Nijjar v. Nijjar

2022 BCSC 327 Nijjar v. Nijjar

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Nijjar v. Nijjar, 2022 BCSC 327 Date: 20220303 Docket: S210483 Registry: Vancouver Between: Randeep Nijjar also known as Nick Nijjar Plaintiff And Bhupinder Nijjar also known as Bob Nijjar, Rajinder Nijjar also known as Raji Nijjar and Rajeev Nijjar also known as Raj Nijjar Defendants And 1129354 B.C. LTD., 0773907 B.C. LTD., 1036861 B.C. LTD. and 1037043 B.C. LTD. Defendants by Counterclaim And Randeep Nijjar also known as Nick Nijjar Third Party And Bhupinder Nijjar also known as Bob Nijjar, Rajinder Nijjar also known as Raji Nijjar and Rajeev Nijjar also known as Raj Nijjar Fourth Parties and - Docket: S211357 Registry: Vancouver Between: 685946 B.C. LTD. Plaintiff And 0773907 B.C. LTD., 1036861 B.C. LTD., 1129354 B.C. LTD. and Randeep Nijjar Defendants And Randeep Nijjar also known as Nick Nijjar Third Party and - Docket: S213351 Registry: Vancouver Between: 09914342 B.C. LTD. Plaintiff And 1129354 B.C. LTD. and Randeep Nijjar Defendants and - Docket: S211355 Registry: Vancouver Between: Bhupinder Nijjar Plaintiff And Randeep Nijjar Defendant Before: The Honourable Justice Kirchner Reasons for Judgment Counsel for the Plaintiff/Third Party, Randeep Nijjar in Action No. S210483; Defendants by Counterclaim, 1129354 B.C. LTD., 1036861 B.C. LTD., and 1037043 B.C. LTD. in Action No. S210483; Defendants, Randeep Nijjar, 1036861

B.C. LTD. and 1129354 B.C. Ltd. in Action No. S211357; Defendants, Randeep Nijjar and 1129354 B.C. Ltd. in Action No. S213351; and Defendant, Randeep Nijjar in Action No. S211355: S.T.C. Warnett W. Lui Counsel for the Defendants, Bhupinder Nijjar and Rajinder Nijjar in Action No. S210483; Plaintiff, 685946 B.C. LTD. in Action No. S211357; Plaintiff, 0991342 B.C. LTD. in Action No. S213351; and Plaintiff, Bhupinder Nijjar in Action No. S211355: R. Morse C. George Counsel for the Defendant, Rajeev Nijjar in Action No. S210483: J.R. Lithwick No other appearances Place and Dates of Hearing: Vancouver, B.C. February 8 and 9, 2022 Place and Date of Judgment: Vancouver, B.C. March 3, 2022 Table of Contents Introduction.. 5 Applicable Legal Principles.. 6 Background Facts.. 8 The Actions.. 10 Nick's Action: S210483. 10 The Respondent Actions. 14 The Bob Loan Action: S211355. 15 The Claim and the Response. 15 Status of the Bob Loan Action.. 16 The Quality Inn Action: S211357. 16 The Claim and the Response. 16 Status of the Qualify Inn Action.. 17 0991 Ltd Action: S213351. 18 The Claim and the Response. 18 Status of the 0991 Action.. 18 The Nijjar Family Enterprise.. 19 Application of Legal Principles.. 23 Fast-Track of the 0991 Ltd Action.. 26 Introduction [1] This is an application by Randeep Nijjar, who is also known as Nick Nijjar, ("Nick") and 1129354 B.C. Ltd. ("1129 Ltd"), which

is a company owned by Nick seeking an order under Rule 22-5(8) of the Supreme Court Civil Rules that four separate actions be tried together. In the alternative, they seek an order that one of those actions be removed from the fast track proceedings under Rule 15-1(6) of the Rules. [2] This is a family commercial dispute. The respondents are Nick's parents, Bhupinder Nijjar ("Bob") and Rajinder Nijjar ("Raji"), Nick's brother, Rajeev Nijjar ("Raj"), and various numbered companies owned and controlled by those persons (collectively, the "Respondents"). For obvious reasons, I will refer to the parties by their first names, using the abbreviated nicknames they have given, and I intend no disrespect in doing so. [3] At the heart of this application is an allegation by Nick that there exists a "Nijjar Family Enterprise" by which all four of the individual parties - Bob, Raji, Raj, and Nick - have agreed to contribute labour, skill, and professional expertise to the enterprise and, in exchange, share in its profits. For reasons not explained, Nick does not allege that a fifth family member, his sister Karen, is part of this family enterprise. [4] In one of the four actions ("Nick's Action"), Nick alleges that Bob, Raji, and Raj have unlawfully excluded him from profits to which he claims an entitlement under the alleged Nijjar Family Enterprise and he seeks an accounting of those

profits and damages for the denial of his share of the profits. [5] Bob, Raji, and Raj deny the existence of any Nijjar Family Enterprise. They argue Nick brought his action to obfuscate or avoid the three other actions that are the subject of this application (the "Respondent Actions"). The Respondent Actions were brought by Bob, on his own behalf or through numbered companies he and Raji own, against Nick and companies Nick controls. They allege Nick has failed to repay loans from Bob and from one of his and Raji's numbered companies; and that Nick has misappropriated certain funds from Bob and Raji's numbered companies and converted those funds to his own benefit. The Respondents argue Nick started his action after receiving demands for payment in respect of matters at issue in the Respondent Actions. [6] Nick's response to the Respondent Actions is to allege he was entitled to receive all the money he is alleged to have borrowed or misappropriated. He claims this money was properly paid to him under the terms of the Nijjar Family Enterprise. Nick pleads the existence of the Family Enterprise in response to each of the three Respondent Actions. [7] Nick argues a determination of the existence of the Nijjar Family Enterprise and its terms is therefore essential to all four actions and, since there is nothing in writing establishing the alleged Family Enterprise, he argues

extensive evidence of the parties' course of conduct over the past 20 years will be necessary to prove its existence and terms. He argues that exercise ought not be repeated four times in four different trials as that will unnecessarily consume court time and will risk inconsistent findings. Hence, he claims, the four actions should be tried together. [8] The Respondents argue, among other things, that the claim of a Nijjar Family Enterprise lacks substance and ought not delay or derail the Respondent Actions, which are relatively simple and discrete. They argue Nick's Action is complex, ill-defined, and lacking in substance. They argue it would be prejudicial for them to have the Respondent Actions drawn into that nebulous proceeding. They also argue that even if such a Nijjar Family Enterprise exists, it is not necessary to address that in the Respondent Actions since it will still need to be shown that the alleged loans and alleged appropriation of monies were authorized, be it within or outside of a family enterprise. Applicable Legal Principles [9] The legal principles that apply to an application to have multiple actions tried together was set out by Master Kirkpatrick (as she then was) in Merritt v. Imasco Enterprises Inc., [1992] B.C.J. No. 160 (S.C.) and Master Keighley in Funk v. Harder, 2015 BCSC 2152. The principles from both cases were summarized by Master Taylor

in Grewal v. Grewal, 2017 BCSC 291 [Grewal, 2017] as follows: [14] Rule 22-5(8) of the Supreme Court Civil Rules gives the court discretion to order the consolidation of proceedings, or for proceedings to be tried at the same time: (8) Proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day. [15] The law to be applied on applications of this nature is well known and is ably set out by Master Keighley in Funk v. Harder, 2015 BCSC 2152, starting at para. 16 where he quotes from the decision of Master Kirkpatrick, as she then was, from Merritt v. Imasco Enterprises Inc. [1992] B.C.J. No. 160 (S.C.): I accept that the foundation of an application under R. 5(8) is indeed disclosed by the pleadings. The examination of the pleadings will answer the first question to be addressed: do common claims, disputes and relationships exist between the parties? But the next question which one must ask is: are they "so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense"? Webster v. Webster (1979), 12 B.C.L.R. 172 (C.A.). That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed outside the pleadings: (1) will the order sought create a saving

in pre-trial procedures (in particular, pre-trial conferences)? (2) will there be a real reduction in the number of trial days taken up by the trials being heard at the same time? (3) what is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest? and (4) will there be a real saving in experts' time and witness fees? This is in no way intended to be an exhaustive list. It merely sets out some of the factors which, it seems to me, ought to be weighed before making an order under R. 5(8). [17] In the case of Shah v. Bakken, [1996] B.C.J. No. 2836 (BCSC), Master Joyce, as he then was, added two further factors for consideration: 15. Other factors which in my view can be added to the foregoing list are: (5) Is one of the actions at a more advanced stage than the other? see: Forestral Automation Ltd. v. RMS Industrial Controls Inc. et al. (No. 2), unreported, March 6, 1978, No. C765633/76, Vancouver (B.C.S.C.). (6) Will the order result a delay of the trial of one of the actions, and, if so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have? [18] And finally, in the case of Murray v. Morgan, [1999] B.C.J. No. 2871, Master McCallum paraphrased Master Kirkpatrick's analysis in Merritt as: "Will the

order make sense in the circumstances". [10] The analysis requires some balancing of the factors, namely whether the degree of commonality and intertwining of issues outweighs the prejudicial factors raised by the parties opposing the order: Liu v. Tsai, 2017 BCSC 221 at para. 4; Simmonds v. Victoria (City), 2016 BCSC 951 at para. 25. [11] An order under Rule 22-5(8) is discretionary: The Owners of Strata Plan BCS 2854 v. Travelers Guarantee, 2013 BCSC 2428; Shah v. Bakken, 1996 CanLII 2522; [1996] B.C.J. No. 2836 at para. 12 (SC). Like all matters of discretion, however, it must be exercised judicially in accordance with established legal principles. Background Facts [12] Raji and Bob moved to Canada from India in the 1970s. They worked to establish a real estate development business in Vancouver, while, at least initially, also working at other jobs. Raj was born in 1976, Karen in 1980, and Nick in 1983. [13] Bob and Raji's business has been very successful. They have been involved in dozens of real estate development projects and a number of other businesses, including several hotels. For the most part, they incorporated different companies to handle different aspects of their business. For example, 685946 B.C. Ltd. ("6859 Ltd") operates the Quality Hotel Airport South while 0991342 B.C. Ltd. ("0991 Ltd") owned a development on King George Blvd. in Surrey. These two

companies feature prominently in the present dispute. [14] In the mid-2000s, Raj also became involved in the real estate development business. He obtained a law degree from the University of Toronto and, after articling in Toronto, practised law for a couple of years in Vancouver. However, he soon became interested in real estate investment and approached his parents for assistance. He left his law practice at a Vancouver firm in 2003 and focused on real estate investment. For his first project, Bob and Raji agreed to invest with Raj on the basis that Raj would provide 50% of the capital for the investment and Bob and Raji would provide the other 50%. Profits were to be shared on the same basis but Raj would manage the project with advice and help from Bob and Raji. The objective was to assist Raj in establishing himself in real estate development. [15] Raj then incorporated his own company called Tria Developments Ltd. and soon began developing his business. After that initial project with Bob and Raji, he pursued some projects on his own but he also joined again with his parents on other projects, partnering on the same terms as the original joint project. [16] In the meantime, Nick attended the University of Victoria in the early 2000s and returned to Vancouver in 2006 after receiving his bachelor's degree in psychology. He told Bob and Raji that he also wanted to learn how

to manage real estate development. He had no money of his own to invest so Bob pursued a project with Nick in which Bob invested all of the required capital but Nick would work on the project to learn the business. Bob deposes that Nick worked on a contract basis and had no equity in this project or right to the profits. This agreement was not reduced to writing. [17] Also in 2006 Nick obtained his real estate licence and, according to Bob, was paid commissions for certain real estate transactions in Bob and Raji's businesses. Bob deposes that Nick was paid these commissions regardless of whether he actually provided real estate services. Bob says this is one way he and Raji hoped Nick would "get on his feet". [18] In the years that followed, Nick worked in various aspects of Bob and Raji's businesses. From approximately 2008 to 2012 Nick worked in a management role for 6859 Ltd which operated the Quality Hotel. Nick was also designated as the general manager for a Coast Hotel location in which Bob, Raji, and Raj invested through 0957080 B.C. Ltd. Nick did not invest in this company and, while he was designated general manager for the hotel, Bob deposes Nick's responsibilities were limited and many of the tasks ordinary performed by a general manager were done by others. Nick did not maintain an office at the Coast Hotel. [19] Early in 2020, Bob and Raji learned of various

financial irregularities in their companies' finances. They allege wrongdoing on the part of their long-time financial controller and initiated a claim against him and his spouse. They also started an investigation into the matter and Nick initially assisted them by collecting relevant bank statements and financial records and storing those electronically. However, in July 2020, Bob and Raji had a significant falling out with Nick and, in October 2020, Nick deleted the entire electronic document repository. [20] In the course of investigating the irregularities, Bob and Raji discovered certain other irregularities they allege were perpetrated or facilitated by Nick. One involves an alleged misappropriation of $400,000 from an account of one of Bob and Raji's numbered companies. The other involves an alleged unauthorized withdrawal of $322,700 from another of Bob and Raji's numbered companies and a payment of those monies into a numbered company owned and controlled by Nick. These, as well as certain loans said to have been made to Nick and which have not been repaid, are the subject of the Respondent Actions and are described below. The Actions Nick's Action: S210483 [21] On January 15, 2021, Nick commenced his action against Bob, Raji, and Raj. In it he alleges that he, Bob, Raji, and Raj agreed to participate in the "Nijjar Family Enterprise" which includes the real estate

development and hotel business described earlier. He pleads that the terms of the Nijjar Family Enterprise, though not reduced to writing, include the following: · each member of the Nijjar Family (which, by definition in the notice of civil claim, excluded Karen) would contribute their labour, skill, professional expertise and know-how toward the operation, management and furtherance of the enterprise; · the assets acquired by the enterprise would be legally held by corporations, partnerships, joint ventures, and other business organizations directedly or indirectly controlled by the Nijjar Family; · the capital and profits earned by the enterprise would be held in bank accounts directly or indirectly controlled by the Nijjar Family; and · each member of the Nijjar Family would be entitled to participate in and receive the profits earned by the enterprise from time to time. [22] The claim further alleges that: · Nick has contributed his labour, skill, professional experience and know-how to the Family Enterprise since 2001 in accordance with the alleged agreement (although I note Nick was attending the University of Victoria until 2006); · Nick has worked full time for the Family Enterprise; · Bob, Raji and Raj control the corporations, partnerships, joint ventures, and other business organizations that hold the assets of the Family Enterprise, the bank accounts into which the

profits of the enterprise have been paid, and all legal documents, financial records and corporate records of the enterprise; · The enterprise has generated significant profits, almost all of which have been received and controlled by Bob, Raji, and Raj; and · Bob, Raji, and Raj have breached the enterprise agreement by failing to account to Nick for the enterprise's profits and by failing or refusing to deliver to Nick his share of profits. [23] It is also alleged that Bob, Raji, and Raj have wrongfully caused Nick to incur significant personal liabilities by purporting to represent him in a CRA investigation into the affairs of the Nijjar Family Enterprise. [24] By way of relief, Nick seeks an accounting of profits and damages in the amount of Nick's share of the enterprise's profits. This share is not specified or particularized. [25] Bob and Raji served a detailed demand for particulars on Nick seeking, among other things, particulars of the alleged Nijjar Family Enterprise and Nick's role in it. Nick responded by providing a long list of corporations and properties he claims are owned or controlled by the Family Enterprise. Many of these were incorporated when Nick was a child. Several of them are companies or properties owned only by Raj, including Raj's current and former home residence. None of them are Nick's own companies. [26] The response to the demand for

particulars does not particularize the alleged agreements Nick says govern the Family Enterprise as requested. In many instances, Nick's response states that particulars of different aspects of the alleged Family Enterprise are not "presently known" to Nick and "he will provide further particulars as discovered and in advance of trial, if necessary." The response also states that particulars of certain matters relating to the enterprise are outside his knowledge and better known to some or all the defendants. [27] Bob, Raji, and Raj have filed defences in Nick's Action denying the Nijjar Family Enterprise or any of the alleged terms. They acknowledge Nick was involved in operational aspects of some of the businesses run by Bob and Raji or by Bob, Raji, and Raj, but deny he was an investor in or held an equity stake in any of them. [28] Bob and Raji have filed a counterclaim in the Nick Action naming Nick and several numbered companies he owns or controls (or controlled) as defendants by counterclaim. The counterclaim alleges that Nick and/or the numbered companies: · were engaged to provide various services in respect of some of Bob and Raji's businesses or developments but failed to provide or complete those services; · breached agreements with Bob in respect of the development of certain properties; and · converted certain funds that had been invested by Bob or generated as

revenues from the properties. [29] Bob and Raji claim general damages by way of counterclaim and special damages in the following amounts: · $3,592,074.19 against Nick; · $2,130,333.76 against 0773907 B.C. Ltd. ("0773 Ltd"); · $1,461,740.43 against 1036861 B.C. Ltd. ("1036 Ltd") and 1037043 B.C. Ltd. ("1037 Ltd"); and · $950,000 against against 1129354 B.C. Ltd. ("1129 Ltd"). [30] 0773 Ltd is owned by Bob but, at the material time, was controlled by Nick as director. Since the filing of Nick's Action, Nick has been removed as director and replaced by Bob. 0773 Ltd has retained counsel for Nick's Action and has filed a third party notice against Nick claiming a contribution or indemnity in respect of the counterclaim against 0773 Ltd. Nick subsequently filed a fourth party notice against Bob, Raji, and Raj in respect of the third party claim. [31] Nick delivered a list of documents in his Action listing 33,297 documents. The Respondents call this a "document dump" and suggest many of the documents are not relevant to any of the actions. They took the Court to a selection of documents from this list. To the extent these selected documents have any relevance to Nick's Action, it is only to show Nick had some role in the operations of some of the businesses owned by the Respondents (a point that is not disputed) or that he was using an email address associated with the Quality

Hotel. Apart from this, I agree with the Respondents that the content of this selection of documents appears clearly irrelevant. The documents include, for example, correspondence about Nick's wedding plans and other unrelated matters. In my view, these examples are supportive of the Respondents' allegation that Nick's list of documents is a "document dump". [32] 0773 Ltd delivered its list of documents on July 27, 2021 identifying three documents. Bob and Raji delivered a list of documents on August 20, 2021 identifying 1,387 documents. Examinations for discovery have not been scheduled and a trial date is not set. [33] Nick argues that proving the Nijjar Family Enterprise and its terms will involve evidence of "a history of complex and interrelated financial and real estate transactions that took place over a period of more than 20 years." [34] The Respondents allege that, while Nick's Action was commenced before the Respondent Actions, it was a pre-emptive move to obfuscate or delay the Respondent Actions. They argue Nick's Action lacks substance, both factually and legally. They point out that Nick has not given an affidavit on this application and thus there is no evidence from him giving credence to his claim of a Nijjar Family Enterprise. They say this, together with shortcomings in his response to their demand for particulars, amongst other things, support their

position that Nick's Action is simply a tactic to avoid the Respondent Actions. The Respondent Actions [35] In early 2021, Bob and some of the numbered companies he and Raji own, commenced the Respondent Actions against Nick. These actions had been contemplated for several weeks in light of revelations of financial irregularities that came to light in the latter half of 2020. [36] The Respondents have led detailed evidence on this application of the merits of the Respondent Actions. They have done so in an effort to show that each is a distinct and, in some cases, a fairly simple action that can be discretely proved without determining whether there was a Nijjar Family Enterprise or what its structure might be. I will describe some of that evidence in the course of explaining each action. The Bob Loan Action: S211355 The Claim and the Response [37] On February 8, 2021, Bob commenced an action against Nick seeking repayment of a loan in the amount of $625,000. [38] According Bob's evidence on this application, the loan originated as a loan to Bob from his sister-in-law, Balbir Nijjar. The terms required Bob to pay interest at 9% per annum and 20% of that interest payment was to be made to Balbir's grandson, Rajin Sidhu. In 2017, Bob was going to repay the loan in full but Nick persuaded him to loan the money to him instead. Bob agreed, provided Nick assumed the interest payments

to Balbir and Rajin in accordance with Bob's agreement with Balbir. [39] Bob's evidence includes banking records showing a transfer of the principal amount of $625,000 from Bob to Nick in two installments and Nick making interests payments from November 2017 to August 2020 to Balbir and Rajin in the amounts agreed as between Bob and Balbir. The Respondents argue this is substantial evidence that the advance of $625,000 was a loan to Nick, and not a payment under an alleged Nijjar Family Enterprise, and Nick accepted it as a loan by making the agreed-upon interest payments to Balbir and Rajin. [40] In his response to civil claim, Nick pleads the facts respecting the alleged Nijjar Family Enterprise and claims the $625,000 was advanced to him as part of his entitlement to profits under that enterprise. He has not tendered an affidavit in response to Bob's evidence and thus he does not address or purport to explain the interest payments he apparently made to Balbir and Rajin. [41] Without determining the merits of the Bob Loan Action, I find the evidence tendered on this application, and the documents concerning the interest payments in particular, to be compelling evidence that the Bob Loan Action is a discrete claim that is independent to Nick's claim of a Nijjar Family Enterprise. This evidence, and Nick's lack of response to it, raises a real question as to the veracity of

Nick's assertions that the advances made to him under the Bob Loan were profit distributions under a Nijjar Family Enterprise. Status of the Bob Loan Action [42] Bob delivered a list of documents on June 4, 2021 containing 84 documents and an amended list on January 31, 2022 with an additional eight documents. On July 22, 2021, Nick delivered the same list of 33,297 documents he listed in his action. Nick was examined for discovery on February 2, 2022 and a seven-day trial has been scheduled for February 6, 2023. The Quality Inn Action: S211357 The Claim and the Response [43] The second of the Respondent Actions was filed February 8, 2021 by 6859 Ltd, which is the company owned by Bob and Raji that controls the Quality Inn Hotel. The defendants are Nick, 0773 Ltd, 1036 Ltd, and 1129 Ltd. [44] The claim alleges that on February 13, 2019, Raji arranged for 6859 Ltd to loan $200,000 to 1036 BC Ltd, a company owned by Nick. On June 27, 2019, Raji arranged for a further loan of $200,000 from 6859 Ltd to 1036 Ltd. The claim alleges that these loans are repayable on demand and demand has been made, but the defendants have failed or refused to repay them. [45] The claim further alleges that between February 13, 2019 and January 29, 2020, Nick and 1036 Ltd wrongfully took funds from a bank account belonging to 6859 Ltd through a series of 13 unauthorized transfers totalling $322,700. It

is alleged these funds were transferred to 1036 Ltd, or to make payments on credit card accounts that appear to be either Nick's personal credit card or a credit card held by 1129 Ltd. Bob deposes that neither he nor Raji was aware of or authorized any of these transfers and only discovered them recently. [46] As with the Bob Loan Action, the Respondents have led detailed evidence supporting their assertion that the $400,000 advance was a loan. This evidence includes two cheques signed by Raji advancing the loan amounts to 1036 Ltd. The memo on one cheque states "Loan to 1036861 BC Ltd" and the memo on the other cheque states "loan". The Respondents have also provided detailed evidence identifying the 13 transfers from 6859 Ltd's account and tracing those funds to accounts held by Nick and/or his companies. [47] Nick's statement of defence pleads the Nijjar Family Enterprise and claims the $400,000 payment and the $322,700 transferred from the 6859 Ltd account were not loans or unlawful withdrawals but were monies lawfully paid to him as profit distribution under the Nijjar Family Enterprise agreement. [48] Nick also pleads the money transferred 6859 Ltd to 1129 Ltd were "inter-company transfers" authorized by Bob or other family members and made in the course of conduct of the Nijjar Family Enterprise business. It is notable, though, that the particulars provided in Nick's

Action do not include 1129 Ltd as part of the Nijjar Family Enterprise. Nick's claim, as particularized, excludes from the alleged Nijjar Family Enterprise any company that he owns himself. This undermines his claim that the transfer was an "inter-company" transfer within the Nijjar Family Enterprise. [49] Nick has led no evidence to answer or explain Bob's evidence regarding the loan or the alleged unauthorized withdrawals. As with the Bob Loan Action, I find the detailed evidence led by the Respondents, and Nick's lack of response to it, is supportive of Respondent's argument that the Quality Inn Action is a discrete claim that can be determined independently of Nick's claim of a Family Enterprise. Status of the Qualify Inn Action [50] 6859 Ltd delivered a list of 23 documents on July 7, 2021 and an amended list adding 257 documents on January 25, 2022. Nick delivered his same list of 33,297 documents on July 22, 2021 and he was examined for discovery on January 26, 2022. A trial is scheduled for seven days starting December 5, 2022. 0991 Ltd Action: S213351 The Claim and the Response [51] The last of the Respondent Actions was filed on March 18, 2021 by 0991 Ltd, which is owned by Bob and Raji. It owned a development site on King George Blvd. in Surrey. The defendants in the action are Nick and 1129 Ltd. [52] The claim alleges that on February 5, 2018, Nick caused $400,000

to be withdrawn from a mutual fund held by 0991 Ltd, without Bob or Raji's knowledge or authorization. I understand from counsel that Bob and Raji believe their former controller effected this withdrawal on Nick's instruction. [53] As with the other two Respondent Actions, the Respondents have led evidence of bank records documenting the redemption of the mutual fund, the transfer of the monies from that fund to an account in the name of Bob and Raji, and a further transfer from that account to an account held by Nick. [54] Once again Nick has led no evidence in response. His response to civil claim repeats the allegation of the Nijjar Family Enterprise and claims the transfers were authorized payments to him of the profits of the enterprise. Status of the 0991 Action [55] The 0991 Ltd Action is presently subject to the fast track rule. If an order is made that the four actions be tried together, it will obviously fall out of the fast track process. However, even if I do not grant the order that these four actions be tried together, Nick seeks an order removing this action from the fast track rule. [56] 0991 Ltd delivered a list of nine documents on June 11, 2021. On July 22, 2021 Nick delivered the same list of 33,297 documents from Nick's Action. Nick was examined for discovery on October 14, 2021. The trial was originally set for November 29, 2021 but adjourned to February

7, 2021 and adjourned again pending the outcome of this application. The Nijjar Family Enterprise [57] As we have seen, the allegation of the Nijjar Family Enterprise factors heavily in all four actions, as least in Nick's pleadings. It is largely for this reason that Nick argues the four actions should be tried together. [58] A "family enterprise" is not a legal entity. As Justice Neilson stated for the Court of Appeal in Grewal v. Grewal, 2016 BCCA 237 at para. 80 [Grewal, 2016], "[w]hile the concept of a family economic unit has some descriptive value, it has no legal foundation". In that case, the trial judge had introduced the concept on his own initiative as a basis for trying to reconcile an asset allocation amongst several family members in vaguely-defined business and family relationships. On appeal, Neilson J.A. observed at para. 111 that the construct, which was outside the scope of that considered by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 [Kerr], could not provide an acceptable legal foundation for the trial judge's conclusions. [59] Apart from confirming a "family economic unit" has no legal foundation, the decision in Grewal 2016 is a lesson in the need to exercise considerable caution in using an ill-defined concept of a family enterprise to define legal relationships. [60] The evidence in this application provides almost no factual support

for the alleged Nijjar Family Enterprise. I acknowledge Nick is not required to lead evidence demonstrating the merits of his claim on this application, and he is certainly not required to prove that claim now. However, he is asking the Court to order that the Respondent Actions be tried together with Nick's Action because of this alleged Family Enterprise. That will have significant consequences for the Respondent Actions given the complexity and uncertainty of Nick's Action. In that context, I consider it appropriate to examine whether there is at least some substance to the claim of a Nijjar Family Enterprise so the factors the Court must consider on this application can be properly weighed. [61] As noted earlier, the Respondents have led evidence on this application denying the existence of a Nijjar Family Enterprise and explaining how their real estate development and hotel businesses are structured. Bob deposes that, except for specified projects in which he and Raji have partnered with Raj, none of his children have invested any capital in any of his and Raji's real estate or commercial projects. Bob deposes that his and Raji's practice is to incorporate separate companies for each of their projects and investments and Nick has no equity interest in those companies. [62] Both Bob and Raj depose that most of the companies and properties Nick claims form part of the Nijjar

Family Enterprise belong to Bob and Raji, or to Bob, Raji and Raj on the equity structure discussed earlier (50% to Raj and 50% to Bob and Raji). Other companies are owned exclusively by Raj. [63] As discussed earlier, Raj deposes that he established his own real estate development business after leaving his law practice. He deposes that Nick has never had an equity interest in any of his projects or businesses, and Bob and Raji have no interest in the projects or companies that he has developed or pursued on his own. [64] Nick has not answered any of this evidence. Indeed, he has proffered no (or almost no) evidence of his own to support his claim of a Nijjar Family Enterprise. He has not sworn an affidavit to substantiate that assertion or to particularize its terms. Rather, he relies only on his pleadings and evidence from his examination for discovery in the 0991 Ltd Action. (I will address the Respondents' objection to the use of the discovery evidence in a moment.) [65] It may be true, as Nick's counsel argues, that Nick is not required to lead such evidence on an application of this nature, but he is not precluded from doing so. There are several cases where this court has considered the evidentiary foundation for a claim in assessing whether actions ought to be tried together: Hendricks v. Xie, 2019 BCSC 1034 at para. 47; Grewal, 2017; Shah v. Bakken, at para. 19. [66]

Grewal 2017 provides an apt example. There, a couple made claims against their son and daughter-in-law alleging a family trust in respect of property that was also the subject of a family law proceeding between the son and daughter-in-law. The parents sought to have their trust claim heard together with the family law claim because property over which the parents claimed a trust was also claimed as family assets in the family law claim. In rejecting the application to have the two matters tried together, Master Taylor noted (at para. 41) a lack of evidence to support the plaintiffs' submissions under the second branch of the joinder test. He also referred to an admission by the son/husband made on discovery that he had never discussed the family trust with his parents and the respondent's suggestion that it may be contrived. [67] Similarly, I consider the near complete lack of evidence supporting the alleged Nijjar Family Enterprise to be a significant factor in weighing whether the present actions should be tried together. Nick's choice not to submit affidavit evidence answering that of Bob and Raj, and the lack of specificity about the claim in the pleadings and particulars at least raises a question at this stage as to whether the action is indeed bona fide. [68] I say "near complete lack of evidence" because, as noted, Nick has relied on the transcript of his examination

for discovery in the 0991 Ltd Action to suggest some evidentiary foundation for the alleged Family Enterprise. The Respondents object to his use of that transcript arguing it does not fall within one of the rare exceptions where a party may rely on its own examination for discovery evidence: see Wood v. Jaffer, 2018 BCSC 83. [69] I find it unnecessary to address this objection. The portions of the discovery transcript to which the Court has been directed are uncompelling in providing even a limited evidentiary basis for the alleged Nijjar Family Enterprise. At best, the discovery evidence, which largely amounts to Nick's own unsupported assertions, suggests Nick had some involvement in the operation of some of Bob and Raji's or Bob, Raji, and Raj's hotels, particularly the Quality Inn and the Coast Hotel, but this point is not disputed by the Respondents. The discovery evidence is otherwise vague and unconvincing insofar as it is said to provide independent support for Nick's assertion of an ownership stake in the various businesses and properties. Apart from Nick's unilateral assertions and some suggestion that Bob and Raji's controller was under Raj's control, it provides no persuasive evidence of a meeting of the minds or a contract of any sort by which the Nijjar family has agreed to a profit-sharing enterprise based on the respective contributions of labour, skill, or

professional employment. [70] Even if the discovery transcript had been more persuasive, and assuming it is admissible for Nick's own use in this application, I would have placed little weight on it in any event. It is one thing for a party to tender an affidavit providing evidence in support of or in response to an application. In those circumstances, the opposing party is given clear notice of the facts put in issue in the application and has the opportunity to respond to those facts through their own affidavits. Here, however, Nick has selectively chosen bits and pieces of a 124-page discovery transcript to suggest a factual basis for the Nijjar Family Enterprise. There is no way the Respondents could have, or should have been expected to, anticipate what questions and answers Nick might rely on as evidence in this application and prepare responding affidavits to answer every potential point. [71] I also find that Nick's response to the demand for particulars in Nick's Action undermines his assertion of a Nijjar Family Enterprise. His response that particulars of the enterprise are not presently known to him or are better known to some or all of the defendants seriously undermines his assertion that there is an agreement or meeting of the minds about an enterprise that includes him. [72] According to the notice of civil claim in Nick's Action, the alleged Nijjar Family

Enterprise is founded in contract. However, to the extent it might be based on principles of unjust enrichment, such as that articulated in Kerr, Nick has led no evidence, apart from the discovery transcript, suggesting support for the factual elements for a joint family venture as described in Kerr, namely mutual effort, economic integration, actual intent, or priority of the family: Kerr, paras. 89-99; Kuntze v. Kuntze, 2019 ONSC 5556 at para. 99. [73] Further, as observed in Kuntze at para. 101, the analysis for a joint family venture "applies particularly in the case of an intimate common-law relationship" but less so, if at all, in an extended family. Application of Legal Principles [74] Returning to the legal principles set out in Merritt v. Imasco and Funk v. Harder, on the face of the pleadings alone, a common claim, dispute, and relationship appears to exist in all four actions, namely the potential existence and terms of the alleged Nijjar Family Enterprise. That is the central issue in Nick's Action and his primary defence in each of the Respondent Actions. [75] However, I am not persuaded that proof of the Nijjar Family Enterprise is necessary in the Respondent Actions. Nor am I persuaded that the common claim is "so interwoven so as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense":

Webster v. Webster (1979), 101 D.L.R. (3d) 248 (B.C.C.A.). I say this for two main reasons, one of which I can explain briefly and other I will discuss in more detail. [76] First, I am not persuaded it is useful or necessary to prove the alleged Nijjar Family Enterprise in the Respondent Actions. The Respondent Actions concern discrete transactions and, assuming the Respondents meet their onus of proof, Nick will need to meet their case by showing that the specific transactions were authorized, regardless of whether they occurred within or outside a Nijjar Family Enterprise. [77] In each response to civil claim in the Respondent Actions, Nick specifically alleges that "Bob Nijjar and other family members control the finances of the Nijjar Family Enterprise". Thus, regardless of whether the payments occurred within or outside a Nijjar Family Enterprise, Nick will need to show that Bob or one of the other family members who controlled the finances authorized the specific payments to Nick. I am not persuaded that it will be necessary to prove the totality of the Nijjar Family Enterprise to do that. [78] Thus, to the extent the existence and terms of the alleged Niijar Family Enterprise overlap amongst the four actions, I am not persuaded it will be necessary to prove the full extent of that enterprise in the three Respondent Actions and, for this reason, I am not persuaded that an

order trying them together creates a significant risk of inconsistent findings or will save time in pre-trial procedures or at trial. To the extent the risk is avoided by joinder, I am not satisfied it outweighs the prejudice to the plaintiffs in the Respondent Actions in having their claims drawn into Nick's Action or the inconvenience to Raj in having to participate in three actions in which he is not presently a party. [79] Second, and perhaps more substantively, I am not satisfied on the evidence and arguments on this application that Nick's allegation of a Nijjar Family Enterprise has legal or factual substance. It is this allegation that is the dominant reason for seeking the order for joinder, yet, as discussed above, its legal basis is uncertain and its factual foundation is lacking. Nick may well be able to prove the Nijjar Family Enterprise at trial, and I am certainly not trying the claim on this application. However, he has not given the Court evidence on this application to show his claim has substance. [80] An order that all four actions be tried together would pull the relatively discrete Respondent Actions into Nick's complex, nebulous, and, undoubtedly, time-consuming action. I would not make an order having that effect when Nick's evidence on this application (which he has brought) fails to suggest his allegation of a Nijjar Family Enterprise has even an air

of reality. [81] An order that these four actions be tried together will result in a substantial delay of the Respondent Actions and, in my view, the Respondents (at least those who are plaintiffs in the Respondent Actions) will be prejudiced by that delay. Without evidence suggesting the claimed Nijjar Family Enterprise has substance, I cannot conclude this prejudice is outweighed by any potential benefit of a combined trial. [82] Nick argues the Respondents have shown no prejudice as the Respondent Actions are monetary claims and the Respondents are not in need of money. However, I consider it to be prejudicial to the Respondents to force their fairly straight-forward claims into a long and complex proceeding on the mere assertion of the Nijjar Family Enterprise. Had there been some persuasive evidence indicating the claim has some substance, I might have found otherwise, but I consider it to be prejudicial to the Respondents to have their claims delayed when Nick has either declined or is unable to lead such evidence. [83] The present case is not dissimilar to Thompson v. Coquitlam (District), 1979 CanLII 665 (B.C.S.C.) where Esson J. (as the then was) dismissed an application to have five actions for wrongful dismissal tried together. All five actions alleged wrongful dismissal each against a different municipality. The plaintiff in each action was dismissed by a municipal

defendant after the Province of British Columbia assumed responsibility for delivering social assistance, thereby putting the municipalities "out of the welfare business" as Esson J. put it. All the plaintiffs came to be employed by the Province but the degree to which their new positions were equivalent to the old ones was in issue in the proceedings. [84] The plaintiffs in each action also alleged conspiracy, but Esson J. found the claim was deficient on the pleadings. He said if it had been a valid claim, it would have been a "weighty consideration in favour of ordering consolidation" of the five actions. However, he found that since "the material does not disclose that those allegations have substance, it follows that the plaintiffs have not made out a sufficient case for such an order." [85] Here, the Respondents have not applied to strike Nick's claim of a Nijjar Family Enterprise nor sought summary determination of the issue. Nevertheless, to paraphrase Esson J., the evidence led on this application does not disclose that Nick's allegations of a Nijjar Family Enterprise has substance and it follows that he has not made out a sufficient case for the order he seeks. [86] Grewal 2017, discussed earlier, also provides support for refusing to order the actions be tried together where the substance of one of the claims has not been demonstrated. [87] Further, without evidence

suggesting the Nijjar Family Enterprise claim has substance, I cannot assess what savings might result in pre-trial procedures or number of days of trial if the actions be tried together. Nick relies on the Trial Brief he filed in the 0991 Ltd Action to show that proof of the Nijjar Family Enterprise will take considerable time and should not be repeated in four different actions. However, without some evidence demonstrating the substance of the claim, especially when the particulars are so scant, I find the trial brief to be unconvincing of what will actually be required at trial. [88] I therefore find that Nick has not established I should exercise my discretion to order these four actions be tried and I dismiss his application for that order. Fast-Track of the 0991 Ltd Action [89] For the same reasons, I am not satisfied that 0991 Ltd Action should be removed from the fast track process under Rule 15-1(6). Again, I am not persuaded that proving the full extent of the alleged Nijjar Family Enterprise is necessary for that action and, in any event, the evidence does not persuade me the claim has substance. In these circumstances, I would not deprive the plaintiffs of the benefit of Rule 15-1 at this stage. [90] As I have said earlier, I acknowledge the Trial Brief filed by Nick in the 0991 Ltd Action suggests much more than three days is needed to try the case but the evidence

does not permit me to scrutinize whether the Trial Brief reflects a realistic expectation of the evidence that must be called at the trial or how long it might take. [91] Thus, I would dismiss the application to remove the 0991 Ltd Action from Rule 15-1. However, I suggest the issue be revisited at the Trial Management Conference that will be held before the trial and, in dismissing the application before me, I am in no way limiting the discretion of the judge or master presiding at the Trial Management Conference to adjourn the trial and order that it be set for longer than three days pursuant to Rule 15-1(14). Perhaps, with the benefit of these reasons and focused trial preparation, the parties and the judge or master will be in a better position to determine whether three days is suitable for the trial. [92] The applications are therefore dismissed with costs in the cause to those Respondents who appeared. "Kirchner J."