Sharma v. Lifetec Construction Group Inc.

2022 BCSC 1569 Sharma v. Lifetec Construction Group Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sharma v. Lifetec Construction Group Inc., 2022 BCSC 1569 Date: 20220906 Docket: S236060 Registry: New Westminster Between: Rakesh Sharma Plaintiff And Lifetec Construction Group Inc., Navdeep Singh Batth, Rupinder Singh Batth also known as Ron Batth, Can-Asia Immigration Consultancy Services, Can-Asia Immigration Consultants Canada Inc. and Intercontinental Global Immigration Solutions Corporation Defendants Before: The Honourable Justice Funt Reasons for Judgment Counsel for the Plaintiff, appearing via video conference: R.S. Atwal Counsel for the Defendant, Lifetec Construction Group Inc.: Not appearing at this hearing Counsel for the remaining Defendants, appearing via video conference: K. Rejminiak Place and Date of Hearing: New Westminster, B.C. February 10, 2022 Place and Date of Judgment: New Westminster, B.C. September 6, 2022 1. introduction [1] The defendants, Can-Asia Immigration Consultancy Services ("Can-Asia Partnership"), Can-Asia Immigration Consultants Canada Inc. ("Can-Asia Inc."), and Intercontinental Global Immigration Solutions Corporation ("ICGS") (collectively, the "applicants"), seek two key orders: a) the Notice of Civil Clam ("NOCC") as against the applicants be struck under Rule 9-5 of the Supreme Court Civil Rules as disclosing no reasonable claim as against them; and b) the two certificates of pending litigation ("CPLs") the plaintiff registered, with one against a property owned by the defendants, Navdeep Batth ("Ms. Batth") and Rupinder Batth ("Mr. Batth") (collectively, the "Batths"), and the other against a property owned by ICGS, be discharged. [2] For the reasons that follow, the two orders and the other relief sought will not be granted.

2. The defendants [3] The Batths are husband and wife. [4] Can-Asia Partnership is a general partnership duly subsisting under the laws of British Columbia ("BC"). [5] Can-Asia Inc. is a federal corporation duly incorporated and subsisting under the laws of Canada. [6] ICGS is a corporation duly incorporated and subsisting under the laws of BC. [7] Mr. Batth is a partner of Can-Asia Partnership, the sole director of Can-Asia Inc., and a beneficial shareholder and operating mind of ICGS. [8] Ms. Batth is a partner of Can-Asia Partnership, the sole director of ICGS, and a beneficial shareholder and operating mind of Can-Asia Inc. [9] The plaintiff pleaded the foregoing facts in the NOCC which the applicants admitted in their Response. [10] The plaintiff also pleaded that the defendant, Lifetec Construction Group Inc. ("Lifetec"), is a corporation duly incorporated and subsisting under the laws of BC. Lifetec is not one of the applicants. 3. the cpls [11] The plaintiff has filed two CPLs. One property is owned by the Batths as joint tenants and has a civic address of 18738 20th Avenue, Surrey, BC (the "Batth Lands"). The second property is owned by ICGS and has a civic address of 307 - 8318 120 Street, Surrey, BC (the "ICGS Unit").

4. Striking a claim [12] Rules 9-5(1)(a) and (2) of the Supreme Court Civil Rules read: (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be, [ ] and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. (2) No evidence is admissible on an application under subrule (1)(a). [13] The Supreme Court of Canada in Nevsun Resources Ltd. v. Araya, 2020 SCC 5 described the test to strike: [64] A pleading will only be struck for disclosing no reasonable claim under rule 9-5(1)(a) if it is "plain and obvious" that the claim has no reasonable prospect of success (R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, at para. 17; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, at paras. 14-15). When considering an application to strike under this provision, the facts as pleaded are assumed to be true "unless they are manifestly incapable of being proven" (Imperial Tobacco, at para. 22, citing Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, at p. 455). 5. the plaintiff's key pleaded facts and relief sought [14] For ease of reference, the key pleaded facts and the relief sought are attached as Schedule "A".

6. Claims against the batths [15] The applicants originally sought that the claims against the Batths be struck under Rule 9-5(1)(a). At the hearing, Ms. Rejminiak, counsel for the applicants, stated that the applicants no longer seek the claim as against the Batths be struck. [16] The claim against the Batths involves fraud based on $100,000 the plaintiff allegedly provided to Lifetec as a result of the Batths' fraud: NOCC at paras. 16 and 17.

7. The claim against ICGS [17] The claim against ICGS is founded on conversion. The claim is that ICGS used some (or all) of the $100,000 fraudulently obtained by the Batths to acquire or increase its equity in the ICGS Unit: NOCC, paras. 27 to 30. [18] It is not plain and obvious that the NOCC discloses no reasonable cause of action against ICGS. [19] Plaintiff's counsel acknowledges that paragraph 1(c) of the Relief Sought should have included ICGS. That said, in my view, certainly with the context of the pleaded fraud, the reference to the CPLs at paragraph 1(h) of the Relief Sought is sufficient to ground the claim. In short, ICGS received all or a portion of the $100,000, knowing that the funds would have come from the Batths' wrongdoing.

8. The claim against can-asia partnership and can-asia inc. [20] The plaintiff seeks a tracing of the $100,000 and any profit made by the defendants (other than Lifetec) to be disgorged and paid to the plaintiff: NOCC, para. 31. [21] As noted, the plaintiff has pleaded fraud as against the Batths. As pleaded, the Batths are each partners in the Can-Asia Partnership and Mr. Batth is the sole director of Can-Asia Inc. and Ms. Batth is an operating mind of Can-Asia Inc. In my view, the pleadings support a tracing remedy and the disgorgement of profit. With the context of pleaded fraud, the claim cannot be said to be bound to fail. [22] In sum, the Court will not strike the plaintiff's claims as against Can-Asia Partnership or Can-Asia Inc. 9. should the cpls be discharged? [23] The applicants say that the two CPLs should be discharged because neither of them should have been registered in the first place. They submit that the NOCC does not claim an estate or interest in land. [24] A claim of an estate or interest in land is a condition for the filing of a CPL. The relevant statutory provision is s. 215 of the Land Title Act, R.S.B.C. 1996, c. 250, which reads in part: 215 (1) A person who has commenced or is a party to a proceeding, and who is (a) claiming an estate or interest in land, or [ ] may register a certificate of pending litigation against the land in the same manner as

a charge is registered, and the registrar of the court in which the proceeding is commenced must attach to the certificate a copy of the pleading or petition by which the proceeding was commenced, or, in the case of a certificate of pending litigation under Part 5 of the Court Order Enforcement Act, a copy of the notice of application or other document by which the claim is made. [ ] [Emphasis added.] [25] If the pleaded claim does not meet the threshold criterion of claiming an interest land, the Court has the jurisdiction to cancel the CPL: Berthin v. Berthin, 2018 BCCA 57, para. 40; Xiao v. Fan, 2018 BCCA 143, para. 29. [26] The applicants submit that the NOCC does not claim an interest in land with respect to either of the two subject properties. [27] The plaintiff in the NOCC does not specifically describe the defendants' actions as giving rise to a "substantive constructive trust". That said, I am satisfied that the NOCC gives rise to a substantive constructive trust: NOCC, paras. 21 to 25 and 27 to 30. [28] I read the NOCC as pleading that the Batths through fraud obtained $100,000 from the plaintiff, which they then used to acquire or increase their equity in the Batth Lands. Through ICGS (a corporation they controlled), the Batths also used the $100,000 to acquire or increase the equity in the ICGS Unit. Lifetec and ICGS were no more than the Batths' instruments of

subterfuge. [29] In Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Justice Karakatsanis, writing for the Supreme Court of Canada, stated: [21] From this jurisprudential history, I summarize the following four elements of the tort of civil fraud: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff's actions resulted in a loss. [30] Assuming the NOCC's pleaded facts are true, the four elements of the tort of civil fraud are satisfied. [31] In Vidcom Communications Ltd. v. Rattan, 2022 BCSC 562, Justice Milman recently reviewed the authorities addressing a substantive constructive trust in denying an application to cancel a CPL. [32] I adopt Milman J.'s sound analysis at paragraphs 18 to 35 of Vidcom, with the wrongdoing being the fraud of the Batths and not that of an employee as was the case in Vidcom. [33] Paragraphs 18 to 35 of Vidcom read: [18] Vidcom says that the authorities that Mr. Kay [the defendant, Ms. Rattan's common law spouse] has cited are all distinguishable, inasmuch as none of them rested on a soundly-pleaded claim to a substantive constructive trust, like this one. [19] Vidcom also relies on Save-A-Lot Holdings Corp. v. Christensen,

2022 BCCA 39. That case, like this one, involves an allegation of fraud against a former employee, coupled with an allegation of knowing participation in the fraud by the employee's relatives. The plaintiff employer, like Vidcom, caused a CPL to be placed on title to one of their properties. After hearing an application like this one to cancel the CPL under s. 215 of the [Land Title Act, R.S.B.C. 1996, c. 250] the chambers judge granted that relief, relying on Nouhi [v. Pourtaghi, 2019 BCSC 794] and its progeny. The plaintiff then applied to the Court of Appeal for a stay of that order pending appeal. [20] In granting the stay and reinstating the CPL pending appeal, Newbury J.A. first addressed the question of "whether an arguable issue has been raised as to whether the fact that the plaintiff did not plead specifically that damages would be an inadequate remedy is fatal to its claim for a constructive trust." In answering that question in the affirmative, she stated as follows: [14] Bilin [v. Sidhu, 2017 BCCA 429] said nothing about the necessity for particular wording to be used in pleadings. That question did arise in BNSF Railway Company v. Teck Metals Ltd., 2016 BCCA 350, which concerned a so‑called "substantive" or "institutional" constructive trust as opposed to a remedial one. (The distinctions between the two types of constructive trust were described in BNSF at paras.

24-55.[1]) The Court in BNSF rejected the proposition that there is an "immutable rule" that "a plaintiff must in its pleadings, and without the advantage of evidence or findings of fact, demonstrate that a monetary award would be inadequate or inappropriate and point to 'identifiable property' to which it contributed, before it may seek a declaration of constructive trust founded on a valid cause of action." (At para. 3.) [21] The footnote inserted in the middle of that paragraph stated as follows: I note parenthetically that Save‑A‑Lot's argument below was based on an assumption that the constructive trust sought here was a remedial one, i.e., one that would likely come into existence if and only if a court pronounced it as a remedy following a finding of unjust enrichment or breach of duty. However, I do note that para. 13 of page 7 of the NOCC suggests a constructive trust that came into existence when misappropriated funds were allegedly used for the improvement or maintenance of the defendants' property, including mortgage payments. This might be taken as connoting a substantive trust, but I need not decide that issue. [22] It was unnecessary for Newbury J.A. to decide the issue in that context, but I am indeed called upon to decide a similar one here. There are a number of reasons that lead me to conclude that a claim for a substantive constructive trust is indeed

adequately pleaded in this case. [23] First, I am satisfied that the conduct complained of here falls within the rubric of the traditional category of trusts that have long been recognised to arise from a defendant's wrongful act. The history of that category was summarised by Newbury J.A. in BNSF Railway Company v. Teck Metals Ltd., 2016 BCCA 350, as follows: [24] I do not propose to undertake a comprehensive review of the English law relating to the substantive, or institutional, constructive trust. Academic writers seem to agree that this type of trust developed in an ad hoc fashion from the 17th century. D.W.M. Waters, M.K. Gillen and L.D. Smith, the authors of Waters' Law of Trusts (4th ed., 2012), note that the types of obligations enforced by means of this trust "reflected the whole spectrum of remedies that were available in the equity jurisdiction", although they were mainly concerned with what we would call fraud (very broadly defined), mistake and fiduciary relationships. (At 480.) Such trusts were invoked, for example, where necessary to preclude employees from retaining secret profits made by abusing their positions; to prevent the Statute of Frauds from being used to effect a fraud; or for ensuring that a stranger who intermeddled with a trust or assisted in a breach of trust would be required to account for any profits so obtained. [Milman J.'s emphasis.] [24] At

para. 49, Newbury J.A. reproduced the following citation from Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, [1997] S.C.J. No. 52: [36] The situations which the judge may consider in deciding whether good conscience requires imposition of a constructive trust may be seen as falling into two general categories. The first category concerns property obtained by a wrongful act of the defendant, notably breach of fiduciary obligation or breach of duty of loyalty. The traditional English institutional trusts largely fall under but may not exhaust (at least in Canada) this category. The second category concerns situations where the defendant has not acted wrongfully in obtaining the property, but where he would be unjustly enriched to the plaintiff's detriment by being permitted to keep the property for himself. The two categories are not mutually exclusive. Often wrongful acquisition of property will be associated with unjust enrichment, and vice versa. However, either situation alone may be sufficient to justify imposition of a constructive trust. [ ] [39] Canadian courts also recognize the availability of constructive trusts for both wrongful acquisition of property and unjust enrichment. Applying the English law, they have long found constructive trusts as a consequence of wrongful acquisition of property, for example by fraud or breach of fiduciary duty. More recently, Canadian

courts have recognized the availability of the American-style remedial constructive trust in cases of unjust enrichment: Pettkus v. Becker, [[1980] 2 S.C.R. 834]. However, since Pettkus v. Becker Canadian courts have continued to find constructive trusts where property has been wrongfully acquired, even in the absence of unjust enrichment. While such cases appear infrequently since few choose to litigate absent pecuniary loss, they are not rare. [25] More recently, Grauer J. (as he then was) in Mayer v. Mayer, 2018 BCSC 8, summarised the current state of the law in light BNSF as follows: [134] With respect to knowing receipt, Mhinder relies on that subset involving strangers to a trust (here the brothers' trust), who receive trust property for their own use and benefit and with the knowledge that the property was transferred to them in breach of trust. It is that knowledge that establishes the "unjust" nature of the recipient's enrichment, thereby entitling the plaintiff to a restitutionary remedy; constructive knowledge (knowledge of facts sufficient to put a reasonable person on notice or inquiry) will suffice. In the absence of constructive or actual knowledge of the breach of trust, the recipient may well have a lawful claim to the trust property, and would not be considered to have been unjustly enriched: Citadel General Assurance Co v Lloyds Bank Canada, [1997] 3 SCR 805

at paras 25 and 48-51. [135] Mhinder further refers to the venerable concept of a substantive constructive trust (as opposed to a remedial one), recently resuscitated (at least as a valid pleading) by the Court of Appeal in BNSF Railway Co v Teck Metals Ltd, 2016 BCCA 350. A remedial constructive trust, as discussed above, is a judicial remedy constructed by the court and imposed to enforce an equity obligation arising from two categories: breach of fiduciary duty or (in our case) unjust enrichment. A substantive constructive trust, on the other hand, arises by operation of law as from the date of the circumstances that give rise to it, and may arise outside of the two categories that pertain to remedial constructive trusts. The court's function is merely to declare that it has arisen in the past; see BNSF Railway at paras 3-4. The court may declare that either type of constructive trust operates retrospectively. [136] The purpose of the substantive constructive trust is to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in "good conscience" they should not be permitted to retain: Soulos v Korkontzilas, [1997] 2 SCR 217 at para 17. The emphasis, then, is on a wrongful acquisition as opposed to unjust enrichment. Conceptually, as noted by Cory J. in Rawluk v Rawluk, [1990] 1 S.C.R. 70 at 81, it is very

similar to an express trust. [26] An employee who forges her employer's signature on cheques to pay herself without authority commits a theft. Such conduct is a classic example of the kind of wrongdoing that was traditionally understood, as a matter of good conscience, to give rise to a trust in both the stolen property and any property acquired with it: BNSF at para. 24. [27] Such a trust arises as a result of the defendant's wrongdoing (in this case, the wrongdoing alleged is primarily that of Ms. Rattan, but it is also that of Mr. Kay). Such a trust is, moreover, deemed to have arisen immediately and not when the court comes to award a remedy at the conclusion of the trial. [28 In Nouhi, Matthews J. noted that a claim for a nondescript constructive trust should generally be presumed to refer the remedial version unless a substantive constructive trust is expressly pleaded, but that is not invariably so. It may be preferable that a substantive constructive trust be pleaded expressly to avoid confusion, but it is not essential. Here, the word "substantive" is not expressly pleaded, but that is not determinative. I am satisfied that the NOCC before me clearly includes a claim for a substantive constructive trust. [29] A constructive trust is claimed in several places in the NOCC, both under the heading "Unjust Enrichment" and also under a separate heading, "Constructive Trust",

which contains only one paragraph (24), stating as follows: As a result of the Misappropriation and Conversion, the Fraud, the Breaches and the Unjust Enrichment, good conscience requires the imposition of a constructive trust for the benefit of the Plaintiff over any and all of the Funds that are still wrongfully being held by the Defendants and over any and all of the real and personal property, including, without limitation, Property 1, Property 2, Property 3, Property 4 [the Hamilton Street Property] and Other Real Property, that the Defendants' purchased, improved or maintained with all or a portion of the Funds. [30] I am satisfied that the NOCC thereby pleads a substantive constructive trust that is separate and distinct from the remedial constructive trust that is claimed as a remedy connected with Vidcom's allegation of unjust enrichment. [31] The other question to be addressed is whether Vidcom's claim to a substantive constructive trust is deficient because of Vidcom's failure to plead expressly that damages are or may be an inadequate remedy in this case. [32] Mr. Kay argues that that requirement applies to both kinds of constructive trust. That argument finds support in Nouhi. In that case, however, Matthews J. was dealing with a claim for a remedial constructive trust alone. Insofar as her remarks addressed the requirements for pleading a substantive constructive

trust, they were made in obiter. In any event, even as applied to a claim for a remedial constructive trust, there is reason to question whether they correctly summarised the authorities that are cited in support. In Save-A-Lot, Newbury J.A. cast doubt on whether such a requirement is properly seen as part of the test, stating as follows: [16] In his submissions on behalf of the defendants, Mr. Magnus referred to Pro‑Sys Consultants Ltd. v. Microsoft Corp. 2013 SCC 57, which he contended determines the point. With respect, I do not read Pro‑Sys as doing so. Pro‑Sys was concerned with the existence of a cause of action, and para. 92 thereof may be read a suggesting that either of two conditions must be met, i.e., the claim must "explain" why damages would be inappropriate, or a "link" between the plaintiff's funds and specific property must be shown. Strictly speaking, Pro‑Sys was not about what must be pleaded; and in any event, the second condition has been pleaded in this instance. [Original emphasis.] [33] In BNSF, which, unlike Nouhi, was a substantive constructive trust case, Newbury J.A. addressed the need to satisfy both criteria as follows: [60] No judicial authority of which I am aware suggests that the two criteria do not apply to substantive constructive trusts as well as remedial ones, although it has been pointed out that in matrimonial cases such as Pettkus and

Sorochan [v. Sorochan, [1986] 2 S.C.R. 38], a less strict view of the criteria is often taken: see [M.M.] Litman, [The Emergence of Unjust Enrichment as a Cause of Action and a Remedy of Construct Trust, (1988) 26 Alta. L. Rev. 407] at 456‑60. Outside the matrimonial context, these requirements - particularly the "proprietary nexus" - are a consistent theme. In Atlas Cabinets [and Furniture Ltd. v. National Trust Co. (1990), 45 B.C.L.R. (2d) 99 (C.A.), for example, Lambert J.A. referred to "the acts of the parties in relation to some property" that may give rise to a substantive constructive trust. (At 108.) In Chase Manhattan Bank [NA v. Israel-British Bank (London) Ltd., [1979] 3 All E.R. 1025 (Ch. D.) it will be recalled, the Court directed an inquiry as to what assets were in the possession of the defendant representing the funds in question - essentially whether they could be traced. In Peter v. Beblow, [1993] 1 S.C.R. 980, McLachlin J. stated that for a constructive trust to arise, "the plaintiff must establish a direct link to the property which is the subject of the trust by reason of the plaintiff's contribution." (At 995.) The requirement that a monetary remedy be inadequate or inappropriate is obviously related. [34] Those remarks suggest that in the context of a claim for a substantive constructive trust at least, a claim to trace stolen funds into the subject

property can suffice to meet the second requirement. Such a claim is clearly pleaded here. [35] In summary, I am satisfied that Vidcom claims an interest in the Hamilton Street Property that is sufficient to support the CPL. It follows that Mr. Kay's application to cancel the CPL must be dismissed. [34] In the case at bar, the pleaded trust (a substantive constructive trust) arose immediately upon the pleaded fraud by the Batths. Through the Batths, ICGS would have known of the fraud. I find that the NOCC meets the threshold criterion of serving to plead an interest in land with respect to each of the subject properties and supports, without more, the two CPLs. [35] I will further add that the plaintiff in the case at bar in the NOCC pleaded specifically: 34. The defendant Batths and ICGS do not have the ability to personally pay an award of damages to the Plaintiff. [36] In sum, the Court will not order the cancellation or discharge of either of the two CPLs. 10. particulars [37] The notice of application also seeks particulars of the plaintiff's claim. [38] I understand that the applicants have not made a demand for particulars as required under Rule 3-7(23). [39] In Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 (C.A.), Justice Lambert summarized the nature and function of particulars: [11] Those decisions delineate the difference between what is properly the subject matter

of a Demand for Particulars and what is more properly the subject matter of a Demand for Discovery or material that should be obtained on an Examination for Discovery. At the heart of the distinction between the two lies the question whether the material demanded is intended to, and does, delineate the issues between the parties, or whether it requests material relating to the way in which the issues will be proved. [ ] [15] [ ] the function of particulars as stated in the White Book is as applicable in British Columbia as it is under the English practice, and six points are set out there in this way: (1) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved; (2) to prevent the other side from being taken by surprise at the trial; (3) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial; (4) to limit the generality of the pleadings; (5) to limit and decide the issues to be tried, and as to which discovery is required; and (6) to tie the hands of the party so that he cannot without leave go into any matters not included. [40] I am satisfied that particulars are not required. The applicants know the case they must meet. Did the Batths, through fraudulent representations in connection with Lifetec, obtain $100,000 from the plaintiff? The applicants may

choose to meet the case by showing that the $100,000 was used by Lifetec solely for its corporate purposes. 11. conclusion [41] The application is dismissed. 12. costs [42] If the parties wish to address costs, I ask that they within 60 days of these reasons contact Supreme Court Scheduling to arrange a 55-minute 9 a.m. hearing before me. "Funt J." Schedule "A" PART 1: STATEMENT OF FACTS [ ] The $100,000 Bank Draft 13. In early January 2020, the Batths approached the Plaintiff with an investment opportunity in Lifetec, a steel manufacturing company. The Batths sought a $100,000 investment from the Plaintiff for a 2% share in Lifetec. The Batths showed the Plaintiff order slips of Lifetec which showed $3,000,000 worth of orders for the previous calendar year.

14. The Plaintiff declined the investment opportunity.

15. Later that same month, the Batths approached the Plaintiff and requested a $100,000 loan for Lifetec for 6 months at 10% interest compounded monthly for use in the business operations of Lifetec (the "Loan Agreement").

16. The Batths represented to the Plaintiff that they were directors and/or operating minds of Lifetec and personally guaranteed the repayment of the monies to the Plaintiff (the "Personal Guarantee"). But for the Personal Guarantee of the Batths, the Plaintiff would not have entered into the Loan Agreement.

17. As such, on January 29, 2020, pursuant to the Loan Agreement and in reliance on the Batths representations that they were directors and/or operating minds of Lifetec, the Plaintiff provided a $100,000 (the "Loan Monies') bank draft to Lifetec and deposited it into Lifetec's account at Royal Bank of Canada, Royal Centre, Main Branch, 1025 West Georgia Street, Vancouver, British Columbia (the "Lifetec Account").

18. In late July 2020 and throughout the latter months of 2020, the Plaintiff has on numerous occasions demanded return of the Loan Monies and interest from the Batths and Lifetec but the Batths and Lifetec have failed, refused and/or neglected to return the same.

19. Alternatively, the Plaintiff claims against the Batths and Lifetec for damages for breach of contract.

20. The full extent and particulars of the damages arising from the Batths' and Lifetec's breach of contract are not yet fully known but will be provided prior to or during the trial of this matter. Misrepresentation by the Batths 21. The Batths, represented to the Plaintiff that they were directors and/or operating minds of Lifetec and required the Loan Monies for use in the business operations of Lifetec (the "Representations").

22. The Plaintiff relied on the Representations and the Personal Guarantee by the Batths and was induced into depositing the Loan Monies into the Lifetec Account.

23. The Batths made the Representations fraudulently because they never intended to use the Loan Monies for the business operations of Lifetec.

24. In the alternative, the Batths made the Representations recklessly, not caring whether they were true or false.

25. The Batths made the Representations intending the Plaintiff to act on them and the Plaintiff was in fact induced by the Representations to act to his detriment.

26. By reason of the Batths actions including the misrepresentations, the Plaintiff has suffered loss and damage including but not limited to the loss of the Loan Monies, interest, legal fees, emotional damage, anxiety, grief, anguish and loss of credit status. Conversation and Misappropriation and Certificates of Pending Litigation 27. The Batths, rather than using the Loan Monies for the business operations of Lifetec, wrongfully converted and misappropriated the Loan Monies for their own personal use and/or the use of ICGS.

28. The particulars of the Batths and ICGS' wrongful conversion and misappropriation of the Loan Monies are as follows: (a) ICGS wrongfully applied a portion of the Loan Monies to acquire or increase its equity in the ICGS Unit. (b) The Batths wrongfully applied a portion of the Loan monies to acquire or increase their equity in the Batth Lands.

29. By reason of the foregoing, ICGS holds its registered interest in the ICGS Unit in trust for and for the benefit of the Plaintiff.

30. By reason of the foregoing, the Batths hold their registered interest in the Bath Lands in trust for and for the benefit of the Plaintiff.

31. Further, the Plaintiff seeks a tracing of the Loan monies and any profit made by the Batths, ICGS, Can-Asia Partnership and/or Can-Asia Inc. through the use of the Loan Monies should be disgorged and paid to the Plaintiff. Unjust Enrichment 32. By reason of the Batths and Lifetec's breaches of the Loan Agreement, the Batths and Lifetec have been unjustly enriched and there is no juristic reason for the Baths or Lifetec to be enriched at the expense of the Plaintiff.

33. Despite repeated requests, the defendants or any of them, have failed, refused and/or neglected to pay the Loan Monies, interest and damages to the Plaintiff to date.

34. The defendant Batths and ICGS do not have the ability to personally pay an award of damages to the Plaintiff. PART 2: RELIEF SOUGHT 1. Wherefore the Plaintiffs claim against the Defendants for: (a) judgment in the amount of $100,000, including contractual interest at the rate of 10% compounded monthly from February 2020 to the date of the judgement, alternatively, pre-judgment and post-judgment interest pursuant to the Court Order Interest Act; (b) in the alternative, damages for breach of contract; (c) further and in the alternative, damages for fraudulent misrepresentation against the Batths; (d) in the alternative, damages for negligent misrepresentation against the Batths; (e) further, punitive and aggravated damages; (f) in the further alternative, damages for unjust enrichment; (g) a certificate of pending litigation against the Bhatt Lands; (h) a certificate of pending litigation against the ICGS Unit; (i) damages for wrongful conversion and misappropriation against the Batths; (j) tracing of the Loan Monies and disgorgement of any profits made from wrongful use of the Loan Monies; (k) costs of this action on a solicitor and own client basis; and (l) such further and other relief as to this Honourable Court may deem just.