Court File and Parties

COURT FILE NO.: CV-10-417438 DATE: 20180622 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: PUSHAP JINDAL Plaintiff – and – THE BUFFALO GROUP DEVELOPMENTS LTD., 2046074 ONTARIO INC., NARINDER S. KAURA and LAKHVIR SINGH Defendants

COUNSEL: Jonathan Kulathugam, for the Plaintiff Michael D. Magonet, for the Defendants

HEARD: January 22 – 26, 29 – 31, February 1 – 2, February 6 – 8, 2018

LEDERER J.

Endorsement

[1] This case was a misuse of the court and what it offers. It does no credit to:

• the lawyers who refused to understand the narrowness of the issues raised and called all manner of evidence that was peripheral and not helpful in coming to an understanding of the situation or to the making of the requisite decision, and
• the clients who, it seems, in an apparent search for retribution and justification failed to grasp the limits of what the court can provide and the value of what was at stake.

[2] At the outset the case was scheduled to take 12 days. This was more time than should have been required. As it proceeded it became apparent it would take even longer. Eventually, the parties came to grips with the boundaries of the evidence required and the realization that that what was needed had been provided. This shortened the time that the case might have taken but should have happened much sooner. As it is the trial took 13 days.

[3] It was evident almost from the outset that there were only two issues.

[4] The first was whether, in coming to an understanding of the compensation to be paid to the plaintiff for an array of work he was to undertake for a variety of companies owned by the personal defendants, consideration was given to and compensation provided for the work he did in respect of two land development projects undertaken by the defendants through two of those corporations.

[5] The second issue presumed the answer to the first. If there was an agreement between the parties that the payments to be made to the plaintiff included his work on the development projects there was nothing further to be determined. He did the work; he was paid. However, if that work was not included and there was an understanding that he was to be compensated at the end of the projects (payments the defendants have refused to make or concede are owed) some calculation of that debt would have to be made. For reasons I cannot fathom, even with the delineation of these issues by the judge and their apparent acceptance by the lawyers, counsel for the defendants insisted on calling and reviewing facts and perspectives whose relationship to those issues was sufficiently distant as to have little probative value. To put it simply, the case was going to be decided well short of any reliance on this evidence. For their part counsel for the plaintiff proposed a value for the work done that was so far removed from the evidence meant to justify it as to be meaningless.

[6] The plaintiff was a certified general accountant. [1] While he was working in the practice of another accountant he was introduced to the two personal defendants. Those defendants were clear in the position they took. During this period all that took place was an introduction. They met the plaintiff in the course of attending at the office where he was working. They did no work with him and did not develop any particular relationship with him.

[7] The plaintiff decided to set up his own business. It is unclear whether the defendants approached him or he solicited them. He says one; they say the other. It does not matter. They retained him to do accounting work. He started in January 2005. He was to do the work at the offices of the defendant companies. The plaintiff was to attend there each morning for two hours. He explained that this was required in view of the fact that the defendants had purchased a particular software that allowed them to record the financial aspects of their business more easily and that the staff required assistance in properly inputting the necessary data. The plaintiff referred to this as bookkeeping. The defendants denied he did any bookkeeping. They had staff that did that work. They conceded that, at the outset, the plaintiff was active in inputting the data to the software. How it is defined, whatever words are used to describe it, it is agreed he did that work. He said that in time the staff learned how to do this. The defendants say that after some time the requirement that he attend each day was relaxed. Be that as it may, this has little to do with the issues at hand. Primarily his retainer was to keep the books and prepare tax returns.

[8] At the outset of his engagement it was agreed he would be paid $30,000 per year. At that point there was only one active company The Buffalo Group of Companies Inc. (hereinafter “Buffalo Group”). It was a successful transportation company with one large client, Toyota. Buffalo Group was a broker directing business to the owners of tractors (the motorized end of heavy vehicles). Quite apart from that part of its business Buffalo Group also operated ten tractors of its own.

[9] The plaintiff put in place a new structure. The plaintiff said this was his idea. So far as I can recall, the defendants provided no evidence suggesting they disagreed. It does not matter if they did.

[10] The two personal defendants had had a disagreement. They each incorporated a company. [2] Presumably the idea was to separate the assets and distribute them to these individually owned corporations. The two defendants overcame their differences. The two companies remained as shells. With the assistance of the plaintiff the part of the business represented by the ten tractors owned by Buffalo Group was moved out to the two shell corporations (five tractors to each company). The two newly operating businesses were administered from the office of the plaintiff in order to demonstrate and ensure an arm’s length relationship with Buffalo Group. Under this structure the two companies took over a part of the business in circumstances where they were able to claim a “small business deduction” and reduce the overall taxes paid by the businesses of the defendants.

[11] Needless to say, the plaintiff testified that this change increased his work load beyond what had been predicted at the time he was retained. This appears to be verified by the fact that beginning in June 2005 and continuing in July 2005 he was paid an additional $350.00 by each of the two newly operating companies, for each of the two months or $700 per month.

[12] In August 2005 a new arrangement was made as to the compensation the plaintiff was to be paid. Beginning that month, rather than being paid $30,000 annually by Buffalo Group ($1,153.85 per month), it was to pay the plaintiff $36,000 each year ($3,000 per month) with an additional $500.00 per month being paid by each of the two newly operating companies (together $12,000 each year) for a total of $48,000.

[13] The plaintiff explained this as a raise. There was more work to do for more companies. Nick Kaura, one of the personal defendants testified that at this point in time there were 6 companies for which the plaintiff was to prepare T-2 tax returns. Visas for transporting the goods, presumably to the United States needed to be arranged. The drivers employed by the two newly operating companies had to be paid. The defendant Nick Kaura testified that the effort involved in this did not amount to much: just input the regular work schedule for drivers and pay them what they were owed. The plaintiff says this work was much more complicated. Drivers do not work regular hours. Their pay would change from one pay cycle to the next. The defendants had acquired land some of which was being used as parking spaces for trucks, some of which were rented or leased to others. [3] These businesses required accounting, leasing, collection and other operating functions. Some of them became the responsibly of the plaintiff. Martinez Properties Inc. was another of the companies owned by the defendants. It held property. [4] A parking facility was constructed on the site. The responsibility for this fell to the plaintiff. It was the plaintiff who reviewed the product material and ordered and arranged for the gate by which access to the site would be limited only to those who had leased space. [5] The site was to be managed by 10654385 Ontario Inc. yet another corporation owned by the defendants. The plaintiff arranged for contracts, albeit in a standard form, to be signed by the lessees. [6] The plaintiff began collecting rent from this endeavor in or around October, 2005.

[14] In the meantime and quite apart from the properties to which I have already referred, there were two other pieces of land that the defendants purchased. These were bought in response to the perceived need that their interests should be diversified. The business was too narrow. The transportation business, while lucrative, depended on Toyota as an essential, if not the only client. There was disagreement as to who identified this need. The plaintiff said he saw this early in his involvement with the business of the defendants and raised the question with them. Nick Kaura said he did not need to be told this by the plaintiff. He already knew. As with so many of the disagreements in the evidence, it does not matter. The issues to be determined are not affected by whoever saw diversification as a strategy to be employed.

[15] As it is, on May 12, 2005, the defendants entered into an Agreement of Purchase and Sale whereby they agreed to purchase four acres of land, in the City of Brampton, on which four houses were located. [7] The defendants agreed to pay $5,250,000 for the property. There was some disagreement between the parties as to the role, if any, the plaintiff had in developing an understanding of how this purchase could be funded. Again, this difference does not impact the issues at hand. These lands have been developed by the defendants and are now identified as the Brampton Business Centre.

[16] On July 12, 2005, the defendants agreed to purchase approximately 7.94 acres of vacant land in the Town of Caledon for $1,825,000. While some effort has been made to develop these lands that has not yet occurred.

[17] The role and involvement of the plaintiff in the development of the lands in Brampton and the steps taken in furtherance of the development of the lands in Caledon is central to his claim to be paid for work that he says was not part of any arrangement that he had with the defendants in respect of his compensation. To the contrary, it is the position of the plaintiff that the defendants had told him he would be paid once the development of each of the parcels of land was complete and that, at that time, he would be compensated “handsomely” for his efforts.

[18] The defendants take the position that the agreement made effective August in 2005 was not a raise. In fact it reflected a recognition that the time to be spent by the plaintiff on the accounting work was to be less than it had been and that the increase in the compensation to be paid to the plaintiff was on account of work he was asked to undertake in response to the defendants’ desire to develop the lands they had purchased. This was said in concert with the acknowledgment that the defendants did not know what would be involved in obtaining the approvals necessary to develop the lands or the costs associated with any construction that would be part of either project. Principal in making this submission was the proposition Buffalo Group was beginning to lose business and its revenues were reduced. In taking this position reference was made to an email from Transfreight Inc., a wholly owned subsidiary of Toyota responsible for its overall logistics. The email is dated August 9, 2005 and advised that:

…the Chicago routes are decreasing on the northern routes effective this change in August [ sic ]. SOCN route are going from 5 routes to 3 routes [ sic ]. From the dispatch schedule it looks like the last day of dispatching 5 routes will be 08/24/05 you start dispatching 3 routes per day for Northern. Southern routes have no change.

[19] Over time the business of dispatching trucks to service Toyota did go down but whether this began on the date specified was not confirmed. What is clear is that revenues did not immediately decrease. The Record includes financial statements for the year ending March 31, 2007. [8] The revenue for the year which began on April 1, 2005 and ended on March 31, 2006, was $26,225,432 which was the highest revenue of any single year experienced by Buffalo Group. This would include August 2005 and the months that followed. Revenues were reduced over the following years. For the year ended March 31, 2007, revenues are shown to be $18,881,506. To my mind this tends to support the position of the plaintiff that there was more, not less work for him to do. There was no denial that the restructuring took place and that there was work to be done respecting the businesses that owned land where trucks were to be parked. The more substantive indication that problems were on their way was the realization that Transfreight Inc. was aware of the amounts being paid to Buffalo Group and reacted by attempting to purchase the company. On January 7, 2005, Transfreight Inc. and the Buffalo Group signed an agreement for a ninety day period where the negotiations between the parties were to be confidential and exclusive. This as much as anything led to the conclusion that the partners had to diversify their business. As described by defendant Nick Kaura, either they would sell or they would be displaced. No sale was ever agreed to or closed.

[20] The defendants alleged that, as a result of the prospective loss of business as of August 2005, there was no money to pay anything more to the plaintiff for any extra work he might do on behalf of the proposed development projects. As it transpired this was inaccurate. In order to proceed with the developments there was an assortment of professional and technical support that needed to be retained. If there was no money how were these people to be paid? There were planning approvals, particularly rezoning that needed to be undertaken. Until this was complete it would be difficult to obtain bank financing. The land would not have the necessary value to secure what was required to complete construction. As it turned out there were retained earnings in other of the companies owned and operated to the benefit of the defendants. The “worksheets” for the corporations that owned the development lands both those in Brampton and Caledon show that, while some funds came by way of direct investment from the two partners, by far the majority came from other of the corporations they owned, including Buffalo Group. I do not accept that there were no further funds to pay the plaintiff for any additional work he did on the projects.

[21] This is underscored by a handwritten note said to be a written demonstration of negotiations that took place. The parties disagree as to when this note was prepared. The defendants say it reflects discussions that led to the change in the compensation of the plaintiff that took place in August 2005. The plaintiff says it took place later, at the time of a further discussion concerning his compensation in and around February 2007. In coming to a decision in the case, there is no need to determine this point. The note contains a listing of companies owned by the defendant with dollar values associated with each which, after a further $100 is added presumably to round off the number, comes to $3,500 per month. This would represent a total of (12 x $3,500) $42,000 per year. The amount paid, beginning on August 5, 2005, was $48,000. That number appears on the note in handwriting acknowledged by all to be the plaintiff’s. He explains this by pointing to the number “85” added to the note by Nick Kaura. Both sides agree that at the time the discussions took place (whenever that may have been) Nick Kaura observed that there was no reference to the work being done for 10654385 Ontario Inc. Managing the parking facility it was operating was valued at $500 per month, adding a further $6,000 to the annual amount bringing it to $48,000.

[22] Whatever the date, Nick Kaura denies that the numbers on the handwritten note represent the foundation for an understanding of the compensation paid to the plaintiff, in the succeeding months. He says that the $48,000 is simply a round number that accounted for the work to be done, by the plaintiff, including on the development projects. The fact that the payment of the $48,000 was attributable to only three companies did not change his view despite his evidence that there were six companies for whom the plaintiff would be working. This division of payment is unrelated to any understanding of the value of the work done for each of the three (or six). It was only an indication of where the payments would come from. It was never denied that the plaintiff was going to be doing work for 10654385 Ontario Inc. yet it apparently did not pay anything, either following the change made in August 2005 or the one that took place in February 2007. Nor were the two companies that were the owners of the development lands to make any payments. [9] Beginning in June 2005 until January 2007 payments were made by Buffalo Group and the two companies to which the transport vehicles owned and operated by the defendants were transferred (Cybex Motor Freight Inc. and Dominant Transport Inc.). Thereafter only Buffalo Group paid.

[23] If the evidence of Nick Kaura is accepted this would mean that the parties had come to an agreement about what the plaintiff was to be paid in circumstances where none of them had any idea what the cost of developing the properties would be or what technical or professional help they would require or the role the plaintiff would play. None of them had any development experience and the properties were both purchased within days of the defendants learning they were available. There was no suggestion that any pro forma or other analysis as to the cost of development or what would be involved had been undertaken or considered in advance. To the contrary it was only after the Agreement of Purchase and Sale regarding the Brampton lands had been entered into that they met with the Land Use Planner who would oversee the approval process. This took place on May 31, 2005 and was followed, on June 6, 2005, by a proposal for a preliminary review directed to recommending a “Phase II strategy and work program.” The cost of this was minimal: $5,000. This work having been completed a proposal for Phase II was made on July 20, 2005. It included the need to retain as sub-consultants “possibly a surveyor, civil engineer, traffic engineer, landscape architect etc.” Other than the presentation of the hourly rates of the planner and his staff and the unit price of his disbursements (for example: “Binders Legal… $16.99 each”) nothing is said as to the overall cost of this work. It was only by email dated Friday, November 10, 2006, that a “Feasibility Spreadsheet” outlining the costs was produced. This spreadsheet breaks the costs down into 14 “Expenses” without any further breakdown as to the need or cost of any particular sub-consultant. The spreadsheet was amended as of Monday, December 11, 2006, but does not contain any additional detail as to the cost of sub-consultants.

[24] The handwritten note to which I have referred does make reference to the two development “Projects” as “Caledon” and “Hurontario” and to the headings (1) Planning, (2) Financing (3) Construction and (4) Management. There are two lines apparently intended as places to put the compensation attributable to the plaintiff for each parcel of land. No number has been placed on either line. This is in the handwriting of the plaintiff; placed there in anticipation of some discussion and the assignment of a value to what he would be doing. No values are shown. The plaintiff says this is because the defendants promised that he would be paid at the end and “handsomely”. The defendants deny this. It is their position that the reason there was no value attached was because the compensation that was agreed to included any work the plaintiff would do on the projects.

[25] There is no written confirmation of any agreement between the parties.

[26] I find there was no agreement that the $48,000 the plaintiff was to be paid included his work on the two development projects. The plaintiff was initially retained to do accounting, for example, to prepare financial statements and tax returns. The increase in payments made in August 2005 was much more likely to have been agreed to in furtherance of the additional work the plaintiff was expected to carry out. He became responsible for the operations of the two companies that absorbed the ten trucks and the business that came with them. They were run from his office. I accept that metaphorical distance was helpful in demonstrating that the two companies operated at arm’s length from Buffalo Group. The plaintiff was responsible for preparing the lands to be operated as a parking facility by 10654385 Ontario Inc. (“85”) on behalf of Martinez Properties Inc. and to running the business (collecting rent) when it became operational in October 2005. To add any involvement with the development projects to this in the absence of any substantive understanding of what this involved would have been foolish, on both sides, and I find on a balance of probabilities did not happen. I find that the issue of payment to the plaintiff for the work he would do in respect of the development projects was put aside. What would be asked of him was not known.

[27] The absence of agreement is confirmed by what follows.

[28] There were two letters, both dated November 22, 2005. They were written by the plaintiff. There is one for each of the two projects. These letters are proposals for fees: $60 per hour and percentages attributable to his involvement with various financing vehicles. They are unsigned. They are said to be further to discussions that took place on the day they were written. The defendants deny there were such meetings or that the letters were ever delivered. The degree of mistrust between the parties is demonstrated by the suspicion of the defendants questioning whether these letters were prepared at the time suggested by the date shown on them. Maybe this mistrust is why the defendants were unable to see through their disagreement and appreciate the limits of what the court should consider given what it was being asked to determine. Apparently, they hired an expert to investigate when these letters were created. At the commencement of the trial it was acknowledged that the letters were prepared at a time consistent with the date: November 22, 2005. For the purposes of these reasons I accept that the defendants did not see these letters until they were produced as part of this action. Nonetheless, they are an indication that in the weeks following August 2005 the plaintiff did not understand that there was any agreement that the $48,000 he was to be paid included work on the two development projects. Interestingly, the letters include a list of services the plaintiff expected to provide. For the Rezoning, Site Plan Approval and Building Permit stage the list records many of the activities which, with the passage of time, he took part in. [10]

[29] It is acknowledged that the understanding as to payment to the plaintiff for the work to be undertaken was not comprehensive. There was work performed by the plaintiff that was beyond any arrangement that was made. It was paid for outside and in addition to the payments outlined on the Schedule said to represent the payments made in respect of whatever understanding the parties had come to. I point in particular to invoice number 3096. This required a payment of $6,334.40 (including GST) said to be for consulting services. There was evidence that this invoice and the payment were not related to work done in respect of either of the two developments and was additional to the payments arranged and represented on the schedule of payments made to the plaintiff. This took place early in the relationship between the parties. Counsel for the defendants pointed out that between February 2005 and July 2005 the plaintiff billed Buffalo Group the sum of $36,040, that is additional to the $30,000 covered by the arrangement made starting in January 2005.

[30] There was a further adjustment to the compensation paid to the plaintiff in or around February 2007. This was another change as to where the payments would come from. This was in response to the slowing of the transportation business. The two businesses that had taken over the ten trucks had ceased to operate. The total being paid ($48,000 per year) did not change. According to the schedule that outlines the payments made to the plaintiff, beginning in February 2007 all of the money came from Buffalo Group ($4,000 per month totalling $48,000 per year). How is this to be explained? It is at this point that the timing of the handwritten note should be addressed. The plaintiff says that the note was prepared in 2007 and that this confirms the understanding that there was no inclusion of any recognition of work he undertook in respect of the two development properties. His understanding derives from the division of the payments among the companies referred to in the handwritten note. The fact remains that there is no suggestion that the parties agreed to this division, whenever it took place. I note that both parties agree that the number “85” referring to the company that was to operate the parking facility on the land owned by Martinez Properties Inc. was placed on the handwritten note by Nick Kaura. This suggests he had an understanding of how the plaintiff attributed the payments he was to receive. A review of the document does not suggest that Nick Kaura requested or made any other change by way of objection to its content. What is important about this document is not when it was prepared but that it demonstrates what the plaintiff thought he was being paid for and says nothing outlining or substantiating any understanding as to payment for work done on the development projects. The presence of the notation referring to the two projects on the handwritten note with the value of any payment being blank means nothing. It could indicate that the plaintiff expected some discussion but none was forthcoming, it could signify that any consideration was put off until the projects were completed and the actual contribution of the plaintiff could be evaluated (“you will be paid handsomely”) or that the costs were included. As to the second of the two options, one has to wonder why this would be the case when nothing was said of it. The cost of operating the parking facility was “included”, but no number associated with it shown on the document. It was said to be the subject of specific discussion and, through viva voce evidence the number associated with it calculated from the total shown. There is nothing similar showing what was attributable to the development projects or confirming that they were discussed at all. In other words consideration of this part of the plaintiff’s work was put to the side.

[31] There was yet another adjustment to the payments being made to the plaintiff. On April 28, 2008, the defendants wrote and asked the plaintiff for a new “accounting budget”. In considering this request he was instructed to take into account that revenues were down and the owners (the defendants) were not being paid. They provided a list of the companies to be accounted for. It included the corporations that owned the development lands (2046073 Ontario Inc. and 2046074 Ontario Inc.). The plaintiff did what was asked. The budget included costs associated with the two development companies ($1,200 each). The budget specified that this was for “Year End financial + T2 only”. There was no similar inclusion in the handwritten note prepared in respect of one or the other of the two earlier changes. This suggests that for this final change, which was initiated in or about June 2008, specific consideration was given to the development properties but that it did not account for the cost of the plaintiff’s participation in the development process. The total for the work referred to was $20,400 per year. This was agreed to by the owners. There was no suggestion that this included whatever work the plaintiff continued to do on the development of the two properties. To my mind this serves to confirm that beyond accounting costs nothing was included in respect of these projects. Where costs extended beyond the values referred to, either they were accounted for (operating the parking facility) or paid for separately (consulting).

[32] The plaintiff says he asked to be paid for the work he had done. This was refused. He says he was told this was because of the agreement that he was to be paid at the end.

[33] I repeat, on a balance of probabilities I find there was no agreement as to the treatment of time spent or work done by the plaintiff on the two development projects. This being my finding I turn to the second of the two issues: How is any payment to be made to the plaintiff to be calculated?

[34] The relevant request in the prayer for relief found in the Statement of Claim seeks: “Damages in the amount of $1,500,000 for breach of contract and/or restitutionary relief and/or quantum meruit.” In these circumstances the proper claim is for quantum meruit or more particularly restitutionary quantum meruit. Quantum meruit has been explained as follows:

… a quantum meruit claim is not dependant on the existence of a valid contract but is a discrete cause of action which contemplates a remedy for unjust enrichment or unjust benefit. The Court indicated that there will be two requisites to a successful quantum meruit claim: (1) That the services in question were furnished at the request, or with the encouragement or acquiescence of the opposing party; and (2) That such services have been furnished in circumstances that render it unjust for the opposing party to retain the benefit conferred by the provisions of the services. [11]

[35] In turn restitutionary quantum meruit applies:

…if the services in question were furnished at the request, or with the encouragement or acquiescence, of the opposing party in circumstances that rendered it unjust for the opposing party to retain the benefit conferred by the provision of services. [12]

[36] As a discrete cause of action restitutionary relief based on quantum meruit contemplates a remedy for unjust enrichment. The question becomes how is such a claim to be valued? It has been said that:

Where a claim is successful, the amount recovered by the Plaintiff will depend on the value of the services of work in terms of what the Defendant might reasonably have expected to pay for such services on the open market at the material time. [13]

[37] The Plaintiff is entitled to recover for his services and outlays:

What the Defendant would have had to pay for them on a purely business basis to any other person in the position of the Plaintiff. [14]

[38] How are these directions to be applied in this case? What role did the plaintiff play or work did he undertake in furthering the development projects being undertaken by, or on behalf of the defendants, in both Brampton and Caledon? The contribution and participation of the plaintiff was the subject of some debate. This is so despite the provision of an agreed statement of facts dealing with the issue. It outlines a substantial participation:

1. It is not disputed that Mr. Jindal was involved in the Projects and added value, which the defendants maintained was covered by the compensation paid to Mr. Jindal of $48,000.
2. It is not disputed that Mr. Jindal attended most of the meetings he claims to have attended although not all. However this distinction as it relates to most and all is not material. [Mr. Jindal provided a list of the meetings he claims to have attended in respect of the Brampton project which includes 105 meetings. A graph also provided to the Court demonstrates that these meetings occurred on a generally regular basis over a period beginning before March 24, 2006 and ending on or around July 6, 2009. A listing of the meetings Mr. Jindal claims to have attended in respect of the Caledon project includes 48 meetings. In this case the graph demonstrates the meetings were concentrated in the period from before March 24, 2006 to on or around April 28, 2007 with six more meetings spread out from that time to in or around July 6, 2009.]
3. The defendants do not dispute that the emails that Mr. Jindal claims to have sent and received were in fact sent and received.
4. The Defendants admit that time period [ sic ] that Mr. Jindal was actively involved with the project was between May 2005 and July 1, 2008. [This confirms that the plaintiff was “actively involved” at least for this period.]
5. The Defendants dispute Mr. Jindal’s involvement in the Projects post July 1, 2008. The parties agree that Mr. Jindal attended 15 the meetings post July 1, 2008. Defendants do not agree that all of the 15 meetings related to the Project. The parties agree that post July 1, 2008 Mr. Jindal sent or received no more than 123 emails.

[39] There is no doubt that the plaintiff did more than just attend meetings and read emails. He was substantively involved in any number of issues. He attended meetings and communicated with representatives of the City of Brampton. He reviewed and commented on work undertaken by some of the consultants. The plaintiff attended meetings with other nearby land owners, including Loblaws in respect of access and cost sharing required for the provision of roads and other services. He talked to prospective tenants (Tim Hortons).

[40] Michael Gagnon is a planner who was and so far I am aware remains active in the Brampton area. He was retained by the owners to provide the feasibility study and identify the professional help that would be required for the development of the lands in the City of Brampton. Meetings with the consultants were held in his office. The three individual parties to this action (the plaintiff Pushap Jindal and the defendants Narinder S. (Nick) Kaura and Lakhvir Singh) attended and to the eye of Michael Gagnon worked together co-operatively as three partners. He testified to this while acknowledging that Nick Kaura appeared to be the leader.

[41] The nature and degree of the involvement of the plaintiff is demonstrated by the following email which he sent to Nick Kaura on January 16, 2006. I quote it in full:

Hi Nick,

Attached herewith is the updated worksheet for project funds. Please review.

I will not be attending today’s meetings with Leasing Lawyers and Counsellors at City Hall as I will be busy with auditor. One of the major point [ sic ] to discuss with the lawyer is how we can reimburse from the vendors for land we are to give for road A?

Please contact Roy of Atkins just to know about the progress on the project especially with Traffic Study.

Has anything is sorted out with Transfreight [ sic ] for funds to other bank account? This is very important as we will need this money not on July 31, 2006 but earlier when we construct Gas Station.

Has anything being discussed with Gagnon [ sic ] and/or David on parking at HWY 10/Steeles, given the numbers by Mr. Ganguly differs from numbers suggested by Pellow?

Is Mr. Yudh able to contact the Gas Station owner for potential renting his place for overflow parking? Has the thought that restaurant be converted to bank if bank parking requirements are lower than restaurant parking requirements been discussed with Gagnon? We are still to explore the idea whether theatre can be converted to Banquet facility.

I strongly believe that this is high time that we should have some pre leasing done. Please discuss very seriously with Mr.Yudh about his progress in this regard.

Thanks,

Pushap

[42] This was followed by the following shorter email on January 24, 2006, also sent to Nick Kaura:

Hi Nick,

I tried to work on two scenarios, 1) without theatre and 2) with theatre. Attached herewith is a working sheet on project costs and returns on both the scenarios. In my opinion option without theatre make more sense to me [ sic ] as there is no risk of theatre being successful.

Thanks

Pushap

[43] I find that, on a balance of probabilities, the plaintiff was involved in a substantial and substantive way in the work done to move these projects to development. He should be paid for what he did.

[44] What is this work worth as damages? The Statement of Claim seeks $1,500,000. Pleadings customarily are excessive as a way of protecting the plaintiff from any underestimation of the harm done. In an email dated September 2010, he proposed that a fair valuation of his contribution should be valued at 5% of the profits which he assessed at $900,000. In his closing submissions counsel for the plaintiff proposed the following options:

• relying on the 38 month period during which it was agreed the plaintiff had been actively involved “with the project” (see para. [18] subparagraph 4 above including a bonus of 10% of wages otherwise earned: $376,200
• adding to 4 months as demonstrative of the disputed period (see para. [18] subparagraph above): $415,800
• 4% of the costs of construction of the Brampton project (4% of $16,000,000): $640,000, or
• taking what counsel submitted are the number of hours that the plaintiff worked and multiplying it by his hourly rate of $60 (5,800 x $60): $348,000.

[45] None of these options are valid, reasonable or sustainable. The plaintiff called as an expert Cedomir Kopcalcic. He was accepted as having expertise in project management. Cedomir Kopcalcic provided general information about what a project manager does, the functions such people perform and how they are compensated.

[46] He was unable to say very much as to the specific role played by the plaintiff. The records he was given were incomplete. Nonetheless, he described the role of the plaintiff as being involved with the owners. The plaintiff acted in concert with them. Cedomir Kopcalcic did not have an opinion as to the relative share of the work assumed by each of Nick Kaura, Lakhvir Singh and the plaintiff or the quality of work undertaken by the plaintiff. Being inexperienced, it probably took the plaintiff more time to complete tasks then might otherwise have been anticipated.

[47] Cedomir Kopcalcic offered a fee guideline for engineers, prepared by the Ontario Society of Professional Engineers. This was of limited value. The plaintiff is not an engineer. The fee guideline is designed to guide customers in setting total engineering budgets for project, not the fees for individual engineers. Where engineering expertise was required, those with the appropriate experience were retained. Cedomir Kopcalcic also produced a salary survey undertaken by the Project Management Institute. The assistance it provided was also open to question. It may not be generally representative of the compensation of project managers. Only 1 in 10 project managers were certified by the Project Management Institute but 80% of the participants in the survey were certified. Generally, it was recognized that non-certified project managers would receive the lower salaries. Two types of project managers were identified. One external to the owner, retained as part of the overall technical team and the other internal, generally someone who watches over the external work done on behalf of his or her employer. Cedomir Kopcalcic offered the opinion that the plaintiff fell into the latter category. I accept this. It is consistent with the available evidence.

[48] Cedomir Kopcalcic testified that the work done by the plaintiff would have been covered by a person having “Project manager 1” capacity. As shown in the survey a person acting in this capacity is paid $76,000. Cedomir Kopcalcic went no further. He did not provide an overall opinion as to the compensation that would be appropriate for the work done by the plaintiff.

[49] In the first two options provided by counsel for the plaintiff, $90,000 was used as the base annual salary that would have been earned by the plaintiff and 20% added for benefits. For each year $90,000 as salary + $18,000 as benefits for a total of $108,000 representing $9,000 per month. This number was multiplied respectively 38 months (Option 1) and 42 months (Option 2) and a further bonus of 10% added to arrive at the projected damage. For his part counsel for the defendants proposes that this is an unreasonable form of calculation. Cedomir Kopcalcic recommended $76,000 per year not more. The evidence suggested that the owners (Kaura and Singh) were involved. Thus, the plaintiff should receive only one third of that salary. On this basis, accounting for the 3.5 years’ work the damages should be valued at $87,780. Counsel for the defendants provided an alternative approach as a check on the reasonableness of the calculations. He made a series of assumptions as to:

• how much time each email and meeting would have taken,
• divided the total by 3.5 to arrive at an annual expenditure of time by the plaintiff being 376.5 hours,
• assessed 376.5 hours as 19% of the time he worked each year,
• presumed and that if the plaintiff worked full-time as a project manager he would earn $76,000 and thus calculated earnings on this project as 19% of that value arriving at a total of $14,307.54 per year,
• this was compared to what the plaintiff would have earned had he charged 376.5 hours at his rate for an accountant being $60 per hour (376.5 hours x $60): $22,509.86 per year,
• when the $14,307.54 is multiplied by 3.5 years counsel arrived at a total of $50,076 as compared to 3.5 years at $22,509.86 would represent $79,068.

[50] Counsel for the defendants submits that this is too high because it fails to account for the fact that some of the work would have been undertaken on the Caledon project which has not yet come to fruition and for which the plaintiff would not yet be paid.

[51] Just as calculations provided by the plaintiff are too high so this is too low.

[52] The information provided makes it difficult for any precise calculation to be made as to the value of the damages. I am not prepared to take into account the division between the work in Brampton and Caledon. The plaintiff has been paid for neither. This judgement takes into account the entire claim. I accept $76,000 per annum as the starting point for this analysis. I will not go higher as the plaintiff suggests. The plaintiff was inexperienced. He should not be assessed as receiving anything other than income at an introductory level. I am not prepared to account for benefits separate from the $76,000 annual income generally associated with Project manager 1 work. No evidence was provided as to how benefits are dealt with and, in particular, whether they are included in this amount. Moreover, the plaintiff was not a direct employee of the defendants. On the other hand, I do not accept that any assessment of what the plaintiff should receive should be based on the proposition that he undertook only one third of the work that would be performed by a project manager. From the evidence I conclude, that on a balance of probabilities the plaintiff undertook more of the groundwork, basic research and analysis. He reported on this work to the two owners. I assess his contribution for the three years the parties agree he was actively involved to be valued at approximately 2/3 of the base income of a Project manager 1 or $50,000 per year. This represents approximately $4,167 per month. For the 38 months that the plaintiff was actively involved this would amount to (38 x $4,167): $158,346. For the four months during which the plaintiff was not as actively involved I add (4 x $2,000): $8,000.

[53] I award to the plaintiff as damages $166,346.

[54] If the parties are unable to agree as to costs, I will consider written submissions on the following terms:

(1) On behalf of the plaintiff, no later than 15 days of the release of this judgement, such submissions to be no longer than four pages double spaced not including any Costs Outline or Bill of Costs and case law that may be referred to. (2) On behalf of the defendants, no later than 10 days thereafter, such submissions to be no longer than four pages double spaced not including any Costs Outline or Bill of Costs and case law that may be referred to. (3) On behalf of the plaintiff, in reply if necessary, no later than five days thereafter, such submissions to be no longer than two pages double spaced.

Lederer J.

Released: June 22, 2018

Footnotes

[1] At some point in the trial it was mentioned that he no longer holds that accreditation. That fact and why it is the case is irrelevant to anything I am being asked to decide.

[2] One was identified as Cybex Motor Freight Inc. and the other as Dominant Transport Inc.

[3] They had purchased a property at 160 Derry Road that was to be used as a head office for the Buffalo Group, 1185 Cardiff Blvd. to house “trucks and trailers” and a property on Saltsman Drive, Cambridge as space for trucks

[4] This is the property located on Cardiff Blvd (see: fn. 3).

[5] Email, dated July 27, 2005, Nick Kaura to Pushap Jindal

[6] Email, dated July 20, 2005, Pushap Jindal to Nick Kaura

[7] 7900, 7910, 7916, and 7920 Hurontario Street (also known as Highway 10) in the City of Brampton

[8] These statements are stated to be "un-audited". The information used was provided by representatives of the Buffalo Group and was accepted without review by the plaintiff who prepared the statements.

[9] For the lands in Brampton: 2046073 Ontario Inc. and for the lands in Caledon 2046074 Ontario Inc.

[10] The list includes:

• Meet and liaise with Client and project team as required;
• Prepare and discuss financial budget and feasibility of the project;
• Analyzing, discussing and finalizing various scenarios of construction models;
• Attend and represent the Client at meetings with Architect, Engineers, City of Brampton, Real Estate Broker(s), Urban Planner and other professionals engaged in the project;
• Take part in pre-leasing process and decision-making;
• Co-ordinate with lawyer(s), vendors and other professionals and facilitating the closing of the land purchased deal;
• Verifying the invoices from the above professionals and make payments;
• Record-keeping of the project as it relates to proposals and payments to the above professionals and various expenses;
• Bookkeeping, accounting, filing GST and T2 returns of the Corporation

[11] Interpaving v. Ng and Gagne, 2011 ONSC 526 at para. 14 referring to the holding in Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc. 2007 ONCA 324, [2007] O.J. No. 1663; 282 DLR (4th) 697; 223 OAC 330; [2007] CarswellOnt 2627; [2007] OJ No 1663 (QL); 157 ACWS (3d) 103 (ONCA) and to the case as the “leading case dealing with quantum meruit claims.”

[12] Ibid (Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc.) at para. 99 and see Fridman, Restitution (2nd Edition) Toronto: Carswell 1992, at pgs. 290-292, 301-302

[13] Consulate Ventures Inc. v. Amico Contracting & Engineering 2010 ONSC 2667; 318 DLR (4th) 513; 95 CLR (3d) 79; 188 ACWS (3d) 577 (ONSC) at para. 13 quoting GHL Fridman (2nd Edition) supra (fn. 12)

[14] *Ibid* (*Consulate Ventures Inc. v. Amico Contracting & Engineering*) at para. 14