COURT FILE NO.: CV-21-00654716-0000
DATE: 20220823
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GMBR CAPITAL CORP.
Plaintiff
- and -
DEAN PARMAR, LAWRENCE GUY, SHANT POLADIAN, GOPI PILLAI a.k.a. GOPIKANNAN PILLAI, and SRI CHANDR
Defendants
BETWEEN:
GMBR CAPITAL CORP.
Plaintiff
- and -
DAN FORIGO a.k.a. DAN FORIGO
Defendant
Counsel:
Christopher J. Somerville for the Plaintiff
Eric Morgan for the Defendant Sri Chandr
Matthew Howe for the Defendants Parmar, Poladian, and Pillai
Matt Maurer for the Defendant Guy
Christopher J. Somerville for the Plaintiff
Thom Harley for the defendant Daniele Forigo in
Heard: August 23, 2022 (video hearing)
REASONS FOR DECISION
PERELL, J.
A. INTRODUCTION
[1] In a 2021 action, GMBR Capital Corp. sues Dean Parmar, Lawrence Guy, Shant Poladian, Gopi Pillai, and Sri Chandr. In the 2021 action, GMBR brings a motion for:
a. an Order amending the judgment dated November 25, 2021 against Sri Chandr;
b. an Order granting leave to add Daniele Forigo a.k.a. Dan Forigo as a party defendant nunc pro tunc as of April 13, 2022 to this proceeding.
c. an Order granting leave to amend the Statement of Claim. The amended claim would, among other things, add claims against all the Defendants, including Mr. Forigo, pursuant to s. 130.1 of the Ontario Securities Act.[^1]
[2] In a 2022 action, GMBR sued Daniel Forigo a.k.a. Dan Forigo. In the 2022 action, GMBR seeks leave to discontinue the action without prejudice to Mr. Forigo seeking costs of the discontinuance in the 2021 action. The manifest goal of the discontinuance motion is to have the claims against Mr. Forigo, including the claim under s. 130.1 of the Ontario Securities Act be consolidated into the 2021 action.
[3] For the reasons that follow:
a. I grant an Order amending the judgment against Mr. Chandr. (This motion was unopposed.)
b. I adjourn the motion to discontinue the 2022 action against Mr. Forigo.
c. I adjourn the motion to grant leave to add Mr. Forigo to the 2021 action. (Mr. Forigo was not properly served for this motion.)
d. I grant the motion to amend the Statement of Claim in the 2021 save with respect to the joinder of Mr. Forigo. (This relief was not opposed.)
e. I adjourn the motion to amend the Statement of Claim insofar as Mr. Forigo is concerned. (Mr. Forigo was not properly served for this motion.)
f. I make no order as to costs.
[4] Once the various Orders are taken out, I am no longer seized of this matter.
B. FACTS
[5] On July 29, 2019, GMBR paid $500,000 and subscribed for 2.4 million units in RealCanna Investment Trust. It received two RealCanna certificates for the units. The certificates were signed by Dan Forigo on behalf of Real Canna.
[6] On November 2, 2020, GMBR in action Court File No. CV-20-00650624-0000 (“CV-20"), GMBR sued RealCanna, Real Industrial Trust for repayment of its investment. GMBR alleged that Real Industrial Trust had stripped RealCanna’s assets. Mr. Forigo was named as the trustee representative of the defendants.
[7] On January 13, 2021, in the immediate action, Court File No. CV-21-00654716-0000 (“CV-21"), GMBR sued Dean Parmar, Lawrence Guy, Shant Poladian, Gopi Pillai, and Sri Chandra alleging that the Parmar, Guy, Poladian, Pillai, and Chandra had breached their duties as trustees of RealCanna.
[8] Messrs. Parmar, Guy, Poladian, and Pillai delivered Statements of Defence denying that they were Real Canna trustees.
[9] On April 26, 2021, Chandra offered to settle both the CV-20 and the CV-21 actions. The offer was accepted.
[10] Mr. Chandra, however, defaulted on his agreement to settle and on November 25, 2021, I granted a judgment against him for $400,731.51, plus costs and interest to enforce the settlement.[^2]
[11] In March 2022, GMBR learned that Sri Chandra is the false name of Shariff Chandran a.k.a. as Srinivasan Chandran who is a convicted fraudster who was sentenced in November 2021 to a 30-month prison term for defrauding investors in Alberta. He had also been banned by the Alberta Securities Commission from employment in the securities industry for 25 years.
[12] On April 13, 2022, GMBR commenced another action for repayment of its investment in RealCanna Court File No. CV-22-00679775-0000 (“CV-22”). This action was against Dan Forigo in his personal capacity. GMBR alleged that Mr. Forigo breached his duties as a Real Canna trustee by allowing Mr. Chandra’ s participation with knowledge of his history of securities fraud.
[13] Mr. Forigo has delivered has a Notice of an Intent to Defend. Mr. Forigo did not oppose the motion for a discontinuance of the 2022 action.
[14] Mr. Forigo’s counsel in the 2022 action advised the court that the law firm had not been retained with respect to the 2021 action and that the law firm did not have instructions to accept service of the motion in the 2021 action or the proposed amended Statement of Claim joining Mr. Forigo to that action.
[15] On July 12, 2022, GMBR served Sri Chandra, who was incarcerated at Joyceville Institution, a correctional institute in Kingston, Ontario, with the Motion Record for this motion.
[16] Prior to the personal service Mr. Chandra’s lawyer of record, Kushneryk, Morgan LLP (Eric Morgan) was served with GMBR’s notice of motion. The law firm notified Mr. Chandra of the motion, but he has not given his lawyers instructions with respect to the motion.
[17] Mr. Chandra did not retain new lawyers and did not personally attend the hearing of GMBR’s motion.
C. DISCUSSION AND ANALYSIS
[18] The motion to amend the judgment against Mr. Chandra is unopposed. Mr. Chandra is aware of the motion, and he did not give his lawyer of record instructions with respect to the motion, likely because the motion appears unopposable. I grant the motion and an order should be taken out accordingly.
[19] The motion to join Mr. Forigo to the 2021 action must be adjourned sine die because he has not been properly served.
[20] Although Mr. Forigo was properly served with the 2022 Statement of Claim and with the motion to discontinue the 2022 action, the discontinuance motion goes hand and glove with the adjourned motion to join Mr. Forigo to the 2021 action. It is, therefore, necessary to adjourn the discontinuance motion sine die. Orders should be taken out to memorialize the adjournment.
[21] With the adjournment of the motions with respect to Mr. Forigo, the remaining relief for amended pleadings and claims against Messrs. Parmar, Guy, Poladian, and Pillai is unopposed. I grant this request for relief.
D. CONCLUSION
[22] Orders accordingly. There shall be no Order as to costs with respect to the motions.
Perell, J.
Released: August 23, 2022
COURT FILE NO.: CV-21-00654716-0000
COURT FILE NO.: CV-22-00679775-0000
DATE: 20220823
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GMBR CAPITAL CORP.
Plaintiffs
- and -
DEAN PARMAR, LAWRENCE GUY, SHANT POLADIAN, GOPI PILLAI a.k.a. GOPIKANNAN PILLAI, and SRI CHANDR
Defendants
AND BETWEEN:
GMBR CAPITAL CORP.
Plaintiffs
- and -
DAN FORIGO a.k.a. DAN FORIGO
Defendant
REASONS FOR DECISION
PERELL J.
Released: August 23, 2022
[^1]: R.S.O. 1990, c. S.5. [^2]: GMBR Capital Corp. v. Parmar, 2021 ONSC 7798.