the evidence on the record is not merely a matter of speculation. [citations omitted] [Emphasis added] [91] The question on this

summary disposition motion is whether the SCorp and Harvest claims (and related claims againstShekhar) are statute-barred. [92] Section 3(1) of Limitations Act provides that a claimant must seek a remedial order within two years after the date on whichthe claimant first knew or ought to have known that:

a) the injury for which the claimant seeks a remedial order has occurred;

b) that theinjury was attributable to the conduct of the defendant; and

c) that the injury, assuming liability on the part of the defendant, warrantsbringing a proceeding. a. SCorp Loan [93] On February 1, 2012, the Plaintiff advanced $150,000 to SCorp. There is no dispute that the money advanced to SCorp was aloan.

Between March 2012 and April 2014, SCorp repaid the Plaintiff $135,100 by way of regular post-dated payment cheques. [94] The question is whether the Plaintiff knew, more than two years before filing his Statement of Claim, that the balance wouldnot be repaid. [95] Philip acknowledges that Shekhar told him that SCorp was “unable to continue making payments” on the loan in 2014, that heaccepted that reality, and he took no further steps until filing his Statement of Claim on December 2, 2019.

Philip’s evidence is that heunderstood from this statement that the payments were only delayed. [96] Shekhar’s statement and Philip’s

interpretation of it create uncertainty in the facts such that

summary disposition would beunjust. [97] Moreover, Philip argues that the SCorp advance was a demand loan and therefore the limitation period did not start to rununtil he filed his claim. Master Farrington agreed, and I concur with his conclusion: Instead, the defendants argue that the loans had some characteristics that made them due earlier which resulted in the limitation periodexpiring early. The difficulty with this is there were no acceleration clauses in place so the balances could not become due until muchlater.

There is little or no paper, there is no maturity date set, and it is difficult on this record to draw any sort of solution as to when thealleged loans were due on any basis other than the demand basis. [98] If the loans are ultimately classified as a demand loan, Philip is entitled to accept the delay without starting the limitationsclock or prejudicing his right to sue: FB Capital Corp v IoSolutions Inc, [2006] OJ No 1070 at para 45, (ONSC);HSBC Bank Canada v Macaulay, 2021 ABQB 416 at para 68. b.

Harvest Advance [99] The Appellants submit that the evidence is indisputable that: 1) the Plaintiff and Harvest agreed that the money would accrueinterest at an annual rate of 10%, such that an expectation of equity would be illogical; 2) on December 1, 2017, the Plaintiff received acheque for $77,000 and the words “Loan 70K + Interest 7K” were written on the cheque; 3) the Plaintiff cashed the cheque; and, 4) thePlaintiff’s records indicate that the monies were a loan and that the cheque was repayment of same. [100] Although there are some contemporaneous bookkeeping records from the Plaintiff showing the money advanced to Harvest isrecorded as a loan, Philip has explained why these entries may not capture the full story: Transcript of the examination for discovery ofPhilip J Love June 21, 2022, pages 109-110, 144-145.

In addition, there are several reliability issues with the document entitled “Loan toShekhar

Summary”. I agree with the Respondent that this alone is not dispositive of the limitation issue, particularly on

summarydismissal. [101] The Appellants argue that s 3(1) of the Limitations Act measures the subjective conduct of the plaintiff against an objective

standard. While mere suspicion unsupported by facts is insufficient, perfect knowledge or certainty of a claim is not the standard: Yugraneft Corp v Rexx Management Corp , 2010 SCC 19 at para 60 ; De Shazo v Nations Energy Co , 2005 ABCA 241 at paras 29-31 ; Amack v Wishewan , 2015 ABCA 147 at para 51 ; Gratton v Shaw , 2011 ABCA 175 at paras 22-23 .

They argue that actual discovery is not the test— it is sufficient that the plaintiff ought to have discovered the material facts on which the claim is based on reasonable diligence: De Shazo at paras 26, 31 . [ 102 ] While these are correct statements of the law, in this case, the limitation question cannot be determined based solely on when the advance was deemed a loan by one party. It is also related to when Philip found out that Shekhar advised him about the profits of the Harvest sale. As Master Farrington stated: “…a good portion of the claims relates to Dr.

Love claiming to have an interest in proceeds from an eventual transaction relating to Harvest and what happens to his money generally. Discovery of that injury arguably did not come until much later”. [ 103 ] Upon closer examination of the timeline and supporting evidence, I note that it is not as clear-cut as the Appellants would hope. I note the following: (

a) Richa swore in her affidavit that: “In November 2017, shortly before Philip moved out of our home for the first time, while in our bedroom, Philip mentioned that he could not recall if the monies advanced to Harvest were loans or equity. I told Philip that I thought that they were loans but that he should ask Shekhar. A few days after that, Shekhar, Philip, and I had a discussion and Philip asked if monies the PJLPC advanced to Harvest were loans or equity.

Shekhar confirmed that the monies advanced were loans…A few weeks after the aforementioned conversations, on November 26, 2017, which I recall as it was Shekhar’s birthday and Philip had moved back in, Shekhar anticipated that he would be able to repay the loans made by Philip’s and my professional corporations to Harvest with the agreed upon 10% interest, in the next few days. Again, it was clearly stated that and confirmed at this time that the monies Philip and I advanced to Harvest through our respective professional corporations were loans”. (

b) Philip acknowledged that in the late summer or early fall of 2017, Richa tried to tell him that she thought the money advanced to Harvest was a loan. [ 104 ] However, the trouble with relying solely on Richa’s statement as to the entirety of what Philip was told is the following: (

a) Richa’s response to Philip’s initial inquiry is equivocal as she only states that she thinks the monies were loaned; (

b) Neither Philip nor Shekhar recall the subsequent dates or specifics of the conversations, which were supposed to confirm whether Shekhar was treating the funds as loans; Philip, when questioned on his affidavit, stated that the conversations happened likely in fall of 2017, sometime between summer of 2017 and December 2, 2017; (

c) Finally, I find it troubling that Shekhar would have no recollection of the key conversations needed to establish the commencement of a limitation period in a

summary dismissal application and yet be able to rely on the hearsay statements of Richa. [ 105 ] Moreover, although the Appellants claim that Philip admits the conversations with Shekhar occurred, I note that it is not clear in my review of the transcript. [ 106 ] Since Richa is not a shareholder or director and the Corporate Defendants are denying that she had any ostensible authority to represent them, any representations she made to Philip would not bind the Corporate Defendants in any event. [ 107 ] In response to the above, Philip states that he was only told that he could not own shares in Harvest because he is a dentist.

I agree that this does not end the inquiry as to whether he was owed some beneficial interest through another investment vehicle. The Plaintiff claims that he believed he would derive benefit from the sale of Harvest, not that he would specifically be a shareholder. The nature of Philip’s interest in Harvest is an issue for trial. [ 108 ] Philip further deposes that it was on December 2, 2017, and not December 1 that he received the $77,000 cheque from Harvest. He protested that the money was an investment but cashed the cheque because he felt that he had no other choice.

He further sent a message soon after to Shekhar expressing his belief that the funds were an investment, which tends to belie the argument that he only made up the allegations in bad faith because of the subsequent divorce proceedings. He received an evasive response about needing to clear the books but no explanation as to why Shekhar believed it was a loan.

This repayment to Philip was within days of the binding letter of intent to sell Harvest to AbCANN, which was not known to Philip at the time. [ 109 ] I note that there are patterns of conduct in the WW transactions that may be relevant in understanding how the parties understood the Harvest dealings. For example, there is evidence that a March 21, 2014 cheque for $50,000 to WW was noted to be a loan.

However, this inscription on the cheque was not present when Philip signed it and was added by Shekhar. [ 110 ] There is also an email from Shekhar to Philip on April 15, 2014 seeking another capital injection, which he states should result in an increase in his equity stake. After this point, Philip advanced another $210,000 to WW on the belief that they were investments. [ 111 ] WW denies that these are equity investments.

However, I note that in the transcript of the cross-examination of Shekhar he states that, from October 20 th , 2015, to the present, WW has not made an accounting entry of interest owing on amounts due to P.J. Love. The Appellants heavily rely on PhilipPC’s financial records to argue that entries must be what they say they are, but yet it is evident that all parties may have had lax accounting practices or that the records do not tell the whole picture.

PhilipPC had two internal accounts in respect of money advanced to 173 and WW, which indicates $390,000 were investments. [ 112 ] I therefore disagree that each advance of funds is distinct and requires proof to determine its purpose. They are connected through background evidence of the family pot, relationships and representations, including reasonable expectations in the pattern of advances. Dissecting this lawsuit as though it were a straightforward series of commercial transactions ignores the family dynamics and the resulting complex factual matrix.

As noted by Master Farrington: “Even if the equity argument fails in terms of the actual characterization of the advances, that may not preclude Dr. Love from arguing that regardless of what he did receive, he was entitled to

receive an equity interest in the circumstances.” [ 113 ] The family pot concept will need to be assessed against the cultural and family backdrop, which includes the evidence that since 2012, Shekhar resided in rental property owned by Richa and Philip, and for significant periods of time, did not pay rent and depended on them for living expenses.

Further, the parties’ level of sophistication and knowledge of business affairs, and whether Philip had reason to rely on and trust Shekhar because of his status as a lawyer, is disputed and cannot be resolved on the record alone. [ 114 ] Although the parties are sophisticated and educated, and Philip appears to know the difference between a loan and a share purchase, I also note that the word investment is used loosely by the parties and may have created confusion as to what was intended by this broader classification (e.g., a loan and a share purchase may have both been considered investments). [ 115 ] It was not until the summer of 2019 that Philip found out that the sale of Harvest was far more lucrative than he believed.

As a result, he states he was lied to and told that because the sale of Harvest only resulted in $150,000, Shekhar could not afford to pay back more than the $77,000. [ 116 ] This raises a further possibility that the discovery of the injury was not when the cheque was received, but when Philip realized that he was lied to.

When he was told the sale resulted in a much smaller profit, it is arguable that even though he may have known that Shekhar was treating his money as a loan, it did not warrant bringing proceedings as there was little profit to argue over and the damages were not clear. [ 117 ] There is a genuine dispute over whether a conversation took place that would have crystalized the knowledge (subjective or objective) that an injury had occurred that would warrant bringing proceedings prior to December 2, 2017. [ 118 ] The Appellants point to a timeline to argue that since Shekhar informed Philip on April 1, 2014, that SCorp would no longer be making loan repayments to the Plaintiff and that further, by November 2017, Philip knew that Richa and Shekhar were of the understanding that the $70K advanced to Harvest was a loan.

Moreover, a cheque for the repayment of the Harvest loan was dated and provided to Philip on December 1, 2017, and deposited into his bank account. [ 119 ] The Appellants point to the cross-examination, where Philip stated: “…it was before December 2” that Richa and Shekhar suggested that the funds provided to Harvest were loans. In addition, they state that it is not disputed that Shekhar told Philip on November 26, 2017, that he anticipated repayment of the loans with interest soon.

They argue that the Plaintiff knew by the end of November 2017, at the latest, that the injury attributable to the conduct of the Defendants had occurred and thus the Statement of Claim issued on December 2 nd is statute-barred. [ 120 ] In the context of the holistic analysis of the parties’ dealings, the lack of precision in their respective accounting records, all measured against the potential backdrop of cultural expectations and the complexity of interfamily relations, I am not convinced that conversations wherein views were stated by either Shekhar or Richa that certain monies were loans trigger an injury that warrant proceedings. [ 121 ] In short, the repayment of funds from SCorp and Harvest does not completely negate the possibility that there is other consideration in the family pot that results in an expectation of equitable interest in the Defendant Corporations.

This exists as part of the Plaintiff’s claim separate and apart from the evidence of his business records that document the cash loans. In other words, the claim is broader than the loans themselves, some of which are acknowledged by the Plaintiff.

This is grounded in the pleadings and affidavit evidence and not on speculation about what the evidence may be at trial: Lameman at para 19 . [ 122 ] While the initial monies advanced are acknowledged to have been repaid, this does not abrogate the evidence that the consideration in the family pot was for future equity in the family-owned companies. [ 123 ] As already noted by the Court, this is a situation where credibility about the parties’ understanding and

interpretation of their dealings is in dispute and thus cannot be adjudicated on the record: Weir-Jones at para 47 . [ 124 ] As stated above, the evidence does not meet the test on a

summary dismissal application that the Plaintiff knew, or ought to have known prior to December 2, 2017, that the alleged injury attributable to the Defendants, or any one of them, had occurred. [ 125 ] Based on gaps and uncertainties in the facts, the record, and the law, I cannot be convinced that

summary disposition would be the fair result. The limitations issues are therefore genuine triable issues. c. Richa and Shekhar [ 126 ] As against Richa, Philip alleges that she made several misrepresentations to him throughout their marriage that induced him to advance funds to the Defendant Companies with the understanding that these would be classified as purchases of equity interests therein. However, the evidence is clear that even the Plaintiff categorized the majority of these as loans, save for the money advanced to 173 and WW, for which documentation of an equity purchase exists.

Philip’s basis for this claim rests on the concept of a family pot and discussions that there would be shared resulting benefits for all family members from any business venture as a result of such contributions. [ 127 ] Philip alleges that the representations from both Richa and Shekhar included that he would be issued a proportionate number of shares in the Defendant Companies to reflect the value of his capital contributions to 173 and WW and that the investments in Harvest would yield significant returns for the family pot. [ 128 ] Richa denies any such understanding.

She deposed in an affidavit, which she was not questioned on, that she deferred to Philip’s business background in deciding whether to advance funds, and that she recommended they obtain legal advice prior to making the initial advances to the Defendant Companies, which was rejected by Philip.

[ 129 ] The limitation period for fraudulent misrepresentation begins to run when the plaintiff learns that the representation was untrue and known to the defendant to be untrue when it was made: Kaynes v BP plc, 2021 ONCA 36 at paras 63-65 . [ 130 ] In this case, the Appellants’ reliance on conversations that took place in summer or fall of 2017, or specifically on November 26, 2017, does not meet the test for

summary judgment as to whether the claims are statute-barred, for the reasons stated above in relation to the Corporate Defendants. d. Conclusion on

Summary Dismissal Application [ 131 ] Although Weir-Jones at para 40 states that the existence of “some conflicting evidence of the record does not mean that a ‘fair and just adjudication’ is not possible”, here, the evidence is diametrically opposed, and resolution will come down to what the parties understood from their private conversations about family business dealings. [ 132 ] In considering whether

summary disposition is a suitable means to achieve a just result, I cannot conclude that the quality of the evidence is such that it is fair to adjudicate at this stage on the record. I find that there are genuine issues requiring trial. [ 133 ] In my view, the claims are not appropriate for resolution on a

summary basis as they are based on a common dispute about family dealings, the understanding of the nature of the advances, and general expectations that related to all the other claims. Partial

summary judgment is only appropriate where the issues at bar are sufficiently discrete from those in the main action: O’Chiese Energy Limited Partnership v Bellatrix Exploration Ltd , 2019 ABQB 53 at para 57 . In Bellatrix , the Court found it could render

summary judgment on the issue of whether the joint venture agreement gave the plaintiffs an interest in Bellatrix’s pre-existing, off-reserve facilities: para 51-52. The disputed facilities issue was discrete enough that partial

summary judgment was helpful; deciding the issue removed substantial accounting: Bellatrix at para 57. That is not the case here, as the issues are intertwined. [ 134 ] The Defendants are not seeking

summary dismissal of the claims against WW, the oppression or unjust enrichment claims, or the misrepresentation claims. [ 135 ] In conclusion,

summary judgment will not be timely or cost-effective or eliminate the need for evidence specific to the dismissed claims. VII. Conclusion [ 136 ] The amendments to the Statement of Claim are permitted. [ 137 ] Applying the Weir-Jones test for

summary judgment, I conclude that there are uncertainties in the facts, the record, or the law that reveal a genuine issue for trial. [ 138 ] I dismiss the appeal from Master Farrington’s Decision and uphold his order to grant the amendments and to dismiss the application for

summary dismissal. Heard on the 15 th day of December, 2022. Dated at the City of Edmonton, Alberta this 17 th day of January, 2023. A. Loparco J.C.K.B.A. Appearances:

Joshua D. Sadovnick and Gunnar Benediktsson, Norton Rose Fulbright Canada LLP the Appellants Chad Babiuk and Alex Darling, Code Hunter LLP For the Respondents