Ghag Estate v. Ghag

2025 BCCA 88 Ghag Estate v. Ghag

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ghag Estate v. Ghag, 2025 BCCA 88 Date: 20250320 Docket: CA49792 Between: Veena Charmaine Ghag, Executor of the Estate of Sukhvinder Singh Ghag Appellant (Defendant) And Amrik Singh Ghag Respondent (Plaintiff) Before: The Honourable Chief Justice Marchand The Honourable Mr. Justice Groberman The Honourable Justice Edelmann On appeal from: An order of the Supreme Court of British Columbia, dated March 8, 2024 (Ghag v. Ghag, 2024 BCSC 400, New Westminster Docket S189435). Counsel for the Appellant: A. Dosanjh C.R.J. Gallant Counsel for the Respondent: P. Roberts, K.C. J.K.A. Hayward Place and Date of Hearing: Vancouver, British Columbia December 9, 2024 Place and Date of Judgment: Vancouver, British Columbia March 20, 2025 Written Reasons by: The Honourable Justice Edelmann Concurred in by: The Honourable Chief Justice Marchand The Honourable Mr. Justice Groberman Summary: Appeal from a denial of an application to dismiss an action for want of prosecution and to cancel associated certificates of pending litigation. The respondent filed a notice of civil claim in 2017 claiming to have an interest in his deceased brother's estate and had not taken steps to advance the action since 2018. Since 2017, several related proceedings have been brought concerning the same estate. The appellant says the judge erred in applying the tests to

dismiss the action for want of prosecution and to cancel the CPLs. Held: Appeal allowed in part. Given the respondent's uncertainty on how to proceed with the action in light of the related proceedings, the judge did not err in finding that the delay was excusable. The judge erred in applying the test to cancel the CPLs by failing to consider the correct factors and not addressing the actual prejudice to the appellant. The appeal is denied in relation to the dismissal for want of prosecution, allowed in relation to cancelling the CPLs, and the CPLs are cancelled. Reasons for Judgment of the Honourable Justice Edelmann: Overview [1] This is an appeal of the denial of an application to have an action dismissed for want of prosecution and to have associated certificates of pending litigation ("CPLs") cancelled. [2] The action at issue is one of a number of pieces of litigation that have arisen in relation to the assets of Sukhvinder Singh Ghag. He and the respondent, Amrik Singh Ghag, were brothers who were both pharmacists and operated pharmacies and other businesses for many years. Intending no disrespect, I will refer to family members by their first names as they share the same family names. [3] In a notice of civil claim filed in March 2017, Amrik alleges that he formed a partnership with Sukhvinder some 35 years ago, and that many of the assets registered in the names of

both brothers and various family members are in fact partnership assets. At the time of the underlying application, Amrik had not taken steps to advance the action since 2018 aside from filing a notice of intention to proceed in 2020. [4] The appellant, in her capacity as executrix of Sukhvinder's estate, applied to have Amrik's claim dismissed for want of prosecution and to cancel related CPLs. The chambers judge dismissed the application. She now appeals to this Court, alleging the chambers judge erred in applying both the test for want of prosecution and the test for cancelling a CPL. Issues on Appeal [5] The appellant lists a number of alleged errors made by the chambers judge. These can be addressed under the following two issues: 1. Did the chambers judge err in applying the test to dismiss the action for want of prosecution by: i. finding the respondent's delay in prosecuting the action was excusable due to the uncertainty caused by other litigation, or ii. finding, even if the respondent's delay in prosecuting the action was inexcusable, it was in the interests of justice for the action to continue?

2. Did the chambers judge err in the application of the test to cancel the CPLs under s. 252(1) of the Land Title Act, R.S.B.C. 1996, c. 250 (the "LTA")? Dismissal for Want of Prosecution [6] The chambers judge's decision not to dismiss the action for want of prosecution was discretionary. As such, it may only be set aside if the chambers judge "erred in principle, gave no or insufficient weight to relevant considerations or made a palpable and overriding factual error" (Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473 ("Giacomini") at para. 25; GMC Properties Inc. v. Rampart Estates Ltd., 2023 BCCA 172 at para. 52 ("GMC")). [7] The power to dismiss an action for want of prosecution is set out in Rule 22-7(7) of the Supreme Court Civil Rules, B.C. Reg. 168/2009: (7) If, on application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed. [8] In Giacomini, at para. 69-70, a five-member division of this Court addressed the approach to be taken when exercising the discretion conferred by Rule 22-7(7). The legal framework to be applied proceeds in three stages: (1) Has the defendant established that the plaintiff's delay in prosecuting the action is inordinate? (2) Is the delay inexcusable? (3) If the first two questions are answered in the affirmative, is it in

the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay? [9] In the case before us, it was common ground before the chambers judge that the delay was inordinate. Although a notice of intention to proceed was filed in 2020, no steps to advance the litigation had been taken since June 2018, a delay of over five years. At the time of hearing the application, it had been over six years since the action had been commenced and it was still in its infancy. [10] The chambers judge concluded the delay was excusable, and alternatively it was in the interests of justice for the action to proceed. The appellant challenges each of those conclusions. Whether the Delay was Excusable [11] Before the chambers judge, the respondent presented a number of explanations for the delay in pursuing the action. The explanation the chambers judge found persuasive was the uncertainty about how to proceed in the face of a number of related actions concerning the same estate. It will be helpful to outline the history of the proceedings in the action at issue and the information that was before the chambers judge about the other litigation before turning to the judge's conclusion. Proceedings in Action at Issue [12] Sukhvinder was diagnosed with terminal brain cancer in July 2016, at which time he was given a prognosis that he would have 14 to 16 months to

live. He began taking steps to settle his affairs. One of these steps was to create a family trust for his wife, Veena Charmaine Ghag ("Charmaine"), and their four children. Sukhvinder made his son Brendan Ghag the sole trustee of the family trust. [13] On March 31, 2017, Amrik filed the notice of civil claim at issue in this appeal which was briefly described above. The same day he filed the notice of civil claim, Amrik filed CPLs against six properties owned in whole or in part by Sukhvinder. [14] On May 19, 2017, Sukhvinder filed a response to civil claim in the action, denying the existence of a partnership. At the same time, counsel for Sukhvinder expressed concerns that her client would not be available by the time of trial. Counsel discussed dates for examinations for discovery, a deposition, and trial. [15] On May 29, 2017, Amrik filed a notice of trial scheduling the action for a ten-day trial commencing on March 5, 2018. The trial was later adjourned. [16] On August 18, 2017, Sukhvinder delivered two affidavits to Amrik and advised that he intended to seek an order that his evidence in chief be given by affidavit at trial. [17] On September 15, 2017, Sukhvinder delivered his list of documents to Amrik. [18] On September 18, 2017, Sukhvinder filed a counterclaim, alleging a series of outstanding loans to Amrik. [19] On September 20, 2017, Sukhvinder passed away.

Charmaine assumed conduct of the defence as executrix of Sukhvinder's estate. [20] On September 22, 2017, Amrik delivered his list of documents. [21] On December 27, 2017, Amrik filed a second notice of trial for November 2018, which was also later adjourned. [22] In February and March 2018, the parties brought cross applications. Amrik applied to add parties and file an amended claim. Charmaine applied for production of documents. The cross applications were heard on March 20, 2018. [23] Amrik delivered amended lists of documents on March 12, 2018 and May 22, 2018. [24] On June 13, 2018, the parties attended a mediation, which was unsuccessful. Afterwards, the parties engaged in additional settlement discussions, which were also unsuccessful. Other Litigation [25] In January 2018, a series of five actions were commenced on behalf of companies owned by Sukhvinder against Amrik or companies owned by him. Two additional actions were commenced in March 2019. The actions allege debts owed by Amrik or his companies to Sukhvinder's companies. Many of the actions were commenced on behalf of Abby Pharmacy Ltd. by Brendan in his capacity as trustee. The pharmacy actions were brought by corporations that were part of the disputed assets in Amrik's action and asserted debt claims that involved alleged partnership assets. No steps have been taken in any of the pharmacy actions since 2020,

aside from a notice of intention to act in person filed in five of those actions in February 2022. [26] On October 5, 2018, Sukhvinder and Amrik's father Swarn Singh Ghag died, after which a substantial amount of litigation was initiated by various parties. [27] Amrik was named as one of four executors of his father's estate. On February 6, 2019, Brendan served Amrik with a citation contesting Swarn's will. In 2021, Amrik initiated separate legal proceedings with respect to the distribution of Swarn's estate. [28] On January 28, 2019, Charmaine and three of her children filed a petition to remove Brendan as trustee of the family trust. The petition was allowed on July 31, 2020 (Ghag v. Ghag, 2020 BCSC 2136). On January 27, 2021, this Court dismissed Brendan's appeal regarding his removal as trustee of the Family Trust (Ghag v. Ghag, 2021 BCCA 106). It would appear the controlling shares in Abby Pharmacy Ltd. were the primary asset in the family trust (see Ghag v. Ghag, 2021 BCCA 106 at para. 5). [29] On April 29, 2019, Brendan filed an affidavit with an exhibit showing an agreement purportedly entered into between Charmaine, Brendan, and Sukhvinder giving Brendan full ownership and control over the family's assets. On June 26, 2020, Brendan filed a notice of civil claim against Charmaine and his siblings seeking a declaration that he was the beneficial owner of all of

Sukhvinder's assets pursuant to the purported agreement. On April 1, 2021, Brendan was ordered to post security for costs. Leave to appeal that order in this Court was denied by a judge in chambers, a decision upheld by a division on September 27, 2021 (Ghag v. Ghag, 2021 BCCA 366). [30] On August 2, 2020, Brendan wrote to Amrik saying that he had information relating to the action and requesting to be added to the parties scheduled for examination for discovery. The same day, Brendan wrote to Amrik suggesting that he fabricated the claims filed by Sukhvinder against Amrik. On August 13, 2020, Brendan again wrote to Amrik suggesting that Charmaine was withholding documents that should have been disclosed to him. [31] On September 18, 2020, Abby Pharmacy Ltd. commenced an action seeking $1.295 million dollars Brendan had misappropriated while he was trustee. The action was allowed by way of summary judgment in April 2021 (Abby Pharmacy Ltd. v. Ghag, 2021 BCSC 1402). [32] On February 22, 2021, Brendan filed a petition seeking an order removing Charmaine as trustee of the family trust and appointing a neutral third party in her place. [33] Around this time, Brendan communicated with Charmaine, threatening to share information with Amrik for use in the action against the estate. On March 8, 2021, Charmaine was granted, ex parte, an interlocutory injunction preventing Brendan from

sharing privileged information with Amrik. On April 30, 2021, Brendan's application to set aside the injunction was dismissed on (Ghag Estate v. Ghag, 2021 BCSC 815). [34] On March 18, 2021, Brendan filed a notice of application seeking an order to have himself added as a defendant in Amrik's action against the estate. [35] On April 23, 2021, Brendan filed an action seeking to remove Charmaine as executor of Sukhvinder's estate. [36] In October 2021, a number of Brendan's actions were dismissed, and he was declared a vexatious litigant. In the reasons for judgment, Justice Kent noted that there was an 18-page "Chronology of Key Events" from 2017 to October 2021 in which Brendan was involved related to the various pieces of litigation (Abby Pharmacy Ltd. v. Ghag, 2021 BCSC 2742 at para. 36). [37] Amrik and Sukhvinder operated the Kent Medical Building, a commercial space in Abbottsford, through a numbered company owned by their wives. In February 2017, Amrik and the numbered company were sued by a neighbour after some cherry trees adjacent to the building were cut down. According to Amrik, the decision to cut the trees was originally made by Sukhvinder. The litigation was ultimately settled in September 2022. [38] One of the units in the Kent Medical Building was occupied by Amrik and Sukhvinder's nephew, Happy Ghag. In December 2019, the numbered company commenced litigation

for unpaid rent. A decision was rendered in October 2021 after a four-day trial (0820632 B.C. Ltd. v. Ghag, 2021 BCSC 2035). A subsequent appeal was heard in early 2023 (Ghag v. 0820632 B.C. Ltd., 2023 BCCA 102). Decision on Whether the Delay Was Excusable [39] As noted above, the chambers judge found the delay to be excusable due to the uncertainty created by the other litigation. The appellant points to a number of cases in this province and in other provinces where parallel proceedings have not been found to excuse delay. While other cases may provide helpful illustrations, the ultimate question was one to be assessed by the chambers judge on the record before him. [40] In this case, it was not unreasonable for the chambers judge to connect Brendan's conduct to the delay in prosecuting the action. Not only had Brendan initiated litigation that directly related to the property and companies alleged to be partnership assets, but he also sought to insert himself in the very litigation at issue in various ways. At the core of the litigation between Brendan and his family members was the ownership and control of the very entities and properties that the respondent asserted were partnership assets. In my view, it was open to the chambers judge to accept that the other litigation created uncertainty about how to proceed, and excused significant portions of the delay. [41] The

appellant places significant emphasis on the time after the decision of Kent J., suggesting that, because it resolved most of the outstanding issues with Brendan, the chambers judge erred in finding the subsequent delay excusable. I am not satisfied the chambers judge erred in the manner alleged. While I accept that the decision of Kent J. put an apparent end to the litigation between Brendan and his immediate family, several pieces of litigation remained outstanding at the time of the application, many of which had been initiated by Brendan. Notably, the debt actions on behalf of Abby Pharmacy Ltd. and the counterclaim in the action at issue were both still outstanding although no steps had been taken in some time. [42] Ultimately, the question of whether the delay was excusable was one for the chambers judge. Discretionary decisions are entitled to a high degree of appellate deference. An appellate court will not interfere with a judge's exercise of discretion simply because it might have exercised the discretion differently (Plaza 500 Hotels Ltd. v. SRC Engineering Consultants Ltd., 2024 BCCA 288 at para. 37). The question before the chambers judge was not whether each moment of delay in the case was excusable on its own, but rather whether the inordinate nature of the delay was excusable. The appellant has not established the chambers judge erred in finding the delay

excusable in the overall circumstances of this case. Is it in the Interests of Justice for the Action to Proceed Despite the Existence of Inordinate and Inexcusable Delay? [43] Given my conclusion on the chambers judge's finding the delay was excusable, it is not necessary to address this question. Certificate of Pending Litigation [44] As with the decision not to dismiss the action for want of prosecution, the chambers judge's decision not to cancel the CPLs was discretionary and may only be set aside if he "erred in principle, gave no or insufficient weight to relevant considerations or made a palpable and overriding factual error" (Giacomini at para. 25; GMC at para. 52). [45] Registered owners of a property subject to a CPL may apply to cancel the CPL under s. 252(1) of the LTA: 252 (1) If a certificate of pending litigation has been registered and no step has been taken in the proceeding for one year, any person who is the registered owner of or claims to be entitled to an estate or interest in land against which the certificate has been registered may apply for an order that the registration of the certificate be cancelled. [46] To cancel a CPL under s. 252(1), the applicant must show that no step has been taken in the proceeding for one year prior to the application. A step must be required or permitted by the Supreme Court Civil Rules, and it must move the action

forward towards trial or resolution. Once it has been shown no step was taken, the court retains a discretion to disallow the remedy, but prejudice to the owner of the land will be presumed. The factors relevant to the exercise of the court's discretion include the following: a) Whether the respondent has given an acceptable explanation for the delay in prosecuting the claim; b) Whether, despite the presumed prejudice, no actual prejudice would be incurred by the applicant if the order was not granted; and c) Whether the respondent's claim for an interest in the land has at least a reasonable prospect of succeeding. See GMC at para. 46, citing Wiest v. Middelkamp, 2005 BCSC 1626 at paras. 12-13. [47] The chambers judge set out the relevant factors, and provided the following very brief reasons for dismissing the application: [55] In my view, the cancellation of the CPLs would not be just in this case for the following reasons: a) As outlined earlier in these reasons, the plaintiff has provided an acceptable explanation for the delay in prosecuting the claim; b) The plaintiff's claims in this case are not bound to fail, although it is premature to assess whether they have a reasonable prospect of succeeding; and c) Cancellation of the CPLs may deprive the plaintiff of his remedy should the defence dispose of the assets. [48] With respect, the chambers judge conflated the test

for dismissing a claim for want of prosecution and that for cancelling a CPL. The balance of the interests at play are fundamentally different in the two applications. [49] The power to dismiss an action for want of prosecution is not to be lightly exercised, as it deprives a plaintiff of an adjudication of their claim on the merits (Giacomini at para. 29). In contrast, a CPL is an extraordinary pre-judgment mechanism intended to protect a claim to an interest in land prior to the resolution of litigation (GMC at para. 37). [50] This Court has been clear that the test to be applied on an application to cancel a CPL under s. 252(1) is therefore less onerous than the test applied on an application to dismiss a claim for want of prosecution (GMC at para. 46, citing Kultak Financial Inc. v. Grewal, 2018 BCCA 94). It is reasonable to expect that in order to continue benefitting from an extraordinary pre-judgment mechanism the plaintiff be required to demonstrate they have pursued their case with a level of diligence greater than that required to defeat an application for dismissal of the underlying action. [51] As set out in the previous section, the application for dismissal for want of prosecution turned on the issue of whether the inordinate nature of the delay in this case was excusable. While I have not found the judge to have erred in the exercise of his discretion on that

issue, I do not find it to be decisive on the cancellation of the CPLs. Unlike dismissal for want of prosecution, cancellation of a CPL is not predicated on inordinate delay, but on one year without steps being taken. [52] In considering the cancellation of the CPLs, the chambers judge ought to have considered the strength of the explanation for the years during which no steps were taken, in particular the two years immediately preceding the application. While in the overall context of the case, the uncertainty created by the other litigation might have rendered the inordinate nature of the delay excusable, he does not appear to have turned his mind to the two years of delay after the decision of Kent J. In my view, there was no explanation presented that would warrant maintaining CPLs when no steps were taken in the litigation during those two years. [53] The two other factors considered by the chambers judge were at best equivocal and did not address the factors set out in GMC. First, he explicitly declined to find that the case had a reasonable prospect of success, concluding only that it was not "bound to fail." Further, he did not address the actual prejudice to the appellant, but simply said that cancellation of the CPLs may deprive the respondent of his remedy should the defence dispose of the assets. [54] It is unsurprising that the cancellation of a CPL would deprive

the respondent of its benefits. However, not only was prejudice to the owners of the properties presumed, but there was evidence before the chambers judge of actual prejudice in the form of additional expenses in maintaining the properties for what had become a period of many years. [55] This Court has authority to make any order that the court appealed from could have made and to exercise any original jurisdiction necessary or incidental to the determination of the appeal under ss. 24(1)(a) and 24(2)(c) of the Court of Appeal Act, S.B.C. 2021, c.

6. I am satisfied on the materials before the Court that the CPLs ought to be cancelled. I would allow the appeal and cancel the CPLs. Conclusion [56] I would dismiss the appeal in relation to the application to dismiss the action for want of prosecution. I would allow the appeal in relation to the application to cancel the CPLs and order that the CPLs be cancelled. "The Honourable Justice Edelmann" I AGREE: "The Honourable Chief Justice Marchand" I AGREE: "The Honourable Mr. Justice Groberman"