1025996 B.C. Ltd. v. Chahal

2024 BCSC 1058 1025996 B.C. Ltd. v. Chahal

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: 1025996 B.C. Ltd. v. Chahal, 2024 BCSC 1058 Date: 20240619 Docket: S1710096 Registry: Vancouver Between: 1025669 B.C. Ltd. Plaintiff And: Harjit Singh Chahal, Simarjeet Kaur Chahal, Satish Kumar, and Prakash Kumar Defendants Before: The Honourable Madam Justice Forth Reasons for Judgment Counsel for the Plaintiff: D. Moonje Counsel for the Defendants: J.A. Jaffer, K.C. Place and Dates of Trial: Vancouver, B.C. October 30, 31, November 1-3, 6-7, 2023, and January 29-31, 2024 Place and Date of Judgment: Vancouver, B.C. June 19, 2024 Table of Contents Introduction 4 The Parties and Their Agents 4 The Property 5 The Purchase of the Property 8 Events Leading up to the Property Tour 8 The Property Tour 10 Mr. Toor's Evidence 11 Harjot's Evidence 11 Mr. Kumar's Evidence 12 Mr. Chahal's Evidence 12 Offers 13 The Option 15 The Execution of the Option 18 Post-Completion Events 19 Issues 21 Credibility and Reliability 21 Legal Principles 21 Position of the Parties 23 Analysis 24 Issue 1: Is any evidence of the realtors admissible, and if so, what weight should be given to it? 25 Legal Principles 25 Position of the Parties 26 Analysis 28 Issue 2: Should there be an adverse inference drawn against the defendants for their failure to call S. and N. Sekhon? 31 Legal Principles 31 Position of the Parties 32 Analysis 32 Issue 3: Is the Action

Barred by the Expiration of the Limitation Period? 34 Legal Principles 34 Position of the Parties 35 Analysis 36 Issue 4: Was a Fraudulent Misrepresentation made by the Defendants? 37 Legal Principles 37 Position of the Parties 38 Analysis 39 Issue 5: Does the Exclusionary Clause in the Contract apply? 42 Issue 6: What damages, if any, should be awarded to the plaintiff? 42 Conclusion 42 Introduction [1] The plaintiff purchased a blueberry farm located at 15555 66th Avenue, Surrey, BC (the "Property" or "Blueberry Farm") and claims that the defendants, or agents on their behalf, made a fraudulent misrepresentation that blueberries had been planted on 72 acres of the Property. [2] A complicating factor in this case is that the majority of the negotiations for the purchase of the Property were between the realtors acting for each party, both of whom passed away prior to the trial. There was no sworn evidence from either realtor. As such, an issue arose as to what weight, if any, should be put on any documents made by the realtors and the evidence of what the realtors said. [3] A further complicating factor is that the purchase of the Property was not contained in one contract of purchase and sale. There were multiple different versions of the contracts of purchase and sale, and ultimately an option to purchase dated October 18, 2014 (the "Option"). The Option was finally

exercised on February 17, 2015 with the purchase price being $6,900,000 plus GST. The Parties and Their Agents [4] Where necessary in these Reasons, I refer to some individuals by their first name to distinguish them from their family members, meaning no disrespect. [5] Amritpal Toor came to Canada in 1991. He is married to Inderjit Toor and they have three children. [6] Mr. and Ms. Toor incorporated a company, 1015705 B.C. Ltd. ("1015"), which is the corporate entity that entered into the Option. [7] The plaintiff in this action, 1025669 B.C. Ltd., ("1025") was incorporated in October 2017, with the directors being Mr. and Ms. Toor's son, Harjot Toor ("Harjot"), and their daughter, Dapinderpal Toor. [8] In June 2014, Mr. Toor owned a blueberry farm in Mt. Vernon, Washington. This was a 72-acre farm with 35 acres of planted blueberries. He also owned an empty lot in Delta, BC. Mr. Toor was looking to purchase another blueberry farm. He enlisted the services of a realtor, Ray Lewis, of Sutton Group-West Coast Realty. [9] Harjot is an engineer and has worked in blueberry farming since 2013. He was involved in managing the Mt. Vernon blueberry farm and subsequently ended up assisting with the Blueberry Farm. [10] The defendants, Simarjeet Chahal ("Ms. Chahal"), Harjit Chahal ("Harjit"), Satish Kumar ("Mr. Kumar"), and Prakash Kumar, purchased the Property in 2005, with the

Chahal's having a 50 percent interest and the Kumar's having a 50 percent interest. [11] Ms. Chahal is married to Amarjit Chahal ("Mr. Chahal"). Harjit is their son. Though not a registered owner, Mr. Chahal was the operator of the Property. Ms. Chahal and Harjit looked after the labour. The defendants agree that Mr. Chahal was acting as the agents of the sellers throughout the sale of the Property. [12] Mr. Kumar works as an insurance agent. He was a partner with Mr. Chahal in the Property. Mr. Kumar says he did the accounting for the Blueberry Farm, but he was not physically involved. Mr. Chahal described Mr. Kumar as a "silent partner". [13] To sell the Property, the defendants engaged the services of Peter Zebroff, of Royal Pacific Realty Corp. Mr. Zebroff acted as the defendants' realtor when they initially purchased the Property. In 2014, no listing agreement was entered into and no fact sheet was provided. Mr. Kumar testified that Mr. Chahal did most of the communicating with Mr. Zebroff. The Property [14] The Property extends from 64th to 68th Avenue. It consists of 95.97 acres in total. It is located in the Agricultural Land Reserve ("ALR"). [15] When the defendants first purchased the Property in 2005, it was covered in trees and shrubs. It was purchased for the purpose of creating a blueberry farm. The land was cleared and in 2008 and 2009 blueberries were planted.

Mr. Chahal and his family were responsible for the operation of the farm. Twenty-three to 25 acres of the Property were not suitable for agriculture. The blueberries were planted on the remaining approximately 72 acres. On the 72 acres, there were five ditches, four creeks, and one river. [16] Five varieties of blueberries were planted in rows: duke, draper, reka, elliot, and bluecrop. At the end of the rows, on each side, there was a 45-foot turnaround area for the machines. [17] Access to the Property was off 66th Avenue. To access the Property, you have to drive over 10 metres on a neighbour's property. [18] The defendants built a bridge across a ditch to provide access from 68th Avenue. Mr. Chahal testified that the City was aware of this but he did not get a final inspection for it. He testified that this became a legal access to the Property. The City provided them with a key to the gate that was across the road. [19] While the defendants owned the Property, they initially planned to build two houses on it. They had two pre-loads brought onto the Property. Mr. Chahal testified that they got a permit from the City of Surrey for the pre-loads and paid a fee of $10,000. Mr. Kumar testified that he decided he did not want to build a house because it was too dusty. Mr. Chahal testified that he changed his mind about building a house for his family in 2011 after he had a second

heart attack. [20] Gravel was also placed on the Property with a plan for truck parking. There were four to five trucks parked, paying $250/month. Mr. Chahal testified that at some point in time he received a letter from the ALR Commission saying that you could not park more than five trucks on the Property. [21] Mr. Kumar testified that there was also a plan to put greenhouses on the Property. Mr. Chahal testified that the previous owner wanted a greenhouse, but the City did not permit them to move forward with a greenhouse. He said that he never tried for a greenhouse. In cross-examination, Mr. Chahal testified that they wanted to make a nursery where the gravel was placed. [22] Mr. Chahal agreed that in November 2010 an application for crop insurance was made. On schedule L-1, attached to the application, it is written that there are 60 planted acres of blueberries. Mr. Chahal agreed he gave that information. He also provided the information that there were five varieties of blueberries, as written in the Blueberry Field Inventory Document, attached as Schedule F-10. This document provides: Variety Planted Acres Reka 14 Duke 12 Draper 12 Bluecrop 16 Elliott 6 [23] Mr. Chahal agreed that this added up to approximately 60 acres. He testified that he told the insurance company that the farm was between 70 and 72 acres, but the insurers told him they needed to know only the

planted acres, not the other land. He said that he guessed that approximately 60 acres were planted. The insurers used a computer program to measure and told him that approximately 55 to 57 acres were planted. Mr. Chahal did not know the number of plants, but he testified that when the Property was being put up for sale he knew that there was basically 55-acres of planted blueberries in a 60-acre plot. [24] Mr. Chahal agreed that in 2010, with 60 harvested acres of blueberries, there was 170,000 lbs of production. In 2011, the total production weight was 503,000 lbs. In 2013, there was a low harvest due to pollination issues. Mr. Chahal testified that in 2014 they had a good year and produced 700,000 to 800,000 lbs. [25] Mr. Chahal testified that when the Property was listed for sale it was producing 730,000 lbs annually. The Purchase of the Property Events Leading up to the Property Tour [26] After the defendants decided to sell, they contacted three or four realtors. They decided to go with Mr. Zebroff. Mr. Zebroff and Mr. Swaron Sekhon ("Mr. S. Sekhon") came to the Blueberry Farm. They were both realtors and had agreed to split the commission. Mr. Chahal showed them around. He told Mr. Zebroff there were five varieties of blueberries and named them. He told them he had 700,000 lbs in production and was predicting between 700,000 to 800,000 lbs depending on the weather. He

said there was 97 acres with 20 to 25 acres of empty land and the rest were planted with blueberries. Mr. Chahal does not know where the idea of 72 acres came from. There were no written details provided about the Blueberry Farm to Mr. Zebroff. Mr. Kumar testified that he did not provide to Mr. Zebroff any information regarding blueberry varieties and acreage. [27] Mr. Toor testified that Mr. Lewis sent him information about a couple of farms for sale on June 9, 2014. Both of these properties had young berries and the farms were not in full production. Mr. Toor told Mr. Lewis he was not interested in those farms since the plants were too young for him. [28] On June 20, 2014, Mr. Lewis sent Mr. Toor some information about another property for sale (the "Lewis Memorandum"). The attached information stated:

FARM OPPORTUNITY At 6480 152 St. & 15555 66 Ave., Surrey B.C. 95.97 Acres Blueberry Production Price: $7,600,000 Contact: RAY LEWIS (604) 812 9733 E. & O.E. The information contained in this brochure has been obtained from the owner & other sources deemed reliable, but is not guaranteed by Sutton Group-West Coast Realty or Ray Lewis. Prospective buyers should make full independent investigation of all facets of the property, including legal, accounting, taxation and appraisal prior to purchase. [29] Also provided was information about the Blueberry Farm including that it consisted of two lots, Lot A being 25.07 acres and Lot B being 70.9 acres, zoned A-1 (general agricultural zone) located inside the ALR, and the following: Notes: 23 acres has been prepared for greenhouse construction and is presently used for truck parking. Seller is prepared to sell the lots separately. Plantings: Plantings were conducted in 2008 & 2009; mature bushes and good production. [30] Mr. Toor agreed that from the realtor he understood there were 23 acres of vacant land. He also later saw the vacant land with no plantation. [31] The key document the plaintiff relies on is the attachment to the Lewis Memorandum that provided information on the berry varieties and acres. It states:

BLUEBERRY FARM At 6480 152 St. & 15555 66 Ave., Surrey, B.C. Berry Varieties: Dueck 20 acres Rieg 7 - 8 acres Draper 14 acres Elliot 8 acres Peuropol 20 acres Blue Bessy 2 acres Total: 72 acres Additional Notes: Price: $7,600,000 including 25.07 acres having a value of $1,500,000 Existing mortgage: Approx. $2,500,000 with Farm Credit Canada [32] I note that the defendants take issue with any reliance on these documents on the basis that they are inadmissible as hearsay evidence. For the same reason, they also object to any reliance being put on evidence of what the realtors said. I will address the hearsay issue separately in these Reasons. [33] Mr. Toor testified that he understood that there were not actually two properties for sale and the reference to the 6480 address was incorrect. [34] Mr. Chahal testified that he met Mr. and Ms. Toor a couple of times in June or July 2014. He testified that they came onto the Property, as the front gate was open as berry picking had started for the season, and that Mr. Toor told him he was interested in buying the Property. He recalls that at one point, Mr. Toor got on his ATV and he showed him around the farm while Ms. Toor, his wife, sat in the car. Mr. Chahal says that they did not discuss price or production on these occasions. [35] Mr. Toor's evidence is that he drove by the Property but there was a locked gate and it said private

property. He could not see the farm. He sent an email to Mr. Lewis on July 3, 2014 at 9:12 p.m. stating: Hi Ray, Sorry to reply so late. I would like to see the property. I did drive by but could not see the berries as the gate is locked. Also if you can find out how much was production last year? Thanks. [36] On July 7, 2014 at 10:37 a.m., Mr. Lewis responded advising: I will ask details of last year's production and ask for a time when we may go and inspect the property. I assume a day very soon and during working hours would suit you? [37] Mr. Toor testified that he told Mr. Lewis he was only interested in the planted acres and not the non-planted acres. Mr. Toor worked out that the price for the 72 planted acres was about $84,000 per acre. He took the purchase price of $7.6 million, took out the $1.5 million for the 25.07 acres of vacant land, and arrived at $6.1 million for the planted acres. The Property Tour [38] On July 8, 2014, there was a property tour of the Blueberry Farm; however, the evidence of the witnesses on the property tour differs significantly. Mr. Toor's Evidence [39] Mr. Toor testified that he showed up at the Property on July 8, 2014 with his son, Harjot. He met Mr. Zebroff and Mr. Lewis, the realtors. The first time Mr. Toor met with Mr. Zebroff was at the farm. Mr. Chahal was also present. After introductions, they got into the van with Mr. Chahal

driving. They drove through the blueberries and Mr. Chahal talked about the different varieties, but it was not detailed. Mr. Toor does not recall any discussions in the van about the size of the farm nor about only making an offer on the planted land. [40] Mr. Toor agreed that initially he could not remember if his son was with him on the Property tour. He says that was a mistake and he found out that his son was with him. [41] Mr. Toor testified that after the tour there was no discussion about the price. [42] Mr. Toor agreed that prior to making the offer, he did not talk to the owners of the Property about how many acres of land were planted with blueberries or anything of that nature. Mr. Toor does not recall getting any details of the prior year's production prior to making an offer. [43] Mr. Toor's evidence was that he had not met with Mr. Kumar to discuss the farm prior to the offer being drawn up. Harjot's Evidence [44] Harjot testified that his father had told him that the Property was 97 acres total and that 72 of those acres were planted and the rest were empty. [45] Harjot testified that he attended the Property for a tour. He met Mr. Lewis, Mr. Zebroff, and Mr. Chahal, who gave a tour in his van. Mr. Sekhon was not there. The van tour took about 30 minutes. During the tour, Mr. Chahal described the various varieties of blueberries and that there were eight acres

of elliot variety blueberries planted. Mr. Chahal also provided production numbers, including that the estimated production in 2014 was 800,000 lbs, but in 2013 it was lower because of a pollination problem. In particular, they had spread cane sugar on the leaves and the bees were attracted to the leaves and not the flowers. [46] Harjot testified that Mr. Kumar was not present in the van. [47] On the ride home, Harjot discussed with his father what he did and did not like. He thought the berries looked well-maintained and they were happy with that. He recalls telling his dad that he was not interested in the empty acres since it had no ability to pay for itself. [48] Harjot told his father that he was present for the Property tour and that is why his father changed his story. Mr. Kumar's Evidence [49] Mr. Kumar testified that on July 8, 2014 there was a van tour with himself, Mr. Lewis, Mr. Zebroff, Mr. Toor, Mr. Chahal, and Mr. S. Sekhon present. He says that Harjot was not there. He says there was no discussion about anything but everyone was watching the blueberries. The tour was about 20 to 25 minutes. After the tour, they got out of the van and then started discussing prices. There was no discussion about the blueberries. They were standing on the vacant land near the trailers. The asking price was $7.6 million but they settled on $6.9 million for the entire plot. There

was a discussion about the vacant land and the Blueberry Farm and a discussion that the sellers would stay on as partners and keep 16% (approximately 16 acres). Mr. Chahal's Evidence [50] Mr. Chahal remembers that Mr. Zebroff, Mr. Lewis, Mr. S. Sekhon, Mr. Toor, and Mr. Kumar attended the tour on July 8, 2014. He testified that this was the third time Mr. Toor came to look at the farm. He said that Harjot was not there and Mr. Chahal testified that he had never met him in his life. During the tour, Mr. Chahal pointed out the different blueberry varieties. He denies any discussion about production. After the tour, they went to a vacant area near a trailer. They negotiated over the price. Mr. Chahal wanted $7.6 million based on $80,000 per acre. They ultimately agreed on a price of $6.9 million. Offers [51] Mr. Toor testified that, after the tour, he talked to Mr. Lewis on the phone, told him the price, and to write up an offer. Before the removal of subjects, Mr. Toor attended at the City of Surrey and he was told there were no pending issues. [52] The evidence about the offers was confusing since complete copies of the various contracts of purchase and sale were not produced at trial. [53] Mr. Toor testified that he made an initial offer of $5,813,500 for the 72 acres of planted blueberries only. The offer is dated July 10, 2014. Mr. Toor initialled it. Only the first two pages

of this offer were produced at trial. Mr. Toor testified that he wanted to offer about $80,000 per planted acre. [54] There was another offer dated July 10, 2014, that had a typed purchase price of $6,975,000 which was crossed off with a handwritten price of $5,813,500. Below, under "purchase price", the following is written in handwriting: "Buyer is buying 84.64% approximately". Mr. Kumar testified that it is his handwriting on this offer. This offer is signed by the parties. [55] The seller's warranties at clause 23 states on page 7 of 8: a) The property contains 95.97 acres. b) The property does not contain toxic contaminants. c) There are no orders or known anticipated orders against the property from the City of Surrey. [56] This page is somewhat confusing since it refers to a contract of purchase and sale dated July 8, 2014, which was the date of the Property tour, but which was never produced at the trial. [57] Mr. Kumar testified that Mr. Zebroff added the $75,000 to the agreed purchase price of $6.9 million. This was added to reflect a credit of $75,000 for the 2014 fruit crop that was already being harvested. [58] On July 11, 2014 a contract of purchase and sale addendum was signed by the purchaser and sellers providing additional terms at clause 41: Subject to the buyer on or before August 1, 2014 receiving and approving: a) copy of the current property title report

from the seller; b) property disclosure statement from the seller; c) List of equipment available for purchase by the buyer at prices to be negotiated or allow the seller to dispose of the items not required by the buyer; d) Complete set of financial statements describing the farming operation for the past three years and filed with CCRA for 2011, 2012, and 2013, 2014 (PROJECTION), e) The buyer receiving a written approval for the necessary financing. [59] There was a second contract of purchase and sale addendum dated July 11, 2014 signed by all the parties. This one references a shareholders' agreement to be drafted and agreed to by July 23, 2014. It states that the seller would remain a partner with an interest in the property of approximately 16%, with the purchasers buying approximately 84%. The terms included making an application to jointly attempt to subdivide approximately 24 acres of land and rezone it. There is also a reference to a price of $72,656 per acre in this addendum. [60] Mr. Toor testified that there were some further negotiations on how to deal with the unplanted acres of blueberries since he was not interested in those "empty acres". There were discussions on how Mr. Toor could purchase only the planted acres when the Property was held as one title. In the end, Mr. Toor says he purchased the whole thing. Mr. Toor testified he was paying $80,000 for the

planted acres and $50,000 for the empty acres. [61] Mr. Kumar testified that the price per acre for the entire parcel was $72,656. He denies that Mr. Toor was looking to buy the planted acres at the price of $80,000 an acre. [62] On July 18, 2024, another offer was signed. It was for a purchase price of $6,900,000 and Mr. Toor testified that it was for the whole property. His view was that he was getting the empty acres for $1.1 million (a $400,000 discount from the original price of $1.5 million). Mr. Kumar's understanding was that Mr. Toor had changed his mind and wanted to buy the whole parcel. As part of this offer, the sellers offered to provide a carry-back second mortgage in the approximate amount of $2,525,000 if the buyer was unable to obtain permanent financing. Mr. Toor would also undertake to pay the existing Farm Credit Canada ("FCC") monthly payments of approximately $14,000 on the total first mortgage with an approximate balance of $2,650,000 commencing on November 30, 2014. [63] The subject removal date was extended from August 1 to 8, 2014 and the purchaser paid the $150,000 deposit. The subject conditions were waived by the buyer on August 6, 2014. Mr. Toor testified that he received a copy of the current title. He does not recall receiving and did not locate a property disclosure statement. He did receive a complete set of financial statements. [64] There

were further negotiations between the parties and ultimately it was agreed that the Option be entered into. Mr. Kumar testified that it was Mr. Toor's idea to have an option to purchase since Mr. Toor was having difficulty getting a mortgage. Mr. Toor testified that it was Mr. Kumar's idea. The Option would be in the name of 1015. The parties agreed that the solicitors would prepare the appropriate documents to clarify the agreement of the parties and give effect to the transaction. The Option [65] On October 8, 2014, the parties entered into another contract of purchase and sale addendum in which the purchaser agreed to register an option to purchase. This addendum required that the purchaser make monthly payments of $14,600.00 to the seller to reimburse the sellers for their mortgage payments in favour of FCC commencing on December 1, 2014 until November 30, 2017. [66] The Option is dated October 18, 2014 and is signed by Mr. and Ms. Toor, on behalf of 1015 as the buyer, and the sellers. Mr. Toor's evidence is that this document was prepared by the solicitor acting for the sellers and that he did not retain a lawyer to review this agreement. Mr. Kumar testified that they jointly agreed to hire Sukhdeep Sukhija, as the lawyer, and Mr. Toor agreed to pay the lawyer's fees. [67] Of significance in the Option are the following terms: A. The Seller is the registered and beneficial

owner of real property located at 15555 66 Avenue, Surrey, BC legally described as (the "Property"); B. The parties have executed a valid legally binding contract of purchase and sale for commercial real estate dated July 18, 2014 together with addenda thereto (the "CPS") related to the Property. The CPS and addenda is attached herewith as Schedule "A"; C. The understanding of parties has undergone a change since the CPS was originally executed and they wish to modify the terms of the CPS. The parties have determined that execution of successive addenda to the CPS is creating a confusion and making it complicated and uncertain. As such the parties have agreed to have the CPS merge into this Agreement whereby the Property, parties, purchase price together with deposit paid will be assigned over onto this Agreement. The commissions owed to the listing and selling real estate agents on the CPS will also be carried over to the Agreement. However, the transaction originally contemplated and agreed in the CPS will be void and of no effect upon due execution of this Agreement. This Agreement will reflect the new understanding and agreement of the parties with respect to matters contained herein; and D. The Seller and the Buyer wish to enter into this Agreement to formalize their discussions, understanding and new agreement about their interest in the Property.

1. PROPERTY The parties agree the Seller is selling the Property on "As Is" basis. The Buyer will not acquire any ownership rights to the equipment or assets on the Property.

2. OPTION TO PURCHASE 2.1 The Seller will remain the registered and beneficial owner of the property. On or before October 21, 2014 the Buyer will register an Option to Purchase against the Property (the "Option"). The Option will be registered subsequent to the following charges currently registered on title to the Property: 2.2 The Option must be exercised by the Buyer on or before November 30, 2017 otherwise the Option will lapse and all monies paid hereunder this Agreement absolutely forfeited to the Seller. 2.3 Prior to registration of the Option, the Buyer will deliver a duly executed Form C release of the Option 3. PURCHASE PRICE The Purchase Price of the Property is SIX MILLION NINE HUNDRED THOUSAND DOLLARS ($6,900,000.00). GST is NOT included in the Purchase Price.

4. DEPOSIT A non-refundable deposit of ONE HUNDRED THOUSAND FIFTY THOUSAND DOLLARS ($150,000.00) has been paid by the Buyer to the Seller ("First Deposit"). A further non-refundable deposit of ONE MILLION FIVE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($1,575,000.00) ("Second Deposit") will be delivered on or before 5 p.m. on October 21, 2014 (First Deposit and Second Deposit hereinafter collectively referred to as the "Deposit"), For greater certainty, the Buyer and the Seller agree that the Deposit is absolutely non-refundable and will be absolutely forfeited by the Buyer to the Seller as liquidated damages should this Agreement not complete due to any reason. However, if the Agreement completes in accordance with the terms and conditions herein contained, then it will [be] adjusted towards the Purchase Price owed by the Buyer to the Seller for purchase of the Property.

6. POSSESSION AND CONSIDERATION THEREOF 6.1 The Buyer will get possession of the Property on November 1, 2014. 6.2 In consideration of the Seller giving possession of the Property to the Buyer, the Buyer covenants that: (a) Effective December 1, 2014 it will make monthly interest only payments ("Rent") in the sum of TWENTY-ONE THOUSAND FIVE HUNDRED SIXTY-TWO DOLLARS FIFTY CENTS ($21,562.50) The Rent will not be considered a deposit nor will it be counted towards the Purchase Price. It will be totally independent obligation of the Buyer and will be a consideration for possession and use of the Property.

14. LEGAL ADVICE The Seller and the Buyer have signed this Agreement after having obtained or waived the right to obtain legal advice about the terms of the Agreement and their respective rights and liabilities arising there from. Both parties have been afforded an opportunity to obtain legal advice before signing the Agreement. [68] I note that the CPS and addenda were not attached as Schedule "A" to the copy of the Option tendered at trial. [69] The second deposit was paid. [70] Mr. Toor testified that his understanding was that he would be making the payments to the sellers to cover the mortgage the sellers had with FCC. [71] The Option was registered against the title to the Property on October 21, 2014. [72] Mr. Toor testified that he took possession of the Property on November 1, 2014. The Execution of the Option [73] Mr. Toor testified that in December 2014 he attended at Mr. Kumar's office and was told that the Kumar's had a property in Calgary with an outstanding mortgage with the FCC of $7 to $9 million, which the FCC had refused to renew. Mr. Toor says that Mr. Kumar raised the issue that there was a chance that FCC may also recall the mortgage on the Property. Mr. Kumar suggested that the Property should be transferred into Mr. Toor's hands as soon as possible. Mr. Kumar offered to provide a second mortgage to help facilitate the transaction. Mr. Kumar testified

that he told Mr. Toor that since he had given personal guarantees on the Calgary property he wanted to give Mr. Toor a heads up that he should take title to the Property as soon as possible. Mr. Kumar's concern was that Mr. Toor might lose the Property. [74] Mr. Toor asked Mr. Kumar for confirmation of this information and Mr. Kumar provided him with two letters dated March 30, 2015 from a lawyer acting for the FCC advising that a loan to an Alberta numbered company had matured and become fully due and payable on February 2, 2015. The outstanding loan was in excess of $7.3 million. The company was given 20 days to pay the loan. [75] Mr. Toor testified that after he decided to exercise the Option, the FCC asked for the 2014 production for the Blueberry Farm. Mr. Toor asked Mr. Kumar for this information and Mr. Kumar provided him with a letter to confirm the total blueberry production in 2014 was 853,000 lbs. Mr. Kumar testified that Mr. Toor brought the document to him and asked him to sign it. Mr. Toor explained that he needed help getting a mortgage and that it was based on a gross revenue of $525,000 and a price of 62 cents per pound. Mr. Kumar says that he had no knowledge of the Blueberry Farm's production in 2014. [76] Mr. Toor agreed to execute the Option and purchase the Property. He decided to have the Property purchased by 1025, a company owned by his son and

daughter. A second mortgage was provided by the sellers in the amount of $770,000. The Property was transferred into the name of 1025 with a completion date of February 13, 2015. Post-Completion Events [77] In October 2015, Mr. Toor found out that he had to purchase crop insurance as the crop insurance was scheduled to expire on October 31, 2015. Mr. Toor testified that he went to buy crop insurance in November 2015. He attended at the Ministry of Agriculture (the "Ministry") in Abbotsford to apply for crop insurance. He met with Jasbir Mann. Mr. Mann pulled up the file and showed Mr. Toor a map that showed the varieties of blueberries and stated that only 54.68 acres were planted. [78] Jason Klassen, crop risk specialist with the Ministry, testified on behalf of the plaintiff. He explained that the mapping is done by hand with an individual holding a GPS and walking each section of the Property. One of the purposes is to exclude ditches, rivers, creeks, rights of way, pathways, and buildings. The mapping is done to find out just the planted area. [79] As a result, Mr. Toor went to see Mr. Kumar to show him the map. Mr. Toor testified that Mr. Kumar said that if Mr. Toor did not like the farm he could give it back. He suggested that perhaps the original estimate included the ditches. Mr. Kumar does not recall seeing any document but does recall telling Mr. Toor if he was not

happy he could return the farm to him and he would pay back all the money. His recollection is that Mr. Toor said it was a good farm. [80] Mr. Toor returned to Mr. Mann's office and asked if the map included ditches. Mr. Mann offered to go out and measure again. On November 18, 2015, Mr. Mann attended at the Property and walked around the perimeter of the planted blueberries using a GPS. The measurement was 60 acres. [81] Mr. Toor brought the new GPS mapping done by Mr. Mann to show Mr. Kumar. He met with Mr. Kumar and Mr. Chahal. Mr. Toor testified that Mr. Chahal told him that he should sue the realtors if they had given him the 72-acre number and that Mr. Kumar threatened him with the possibility of foreclosure on the Property. Mr. Kumar denies ever threatening to call the second mortgage. Mr. Toor testified that after speaking to the realtors he decided that he should not sue them since there was no reason to suspect the realtors had made up the number. [82] In some fashion, Mr. Toor received a copy of a document allegedly prepared by Mr. Zebroff (the "Zebroff Notes"). The document is handwritten and bears the stamp of Peter Zebroff, Realtor. The document lists varieties of blueberries and a total area of 72 acres. The information on this document matched the information provided by Mr. Lewis. Mr. Toor testified that he got the document from Mr. Lewis sometime after

November 20, 2015. He understands that Mr. Lewis got it from Mr. Zebroff and that the Lewis Memorandum was based off of this document so he decided not to pursue a lawsuit against Mr. Lewis. Mr. Toor further testified that he then met with Mr. Zebroff who confirmed the document was his and that information about the varieties and acres had come from Mr. Kumar. [83] Mr. Toor testified that he continued to have dealings with Mr. Kumar to purchase insurance policies. At some point in time, he attended at Mr. Kumar's office and asked him why he had lied about the number of planted acres. Mr. Toor testified that Mr. Kumar told him that they used to say 60 acres but then a realtor, Mr. Nav Sekhon ("Mr. N. Sekhon"), told him that they should start saying 72 acres so they could get more money for the farm. Mr. Chahal denied that he was coached by a realtor to say 72 acres of blueberries. [84] Mr. Toor testified that he wanted to build a house on the Property. He approached the City of Surrey and learnt that there was no legal access from 66th Avenue. He also learnt that the ditch crossing on 68th Avenue was not legal. Mr. Toor hired an engineer and was advised that the cost to remove the old ditch crossing would be $30,000 and to install a new ditch would be between $60,000 to $90,000 plus. He received a quote from Vercon Civil Contractors Ltd. that the work would cost over $103,000. Issues [85] The pleadings, evidence, and submissions raise the following issues: 1. Is any evidence of the realtors admissible, and if so, what weight should be given to it?

2. Should there be an adverse inference drawn against the defendants for their failure to call S. and N. Sekhon?

3. Is the action barred by the expiration of the limitation period?

4. Was a fraudulent misrepresentation made by the defendants, or agents on their behalf?

5. Does the exclusionary clause in the contract apply?

6. What damages, if any, should be awarded to the plaintiff? [86] Before considering the various issues, I will comment on the credibility of the parties and witnesses. Credibility and Reliability Legal Principles [87] Justice Mayer provides a helpful summary of the principles and methodology used in assessing a witness's credibility in Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at paras. 91-92, aff'd 2020 BCCA 130, leave appeal to SCC ref'd, [2020] S.C.C.A. No. 218: [91] An acceptable methodology for assessing credibility is to first consider the testimony of a witness on its own followed by an analysis of whether the witness' story is inherently believable in the context of the facts of the entire case. Then, the testimony should be evaluated based upon the consistency of the evidence with that of other witnesses and with documentary evidence, with testimony of non-party, disinterested witnesses being particularly instructive. At the end, the court should determine which version of events is the most consistent with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [92] Some additional factors which may impact credibility include the following: a) A series of inconsistencies, considered in their totality, may become quite significant and

cause the trier of fact to have a reasonable doubt about the reliability of the witness' testimony: see paras. 57-59, 86 of F.H. v. McDougall, 2008 SCC 53, adopting the comments of Rowles J.A. at paras. 28-29 in R. v. R.W.B. (1993), 24 B.C.A.C. 1. b) Where a witness is found to have lied under oath, their credibility may be wholly undermined: Le v. Milburn, 1987 CarswellBC 2936 (W.L.) at para. 1; Jones v. Jones, 2008 BCSC 1401 at paras. 31, 32 and 60; Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 9. c) Collusion and deception between two or more witnesses in the course of a litigation may taint the entirety of a witness's evidence: Bradshaw at para. 190; d) Credibility will be undermined when a witness seeks to rely on false documents regarding the issues at trial: Osayande v. Canada (Minister of Citizenship And Immigration), 2002 FCT 368 at paras. 19 and 21; e) Credibility will be undermined when a witness (or party) has failed to produce documents: Bradshaw at para. 188; Pacific West Systems Supply Ltd. v. Vossenaar, 2012 BCSC 1610 at paras. 84 to 86; f) Credibility will be in doubt when a witness's explanation defies business logic or common sense: R. v. Storey, 2010 NBQB 86 at para. 78; Wang v. Wang, 2017 BCSC 2395 at paras. 45-46 and 89-90; and g) Credibility may be impacted when a witness is evasive, longwinded and argumentative in their responses to questions: Bradshaw

at paras. 191 to 192. [Emphasis in original.] [88] Frequently, the most reliable evidence is to be found in contemporaneous written documentation: [28] In any commercial dispute which does not proceed to trial for many years after the events in issue, it is not surprising to find serious conflicts in the evidence as memories fade and positions harden. The result will often be the reconstruction of events to accord with the position advanced by the litigants. That is not to say that the litigants are intentionally dishonest when testifying. Although that may be true in some cases, more often witnesses who have a stake in the outcome of the litigation will have adopted as their evidence a version of events which has emerged and evolved over time through the litigation process and which favours their legal position. [29] In such circumstances the most reliable evidence as to what transpired will likely be found in contemporaneous documentation. In addition, the evidence of independent witnesses and the actions of all witnesses at the time events unfolded will more often reflect reality than a view of the past presented through reconstructive lenses. Further, the consistency or lack of consistency of the evidence of an interested witness with the contemporaneous documentation and with the evidence of independent witnesses will often be a valuable indicator of reliability. Wu v.

Sun-Gifford, Fine Line Interiors Group Ltd. & Bluerock Developments Ltd., 2001 BCSC 191. Position of the Parties [89] The plaintiff's position is that the evidence of Mr. Kumar and Mr. Chahal is unreliable. It points to a number of inconsistencies in their evidence and suggests that aspects of the defendants' version of events is illogical. [90] The plaintiff submits that twice during cross-examination Mr. Chahal testified that there were 25 empty acres and the rest of the Property was planted with blueberries. [91] The plaintiff notes that Mr. Kumar gave inconsistent evidence in his testimony on whether he was at the farm with Mr. Zebroff when Mr. Zebroff was there. Further, that Mr. Chahal and Mr. Kumar gave inconsistent evidence respecting the need for crop insurance, the Blueberry Farm's production levels, and the prices of blueberries. [92] The plaintiff further notes that in the decision of 0915406 B.C. Ltd. v. 0834618 B.C. Ltd., 2013 BCSC 1099, a case involving deceit, the Court found Mr. Kumar's evidence to be both internally and externally inconsistent. Where Mr. Kumar's evidence conflicted with the plaintiff's evidence, the plaintiff's evidence was preferred by the trial judge in that case. [93] The defendants argue that Mr. Toor's credibility was seriously undermined when he gave conflicting evidence on: how he obtained the Zebroff Notes; who was present at the tour

of the Property; meetings with Mr. Lewis; prospects for rezoning; and the execution of the Option. Analysis [94] I note that all of the witnesses were testifying to events that occurred many years ago. I accept that the details of what transpired, for example on the Property tour on July 8, 2014, would have faded due to the passage of time. [95] I do accept Harjot's evidence that he was on the Property tour. His recollection of what transpired and what he found out, for example on the issue with the pollination in 2013, has a ring of truth about it. It accords with Mr. Chahal's evidence on why production in 2013 was low. [96] The parties attack the credibility of each of the key witnesses. In my view, all of the witnesses provided evidence that was flavoured by their theory of the case, though I am not able to conclude that any of the witnesses were deliberating lying or creating a false narrative. [97] I specifically reject that I should base my assessment of Mr. Kumar on the findings made by another judge in another case. How that judge interpreted the evidence given by Mr. Kumar and the other witnesses has no bearing on my assessment of Mr. Kumar's credibility in this case. In R. v. Schmidt, 2001 BCCA 3, the Court of Appeal held: [30] The point here is not one which relates only to sexual assault complainants. Generally, where a witness testifies at trial, his or her

credibility cannot be impugned by leading evidence that he or she was disbelieved as a witness in another unrelated trial. See: R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 29 C.R. (5th) 102 (Ont. C.A.) and R. v. Barnes (1999), 1999 CanLII 3782 (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.). [98] I conclude that I must treat all of the witnesses' evidence with a degree of caution and to try and focus on a common-sense analysis of the evidence and the weight to be placed on it. [99] Some of the contemporaneous documents do assist in providing information on what transpired. However, I address the reliability of the key documents from the realtors under the next heading. Issue 1: Is any evidence of the realtors admissible, and if so, what weight should be given to it? Legal Principles [100] Hearsay evidence relied on for the truth of its contents is presumptively inadmissible. A key consideration is that there is an absence of an opportunity to cross-examine the declarant: R v. Khelawon, 2006 SCC 57 at para. 35. [101] Statements attributed to a deceased person require consideration under the "principled approach" to hearsay: Harshenin v. Khadikin, 2015 BCSC 1213 at para.

30. The admissibility of hearsay under the principled approach was summarized in Khelawon at para. 2, as cited in Harshenin at para. 32: When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. [102] The court must first find on a balance of probabilities that the statement was made by the deceased individual before it goes on to determine the treatment and weight of the evidence: Harshenin at para. 36. [103] In R. v. Bradshaw, 2017 SCC 35, the Supreme Court of Canada clarified that threshold reliability can be established by showing that: (1) there are adequate substitutes for testing truth and accuracy (i.e., procedural reliability); or (2) there are circumstantial or evidentiary guarantees that the statement is inherently trustworthy (i.e., substantive reliability): at para. 27. [104] Substantive reliability is established if the statement is inherently trustworthy, which can be determined by a consideration of the circumstances in which it was made and the evidence that corroborates or conflicts with the statement: Bradshaw at para. 30. [105] The

Ontario Court of Appeal provided some guidance on the factors that may be relevant to determining procedural or substantive reliability in R. v. M.G.T., 2017 ONCA 736: [117] Procedural reliability requires adequate substitutes for personal presence, the oath or its equivalent and contemporaneous cross-examination. This is so that the trier of fact has a satisfactory basis to internally evaluate the truth and accuracy of the hearsay statement. Proxies for traditional safeguards include video recording the statement; an oath or its equivalent; a warning about the consequences of lying; and, usually, some form of cross-examination of the declarant, such as at the preliminary inquiry, or of a recanting witness, at trial: Bradshaw, at para. 28. [118] Substantive reliability is established if the hearsay statement is inherently trustworthy. To determine whether a statement is inherently trustworthy, we are to consider the circumstances in which it was made and any evidence that corroborates or conflicts with it. The standard for substantive reliability is high. This requires that a judge or court be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: Bradshaw, at para. 40. [Emphasis in original]. Position of the Parties [106] The defendants argue that the Lewis Memorandum and the Zebroff

Notes do not meet the test for reliability as set out by Justice Dardi in the Harshenin case and as such, they are inadmissible. In the alternative, they say that no weight should be placed on them if they are admitted. They say the two documents are inconsistent with each other, inconsistent with Mr. Toor's evidence, and are internally inconsistent. [107] The defendants further point out the following issues respecting the Zebroff Notes: · There is no clear or corroborated evidence on who prepared it, when it was prepared, what subject matter or property it relates to, for whom it was prepared and whether it was prepared from personal knowledge or some other source. · It lists 6 varieties [of blueberries], three of which are unrelated (unknown) to the subject property. · The document is numbered "page 5", without any reference to earlier pages or any subsequent pages, and no other pages have been produced. · Additional handwritten words/numbers are shown in different ink and different handwriting, and not totally consistent with the rest of the written words. · It is not an original document. · It is unusual to see a realtor's rubber stamp on a document of this sort. [108] The defendants argue that Mr. Toor seeks to rely on portions of this document but to exclude others which are inconsistent with his narrative. They say Mr. Toor further seeks to change the blueberry

varieties to reflect the ones that actually were on the Blueberry Farm to fit his narrative. [109] The defendants also point out the following issues with the Lewis Memorandum: · The first page references two civic addresses, and makes an express waiver as to the reliability of the information. Significantly, it does not name Peter Zebroff as the source of the information. · On the next page it describes two locations, with different civic and legal descriptions, and provides acreages for each lot, Lot A being 25.07 acres and Lot B being 70.9 acres. The document further states that the Seller is prepared to sell the lots separately - which implies that the Seller owns both Lot A and Lot B. · It makes a note of 23 acres have been prepared for greenhouse construction and currently used for truck parking - and the Seller is prepared to sell the lots separately. Importantly, it does not explain whether the 23 acres are set aside from Lot A or Lot B. · The third page describes berry varieties, three of which are totally unknown or unrelated to the subject property - and does not say whether the acres for each variety are within Lot A or Lot B. · The price of $7,600,000 (including 25.07 acres having a value of $1,500,000) can only mean that Lot A has a value of $1,500,000 - and presumably the balance of the value is attributable to Lot B. [110] The defendants argue that the plaintiff

seeks to rely on the two documents to support that the defendants represented that there were 72 acres of planted or seeded blueberry plants. The difficulty with this proposition is that the documents make no reference whatsoever to planted or seeded acreages. The defendants argue that common sense does not support that there are 72 planted acres of blueberries on a 72-acre parcel of land. [111] The plaintiff submits that the errors in the Zebroff Notes are likely related to errors made by Mr. Kumar when he passed on information or arising from a difficulty that Mr. Zebroff had understanding Mr. Chahal due to his thick accent. Analysis [112] The Lewis Memorandum and the Zebroff Notes are hearsay. They are both statements made out of court and have not been tested through the cross-examination of the author of the documents. As noted in Khelawon at para. 35: Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. Because hearsay evidence comes in a different form, it raises particular concern. [113] There were no submissions made that these two documents should be admitted under some common law exception. The only potential applicable exception would be the business records exception, but I am not persuaded that these documents would come within that exception. To be admissible under this common law exception, the business record must have been made contemporaneously by someone with personal knowledge of the matters being recorded and under a duty to make the record: McCabe v. The Roman Catholic Episcopal Corp., 2019 ONCA 213 at para.

23. Here, there is no evidence that either realtor was under an obligation to record the information in the ordinary and usual course of business. [114] I turn now to consider the principled approach and assess if there are sufficient indicia of necessity and of reliability. [115] In this case, since both realtors are deceased, I accept that necessity is clearly established: R. v. Smith, [1992] 2 S.C.R. 915, 1992 CanLII 79. That leaves for determination the issue of the reliability of the two documents. [116] Addressing the issue of procedural reliability first, it is my view that there is nothing to support the procedural reliability of either of the documents. There was no opportunity of any kind for the opposing party to conduct any type of cross-examination of the relators, nor any other safeguards supporting the reliability of the statements contained in the two documents. There is a real concern about the accuracy of both documents in light of the errors in them. There were no adequate substitutes for testing the evidence. [117] Turning to the issue of substantive reliability, it is clear that contemporaneous cross-examination of the realtors would have provided evidence that would have assisted in the fact-finding process. It is unclear who Mr. Zebroff obtained the information from in his notes, when the information was obtained, why there were errors made in the

description of the varieties of the blueberries, and what his understanding was of the reference to 72 acres. It is clear, and the plaintiff agrees, that the Lewis Memorandum contains errors including the description of the addresses and that the Property consisted of two separate titles. The same concerns apply to the information on the types of varieties of blueberries and the acreage. Mr. Chahal gave evidence that the information in both documents is incorrect. I further note that the information contained in the 2010 crop insurance application, setting out the varieties of blueberries and the acreage, does not corroborate the information in the two documents. [118] I accept that Mr. Zebroff, as the sellers' realtor, would have received some information from Mr. Chahal. Mr. Chahal admits that he told Mr. Zebroff that there were the different varieties of blueberries. I further accept that Mr. Zebroff must have gotten some information on the varieties of the blueberries, but it is not clear where he obtained the information as set out in the Zebroff Notes. I have difficulty accepting that this information came from Mr. Chahal who was well aware of the varieties of blueberries he had on his farm and the approximate acreage of each. I further accept that Mr. Kumar did not have the necessary knowledge to pass on the varieties of blueberries on the Property. It is clear that Mr.

Kumar had little to do with the operation of the Property as a blueberry farm, but was only responsible for the financial side of the operation. [119] I am unable to put sufficient trust in the truth and accuracy of the statements contained in the Lewis Memorandum and the Zebroff Notes to disregard that they are hearsay: Khelawon at para. 62. [120] I find that I am unable to find the necessary threshold reliability to permit the admissibility of either document for the truth of their contents. Issue 2: Should there be an adverse inference drawn against the defendants for their failure to call S. and N. Sekhon? Legal Principles [121] The adverse inference principle was described by authors S.N. Lederman, A.W. Bryant and M.K. Fuerst in The Law of Evidence in Canada (2018, 5th ed.) and endorsed by the Court of Appeal in Singh v. Reddy, 2019 BCCA 79 at para. 8: §6.471 In civil cases, an unfavorable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn in

circumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure to call a material witness amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it. [Emphasis in original.] [122] An adverse inference can be drawn if a party fails to call a witness who might be expected to provide important supporting evidence without sufficient explanation. Such an inference is not to be drawn if the witness is equally available to both parties: Thomasson v. Moeller, 2016 BCCA 14 at para.

35. The requirement is that the witness is one which the party has exclusive control over: Rain Coast Water Corp. v. British Columbia, 2019 BCCA 201 at para. 70, leave to appeal ref'd [2019] S.C.C.A. No. 321. [123] The Court of Appeal noted that a drawing of an adverse inference is not required if a party fails to call a witness: Singh at para. 9, citing Rohl v. British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 316 at paras. 1-5. On this matter, the Court stated: [9] Thus in Witnesses (looseleaf), A.W. Mewett and P.J. Sankoff write: A considerable number of cases now reinforce the view that there is no such thing as a "mandatory adverse inference" to be drawn where a party fails to call a witness. Rather, the question of whether to make such an inference seems to depend upon the specific circumstances, in particular whether: · There is a legitimate explanation for the failure to call the witness; · The witness is within the "exclusive control" of the party, and is not "equally available to both parties"; and · The witness has material evidence to provide; and · The witness is the only person or the best person who can provide the evidence. Essentially, the decision to draw an adverse inference is discretionary and premised on the likelihood that the witness would have given harmful testimony to the party who failed to call him or her. In a case before a jury, where

there are circumstances that support the drawing of such an inference, the trial judge should charge the jury that it is "appropriate for a jury to infer, although [jurors] are not obliged to do so, that the failure to call material evidence which was particularly and uniquely available to [a party] was an indication that such evidence would not have been favourable to [that party]. [At 2-23 to 2-24; emphasis added.] Position of the Parties [124] The plaintiff argues that an adverse inference should be drawn for the failure of the defendants to call Mr. S. Sekhon. The evidence of Mr. Kumar and Mr. Chahal was that Mr. S. Sekhon was present during the Property tour. [125] The plaintiff further seeks the Court to draw an adverse inference on the failure of the defendants to call Mr. N. Sekhon. Mr. Toor testified that Mr. Kumar told him that Mr. N. Sekhon told them to inflate the numbers of planted acres to get a higher price. Mr. Kumar denied this and testified that he never dealt with Mr. N. Sekhon. [126] The defendants did not directly respond to whether any adverse inferences should be made. Analysis [127] The first factor is whether there is a legitimate explanation for failing to call the witnesses. Although the defendants did not provide any explanation on why these witnesses were not called, in my view, taking into consideration the nature of the evidence that these

witnesses could provide, no explanation was needed. [128] The second factor is whether the witness is within the exclusive control of the party or is equally available to both parties. I note that the issue of exclusivity generally comes up in personal injury actions where the doctor of the injured plaintiff is not called to testify about her injuries. The patient's consent to disclosure of confidential information must be obtained: Singh at para.

27. That is not the case here. [129] There is no evidence to suggest that these two witnesses were exclusively in the control of the defendants. The plaintiff suggests that Mr. N. Sekhon was one of the realtors invited to look for a buyer. If so, it is not clear to me that the defendants would have exclusive control over him. The fact that Mr. S. Sekhon was one of the relators that assisted the defendants does not equate to the defendants having exclusive control over him. These witnesses were equally available for the plaintiff to call. [130] The third factor is whether the witness in question has key evidence to provide or is the best person to provide the evidence in question. There is nothing to support that Mr. S. Sekhon would have any memory of what was discussed in a van ride that took place in July 2014. The trial took place almost nine years later. The issue of whether Mr. Zebroff and Mr. S. Sekhon were sharing the commission is of no relevance to the issues in this case. There would be no reason for the defendants to call Mr. S. Sekhon to support this. [131] The plaintiff's witness was the one asserting that Mr. N. Sekhon told Mr. Kumar to lie about the number of planted acres so as to get a higher price. Mr. Kumar and Mr. Chahal deny that this occurred. The plaintiff submits that it could not call Mr. N. Sekhon because his evidence would be hearsay. It is not clear

to me how evidence about what Mr. N. Sekhon allegedly told Mr. Kumar would be hearsay if Mr. N. Sekhon was called. He and Mr. Kumar would have then both been at trial and subject to cross-examination. The onus would be on the plaintiff to call a witness to try and establish that this had actually occurred. I disagree that the onus was on the defendants to do so when it was their evidence that no such discussion took place. [132] The nature of the adversarial system is that every litigant is expected to put before the court only what evidence counsel believes will be probative of his or her position: Singh at para.

25. There is no responsibility on the defendants to call either of these witnesses. [133] I reject the plaintiff's submission that an adverse inference should be drawn in the circumstances of this case for the alleged failure of the defendants to call either one of the Sekhon's as witnesses. Issue 3: Is the Action Barred by the Expiration of the Limitation Period? Legal Principles [134] Section 6(1) of the Limitation Act, S.B.C. 2012, c. 13 requires that a court proceeding must not be commenced more than two years after the date on which the claim is discovered. It does not require that the claim be commenced within two years after the day on which the wrongful act took place, only that it be commenced within two years after the claim is discovered. [135] Section 8 of the Limitation Act codifies the common law principles of discoverability, stating that a claim is discovered for the purposes of s. 6(1) on the first day on which a person knew or reasonably ought to have known all of the following: a. that injury, loss or damage had occurred; b. that the injury, loss or damage was caused by or contributed by an act or omission; c. that the act or omission was that of the person against whom the claim is or may be made; d. that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or

damage. [136] A plaintiff has constructive knowledge of the material facts on which a plausible inference of liability on the defendant's can be drawn where the evidence shows that the plaintiff "ought to have discovered the materials facts by exercising due diligence": Grant Thornton LLP v. New Brunswick, 2021 SCC 31 at paras. 29, 42-44. [137] In MacAdams v. Grewal, 2023 BCSC 874, Justice Funt explained the meaning of the phrase "the first day on which the person knows or reasonably ought to have known that an injury or damage had occurred": [24] In considering s. 8 of the Limitation Act, I note that the Legislature referred to the "first day" on which the person knew or reasonably ought to have known. In my view, the use of "first day" reflects a legislative intent to start the running of the limitation period as soon as the requisite conditions are met (and not sometime after). In other words, the legislative intent is to not unnecessarily delay matters. [25] I also note that the Legislature uses the language the person "knew or reasonably ought to have known" as opposed to the more commonly seen phrase "knew or ought to have known". The use of the word "reasonably" takes away from a narrower meaning of "ought to have known" as to recklessness of the claimant. In other words, what would a reasonable claimant have known or ought to have known. Position of the Parties [138]

The plaintiff argues that it was not until Mr. Toor attended at the Ministry and saw the measurements of Mr. Mann that he had the requisite knowledge. [139] The defendants argue that the evidence of the plaintiff - that he only had actual knowledge of the acres of planted blueberries in early November 2015 - is completely unreliable. They argue that there was no evidence tendered on when Mr. Toor actually went to renew the crop insurance. [140] The defendants further argue that Mr. Toor reasonably ought to have known that at the time of purchase there were approximately 23 acres of vacant land and 72 acres of land on which blueberries had been planted. He was further aware that there were ditches, creeks, a river, and pathways between the rows of blueberries. As such, if he had any misapprehension regarding the 72 acres of planted blueberries, he ought to have discovered it at that time and not after he went to check for crop insurance at the end of October 2015. Analysis [141] The notice of civil claim was filed on October 13, 2017. The only evidence I have regarding when Mr. Toor renewed the crop insurance is that of Mr. Toor's, which is that he attended at the Ministry of Agriculture in November 2015. At that time, he was shown the map that showed only 57.68 acres of planted blueberries. Mr. Toor then went to speak to Mr. Kumar to see if there was some explanation for this.

It was not until November 18, 2015 that Mr. Mann and Mr. Toor attended at the Property to conduct a further GPS measurement to confirm the area where blueberries were planted. [142] In my view, it was reasonable for Mr. Toor, after finding out the information from the Ministry, to go and speak to Mr. Kumar about it. I find it was at that time Mr. Toor had actual knowledge of the issue of how many acres of planted blueberries existed and that he had a potential claim against the sellers. [143] The further issue is whether a reasonable claimant ought to have known that he was not purchasing 72 acres, all of which were planted blueberries, since he knew the size of the lot and how much vacant land existed. Mr. Toor says that he relied on the information contained in the Lewis Memorandum to confirm that there were 72 acres of planted blueberries. He claims there was nothing that indicated to him that there was any reason to doubt this information. I disagree. He must have known that some portion of the 72 acres was taken up by ditches, creeks, and rivers. However, I agree that he would not have been able to confirm the exact acreage without having a survey conducted like that was done by Mr. Mann on November 18, 2015. [144] I note that Mr. Chahal was also unable to testify on how many seeded acres there were, nor how many plants were planted. [145] In light of all the

circumstances, I find that the defendants have not established a limitation defence. Issue 4: Was a Fraudulent Misrepresentation made by the Defendants? Legal Principles [146] The tort of deceit, also known as civil fraud or fraudulent misrepresentation, has the following elements: a. the wrongdoer must make a representation of fact to the victim; b. the representation must be false in fact; c. the party making the representation must have known the representation was false at the time it was made; d. the misrepresentor must have intended the victim to act on the representation; and e. the victim must have been induced to enter into the contract in reliance upon it. Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 at para. 21 [Hryniak]; Wang v. Shao, 2019 BCCA 130 at para. 24, leave to appeal ref'd, 38704 (14 November 2019). [147] Under the second element, mere silence is generally not enough to constitute a misrepresentation, but active concealment can be: Sidhu Estate v. Bains (1996), 25 B.C.L.R. (3d) 41, 1996 CanLII 3332 (C.A.) at paras. 30-31 (C.A.); Manning v. Dhalla, 2018 BCSC 2148 at para.

34. An incomplete statement may be as misleading as a false one: Wang at para. 27. [148] The third element is concerned with the representor's state of mind and their knowledge that the representation was false or recklessly made. A claim in deceit cannot be made out where the representor had an honest belief in the statement: Freeman v. Perlman, 1999 BCCA 40 at paras. 15-18. As the Court of Appeal confirmed in Catalyst Pulp and Paper Sales Inc. v. Universal Paper Export Company Ltd., 2009 BCCA 307 [Catalyst], the representor must have intended to deceive the person to whom it is made--in other words, to cause that person to believe in the truth of the statement and act accordingly: at para. 57. [149] The fourth and fifth elements, reliance, requires that the representation caused the plaintiff to act to his or her detriment: Catalyst at para.

59. Once the plaintiff has established that the defendant made a misrepresentation calculated to induce the plaintiff to act to his detriment and loss consistent with the plaintiff's having acted on the misrepresentation, the onus then shifts to the defendant to prove that the plaintiff did not in fact rely on the misrepresentation: Catalyst at para.

58. As noted in Wang, it is sufficient that the representation was an inducing cause - it does not have to be the inducing case: at para.

29. Position of the Parties [150] The plaintiff submits that Mr. Chahal, acting for his son and wife, and Mr. Kumar and his wife, fraudulently advised Mr. Toor that the farm had 72 acres of planted blueberries. The plaintiff argues that the amount of workable acreage for blueberry production is significantly less than what it was led to believe, including the number and type of blueberries. This had a material impact on the purchase price and the plaintiff's decision to buy the land. [151] The plaintiff asserts there was a further misrepresentation of the level of blueberry production. [152] The defendants submit that there was no representation made by the defendants. They argue that no detailed testimony was proffered regarding any specific discussion between Mr. Toor and the realtors, stating the time, date, place, the presence of any witnesses, and the surrounding circumstances, where a representation on behalf of the defendants was made in a manner and substance, that would constitute such a representation to be a term of the contract. They point out that such a representation would have to be made prior to the offer being made. Mr. Toor testified that he had no meetings with his realtor except the one on July 8, 2014 and his subsequent phone call with Mr. Lewis was limited to giving him basic information to prepare the offer. Analysis [153] The representation in the

amended notice of civil claim differs from the representation that the plaintiff asserted in its closing submissions. The assertion in the amended notice of civil claim is that the misrepresentation was: 9. Prior to the purchase of the Property, the Defendants, and each of them, authorized and instructed their real estate agent to make several material representations to the Plaintiff regarding the size of the Property, specifically that that [sic] there were 72 acres of the Property upon which blueberries had been planted. Aside from verbal representations to this effect, the Defendants provided the Plaintiff a written list of the planted blueberry varietals was provided [sic] showing a total planted area of 72 acres (the "Representation"). [154] In closing submissions, the plaintiff asserts the representation was made by Mr. Chahal and Mr. Kumar who fraudulently advised Mr. Toor that the Blueberry Farm had 72 acres of blueberries and that they both misrepresented the blueberry production. [155] The plaintiff has not met the burden of proving that either representation was made prior to the purchase of the Property. [156] I will first deal with the representation allegedly made by the defendants' realtor. The only evidence of that is the Zebroff Notes. I have already found that the threshold of reliability has not been met. I further note that there is no representation made

in the Zebroff Notes that there were 72 acres of planted blueberries. Even if some weight was to be given to the Zebroff Notes, the document confirms that there were blueberries located on 72 acres of land. It does not say that there were 72 acres of planted blueberries, which is what the plaintiff seeks to assert. [157] Secondly, dealing with the allegation that Mr. Chahal and Mr. Kumar made a representation directly to Mr. Toor, I am not persuaded that the plaintiff has met the onus of establishing evidence that is clear and convincing that Mr. Chahal or Mr. Kumar made a fraudulent statement to Mr. Toor that the farm had 72 acres of planted blueberries. Mr. Toor's evidence does not support that such a representation was made on the one occasion he met Mr. Chahal before the offer was made. Mr. Toor does not recall any discussions in the van about the size of the farm nor about only making an offer on the blueberries. Mr. Toor agreed that he did not talk to the owners of the Property about how many acres of land were planted with blueberries or anything of that nature. [158] Harjot's evidence further does not support such a representation was made by Mr. Chahal at the time of the Property tour. [159] From Mr. Chahal's perspective, the Property consisted of: (1) the vacant land; and (2) the remainder of the land where he had planted the blueberries. Mr. Kumar's evidence was

clear that he did not make any such representation to Mr. Toor on the acres of planted blueberries. I accept that evidence. [160] On the totality of the evidence, I cannot find that there was a direct representation made to Mr. Toor by Mr. Kumar or Mr. Chahal that there were 72 acres of planted blueberries. I further note that such an assertion does not accord with common sense. [161] It is clear that Mr. Toor understood that there were approximately 23 acres of vacant land. He also knew that the total size of the Property was 96.7 acres. If one deducts the vacant acreage that leaves a total of 73.7 acres. What is clear is that it is not possible that there could be 72 acres where blueberries were planted. Mr. Toor, who had prior experience with blueberry farming, would have known that there are spaces between the plants and rows of blueberries as well as turnabout spaces needed for equipment. In addition, when he visited the Property he would have observed that there was a river, some creeks, and ditches. The title search, which Mr. Toor received, set out that there were rights of ways registered against the Property. It simply would not be possible for there to be 72 acres with blueberries planted on it. Some of that acreage had to be accounted for by ditches, turnarounds, river and creeks, rights of ways, and the like. [162] The plaintiff further asserts that Mr. Chahal and

Mr. Kumar misrepresented the blueberry production. This is also not supported by Mr. Toor's evidence of what was said during the Property tour. Mr. Toor did not testify that there was any representation of the production levels that induced him to offer to purchase the Property. Mr. Toor does not recall getting any details of the prior year's production prior to making an offer. [163] Harjot testified that during the Property tour, Mr. Chahal also provided production numbers and estimated production in 2014 was 800,000. However, there is no evidence that Mr. Toor relied on this statement, if it was said, when making the offer. [164] Mr. Chahal's evidence was that he told Mr. Zebroff and Mr. S. Sekhon, that he had 700,000 lbs in production and was predicting between 700,000 to 800,000 lbs depending on the weather. I note there was no information provided in the Lewis Memorandum nor in the Zebroff Notes on any production levels. Furthermore, although Mr. Toor asked Mr. Lewis to get him last year's production levels, there was no evidence that such information was ever obtained and provided to Mr. Toor. [165] I note that none of the various contracts of purchase and sale make any reference to production levels. [166] There is the letter that is not dated that refers to a production level in 2014 of 853,000 pounds. It is not clear to me on the evidence who to believe on the origins

of this letter. However, the evidence of Mr. Toor does not support that he relied on this statement to purchase the Property. His evidence is that the information about production levels was needed by FCC in order to obtain a mortgage. This evidence does not support that the plaintiff relied on some representation of production levels to make the offer. [167] As such, I am not persuaded that the plaintiff has established on clear and convincing evidence that any misrepresentations were made that Mr. Toor relied upon to purchase the Property. Issue 5: Does the Exclusionary Clause in the Contract apply? [168] Since I have found that the plaintiff has not proven that any misrepresentations were made by the defendants, or any agents on their behalf, I need not consider this issue. Issue 6: What damages, if any, should be awarded to the plaintiff? [169] As a result of my finding of no misrepresentation, I will not address the issue of damages. Conclusion [170] The plaintiff's action is dismissed. [171] Costs were not argued before me. The defendants have been completely successful. They are presumptively entitled to costs at Scale B. If either party wishes to dislodge this presumption, that party will advise the other within 15 days of these Reasons, and schedule with the Registry a date as soon as reasonably practicable to argue the matter. Each side will provide a written argument to the other side and to the Court at least seven days before the hearing date. "Forth J."