COURT FILE NO.: 273/16

DATE: 2021 06 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Nirbjit Singh Dhanoa

Kristine Holder for the Plaintiff and Defendant by Counterclaim

Plaintiff

• and -

Vision Immigration & Settlement Aboard Inc., Depinderdeep Singh, T-Sharp Inc. and Monisha Singh

Christophe Shammas and Alessia Grossi, student-at-law, for the Defendants and Plaintiffs by Counterclaim

Defendants

AND BETWEEN:

Depinderdeep Singh and Monisha Singh

Plaintiffs by Counterclaim

-and-

Nirbjijt Singh Dhanoa

Defendant by Counterclaim

HEARD: By Zoom March 29 to April 1, 2021

REASONS FOR JUDGMENT

Bloom, J.

I. INTRODUCTION

[1] This proceeding took place under the simplified procedure. In oral argument the parties clarified their claims.

[2] The Plaintiff claims as against the Defendant, Depinderdeep Singh (hereinafter “D. Singh”), only. The claim is for reimbursement of $3600.00 paid for immigration services alleged not to have been provided; for reimbursement of $55,000 paid for immigration services alleged not to have been provided; and for reimbursement of $20,000 for a payment alleged to have been made in respect of immigration services and an investment. The Plaintiff in oral argument made no reference to seeking under the Courts of Justice Act prejudgment interest from May 21, 2014 and post judgment interest, as had been sought in his pleadings.

[3] The Plaintiff by counterclaim, Depinderdeep Singh, claims $27,750 for immigration services and $36,347.00 as an unpaid loan.

[4] The Plaintiff by counterclaim, Monisha Singh, claims $26,400 as unpaid rent and other lodging-related expenses.

[5] Both Plaintiffs by counterclaim sought in their pleadings prejudgment and postjudgment interest under the Courts of Justice Act, but did not mention those claims in oral argument.

[6] The Plaintiffs by counterclaim also raise their claims by way of set-off against the claims of Dhanoa.

[7] The case turns on the credibility of the witnesses who have testified. For that reason I intend to proceed by summarizing their evidence, setting out the arguments of the parties, and then performing an analysis to determine whether the claims and counterclaim have been proven.

II. THE EVIDENCE

A. Nirbjit Singh Dhanoa (Plaintiff)

[8] I will first summarize the evidence of the Plaintiff in his affidavit and in his examination-in-chief.

[9] The Plaintiff met the Defendant, D. Singh, in Canada in 2003. They renewed acqaintanceship when the Plaintiff returned to Canada in 2010, and they became friends.

[10] The Plaintiff worked for D. Singh in the latter’s immigratin business in India.

[11] The Plaintiff denies ever obtaining a loan from D. Singh, but testified that D. Singh sent $36,347.00 through the Plaintiff to “his mistress.”

[12] D. Singh provided immigration services to the Plaintiff and his family for which he was paid a number of sums by the Plaintiff, the last being $15000.00 paid in 2014. D. Singh never asked for further payments for those services and at no time invoiced the Plaintiff for those services.

[13] The Plaintiff lived with D. Singh and the latter’s wife, the Defendant, Monisha Singh (hereinafter “M. Singh”) from January 2013 until January of 2014. The Plaintiff paid $800.00 per month rent. After moving out, he went to live with his brother-in-law, Rajpal Sahota.

[14] In March of 2015 at the Singhs’ residence the Plaintiff was present for a business dispute between D. Singh and the Plaintiff’s friend, Gurdip Nagra.

[15] In December of 2013 the Plaintiff, Nagra, and D. Singh attended in Welland, Ontario to view the site of a real estate investment opportunity. D. Singh told the Plaintiff that participating in that investment would be helpful to the Plaintiff’s friend, Inderdeep Singh, in Inderdeep’s efforts to arrange his immigration to Canada.

[16] The Plaintiff introduced Inderdeep and D. Singh on the telephone.

[17] The Plaintiff paid D. Singh $3600 to start the process of Inderdeep’s immigration to Canada.

[18] In February of 2014 the Plaintiff and D. Singh were in India where D. Singh was attending his father’s funeral. There at the home of the Plaintiff Inderdeep paid D. Singh $55000 for work on his immigration to Canada.

[19] In May of 2014 the Plaintiff’s brother-in-law, Rajpal Sahota, transferred $20,000.00 to D. Singh at the Plaintiff’s request for the immigation process and related investment regarding Inderdeep. The Plaintiff was in India at the time.

[20] The Plaintiff’s payments for rent were included in his cash payments for his own immigration services. Neither D. Singh nor M. Singh asked him for rent after 2013.

[21] After 2015 the Plaintiff became concerned that D. Singh was not providing to Inderdeep the immigration services he had promised; the Plaintiff also repaid Inderdeep all monies advanced by him on the immigration matter. When D. Singh could not show the Plaintiff a file evidencing progress on Inderdeep’s case, the Plaintiff commenced the suit at bar.

[22] No Defendant asked him for payment of any sum subject of the counterclaim before he commenced his suit.

[23] In cross-examination the Plaintiff admitted that he and D. Singh had not arranged a set fee for the immigration work to be provided to the Plaintiff and his family; the work would be done and the cost figured out by the two of them later.

[24] He also agreed that on January 20, 2013 he signed with the Defendant, M. Singh, a lease for one year for his stay at the home of D. Singh and M. Singh; the rent in the lease was stipulated to be $800.00 per month. The Plaintiff also agreed that he gave to D. Singh an additional $400.00 monthly for groceries and miscellaneous expenses related to his stay at the Singh home.

[25] Despite deposing in his affidavit that he had made two payments to D. Singh for rent and immigration services likely in the presence of Nagra, in his earlier examination for discovery he had testified that no one was present during the payments.

[26] He further testified in cross-examination to not remembering the skiing accident of the son of D. Singh and M. Singh. Additionally, he stated in cross-examination that Inderdeep reimbursed him in rupees for the $20,000.00 advanced by Sahota. On discovery he had testified that the payment by Inderdeep was in Canadian dollars.

[27] Finally, he agreed in cross-examination that there was no documentation evidencing his reimbursement of Inderdeep the monies advanced by Inderdeep on the immigration matter, even though he was at the time of the reimbursement contemplating the present suit in which that payment was important.

B. Arvinder Singh Cheema

[28] Mr. Cheema testified by affidavit and was cross-examined. He testified that he was a friend of the Plaintiff’s.

[29] He further testified that he was present at the Plaintiff’s home in India when the Plaintiff, D. Singh, and Inderdeep were discussing the process of Inderdeep’s immigration to Canada.

[30] D. Singh told Inderdeep that it would be helpful to him in the process if he invested in an opportunity in Welland, Ontario.

[31] Inderdeep at the meeting paid D. Singh $55,000 to fund the investment.

[32] Mr. Cheema also testified that he was present when the Plaintiff refunded Inderdeep the money paid to D. Singh. The reimbursement was in early 2016; and was approximately three million rupees contained in a grocery bag, although he did not count it.

C. Gurdip Nagra

[33] The witness testified by affidavit; he was also was cross-examined and re-examined. He testified that he was a friend of the Plaintiff’s.

[34] In late 2013 he travelled with the Plaintiff and D. Singh to see a commercial property which was under construction in Welland, Ontario. D. Singh stated at the time that he had a strategy to have clients in his immigration services business invest in the property to assist their applications.

[35] Nagra was at the time living at D. Singh’s home, as was the Plaintiff. He was aware of cash payments made to D. Singh by the Plaintiff of $8500, $7500, and $15000 for both rent and immigration services.

[36] The witness did not admit that he had been convicted of committing in Vermont conspiracy to make false statements in a bank loan and employing illegal aliens. The parties admitted these convictions.

D. Rajpal Sahota

[37] The witness gave evidence by affidavit. He testified that he was the brother-in-law of the Plaintiff.

[38] In May of 2014 the Plaintiff contacted him from India and asked him to do a wire transfer to D. Singh of $ 20,000.00, because D. Singh had requested the money for Inderdeep Singh’s immigration application and could not wait for the Plaintiff to return from India. Sahota made the transfer; and was repaid subsequently by the Plaintiff.

E. Inderdeep Singh

[39] Inderdeep testified by affidavit; he was cross-examined and re-examined.

[40] In his affidavit he stated that he was a friend of the Plaintiff’s. He also confirmed the payments made to D. Singh for immigration work for him as contended by the Plaintiff; and that he had been reimbursed by the Plaintiff for those payments, because D. Singh was doing nothing for him.

[41] In cross-examination he testified that in January of 2016 the Plaintiff refunded to him the equivalent of $78,000.00 Canadian in Indian rupees, probably 4,500,000 rupees, in the presence of Cheema, for the money paid to D. Singh for work on his behalf. The money was contained in a plastic bag. He gave no receipt to the Plaintiff, because they were friends.

[42] He was aware that Sahota had paid $20,000 to D. Singh on his behalf.

[43] He paid the Plaintiff $20,000 in May of 2014 in rupees at the latter’s home in Punjab.

[44] He had given money to the Plaintiff to be given by him to D. Singh for work on his case rather than to D. Singh personally, because he trusted the Plaintiff and did not know D. Singh.

[45] The $55,000 he paid to the Plaintiff in February of 2014 was in rupees; and he got no receipt for it. He had withdrawn the money from his account at a financial institution, and had not made a record of it. He gave it to the Plaintiff at the latter’s home in India. Cheema was present at the time. At the same meeting the Plaintiff gave it to D. Singh. That meeting was the only occasion at which he met D. Singh.

[46] The Plaintiff told him that D. Singh’s company would obtain for him status as a permanent resident in Canada.

F. Depinderdeep Singh (Defendant)

[47] The witness gave evidence in his affidavit that the Plaintiff had been his friend. He further stated that he provided extensive immigration services to the Plaintiff from April of 2010 to 2014.

[48] He stated that he and the Plaintiff agreed that the Plaintiff would pay him when his work for the Plaintiff and his family was completed.

[49] During a telephone conversation while the Plaintiff was in India the Plaintiff agreed to pay him a sum of $20,000.00 by means of a payment from Sahota on May 21, 2014; the sum paid was not for services for Inderdeep. Aside for that $20,000.00 sum, the Plaintiff has paid nothing else for immigration services provided by D. Singh to him and his family.

[50] The witness and the Plaintiff had agreed that the immigration services would be charged to the Plaintiff at a discount, because they were friends.

[51] Applying his experience in providing immigration services and a discount of 20% the amount that the Plaintiff should have paid him for immigration services was $47,750.00; deducting the $20,000.00 already paid, the Plaintiff owes him $27,750.00 for those services.

[52] In January of 2013 the Plaintiff, and D. Singh’s wife, the Defendant, Monisha Singh, signed a lease in respect of the Plaintiff’s living at their home. The rent was to be $800.00 per month; the Plaintiff was also to pay $400.00 monthly for household expenses, including food, laundry, and cleaning.

[53] The Plaintiff lived at their home until March of 2015. In January of 2015, when D. Singh’s son was injured in a skiing accident, D. Singh arranged to have the Plaintiff picked up at the airport and taken back to the Singh home where he lived.

[54] Nagra never lived at the Singh home. He would stay their from time to time when he visited D. Singh and the Plaintiff who were his friends; he lived some distance away.

[55] The only rent ever paid by the Plaintiff was $3600.00 paid by him on January 3, 2014.

[56] On July 23, 2012 the witness transferred $36,347.00 to the Plaintiff as a loan for him to use to purchase land in India. They agreed that the loan was to be repaid when the land was sold.

[57] In early March of 2015 D. Singh confronted the Plaintiff and Nagra about the money which the Plaintiff owed him, and about the disruptive conduct of the Plaintiff and Nagra at the Singh home.

[58] The confrontation resulted in the Plaintiff’s moving out a few days later, and the end of his friendship with the Plaintiff and Nagra.

[59] He has never met Inderdeep or agreed to provide to him immigration services. He has never met Cheema.

[60] He was in India from February 3 to 13, 2014 to attend to funeral arrangements for his father. He had travelled with the Plaintiff, but the Plaintiff did not travel back with him. During his time in India on the trip, he spent all of his time on the funeral arrangements and ceremonies regarding his father’s death; he did not travel to the Plaintiff’s village which was some distance from where he was staying.

[61] In cross-examination he testifed that the loan of $36,347.00 to the Plaintiff was used by the Plaintiff to support himself and his family, not for the land purchase.

[62] He also stated that the Plaintiff lived at the Singh home from January of 2013 until March 6, 2015. He did not live continuously at the home in 2014, because he was travelling; however, his home was at the Singh residence.

G. Monisha Singh (Defendant)

[63] The witness gave her evidence in an affidavit and viva voce.

[64] In her affidavit she stated that she was the wife of D. Singh, who had been a friend of the Plaintiff’s.

[65] She stated further that she was the registered owner of the Singh home.

[66] On January 20, 2013 she signed a lease with the Plaintiff in respect of his living at their home. The rent stipulated in the lease was $800.00 monthly; in addition the Plaintiff agreed to pay $400.00 monthly for household expenses such as food, laundry, and cleaning.

[67] The Plaintiff lived at their home until early March of 2015. In fact, in January of 2015 when the Singhs’ son was injured in a skiing accident, her husband arranged for the Plaintiff who had had landed from a flight, to be picked up and brought back to their home where he lived.

[68] The Plaintiff moved out of the Singh residence in early March of 2015 after a quarrel between her husband on the one hand and the Plaintiff and Nagra on the other.

[69] The only rental payment made by the Plaintiff was $3600.00 on January 3, 2014.

[70] Since the Plaintiff lived at the Singh residence for 25 months between January of 2013 and March of 2015, he should have paid $30,000.00 in rent and additional expenses; accordingly, he still owes her $26,400.00.

[71] In cross-examination she admitted that the lease provided for monthly rent of $800.00, but did not mention additional living expenses. She further stated that, although the Plaintiff travelled in and out of Canada in the period January of 2013 to March of 2015, there were no arrangements between herself and the Plaintiff adjusting the rent and expenses in light of his absences.

III. ARGUMENTS OF THE PARTIES

A. Arguments of the Plaintiff

[72] The Plaintiff argues that there are in substance no documents bearing upon issues before me; and that, therefore, the matter is one to be decided based on the credibility of the witnesses.

[73] He argues that his evidence was straightforward and that his answers were responsive to the questions asked; that Cheema gave straighforward evidence; and that Inderdeep gave straightforward evidence and responsive answers to the questions he was asked. Further, he argues that the witnesses whom he called who were friends of his, had no motive to lie beyond the friendship.

[74] He argues that D. Singh tendered in evidence no record of time he spent and an hourly rate charged for the immigration services provided to the Plaintiff and his family. Further, D. Singh tendered in evidence no statements or demands to pay issued to the Plaintiff in respect of immigration services; nor did D. Singh explain in evidence how he quantifed the amount sought for immigration services.

[75] The Plaintiff submits that he testified that he paid for the immigration services.

[76] In respect of the alleged loan to him by D. Singh, the Plaintiff submits that, until he commenced his own suit, D. Singh did not seek repayment of the purported loan. The Plaintiff submits that the amount he received was not a loan; and that he did not keep the funds. He submits that there was an inconsistency between the affidavit of D. Singh where he stated that the alleged loan was to finance a land purchase, and his viva voce evidence where he testified that the Plaintiff used it for living expenses.

[77] The Plaintiff submits that he paid rent for the one year he lived at the Singh home as agreed. He submits that neither D. Singh nor Monisha Singh explained why the $400.00 monthly for expenses was not stipulated in the lease document; and that neither explained why he should have to pay household expenses for time when he was not living at their home.

[78] He submits that he had a contract with D. Singh under which the latter was to provide immigration services to Inderdeep; that D. Singh was paid $78,600.00 pursuant to that contract in the sums of $3,600.00, $55,000.00, and $20,000.00; and that D. Singh breached that contract causing him damages in the sum of $78,600.00.

B. Arguments of the Defendants

[79] Only the Defendants, D. Singh and Monisha Singh, are the subject of the claims and counterclaim as put forward in oral argument.

[80] They argue that the case turns on credibility; that they gave detailed evidence in their affidavits; that they were forthright in cross-examination; and that their evidence was not in substance weakened in cross-examination. They submit that in contrast the Plaintiff was not forthright in cross-examination.

[81] They submit that Nagra’s evidence must be disbelieved based on his criiminal convictions.

[82] The burden of proof is on the Plaintiff to prove his claims on a balance of probabilities. The contract alleged by the Plaintiff with D. Singh to provide immigration services to Inderdeep was not proven; moreover, the alleged meeting where D. Singh obtained $55,000 is a fabrication. The story told by the Plaintiff and his witnesses regarding the alleged arrangement for D. Singh to provide immigration services to Inderdeep is implausible. Cheema and Inderdeep are friends of the Plaintiff; therefore, their evidence must be discounted.

[83] There was an inconsistency in the evidence of Cheema and Inderdeep as to the size of a reimbursement by the Plaintiff to Inderdeep; Cheema stated that it was 3,000,000 rupees and Inderdeep stated that it was 4,500,000 rupees.

[84] There was an inconsistency in the evidence of the Plaintiff as between his testimony at trial and on discovery as to whether Inderdeep had reimbursed him the $20,000.00 advanced by Sahota in rupees or dollars.

[85] D. Singh’s evidence about his trip to India for his father’s funeral was detailed; the detail supports its credibility.

[86] There was no documentary evidence of a contemporaneous complaint made by the Plaintiff regarding immigration services by D. Singh for Inderdeep.

[87] The Plaintiff is liable for the immigration services provided by D. Singh to the Plaintiff and his family in contract, based on the principles of unjust enrichment, or based on qantum meruit.

[88] Sahota’s affidavit makes no mention of the Plaintiff’s moving in with him after moving out of the Singhs’ home in January of 2014 as stated in evidence by the Plaintiff.

[89] The evidence of D. Singh and Monisha Singh should be accepted regarding the existence and calculation of the outstanding amounts owed by the Plaintiff for the loan, immigration services, rent, and household expenses.

IV. ANALYSIS

[90] I have considered the submissions of the parties and all of the evidence.

[91] The burden of proof lies on the parties regarding their respective claims and counterclaim; the standard of proof is on a balance of probabilites. Moreover, I agree with the parties that the issues before me revolve around the credibility of the witnesses.

A. The Claims of the Plaintiff

[92] I will address first the claims of the Plaintiff.

[93] The position of the Plaintiff is that D. Singh is liable to him for $78,600.00 in damages for breach of a contract to provide immigration services to Inderdeep Singh; the $78,600.00 is the sum allegedly paid for those services in the separate amounts of $3,600.00, $55,000.00, and $20,000.00.

[94] I reject this claim as unproven; the applicable burden of proof has not been discharged. I will now set out my reasons for that conclusion.

[95] First, the contention of the Plaintiff that the $55,000.00 sum was paid to D. Singh without any documentary record of it is inherently improbable. At the very least one would have expected evidence of bank records from Inderdeep reflecting his withdrawal of that sum, or evidence of bank records from the Plaintiff or Inderdeep reflecting the supposed rembursement by the Plaintiff of that sum.

[96] Second, I find D. Singh’s detailed evidence of his attendance in India for the purpose of his father’s funeral and his denial of attending to receive the $55,000.00 credible and reliable, in particular because of its detailed nature.

[97] Third, the credibility of the Plaintiff was damaged by the inconsistency between his affidavit and discovery evidence as to whether anyone was present during two payments to D. Singh for rent and immigration services. Another incconsistency weakening his credibility existed as between the Plaintiff’s evidence in cross-examination that Inderdeep reimbursed him in rupees for the $20,000.00 advanced by Sahota and his testimony on discovery that Inderdeep provided the money in Canadian dollars. Nor is there any documentary evidence of a contemporaneous complaint by the Plaintiff about D. Singh’s failure to advance Inderdeep’s immigration case; the absence of this evidence also undermines the credibility of the Plaintiff.

[98] Fourth, I reject the evidence of Nagra based on his failure to admit his prior convictions and based on the impact of those convictions on his credibility.

[99] Fifth, Sahota gave no independent evidence of the alleged contract for immigration services for Inderdeep.

[100] Sixth, Cheema testified that the reimbursement by the Plaintiff to Inderdeep of the money paid to D. Singh for immigration services was approximately three million rupees. Inderdeep gave evidence that it was probably 4,500,000 rupees. That significant inconsistency undermines their credibility.

B. The Counterclaim

[101] I reject as unproven to the requisite civil standard of proof the claim by D. Singh for $27,750.00 for immigration services. There is before me no contemporaneous documentary record of time spent and an hourly rate charged. I cannnot find on a balance of probabilities an amount outstanding for the immigration services provided by D. Singh to the Plaintiff and his family. D. Singh admits that the Plaintiff has paid him already $20,000.00 for those services.

[102] I also reject as similarly unproven the amount sought by D. Singh as repayment of an alleged loan of $36,347.00. There is no meaningful documentary evidence to support the making of this loan.

[103] The lease between the Plaintiff and M. Singh is in evidence. The rent stipulated was $800.00 monthly.

[104] There is no documentary evidence of an alleged agreement by the Plaintiff to pay an additional $400.00 monthly for the household expenses, including when he was away travelling. I am not prepared to infer the existence of the additional agreement for household expenses. There was no explanation offered in evidence by Monisha Singh as to why the household expenses agreement was not in writing like the lease, nor as to why the Plaintiff would agree to pay such expenses when he was travelling.

[105] I accept the evidence of Monisha Singh that the Plaintiff lived at the Singh home for 25 months; paid $3600.00 for rent; and, therefore, owes her $16,400.00 for rent. The Plaintiff’s evidence that he moved out of the Singh home in January of 2014 and moved in with Sahota, as opposed to moving out in March of 2015 as testified by Monisha Singh, was not supported by the evidence of Sahota. The evidence of Monisha Singh on the point was detailed and straightforward.

[106] Accordingly, I grant Monisha Singh judgment against the Plaintiff for $16,400.00.

[107] Monisha Singh offered no oral argument in support of her pleaded position that prejudgment and postjudgment interest should be awarded . However, I see no reason why her pleaded claim for prejudgment and postjudgment interest should not be granted; I, therefore, award prejudgment and postjudgment interest to her under the Courts of Justice Act on the $16,400.00 at the statutory rates.

V. COSTS

[108] I shall receive written submissions as to costs of no more than 3 pages, excluding a bill of costs. The Defendants shall serve and file their submissions within 14 days from release of these reasons. The Plaintiff shall serve and file his submissions within 14 days of service of the Defendants’ submissions; there shall be no reply.

Bloom, J.

Released: June 25, 2021