COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Singh v. Singh,

2020 BCCA 21

Date: 20200123

Docket: CA45627

Between:

Sawaranjit Sarah
Singh

Respondent

(Claimant)

And

Ranjit Singh also
known as Ranjit Bopharai

Appellant

(Respondent)

And

Regency Park Capital
Corporation, Regency Park Capital 2007,
Koocanusa Projects Pvt. Ltd., Regency Park Capital 2011, Inc., and
Regency Park Capital 2012 Inc.

Respondents

(Respondents)

And

Harkiran Raj Singh
also known as Raj Singh

Respondent

(Respondent
by Counterclaim)

Before:

The Honourable Madam Justice Smith

The Honourable Madam Justice Garson

The Honourable Madam Justice Fisher

On appeal from:  An
order of the Supreme Court of British Columbia, dated
September 4, 2018 (
Singh v. Singh
, 2018 BCSC 1513,
Vancouver Docket E142797).

Counsel for the Appellant:

G.K. Thomas

Counsel for the Respondent Sawaranjit Sarah Singh:

D.E. Labun

Place and Date of Hearing:

Vancouver, British
  Columbia

October 2829, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2020

Written Reasons by:

The Honourable Madam Justice Garson

Concurred in by:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Fisher

Table of Contents

Paragraph Range

I. INTRODUCTION

[1] - [4]

II. HISTORY OF THE MARRIAGE

[5] - [8]

III. REASONS FOR JUDGMENT

[9] - [157]

A.
  Trial Judges Conclusion as to Credibility and Reliability

[9] - [12]

B. Reasons for
  Judgment on Division of Property, Support, and Costs

[13] - [157]

IV. GROUNDS OF APPEAL

[21] - [25]

V. OWNERSHIP
  AND VALUE OF THE CONTESTED PROPERTIES

[26] - [105]

A.
  Standard of Review

[26] - [27]

B. India Properties

[28] - [74]

1. Sector 35A  $448,233

[38] - [49]

a)
  The Evidence at Trial

[38] - [41]

b) The Judgment Below and the Arguments on Appeal

[42] - [44]

c) The Fresh Evidence

[45] - [46]

d) Conclusion on Sector 35A

[47] - [49]

2. Sector 38C and Sector 8

[50] - [63]

a)
  The Evidence at Trial

[50] - [57]

b) The Judgment Below and the Arguments on Appeal

[58] - [60]

c) The Fresh Evidence

[61] - [61]

d) Conclusion

[62] - [63]

3. F44 Uppals Marble Complex  $434,489

[64] - [74]

a)
  The Evidence at Trial

[64] - [68]

b) The Judgment Below and the Arguments on Appeal

[69] - [71]

c) The Fresh Evidence

[72] - [72]

d) Conclusion

[73] - [74]

C. Palm Springs Vacation Property

[75] - [82]

1.
  The Evidence at Trial

[75] - [77]

2. The Judgment Below and the Arguments on Appeal

[78] - [81]

3. Conclusion

[82] - [82]

D. Jasjit Khurana Investment

[83] - [87]

1.
  The Evidence at Trial

[83] - [83]

2. The Judgment Below and the Arguments on Appeal

[84] - [86]

3. Conclusion

[87] - [87]

E. Varinder Kumar and Surinder Gill Loans

[88] - [92]

1.
  The Evidence at Trial

[88] - [88]

2. The Judgment Below and the Arguments on Appeal

[89] - [91]

3. Conclusion

[92] - [92]

F. Koocanusa Projects

[93] - [103]

1. The Evidence at Trial

[94] - [99]

2. The Judgment Below and the Arguments on Appeal

[100] - [102]

3. Conclusion

[103] - [103]

G. Summary of Conclusions

[104] - [104]

H. Allocation of Properties, In Specie

[105] - [105]

VI. SECTION 95  UNEQUAL DIVISION ORDER

[106] - [147]

A.
  Overview

[106] - [111]

B. The Judgment Below and the Arguments on Appeal

[112] - [124]

C. Standard of Review

[125] - [126]

D. Discussion

[127] - [147]

VII. MISCELLANEOUS GROUNDS OF APPEAL

[148] - [148]

VIII. SPECIAL COSTS

[149] - [154]

IX. DISPOSITION

[155] - [157]

Summary:

The appellant appeals from several
orders in this family law dispute, arguing that the trial judge made factual
errors regarding ownership and valuation of assets, erred in fact and in law in
reapportioning $250,000 to the respondent, and erred in his exercise of
discretion in awarding special costs to the respondent. Held: Appeal allowed in
part. The trial judge made a palpable and overriding error in apportioning the
value of the property known as Sector 35A to the appellant where the appellant
does not own it and never has. The appellant has not demonstrated any other
errors with respect to the remaining assets, the reapportionment, or the award
of special costs.

Reasons for Judgment of the
Honourable Madam Justice Garson:

I.

Introduction

[1]

Ranjit Singh (Mr. Singh) appeals from the order pronounced
by Justice Masuhara in this high conflict family case. Justice Masuharas
reasons for judgment can be found at 2018 BCSC 1513. On appeal, the issues
concern the division of property between Mr. Singh and his former spouse,
Sawaranjit Sarah Singh (Ms. Singh). Mr. Singh states 13 grounds of
appeal. In broad compass, he says the judge overvalued certain assets, erred in
awarding certain assets
in specie
to Mr. Singh, erred in awarding Ms. Singh
$250,000 under s. 95 of the
Family Law Act,
S.B.C. 2011, c. 25
(
FLA
), to compensate for significant unfairness to her, and erred in
awarding her special costs.

[2]

In reply, Ms. Singh contends that Mr. Singh has not
identified any reviewable error and simply attempts to retry the case.

[3]

The trial lasted 27 days. It was complicated by Mr. Singhs
inadequate and misleading disclosure of his assets. The judge found him to be
an unreliable and untruthful witness.

[4]

For the reasons that follow, I would dismiss the appeal except with
respect to the value ascribed to the property described as Sector 35A, located
in India.

II.

History of the Marriage

[5]

I shall briefly outline the main events in the parties marriage.

[6]

Mr. and Ms. Singh married in India in 1977. They
immigrated to Canada in 1979. There are two adult children of the marriage, a
daughter age 36 at the time of trial and a son age 32. After 37 years of
marriage the parties separated in 2014. Mr. Singh was 65 years of age at
the time of trial and Ms. Singh 62.

[7]

Ms. Singh is a registered nurse. She worked as a nurse
throughout most of the marriage. Mr. Singh was a dental technician at the
beginning of the marriage but he went on to become a businessman.

[8]

By the time of their separation, the parties, or Mr. Singh,
owned property in British Columbia, Arizona, and India (the India Properties).
The trial judge also found that Mr. Singh held an interest in a house in
Palm Springs. The trial mainly concerned the conflicting claims to these
assets, their values, and, in some cases, the legal ownership, as well as some
loans.

III.

Reasons for Judgment

A.

Trial Judges Conclusion as to Credibility and Reliability

[9]

In the introduction to his reasons for judgment, the trial judge
summarized his views about the credibility and reliability of the parties as
witnesses. He found Mr. Singh to be an unreliable and untrustworthy witness.
He found Ms. Singh to be a careful and reliable witness. At paras. 2022
he said:

[20]      Ms. Singh generally strove to be careful in
the testimony that she gave. Though there are questions that arose regarding
certain transactions such as her lack of understanding of monies she received
from Columbian Recycling and evidence that Ms. Singh was somewhat
disruptive when permitted to visit the Super 8 Motel; Ms. Singh was
not involved in the financial side of the family and was so because Mr. Singh
wanted it that way and she was and has been under significant stress. I sensed
that Ms. Singh was submissive in the relationship and deferred to Mr. Singh
during the marriage. On the whole and in the context of a stressful family
dispute I found her evidence generally reasonable.

[21]      On the other hand, Mr. Singhs conduct and
testimony was very troubling. One difficulty that I had with Mr. Singh was
his inability to adequately formulate questions for witnesses he was examining.
Mr. Singh has no difficulties in understanding English but seemed to have
significant difficulties in finding the words to formulate questions. At trial,
he was requested continuously to ask a witness questions and not to make
statements as his statements did not constitute evidence. He was told numerous
times not to provide answers to his witness while they were being cross
examined. He gave estimates as to the length of his examination of witnesses
but was unable to meet them. Even after being warned not to refer to without
prejudice settlement proposals, Mr. Singh continued to attempt to do
so.

[22]      I detail later the
serious concerns that I developed increasingly over the course of the trial
with Mr. Singhs credibility and reliability. Any concerns I have with Ms. Singhs
testimony pale in comparison to that of Mr. Singh.

[10]

At paras. 85116 the trial judge enumerated his findings
that Mr. Singh breached court orders, made untruthful statements in
affidavits, gave inconsistent and conflicting testimony, falsely swore his Form
F8 Financial Statement, testified that amounts up to $10,000 were not material
in terms of his disclosure, gave false testimony in court, disregarded the
judges instructions not to discuss his testimony while under
cross-examination, admitted that he did not read affidavits he swore, admitted
he doctored a document in order to mislead the court, forged Ms. Singhs
signature, breached a restraining order, and commenced a bankruptcy proceeding
in Arizona for an improper purpose.

[11]

The judge concluded in the face of all this that he could place
little if any reliance upon Mr. Singhs testimony.

[12]

To illustrate the nature of Mr. Singhs testimony, I excerpt
some of the trial judges findings:

[85]      The evidence is clear that Mr. Singh, in
violation of an order prohibiting him from doing so transferred funds from the
account of RPC 2011 [Regency Park Capital 2011 Inc.] into personal
accounts. Mr. Singh was found in contempt by the Arizona Superior Court
for his actions. Mr. Singh testified that the judge indicated that the
judge [
sic
] had made a mistake in issuing the contempt order, however,
he provided no independent evidence to support this

[86]      Mr. Singh also admitted that statements he
made under oath in various affidavits were not true. He blamed his daughter and
his lawyer for putting things into the affidavit which were wrong and which he
did not read or understand. He stated that he was mentally suffering and under
financial hardship when he signed the affidavits. I do not accept any of these
excuses.

[91]      Another example was Mr. Singh resiling from
his sworn statement in affidavit #5 wherein he stated:  I have never sent
any money to India, if anything I have only every [sic] brought monies from
India to Canada. He stated at trial that the statement was untrue and stated he
had not read the affidavit. This was a repeated excuse in the trial.

[92]      Also concerning was Mr. Singhs testimony
regarding the monies he was owed. At one point he stated that the only person
who owed him money was Mr. Saini. He then spoke of someone else owing him
$50,000. Mr. Kumar owed him money. When reminded that he had earlier
testified that only Mr. Saini owed him money, he said that he was mistaken
and was positive that only Mr. Saini and Mr. Kumar were the only
persons who owed him money.

[93]      Also concerning was Mr. Singhs testimony that
all of the monies he owes people and what they owe him, as well as monies paid
or taken, is all captured in his mind and not documented. More surprisingly was
his testimony that he did not consider amounts from $5,000 to $10,000 to be
material in terms of  the amount people owed him and I presume what he owed to
others. He also made an incredible statement that though he regularly paid Mr. Samra
$2,000 on monies borrowed, he did not know how much he owed Mr. Samra. He
stated that if he needed to know the amount owed he would just ask Mr. Samra.
At one point during cross examination he stated that no one owed him money
other than Mr. Saini, and shortly afterwards said that other people did. My
sense of this testimony was to provide him flexibility in whatever statements
he made which were not quite accurate.

[96]      On Day 19 of the trial, Mr. Singh made
the astonishing statement  under cross examination that he never read any of
the affidavits in this proceeding, except maybe for some 2 or 3 pages.

[97]      Mr. Singh also admitted that he had doctored a
document, he scratched out Mr. Sainis name on a bank document. He did so
to mislead the court and Ms. Singh into believing the account was
his.

[98]      I also note that documents produced by Mr. Singh
regarding monies advanced by Bikram Gill have signatures of Mr. Gill on
them which Mr. Singh acknowledges are quite different between the
documents.

[99]      On Day 16 of the trial, Mr. Singh
admitted to forging Ms. Singhs signature on banking documents.

[102]    On January 16, 2018, Mr. Singh agreed that
what he said in an affidavit sworn in the Arizona State court proceedings on
September 18, 2015, Exhibit 52, was wrong.  I did not find his
testimony persuasive.

[105]     This again demonstrated the elasticity in Mr. Singhs
thinking and recall.

[106]    I also take note of Mr. Singhs admission, that
he initiated the bankruptcy proceeding in Arizona because of the Arizona State
Courts order in the derivative action requiring him to pay Ms. Singhs
for her legal bills.

[107]    On January 17, 2018, Mr. Singh admitted
that his sworn Form F8 financial statement made June 4, 2015 wherein
he stated that RPC 2007 owed RPC 2011 $1.1 million USD under a
promissory note was not true. He admitted that no monies had ever been provided
to RPC 2007.

[114]    Mr. Singh also
admitted to lying about having pre‑signed cheques for a credit card
payment when he was confronted by the cheque which had his signature stamp
affixed to it.

B.

Reasons for Judgment on Division of Property, Support, and Costs

[13]

As I have said, the calculation and apportionment of family
property was complicated by the unreliability of Mr. Singhs testimony. The
parties disagreed about the existence, ownership, and value of assets, particularly
with respect to the India Properties.

[14]

The judge determined that Ms. Singh had made significant
financial and non‑pecuniary contributions to the family and its
investments and therefore rejected Mr. Singhs contention that it was
solely his finances that led to the acquisition of the family assets and
wealth. He rejected Mr. Singhs submission that some of the family wealth
was derived from an inheritance to Mr. Singh from his father. The judge
also found that Mr. Singh kept Ms. Singh in the dark with respect
to the familys financial dealings.

[15]

The judge found it troubling that Mr. Singh petitioned Regency
Park Capital 2011 Inc. (RPC 2011), an Arizona company jointly owned by the
parties, into bankruptcy specifically to avoid paying Ms. Singhs legal
bills pursuant to the order of an Arizona court that he do so.

[16]

Given the findings about Mr. Singhs credibility, the judge
decided that the evidence justified his making findings of fact adverse to Mr. Singh
with respect to the value of some of the family property. The trial judge also
rejected Mr. Singhs position that much of the impugned property should be
excluded from the calculation either because it was not a family asset or because
it was an inheritance (the latter issue is not under appeal). In addition, the
judge found that Mr. Singhs conduct engaged the significant unfairness
concerns under s. 95 of the
FLA
, which permits the court to order
an unequal division of family property, and awarded the respondent an
adjustment of $250,000 as a result.

[17]

Turning to the issue of spousal support, the judge found that Ms. Singh
was entitled to support on the basis of both compensation and need. The factors
relied upon included the long duration of the marriage, her role as a caregiver
of the children, her role as an employee of the family businesses, and her
chronic injuries which limited her future earning capability.

[18]

The judge additionally decided Ms. Singh was entitled to
lump sum spousal support. He held [t]here is little prospect that Mr. Singh
can be relied upon to make periodic regular payments based on his conduct: at para. 174.
The award for spousal support is not under appeal.

[19]

Finally, the judge awarded special costs against Mr. Singh
because he found that Mr. Singhs conduct demonstrated a clear disregard
for the administration of justice: at para. 176.

[20]

At paras. 155157, the judge made the following division of
assets:

[155]    In my view, having considered the evidence, the
asymmetry of knowledge in the business affairs of the family held by Mr. Singh,
the presumption favouring equal division of family property and debt, the test
of significant unfairness to justify departing from equal division; the
adverse inference that I have made against Mr. Singh, and that to effect
division, property and debt can be specifically allocated to a party i.e.,
through compensation, the following division with adjustments noted below the
chart is determined as appropriate:

Item

Amount

Ms. Singh

Mr. Singh

RPC 2011

$2,087,395

$1,043,697

$1,043,647

RPCC

$942,972

$942,973

RPC 2012

$0

RPC 2007

$0

Koocanusa
  Projects

$100,000

$100,000

Proceeds
  from sale of family residence in Surrey

$822,251

$822,251

Timeshares

Parties
  to pick alternatively

Mr. Singh
  has first pick

India Properties

Section 8

$321,558

$321,558

Section 38

$155,907

$155,907

Section 35A

$448,233

$448,233

F44 Uppals Marble Complex

$434,489

$434,489

Palm
  Springs vacation property

$78,591

$78,591

Jasjit
  Khurana investment

$96,500

$96,500

Varinder
  Kumar Loan

$38,976

$38,976

Surinder
  Gill Loan

$48,721

$48,721

1988
  Mercedes 560 SL

$27,400

$27,400

2003
  Mercedes Truck 500ML

$1,000

$1,000

2001
  BMW Z3

$1,000

Municipal
  Pension

$489,600

$244,800

$244,800

CPP/OAS
  to be divided per plan

Jewellery

divided

-

-

TOTAL:

$3,054,722

$3,039,822

[156]    To effect the
distribution, RPC 2011 should be liquidated in the manner authorized by the
Bankruptcy Court. Net proceeds are to be divided as specified in these Reasons
including the adjustments which follow. Ms. Singhs municipal pension plan
is to be divided pursuant to the terms of her plan. Mr. Singh is to make
any elections regarding his entitlement in the pension, he is to do so pursuant
to the terms of the plan.

[157]    Adjustments from the proceeds
from the liquidation of RPC 2011 are:

(a)

Mrs. Singh is to receive
compensation of $68,416.50 to equalize the use of RRSPs by the parties;

(b)

Mrs. Singh is entitled to
$43,157.98 as preservation debt under s. 86(b) of the
FLA
;

(c)

Mr. Singh is to be solely
responsible for the Hittrich legal bill of $59,552.76;

(d)

Mr. Singh is to pay to Mrs. Singh
a lump sum equal to retroactive and prospective spousal support calculated as
per my reasons under spousal support below;

(e)

Taking into consideration: Mr. Singhs
actions and motivation to file for Chapter 11 protection and the
significant related expenses to RPC 2011, his actions engage the
significantly unfair consideration under s. 95 of
FLA
; unspecified
properties and funds in India in which I find Mr. Singh to have an
interest; and equalization of division for Mr. Singh in family property;
an overall adjustment for these entitles Mrs. Singh to a further
$250,000;

(f)

With respect to Mrs. Singhs
claim for $125,000 under s. 213(2)(d) of the
FLA
, the basis for
this amount was not fully developed. To the extent these costs were incurred in
the derivative action in Arizona, such costs may be recovered in the proceeding
once the stay is removed. In this proceeding, the maximum penalty under
s. 213 of the
FLA
appears to be $5,000 and is awarded to Mrs. Singh;
and

(g)

Costs for Mrs. Singh as
awarded below.

IV.

Grounds of Appeal

[21]

The grounds of appeal as set out in Mr. Singhs factum are
convoluted and repetitive. I would restate the appellants grounds of appeal in
the following way, which I believe captures Mr. Singhs arguments on
appeal.

[22]

First, Mr. Singh says that the judge made palpable and
overriding errors in his valuation of certain assets. He asserts that there was
no evidence to support the values attributed by the judge to the following
assets:

a)

India Properties

b)

Palm springs vacation property

c)

Khurana Investment

d)

Koocanusa projects

e)

Kumar loan

f)

Gill
loan

A sub‑issue to this ground of appeal is the
contention that the judge allocated all of what I would call the risky assets
to Mr. Singh
in specie
, further decreasing the value of the assets
awarded to Mr. Singh. In saying risky, I refer to the litigation
concerning some of the India Properties and the somewhat uncertain state of the
loans. Also related to this ground of appeal is Mr. Singhs position that
the judge improperly treated some assets as family property, although he did
not press this point in oral argument.

[23]

Second, Mr. Singh says the judge made palpable and
overriding errors of fact and an error of law in awarding $250,000 to Ms. Singh
pursuant to s. 95 of the
FLA
. He says the basis for making the
award was not supported by the evidence (based on unspecified properties in
India) or was wrong in law (based on improper considerations, including the
unspecified properties and Mr. Singhs alleged misconduct in the US
Chapter 11 bankruptcy proceedings).

[24]

Third, Mr. Singh says the judge erred in awarding special
costs of the proceeding, including the 27‑day trial, to Ms. Singh. Alternatively,
he says that the judge should have exercised his discretion to award special
costs for only part of the proceeding. Mr. Singh also says that if this Court
allows the appeal, even in part, the award of costs at the trial should be
reviewed and adjusted accordingly. Further, he says that the basis of the order
for special costs was the same conduct for which he was penalized by the
s. 95 order, effectively imposing upon [him] two levels of special
costs.

[25]

There are some additional miscellaneous grounds of appeal that I
shall mention below.

V.

Ownership and Value of the Contested Properties

A.

Standard of Review

[26]

Mr. Singhs arguments regarding the value of the contested
properties are based on alleged errors of fact. As noted in
Parton v. Parton
,
2018 BCCA 273 at para. 32, [t]he standard of review for findings of fact
is highly deferential. An appellate court will interfere with a trial judges
factual conclusions only if there is an obvious (palpable) and material
(overriding) error:
Housen v. Nikolaisen
, 2002 SCC 33 (S.C.C.) at paras. 5,
6, 8, 10.

[27]

As mentioned above, Mr. Singh also raised issues regarding
the judges finding that the contested properties are family property, but he did
not press this point in oral argument. His arguments in this regard appear to go
to the judges findings of fact or to the application of the law to those facts.
He does not raise any extricable questions of law and, accordingly, a deferential
standard of review is also required:
Xu v. Chu
, 2019 BCCA 414 at para. 27.

B.

India Properties

[28]

The India Properties include four properties identified as:
Sector 8, Sector 38, Sector 35A, and F44 Uppals Marble Complex (F44).

[29]

At trial, Ms. Singh attributed the following values to the
India Properties, as set out at para. 126 of the judges reasons:

a)

Sector 8: $321,558.60

b)

Sector 38: $155,907.20

c)

Sector
35A: $448,233.20

d)

F44: $438,489.00

[30]

The judge accepted Ms. Singhs valuation of the India
Properties at para. 141 and as set out above at para. 155 of the
judges reasons.

[31]

Mr. Singhs position at trial was that the India Properties should
be excluded property under s. 85(1)(b) (property acquired by inheritance)
and (g) (property derived from the disposition of property acquired by
inheritance) of the
FLA
. He testified that his father died in 1990
leaving him $1 million and that he invested one half of this inheritance in the
India Properties.

[32]

At para. 134 the judge found that Mr. Singh has money
and property in India which he had not disclosed. The judge rejected Mr. Singhs
testimony about the inheritance and, accordingly, found that the India
Properties were not excluded property: at paras. 138141.

[33]

The judge allocated all of the India Properties to Mr. Singh.
The formal order in that respect is as follows:

1(d) The parties interest in
properties in India are apportioned 100% to Ranjit Singh.

[34]

In a subsequent order pronounced February 11, 2019, the judge
ordered that:

paragraph 1 (d) of the Final
Order is stayed pending determination of the appeal. However the Respondent is
to provide a full written report respecting the status of his litigation
regarding the properties in India within 14 days of pronouncement of this order.

[35]

Mr. Singh applied to this Court in September of this year for
admission of new evidence in the form of affidavits updating the status of the
litigation regarding the India Properties. I would admit this fresh evidence as
Mr. Singh was required by Justice Masuhara to produce this information. It
proved relevant and helpful in determining the appeal related to the valuation
of the India Properties.

[36]

On appeal, Mr. Singh says the judge erred as to the value he
attributed to these properties and erred by awarding these properties to Mr. Singh
in specie
, thereby failing to divide the assets equally. He says there
was no cogent evidence as to the value of the India properties and that neither
party holds title to F44. He contends that the India properties are in
litigation that may take years to resolve, further reducing their value. In her
factum, Ms. Singh says that the judge did the best he could with Mr. Singhs
inadequate disclosure as to the value of the India Properties and the
litigation relating to them.

[37]

I now turn to the evidence concerning the four India Properties
in order to determine if the judge erred with respect to the valuations of each
and his finding that they are family property. In doing so, I shall refer in
part to the new evidence related to the litigation in India.

1.

Sector 35A

a)

The Evidence at Trial

[38]

A deposit receipt adduced at trial shows that Mr. Saini (a
sometime friend and business associate of Mr. Singh) and Mr. Singh
each paid a deposit of 55 lakhs (approximately $100,000 CAD) for the Sector 35A
property. The Agreement to Sell indicates the final purchase price of the house
to be 4 crore and 6 lakhs (approximately $846,400 CAD) and that the Saini
family and Mr. Singh each purchased a 50% share, leaving Mr. Singhs
interest at $448,233 (the amount at which the judge valued his interest).

[39]

In her testimony, Ms. Singh acknowledged that the ownership
of Sector 35A was in dispute. She testified that because the deal was not
completed, she did not think her husbands name was on the title.

[40]

Mr. Saini testified that he and Mr. Singh bought the
property in 2008. The purchase price was 4 crore 60 lakhs (approximately $846,400).
However, in confusing testimony, he suggested that the purchase did not go
through although a deposit was paid. In addition, he suggested that Mr. Singh
paid $10,000 CAD to the daughter‑in‑law of the vendor, Mr. Bawa,
in relation to this sale. Finally, he suggested that Mr. Singh had sold
his interest to a third party.

[41]

Mr. Singh testified that the Sector 35A property was bought
with inheritance money. In addition, in his closing, he stated that Sector 35A
is only deposit. He further stated that the agreement to purchase did not
close because Mr. Saini did not have the required funds.

b)

The Judgment Below and the Arguments on Appeal

[42]

As noted, the trial judge rejected Mr. Singhs assertion
that an inheritance was used to purchase the property: at para. 138. The
judge found that there was clear value in the India Properties given Mr. Singhs
active engagement in litigation. The trial judge concluded that an adverse
inference was warranted, holding that Mr. Singh had an interest in the properties
and at the values submitted by Ms. Singh: at para. 141. Accordingly,
the trial judge determined that the Sector 35A property was family property and
apportioned a value of $448,233 to Mr. Singh
in specie
: at para. 155.

[43]

Mr. Singh argues on appeal that this determination was
incorrect because the purchase of the property was never completed and the
property is the subject of ongoing litigation in India.

[44]

Ms. Singh argues that, because the financial information was
exclusively in the hands of Mr. Singh, the trial judge was correct to make
an inference as to the value of the property. Ms. Singh further asserts
that Mr. Singh would not engage in years of litigation in India to obtain
an asset with an option value worth anything less than the contract price. She
argues that the contract price of $448,233 was conservative.

c)

The Fresh Evidence

[45]

The Indian court judgment filed in relation to Sector 35A is
illegible in parts, but it appears that Mr. Saini and his sons sued Mr. Bawa
for specific performance of the contract of sale, or for damages. Mr. Saini
also named Mr. Singh as a defendant in the suit as Mr. Saini sought,
in the alternative, recovery of the amount of his deposit from Mr. Singh.
The Indian judge rejected all of the plaintiffs claims, finding that both Mr. Saini
and Mr. Singh were responsible for frustrating the contract, not Mr. Bawa.
The judge found that both Mr. Saini and Mr. Singh paid a deposit of 55
lakhs (approximately $100,000 CAD), which was forfeited.

[46]

Mr. Singh has appealed this Indian judgment.

d)

Conclusion on Sector 35A

[47]

In my view, the testimony of the parties and Mr. Saini, the
documents tendered at trial, and the fresh evidence are consistent in showing that
Mr. Singh does not have legal title to Sector 35A. It is clear that the
purchase was never completed and Mr. Singh is not a 50% owner of the
property. His interest is in a claim to specific performance or return of his
deposit, which claim the court in India has rejected. Although Mr. Singh
intends to pursue an appeal of this decision, the outcome of such an appeal is
highly uncertain.

[48]

In my view, the judge made a palpable and overriding error in
attributing the value of this property to Mr. Singh in circumstances where
he does not own it and never has. The trial judge used the fact that he was
engaged in ongoing litigation to support a conclusion that there was value in
the India Properties, including Sector 35A. Ms. Singh echoes this argument
on appeal. I conclude, however, that Mr. Singhs prospects of receiving an
interest in Sector 35A are too uncertain to ascribe any value to it. In my
view, the judge made a palpable and overriding error in ascribing a value to
this property on the basis that Mr. Singh had legal title to the property.

[49]

I note that no other basis was argued for this ground of appeal
and, as such, I have not considered potential issues related to conflict of
laws or the interpretation of s. 84 of the
FLA
. The circumstances regarding
Sector 35A are sufficiently uncertain that I would accede to this ground of
appeal on that basis alone.

2.

Sector 38C and Sector 8

a)

The Evidence at Trial

[50]

The record at trial contained two Agreements to Sell, one for a 50%
share of Sector 38 and one for a 50% share of Sector 8. Both list Mr. Singh
as the seller and Mr. Saini as the purchaser.

[51]

The Agreement to Sell for 50% of Sector 38 is dated May 9, 2012,
and indicates the property was valued at 1 crore (approximately $184,000). A
Receipt section indicates that Mr. Singh had already received a deposit of
20 lakhs.

[52]

The Agreement to Sell for 50% of Sector 8 is dated May 9, 2012,
and indicates the property was valued at 2 crore 50 lakhs. A Receipt section
indicates that Mr. Singh had already received a deposit of 50 lakhs.

[53]

A document dated in 2012 indicates that Mr. Saini sued Mr. Singh
for specific performance of the contract related to the sale of Sector 8, or,
in the alternative, 1 crore in damages. A letter from HDB Financial Services to
Mr. Saini dated April 8, 2013, indicates that Mr. Saini at that point
already owned 50% of Sector 8 and was to purchase the rest. What appears to be
a government document dated February or May of 2013 indicates that Mr. Singh
was entitled to receive consideration for the properties, 2 crore 50 lakhs for
Sector 8 and 1 crore for Sector 38, subject to deduction of tax at source.

[54]

What appears to be a court document summarizes the arguments in a
suit for specific performance filed by Mr. Saini against Mr. Singh related
to Sector 38, indicating that a dispute arose over who was to pay money to the
estate office to clear the title. This document appears to be an interlocutory
decision granting an injunction enjoining Mr. Singh from alienating his
share of the property to anyone other than Mr. Saini.

[55]

The testimony at trial about these two properties is difficult to
follow. It would appear from Mr. Sainis testimony that Mr. Singh and
Mr. Saini both initially bought 50% of the properties. Mr. Saini
attempted to purchase Mr. Singhs share, and put a deposit down on each,
but the deal was frustrated by a dispute over a change to the tax rules in
India. It would appear this dispute was over who would pay taxes or for a
certificate of no objection to clear the title and complete the deal.

[56]

In his testimony, Mr. Singh indicated a willingness to close
the deal on Sector 8 but a desire to continue litigating 38. This may be
because he seems to believe Sector 38 is worth more than the price indicated in
the Agreement to Sell.

[57]

There was some indication that a settlement between Mr. Saini
and Mr. Singh was arrived at during the present case. There was also an
indication that Mr. Saini was willing to pay 50% of the outstanding dues
owed to the estate office.

b)

The Judgment Below and the Arguments on Appeal

[58]

The trial judge assigned a value of $321,558 to Sector 8 and
$155,907 to Sector 38 to Mr. Singh. These values are based on the purchase
price in the Agreements to Sell less the deposit already paid (2 crore for
Sector 8 and 80 lakhs for Sector 38).

[59]

Mr. Singh argues on appeal that the evidence regarding these
properties was incomplete by reason of the manner of the answers and numerous
inaudible responses. Mr. Singh notes the litigation is ongoing and argues
it was not clear how the values were arrived at owing to the status of the
India litigation. Mr. Singh then states the value was not premised upon a
valuation but the purchase and sale price from 2012.

[60]

Ms. Singh argues that the value of these properties was
clear and that Mr. Saini had testified he was ready and willing to pay Mr. Singh.
Ms. Singh notes that Mr. Singh testified that Sector 38 was worth
twice as much as the contract price. Ms. Singh argues that the litigation
could result in payment to Mr. Singh or Mr. Singh could continue to
hold his interest in the properties, but either way the evidence supports a
value of no less than what Mr. Saini was willing to pay.

c)

The Fresh Evidence

[61]

The fresh evidence does not contain any new information regarding
these properties, aside from Affidavit #1 of Mr. Singh, as well as the
attached lawyers statement, indicating that litigation with regard to these
properties is ongoing.

d)

Conclusion

[62]

The interest of Mr. Singh in these properties is much
clearer than his interest in Sector 35A. Unlike Sector 35A, it is clear that Mr. Singh
has title to 50% of these properties. Mr. Singhs current ownership of these
two properties does not appear to be at issue in the India litigation. Rather,
the issue is whether Mr. Singh must sell his interest to Mr. Saini. In
addition, the valuation arrived at by the judge by taking the Agreements to
Sell from 2012 and subtracting the deposit already paid is sufficiently clear.

[63]

In my view, the trial judge did not err in treating Sector 8 and
Sector 38 as family property. There was evidence to support the judges
conclusion as to the values and I see no palpable and overriding error in this
regard. If there is any uncertainty as to Mr. Singhs legal interest or the
properties values, it is entirely of his own making.

3.

F44 Uppals Marble Complex

a)

The Evidence at Trial

[64]

The evidence includes an appraisal of F44 listing the value of
the property as 2 crore 25 lakhs (approximately $414,000 CAD). This appraisal
was carried out pursuant to a consent order granted by Justice Masuhara: para. 47(q).

[65]

There is a rental agreement between Ms. Singh and a Gurdial
Singh dated April 9, 2015, for a tenancy of three years. There are a number of
emails related to changing the locks on the unit and a dispute with a former
servant.

[66]

In her testimony, Ms. Singh stated that she and Mr. Singh
purchased F44. She rented it to her uncle.

[67]

Mr. Saini testified that the issue with the building was
that the builder did not build 10% of the units for low income tenants as
required by Indian law, so the builder is unable to alienate the property.

[68]

Mr. Singh testified that the value of F44 should be excluded
because: he bought it with inheritance money, Ms. Singh encumbered the
title by renting it to her uncle, he would need to sue the builders to sell it,
and Ms. Singh made no contributions to the physical work on the property
or the bills. He also testified he bought the property for orphans. He conceded
that the property has value.

b)

The Judgment Below and the Arguments on Appeal

[69]

The trial judge valued F44 at $434,489. I note that the judge may
have intended this figure to be $438,489, which is the value Ms. Singh
attributed to F44, given his finding that he accepted Ms. Singhs
valuations of the India Properties.

[70]

Mr. Singh argues on appeal that Mr. Sainis evidence at
trial related to F44 was problematic because he was employed as an expert on
Indian property law. He notes that Mr. Saini conceded that the parties did
not have title to the F44 property due to an issue over building violations,
but that the parties were still the legal owners. The evidence is clear that
the parties are beneficial owners.

[71]

In response, Ms. Singh argues that Mr. Singh provided
no evidence to assist the court in valuing this interest.

c)

The Fresh Evidence

[72]

In his Affidavit #1, Mr. Singh states that due to a class
action neither he nor Ms. Singh have legal or beneficial ownership of the
property despite having possession of the property.

d)

Conclusion

[73]

In my view, while the property may currently be inalienable due
to the building violations, the evidence supports a finding that the parties do
have beneficial title to the property. The evidence is uncontroverted that Mr. Singh,
either alone or together with Ms. Singh, purchased the property, and, as Mr. Singh
acknowledges, the parties remain in possession of it. Accordingly, I see no
error in the judges treatment of F44 as family property.

[74]

Further, in my view, it was open
to the trial judge on the available evidence to value this property in the
amount of
$434,489 (or $438,489). This would appear to be based on the appraisal
adduced at trial. There is undoubtedly value in the property, as Mr. Singh
conceded at trial.

C.

Palm Springs Vacation Property

1.

The Evidence at Trial

[75]

A copy of a cheque for $59,350 made out to Rashpal Samra from Mr. Singh
with the memo notation Re: Palm Springs House was adduced in evidence.

[76]

Ms. Singh and her son both testified that they believed Mr. Singh
bought a 25% interest in a vacation home in Palm Springs.

[77]

Mr. Singh testified that at one point he considered
purchasing this interest but decided against it. He said the cheque that he
wrote with the memo Palm Springs House was for some other purpose as he and Mr. Samra
exchanged money back and forth. Mr. Singh testified that a previous
statement he had made, to the effect that he held a one‑quarter interest
in the property, was incorrect. Mr. Singh also testified that he and Ms. Singh
had been to the property once or twice.

2.

The Judgment Below and the Arguments on Appeal

[78]

The trial judge noted that Mr. Singhs testimony about the
Palm Springs vacation home was unsatisfactory: at para. 109. He noted that
on January 17, 2018, Mr. Singh was asked about a statement in his Affidavit
#1 in which he agreed with Ms. Singhs statement that he held a 25%
interest in a Palm Springs Rancho Mirage home, registered in the names of
Daljit and Guardia Samra. Mr. Singh later resiled from that statement
stating there had only been talk of buying a 25% interest with an Avtar Samra.
He stated that there was no discussion of a specific interest; and that despite
a cheque for $59,350 provided to Rashpal Samra with the notation Palm Springs
House on it, no interest was ever purchased. Mr. Singh could not explain
why he had written Palm Springs House on the cheque.

[79]

The trial judge found that Mr. Singh holds a 25% interest in
the Palm Springs vacation property: at para. 151.

[80]

Mr. Singh argues on appeal that there was no basis in the
testimony of Ms. Singh or her son as to how they came to have the alleged
knowledge as to the purchase. Mr. Singh concedes he wrote cheques for
$20,000 and $59,350 to Gurdial Samra, the latter of which referenced the Palm
Springs property, but these were not to purchase an interest in the property.
Mr. Singh further submits that no valuation of the Palm Springs property
was admitted into evidence.

[81]

Ms. Singh argues in response that when confronted with his
earlier sworn statement in which he admitted that he had a 25% interest in the
property, Mr. Singh denied that it was true, saying he had considered
buying it, but had not done so. Ms. Singh also argues that the valuation
of the property is based only on the cheque for $59,350; plus an amount
equivalent to compounded interest on the original $59,350.00 investment at 3%
for 9.5 years, to arrive at $78,591.28.

3.

Conclusion

[82]

Based on Mr. Singhs inconsistent testimony, the fact that
the family had visited the house at least once or twice, and the documentary
evidence of the cheque with the notation Palm Springs House, it was open to
the trial judge on this evidence to find that the parties had purchased a 25%
stake in the home initially valued at $59,350. Accordingly, I see no error in
the trial judges finding that the parties interest in the Palm Springs
property is family property or in the value he ascribed to it.

D.

Jasjit Khurana Investment

1.

The Evidence at Trial

[83]

Ms. Singh
testified
that Jasjit Khurana was her sons ex‑wifes uncle. Ms. Singh
testified that she did not know why Mr. Khurana had paid Mr. Singh
$25,000. Mr. Singh testified that he had paid $96,500 to Jasjit Khurana in
May of 2007 to buy half the shares in a property in Langley.

2.

The Judgment Below and the Arguments on Appeal

[84]

The trial judge does not specifically discuss this investment, but
values it at $96,500 and apportions it entirely to Mr. Singh:
at para. 155.

[85]

Mr. Singh argues on appeal
that the evidence for this debt is lacking. He argues that there was no
evidence that the loan remained valid at the date of separation, and that there
was no evidence to establish what happened to the funds or the investment at
anytime, including the date of separation.

[86]

Ms. Singh argues in response
that the paucity of evidence on this point is entirely the fault of Mr. Singh
given his failure to make complete and timely disclosure, his tendency to give
false evidence and to disclaim prior statements under oath/affirmation, and his
lack of clarity or corroborating evidence regarding the status of sums borrowed
and lent by him to his associates. As such, the trial judge was warranted in
making the adverse inference that the outstanding loan or investment was an
asset of Mr. Singh.

3.

Conclusion

[87]

Mr. Singh admitted at trial that he had made the payment to
buy property. In the absence of any evidence adduced by Mr. Singh that
this loan was repaid, in my view, it was open to the trial judge to view this
as an asset of Mr. Singh and to value it as he did.

E.

Varinder Kumar and Surinder Gill Loans

1.

The Evidence at Trial

[88]

Although his testimony about this loan was confusing, Mr. Singh
admitted that he loaned Mr. Kumar 20 lakhs (approximately $36,800 CAD) in
2012. In addition, he admitted he loaned Mr. Gill 25 lakhs (approximately $46,000
CAD) in 2013.

2.

The Judgment Below and the Arguments on Appeal

[89]

The trial judge does not specifically discuss these loans, but
valued them at $38,976 for the Varinder Kumar loan and $48,721 for the Surinder
Gill loan. He apportioned them
in specie
to Mr. Singh:
at para. 155.

[90]

Mr. Singh argues that while
he did loan Mr. Kumar 20 lakhs in 2012, Mr. Kumar had not paid him
back and he was in court with him in India trying to collect payment. Mr. Singh
also argues that there was no evidence that the loan to Mr. Gill existed
as of the date of separation.

[91]

Ms. Singh argues in response
that Mr. Singh provided no evidence at trial that Mr. Kumar refused
to pay or to support his testimony that he had taken Mr. Kumar to court
over the money, and thus the trial judge was right to make an adverse inference
against Mr. Singh. Ms. Singh also submits that the trial judge was
not wrong to consider the loan to Mr. Gill as a family asset because Mr. Singh
did not clarify when the loan took place.

3.

Conclusion

[92]

Given the oral testimony of Mr. Singh, it was open to the
trial judge to find that Mr. Singh made loans to Mr. Kumar and Mr. Gill
and that they remained outstanding. In addition, Mr. Singhs argument
about the lack of evidence related to these loans is curious as, having
admitted to lending this money, the onus was on him to evidence in some way
that the loans had been repaid. As such, on this confusing evidentiary record
it cannot be said the judge made a palpable and overriding error. It was within
Mr. Singhs ability to clarify the record. He chose not to do so.

F.

Koocanusa Projects

[93]

Koocanusa Projects was a corporate entity that at one point
included a dental office; however, as of the trial the only assets held were four
contaminated lots in Kimberly, BC.

1.

The Evidence at Trial

[94]

In her Notice to Admit dated March 10, 2017, Ms. Singh
asserts that Koocanusa holds title to the four properties, that they are
contaminated, and that because of this contamination the market value of the
properties was negligible.

[95]

In his Response to Ms. Singhs Notice to Admit, dated March
24, 2017, Mr. Singh submitted that on one of the lots sits a warehouse
that is rented to Columbia Salvage for $630 per month, and that the rent
cheques were made out to Ms. Singh personally. Mr. Singh submitted
that Ms. Singh had not disclosed this income to the courts nor had she
paid property taxes: at paras. 1819.

[96]

Mr. Singh denied that the lots were contaminated, stating
that he had paid $40,000 to have the lots remediated and that they were 75%
remediated. Mr. Singh further denied that the value of the lots was
negligible, submitting that they were worth their assessed value and that an
appraisal was pending: at para. 21.

[97]

An expert appraisal dated April 20, 2017, was adduced at trial.
The appraiser concluded that he was not able to complete a valuation without
more information about the extent of the contamination and the cleanup
required. The letter notes that the properties were listed in 2010 on an as
is basis for $27,000 and they did not sell. The appraiser opined that on non‑contaminated
market basis the lots were likely worth $40,000 to $50,000 each (for a total of
$160,000 to $200,000). The report also notes that a phase two environmental
study would be required to properly value the lots, and this may cost at least
$15,000.

[98]

At trial, Ms. Singh testified that she had been receiving
$630 per month since July or August of 2015 from Don Chown of Columbia
Recycling, which operates a facility on one of the lots. She suggested that
these payments were not pursuant to any lease agreement but rather because Mr. Chown
knew Mr. Singhs character and Mr. Chown felt badly for Ms. Singh.
On cross‑examination, Ms. Singh stated the property taxes on the
properties had not been paid. She also stated that the money was being deposited
in a personal bank account.

[99]

Mr. Singh testified that he had spent $40,000 to clean up
the property. In closing submissions, Mr. Singh testified that Ms. Singh
should have $20,000 in income attributed to her from the monthly payments, and
that she should be responsible for the property taxes because she had been
receiving those payments. He also stated that the properties should be valued
at $100,000.

2.

The Judgment Below and the Arguments on Appeal

[100]

The judge acknowledged Mr. Singhs testimony that in his opinion
the lots were worth $100,000 less $20,000 for rent payments made to Ms. Singh:
at paras. 127(l), 143. Apparently choosing to disregard the $20,000, the
trial judge attributed the full $100,000 value of Koocanusa properties to Mr. Singh:
at para. 155.

[101]

Mr. Singh argues on appeal that there was no cogent evidence
as to the value of the Koocanusa properties. Mr. Singh submits that
although he opined as to the value of the properties in the court below, the
evidence does not support such a conclusion.

[102]

Ms. Singh agrees with the facts as stated by Mr. Singh.

3.

Conclusion

[103]

Mr. Singh is correct to note that evidence as to the value
of the properties was lacking at trial. Indeed, the appraiser could not
appraise the properties until an environmental assessment was carried out.
However, Mr. Singh himself suggested the $100,000 valuation. He also
suggested that the lots were nearly remediated in his Response to the Notice to
Admit. On the record before the trial judge, it was open to him to accept Mr. Singhs
own evidence with respect to the valuation. Mr. Singh was knowledgeable
about the state of his own property and its current condition. The trial judge
made no palpable or overriding error in accepting Mr. Singhs own evidence
of value.

G.

Summary of Conclusions

[104]

I would not accede to any of the arguments on appeal related to
these specific properties except Sector 35A. Aside from Sector 35A, I conclude
that the judge rested his valuation on evidence, in most cases adduced by Mr. Singh.
It was clearly in Mr. Singhs power to adduce more certain evidence but he
elected not to do so. The judge drew adverse inferences where appropriate. Aside
from Sector 35A, the judge made no palpable and overriding errors in his
valuation or apportionment of the properties or in his findings that these
properties constituted family property.

H.

Allocation of Properties,
In Specie

[105]

Mr. Singh also contends the judge erred in awarding the
above properties
in specie
to him. The judge concluded that Ms. Singh
had no control over the India Properties or the undocumented loans. This is an
exercise of the judges discretion. There was more than sufficient evidence
supporting the judges conclusion. I would not accede to this ground of appeal.

VI.

Section 95  Unequal Division Order

A.

Overview

[106]

The
next ground of appeal concerns the s. 95 order.

[107]

The
judge adjusted the otherwise equal division of assets by allocating an
additional $250,000 to Ms. Singh, pursuant to s. 95 of the
FLA
.
He explained the basis for his doing so as follows:

[157]    Adjustments from the proceeds from the liquidation
of RPC 2011 are:

(e) Taking into consideration: Mr. Singhs actions and
motivation to file for Chapter 11 protection and the significant related
expenses to RPC 2011, his actions engage the significantly unfair consideration
under s. 95 of FLA; unspecified properties and funds in India in which I
find Mr. Singh to have an interest; and equalization of division for Mr. Singh
in family property; an overall adjustment for these entitles Ms. Singh to
a further $250,000;

[108]

The
FLA
statutory regime presumptively provides for the equal division of
property, subject to certain exceptions:

81

Subject
to an agreement or order that provides otherwise and except as set out in this
Part and Part 6
[Pension Division]
,

(a)
spouses
are both entitled to family property and responsible for family debt,
regardless of their respective use or contribution, and

(b)
on
separation, each spouse has a right to an undivided half interest in all family
property as a tenant in common, and is equally responsible for family debt.

87

Unless
an agreement or order provides otherwise and except in relation to a division
of family property under Part 6,

(a)
the
value of family property must be based on its fair market value, and

(b)
the
value of family property and family debt must be determined as of the date

(i)
an
agreement dividing the family property and family debt is made, or

(ii)
of
the hearing before the court respecting the division of property and family
debt.

[109]

Section 95 is the provision that confers jurisdiction on the court
to depart from the presumption of equal division:

95
(1)
The Supreme
Court may order an unequal division of family property or family debt, or both,
if it would be significantly unfair
to

(a)
equally
divide family property or family debt, or both, or

(b)
divide
family property as required under Part 6
[Pension Division]
.

(2)
For
the purposes of subsection (1), the Supreme Court may consider one or more of
the following:

(a)
the
duration of the relationship between the spouses;

(b)
the
terms of any agreement between the spouses, other than an agreement described
in section 93 (1)
[setting aside agreements respecting property division]
;

(c)
a
spouse's contribution to the career or career potential of the other spouse;

(d)
whether
family debt was incurred in the normal course of the relationship between the
spouses;

(e)
if
the amount of family debt exceeds the value of family property, the ability of
each spouse to pay a share of the family debt;

(f)
whether
a spouse, after the date of separation, caused a significant decrease or
increase in the value of family property or family debt beyond market trends;

(g)
the
fact that a spouse, other than a spouse acting in good faith,

(i)
substantially
reduced the value of family property, or

(ii)
disposed
of, transferred or converted property that is or would have been family
property, or exchanged property that is or would have been family property into
another form, causing the other spouse's interest in the property or family
property to be defeated or adversely affected;

(h)
a
tax liability that may be incurred by a spouse as a result of a transfer or
sale of property or as a result of an order;

(
i)
any
other factor, other than the consideration referred to in subsection (3), that
may lead to significant unfairness.

(3)
The
Supreme Court may consider also the extent to which the financial means and
earning capacity of a spouse have been affected by the responsibilities and
other circumstances of the relationship between the spouses if, on making a
determination respecting spousal support, the objectives of spousal support
under section 161
[objectives of spousal support]
have not been
met.

[Emphasis added.]

[110]

On appeal, Mr. Singh submits that the trial judge erred in
his application of s. 95. He submits that the evidence did not rise to the
high threshold of significant unfairness, and that the judge erred in law by
considering impermissible factors and failing to consider certain factors listed
in s. 95(2) that weighed against unequal division in favour of Ms. Singh.

[111]

Ms. Singh argues in response that the trial judges $250,000
reapportionment was modest in the context of a body of assets worth an
estimated $6.1 million. Ms. Singh submits that the trial judge did not
misapply s. 95 and had compelling reasons to order the payment.

B.

The Judgment Below and the Arguments on Appeal

[112]

There are two prongs to the trial judges award under s. 95.
First is the unfairness arising from Mr. Singhs conduct related to the
bankruptcy of RPC 2011, and second is his lack of disclosure surrounding his
assets in India. In both instances, Mr. Singhs conduct resulted in a
reduction in value of assets available to Ms. Singh.

[113]

By way of background to the first prong, one of the assets in
dispute at trial was RPC 2011, an Arizona company that owned a Super 8 Motel in
Goodyear, Arizona: at para. 9. In 2015, the year following the parties
separation, Ms. Singh initiated a derivative action in the Superior Court
of Arizona seeking removal of Mr. Singh from control of RPC 2011 and
alleging misappropriation of RPC 2011 assets by Mr. Singh.

[114]

On June 30, 2015, the Arizona Superior Court ordered, in the
Arizona proceeding, that Mr. Singh and RPC 2011 pay Ms. Singhs
attorney fees: at para. 49 of the BC reasons for judgment. Mr. Singh
and RPC 2011 did not pay the fees, citing insufficient funds following the
payment of RPCs legal costs and compensation payments to Mr. Singh: at para. 50.

[115]

On September 28, 2015, a judge of the Arizona Superior Court
found Mr. Singh and RPC 2011 in contempt and ordered them to pay Ms. Singh
$30,000 USD by October 2, 2015, and $20,000 USD on the 2nd of each month until
they had paid the amount owed: at para. 51 of the BC reasons for judgment.
RPC 2011 paid $30,000 USD to Ms. Singhs attorneys in October 2015 and a
further $20,000 USD in November 2015: at para. 52.

[116]

On December 1, 2015, immediately before the next $20,000 USD was
due to Ms. Singh, RPC 2011 filed for Chapter 11 protection: at para. 54.
Mr. Singh admitted at trial that he did so as a tactic to avoid having to
pay Ms. Singh. As a result of the bankruptcy proceeding, Mr. Singh
obtained a stay of proceedings of the derivative action on account of the
bankruptcy.

[117]

As the bankruptcy unfolded it became apparent that RPC 2011 was
not insolvent, and Mr. Singh had fabricated evidence of debts owed by RPC
2011. The debts were disallowed in the bankruptcy as they could not be proven.
Justice Masuhara found that Mr. Singh acted in bad faith in petitioning
the company into bankruptcy. He considered the unnecessary cost of the
bankruptcy proceeding a factor in awarding the $250,000 reapportionment.

[118]

Of specific relevance to the second factor underlying the
s. 95 order (the undisclosed assets), the judge said at para. 38 that
[o]ver the years Mr. Singh purchased and sold property in India.

[119]

The
judge also explained the basis for his drawing adverse inferences about Mr. Singhs
testimony concerning undisclosed India Properties. He wrote:

[83]       Disclosure was an issue. ... His list of
documents was incomplete. Various unspecified properties in India in which Mr. Singh
has [a]n interest, not previously disclosed were mentioned by him at trial.

[116]    The foregoing gives a
flavour of Mr. Singhs flawed recall and mendacities in this case. Counsel
for Ms. Singh covered many in their closing submissions. Mr. Singh
does not respect court orders and does not value statements that he makes under
oath or affirmation or otherwise. He told untruths to the court, admitted he
had lied directly to the court, he admitted he altered a document, forged
signatures and generally displayed an elastic and flexible approach to his
evidence. Unfortunately, he is neither reliable nor credible. I place little
weight upon his evidence. Adverse inferences and findings based on evidence are
justified in this case.

[120]

Later
the judge repeated his finding about undisclosed property in India:

[134]     I also find based on
the evidence that Mr. Singh has funds and property in India which have not
been disclosed.

[121]

As
to the unreliable nature of his testimony, the judge found at para. 91 that
Mr. Singh resiled from his sworn affidavit, wherein he stated: I have
never sent any money to India, if anything I have only every [sic] brought
monies from India to Canada. Later he said that statement was untrue and
stated he had not read the affidavit. This was a repeated excuse in the trial.
At para. 104 the judge found he had not abided by a court order, and then said
this about the India transactions:

[110]    On January 17, 2018, he again resiled from his
statement in an affidavit, where he stated that the value of a farm property he
sold in India for $600,000. He testified in court that the property was sold
for $200,000.

[111]    I also note the curious evidence of Mr. Singh,
where he spoke of having adopted two males from India to bring them to Canada.
He stated they were 27 years and 30 years old. He could only recall the name of
one. He paid the legal fees for their immigration to Canada. This apparently
enabled Mr. Singh to transfer $100,000 through each to Canada. Mr. Singh
also did this with the son of Mr. Saini. It seems Mr. Singh was
involved in transactions called Hawala in Punjabi, a method for transferring
money out of India to avoid Indian government rules and detection as described
by Raj Singh.

[112]    I also note his strange
evidence of having sent monies to India for legal services. When asked if he
had a receipt, he stated that lawyers do not issue receipts in India and that he
had no documentation to show any communication from his lawyer regarding the
legal work requested.

[122]

On appeal, Mr. Singh says that the evidence does not meet the
high standard required for an order under s. 95, and, moreover, that the
judge erred in law in his consideration of the factors on which he relied to
make the s. 95 order. Mr. Singh acknowledges that the judge must have
based his award on s. 95(2)(i), but says that the two factors the judge
relied upon to ground his award were not permissible factors under s. 95(2)(i).
Further, he says the judge failed to recognize that weighing against a s. 95
adjustment are the duration of the relationship (37 years) and Mr. Singhs
efforts post‑separation to increase the value of RPC 2011.

[123]

Mr. Singh submits that the judge failed to explain in detail
his rationale for making the award. He says that to the extent the award is
based on undisclosed unspecified assets, as was the case in
Cunha v. Cunha
(1994), 99 B.C.L.R. (2d) 93 (S.C.), the judge erred in law because there was a
wholly insufficient evidentiary basis to reach the conclusion that he owned
other undisclosed properties in India: relying on
Wu v. Sun
, 2011 BCCA
239. In other words, Mr. Singh says drawing adverse inferences against him
is not a substitute for evidence about specific assets:
Wu
at para. 41
citing
M.P.P. v. C.M.P.
, 2005 BCSC 1014.

[124]

Ms. Singh says the unequal division was justified. She
contends that the inference that Mr. Singh owned undisclosed assets is
supported partly on the basis of Mr. Singhs own testimony that in the
past decade he had earned about 10 million from property sales. At one point in
the trial he presented evidence of an accounting but left unaccounted for about
$2,147,000. Ms. Singh said it would be significantly unfair to her to
equally divide the known family assets owing to non‑disclosure by Mr. Singh
of properties and funds in India, and his costly, unilateral, and tactical move
of putting RPC 2011 into Chapter 11 protection.

C.

Standard of Review

[125]

Absent
an error of law, the standard of review to be applied to an appeal of a
s. 95 order is deferential, because in large part the order is
discretionary. In
Venables v. Venables
, 2019 BCCA 281, an appeal also
involving an order under s. 95, Justice Griffin noted the highly deferential
standard of review required in the exercise of discretion in family law cases
in order to promote certainty and finality: at para. 72, citing
Hsieh
v. Lui
, 2017 BCCA 51 at para. 38:

The
standard of appellate review in family law matters is highly deferential. An
appellant must show that there was a material error, a serious misapprehension
of the evidence, or an error in law for an appeal court to intervene. This high
standard recognises the discretionary nature of the trial judges task and the
benefits of having heard directly from the parties. It also promotes finality
and limits expense in family law litigation:
McKenzie v. Perestrelo
,
2014 BCCA 161
at paras.
23-24
,
citing
Hickey v. Hickey
,
[1999] 2 S.C.R.
518
at para.
12
and
Van
de Perre. v. Edwards
,
2001 SCC 60
at paras.
14-15
.

[126]

Here, Mr. Singh argues that the judge erred in law by
basing his s. 95 order on improper considerations, or, alternatively, that
he exercised his discretion in an unfair manner. I would apply a correctness
standard of review to the former, and a deferential standard to the latter.

D.

Discussion

[127]

The issues on appeal are first whether the costs associated with
a bad faith petition in bankruptcy and the judges finding that there are
undisclosed assets outside the jurisdiction come within permissible factors to
consider in reapportioning family assets pursuant to s. 95(2)(i), and
second, whether the judge improperly exercised his discretion in ordering an
unequal division of assets.

[128]

Before turning to the manner in which the judge applied s. 95
to the facts he found, I shall review the jurisprudence on the scope of
s. 95, the meaning of the language significant unfairness, and the
interpretation of ss. 95(2)(i).

[129]

First is the question of the meaning of the term significant
unfairness.

[130]

In
Jaszczewska v. Kostanski
, 2016 BCCA 286, Justice Harris,
for the Court, engaged in an extensive analysis of s. 95. He first noted
that the Legislature sought to increase certainty, fairness, and predictability
in property division matters with the
FLA
by reducing the discretion of
the courts to depart from equal division: at para. 36. The test in the
previous legislation (
Family Relations Act
, R.S.B.C. 1996, c. 128) only
required unfairness, whereas the
FLA
requires significant unfairness.
In addition, the legislature more precisely specified the factors to be
considered in applying this threshold.

[131]

Justice
Harris agreed with the analysis in
Remmem v. Remmem
, 2014 BCSC 1552, in which
Justice Butler (as he then was) defines significant as extensive or
important enough to merit attention and something that is weighty, meaningful
or compelling, concluding that to justify an unequal distribution [i]t is
necessary to find that the unfairness is compelling or meaningful having regard
to the factors set out in s. 95(2): at para. 41, citing para. 44
of
Remmem
. Justice Harris then noted that it would be unwise to attempt
to define the meaning of significant unfairness but found that
reapportionment under s. 95 would require something objectively unjust,
unreasonable or unfair in some important or substantial sense: at para. 42.
He said:

[44]
in enacting s. 95(2)(i) the Legislature recognized that there may be
factors other than those listed that could ground significant unfairness.
Hence, while the Legislature intended to limit and constrain the exercise of
judicial discretion to depart from equal division, it did not provide a closed
list of factors and it did not eliminate the discretion.

[132]

Ultimately, Justice Harris held that unequal division was
justified in the case under appeal given that the significant increase in value
to one property in question was caused in part by the respondent after
separation: at paras. 5253.

[133]

In
V.J.F. v. S.K.W
., 2016 BCCA 186, Justice Newbury
described s. 95 as requiring a high threshold of significant unfairness
to depart from equal division: at para. 81. Other cases have reached
similar conclusions about the high threshold necessary to reapportion assets
under s. 95. In
Khan v. Gilbert
, 2019 BCCA 80, for example, Justice
Fenlon noted that cases in which unequal contribution was found to reach the
significantly unfair threshold have involved marked, prolonged, and intentional
or unexplained disparities in contribution to family burdens: at para. 32.

[134]

In summary, it is clear that the Legislature intended the general
rule of equal division to prevail unless persuasive reasons can be shown for a
different result:
Jaszczewska
at para. 41. Reapportionment will
require something objectively unjust, unreasonable, or unfair in some important
or substantial sense. This is in contrast to the previous legislation

where
courts had discretion under s. 65 to reapportion property or debt where it
would be simply unfair not to do so. The threshold for significant
unfairness is high. There must be a real sense of injustice that would
permeate the result if the court did not deviate from the presumptive equal
division.

[135]

Keeping the foregoing in mind, I turn to consider the
interpretation of s. 95(2)(i) and whether the factors the judge relied on
properly fall within its scope.

[136]

Section
95(2)(i) is a general term, allowing consideration of any other factor  that
may lead to significant unfairness. As a general term preceded by a list of
specific items, the rule of statutory interpretation known as
ejusdem
generis
(of the same kind), or the limited class rule, may apply. In
National
Bank of Greece (Canada) v. Katsikonouris
, [1990] 2 S.C.R. 1029, La Forest
J. explained the rule thusly at 1040:

Whatever the particular document one is construing, when
one finds a clause that sets out a list of specific words followed by a general
term, it will normally be appropriate to limit the general term
to the genus
of the narrow enumeration that precedes it.

[Emphasis added.]

[137]

Ruth Sullivan, in
Sullivan on the Construction of Statutes
,
6
th
ed. (Markham, Ontario: LexisNexis Canada: 2014) at pp. 235236,
sets out three requirements for this rule of statutory construction to apply:
first, the specific items in the list must belong to a single identifiable
class; second, this class must be narrower in scope than the general words that
follow the list; and third, the rule cannot be invoked if the specific class
inferred from the list has nothing, apart from those items, to apply to.

[138]

Applying these requirements to the provision at issue, if the
rule applies, the class cannot be
any
factor that may lead to
significant unfairness as this would violate the second requirement as set out
by Sullivan. The other factors enumerated in s. 95(2) suggest
consideration of aspects of the relationship between the spouses, including its
duration, the terms of any agreement, as well as the characteristics of family
assets and debt and how the spouses have influenced their value. One of the
considerations in s. 95(2)(g) includes an analysis of a spouses good
faith or motive. These factors are broad. Nevertheless, in my view, they all
relate to a limited class, namely, the
economic characteristics of a spousal
relationship
.

[139]

The
economic characteristics of a spousal relationship
is
a broad class, but one that is narrower than the general term in s. 95(2)(i).
With regard to Sullivans third requirement, there are clearly other factors
relevant to the class that are not enumerated in s. 95(2)(a)(h). For
example, this limited class would allow for the consideration of the relative
contribution of spouses to the acquisition, preservation, maintenance, or
improvement of family property during the relationship, as suggested by
Jaszczewska
at para. 44.

[140]

Accordingly, I find that the limited class rule is applicable and
I must consider whether the factors the judge relied upon are properly the
subject of s. 95(2)(i). In my view, they are. The
economic characteristics
of a spousal relationship
would clearly encompass the existence of
undisclosed assets. This class would also permit consideration of the costs of
bankruptcy, and a partys motivations for entering bankruptcy, as the trial
judge did in the case at bar, and the consequent impact on the value of the
asset. Alternatively, I note that the cost of the bankruptcy proceeding could
also in this case fall under s. 95(2)(f): whether a spouse, after the
date of separation, caused a significant decrease  in the value of family
property

[141]

I see no error in law in the judges application of s. 95.

[142]

Keeping in mind the highly deferential standard of review
regarding the judges exercise of discretion in his consideration of the above
factors, I also see no reason to interfere with his conclusion that an equal
division of assets would be significantly unfair.

[143]

The judge made findings on the evidence as noted above that
provide an evidentiary basis for his conclusion that Mr. Singh had
additional undisclosed assets in India. In my view the judges reasons, taken
as a whole, paint a picture of an untrustworthy party, whose property disclosure
could not be relied upon at all. There is sufficient evidence of the fluidity
of his affairs between Canada and India, the nature of his real estate dealings
in India, and his dishonest lack of disclosure, for the judge to have reached
the conclusion, founded on Mr. Singhs own evidence, that there existed
additional undisclosed and unidentified assets in India.

[144]

In my view, the judge did not make something out of nothing as
was the case in
Wu
. Here, there was a reasonably based finding that there
were additional undisclosed and unknown assets. This is an exceptional case.
Usually such an award would need to be based on evidence tied to a specific
asset but where, as here, the party has been found to be completely unreliable
and his own evidence leads to a reasonable inference that he is hiding assets,
a judge may be justified in making a restrained and conservative order such as
was done here. I note that the s. 95 award is based only in part on the
unspecified assets. I also note that, unlike in
Wu
, the judge did not
ascribe any specific value to the undisclosed assets. Rather, he simply
considered the strong likelihood of their existence in fashioning a fair
division of assets. I would not disturb the award on this basis.

[145]

There was also ample evidence to support the judges conclusion
that Mr. Singh acted in bad faith in petitioning RPC 2011 into bankruptcy.
It is clear that the judge was not intervening in the Arizona proceeding, nor
was he acting outside his jurisdiction as was suggested by Mr. Singh. With
the parties consent, the judge communicated with the judge conducting the
Arizona bankruptcy proceeding. That Arizona judge had to determine whether to
order the liquidation of the bankrupt asset or the restructuring. He ordered liquidation.
Having done so, the division between the spouses of the net proceeds of the
liquidation was a matter entirely within the jurisdiction of the BC Supreme
Court.

[146]

Justice Masuharas consideration of the unnecessary burden of the
bankruptcy costs was in no way encroaching on the foreign jurisdiction. It was
a question entirely within his jurisdiction as to the division of the net
proceeds between the parties. We were not directed to any specific evidence
about the costs of those proceedings but it is within the appropriate range of
matters over which a judge may take judicial notice that there are professional
fees of significance associated with such a proceeding.

[147]

I would not disturb the award made under s. 95.

VII.

Miscellaneous Grounds of Appeal

[148]

Mr. Singh took considerable time in his factum and in oral
argument to press the point that the judge erred in law by relying on evidence
imported from the Arizona proceeding, including the forensic audit of the
Arizona property. He asserts repeatedly that the judge erred in his reliance on
evidence in the bankruptcy proceedings as to Mr. Singhs misappropriation
of property. There is no merit to these submissions. The value of the Arizona
property was not in dispute. In the final analysis the property was liquidated
and the proceeds divided equally subject to adjustments. None of the judges
final orders about the division of property were based on findings of
misappropriation.

VIII.

Special Costs

[149]

Mr. Singh appeals the order of special costs made against
him.

[150]

The
Court order provides:

The Claimant is awarded special
costs of the proceeding.

[151]

The
judge said:

[176]    Mr. Singhs conduct
at trial has been reprehensible and deserving of rebuke. His conduct has
prolonged this case, and added unnecessary time and cost, and demonstrated a
clear disregard for the administration of justice. Mrs. Singh is awarded
special costs.

[152]

In his factum, Mr. Singh says that in the alternative to
setting aside the entire special costs award, this Court should consider a
partial award of special costs. He says Ms. Singh and her counsel were
significantly responsible for the length of the trial and the voluminous
irrelevant documents put before the court. He accuses Ms. Singh and her
counsel of wasting time. In the alternative, he contends that if he is
successful on appeal, the order for special costs should be revisited. In oral
submissions, counsel for Mr. Singh sensibly did not rest his submissions
on what would have been a futile effort to persuade us that the judge
mischaracterized Mr. Singhs testimony. Rather, he stressed that the court
has leeway in terms of whether the award should cover the totality of the
proceeding or part. He also argued that the special costs order was in effect
duplicated by the $250,000 reapportionment under s. 95.

[153]

The standard of review as to the award of special costs is highly
deferential:
Hamilton v. Open Window Bakery Ltd.
, 2004 SCC 9 at para. 27;
Tanious v. The Empire Life Insurance Company
, 2019 BCCA 329 at para. 33.
Mr. Singh does not contend the judge erred in principle, in law, or made a
palpable and overriding error in his award of special costs. The judge cites
many examples of Mr. Singhs conduct in the course of the litigation. It
was clearly deserving of rebuke. The judge is in the best position to determine
if a partial award was appropriate. I would not interfere with the award of
special costs for the whole proceeding, nor would I adjust the costs award
based on the disposition of the appeal.

[154]

I also would not accede to the argument that that the judge
effectively imposed two levels of special costs on Mr. Singh. The
purpose of the two awards is entirely distinguishable. The s. 95 award,
while in part the
result
of non‑disclosure, is based on the
conclusion that Mr. Singh owns additional undisclosed assets in India. The
special costs award is based on Mr. Singhs conduct in the action.

IX.

Disposition

[155]

I would dismiss the appeal except with respect to the India
Property titled Sector 35A. I would substitute a value of $0 for the $434,233
as found by the trial judge. The parties must make the necessary adjustment to
the division of proceeds from the sale of RPC 2011 assets. If they cannot agree
to the adjusted division after removing Sector 35A, they should reappear before
the trial judge to settle the division of assets after removing the value of
Sector 35A.

[156]

Mr. Singh has been successful on appeal in respect to the
value of one of the assets, namely, Sector 35A. Nevertheless Ms. Singh has
been substantially successful on appeal. Mr. Singhs argument on appeal
was sprawling and unfocussed. Ms. Singh characterized his argument as one
seeking to simply retry the case. She is not wrong.

[157]

In
my view, Ms. Singh is entitled to her costs on appeal as the substantially
successful party:
Malak v. Hanna
, 2020 BCCA 6 at para. 5.

The
Honourable Madam Justice Garson

I AGREE:

The Honourable Madam Justice D.
Smith

I AGREE:

The Honourable Madam Justice
Fisher


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Gichuru v. Vancouver Swing Society,

2020 BCCA 40

Date: 20200124

Docket: CA46012

Between:

Mokua Gichuru

Appellant

(Petitioner)

And

Vancouver Swing
Society, Matthew Lam, Kaitlin Russell,
Angelena Weddell and The BC Human Rights Tribunal

Respondents

(Respondents)

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Butler

On an application to
vary:  An order of the Court of Appeal for British Columbia, dated October 25, 2019
(
Gichuru v. Vancouver Swing Society
,
Vancouver Docket CA46012).

Oral Reasons for Judgment

Appearing as agent for the Appellant:

G. Kimani

Counsel for the Respondents, Vancouver Swing Society,
  Matthew Lam, Kaitlin Russell and Angelena Weddell:

G. Henry

Place and Date of Hearing:

Vancouver, British
  Columbia

January 24, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 24, 2020

Summary:

The appellants application
to vary an order he post security for costs is allowed only to the extent of
extending the time for doing so, and setting aside the order he pay costs of
the application for security for costs in any event of the cause. Comment on
denial of request to hear the application by telephone because the applicant is
in a foreign jurisdiction.

[1]

SAUNDERS J.A.
: By order of Madam Justice Dickson made
October 25, 2019, the appellant, Mr. Gichuru, was ordered to
post security for costs of his appeal in the amount of $7,000 by
December 31, 2019, pending which the appeal is stayed, with liberty
to the respondents to apply to dismiss the appeal in the event the monies are
not posted in the time provided.

[2]

Mr. Gichuru applies to vary
that order pursuant to s. 9(6) of the
Court of Appeal Act
, R.S.B.C.
1996, c. 77
.

[3]

As a preliminary matter, I will
record that on Friday, January 17, 2020, we received a letter from Mr. Gichuru
explaining (as he had to the single justice) that he is currently resident in
Korea and unable to attend today. He asked that we hear him by telephone, and
provided what he said was his telephone number in Korea. Mr. Gichuru made
a similar request of the justice hearing the security for costs application in
October. We declined that request, as had the justice hearing the application
in October. Such a procedure is neither effective nor efficient, and
erroneously puts the onus on the court in respect to matters outside our
jurisdiction. Generally speaking, it is not a practice we would adopt. We did
agree, however, that Mr. Gichuru could have an agent attend on his behalf
today, and today Ms. Kimani helpfully attended and presented orally a
statement authored by Mr. Gichuru.

[4]

With that explanation, I turn to
the application before us. It is well established that an application to vary
an order of a single justice is not a rehearing of the original application:
the approach a division of the court will bring to the matter is highly
deferential and it is not enough to allege that the justice erred in the
exercise of discretion. The court may interfere with the order of a single
justice if there has been an error in principle, the justice was wrong in the
legal sense, the justice misconceived the facts, or relevant information was
not brought to the justices attention:
DeFehr v. DeFehr
,
2002 BCCA 139;
Haldorson v. Coquitlam (City)
,
2000 BCCA 672.

[5]

In this case, the application
before the justice was for an order Mr. Gichuru post security for costs.
That application fell to be decided on consideration of the four factors
discussed by Mr. Justice Lowry in the case referred to by the justice,
Creative
Salmon Company Ltd. v. Staniford
, 2007 BCCA 285:

1.

the appellants financial means;

2.

the merits of the appeal;

3.

the timeliness of the application; and

4.

whether the costs will be readily recoverable.

[6]

In his application to vary, Mr. Gichuru
does not say the justice recited the incorrect factors, but says instead that
she erred in her assessment of those factors. In particular he contends the
justice erred in:

1)

failing to give pre-eminent weight to the respondents
tardiness in filing their application (I note that that complaint is
strengthened and repeated today in the statement read by Ms. Kimani);

2)

determining the appeal lacks obvious merit;

3)

referring to comments of Madam Justice Garson in
Gichuru
v. Pallai,
2018 BCCA 78, to the effect that he had paid numerous
court fees in pursuing a series of actions over the past decade;

4)

failing to limit the order to costs incurred after the
date of the application,

5)

establishing the deadline for posting the security;
and

6)

ordering costs in favour of the
respondents in any event of the cause.

[7]

Mr. Gichuru also complains
that he was denied an adjournment of the hearing in October 2019, and that
the justice failed to accommodate the difficulties he was encountering in
pursuing this matter while a resident of a foreign country.

[8]

In the statement read today, Mr. Gichuru
referred us to the recent decision of a single justice,
Jacques v. Muir
,
2019 BCCA 456, in which Mr. Justice Groberman declined to order security
for costs because the application was brought after filings were compete,
saying: This Court has generally refused late applications for security for
costs.

[9]

Justice Dickson described the
circumstances of the appeal and the application in this fashion:

[3]        The application concerns the British Columbia
Human Rights Tribunals (HRT) refusal to accept a complaint of Mr. Gichurus
for filing. Mr. Gichuru unsuccessfully sought reconsideration of this
decision and then judicial review. He now appeals the dismissal of his judicial
review application (indexed at
Gichuru v. Vancouver Swing Society
, 2019
BCSC 402).

[4]        Mr. Gichuru complained that VSS discriminated
against him on the basis of age, sex and race and, in particular, for being an
older black male. The chambers judge summarized the dispute as follows:

[11]      ... the crux of Mr. Gichurus complaint to
the Tribunal involved what can be described as a dispute on Facebook over Mr. Gichurus
conduct related to other female members of the VSS. Mr. Gichuru felt as if
he had been harassed on Facebook by female members of the VSS and raised the
issue with Ms. Wendell and Mr. Lam. It is clear that Mr. Gichuru
expected the VSS executive to take his side on the issue, but they did not.
Ultimately, the VSS executive asked other members of the VSS for input on Mr. Gichurus
behavior and determined that it was his behavior that was problematic, although
this was not known to Mr. Gichuru at the time. In response, Mr. Lam
agreed to meet with Mr. Gichuru and provided him with three documents: a
Facebook post written from the perspective of an older man in the swing
community about older men crossing lines with younger women with romantic
pursuits; a document on Emotional Labour, which included sections discussing
toxic masculinity; and an article titled How To Not Be Creepy, which Mr. Lam
recognized as having an inflammatory title in his email.

[5]        On March 21, 2019, the judge held that the HRT had
jurisdiction to screen the complaint and found the decisions in question were
not patently unreasonable.

[6]        Mr. Gichuru filed
a notice of appeal on April 11, 2019. Although he has not filed any affidavit
material in response to the security for costs application, in his written
submission filed yesterday he asserts that VSS indicated an intention to apply
for an order for security for costs. However, they did not do so until
September 23, 2019, when they brought this application. By that time, the
materials for the appeal had already been filed by all parties. VSS offered no
explanation for the delay. In his written submission, Mr. Gichuru asserts
that he spent approximately 100 hours on the appeal between April 18, 2019 and
September 23, 2019.

[10]

In my view, none of the
submissions advanced by Mr. Gichuru provide a basis upon which we can or
should interfere with the order for security for costs. I would give him some
relief, however, on the deadline for posting the security for costs, and on the
order for costs of the application.

[11]

I address first Mr. Gichurus
submissions concerning the court process. I have reviewed the file material
carefully and see no basis for complaint. Mr. Gichuru has had the ability
to communicate with this court electronically and has done so, and he has been
accorded the opportunity to have an agent appear on his behalf, including today.
Just as we have had the opportunity to review the file materials, so, too, the
justice hearing the security for costs application had materials before her and
referred to them in her decision. In particular, I would reject, as I have
explained above, the proposition that Mr. Gichuru was entitled to the
telephone attendances that he proposed.

[12]

I turn now to the criteria for the
order that Mr. Gichuru seeks to vary, starting with the merits factor. Mr. Gichuru
contends that the justice mis-assessed the merits of the appeal. He says that
the reasons of the Human Rights Tribunal wrongly treated his complaint as one
the Tribunal could decline to file, but it was not open to the Tribunal to
decline to file a complaint after the 2002 amendments to the
Human Rights
Code
, R.S.B.C. 1996, c. 210. He says Mr. Justice Masuhara
erred when he found otherwise.

[13]

I see no error in the justices
assessment of the merits of the appeal. Justice Masuhara found that
s. 27 of the
Human Rights Code
gave the Human Rights Tribunal
jurisdiction to dismiss an appeal summarily and said, after reviewing the
substance of the Tribunals decision: this is what happened here  the
complaint did not allege an act or omission that contravened the
Code
.
He referred to the language of the Tribunals decision of refusing to file the
complaint as an artifact of the previous legislation and said but it is clear
upon close evaluation of the statutory regime that the Tribunal had the
authority to dismiss his complaint for the reasons given. That authority is
found in s. 21, not s. 27. I see no real prospect that a division of
this court would interfere with the substance of the conclusion that the
Tribunal had the jurisdiction required to do as it did. In sum, I find no basis
to interfere with the justices conclusion that the appeal lacks obvious merit.

[14]

Nor do I see error in her
evaluation of Mr. Gichurus financial circumstances, or that the
respondents, if successful on appeal, will be unlikely to readily recover costs
that may be ordered in their favour. The justice observed that a search of Mr. Gichurus
history of initiating actions resulted in 84 reported judgments on CanLII.
That level of court activity demonstrates that Mr. Gichuru has been able
to pay numerous court fees in pursing actions over the years. The justice
observed that she had no evidence before her that Mr. Gichuru would be
unable to pursue his appeal were he required to post the security for costs.
While he makes that submission, the submission is unsupported by the record.

[15]

On the other hand, there was
evidence before the justice that Mr. Gichuru does not own real property in
British Columbia and he is currently living in a foreign jurisdiction. Mr. Gichuru
himself did not depose to having exigible assets in this jurisdiction, and he
concedes in fact in his written argument at para. 48:

48.       Nevertheless, and in the alternative, the
application should have been rejected on the basis that although
the
respondents chances of recovering their costs in the event they are successful
on the appeal is doubtful
, appellants who are without the financial ability
to post security should not be precluded from pursuing a meritorious appeal for
that reason alone.

[Emphasis
added.]

[16]

It was open to the justice to
conclude that the respondents would have difficulty in recovering payment on an
order in their favour for payment of costs of the appeal. One cannot say the
justice erred in her application of the financial considerations.

[17]

All of this left the issue of the
timeliness of the application which was, as the justice recognized, the only
factor weighing against the respondents application. While timeliness is,
generally speaking, important, it is not an invariable rule that an application
brought after all the necessary filings have been made will be denied. It is,
in the end, always an exercise of discretion taking all the circumstances into
account. What is required of the justice is consideration of the entire
picture. I conclude the justice here based her decision that security for costs
should be posted on the entire circumstances before her, as she was required to
do. Although we are referred to
Jacques
, that case does not reflect the
difficult financial circumstances of the respondent arising from this
litigation noted by Justice Dickson in her para. 23 of the reasons for the
order that is sought to be varied:

[23]      [Vancouver Swing
Society] is a small non-profit society, its resources have been exhausted by
this litigation, and its directors have had to pay out‑of-pocket to
continue defending themselves in this litigation. This factor weighs further in
favour of a security for costs order.

[18]

I see no basis upon which we can,
properly, interfere with that decision.

[19]

Nor do I see a basis upon which to
say the justice was required to limit the amount posted to costs going forward
as Mr. Gichuru now proposes. While that was one alternative available to
her, it was not presented to her, and she cannot be faulted for declining to
reduce the amount sought to be posted as security.

[20]

This leaves the time established
by the order for the posting of security for costs, and the order for costs of
the application to the respondents. The justice directed that the security for
costs be posted by December 31, 2019. That date has come and gone.
This application to vary the order was filed within time, but the reasons of
the justice were not available to Mr. Gichuru for some time and I cannot
see how Mr. Gichuru could have had this application heard by a division by
the deadline of December 31, 2019 in all the circumstances. I
consider it is appropriate to allow Mr. Gichuru some further time to file
the security for costs. I would extend the time for filing security for costs
to February 28, 2020.

[21]

The final question is the order
for costs of the application before the justice. The usual order is that costs
are in the cause. While I consider the appeal to be one of dim merit, that
result is not a total foregone conclusion. There is, in my view, no reason that
the respondents should be entitled to costs of the application in the event Mr. Gichurus
appeal is successful.

[22]

I would allow the application to
vary only to the limited extent of extending the time for Mr. Gichurus
compliance with the order to post security for costs to
February 28, 2020, and setting aside the order for costs of the
application before Justice Dickson in favour of the respondents.

[23]

FITCH J.A.
: I agree.

[24]

BUTLER J.A.
: I agree.

[25]

SAUNDERS J.A.
: The application to vary is allowed to the extent the
time for posting the security for costs is now February 28, 2020. The
order made by Justice Dickson for costs of that application in favour of the
respondents is set aside.

The
Honourable Madam Justice Saunders