Emmanuel Amadi, Nelly Amadi, v. Casmir Opara, 2022 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2022 SKPC 35 Date: August 31, 2022 File: 214 of 2021 Location: Regina _____________________________________________________________________________ Between: Emmanuel Amadi, Nelly Amadi, and Casmir Opara - and - Jonnahs Amissih Emmanuel Amadi For the Plaintiffs Jonnahs Amissih For the Defendant ______________________________________________________________________________ JUDGMENT P.

DEMONG, J ______________________________________________________________________________ Introduction [ 1 ] In this action the plaintiffs seek the return of monies that they gave to the defendant for what they allege were investment purposes, less the returns that they obtained on that investment, together with pre-judgment interest on that sum, and their court costs.

[ 2 ] The defendant has filed a Reply and not only places into issue the amount of money that was given to him but asserts the monies that were given to him were voluntary contributions to a fund dedicated to helping members of the community. This community is described as HOTO, or ‘Helping Others To Overcome’. The defendant maintains that the monies have been used by the community and therefore there are no monies to return to the plaintiffs.

He asks that the claim be dismissed with costs in his favour. [ 3 ] For the reasons that follow, I am satisfied the defendant used his authority as a Pastor of a church that he founded, known as I AM Centre Church, to attract potential investors into what is traditionally described as a pyramid scheme. These are hierarchical investment scams in which members pay money into a fund. As new members begin to pay into the scam, the first person that paid in rises to the top of the pyramid and receives the collective investments of the newer members and then leaves.

As new members enter, individuals move up the pyramid and hopefully obtain a similar reward – until, inevitably, membership dries up leaving many investors without any opportunity to recoup either their own investment, or any additional returns. [ 4 ] I am further satisfied the defendant deceived the plaintiffs by fraudulently misrepresenting the nature of the investment and the promise of significant returns. On that basis, I am satisfied the appropriate remedy, for this tort, is to award damages in an amount sufficient to return the plaintiffs to the position they would have been in had this tort not occurred.

I will direct the return of the monies paid to Mr. Amissih, less any sums received by the plaintiffs following their payment into the investment scheme, together with pre- judgment interest and court costs. Evidence, Analysis, and Findings of Fact [ 5 ] Some of the evidence is not in dispute. Where it is in dispute, I will explain why I accept some evidence and reject other evidence. [ 6 ] Emmanuel Amadi and Nelly Amadi are husband and wife. Casmir Opara is Emmanuel’s brother. They are originally from Nigeria and have, I understand, been in Canada for about ten years.

In or about mid-September, 2020, a friend of theirs, by the name of Ngosa, advised them that Jonnahs Amissih, a Pastor at the I AM Centre Church, had been organizing a community investment program and invited them to attend with him to find out more about it. Emmanuel, Casmir, and Ngosa attended at Mr. Amissih’s office located at 715 Vitoria Avenue on September 24 and met with Mr. Amissih. [ 7 ] A conversation ensued in relation to what each of Emmanuel, Casmir, and Ng osa refer to as an investment scheme. Each assert that Mr.

Amissih described an investment opportunity in which like-minded investors would join the HOTO community - which was described to them as a community help group that would help each other by ‘gifting’. Investors would bring money into the group and Mr. Amissih would create a series of ‘money circles’ (which were also described by Mr. Amissih in his testimony as ‘pyramids’). Each money circle would be made up of a varying number of individuals and any given circle would be based on payment in of varying monetary denominations - $100.00, $200.00, $300.00, $500.00, $1,000.00, and $2,500.00.

In exchange, once the money circle filled up, the first person to contribute to that circle would be paid out (‘gifted’) the total of the money that was contributed-subject to an office fee that had to be paid when the gift was affected. [ 8 ] Each of Emmanuel, Casmir, and Ngosa swore that Mr. Amissih advised that once gifted, a participant should pay in again and step into the last position on the circle to be re-gifted when their turn came around again. They said that Mr.

Amissih made it apparent that it would be useful if they attempted to bring more people into the ‘community’ to ensure a steady supply of funds. Each swears to the fact that Mr.

Amissih stated if one contributed $100.00 then the return on the investment would be $700.00 within a week; if $200.00, then a return of $1,400.00 within one week; if $300.00, then a return of $1,600.00 within two weeks; if $500.00, then a return of $2,000.00 within two weeks; if $1,000.00, then a return of $4,000.00 within two weeks; if $2,000.00, then a return of $8,000.00 within two weeks; if $5,000.00, then $20,000.00 within two weeks. Each of them swears that Mr. Amissih guaranteed it would work – in essence guaranteeing the return within the stipulated time frame.

Emmanuel, Casmir, and Ngosa assert they were advised that they could contribute to any number of circles of differing denominations. [ 9 ] Payments into this ‘community’ had to be in cash. When attending at Mr. Amissih’s office, a HOTO ‘community member’ would pay the money to rotating ‘volunteers’ within the community who appeared to present as a secretary in Mr. Amissih’s office (‘Phillis’, ‘Marie’, and ‘Frieda’ were three of the names mentioned by Mr. Amissih in his testimony).

A ‘community member’ would then identify the number of circles that they sought to participate in and the monetary denomination of each, and then sign a register evidencing how much money was placed where and in what denomination. The money and register were kept by Mr. Amissih. Mr. Amissih oversaw placing names within each circle (or pyramid). When the circle (or pyramid) filled up, the ‘giftee’ would be advised and the gift would be delivered, subject to an office payment, and the opportunity to reinvest some of the proceeds in another circle (or pyramid).

In order to receive payment, one would sign off on the register as having received the money.

[ 10 ] The following day, September 25, 2020, Emmanuel attended at the office and paid into five $100.00 circles. He handed the money to Phyllis and signed the register evidencing the payment. When asked why he did not ask for a receipt he indicated that he saw no need to because he is a believer (in God) and was dealing with a church Pastor. He saw absolutely no need to question the Pastor’s integrity. Two weeks later, Emmanuel says that Mr. Amissih called him to collect $800.00. This because one of his circles had filled up and he had been the first one in.

He did so and pocketed $600.00 and re-invested into two more $100.00 circles. [ 11 ] In the ensuing months of October and November, Emmanuel says he paid into two more $200.00 circles, two more $300.00 circles, one $500.00 circle, one $1,000.00 circle, two $2,500.00 circles, and one $5,000.00 circle for a total investment of $13,200.00.

Over the course of September, October, and November he ultimately received gifts totaling $4,920.00 – sometimes these were paid within the time frame promised and sometimes not. [ 12 ] Emmanuel says that he was a little leery of contributing to the $5,000.00 circle in the latter part of November 2020 because he intended to go to Nigeria and would need the money. He says however, that Mr. Amissih urged him to do so because the investment return of $20,000.00 would be in his hands before he left and if not, Mr. Amissih would give it to his wife so that she could send it to him.

On the strength of that promise, Emmanuel said he made this $5,000.00 investment. [ 13 ] During the same period of time, Nelly and Casmir also participated in the HOTO community. In his evidence, Casmir confirmed that the purpose of the September 24, 2020 visit to Mr. Amissih’s office was to find out about the investment opportunity being offered, and he confirmed, almost verbatim, Emmanuel’s recollection of that first meeting. He also confirmed Mr. Amissih stated that he oversaw how the community was operated. He says that on September 29, 2020 he attended at Mr.

Amissih’s office and paid into eight $100.00 circles and one $500.00 circle. He stated that he came back on October 4 and paid into a $1,000.00 circle. He stated that on October 17, 2020 he and Emmanuel attended at Mr. Amissih’s office, and he paid into two more $100.00 circles and one $200.00 circle. At that time, he had yet to receive any returns and had paid, according to his evidence, a total of $2,700.00. However, Casmir says that he ultimately obtained a gift of $800.00 leaving a shortfall of $1,900.00.

Upon cross-examination he was asked if he had ever received another gift of $510.00 and was presented with the register indicating that he had been gifted that amount. He did not accept this assertion and noted that the signature evidencing receipt of this gift was not his. [ 14 ] Nelly also contributed to the money circles. It is conceded that she contributed $900.00 and never received any gift whatsoever. [ 15 ] In addition to their own testimony, the plaintiffs called one witness, who I found to be credible and reliable – Ngosa Munganama.

He had attended at the first meeting on September 24, 2020, to make introductions. He asserted that he had previously participated in a form of money circle in the past but the gifting had stalled and he had heard that Mr. Amissih’s group was doing well. He affirmed Emmanuel’s version of what occurred at that first meeting. He stated that at no time did Mr. Amissih ever suggest there was any risk in investing and that Mr.

Amissih ‘gave the idea’ that one would always get one’s money out, and the rate of return that was suggested would, in fact, be obtained. [ 16 ] After Emmanuel returned from Nigeria, in early January 2021, the plaintiffs grew frustrated with the lack of a return on their investments. On February 17, 2021, Emmanuel, Casmir, and their witness Ngosa, attended Mr. Amissih’s office and secretly recorded a portion of their conversation. The recording was played at trial. In that recording, Mr.

Amissih can be heard saying that he took the responsibility for the losses that the plaintiffs incurred and that they were to trust him that ‘we will get this money back’. The plaintiffs were subsequently encouraged to e-mail the ‘HOTO community’ and request the return of their money. This strikes me as most strange. The HOTO community e-mail belongs to Mr. Amissih. However, it plays into the narrative that Mr. Amissih presented at trial and which, as I will soon point out, I found to be both incredulous and disingenuous.

The e-mail to the HOTO community did not result in the return of the monies that the plaintiff’s invested and Mr. Amissih started to block their calls and e-mails. In consequence they commenced this action. [ 17 ] Mr. Amissih asserts that he comes from the DR Congo and became a Pastor at the age of 17 and then obtained his PhD in bible studies after spending three years in college in New York.

He moved to Regina in 2009 and immediately started his own church, known as I AM Centre Church, under the umbrella of the Pentecostal Assemblies of Canada with a head office in Saskatoon from which, he says, he is paid an allowance to work as a Pastor. [ 18 ] Mr. Amissih stated that he established the HOTO Community in Regina as a means of helping others in need and that the notion of ‘money circles’ is a traditional form of ‘community helping’ in the DR Congo.

Throughout this trial he attempted to suggest that the HOTO community was somehow overseeing the money circles, but he eventually conceded that he oversaw them. He advised the court that the HOTO Community was incorporated as a charitable society and that he was on the board of directors.

When asked to provide the articles of incorporation at the end of the first day of trial, he attended the next day and conceded that in fact the HOTO community was never incorporated, presumably because of some oversight - and that he had only gotten so far as to start a draft of its constitution in December of 2019 when, he conceded, he started to organize and coordinate this ‘community’. He concedes that he also puts money into

it; retains the registry of its ‘members’; oversees the monetary contributions; arranges for payouts; sets up the various circles or pyramids; and obtains ten percent of the payouts for overhead and expenses. He believes that at any given time there would have been more than one hundred ‘members’. He asserts that the office staff who monitor the registry operate as rotating volunteers. [ 19 ] Mr. Amissih confirmed the way the community operates - the person first in is paid out when the circle/pyramid fills up.

He concedes that there is nothing in the community rules that would preclude people who get gifted from simply walking away rather that re-investing those proceeds to help the needy. In fact, he says that this is precisely the reason why the ‘community’ collapsed in December 2020 after only one year of operation. It had run out of money because there were not enough community members staying around after a gift; nor were they bringing in enough new ‘members’ to supplement the seed money required for the scheme to operate. [ 20 ] Mr.

Amissih adamantly denies that he ever advised any of the plaintiffs that this community was in any way an investment in the sense that a return over and above the original investment would, or could, or should be expected. In fact, he asserted that he advised the plaintiffs that this was in the nature of a donation, because gifts were supposed to be ‘re-invested’ indefinitely into the future. He asserts each of the plaintiffs and Ngosa are lying if they suggest he ever indicated otherwise. He denies he ever guaranteed the original investment, or the returns identified in Emmanuel’s evidence.

He says that any suggestion to this effect is a lie. [ 21 ] I do not believe very much of the evidence Mr. Amissih gave at trial and where it conflicts with the evidence of the plaintiffs and their witness, I prefer their evidence. They were credible. They did not overstate the nature of the conversations with Mr. Amissih. They were each consistent in their testimony. None of them were seriously challenged on cross-examination except perhaps in the quantum they are seeking - which I will discuss shortly. [ 22 ] There are fundamental problems with Mr. Amissih’s assertions.

First, he speaks of this community as being established to assist community members in need. However, a member’s ‘need’ would generally commence on the happening of an unfortunate event, such as a death in the family or the loss of a job. It would not arise precisely upon that time at which a circle or pyramid was filled with sufficient seed money. Mr. Amissih has no explanation for this. [ 23 ] Second, I heard no evidence that any person who had been gifted was gifted because of a spontaneous or continuing need that may have arisen. Surely Mr.

Amissih could have called someone within the community as a witness to confirm this. But, not one witness, not one community member, not one volunteer, and not even one member of his church was called to testify in support of his position. [ 24 ] Third, if the purpose of the community was to act as a charitable organization rather than what is obviously and simply a form of pyramid scheme or racket, why in the world would it be set up with a variety of different circles with differing monetary denominations?

One would think a true charitable community organization does not require this maze of buy-ins and payouts. Mr. Amissih has no answer to this. [ 25 ] Fourth, it is apparent, and Mr. Amissih concedes, that many of the community members are freely allowed to participate using fake names and aliases. These would include ‘Bamboo’, ‘Mable 5’, ‘Jackster’, ‘Yango 222’, ‘China Small’, and ‘Africa Gold’ to name a few. Mr. Amissih did not explain why this is done or why he, as the organizer, would allow it.

I would venture to say that this was probably done because its participants well know that pyramid schemes such as this are illegal, as noted in section 206(1) of the Criminal Code - and presumably, they do not want their real names known. [ 26 ] Finally, Mr. Amissih does not strike me as an ignorant man. He surely must have recognized the likelihood, if not the probability, that many of those who are gifted would continue with the scheme only for so long as excellent returns could be had and then step away. How in the world does that help the needy?

It certainly does not help those that are left with a loss after investing their money. They, in essence, become the needy. [ 27 ] For all these reasons I find Mr. Amissih’s evidence to be far from credible or reliable. Simply put, I am satisfied, more likely than not, that Mr. Amissih was actively engaged in overseeing and participating in a pyramid scheme that included, among other things, a kickback to him or his church of ten percent of the proceeds of some of the gifts that were given. I am satisfied, more likely than not, that Mr.

Amissih made the representations that the plaintiffs assert he made relating to the promise that one would not lose money in this scheme and would be guaranteed a significant return. I find these representations to be fraudulent and intentionally made for the purposes of inducing the plaintiffs to part with their money.

[28] That does not quite end the matter. There is a rather old turn of phrase that goes something like this: ‘If something seems to betoo good to be true, than it probably is’. I am satisfied that, generally speaking, a person cannot simply turn a blind eye to the reality ofwhat appears to be an investment that sounds too good to be true.

In that event, I think that it would have been incumbent on a person,like each of the plaintiffs, to conduct a more thorough investigation of what was being offered, and, in the instant circumstances I thinkthat each of the plaintiffs were negligent in not exercising a modicum of care before making their investments. Issues [29] With those facts in mind I am called upon to address the following issues: 1. Do the actions of Mr. Amissih give rise to a legal cause of action and if so, what is the nature of that cause of action? 2.

By law, can the plaintiffs be found to be contributory negligent by not conducting a more careful investigation of thescheme that was being presented to them? 3. If the plaintiffs have a cause of action and they are not contributorily negligent, then what is the proper remedy to begranted and how is it measured? 4. Are any of the parties entitled to court costs and if so in what amount? The Law [30] Do the actions of Mr. Amissih give rise to a legal cause of action and if so, what is the nature of that cause of action? [31] A broad and generous

interpretation of the plaintiffs’ handwritten statement of claim suggests allegations of fraud, deceit, andfraudulent misrepresentation. The elements of the tort of deceit or fraudulent misrepresentation are well established. The terms ‘deceit’and ‘fraudulent misrepresentation’ have been used interchangeably in Canadian case law.

The two causes of action have been treatedsimilarly as stated in Bozzo (Re), (Ont Sup Ct) at para 23: “This leads me to conclude that the cause of actionreferred to as the tort of fraudulent misrepresentation grew from the older cause of action referred to as the tort of deceit.” [32] Actual fraud is key to the tort of deceit as illustrated in Derry v Peek, [1889] UKHL 1 at 374 by Lord Herschell: “I think theauthorities establish the following propositions: First, in order to sustain an action of deceit, there must be proof of fraud, and nothingshort of that will suffice.” [33] Normally a plaintiff’s pleading should set out facts that, if proven, would establish the following essential elements of the tort asstated in Bruno Appliance and Furniture Inc. v Hryniak, 2014 SCC 8 at para 21, [2014] 1 SCR 126: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of thedefendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff’sactions resulted in a loss.

However, this is small claims court. Pleading is generally less than perfect. I am satisfied that the plaintiffs’ claim comes within thespirit of this cause of action. [34] A false representation includes express dishonesty, such as deceitful or false statements, and the deliberate failure to disclosematerial facts. In Village on the Park (Re), 2009 ABQB 497 at para 58, 497 AR 230 the Court cites, with approval, forms of falserepresentation set forth in L.N. Klar, Tort Law (4th Edition, 2008) at 669-70: “A successful action for deceit can be based on anincomplete disclosure - the so-called half-truth. . .

Active concealment by conduct may also constitute a fraudulent misrepresentation.”Mr. Amissih was actively engaged in organizing, overseeing, and promoting a pyramid scheme that included, among other things, akickback to him or his church of ten percent of the monies that were invested. Mr. Amissih had advised that the money circles wouldwork and that the plaintiffs were guaranteed to receive a significant return on their contributions in one or two weeks, depending on theamount of money contributed. In actuality, the plaintiffs did not recover the entirety (or any, in the case of Mrs.

Nelly Amadi) of theircash contributions to the money circles.

[35] I am satisfied that the representations were made with knowledge of this falsity. Mr. Amissih made the representations regardingthe investments, rate of return, and time frame knowingly, and in my view, to induce the plaintiffs to contribute to the money circles. Ihave determined that Mr. Amissih, as the operating mind of the HOTO community/pyramid scheme, had actual knowledge that theplaintiffs could not be guaranteed a return on their investments in a one or two-week period when the plaintiff’s contributed their moneyin the fall of 2020. I am satisfied that Mr.

Amissih well knew that a return as suggested was predicated on a continuing and sufficientsupply of new seed money, and that he could not possibly guarantee that this would occur. [36] I find that the false representations caused the plaintiffs to act.

A false statement must actually induce a plaintiff to act upon it, asstated in Parna v G & S Properties Ltd, (SCC), [1971] SCR 306 at 316 citing, with approval, Anson on Contract: Fraud is a false representation of fact, made with a knowledge of its falsehood, or recklessly, without belief in its truth, with the intentionthat it should be acted upon by the complaining party, and actually inducing him to act upon it. [37] Mr. Amissih advised the plaintiffs that once gifted, the giftee would then step into the last position on the circle and be re-giftedwhen their turn came around again. Mr.

Amissih stated that if one contributed $100.00, then that person would be gifted $700.00 withina week, and so on. Causation demands consideration of both reliance upon and the materiality of the false representation. The BritishColumbia Court of Appeal in Wang v Shao, 2019 BCCA 130 at para 29, 21 BCLR (6th) 225 quotes, with approval, George Spencer Bower in The Law of Actionable Misrepresentation, 3rd ed (London: Butterworths, 1974) at para 120: It is sufficient to prove that the representation was an inducing cause.

It is not necessary to establish that it was the inducing cause.Whether, if a full disclosure of the truth had been made, the representee would or would not have altered his position in the manner inwhich he did, is a question to which the law does not require an answer. It is enough if a full and exact revelation of the materialfacts might have prevented him from doing so—if it would have “given him pause”. [Emphasis Added] [38] In this case, the statement made by Mr.

Amissih that there would be a return on the investment in the money circles in one or twoweeks (depending on the amount contributed) was actually relied on and was accepted by the plaintiffs. I do not see how it could beargued that Mr. Amissih’s representation was not material – the plaintiffs were, after all, looking for an investment with significantreturns.

The law suggests materiality and reliance is subjectively assessed, as noted in Kelemen v El-Homeira, 1999 ABCA 315 at para 8, 250 AR 67 [Kelemen] citing Salmond and Heuston on The Law of Torts, 19th ed (London: Sweet & Maxwell, 1987) at 439: “Materiality” If the statement is actually relied on, it is no defence that the plaintiff was negligent or foolish in doing so, or that he had a fullopportunity of discovering the truth for himself. Consent is no defence. Every man has in law a right to believe and act on all lies toldhim by others with intent to deceive him.

Nor is it any defence to say that the representation is not “material”, or would not have induceda reasonable man.

The true question is whether the statement was a real inducement to the plaintiff: a representation may be material asbetween the parties, though not to a normal man. (Footnotes not reproduced) [Emphasis added] [39] The Court in Kelemen at (para. 10) discussed subjectivity by stating: “In other words, when dealing with the tort of deceit, theappropriate test to measure the materiality of the representation and reliance on it is a subjective not an objective test.” I have concludedthat each of the plaintiffs did in fact, rely on Mr.

Amissih’s representations. [40] As for the fourth element, I am satisfied that the plaintiffs’ actions resulted in a loss. The Supreme Court of Canada explained

this requirement in Angers v Mutual Reserve Fund Life Assn., (SCC), [1904] 35 SCR 330 at 340 by stating, in relation tothe appellants claim: “... he suffered no loss from the fraud he now complains of, and fraud without damage gives him no cause ofaction.” [41] In this case, the plaintiffs clearly contributed money based on the fraudulent representations made by Mr. Amissih. I accept theplaintiffs’ evidence regarding their monetary losses in the amounts that I will speak to shortly. [42] Issue number 1 is answered in the affirmative. I find that the actions of Mr.

Amissih give rise to the tort of deceit or fraudulentmisrepresentation. [43] By law, can the plaintiffs be found to be contributory negligent by not conducting a more careful investigation of the scheme thatwas being presented to them? [44] I think it is now settled law that in cases of intentional torts involving fraud, such as the tort of deceit or fraudulentmisrepresentation, tortfeasors cannot rely on contributory negligence: Manning v Dhalla, 2018 BCSC 2148 at para 44; Dhami v Bath,2014 BCSC 751 at para 101, Village on the Park (Re), 2009 ABQB 497 at para 189, 472 AR 230, Kelemen v El-Homeira, 1999 ABCA315 at para 26, 250 AR 67.

That being so, a lack of due diligence on the part of the plaintiffs cannot be relied on by the defendant. Byexample, the Alberta Provincial Court in Sloan v Black Sea Homes Corp., 2007 ABPC 231 at para 21 [Black Sea Homes] explains that: “... where the plaintiff’s contributory fault has contributed to the plaintiff’s loss, the plaintiff should bear part of the loss even where thedefendant’s fault was intentional.” However, the Court in Black Sea Homes noted one exception to a plaintiff being found contributorily negligent, and that is in cases offraud.

The Alberta Provincial Court explains this at para. 22: “Fraud has remained an exception only, I suggest, because of the moralopprobium attached to the label.” [45] This view has been endorsed by the Supreme Court of Canada in Performance Industries Ltd. v Sylvan Lake Golf & Tennis ClubLtd, 2002 SCC 19 at para 70, [2002] 1 SCR 678 where the Court quoted, with approval, Southin J., (as she then was) in United ServicesFunds (Trustees of) v Richardson Greenshields of Canada Ltd, (BC SC) at para 56.

She observed that “carelessness on the part of the victim has never been a defence to an action for fraud.” At paras. 63 and 64 she states: [63] …Once the plaintiff knows of the fraud, he must mitigate his loss but, until he knows of it, in my view, no issue of reasonable careor anything resembling it arises at law. [64] And, in my opinion, a good thing, too. There may be greater dangers to civilized society than endemic dishonesty.

But I can thinkof nothing which will contribute to dishonesty more than a rule of law which requires us all to be on perpetual guard against rogues lestwe be faced with a defence of “Ha, ha, your own fault, I fool you”. Such a defence should not be countenanced from a rogue. [46] While the plaintiffs were naïve, or even negligent when contributing to the money circles based on the representations ofguaranteed returns and time frames made by Mr. Amissih, by law Mr.

Amissih does not obtain any benefit thereby. [47] Issue number 2 is answered in the negative. [48] If the plaintiffs have a cause of action and they are not contributorily negligent, then what is the proper remedy to be granted andhow is the loss measured? [49] First, it is important to restate that the plaintiff’s claim for damages is grounded in tort, not contract.

It is based on the allegationthat the defendant wrongfully induced the plaintiffs to participate in the money circles by fraudulently misrepresenting the return ofinvestment that could be provided and how long it would take the plaintiffs to receive their money or ‘gifts.’

[50] When examining available remedies for the tort of deceit or fraudulent misrepresentation inducing a contract, it must be noted, asit was in Kelemen at para. 5, that: The tort action is founded in law whereas the contract action is based in equity. The difference affects the remedies and defences. Eithercan be the basis for a claim for damages but it is only the contract action that allows rescission.

The duty to mitigate is relevant to both. [Emphasis added] [51] In BG Checo International Ltd. v British Columbia Hydro and Power Authority, (SCC), [1993] 1 SCR 12 atparas 45 - 46 La Forest J. and McLachlin J. (as she then was), writing for the majority, described the measure of damages in contract andfor the tort of negligent misrepresentation in these terms: [45] Contract: the plaintiff is to be put in the position it would have been in had the contract been performed as agreed. [46] Tort: the plaintiff is to be put in the position it would have been in had the misrepresentation not been made. [52] Therefore, I find that the plaintiffs are entitled to damages they incurred through their contributions to money circles in theHOTO community and those damages in my view are equal to the amount contributed, less any monies that they received whileparticipating within the scheme. [53] It is a rather trite statement of the law to mention that the plaintiffs carry the burden of proof to show not only that they have aviable claim but also that they have suffered loss.

They also carry the burden of proof of showing the extent of that loss. The burden ofproof is generally described as proof on a balance of probabilities. Said another way: is it more likely than not that a party has beenwronged; is it more likely than not that a party has sustained loss; and if so, what is the extent of that loss? [54] I have already concluded that each of the plaintiffs have been wronged and I am satisfied that each have suffered a loss.Quantification of that loss as it relates to Nelly’s claim is not difficult. She gave Mr. Amissih $900.00 and received nothing in return.

Sheis entitled to the return of that sum together with pre-judgment interest. The date at which pre-judgment interest should run, in my view,is the date that she forwarded the funds, which I find to be November 28, 2020. I calculate pre-judgment interest on that sum to be $3.41. [55] Casmir’s claim is slightly more difficult. He asserts that he contributed $2,700.00 in total but only received $800.00 back. Mr.Amissih asserts that Casmir only contributed $1,200.00 and received back in excess of that amount. However, the multiple books thatMr. Amissih keeps are not, in my view, completely accurate.

By example, he indicates that at one point Casmir received $510.00 andCasmir disputed this. The books reflect payment to Casmir of that amount but the name of the person signing for the monies is notCasmir, and this Court heard that a participant is to sign the book as a pre-condition of receiving the ‘gift’. Arguably, another personaccepted the funds instead of Casmir, but Casmir is firm in his conviction that he did not authorize anyone to do so. Where the evidenceof Mr. Amissih varies with Casmir’s I have no hesitation in accepting the evidence of Casmir.

He came across as credible and reliable.He was not challenged in any meaningful way in cross-examination. Comparatively speaking, Mr. Amissih did not come across as eithercredible or reliable. I accept that Casmir sustained a loss of $1,900.00, and award him damages in that amount. As his payments weremade over time, I find that pre-judgment interest should run from the date of the last payment in, which I find to be November 28, 2020. Pre-judgment interest on that sum equates to $7.20. [56] Quantification of Emmanuel’s claim is the most complicated.

In his statement of claim he sought $10,600.00 and did notarticulate the basis upon which that amount was calculated. As he gave his evidence, he asserted he made contributions totaling$13,200.00 and received three separate gifts of $800.00, $1,620.00, and $2,500.00. This would mean that his claim should realistically belimited to $8,280.00. [57] However, Mr. Amissih maintained that a thorough review of his books evidence that Emmanuel only paid in $6,600.00. BecauseEmmanuel received $4,920.00, Mr. Amissih asserts that the net loss is only $1,680.00. However, a review of Mr.

Amissih’s bookssuggests (I say suggests because it is a wholly unsatisfactory manner of accounting), that Emmanuel may have contributed as much as$9,600.00. [58] While the absence of any corroborative evidence to substantiate the actual amount that Emmanuel contributed concerns me,

Emmanuel’s reply to this is simply that he as a believer, he assumed that Mr. Amissih as a man of God and as a leader of a church would carefully record contributions and on that basis would never have thought to ask for receipts. This is a compelling argument. I suspect a good many people on this earth would never think to distrust a man of God. In addition, I have found Emmanuel to be credible and reliable, but not Mr. Amissih. I also note that at trial Emmanuel was quick to correct and amend his claim to a lower number after due consideration of his original accounting error.

In addition, the evidence that he led tended to be substantiated by a recollection of specific events that lend substance and texture to his assertions. [59] Comparatively speaking, Mr. Amissih was at pains to point out that his volunteers took the contributions and not him directly. He cannot speak directly to the actual transactions because they were handled by his ‘volunteers’. At best, his evidence is predicated on hearsay. Arguably his position could have been backed up if one of his volunteers attended at trial to give evidence. But he called no one to support his assertions.

For these reasons, I am satisfied, more likely than not, that Emmanuel’s amended accounting is to be preferred over Mr. Amissih’s reliance on hearsay and a poorly maintained register. I accept that Emmanuel more likely than not sustained a loss of $8,280.00. I award him that sum together with pre-judgment interest which I find should accrue commencing December 15, 2020. The interest equates to the sum of $31.14. [60] Issue number 3 is answered as follows: the plaintiffs are entitled to be placed into the same position they would have been in had they not participated in Mr. Amissih’s pyramid scheme.

Nelly is entitled to damages and pre-judgment interest in the combined sum of $903.41; Casmir is entitled to damages and pre-judgment interest in the combined sum of $1,907.20; and Emmanuel is entitled to damages and pre-judgment interest in the combined sum of $8,311.14. [61] Are any of the parties entitled to court costs and if so in what amount? [62] The plaintiffs, Mr. and Mrs. Amadi and Mr. Opara, were successful in this action and entitled to their costs. Costs are intended, in part, to offset the time and expense of having to proceed to trial.

The Supreme Court of Canada in British Columbia (Minister of Forests) v Okanagan Indian Band , 2003 SCC 71 at para 25 , [2003] 3 SCR 371 states: “... modern costs rules accomplish various purposes in addition to the traditional objective of indemnification.” Each of the plaintiffs have proven successful. Pursuant to section 36(1) of The Small Claims Act , 2016 , SS 2016, c S-50.12 I award the filing fee for issuing the claim in the sum of $100.00 and the costs of service in the sum of $15.00. I can also award the plaintiffs general costs in this action pursuant to section 36(3) of The Small Claims Act, 2016 .

In my view, this was a time-consuming matter, and the defendant’s conduct was deceitful. The plaintiffs were forced to sue a person whose office is supposed to be beyond reproach - a Pastor - to recover monies that were lost under an illegal a pyramid scheme established by Mr. Amissih. I award court costs in an amount equal to ten percent of the damages obtained by each plaintiff, as allowed pursuant to

section 6 of The Small Claims Regulations, 2017, RRS c S-50.12 Reg 1 . This equates to $90.34 in favour of Nelly; $190.72 in favour of Casmir; and, $831.11 in favour of Emmanuel. As Emmanuel bore the burden of the filing fee and cost of service, he is granted the out-of-pocket costs referred to above, in the additional sum of $115.00. [63] In conclusion, Nelly is granted judgment in a sum totaling $993.75; Casmir is granted judgment in a sum totaling $2,097.92; and Emmanuel is granted judgment in a sum totaling $9,257.25. I direct that these amounts be paid immediately. _________________________ P. Demong, J