Fraser Valley Packers Inc. v. Raiwal Holdings Ltd.

2022 BCSC 1678 Fraser Valley Packers Inc. v. Raiwal Holdings Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fraser Valley Packers Inc. v. Raiwal Holdings Ltd., 2022 BCSC 1678 Date: 20220926 Docket: H190670 Registry: Vancouver Between: Fraser Valley Packers Inc. Plaintiff And Raiwal Holdings Ltd. Defendant Before: The Honourable Mr. Justice Ball Reasons for Judgment Counsel for the Plaintiff: D. Moonje Counsel for the Defendant: P.J. Reardon K.D. Loo Place and Dates of Trial: Vancouver, B.C. June 7-9 and 11, 2021 Place and Date of Judgment: Vancouver, B.C. September 26, 2022 Table of Contents Introduction. 3 History. 4 Evidence of Sukhminder Singh Gill also known as "Joe" Gill. 7 Evidence of Gurdip Singh Buttar. 12 Read in of Examination for Discovery of Balbir Singh Raiwal. 18 Requests and Responses. 20 The Affidavit of Balbir Singh Raiwal sworn or affirmed October 11, 2019. 21 Submissions of the Plaintiff. 24 Submissions of the Defendant. 30 Analysis. 36 Issue 1: Are FVP's Payments Documented on the Spreadsheet Debts owed by RHL to FVP?. 43 Issue 2: Are the debts limitation-barred?. 45 Conclusion. 46 Introduction [1] The plaintiff seeks a declaration that a mortgage registered in the New Westminster Land Title Office on August 6, 2019 under number CA76688 (the "Mortgage") is a second mortgage on lands and premises, in the City of Surrey, more particularly known and described as: P.I.D. No. 013-255-746 Part North West Quarter Section

32 Township 7 Lying to the South of Nicomekl River, Except: Part on Plan 17425 New Westminster District (hereinafter called the "Mortgaged Property" or the "176th Street Property"). [2] The plaintiff further seeks a declaration that the defendant has made default under the Mortgage and that all money secured under the Mortgage is charged upon the Mortgaged Property in priority to the interests of the Defendant and is due and owning to the Plaintiff. [3] The plaintiff also seeks a declaration of the amount of money required to redeem the Mortgaged Property (the "Redemption Amount"), as well as a declaration that the last date for redemption of the Mortgaged Property shall be six months from the date hereof, namely September 26, 2022. [4] The plaintiff also seeks a variety of orders related to foreclosure of the Mortgage including a declaration of the amount owing, judgement against the defendant for that amount including post-judgement interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79, a summary accounting, and costs. [5] The defendant's position is that while the defendant executed the Mortgage in the amount of $2,700,000, and had previously executed other forms of security, in particular, other mortgages in the amounts of $400,000 and two mortgages in the amount of $800,000, that this does not mean that the defendant is liable for the sum of $2,700,000.

The defendant argues, that despite the face amount of the Mortgage "the law is clear that to the extent there is any amount owing, the amount of actual advances from the mortgagee to the mortgagor determine the value of the mortgage". The defendant also conceded that, subject to an argument based on limitations, that the plaintiff did advance $212,000 to the defendant, referred to as item #3 on the Spreadsheet that will be discussed below. History [6] The following paragraphs are drawn directly from an Agreed Statement of Facts filed as Ex. 2 by the parties:

THE PARTIES AND OTHERS [1] The Plaintiff, Fraser Valley Packers Inc. ("FVP"), specializes in processing, freezing, marketing and distribution of cultivated blueberries. The officers and directors of FVP are Sukhminder Singh Gill also known as Joe Gill ("Joe Gill"), Malkit Singh Dhesi and Girdip Singh Buttar. [2] The Defendant, Raiwal Holdings Ltd. ("RHL"), was incorporated on January 6, 2014. It's sole officer and director is Mr. Balbir Singh Raiwal. [3] The defendant, RHL, is the registered owner of lands and premises, in the City of Surrey, more particularly known and described as: Parcel Identifier No.: 013 - 255 - 746 Part North West Quarter Section 32 Township 7 Lying to the South of the Nikomekl River Except: Part On Plan 17425 NWD (hereinafter called "the Mortgaged Property" or the "176th Street Property"). [4] A list of the names of persons and entities that the court will see in documents or hear evidence about are set out in Appendix "A".

THE PROCEEDING [5] On or about March 27, 2017, on behalf of the Defendant, the Plaintiff was provided with the original copy of a mortgage ("the Mortgage"), between the Defendant as Mortgagor, and the Plaintiff as Mortgagee. A copy of the Mortgage is attached as Appendix "B". [6] The parties disagree as to the purpose and enforceability of the Mortgage. [7] On its face, the Mortgage purports to have the Defendant grant the Plaintiff a mortgage against the Mortgaged Property to secure a sum of $2.7 million plus interest at the rate of 7.5% per annum. The stated due date was March 31, 2019. [8] On August 6, 2019, the Mortgage was registered by the Plaintiff in the New Westminster Land Title Officer, under charge No. CA7668814. [9] The Mortgage was registered by the Plaintiff without the consent of the defendant. [10] On August 7, 2019, the Plaintiff made a demand of the Defendant for what the Plaintiff alleged was owed under the Mortgage. The amount claimed in the demand was $3,195,200.23 as of July 26, 2019, with a per diem interest thereafter of $554.79. [11] The Defendant did not make any payment in response to the demand. [12] On September 20, 2019, the Defendant made a demand of the Plaintiff to discharge the Mortgage from the Mortgaged Property. [13] The Plaintiff did not discharge the Mortgage. [14] On September 20, 2019, the Plaintiff as Petitioner (with the Defendant

named as Respondent) commenced this proceeding by way of petition, seeking foreclosure relief in the standard form. A Certificate of Pending Litigation was registered against the Mortgaged Property on September 23, 2019. [15] Affidavits were sworn or affirmed in the foreclosure proceeding as follows: i. Affidavit #1 of Anita Lau sworn September 17, 2019; ii. Affidavit #1 of Dalijit Dhesi sworn September 18, 2019; iii. Affidavit #1 of Balbir Singh Raiwal sworn October 11, 2019; and iv. Affidavit #1 of Sukminder Singh Gill sworn November 11, 2019. [16] On December 16, 2019, the parties filed a consent order, converting the Petition proceeding into an Action, with the matter referred to the trial list.

THE ANTECEDENT DEBT ISSUE [17] The Plaintiff alleges the Mortgage was given by the Defendant to secure past payments/loans, etc. to or on behalf of Mr. Raiwal and/or his companies (the "Raiwal Group"). [18] Amongst other things, the Defendant denies any antecedent debt is secured by the Mortgage. [19] Attached as Appendix "C" is a spreadsheet setting out all transactions the Plaintiff says are secured by the Mortgage. [20] The Defendant denies that it is indebted to the Plaintiff for any of the amounts set out in Appendix "C". THE 176th STREET PROPERTY [21] Mr. Gill and Mr. Raiwal have known each other since high school. Prior to leaving private practice, Mr. Gill (CPA) provided accounting services to Mr. Raiwal and his companies. [22] The 176th Street Property was owned for a period of time by Can Pacific Farms Inc., whose principal was Daljit ("Dale") Singh Kooner. [23] The 176th Street Property consists of 100(+) acres of farmland, where blueberries are grown. On the farm, there is a family residence, housing for staff, and a production and freezing facility. So, blueberries can be grown, processed, packaged, stored frozen or fresh, and distributed. [24] The Rai family acquired the 176th Street property on July 12, 2012 from Can-Pacific Farms Inc., through a court ordered sale process. Can-Pacific Farms and Packers Limited ("Can-Pacific") leased the property from the Rais.

It also had an option to purchase the Property from the Rais. [25] FVP had business dealings with the two (2) Can-Pacific companies. Its principal contact person was Dale Kooner. [26] In or about 2013, the facilities at the 176 Street property were in need of repair and completion of a new freezer facility. Mr. Raiwal had done work of this nature for FVP. Mr. Gill introduced Mr. Raiwal to Dale Kooner. Mr. Raiwal's construction company, Raiwal Developments Ltd. ("RDL") was engaged to do the work on the 176th Street property, starting in 2013. [27] At times in 2013, RDL's invoices to Can-Pacific were not being paid. [28] On March 27, 2014, the 176th St. property was purchased by the Defendant, RHL, pursuant to an Asset Purchase Agreement dated as of January 16, 2014 among Can-Pacific Farms and Packers Ltd., Justin Singh Kooner, Daljit Singh Kooner and Raiwal Holdings Ltd. for a stated purchase price of $11.1 million. [29] On March 7, 2014, JND Management Services ("JND") provided a $1.9 million BMO bank draft payable to Baker Newby in Trust. [JND was wholly owned by Buttar] [30] On March 27, 2014, the Plaintiff issued a bank draft payable to Baker Newby in Trust for $212,000. [31] The funds referred to in the preceding two paragraphs were used by the defendant to purchase the 176th Street Property. [32] On March 6, 2015, a mortgage granted by RHL, 639110 B.C. Ltd., and Sukhbinder

Kaur Raiwal for $2,750,000 at 11.5% in favour of Balbir Kaur Ghag, Ravinder Kaur Ghag, Inder Mohini Dhaliwal, 0900639 B.C. Ltd., and 0748009 B.C.Ltd. (the "Private Lenders' Mortgage") was registered against the following properties under CA4269845 and CA4269846: i. The Mortgaged Property ii. Parcel Identifier No.: 006-780-601 Lot 183, EXCEPT PORTIONS DEDICATED ROAD ON PLANS LMP45194AND BCP 14720 SECTION 17 TOWNSHIP 16 NWD PLAN 33074 The registered owner of this property is 639110 B.C. LTD. iii. Parcel Identifier No.: 010-232-745 LOT 3 EXCEPT: WEST 375 FEET MEASURED AT RIGHT ANGLES TO THE WEST BOUNDARY AND EXTENDING FROM THE NORTH TO THE SOUTH BOUNDARY OF SAID LOT, 23 TOWNSHIP 14 NWD PLAN 5230 The registered owner of this property is Sukhbinder Kaur Raiwal. [33] On March 6, 2015, the Plaintiff was provided with copies of the three (3) mortgages prepared by Baker Newby as follows: (a) i. Mortgagor: Sukhbinder Kaur Raiwal ii. Mortgagee: Fraser Valley Packers Inc. iii. Balance Due Date: November 30, 2015 iv. Principal Amount: $400,000 v. PID: 010-232-745 (b) i. Mortgagor: 639110 B.C. Ltd. ii. Mortgagee: Fraser Valley Packers Inc. iii. Balance Due to Date: November 30, 2015 iv. Principal Amount: $800,000 v. PID: 006-780-601 (c) i. Mortgagor: Raiwal Holdings Limited ii. Mortgagee: Fraser Valley Packers Inc. iii. Balance Due Date: November 30, 2015 iv. Principal Amount: $800,000v. v.

PID: 013-255-746 [34] The original signed copies of these mortgages were kept at Baker Newby. They were not registered in the Land Title Office. [35] On March 9, 2015, from the funds received via the Private Lenders' Mortgage, the defendant caused a $1.7 million to be paid to JND in partial payment of the $1.9 million referred to in paragraph 30 above. [36] On or about September 18, 2015, at the request of Mr. Gill, Mr. Raiwal signed a promissory note prepared by Mr. Gill for $2,316,585.38 in favour of the Plaintiff, due and payable on November 30, 2015. [37] On March 27, 2017, the Mortgage was signed on behalf of the defendant by Mr. Raiwal in the presence of his legal counsel, who prepared the Mortgage on the instructions of Mr. Raiwal, and in the presence of Mr.Gill. The original signed copy of the mortgage was given to Mr. Gill. [38] On August 6, 2019 the plaintiff caused the mortgage to be registered against the 176th Street Property. [7] The foregoing facts have been accepted as correct in the writing of these reasons. Evidence of Sukhminder Singh Gill also known as "Joe" Gill [8] Joe Gill testified that he attended a meeting on March 27, 2017 at the Baker Newby Law Offices with Balbir Raiwal, and Jordan Forsyth, a lawyer from that law firm, where Mr. Forsyth acted as the witness for the signature of Mr. Raiwal on the Mortgage which only covered existing advances owed by

the Raiwal companies to Fraser Valley Packers Inc. ("FVP"). (See Tab 60 of Ex. B, the Plaintiff's Trial Documents, and the registered copy of the Mortgage is located at Tab 88 of the same exhibit). At the time of the execution of the Mortgage, Mr. Gill testified that he had previously provided Mr. Raiwal with Ex. 3, the "spreadsheet" setting out the monetary advances made by FVP towards the 176th Street Property in which FVP planned to obtain an interest. Mr. Gill was clear that FVP wanted to receive the return of the outstanding amount of advances and interest thereon which had been acknowledged owing by Mr. Raiwal and the existing advances were to be repaid within two years, hence the due date in 2019 specified in the mortgage. [9] At the meeting of the parties, three copies of the Mortgage were executed, in the presence of Messrs. Gill, Raiwal and Forsyth. Before leaving the meeting, one fully executed copy was given to Mr. Gill, without any restriction on the use thereof. While Mr. Gill was of the understanding that the Mortgage could be registered against the title to the Mortgaged Property at any time, he understood that Mr. Raiwal was seeking additional and more advantageous financing. Mr. Gill, on behalf of FVP, was prepared to hold off registering the Mortgage while Mr. Raiwal attempted to find such additional financing. When the Mortgage was not paid on its due date,

FVP caused the Mortgage to be filed and these proceedings were launched. [10] The Mortgage was created in circumstances where, as noted, some of the parties were in the business, of cultivating, harvesting, processing and selling blueberries, both fresh and frozen in Surrey, BC. A primary processing facility was operated by the Kooner family. The processing facility was located on the 176th Street Property. In 2013 and 2014, the 176th Street Property was being operated by the Kooner family, but the processing facilities on the property required maintenance, repairs and upgrades which were not occurring due to lack of capital caused by the failing business operated by the Kooner family. [11] The plaintiff was attempting to assist with the repair and upgrade of the facility to allow for processing of its blueberry crop. Mr. Gill introduced Balbir Raiwal, as an experienced construction contractor, to the Kooner family and suggested his company might be hired to assist the Kooner family to complete the repairs and upgrades required for the blueberry processing facilities. As the Kooner family fell into default with respect to construction costs, it was agreed that the other parties would enter into a joint venture to purchase and operate the 176th Street Property. The agreement for this joint venture was made verbally and drafted, but ultimately was not finalized nor signed by the

parties. Messrs. Gill and Buttar testified that they and Mr. Raiwal had agreed, in the event the joint venture acquired the property, Mr. Kooner would be permitted to buy back the 176th Street Property in return for the monies expended on the property plus interest. FVP agreed to borrow money to improve the property at 3% and Mr. Kooner would repay the money with 11% interest. That agreement came to an end when it was discovered that the property was being used as a marihuana grow operation. [12] During attempts made to improve the property with RDL providing construction services, FVP agreed RDL would be paid for construction services if Mr. Kooner or his company did not pay for these services. [13] On January 16, 2014, Raiwal Holdings Limited ("RHL") purchased the 176th Street Property. Both Mr. Gill and Mr. Buttar testified that the money put into the property was not intended as a loan to RHL or any other entity, but was contributed only as an equity investment to the proposed joint venture. [14] As an example of the documents prepared to reflect the share interests in RHL, a document dated January 6, 2014, provided that Balbir Raiwal agreed to transfer 30 class "A" Common Shares in the capital of RHL held by him to Gurdip Singh Buttar as trustee for JND Management Services Limited. This document is located at Tab 15 of Ex. B. At that time, the corporate records of RHL

showed that 100 Class "A" Common shares of RHL had been issued; all 100 shares issued to Balbir Raiwal. This document, entitled "Transfer of Beneficial Interest and Declaration of Trust" was executed by Balbir Raiwal, Raiwal Holdings Limited, Gurdip Singh Buttar as trustee, and JND Management Services Limited on or before April 1, 2014. This document demonstrates that, at that time, share interests in RHL were being arranged by the parties. [15] A further example of investment in the 176th Street Property was an amount of $212,000 issued by FVP to Raiwal Developments Limited on March 27, 2014. (See Ex. B, Tab 9). [16] The next provision of security given on behalf of the defendant to the plaintiff were three mortgages on unrelated properties in the amount of $2,000,000 (in the respective amounts of $800,000, $800,000 and $400,000, (referred to collectively as the "Three Mortgages" and referred to in the Agreed Statement of Facts at para. 33) of which only copies had been provided to Mr. Gill. The original copies of the three mortgages were held by the law firm of Baker Newby, the solicitors for the defendant and Balbir Raiwal, and as a result were useless as any form of security for the advances made. [17] By July 18, 2014, the shares of RHL had not been transferred to FVP or related investors including Mr. Buttar. This was recorded in an email from Mr. Gill to Balbir Raiwal

(See Ex. B at Tab 18). [18] On November 12, 2014, the lawyers for Raiwal Holdings caused a second mortgage in the amount of $3,400,000 with interest payable at 10% per annum to be registered in favour of JND Management Services Limited to be registered against Lot 183, except portions dedicated road on Plans LMP45194 and BCP14720 Section 17 Township 16 NWD Plan 33074, which was apparently property held in the name of 639110 BC Limited by its authorized signatory Sukhbinder Kaur Raiwal. The interest adjustment date on this second mortgage was November 10, 2014 and the balance due date was November 12, 2015. [19] On November 12, 2014, Balbir Raiwal sent an email to Mr. Gill stating that the second mortgage referred to in the above paragraph was "the mortgage for FVP and Butter [sic] was registered today. See attached." Despite the language of Mr. Raiwal's email, the second mortgage did not mention FVP. [20] Eventually, JND agreed to accept the sum of $1,700,000 to discharge the second mortgage granted by 639110 BC Limited to JND Management Services Ltd. but the funds invested by FVP remained outstanding and not represented by the security described by Mr. Raiwal in the email on November 12, 2014. The sum of $200,000, the unpaid balance from the $1,900,000 advance remained outstanding. [21] Mr. Gill made repeated demands to Mr. Raiwal to have equity in RHL given to FVP and JND.

Mr. Raiwal did acknowledge that equity in RHL was to be provided to these companies but failed to provide it. Then FVP and JND demanded return of monies with some security in the meantime. The Three Mortgages were evidence of security of advances, no money was forthcoming. Mr. Raiwal then signed a promissory note representing the value of the advances then due but it was not paid on its due date. Ultimately, the Mortgage was provided with FVP as mortgagor which evidences the advances made to Mr. Raiwal and RHL in the acquisition of the 176th Street Property. [22] FVP waited patiently for payment of the Mortgage on its due date and when no payment was forthcoming for the Mortgage, the plaintiff commenced this proceeding. [23] In relation to Ex. 3, referred to as "the spreadsheet", the witness, Joe Gill, testified that funds were advanced by the Fraser Valley "Group" to preserve or improve the 176th Street Property acquired by the Raiwal Group of Companies. Mr. Gill has provided professional accounting services to Mr. Raiwal, his wife, and to Raiwal Developments Ltd. [24] In the spreadsheet, there are a total of 28 entries beginning in October 5, 2013 up to and including an advance of $10,000. The Rai family had loaned money to Daljit Singh Kooner, and Mr. Kooner lost the properties in the foreclosure process with an option to lease the properties. [25] The first five advances

involve monies paid by Fraser Valley to Raiwal Developments Ltd. which totalled $787,000. There followed an FVP cheque described as repayment on behalf of Raiwal to Gurdip Buttar in the amount of $500,000. Next an advance by bank draft issued to Bull Housser and Tupper in Trust, cancelled and re-issued to Charn Rai, Hero Rai, and Sukminder Rai in the amount of $225,000. The defendant acknowledges this amount is due to the plaintiff subject only to the Limitation Act, S.B.C. 2012, c. 13. [26] Thereafter, the next entry on the spreadsheet is a cheque in the amount of $500,000, by which Fraser Valley repaid that sum on behalf of Raiwal to Gurdip Buttar. JND refunded the sum of $30,000 to Fraser Valley because the $500,000 represented an overpayment to JND. [27] Mr. Gill and Mr. Buttar both testified that funds advanced were for the purpose of purchasing an interest in the 176th Street Property, Mr. Raiwal then used those advances into account and purchased the property for his own account. [28] Mr. Gill described a number of advances made by FVP reflected in the spreadsheet but it was clear in his cross-examination that he did not remember every specific advance, which after the effluxion of time is not surprising. He had created the spreadsheet over a period of years from original documents; then current. His evidence that the advances by FVP reflected in the spreadsheet were for

the purpose of acquiring an interest in a joint venture to purchase the 176th Street Property was consistent throughout and unaffected by cross-examination. Evidence of Gurdip Singh Buttar [29] Mr. Gurdip Singh Buttar was an officer and director of J & D Management Services Ltd. ("J & D"). J & D provides dispatching service for Bill's Trucking Ltd., a company owned 100% by the wife of Mr. Buttar. J & D is not in the business of lending money and has not in the period from 2013 until the trial date loaned money to any person or corporation. [30] Mr. Buttar personally loaned Mr. Kooner the sum of $500,000. Mr. Buttar had known Mr. Kooner for many years as a result of their mutual involvement in the trucking business. Mr. Buttar was approached by Mr. Gill, who was acquainted with both Mr. Buttar and Mr. Kooner, and requested that Mr. Buttar considered loaning Mr. Kooner or one of his companies the sum of $500,000 for the purpose of permitting Mr. Kooner to maintain the 176th Street Property. Mr. Buttar agreed and advanced the funds. [31] While Mr. Buttar was prepared to trust Mr. Kooner to repay the loan, the loan was secured by mortgages provided by Mr. Kooner through Meadow Creek Cedar Ltd. in the amount of $300,000 at Ex. A, Tab 14, RAW000008, pp. 9-12 and through 0788007 BC LTD. in the amount of $300,000 Ex. A, Tab 14, RAW000008, pp. 13-15. This loan was recorded in Ex. A, at

Tab 14, pgs. RAW00008, 06-08 in Roxwell Lawyer's In Trust record. On p. 07 of the same tab, there is a record of $500,000 being paid out of the J & D's bank to Mr. Buttar's personal account. At Mr. Buttar's request, Mr. Gill confirmed that both of these companies had sufficient equity to pay off the mortgages. A promissory note was also provided as further security for this advance. The interest rate on both mortgages was 10% per annum. [32] Mr. Buttar has been a shareholder in FVP since June of 2012. He is not involved in day-to-day business of that company and is involved in major transactions including the purchase or sale of property or significant business interests, which will be reviewed and decisions made at a meeting of the directors of FVP. [33] Mr. Buttar agreed that J & D would advance $1,900,000 for the purpose of acquiring an interest in the shares of a company to be incorporated to hold the title to the 176th Street Property and the blueberry processing business located thereon. Mr. Buttar was not personally acquainted with Mr. Balbir Raiwal at that time. Together with Mr. Gill, Mr. Buttar had visited the 176th Street Property; "walked it" to satisfy himself that it was a positive potential investment. [34] Mr. Buttar was, at the time of the advance of $1,900,000, not familiar with the Rai family nor the financial dealings between the family and Mr. Kooner. Mr.

Buttar was not familiar with financial transactions between Mr. Kooner's company, Can-Pacific, and the Rai family. [35] In Ex. B, at Tab 4, Mr. Buttar identified a proposal, sent by email from Mr. Kooner to Mr. Gill. The proposal was to have the Rai family paid out of the 176th Street Property for a total amount of $9,000,000. In a subsequent email, Mr. Gill forwarded the proposal for Balbir Raiwal and Mr. Buttar. Mr. Buttar was familiar with and had received this proposal. [36] Following receipt of this proposal, there was a meeting attended by Mr. Raiwal, Mr. Buttar and others at which Mr. Raiwal advanced the proposition that he or his company wished to acquire a 50% interest in the 176th Street Property. FVR was to acquire the remaining 50% interest. [37] At Ex. B, Tab 5, there is a handwritten proposal dated February 21, 2014, which was discussed at a meeting with Mr. Raiwal and Mr. Gill where a plan between Mr. Raiwal or his companies and Mr. Buttar and Mr. Gill or their nominees to each acquire will require a 50% interest in the 176th Street Property. Mr. Buttar testified that he found this proposal unacceptable because, subject to mortgage financing, he was contributing the bulk of the $2,400,000 in cash ($500,000 plus $1,900,000) required and Mr. Raiwal would obtain a 50% interest, without a similar cash investment by Mr. Raiwal. There was also discussion of providing

an opportunity for Mr. Kooner to re-acquire the 176th Street Property in the future by paying the difference between the borrowing rate and the rate fixed by the Raiwal/FVP group. This proposal was not ultimately approved. [38] A further meeting was held on March 6, 2014 at 10:30 am at the Blue-Collar Restaurant where Balbir Raiwal, Joe Gill, Girdip Buttar, Malkit Dhesi and Dhaljit Dhesi attended and agreed to a formula where the parties would purchase the 176th Street Property as shareholders in the company purchasing the 176th Street Property. The formula would place a 40% interest in the control of Mr. Raiwal, a 30% interest in the control of Mr. Buttar, while Joe Gill, Malkit and Davinder Dhesi would each control a 10% interest (totalling 30%) for a total of 100% (See Ex. B. Tab 6). At Tab 7 of Ex. B, a document was prepared and emailed at 10:24 in the morning which sets for the proposal for the meeting which was held shortly thereafter. [39] On March 6 at 10:30 am, an additional document was, prepared and sent by Balbir Raiwal. [40] At 2:40 pm, after the meeting referred to above, a further email was apparently sent by Mr. Gill to Mr. Raiwal with a typed document attached thereto. Mr. Raiwal was asked by Mr. Gill to make changes to the attached document which described the interests of the parties described in para. 38 above in the purchase of the 176th Street

Property. [41] Mr. Buttar arranged to borrow and advance $1,900,000 to the proposed joint venture, and he provided specific instructions that the funds were not to be delivered until the shares in designated owner of the 176th Street Property were delivered to Mr. Buttar's son or to Mr. Gill on behalf Mr. Buttar. Mr. Buttar was clear in his evidence that he was not loaning money to anyone but was advancing money to buy 30% of the shares of the company, Raiwal Holdings Ltd., the ultimate purchaser of 176th Street Property. Contrary to those instructions, while Mr. Buttar was on a holiday, the funds referred to above were advanced and used by Raiwal Holdings Ltd. to purchase the 176th Street Property. The bank draft delivered to the plaintiff's lawyers in trust is shown at Ex. B, Tab 91. [42] Mr. Buttar expressed some surprise that, by several weeks after the purchase of the 176th Street Property by RHL, he had not received any documents, such as statements of adjustments or notice of share issuance with respect to that purchase. Mr. Gill had repeatedly assured Mr. Buttar that shares would be issued shortly based on advice Mr. Gill received from Mr. Raiwal. [43] At Ex. B, Tab 16, there is a Transfer of Beneficial Interest and Declaration of Trust concerning the transfer of thirty shares of RHL to JND. The shares were never transferred to JND (See Ex. B, Tab 25). [44] Ex B, Tab 18

contains further evidence of the urging by Mr. Gill to have the majority shareholding conveyed to FVP and Mr. Buttar, which to July 18, 2014 had not occurred. At that point, Mr. Raiwal did not dispute the advance of funds but told Mr. Gill that Mr. Raiwal was aware that Mr. Gill "did all of this to become the owner of one more processing plant". The processing plant referred to was clearly the 176th Street Property. [45] Mr. Buttar continued to press for delivery of shares of RDL in return for advance of $2,400,000 as evidenced by his email to Mr. Gill on October 22, 2014. (See Ex. B, Tab 19) [46] In the email sent by Mr. Raiwal on November 12, 2014 to Mr. Gill, Mr. Raiwal provided a mortgage in the amount of $3,400,000 in favour of JND with 639110 B.C. LTD. as the mortgagor. The text of the email read "The mortgage for FVP and Butter loan was registered yesterday. See attached." The mortgagee identified was JND and there was no reference in the mortgage to FVP. This mortgage was not a security negotiated between JND or Mr. Buttar and 639110 B.C. Ltd. Mr. Buttar and Mrs. Raiwal had never met. [47] A further document sent by Mr. Raiwal to Mr. Buttar on July 24, 2014 (Ex. B, Tab 26) which was a draft loan agreement prepared for Mr. Raiwal by Mr. Forsyth. At para. 1.1 of the noted exhibit the following text appears: "The parties acknowledge and agree that the Lender agreed to lend

and the Borrower agreed to borrow the sum of $2,400,000 (the "Loan"), which Loan was advanced by the Lender (Mr. Buttar) to the Borrower (RDL) on or before March 28, 2014". The Loan required repayment of the Loan together with simple interest on the outstanding balance at the rate of 10% per annum and the loan was due and payable on March 28, 2015. The draft Loan Agreement included a provision for security for the repayment of the loan, together with accrued interest, the Borrower and the Guarantor (identified as Balbir Raiwal) agreed the Guarantor would deposit 100% of the issued and outstanding shares in the capital of RHL with transfer forms would be deposited in escrow pending payment of the Loan. The draft Loan Agreement was not signed by Mr. Raiwal. [48] At Ex. B. Tab 25, an email authored by Balbir Raiwal dated July 17, 2014 is sent to one of his solicitors, Todd Harvey, with a copy to Mr. Buttar. Mr. Raiwal asks Mr. Harvey how the preparation of the "security document" is coming along; with a further request that Mr. Harvey "prepare what ever gives Mr. Buttar security until he is paid out or until we can come to some other mutual agreement. I have cc'd this to Mr. Buttar. Document is attached". The attached document was a copy of the Transfer of Beneficial Interest and Declaration of Trust referred to above. [49] As noted at Tab 38 of Ex. B, on March 9, 2014, the sum of

$1,700,000 million was deposited to the account of JND through the Bank of Montreal, at Mt. Lehmann branch. Mr. Buttar was not aware of the source of these funds or that they came to the use of Balbir Raiwal from a first mortgage filed against the 176th Street Property. Based on a further promise that Mr. Buttar would receive the balance of $200,000 shortly from $3,400,000 mortgage at Tab 21, Joe Gill asked for release of the mortgage on behalf of Balbir Raiwal, and Mr. Gill promised that he would work on the balance, which was not being abandoned by either FVP or Mr. Buttar. [50] Based on continuing requests from Mr. Gill for payment from Mr. Raiwal, he provided a Promissory Note, payable to FVP, dated June 1, 2015, in the amount of $2,316,585.32 signed by Balbir Raiwal, payable in full with 10% interest on November 30, 2015. Mr. Buttar found this note unacceptable as security because enforcement would simply involve a law suit against Mr. Raiwal if the note was not paid when due. [51] A statement by Mr. Raiwal to the effect that the difference between the $1,900,000 advanced by Mr. Buttar to RHL and the sum repaid by Mr. Raiwal to Mr. Buttar in the amount of $1,700,000 or $200,000 was repaid with blueberries was put to Mr. Buttar. Mr. Buttar testified that no such sum was paid by Mr. Raiwal or RHL or Raiwal Agrotech using the value of blueberries. This evidence was not

challenged. [52] The defendant elected not to cross-examine Mr. Buttar. Read in of Examination for Discovery of Balbir Singh Raiwal [53] In the following paragraphs, references to page numbers and line numbers are references to the contents of the examination for discovery of Balbir Singh Raiwal held on April 15, 2021. During the same discovery, requests for information were put to Mr. Raiwal for response. Certain of the requests and the responses of Mr. Raiwal thereto provided during the examination were also read into the record and are listed after the read-in questions and answers. [54] The questions and answers read in have been included in the recitation of fact contained in these reasons where necessary. There would be no useful purpose to provide a verbatim recitation of every question and answer at the examination for discovery. [55] One matter worthy of note is the confirmation by Mr. Raiwal, at questions 41 to 42 on p. 8 of the transcript, that the $2,700,000 mortgage was only to be registered if a fresh advance of funds was made by FVP. A further matter worthy of note is the admission by Mr. Raiwal that Mr. Buttar's monies were used to assist RDL to purchase the 176th Street Property (see Transcript p. 9, questions 42 to 49 and p. 10, questions 50 to 52). It was also admitted by Mr. Raiwal that the same Mortgage was prepared on instructions personally given by Mr.

Raiwal to his solicitors, Baker Newby (see transcript p. 22, questions 114 to 116). At transcript p. 34, lines 2 to 8 and questions 180 to 183, Mr. Raiwal describes discussions about a joint purchase of the 176th Street Property among FVP, Gurdeep Buttar and himself, and he agreed that the proposed agreement was for each of the three to hold legal title to a percentage interest in the 176th Street Property, but Mr. Raiwal could not recall the proposed percentage interests of in the land of each of the three parties (see p. 36, questions 190 to 194, p. 37, questions 195 to 200, p. 38, questions 201 to 204 and p. 39 to question 205). Mr. Raiwal also agreed it was his decision not to be involved in the group purchase of the 176th Street Property and he made that decision shortly before the sale was to complete in March 2014 (see p. 56, questions 289 to 291, and p. 57, questions 292 to 294). [56] At p. 45, questions 234 to 238, Mr. Raiwal agreed that Mr. Buttar wanted a mortgage as alternate security for the funds he had advanced, as he had received a temporary Transfer of Beneficial Interest; the document displayed at Exhibit B, Tab 3. Mr. Raiwal also agreed that there was a dialogue between 2014 and 2017 with FVP which was seeking security for advances from any or all of the Raiwal group of companies (see p. 65, questions 340 and 341). [57] Beginning at p. 73 of the transcript,

question 381 to p. 76, question 398, Mr. Raiwal explained that three mortgages granted by Mrs. Raiwal, her company and RHL in the amount of $2,000,000 were based on monies to be recovered from Mr. Kooner, but as noted below there was not documentary evidence to support this position (see Request 12, below). [58] Beginning at p. 112 of the transcript, the document at Ex. B, Tab 44, an email dated August 11, 2025 in which Mr. Raiwal stated "Sooner or later they will get paid in full." Mr. Raiwal said he bought the 176th Street Property as a business decision (see p. 113, lines 1 to 2). [59] At p. 114, lines 8 to 22, of the transcript, Mr. Raiwal's principal motivation to purchase the 176th Street Property to recover the monies which he believed were owed by Mr. Kooner, and he knew of no other way to recover that money. [60] At p. 116, line 11 to p. 117, line 23, Mr. Raiwal was questioned about amounts owing to FVP which to some extent were acknowledged. The email just read "you put that in Court and we will cut them a cheque for that". [61] It was of some interest as noted in the transcript at p. 119, question 606 to p.122, question 627, Mr. Raiwal answered that a portion of the advance by Mr. Buttar was repaid by Raiwal Agrotech with $250,000 worth of frozen blueberries. Mr. Raiwal was asked to review the documents of Raiwal Agrotech to locate documents of Raiwal Agrotech which

would support the payment of $250,000 worth of blueberries to Mr. Buttar. This request became Request 25 and the response was that no documents to support the payment of Mr. Buttar with $250,000 worth of frozen blueberries had been located by Mr. Raiwal. [62] At p. 128, lines 7 to 25, there is an email from Mr. Raiwal to Mr. Gill stating that $1,700,000 was already paid, and asking why Mr. Gill was signing a promissory note for $2,300,000. On March 9, 2015, Mr. Gill was to provide reconciliation of the $2,300,000 but Mr. Raiwal was unable to reconcile the amount owing debt. Mr. Gill has, in several documents noted above, provided detailed calculations including Ex. E where the advances by FVP have been calculated in great detail. It is also noted that the promissory note signed by Mr. Raiwal is in the same amount as the sum shown due in Ex. 3. [63] At transcript p. 157 at question 792 to p. 158, question 796, Mr. Raiwal explained that he instructed his lawyer to prepare the mortgage in the amount of $2,700,000 in favour of FVP based on his belief in future financing without a loan commitment or any promise orally or in writing by FVP or anyone on its behalf. [64] Finally, with respect to the examination for discover transcript at p. 171, it was suggested to Mr. Raiwal that at closing of the purchase of the 176th Street Property, the advance of $212,000 from FVP was necessary to

complete the transaction. Mr. Raiwal stated "[i]t is possible". Requests and Responses [65] The following requests for information that were put to and answered by Mr. Raiwal were read into the record at trial. I have only included those necessary to be included in these reasons: a) Request No. 2 - Produce any emails sent to or from Fraser Valley Packers about a possible advance of $2,700,000? Response: None have been located. b) Request No. 4 - Check correspondence to see whether or not Mr. Raiwal corresponded with Mr. Buttar about the $1.9 million loan and what the provision of security for that would be? Response: None have been located. c) Request No. 7 - Any emails leading up to or relevant to the February 21, 2014 handwritten document? Response: None have been located. d) Undertaking No. 9 - Check your records for any loan agreements with Mr. Buttar? Response: None have been located. e) Request No. 11 - Check email correspondence with Mr. Gill as to whether or not Mr. Raiwal has any emails about a reconciliation or possible provision of security should the reconciliation result in a sum owing to Fraser Valley Packers? Response: None have been located. f) Request No. 12 - Check email correspondence with Mr. Gill as to whether or not Mr. Raiwal has any emails about a reconciliation and possible provision of security should the reconciliation result in a sum owing to Fraser

Valley Packers? Response: None have been located. g) Request No. 25 - Please review Raiwal AgroTech documents and then supplied documents that prove $250,000 was paid via blueberries? Response: None have been located. h) Request No. 31 - Check your emails to see whether or not you have any emails regarding the possibility of Fraser Valley Packers lending $2.7 million to Raiwal Holdings? Response: None have been located. The Affidavit of Balbir Singh Raiwal sworn or affirmed October 11, 2019 [66] The affidavit of Balbir Singh Raiwal sworn or affirmed on October 11, 2019 (the "Raiwal Affidavit") was placed in evidence in this proceeding as Ex. 7. [67] From the date on the Court stamp on the affidavit, it was apparently filed in this proceeding when foreclosure proceeding was ongoing and prior to conversion of the proceeding into the present action. The substance of the Raiwal Affidavit is an assertion that the Mortgage referred to therein was an element of a negotiation for a future advance of funds by the plaintiff to Raiwal Holdings Ltd. [68] Mr. Gill, in his testimony in chief, denied that any such negotiation took place between he and Mr. Raiwal. Mr. Gill further testified that (a) the plaintiff did not have money to lend Mr. Raiwal or his companies; and (b) specifically denied the truth of para. 12 of the Raiwal Affidavit. Mr. Gill repeatedly stated that FVR did not conduct

the business of loaning money as a part of its business. [69] Mr. Gill further testified that the contents of para. 13 of the Raiwal Affidavit were false and that no discussion of the sort referred to in that paragraph took place between Mr. Gill and Mr. Raiwal. Further, Mr. Gill denied that he agreed that the FVP mortgage would only be registered by RHL's legal counsel. This position by Mr. Raiwal is wholly at odds with the three prior attempts by him or his companies to provide forms of security including loans, other documents, the three mortgages on properties owned by persons associated with Mr. Raiwal and a promissory note executed by Balbir Raiwal (See Ex. 3, Tab 47) [70] With respect to para. 16, Mr. Gill stated that there was no proposal discussed nor made for a loan by FVP to the defendant or any related or associated entity. Mr. Gill also testified that FVP was not in the business of making loans and had not capital available to make loans as part of its business. [71] Returning to the Raiwal Affidavit, at paras.12 to 18 inclusive, Mr. Raiwal makes reference to an alleged offer of future financing by FVP, denied by Mr. Gill. Mr. Raiwal makes no reference to several documents which refer to or imply of necessity indebtedness of Mr. Raiwal or his corporate entities to FVP. These documents include: a) At Tab 16 "Transfer of Beneficial Interest and Declaration of Trust"

executed by Raiwal Holdings Ltd. and Balbir Raiwal in favour of JND Management Services Ltd. and dated January 14, 2014; b) At Tab 27, a Bank Draft issued by FVP to Raiwal Development Ltd. in the amount of $212,000 dated March 27, 2014 which sum is confirmed as a loan by Balbir Raiwal at Tab 35; c) At Tab 32, a mortgage wherein the borrower is named 639119 B.C. Ltd and the lender named as Fraser Valley Packers Inc. in the amount of $800,000 with interest at 10% per annum with a due date of November 30, 2015, charging Lot 183 except portions dedicated road on plans LMP45194 and BCP14720 Section 17 Township 16 New Westminster District Plan 33074, executed by Sukhbinder Kaur Raiwal as authorized signatory of 639110 B.C. Ltd.; d) At Tab 33 a mortgage wherein the borrower is named Raiwal Holdings Ltd. and the lender named Fraser Valley Packers Inc. in the amount of $800,000 with interest at 10% per annum with a due date of March 6, 2015, charging Part North West Quarter Section 32 Township seven Lying To The South of the Nicomekl River, Except; Part on Plan 17425 New Westminster District, executed by Balbir Raiwal as the authorized signatory of Raiwal Holdings Ltd.; and e) At Tab 34, a mortgage where in the borrower is named Sukhbinder Kaur Raiwal and the lender is named Fraser Valley Packers Inc. in the amount of $400,000 with interest thereon at 10% per annum with a due date of

November 30, 2015, charging Lot 3 except: West 375 feet measured at right angles to the West boundary and extending from the north to the south boundary of the said Lot, section 23 TP 13 New Westminster District Plan 5230 executed by Sukhbinder Kaur Raiwal. [72] As Mr. Raiwal required that the Three Mortgages be held in a vault at the law firm and not registered in the land title office, Mr. Gill continued to request some form of security with a firm payment date. Mr. Raiwal then provided a personal promissory note with an effective date of June 1, 2015 in the principal amount of $2,316,585.32 with interest at 10% per annum said to be due and payable on November 30, 2015. As discussions continued between the parties on March 23, 2017, Mr. Raiwal confirmed: "I will use the figure of $2,700,000 - for now and are as per our agreement today with Daljit and Malkit Dhesi, you will adjust interest downward at a later date I will send this figure to Todd right now and will get documents signed tomorrow and delivered to the original to your office the mortgage dated among from the mortgage was dated August 27, 2017 signed by her executed by Mr. Raiwal the prior day". [73] At Tab 37 Todd Harry, legal counsel informed Mr. Gill that his firm acted as legal counsel for Balbir Raiwal and his related companies and confirmed on behalf of Mr. Raiwal that: (1) Balbir has advised there is

adequate equity in the three properties to cover the mortgages in favour of FVP; (2) the mortgages are in valid Land Title Office form and are properly signed, although the mortgages are not registered; and (3) our office has the original mortgage documents and will continue to hold these originals. At p. 4 of the documents contained under Tab 37, an email from Mr. Gill to Mr. Harvey sets forth the following: "As discussed with Balbir, please prepare the following: 1.) Mortgage security totaling $2,000,000. $400,000 house, $800,000 Clearbrook Road 800,000 176 Street I assume there is adequate security in each of these properties? 2.) Interest-rate 10%; 3) Maturity date November 30, 2015; 4.) Mortgage can be paid any time i.e. open." [74] The defendant did not call any evidence and argued on the evidence before the Court at that stage. Submissions of the Plaintiff [75] The plaintiff seeks an order for foreclosure in the standard form. The basic submission of the plaintiff was that funds were advanced by the plaintiff to preserve and develop the 176th Street Property and its blueberry processing facilities initially with the intention that the Plaintiff would acquire an equity interest in that property equal to 60% of the equity shares. There is clear evidence before the Court of advances made for or on behalf of FVP intended to preserve or improve the operations of the 176th

Street Property as a viable enterprise including payments to Raiwal Holding for construction costs, payment to $76,000 for BC Hydro electrical account deposit (of which $1,000.00 was a refund on an advance made by Raiwal Agrotech Foods Ltd.), the provision of toilet services, the construction of concrete panels with insulation and overhead doors to improve access for moving frozen blueberry products and related matters including interest thereon were set forth in the spread sheet, marked Ex.

3. The preservation of the 176th Street Property as an ongoing concern and improvements made thereon all inured to the benefit of the defendant. [76] The plaintiff submitted that all of the line item advances in Ex. 3 were put towards the 176th Street Property or into the Raiwal "pot". In 2013 and 2014, an arrangement had been made between FVP, Balbir Raiwal and Mr. Kooner, to support Mr. Kooner, who was then leasing the property from the Rais after losing his title in foreclosure proceedings. But at the time Mr. Kooner was drowning economically. His bills for construction and improvements to the 176th Street property were not being paid and FVP needed access to continued processing capacity for blueberries. An agreement was made with RDL, JND, FVP as a joint venture to purchase the 176th Street Property with a potential buy back by Mr. Kooner with the payment of incurred interest on the purchase price. [77] Mr. Raiwal, unhappy with Mr. Kooner's activities on the property, abandoned the anticipated joint venture, and purchased the property through RDL but in doing so he relied upon the value of the advances by FVR set out on Ex. 3, the advance of $1,900,000 from JND, and a further advance of $212,000 from FVR. The plaintiff submits that using bank financing, and the advances aforesaid of RDL and FVP which amounted to almost $3,000,000, Mr. Raiwal was able to pay the purchase

price of the 176th Street Property and Mr. Raiwal did not contribute any additional cash to the purchase cost for the 176th Street Property, subject to the mortgage financing from the Bank of Montreal. [78] On the mathematical calculations prepared by Mr. Raiwal, set out at Tabs 14 and 15 of Ex. A, in the closing documents for the purchase of the 176th Street Property, Mr. Raiwal claims as set offs against the purchase price $725,000 plus interest at 10% per annum (sums advanced by Mr. Buttar and FVP), and $1,900,000 advanced by Mr. Buttar and $350,000 previously advanced by FVP for a total of over $3,000,000. At Tab 8 of Ex. B, seen another way, the last three debit items from the Seller's Statement of Adjustments were submitted by the plaintiff to be as follows: $1,800,000 provided by Mr. Buttar, $649,118.13 as a holdback for deficiencies, and $1,500,000 as a holdback for "Raiwal Work group" which included FVP. [79] It is noted that after the purchase of the 176th Street Property where advances by FVP (and Mr. Buttar's advances which were included on the Ex. 3 spreadsheet at lines 6 and 9), were admittedly used in the purchase for the benefit of RHL, RHL advanced a Limitation Act defence which was ill-founded, and which is subject to an estoppel. [80] The plaintiff asserts that following the purchase of the 176th Street Property by RHL, JND with the assistance of FVP and Mr.

Gill continued to insist on the shares agreed to in the joint venture planning be issued by RHL to the other investors. When it became clear that shares were not going to be provided by RHL, JND insisted that its investment be repaid plus interest. Eventually, as noted above, RHL agreed to pay JND $1,700,000 in cash, leaving a balance of $200,000 plus interest. FVP (with Mr. Raiwal's agreement) advanced the balance to JND and included with the balance of $200,000 in the Ex. 3 spreadsheet as a sum due to FVP. [81] FVP continued to press for security in the form of a mortgage, a mortgage finally executed on March 27, 2017 in the amount of $2,700,000 plus interest. Any suggestion that the Mortgage was for future advances is in direct conflict with the evidence at trial including the standard mortgage clauses attached to the Mortgage: 2 (1) In return for the lender agreeing to lend the principal amount to the borrower, the borrower grants and mortgages is the land to the lender as security for repayment of the mortgage money and for the performance of all the borrowers's promises and agreements. [82] The plaintiff also noted that the execution of the Mortgage was a brief two weeks after the plaintiff had agreed to hire the defendant or a $7,100,000 construction job. [83] The plaintiff argued that while there was no collateral contract to the Mortgage, no such contract is necessary,

as in the case at bar, the email exchange of March 23, 2017, at Tabs 57 and 58 of Ex. B demonstrate offer and acceptance. The plaintiff relies upon the case of Bank of Nova Scotia v. Hallgarth, 1986 CanLII 1264 (B.C.C.A.), 1986 Carswell BC 679, as authority for the proposition that consideration can consist of a detriment or benefit conferred on the third person, at paras. 7-12, and Bank of Nova Scotia v. Simonot, 1992 CanLII 8249 (S.K.C.A.) at para. 7, 1992 CarswellSask 383: " . On the other hand, the mortgagee may stipulate for a collateral advantage and therefore unless the Interest Act or some other statute prevents him from recovering, he is entitled to the whole principal sum stated in the mortgage to have been advanced, notwithstanding that at the time of the advance part of such sum was in fact deducted or withheld by way of bonus or commission in accordance with the agreement of the parties or that the mortgagee obtained some other collateral advantage." And at para. 10: The trial judge in the case before us correctly set out that the court should follow the two-step process: "If advances have been actually made, then the inquiry ends and the mortgagee is entitled to the benefits of the mortgage. On the other hand, if all of the monies have not been advanced, then the court is to proceed to the next step and attempt to ascertain the intention of the parties. If the

intention was to benefit the mortgagee, then even absent actual advances, then effect should be given to that intention." [84] The plaintiff submitted that having advanced $2,631,704.46 to the defendant, the Mortgage was granted for the purpose of giving the plaintiff a degree of security after many years of paying expenses for the Raiwal group. That group had been provided a direct benefit by the advances and the plaintiff had suffered a corresponding detriment by depriving itself of the said some sums that the defendant requested, and the plaintiff advanced to other entities owned, directly or indirectly by the defendant. The plaintiff expected to be repaid. [85] The plaintiff also relied upon the case of Chan v. 0975713 B.C. Ltd., 2018 BCSC 872 [Chan], noting that in the present case, funds had been advanced to the defendant over time at the request of the defendant. Records of the advances were available. The defendant had been reminded on a number of occasions to repay the advances. An accounting had been presented to the defendant prior to instructions being given by Mr. Raiwal to his solicitor to prepare the Mortgage and then together with Mr. Raiwal and Mr. Gill to attend at the execution of the Mortgage in Form B. [86] With respect to the Act defence advanced by the defendant, the plaintiff submits that based on the complete chronology attached to the plaintiff's

written submissions and the authority of George et al v. McMahon et al, 2006 BCSC 1394 [Goeroge], that the Court must assess the pattern of dealings and intention of the parties in 2015 to 2017. George is authority for the proposition that an acknowledgement must be an acknowledgement of the debt and not merely a claim. This flows from the Court of Appeal of British Columbia's decision in the case of Podovinikoff v. Montgomery (1984), 14 D.L.R. (4th) 716, 1984 CanLII 52 (B.C.C.A.) where at para. 12, the Court said: the acknowledgement of a right or title must, in my view, in all of the acknowledgement of some liability. The word "acknowledgement" must have the same meaning when used with reference to a cause of action. It follows, therefore, that would bind the defendant and activates section 5(2)(i) is an acknowledgement in writing of a cause of action which admits some liability thereunder. [87] In the subsequent case of Brons v. 622943 B.C. Ltd., 2006 BCSC 193, Justice Boyd stated at para. 29 that: Thus, while the parties' intentions are now considered to be relevant, it appears that in keeping with the objective test, the Court must still consider what a reasonable person would determine the intention and purpose to be from an examination of the document. [88] In Ex. 3, Tab 20, Mr. Buttar is demanding an interest in the Property in 2014. At Ex. 3, Tab 21, Mr. Raiwal imposes

an agreement to provide security for the first time referring to a mortgage executed by 639110 B.C. Ltd., as mortgagor in favour of JND Management Services Ltd. (as mortgagee) in the amount of $3,400,000. Mr. Raiwal's email states the mortgage is "[t]he mortgage for FVP and Butter [sic] loan was registered today. See Attached." This mortgage does not charge the 176th Street Property and could not be registered on the title to 176th Street Property. The property charged actually belonged to 639110 B.C. Ltd., a company of which the wife of Mr. Raiwal was the president. There was no evidence in the trial that FVP had business dealings or history with Mrs. Raiwal, and she was not called as a witness. [89] On July, 14 2015, Ex. B, Tab 42, the underlying agreement still included a settlement with shares in Raiwal Holdings Ltd., the owner of the 176th Street Property, until the "loan" was paid in full. At Ex. B, Tab 44, Balbir Raiwal promised "they will get paid in full" and "I will pay FVP but if they have faster and better way of cashing in, then I think they should exercise that option". [90] The plaintiff submitted that by reviewing the documentation of financial advances set out in the spa spreadsheet provided by Mr. Gill to Mr. Raiwal and by instructing counsel to provide a Mortgage in the amount of the advances set out in the spreadsheet, confirmed the payment obligations set

out in the Mortgage as security for antecedent debts. The Mortgage, in this case, does not secure a running account, no payments were required until the due date of March 31, 2019 and no demand for payment was made prior to the Mortgage coming to term. Hence, the mortgage was clearly a contingent obligation not a demand obligation. The plaintiff's submissions regarding the legitimate expectations of the parties relying on the decision in Rosas v. Toca, 2018 BCCA 191, relying on paras. 176 to 185 to the effect that the spreadsheet is evidence of a continuing arrangement for advances of capital between the parties, made from time to time at the request of the defendant. The plaintiff further submitted that the plaintiff's forbearance from exercising rights to enforce payment on the loans in 2017 suspended the running of the limitation period. [91] The plaintiff also made submissions on issue estoppel following Cadwell Estate v. Martin, 2021 BCSC 1089, at paras. 156 and 157, to the effect that when one person, by declaration, act or omission, intentionally causes or permits another person to believe a thing to be true and to act upon such believe, either he or she nor his or her representative may be allowed, in any suit or proceeding between himself or herself or his or her representative and such personal representative to deny that thing. (see also R. v. Chesley (1889), 16

S.C.R. 306, 1888 Can LII 49 (S.C.C.). Submissions of the Defendant [92] The defendant submitted that simply because the defendant executed the Mortgage but did not mean that the defendant was liable to the plaintiff in the amount of $2,700,000 plus interest. The defendant relied upon Crédit Foncier Franco-Canadian v. Bennett, [1963] B.C.J. No.16 (C.A.) at para. 11, 1963 CanLII 839; and Mohabir v. Dvorak, [1999] B.C.J. No. 802 (S.C.) at para.12, 1999 CanLII 5877. [93] The defendant argued sums payable referred to in various documents by companies related to the defendant including Raiwal Agro Tech Foods Ltd. and 639110 B.C. Ltd. are distinguishable from the other and all should have been added as defendants. The defendant relied upon the cases of Emtwo Properties Inc. v. Cineplex (Western Canada) Inc., 2011 BCSC 1072; and BG Preeco (Pacific Coast) Ltd. V. Bon Street Holdings Ltd., [1989] B.C.J. No. 1032 (C.A.), 1989 CanLII 230, as authorities for the well-known concerns about lifting of the corporate veil. [94] The practice of Mr. Raiwal, in his various dealings with his own companies, placed no respect on the corporate veil. The practice followed by Mr. Raiwal is readily noted in the delivery of the Three Mortgages referred to in para. 33 of the Agreed Statement of Facts of which the plaintiff had no input whatsoever. These mortgages were charged against lands owned by 639110

B.C. Ltd. (Ex. B, Tab 32), RHL (Ex. B, Tab 33) and Sukhbinder Kaur Raiwal (Ex. B, Tab 35), all dated March 6, 2015 and the 176th Street Property owned by RHL. The plaintiff had no involvement whatsoever in the creation nor execution of these mortgages: they were simply created by the defendant, for the purpose of representing positive security for monies which Balbir Raiwal had agreed were to be paid to FVP. [95] Similarly, Balbir Raiwal executed the Promissory Note drawn in favour of FVP for the sum of $2,316,585.38 payable with on November 30, 2015 as noted in para. 36 of the Agreed Statement of Facts. The email communications at Tab 42 to Tab 47, demonstrate the purpose of this Promissory Note was to confirm that Balbir Raiwal, personally, would pay the sum noted. By implication, he must have agreed the sum of $2,316,585.32 was to be paid to FVP as of the effective date: June 1, 2015. Finally, it was Mr. Raiwal, who after a review of the accounts in Ex. 3, the spreadsheet, concluded that it was appropriate for all of the accounts to be paid by RHL and he instructed his solicitor to prepare the Mortgage which confirmed the amount to be paid by RHL to FVP, and then he executed the Mortgage. The plaintiff did not ask for a lifting of the corporate veil to obtain the Mortgage, that decision was made entirely Mr. Raiwal as the operating mind of RHL. Neither of the cases cited

above consider these circumstances. [96] Counsel for the defendant acknowledged that the Mortgage was signed by Mr. Raiwal and it was suggested that he somehow lacked an appreciation of the legal effect of each of the amounts which made up the principal amount to be paid under the Mortgage. Counsel did not address the fact that Mr. Gill provided Mr. Raiwal for his review, on several occasions disclosed in the evidence, complete particulars of the calculations of the amounts which formed the basis of the amount due under the Mortgage; the Mortgage was prepared on the instructions of Mr. Raiwal given to a qualified lawyer, who prepared the Mortgage based on those instructions. [97] The defendant relied on a family law case, Vhora v. Vhora, 2016 ONSC 2951, which dealt with the enforceability of a promissory note. When the parties to a divorce sought to divide family assets, the respondent sought to deduct the amount of $202,806 for a promissory note in favour of his father, Usuf Vhora, apparently created in relation to the purchase of a family home. The wife's position was that the note was prepared after separation to defeat an equal division of family assets. Usuf Vhora, who was apparently available to testify, did not testify at the trial with respect to cash advances claimed to have been made by him to his son and "did not prove that he actually advanced these amounts under the promissory note": at para.

75. The respondent claimed he had borrowed the funds referred to in the promissory note. The evidence was that the wife was not aware of the financial dealings between Usuf Vhora and the respondent. The court considered that the failure to call Usuf Vhora as a witness was crucial to the consideration of s. 4(3) of the Family Law Act, R.S.O. 1990, c.

3. Under that provision, the onus of proving a deduction from a party's "net family property" lies on the persons claiming that deduction. Not only did the respondent fail to call his father was a witness, he also failed to call one of the purported witnesses to the execution of the promissory note, available to testify at the time of trial. [98] In Vhora, the Court made the following findings: a) the respondent, because of "inconsistencies and problems with his evidence, along with Usuf Vhora's failure to testify I cannot find that Mr. Vohra has proven on a balance of probabilities that the two deposits were made by his father on his behalf, as stated in the note". b) the Court next found that the respondent's testimony with respect to the advance of $55,000 was insufficiently reliable to permit the court to make a finding, on the balance of probabilities, that Usuf Vhora advanced the funds for the down payment by way of loan to the respondent. c) With respect to lump sum payments towards the mortgage totalling $108,858, Usuf Vhora's evidence was crucial, in the opinion of the court, to prove that these advances were actually made on the respondent's behalf and why they were made well before the date of closing: at para.

140. The court found that the respondent failed to lead evidence sufficient, on the balance of probabilities for the court to find that the advances made by Usuf Vhora on the mortgages were loans advanced for the benefit of the respondent or secured by the promissory note. d) following the decision in Bishop-Gittens v. Lim, 2015 ONSC 3971, that the failure to call Usuf Vhora permitted the court to draw an adverse inference against the respondent was not permitted to deduct the value of the promissory note from the equalization calculation. [99] The decision by the court in Vhora is clearly distinguishable from the case at bar where there was no challenge whatsoever to any of the items referred to in Ex. 3, and that counsel for the defendant in the present action admitted many of the payments had actually been made, and were reflected and other documentary exhibits. In Vhora, the respondent was required by statute to prove certain payments claimed as deductions and simply failed to provide sufficient proof. As such, Vhora is of no assistance in deciding the case at bar. [100] With respect to the limitation periods, the defendant invited the court to review ss. 14 and 15 of the Limitation Act. Section 14 is the discovery rule for claims or demand obligations. The Mortgage in the case at bar was not a demand obligation, but enforcement could only commence after default after the

first day when the right to enforce the discovery arises, in this case, in 2019. I am satisfied that the preparation of the Mortgage by the solicitors for the defendant in circumstances where Mr. Raiwal had been provided complete details of the sums claimed, which included balances due to Mr. Buttar, and the subsequent execution of that Mortgage in the presence of Mr. Raiwal and Mr. Gill both present with the defendant's lawyer was an acknowledgement of the amount due under the Mortgage. The proceeding to enforce the mortgage was commenced shortly thereafter clearly within the time limits set out in s. 15 of the Limitation Act. In response to the defence advanced, I am satisfied that Mr. Raiwal knew that the amounts listed on the spreadsheet were monies advanced for the purposes of improving, defending, or acquiring the 176th Street Property, and that occurred when Mr. Raiwal instructed his lawyer to prepare a mortgage in registerable form for the amount of $2,700,000 with interest at 7.5% per annum which he executed in the presence of the lawyer and Mr. Gill on March 31, 2017. The submission by the defendant that the quantum of the mortgage was not based on a debt owed by the defendant ignores the history of the attempts to acquire the 176th Street Property by FVP on the one hand and Mr. Raiwal and his various related parties. [101] The initial plan of the parties did not

create debt owing by the defendant to the plaintiff but rather a goal of acquiring the 176th Street Property for their mutual benefit. That transaction was changed when Mr. Raiwal was determined to buy the property for his sole benefit at the same time using capital provided by FVP. Mr. Gill, driven by Mr. Buttar, demanded return of monies advanced and provided a spread sheet which detailed the entirety of the funds which would not be invested in the 176th Street Property, but funds to be returned with interest to FVP. Using that information, Mr. Raiwal had the Mortgage prepared by and executed in the presence of his legal counsel and by Mr. Gill. Mr. Raiwal's actions of having the Mortgage created and then executed was a declaration that he was satisfied that sum was owed. [102] With respect to "the claimed debts" a title provided by defence counsel, which were characterized as due and owing by April 2015 at the latest. The three unregistered mortgages in March 2015 were not requested by nor satisfactory to the plaintiff which was demanding an equity interest in the 176th Street Property. The mortgagors of those three mortgages were selected by the defendant, not by the plaintiff. The three mortgages were also held by the defendant and never released to the plaintiff for filing. The promissory note payable by Balbir Raiwal, is said to show demands were being made but at the

same time the plaintiff continued to make demands for equity interests in the corporation holding the 176th Street Property. [103] The defendant submitted, in the course of argument, that an acknowledgement of debt owing restarts the limitation period running. This submission was made in the course of discussion of the three unregistered mortgages and the promissory note payable personally by Mr. Raiwal. The defendant does not however accept the same proposition, to the effect that the granting of the Mortgage in 2017, which might be an acknowledgement of the debt, does not affect a restart of the limitation period. [104] The case of Forjay Management Ltd. v. 0981478 B.C. Ltd., 2020 BCSC 637 [Forjay], cited by both parties herein, is instructive. There, Justice Fitzpatrick discussed the dual nature of the mortgage "comprising both debt and security elements": at para.

17. In that case, one of the issues to be decided was what the terms of the mortgage were and what the term of the contract was. In Forjay, there was a standard mortgage with 12% interest, up to a certain date and 24% thereafter, which provided for monthly payments of interest payments to begin on the 30th day after the advance of the loan. The default under the mortgage in Forjay occurred, not when the mortgage was due, but when the mortgage went into default by the failure to pay interest: at para. 20(b). [105] Similarly, in the case of Chan, the mortgage was granted collateral to lease obligations. The leases were breached when the tenants with lease obligations vacated the leased premises. The limitations period began to run on the date the premises were vacated, upon the right to enforce, and expired two years later, and 0975713 was statute barred from enforcing the mortgage. [106] In the case at bar, there is no provision for the payment of principal or interest on a periodic basis or for a default based thereon, nor was there a collateral lease agreement or for a default based on the breach of lease provisions. The sole provision in the Mortgage for repayment requires payment in full at the maturity date of the Mortgage. [107] In Ex. 3, Tab 20, Mr. Buttar is demanding an interest in the property in 2014. At Ex. 3, Tab 21, Mr. Raiwal imposes an agreement to provide

security for the first time referring to a mortgage executed by 639110 B.C. Ltd., as mortgagor in favour of JND Management Services Ltd. (as mortgagee) in the amount of $3,400,000. Mr. Raiwal's email states the mortgage is "[t]he mortgage for FVP and Butter [sic] loan was registered today. See Attached." This mortgage does not charge the 176th Street Property and could not be registered on the title to the 176th Street Property. The property charged actually belonged to 639110 B.C. Ltd., a company controlled by the wife of Mr. Raiwal. FVP had no business dealings nor history with Mrs. Raiwal. [108] On July, 14 2015, Ex. B, Tab 42, the underlying agreement still included a settlement with shares in Raiwal Holdings Ltd. the owner of the 176th Street Property until the "loan" was paid in full. At Ex. B, Tab 44, Balbir Raiwal promised "they will get paid in full" and "I will pay FVP but if they have faster and better way of cashing in, then I think they should exercise that option". [109] The submission by Mr. Raiwal that the Mortgage was intended to provide security for the future debt to FVP was contradicted by both Mr. Gill and Mr. Buttar in the course of the evidence that they each gave. Their evidence on this point was not challenged or otherwise questioned by the defendant. The defendant did not call Mr. Raiwal, nor his legal counsel present when the Mortgage was executed, to

speak to the purpose of the Mortgage. I reject as incredible the submission of the defendant concerning the purpose of the Mortgage as related to a future advance of funds as the submission is contrary to the evidence at trial. Analysis [110] I find that there was an agreement between Mr. Raiwal, Fraser Valley Packers Inc., and JND Ltd. to jointly purchase the 176th Street Property for their joint use with equity interests of 40% for Mr. Raiwal, 30% for Fraser Valley Packers Inc., and 30% for JND. On the basis of this agreement, Fraser Valley Packers Inc. contributed monies to the 176th Street Property prior to the purchase by RHL, for the purchase itself, and following the purchase. These advances are contained in Ex. 3, the Spreadsheet. [111] Once purchased by RHL, the sole shareholder of RHL was designated as Mr. Raiwal. The original agreement between the parties had been to assist Mr. Kooner and at the same time provide an opportunity for a valuable investment by Fraser Valley Packers Inc., Raiwal Holdings Inc. and by JND. At that time, because of extensive construction of freezer capacity on the 176th Street Property, Mr. Kooner owed RDL substantial construction costs, Fraser Valley Packers Inc. had significant blueberry production in excess of processing capacity and JND was seeking investment opportunities. It was agreed by these parties, that in return for their

protection of the Kooner investment, Mr. Kooner would be given an opportunity to buy back the property with interest, if it had the capacity to do so, together with all capital investments made by the parties or other sums expended towards the preservation or enhancement of the freezing facility located on the 176th Street Property. [112] FVP, JND and Mr. Raiwal formed an agreement that they would jointly purchase the 176th Street Property, as both an investment and to help ensure Mr. Kooner did not lose the use of the 176th Street Property. Can-Pacific owed RDL money for work it had done on the 176th Street Property and FVP needed the 176th Street Property to freeze blueberries. Thus, it was in the interests of both parties to buy the 176th Street Property and provide Can-Pacific a buy back option. JND was only an investor in this process and not a lender. They began to have discussions and draft documents to flesh out the details of this joint venture. [113] On January 6, 2014, RHL was incorporated. On that same day, the parties executed a Transfer of Beneficial Interest and Declaration of Trust, which provided that Mr. Raiwal agreed to transfer 30 class "A" Common Shares in the capital of RHL held by him to Mr. Buttar as trustee for JND. At that time, the corporate records of RHL showed that 100 Class "A" Common shares of RHL had been issued; all 100 shares issued to Mr.

Raiwal. This document was executed by Mr. Raiwal, RHL, Mr. Buttar as trustee, and JND. This document demonstrates that at that time, share interests in RHL were being arranged by the parties to give effect to their joint venture. [114] On March 6, 2014, the parties exchanged drafts of a share structure agreement for the purchase and ownership of the 176th Street Property. The formula would place a 40% interest in the control of Mr. Raiwal; a 30% interest in the control of Mr. Buttar; and Joe Gill, Malkit Dhesi and Daljit Dhesi would each control a 10% interest. All profits and losses were to be shared in proportion to each party's share in the venture. [115] On the basis of their agreement to form a joint venture to acquire the 176th Street Property, FVP and JND contributed money. On March 7, 2014, JND provided a $1,900,000 BMO bank draft payable to Baker Newby in trust. JND was wholly owned by Mr. Buttar. On March 27, 2014, the plaintiff issued a bank draft payable to Baker Newby in trust for $212,000. Both Mr. Gill and Mr. Buttar testified that the money put into the property was not intended as a loan, but was contributed as an equity investment. I accept their evidence on this point. [116] Despite the agreement to jointly purchase the 176th Street Property, RHL used these funds to purchase the 176th Street Property and everything on it for itself on March 27, 2014 for a

stated purchase price of $11,100,000. The balance consisted of some holdbacks and a $7,000,000 mortgage that RHL obtained. Mr. Gill nevertheless believed that Mr. Raiwal intended to honour the parties' agreement but simply had not finalized the legal documentation. On this basis, FVP continued to make payments necessary to cover various expenses for the 176th Street Property. These payments were not made directly to RHL, but to a variety of payees for different expenses related to the Property. Until late in the summer of 2014, Mr. Gill continued to operate under the understanding that FVP was, as per the agreement of the parties, a joint owner in the venture and continued to put money into the property's expenses accordingly. [117] By July 2014, the FVP interest in shares of RHL had not been transferred to the FVP or JND investors. Mr. Buttar and Mr. Gill pressed to have their ownership interest in the 176th Street Property reflected through the issuance of shares. On July 17, 2014, Mr. Gill wrote an email to Mr. Raiwal stating that FVP and JND would not advance any more funds for the 176th Street Property "until proper documents are prepared and we are all in agreement with our arrangement". Mr. Raiwal refused on the basis that his company, RDL, had not been paid for the work it had done for Can-Pacific on the 176th Street Property. [118] By October 2014, shares had still not

been issued to JND or FVP. By November 6, 2014, Mr. Buttar demanded a return of his investment, either from RHL or FVP, or that Mr. Raiwal transfer 60% legal ownership of RHL's shares. [119] On November 12, 2014, Mr. Raiwal emailed Mr. Gill to say that he had registered a mortgage for FVP and JND. The mortgage had a principal amount of $3,400,000, and specified it did not secure a running account. The balance due date was November 12, 2015. As no funds were advanced, I find that Mr. Raiwal had this Mortgage prepared to provide Mr. Buttar and Mr. Gill assurance that they would get back the money that they had invested in the 176th Street Property, now that the prospect of the RHL, FVP, and JND operating as a joint venture had vanished and all three corporations wished to part ways. However, despite Mr. Raiwal's email to the contrary, no mortgage was drawn up at that point for FVP. Only JND was granted a mortgage for a principal amount of $3,400,000, and the mortgage was not granted by RHL on the 176th Street Property, but by Mr. Raiwal's wife's company, 639110 B.C. Ltd., on a different property. [120] Mr. Gill checked in with Mr. Raiwal on January 14, 2015 as to when FVP, JND and Mr. Buttar would be paid the amounts owing them. Mr. Gill testified that by this point, he was finished with any joint activity with RHL and simply wanted the advances returned money back. [121] RHL had

the Three Mortgages prepared for FVP with a due date of November 30, 2015. On March 6, 2015, Baker Newby provided FVP with the following three mortgages granted by Ms. Raiwal, RHL, and Ms. Raiwal's company, on the same properties that were the subject of the Private Lenders' Mortgage: a) Mortgage 1: i. Mortgagor: Sukhbinder Kaur Raiwal ii. Mortgagee: Fraser Valley Packers Inc iii. Balance Due Date: November 30, 2015 iv. Principal Amount: $400,000 v. PID: 010-232-745 b) Mortgage 2: i. Mortgagor: 639110 B.C. Ltd. ii. Mortgagee: Fraser Valley Packers Inc iii. Balance Due to Date: November 30, 2015 iv. Principal Amount: $800,000 v. PID: 006-780-601 c) Mortgage 3: i. Mortgagor: Raiwal Holdings Limited ii. Mortgagee: Fraser Valley Packers Inc. iii. Balance Due Date: November 30, 2015 iv. Principal Amount: $800,000 v. PID: 013-255-746 [122] The original signed copies of these mortgages were kept at Baker Newby. There was no evidence that there was any negotiation of these mortgages between the mortgagors and FVP. The only inference that can be drawn from their creation is the mortgages were prepared and executed on the instructions of Balbir Raiwal. The Three Mortgages were not registered in the Land Title Office. However, I find that the preparation of these mortgages is evidence that RHL acknowledged it owed FVP money; the money which had been invested to acquire the 176th Street

Property on the understanding that FVP was a co-owner of a joint venture. [123] JND eventually agreed to accept the sum of $1,700,000 to discharge the mortgage granted by 639110 B.C. Ltd. to JND, in partial payment of the $1,900,000 that JND had loaned RHL. RHL paid JND this money on March 9, 2015. The funds invested by FVP remained outstanding but because FVP was not included on the Mortgage, despite Mr. Raiwal's statement otherwise in his November 12, 2014 email, JND was able to discharge the entire mortgage securing $3,400,000 once most of the $1,900,000 RHL owed JND was paid back. Nevertheless, the granting of this mortgage and RHL's payment to JND of $1,700,000 of its $1,900,000 owing is evidence that RHL accepted it owed money to both JND and FVP to pay them back for the money they had initially invested on an agreement that RHL did not ultimately honour. Although FVP was not included in the mortgage, the value of the mortgage combined with Mr. Raiwal's email which indicated that FVP should have been granted a mortgage to secure money owing it, is evidence that Mr. Raiwal and FVP had a common understanding at the time that RHL needed to pay back FVP for money it had contributed with the intention of being an equity partner in a joint venture, just as RHL repaid the money that JND had invested after the joint venture that was agreed upon did not precipitate. [124] Mr. Gill

and Mr. Raiwal exchanged emails in July and August 2015. Mr. Gill sent Mr. Raiwal the Spreadsheet of FVP's expenditures on the 176th Street Property that FVP was demanding be repaid. Mr. Raiwal assured him in an August 11, 2015 email that "they will get repaid in full" and that "I will pay FVP". [125] In September 2015, Mr. Gill emailed Mr. Raiwal asking for a promissory note and the Three Mortgages being held by Baker Newby to be registered. [126] On or about September 18, 2015, at the request of Mr. Gill, Mr. Raiwal signed a promissory note prepared by Mr. Gill for $2,316,585.38 in favour of the plaintiff, due and payable on November 30, 2015. There is no mention of RHL on the promissory note, and Mr. Raiwal signed it in his personal capacity. Despite the lack of mention on the promissory note, I find the note is evidence that Mr. Raiwal acknowledged RHL's obligation to repay FVP the money that FVP had spent on the 176th Street Property with the understanding that the parties were engaged in a joint venture. As the defendant points out, there was no evidence that FVP advanced this money to Mr. Raiwal personally. The parties had both been discussing the repayment of the money FVP had put into the 176th Street Property when the anticipated joint venture failed; in this context, I find Mr. Raiwal signed the promissory note to provide FVP with some assurance that RHL would repay

FVP. [127] On March 27, 2017, the Mortgage was signed on behalf of the defendant by Mr. Raiwal in the presence of his legal counsel, who prepared the Mortgage on the instructions of Mr. Raiwal. The original signed copy of the Mortgage was given to Mr. Gill. The principal amount on the Mortgage was $2,700,000. I find that it was intended to secure the $2,631,704.46 that RHL owed FVP. [128] I do not find Mr. Raiwal's allegation that it was intended to secure a future advance credible. I accept Mr. Gill's testimony that FVP was not in the business of loaning money and did not have that kind of money to loan. Further, given that FVP had spent years unsuccessfully seeking repayment of the money it had invested in what was meant to be a joint venture, and the correspondence between the parties at that point consisted of FVP simply trying to get its money back, I do not find Mr. Raiwal's assertion that FVP was prepared to lend RHL more money under this mortgage to be believable. It is clear that FVP was trying to exhaust every avenue to recover the money sunk into the 176th Street Property and sought security on the amounts those advances; Mr. Gill had given Mr. Raiwal the benefit of the doubt up until that point given the length of their relationship, but I accept his testimony that by January 2015 he was very frustrated with Mr. Raiwal and simply wanted FVP's money back and to get

out. The suggestion that FVP, at some future date, would loan RHL millions more on the heels of Mr. Raiwal's refusal to repay his debt and his failure to honour his agreements with FVP is simply untenable. [129] The Mortgage came to term on March 31, 2019. RHL had not repaid FVP the amount owing. I find that the defendant has made default under the Mortgage. [130] The defendant argues that although the Mortgage secures $2,700,000, RHL did not actually have a repayable debt to FVP that was secured by the Mortgage. RHL argues that without an underlying debt, the fact that RHL granted a mortgage for $2,700,000 is meaningless. While the parties arrived at the $2,700,000 mortgage based on the payments that FVP made for various expenses which are reflected on the Spreadsheet that Mr. Gill presented Mr. Raiwal prior to the execution of the Mortgage, RHL claims that these are either not debts owed by RHL to FVP, or are limitation-barred. [131] I will now go through FVP's various payments documented on the Spreadsheet and whether they reflect a debt of RHL to FVP. I will then look at whether any debts are limitation barred. Issue 1: Are FVP's Payments Documented on the Spreadsheet Debts owed by RHL to FVP? [132] Line items #1, 2, 4, and 5 document various advances that FVP made to RDL, totalling $575,000. FVP made these payments to RDL in the context of a joint venture agreement with

RHL. I accept FVP's evidence that it made these payments with the understanding that it had an ownership interest in the 176th Street Property, before Mr. Raiwal and RHL reneged on their agreement. I have found that Mr. Raiwal and RHL acknowledged that once the joint venture fell through, JND and FVP's investments in the joint venture were to be paid back. Thus, while the payments were made to JND, the debt reflected by these payments was owed by RHL, as RHL owed FVP its investment back once RHL converted the opportunity to purchase the 176th Street Property as a joint venture for itself. [133] RHL admits that FVP made the $212,000 payment to RHL reflected on line 3 of the Spreadsheet, but argues this debt action is limitation barred. I will address that issue below. [134] Mr. Buttar paid $500,000 to Mr. Kooner in November 2013, and when Mr. Buttar realized that RHL was not going to honour the joint venture agreement and had taken the 176th Street Property for itself, Mr. Buttar demanded his investment back. FVP repaid Mr. Buttar his $500,000 in March 2015 so that Mr. Buttar could walk away from the deal which had fallen apart. RHL argues that this $500,000 payment from Mr. Buttar to Mr. Kooner in 2013 was nothing more than a loan by Mr. Buttar to Mr. Kooner, which was repaid by FVP, and that it is not a debt owed by RHL to FVP. However, Mr. Buttar advanced this money under the

belief he was part of a joint venture, and that Mr. Buttar, JND, and FVP were all owed their money back when RHL did not honour the agreement. [135] Likewise, FVP repaid JND $200,000 on December 8, 2014, as reflected in lines 8 and 9 of the Spreadsheet. FVP made this payment because JND had already recovered $1,700,000 of its $1,900,000 investment in the joint venture, and was still owed $200,000. [136] FVP claims for the interest it paid to Mr. Buttar and JND on the $500,000 Mr. Buttar paid to Mr. Kooner and the $1,900,000 million paid by JND towards the purchase of the 176th Street Property, listed as lines 26 and 28 on the Spreadsheet. [137] I accept FVP's evidence that FVP and RHL were in agreement that FVP would be repaid the amount it had expended for the joint venture after the joint venture fell through, and that this included being reimbursed for the repayment of $500,000 to Mr. Buttar, and the $200,000 FVP repaid to JND, despite not having any written agreement regarding an assignment of debt. Mr. Raiwal was provided the Spreadsheet, agreed that RHL would pay FVP back the amount reflected on the Spreadsheet, and even granted the Mortgage to secure the amount RHL agreed it owed FVP. That evidence is sufficient for me to determine that the $500,000 repayment to Mr. Buttar reflected on line 6 of the Spreadsheet and the $200,000 repayment to JND on lines 8 and 9, in

addition to interest which accrued on the investments of Mr. Buttar and JND, were agreed to be debts RHL owed FVP. [138] FVP paid the Rai family $225,000 on January 27, 2014, as reflected on line 7 of the Spreadsheet. Mr. Gill testified that he paid this amount to the Rai family because Mr. Kooner was unable to do so, and the payment was necessary to give the parties the chance to close the deal to purchase the 176th Street Property. This payment was therefore made as part of the joint venture to purchase the 176th Street Property, and as the parties had the understanding that JND and FVP were to be repaid their investments after the joint venture fell through, this amount was owing by RHL to FVP after RHL did not honour the joint venture agreement. [139] FVP had paid Mr. Raiwal's wife's company, 639110 B.C. Ltd., $81,500 on March 7, 2014. FVP made this payment at the request of Mr. Raiwal, with the understanding the money was for the 176th Street Property and the joint venture. Thus, RHL owes FVP this money in light of RHL not going through with the joint venture agreement. [140] FVP paid $75,000 to Raiwal Agro Tech Foods to cover a BC Hydro deposit on June 12, 2014, which was required for operations on the 176th Street Property. This is item 11 on the Spreadsheet. In addition, FVP paid various operational expenses for the 176th Street Property, listed at lines 12-17 of the

Spreadsheet. These included payments to Super Save Toilet Rentals Inc. for toilet rental and sanitation, and to Hort Pro Agricultural Crop Inputs for fertilizers for the 176th Street Property farm. FVP also made a number of payments in the summer of 2014 to various vendors to repair and improve the 176th Street Property, listed as items 18-25 on the Spreadsheet. These include payments to VIP Pre Cast Concrete; Rent-it Centre for equipment rental to install a drain; Korolite Engineered Panel Structures Inc. to cut and trim panels for a wall; Moltech Insulated Panel Installers to install insulated panels on the 176th Street Property; and to Fraser Valley Refrigeration. These payments were all for the 176th Street Property with the intention of operating and improving it as co-owners in a joint venture with RHL. Issue 2: Are the debts limitation-barred? [141] Following the original defence, the defendant added and stressed, with some force in argument, a Act defence. That defence is that as the advances of money to preserve and improve the 176th Street Property began in 2013 and continued to be made, for among other things the improvement of that property by construction of freezing facilities by Mr. Raiwal's construction company, and inured to the benefit of that company and Mr. Raiwal after he alone arranged the purchase the 176th Street Property, excluding the plaintiff from

potential ownership. As noted above, various forms of security for the advances made by the plaintiff were repeatedly acknowledged by promises by Mr. Raiwal to make the plaintiff whole, by executing a promissory note acknowledging the advances by FVR; by providing the Three Mortgages held by the defendant's law firm, and finally the execution of the Mortgage. The Mortgage was created in registerable form and was by its terms the Mortgage was due to be paid in full with interest in 2019. [142] Mr. Gill testified that the plaintiff did not register the Mortgage as soon as it was received to allow Mr. Raiwal and the defendant to seek refinancing at favourable terms to payout the debt represented by the Mortgage. The Mortgage was not in default until Mortgage came to term in 2019 and the default was because no payment was made by the defendant on the due date or any time thereafter. Once the Mortgage was in default, the plaintiff caused the Mortgage to be registered against the 176th Street Property in the Land Title Office and this proceeding was filed a couple of months later. There is no Act defence available to the defendant in those circumstances. Conclusion [143] In the original version of RHL's response, a notice of application was prepared where RHL stated the Mortgage had nothing to do with antecedent debt, but that the Mortgage was given to FVP, in case at some future

date, FVP loaned exactly that amount. That is not a credible defence to the claim. [144] As was discussed earlier in these reasons, that is not a credible defence to the claim in this action because the Mortgage was prepared by the lawyers for the defendant, on the direct instructions of the sole operating mind of the defendant, Balbir Raiwal and the Mortgage was executed by Mr. Raiwal, in the presence of Jordan Forsythe, a lawyer acting for the defendant and executed in the presence of Mr. Gill, then seeking security for debts in the amount of the Mortgage due to the plaintiff. Short of the execution of the Mortgage in this formal fashion, being some form of a ruse, or worse, it is a clear affirmation that the defendant was to pay the sum set out in the mortgage to the plaintiff. The defendant, it must be remembered, called no evidence, such as Mr. Forsythe, to support any proposition against the validity of the Mortgage. [145] Further Mr. Gill testified that the plaintiff was not in the business of loaning capital to anyone, and had no source of capital to loan monies. There was no discussion, much less any agreement of the plaintiff loaning monies to the defendant in the future. The business of the plaintiff was growing harvesting and selling blueberries, hopefully for profit. This evidence was never challenged in the course of his evidence. [146] Given the circumstances of

execution of the Mortgage prepared by the solicitors for the defendant, which Mortgage was executed in the presence of a lawyer from that firm, and executed by Mr. Raiwal in the presence of Mr. Gill, [147] Based on the reasons set forth above, the following declarations and orders are granted by this court: 1) An order nisi of foreclosure declaration that the mortgage registered in the New Westminster land title office on August 6, 2019 under number CA7668814 (the "Mortgage"), is a second mortgage on the lands and premises, in the City of Surrey, more particularly known and described as: Parcel Identifier No.: 013-255-746 Part North West Quarter Section 32 Township seven Lying to the South of the Nicomekl River, Except: Part on Plan 17425 New Westminster District; 2) A declaration that the defendant has made default under the Mortgage and that all money secured by the Mortgage is charged upon the Mortgaged Property in priority to the interests of the defendant and is now due and owing to the plaintiff; 3) A declaration that the Redemption Amount is $3,348,727.04. as at June 12, 2021 together with interest thereafter at 7.5% per annum at a per diem rate of $614.30; 4) An order that the last date for redemption of the Mortgaged Property shall be six months after the date of pronouncement of this order nisi in this proceeding; 5) An order that the plaintiff to recover judgment

against the defendant for the amount declared to be due and owing to the to the plaintiff as of the date of the order nisi in this proceeding plus post-judgment interest pursuant to the Court Order Interest Act and the plaintiff's costs of this proceeding; 6) An order that the plaintiff to recover its costs of this proceeding and that such costs form a part of the amount of money required to redeem the Mortgaged Property; and 7) The plaintiff may apply to this Court for a further summary accounting on ay amount which become due to the plaintiff for interest, taxes, arrears of taxes, insurance premiums, costs, charges, expenses or otherwise after the date of pronouncement of this Order in this proceeding [148] The request by the plaintiff for the following orders be adjourned to a date to be set: a. For the sale of the Mortgaged Property, with vacant possession, by private sale, free and clear of all encumbrances, save and except the reservations, provisos, exceptions and conditions expressed in the original grant thereof from the Crown; b. The request for an Order that the plaintiff have exclusive conduct of sale, be at liberty to list the Mortgaged Property for sale for a period commencing such date as set by the Court and until further Order of the Court, and shall be at liberty to pay any real estate agent or firm who may arrange a sale of the Mortgaged Property a commission

at a rate to be approved by the court, unless agreed by all parties; c. An Order that the sale shall be subject to the approval of the Court, unless otherwise agreed to by all parties; d. An Order that the plaintiff be entitled to access the interior of the premises forming part of the Mortgaged Property for the purpose of inspecting, appraising and showing to any prospective purchaser the Mortgaged Property; e. And Order that the plaintiff be entitled to post signs on the Mortgaged Property stating the Mortgaged Property is for sale; f. And Order if the Mortgaged Property is not redeem by a debt set by the court the plaintiff may apply for an Order Absolute of Foreclosure and upon pronouncement of the Order Absolute of Foreclosure the defendant and all persons claiming by through or under them shall then stand absolutely debarred and foreclosed of and from all right, title and interest and equity of redemption in and to the Mortgaged Property and the plaintiff shall then recover vacant possession of the Mortgaged Property; and g. An Order for all necessary accounts, directions and inquiries together with such further and other corollary relief as this Court seems just. "Ball J."