






Citation:


Gill 
          et al v. Darbar et al


Date:
20030102









2003 
          BCCA 3


Docket:


CA029974











COURT OF APPEAL FOR BRITISH COLUMBIA




BETWEEN:




WAHIGUROO PALL SINGH GILL, HARABANS KAUR GILL,

TAGE KAUR SHOKKER (nee SIDHU), JASMOHANJJIT KAUR GILL,

Administrator of the Estate of SURINDER KAUR SINDHU, Deceased




RESPONDENTS

(Plaintiffs)




AND:




NANAKSAR THATH ISHAR DARBAR and AMAR SINGH SIDHU also known as

AMARSING SIDHI also known as AMAR SINGH also known as AMARSINGH also 
          known as BABBA AMAR SINGH JI




APPELLANTS

(Defendants)



















Before:


The 
          Honourable Mr. Justice Smith







(In 
          Chambers)












A.J. 
          Roberts


Counsel 
          for the Appellant




D.H. 
          Unterman


Counsel 
          for the Respondent




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia






17 
          December 2002






Place 
          and Date of Judgment:


Vancouver, 
          British Columbia






2 
          January 2003










Reasons for Judgment of the Honourable 
    Mr. Justice Smith:






[1]

There are two applications before the Court.  The respondents (plaintiffs) 
    apply for security for the trial judgment and for costs of the appeal and 
    costs of the trial.  The appellants (defendants) respond with an application 
    to stay proceedings, including execution, in the Supreme Court pending disposition 
    of the appeal.

[2]

For ease of narrative, I will refer to the parties as plaintiffs and 
    defendants in these reasons.

[3]

The mother, brother, daughter, and legal representative of Surinder 
    Kaur Sidhu, deceased, brought action in the Supreme Court to recover certain 
    land from the defendants on the ground that the defendant Amar Singh had unduly 
    influenced the deceased to transfer the land to the defendant society, which 
    is controlled by the defendant Amar Singh.

[4]

Following a lengthy trial, the trial judge granted judgment to the 
    plaintiffs.  On June 25, 2002, he ordered that title to the land be vested 
    and registered in the name of the deceaseds daughter, Tage Kaur Shokker.  
    On July 29, 2002, the defendants filed their notice of appeal.  In supplementary 
    reasons handed down on October 10, 2002, the trial judge ordered the defendants 
    to pay to the plaintiffs $155,000 in assessed costs of the action and $172,000 
    for adjustments in respect of the land.

[5]

Title to the land has since issued in the name of Tage Kaur Shokker 
    consequent upon the judgment and she has raised money on the land and has 
    spent money developing it for sale.

[6]

I will deal first with the defendants application for a stay of proceedings 
    pending disposition of the appeal.  I observe, at the outset, that the defendants 
    have identified no authority in support of their submission that I may enjoin 
    further dealings with the land.  These reasons will be concerned only with 
    the pecuniary aspects of the trial judgment.

[7]

The applicable principles are not in dispute.  Generally, a successful 
    plaintiff is entitled to the fruits of the judgment but this Court may stay 
    proceedings if satisfied that it is in the interests of justice to do so:
Voth Brothers Construction (1974) v. National Bank of Canada
(1987), 12 B.C.L.R. (2d) 43 at 44-45 (C.A. [In Chambers]).  The trial judgment 
    must be assumed to be correct and protection of the successful plaintiff is 
    a pre-condition to granting a stay:
Morrison-Knudsen Co. v. British 
    Columbia Hydro & Power Authority
(1976), 112 D.L.R. (3d) 397 at 
    404 (B.C.C.A.).  The applicant for a stay must satisfy the familiar three-stage 
    test, that is, the applicant must show that there is some merit in the appeal, 
    that the applicant will suffer irreparable harm if the stay should be refused, 
    and that, on balance, the inconvenience to the applicant if the stay should 
    be refused would be greater than the inconvenience to the respondent if the 
    stay should be granted:
British Columbia (Milk Marketing Board) v. Grisnich
(1996), 50 C.P.C. (3d) 249 at 252 (B.C.C.A. [In Chambers]).

[8]

The defendants raise three grounds of appeal.

[9]

First, they submit that the trial judge committed palpable and overriding 
    error in drawing the inference that the defendant Amar Singh exerted undue 
    influence or fraudulently induced Surinder Kaur Sidhu to give him the land.  
    The plaintiffs alleged that Amar Singh promised Surinder Kaur Sidhu that, 
    if she would give the land to him, he would cure her cancer and build a temple 
    in her honour on the land.  The trial judge noted that there was no direct 
    evidence of such promises.  However, he concluded:

[150] 
    For the last quarter century of her life, Surinder had been in the thrall 
    of Amar Singh.  He was the most influential person in her life.  She believed 
    that he had powers which might be described as supernatural: she believed 
    he was a Sant.



[151] 
    Specifically, at the material times before the transfer took place, Surinder 
    believed that Amar Singh could and would intercede with God to cure her cancer.  
    She believed that it was a condition of obtaining a cure that she transfer 
    the land to him.  Surinder also believed that Amar Singh would build a temple 
    on the land, in her name and in her honour, if she gave the land to him.



[152] 
    Amar Singh knew that Surinder believed these things and he allowed her to 
    entertain those beliefs.  I doubt that he ever made such promises in express 
    words but I do find that his words to Surinder and to Tage were intended to 
    and did convey to Surinder that what she believed would come to pass, if she 
    gave the land to him.



[153] 
    I find that Surinder gave the land to Amar Singh in return for what she regarded 
    as promises and which, I find, by a combination of the words spoken by Amar 
    Singh and the acquiescence by him in knowingly allowing Surinder to entertain 
    her beliefs, were in fact promises.





[10]

Counsel 
    for the defendants referred to evidence that, if accepted at face value, might 
    support the inference that Surinder Kaur Sidhu was not the victim of fraud 
    or undue influence perpetrated by Amar Singh.  However, the trial judge considered 
    all of that evidence.  Moreover, there was much evidence from which the trial 
    judge could rationally infer that Surinders will was indeed overborne by 
    Amar Singh.

[11]

The 
    defendants second ground of appeal is that the trial judge committed reversible 
    error in concluding that Surinder Kaur Sidhu was the beneficial owner of the 
    land at the time that it was transferred to the defendant Society by her brother 
    and her mother, who were the registered owners of the land in the Land Title 
    Office.

[12]

The 
    plaintiffs pleaded that Surinder Kaur Sidhu was the beneficial owner of the 
    land.  The defendants pleaded that the land was held in trust for Surinder 
    by her mother and her brother and that Surinder, in turn, held it on behalf 
    of Amar Singh.  In the alternative, they pleaded that Surinder gave the land 
    to Amar Singh for charitable purposes.

[13]

The 
    defendants led no evidence to support their plea that Surinder held the land 
    in trust for Amar Singh.  During his submission, counsel for the defendants 
    referred to certain parts of the evidence and appeared to suggest that the 
    beneficial owners of the land were Surinders brother and mother.  However, 
    such an allegation was not pleaded and, I am advised, was not argued at trial.  
    Accordingly, it is not open to the defendants to make this submission in this 
    Court.

[14]

The 
    trial judge recounted a great deal of the evidence in his reasons, some of 
    which, arguably, tended to show that Surinder Kaur Sidhu was not the beneficial 
    owner of the land.  However, his ultimate conclusion was that she purchased 
    the property as an investment in 1973, when she was employed in the real estate 
    industry and was investing in land, buying and selling properties and registering 
    them in her own name.  He traced the dealings with the land in considerable 
    detail from that date until the material times.  He concluded:

[143] 
    Based on the evidence recited above, I have arrived at the following conclusions 
    of fact.



[144] 
    First, Surinder was the sole, beneficial owner of the land at the time it 
    was transferred to Amar Singh.



[145] 
    Although there was considerable informality over the years among members of 
    the Gill family as to the use of and benefit from various homes and properties 
    which on title were owned by one or other of them, and although all members 
    of the family helped out in the maintenance of the properties, nothing in 
    their words or actions suggested anything but that Surinder was the sole owner.  
    Among other things, this is true of the 1995 mortgage, from which Surinder 
    did not benefit.  She allowed the mortgage to be placed simply as a loyal 
    and helpful member of the family, when the family needed financial help.



[146] 
    The ultimate proof that the land was hers is the transfer itself.  When Surinder 
    told Pall and Harbans to transfer the land to Amar Singh, they did so.



[147] 
    Nor was the land ever held in trust by Surinder for Amar Singh.  The evidence 
    as to the various dealings with the land, such as the attempts to develop 
    it and the taking out of the 1995 mortgage, are inconsistent with the existence 
    of a trust.





[15]

In 
    respect of these two grounds of appeal, the defendants will be essentially 
    asking a panel of this Court to re-try the case and to substitute their view 
    of the facts for that of the trial judge.  That is not something that this 
    Court can do: see, for example,
Toneguzzo-Norvell v. Burnaby Hospital
, 
    [1994] 1 S.C.R. 114 at pp. 121-22.  Accordingly, while I am not prepared to 
    say that the appeal cannot possibly succeed, it is my view that the chance 
    of success on these issues is minimal.

[16]

The 
    third ground of appeal alleges an error of law arising from the fact that, 
    on numerous applications for social assistance over a lengthy period of time, 
    Surinder Kaur Sidhu declared that she did not own property.  The defendants 
    contended before the trial judge that, if she was the beneficial owner of 
    the property, her estate was disentitled to relief in equity because it did 
    not come with clean hands.  The trial judge said of this submission:

[167] 
    I have found that Surinders receipt of welfare was based on repeated applications 
    by her which fraudulently concealed her ownership of land.  The defence contends 
    that this history disentitles her estate to equitable relief.



[168] 
    The short answer to this is that the blameworthy conduct must have some connection 
    with the relief sought. In this case, it did not.





[17]

The 
    defendants submit that the trial judge erred in law in that passage.  They 
    refer to the following authorities:
Canada (Attorney General) v. Massinghill
(1915), 17 Ex. C.R. 510 (Exch. Ct.),
Gascoigne v. Gascoigne
, 
    [1918] 1 K.B. 223, and
Re Emerys Investments Trusts, Emery v. Emery
, 
    [1959] 1 All E.R. 577 (Ch. D.).  Those cases appear to me to make it clear 
    that the basis of the clean hands doctrine is that No man can take advantage 
    of his own wrong:
Canada (Attorney General) v. Massinghill
, 
    supra
, at 514.  The point is made in other terms by the learned authors 
    of
Hanbury & Martin Modern Equity
, 15
th
ed. (London: 
    Sweet & Maxwell, 1997) at p. 26, where they say of the clean hands doctrine 
    that:

...equitable 
    relief will only be debarred on this ground if the plaintiffs blameworthy 
    conduct has some connection with the relief sought.  The court is not concerned 
    with the plaintiffs general conduct.  Thus, in
Argyll (Duchess) v. Argyll 
    (Duke)
, the fact that the wifes adultery had led to the divorce proceedings 
    was no ground for refusing her an injunction to restrain her husband from 
    publishing confidential material.  Nor will unclean hands debar a claim which 
    does not involve reliance on ones own misconduct. [
Tinsley v. Milligan
, 
    [1994] 1 A.C. 340 (H.L.)].





[18]

Counsel 
    for the defendants did not suggest that the improper conduct which the defendants 
    invoke in this regard was in any way relied upon in the litigation by the 
    plaintiffs.  In my opinion, it is unlikely that this ground of appeal will 
    succeed.

[19]

The 
    next two stages of the three-stage approach require a consideration of whether, 
    if the stay should not be granted, the defendants will suffer irremediable 
    harm and where the balance of convenience lies.   I will deal with these branches 
    of the test together.

[20]

The 
    defendant Society was incorporated in Ontario and is registered extra-provincially 
    in B.C.  It is wholly controlled by the defendant Amar Singh.  The plaintiffs 
    have been unable to find any assets in British Columbia or elsewhere owned 
    by either defendant, except for a parcel of real estate in Ontario owned by 
    the defendant Society.  The Society purchased that parcel for $675,000 in 
    1997.  On the date of purchase, it granted a mortgage of the land for $414,000.  
    As of September 2002, the balance owing on that mortgage was $360,357.  On 
    September 12, 2002, the Society granted a second mortgage on the land in the 
    amount of $100,000.  Thus, the defendant Society has an apparent equity in 
    the land of approximately $215,000.

[21]

On 
    January 6, 2000, judgment was granted in the Supreme Court of British Columbia 
    against the defendant Society in favour of Jatinder Minhas and Bhupinder Singh 
    Nijjar for $250,909 and costs for the return of a deposit that they paid to 
    the defendant Society on account of the purchase price of the land that was 
    returned to the plaintiffs in this action, which the defendants had agreed 
    to sell to them.  The judgment was registered in Ontario on November 21, 2002, 
    and a writ of execution has since been issued by the Superior Court of Justice 
    in Toronto to the Sheriff in the Region of Peel, instructing him to sell the 
    property.  Unless the plaintiffs place their execution in the hands of the 
    Sheriff before he sells the land and distributes the proceeds of sale, they 
    will not be entitled to share in the proceeds under the Ontario
Creditors 
    Relief Act
.

[22]

None 
    of that is controverted in the defendants evidence, which is contained in 
    an affidavit sworn by a Mr. Baljit Dhaliwal on information and belief.  His 
    informants are said to be Amar Singh and members of the defendant Society.  
    He does not say what information he obtained from each source.  In his affidavit, 
    the defendants disclose the land in Ontario as an asset and assert that it 
    is exposed to claims from the aforesaid judgment creditors in excess of $1 
    million, as well as to the claims of the plaintiffs in this action.  Mr. Dhaliwal 
    deposes that, if this appeal fails and if the judgment creditors proceed to 
    execute on their judgment, the Ontario society will have insufficient assets 
    to satisfy those claims, and will be unable to survive.  He deposes, further, 
    that the defendant Society serves a congregation of one to two hundred Ontario 
    resident Sikhs who are of modest means and who have donated and loaned 
    monies to assist the society to survive.  Notably, there is no assertion 
    that the defendant Society has no other assets or no income and no assertion 
    as to the personal means of the defendant Amar Singh.

[23]

Accordingly, 
    it appears that whether a stay of execution on the judgment is granted or 
    not, the defendant Society stands to lose all of its equity in the Ontario 
    land.  On the other hand, if a stay is granted, the plaintiffs will be precluded 
    from sharing in the proceeds of the sale of that land.  Therefore, the harm 
    that will be suffered by the plaintiffs if a stay is granted outweighs the 
    harm that will be suffered by the defendants if a stay is refused.

[24]

I 
    am not persuaded that a case for a stay of proceedings has been made out.  
    There is little merit in the proposed grounds of appeal and the balance of 
    convenience test favours the refusal of a stay.  Accordingly, the defendants 
    application to stay proceedings, including execution, in the Supreme Court 
    is dismissed.

[25]

The 
    plaintiffs seek an order for security for costs of the appeal.  The burden 
    is on the defendants on this application to show that it is in the interests 
    of justice that security for costs not be awarded:
Zen v. M.R.S. Trust 
    Company
(1997), 88 B.C.A.C. 198 at 201-02 (In Chambers).  After a 
    preliminary consideration of the merits of the appeal and after considering 
    the evidence of the defendants means, I am satisfied that security for costs 
    of the appeal should be awarded.

[26]

Counsel 
    for the plaintiffs has estimated their costs, if the appeal should be unsuccessful, 
    at approximately $15,000 to $20,000 including disbursements.  He emphasized 
    that this estimate is not a considered one.  I must consider the means of 
    the defendants when making an order for security for costs but, as I have 
    already noted, their evidence in this regard is not compelling.  I note, as 
    well, that the plaintiffs brought their application in a timely way after 
    notice of appeal was filed and that it appears that they will have difficulty 
    realizing on a judgment for costs if they should succeed on the appeal.  On 
    the whole of the evidence, and given the weakness of the evidence on both 
    sides of this issue, I consider that security for costs in the amount of $10,000 
    would be appropriate.  The appeal will be stayed until security in that amount 
    is posted in a form satisfactory to the Registrar.

[27]

On 
    the application for security for the costs of trial and for the trial judgment, 
    the burden is on the plaintiffs to show that it is in the interests of justice 
    to order security and that the plaintiffs will suffer prejudice if the order 
    is not made.  In determining the interests of justice I may take into account 
    the merits of the appeal and the effect of an order for security on the ability 
    of the defendants to continue the appeal:
Aikenhead v. Jenkins
2002 BCCA 234 at para. 30.

[28]

This 
    appeal has little chance of success.  The defendants evidence does not permit 
    me to conclude that they have made full and frank disclosure of their financial 
    means.  Moreover, as the evidence stands, if the plaintiffs succeed in retaining 
    their judgment, which seems likely, they are unlikely to be able to recover 
    anything beyond their rateable share of the sale proceeds of the land in Ontario, 
    assuming they are able to participate in their distribution. To allow the 
    appeal to proceed without requiring the defendants to post substantial security 
    would be to allow the defendants to gamble with the plaintiffs money: see
Fraser Canyon Transport Ltd. v. 5391945 B.C. Ltd., 539197 B.C. Ltd., 
    and Teal Cedar Products Ltd.
2002 BCCA 625 at para. 11.

[29]

On 
    a consideration of all of the circumstances, I conclude that it is appropriate 
    that the defendants be required to post substantial security for the trial 
    costs and for the pecuniary portion of the trial judgment as a condition of 
    proceeding with this appeal.  I fix the amount of that security at $300,000. 
     It may be posted in a form satisfactory to the Registrar.  The defendants 
    have not satisfied me that they will be unable to prosecute the appeal if 
    they should be required to post security.  The plaintiffs will be entitled 
    to withdraw all or parts of that sum on account of their judgment upon lodging 
    security in a form satisfactory to the Registrar for repayment, including 
    interest at post-judgment rates, should the appeal be allowed.

[30]

In 
    summary:

1.   The defendants application for a stay of proceedings, including 
    execution, in the Supreme Court is dismissed;

2.   The plaintiffs application for security for costs of the appeal 
    is allowed and it is ordered that proceedings in the appeal be stayed until 
    the defendants post security in the amount of $10,000 in a form satisfactory 
    to the Registrar;

3.   The plaintiffs application for security for the trial costs and 
    the trial judgment is allowed and it is ordered that proceedings in the appeal 
    be stayed until the defendants post security in the amount of $300,000 in 
    a form satisfactory to the Registrar.







The 
    Honourable Mr. Justice Smith






