is proffered by way of defence to their conduct with respect to the Richmond Hill
project of the 9011 company.
b. The defences raised depend upon alleged unsigned agreements and understandings
said to be derived from email exchanges that are inconsistent with the signed
shareholder agreements and acknowledged protections and security that the plaintiffs
were to receive for their $9 million investment. The defendants maintain that merely
copying a shareholder of one of the companies on emails indicating that title to a
property is to be taken in the name of another company, with no context, discussion,
or credible explanation as to why this needed to be done,3 or about how the agreed
upon security to be given to the plaintiffs would be preserved, cannot amount to an
agreement to change the written contractual arrangements between the parties. The
contract required title to the Brampton Property to be taken in the name of 9010 and
it contained entire agreement clauses and a requirement for amendments to be in
c. The June 12, 2019 due diligence email exchange between lawyers refers to the use of
funds advanced by the plaintiffs for deposits by a different bonded development
company, Caliber Development Inc., and refers to development costs (with no
mention of personal expenses) to be paid from the $1.5 million development “fee”.
The plaintiffs contend that this is about a different deal than the one entered into and
offends the entire agreement clauses in the signed shareholder agreements between
the parties (for example at paras. 4.4, 5.5, and 7.6), which make no mention of the use
of invested funds for deposits or of any development fees. At best, this email
exchange could only account for a fraction of the funds advanced (the $2 million
deposit and potentially some development fees up to a maximum of $1.5 million, out
of the total $9 million invested). Further, this email does not purport to deal with the
Richmond Hill Property at all.
d. The analysis of the banking records that the plaintiffs have obtained through third
party production (summarized at Appendix B to the plaintiffs’ factum) and of the most
recent accountings that have been provided by the Developer Defendants themselves
(summarized at Appendix A to the plaintiffs’ factum), although not reconciled with
each other, both demonstrate that the defendants (or parties related to them) received
more than $3.6 million of the plaintiffs’ funds (approximately $1.9 million to
3 The plaintiffs say that Hyman first testified that title had to be taken in the name of another company because financing
could not be obtained by a numbered company and then later testified that it was because financing could not be obtained
without a guarantee from Mr. Singh, even though neither he nor the plaintiffs had ever agreed to provide a guarantee.
4 The plaintiffs also contend that Koehnen J. has already found a strong case on this core allegation (failing to put title to
the Brampton Property in the name of 9010 and grant the agreed upon security) in favour of the plaintiffs in his reasons
rendered on July 20, 2020 on the motion relating to the sale of the Brampton Property (at paras. 5-17 and paras. 24, 27,
29, 35, and 36. Also paras. 64-70). Similar arguments are made by the plaintiffs arising from the findings of Koehnen J.
in his April 23, 2020 reasons that the plaintiffs have raised a serious issue to be tried. The plaintiffs suggest that this is a
finding that their claims have merits. These previous findings regarding the merits of the plaintiffs’ claims may assist in
the establishment of the plaintiffs’ entitlement to judgment, but they do not address the totality of the merits that the Court
of Appeal has indicated must also be considered if judgment is to be granted as a sanction for contempt.