[
91] The plaintiff also made submissions on issue estoppel following Cadwell Estate v.
Martin, 2021 BCSC 1089, at paras. 156 and 157, to the effect that when one person, by
declaration, act or omission, intentionally causes or permits another person to believe a thing
to be true and to act upon such believe, either he or she nor his or her representative may be
allowed, in any suit or proceeding between himself or herself or his or her representative and
such personal representative to deny that thing. (see also R. v. Chesley (1889), 16 S.C.R. 306,
1
888 Can LII 49 (S.C.C.).
Submissions of the Defendant
[
92] The defendant submitted that simply because the defendant executed the Mortgage
but did not mean that the defendant was liable to the plaintiff in the amount of $2,700,000
plus interest. The defendant relied upon Crédit Foncier Franco-Canadian v. Bennett, [1963]
B.C.J. No.16 (C.A.) at para. 11, 1963 839; and Mohabir v. Dvorak, [1999] B.C.J. No.
8
02 (S.C.) at para.12, 1999 5877.
[
93] The defendant argued sums payable referred to in various documents by companies
related to the defendant including Raiwal Agro Tech Foods Ltd. and 639110 B.C. Ltd. are
distinguishable from the other and all should have been added as defendants. The defendant
relied upon the cases of Emtwo Properties Inc. v. Cineplex (Western Canada) Inc., 2011 BCSC
1
072; and BG Preeco (Pacific Coast) Ltd. V. Bon Street Holdings Ltd., [1989] B.C.J. No. 1032
C.A.), 1989 230, as authorities for the well-known concerns about lifting of the
corporate veil.
(
[
94] The practice of Mr. Raiwal, in his various dealings with his own companies, placed no
respect on the corporate veil. The practice followed by Mr. Raiwal is readily noted in the
delivery of the Three Mortgages referred to in para. 33 of the Agreed Statement of Facts of
which the plaintiff had no input whatsoever. These mortgages were charged against lands
owned by 639110 B.C. Ltd. (Ex. B, Tab 32), RHL (Ex. B, Tab 33) and Sukhbinder Kaur Raiwal
th
(
Ex. B, Tab 35), all dated March 6, 2015 and the 176 Street Property owned by RHL. The
plaintiff had no involvement whatsoever in the creation nor execution of these mortgages:
they were simply created by the defendant, for the purpose of representing positive security
for monies which Balbir Raiwal had agreed were to be paid to FVP.
[
95] Similarly, Balbir Raiwal executed the Promissory Note drawn in favour of FVP for the
sum of $2,316,585.38 payable with on November 30, 2015 as noted in para. 36 of the Agreed
Statement of Facts. The email communications at Tab 42 to Tab 47, demonstrate the purpose
of this Promissory Note was to confirm that Balbir Raiwal, personally, would pay the sum
noted. By implication, he must have agreed the sum of $2,316,585.32 was to be paid to FVP as
of the effective date: June 1, 2015. Finally, it was Mr. Raiwal, who after a review of the
accounts in Ex. 3, the spreadsheet, concluded that it was appropriate for all of the accounts to
be paid by RHL and he instructed his solicitor to prepare the Mortgage which confirmed the
amount to be paid by RHL to FVP, and then he executed the Mortgage. The plaintiff did not
ask for a lifting of the corporate veil to obtain the Mortgage, that decision was made entirely
Mr. Raiwal as the operating mind of RHL. Neither of the cases cited above consider these
circumstances.
[
96] Counsel for the defendant acknowledged that the Mortgage was signed by Mr. Raiwal
and it was suggested that he somehow lacked an appreciation of the legal effect of each of the
amounts which made up the principal amount to be paid under the Mortgage. Counsel did not
address the fact that Mr. Gill provided Mr. Raiwal for his review, on several occasions
disclosed in the evidence, complete particulars of the calculations of the amounts which
formed the basis of the amount due under the Mortgage; the Mortgage was prepared on the
instructions of Mr. Raiwal given to a qualified lawyer, who prepared the Mortgage based on
those instructions.
[
97] The defendant relied on a family law case, Vhora v. Vhora, 2016 ONSC 2951, which
dealt with the enforceability of a promissory note. When the parties to a divorce sought to
divide family assets, the respondent sought to deduct the amount of $202,806 for a
promissory note in favour of his father, Usuf Vhora, apparently created in relation to the
purchase of a family home. The wife’s position was that the note was prepared after separation
to defeat an equal division of family assets. Usuf Vhora, who was apparently available to