COURT FILE NO.: CV-19-3851 (Brampton) DATE: 20230707 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joginder Bajwa, by her litigation guardian, The Public Guardian and Trustee Plaintiff

-and-

Raman Singh, Rajinder Singh and Kulminder Kahlon Defendants

M. Ng, for the plaintiff / PGT J.S. Chahal, for the defendants

Heard: March 21, 22, 23 and 25, 2022, with additional written submissions received April 1, 2022 and further hearings on April 20, 2022, May 20, 2022, June 14, 2022, August 25, 2022, October 21, 2022, November 16, 2022, December 15, 2022, January 24, 2023, February 22, 2023, and April 13, 2023, with additional written submissions received April 24, 2023 and May 1, 2023.

Justice R. Chown

Reasons for Judgment

[1] This judgment should be read in conjunction with my endorsement of April 6, 2022 (2022 ONSC 2151).

[2] Mrs. Bajwa claims recovery of money alleged to have been loaned to the defendants in 2016. The defendants say the money was gifted to them.

[3] Mrs. Bajwa is currently 99 years old. The defendants are two of her daughters and one son-in-law.

[4] After the completion of the evidence phase of the trial, I asked for submissions regarding the capacity of Mrs. Bajwa. This resulted in a capacity assessment and after that I found that Mrs. Bajwa lacked capacity to instruct counsel. I then appointed the PGT. There was a further delay while the possibility of one of Mrs. Bajwa’s sons-in-law considered becoming the litigation guardian, but he decided against it. The PGT decided not to seek to re-open the evidence phase of the trial but did ask to provide additional submissions, which I allowed. I have now received and reviewed all the additional submissions, and these are my reasons for judgment from the trial.

[5] Counsel referred to the plaintiff as Mrs. Bajwa so I will as well. Given the common surnames among the people involved, in this judgment I will refer to the other family members using first names only.

Presumption of Resulting Trust

[6] Mrs. Bajwa made three payments to Raman: a cheque dated September 25, 2016 for $20,000; a bank draft dated October 13, 2016 for $26,000; and a bank draft dated October 17, 2016 for $22,0000. Mrs. Bajwa made one payment to Kulminder: a bank draft dated September 28, 2016 for $10,000. The parties agree that these payments constitute “gratuitous transfers” to independent adult children, and that the presumption of resulting trust applies to them. This presumption can be rebutted by evidence of the transferor’s contrary intention on a balance of probabilities: in Pecore v. Pecore, 2007 SCC 17, at paras. 23 to 25 and 35 to 36; Sawdon Estate v. Sawdon, 2014 ONCA 101, at paras. 56 to 58. [^1]

[7] The evidence must show an “intention to donate, sufficient delivery of the gift, and acceptance of the gift”: Re Foley, 2015 ONCA 381, at para. 25.

Presumption of Undue Influence

[8] In addition to discussing the presumption of resulting trust, the Foley case, at para. 28, describes the presumption of undue influence. The Court of Appeal describes this presumption as follows:

Where the potential for domination inheres in the relationship between the transferor and transferee, the presumption of undue influence applies. The transferee must establish on a balance of probabilities that the gift was the result of the transferor’s “full, free and informed thought.” However, this is not to say that evidence of independent advice is required in every case. [Citations omitted.]

[9] The PGT did not raise the presumption of undue influence in its submissions or submit that there was “potential for domination.” This is so even though I found Mrs. Bajwa lacked capacity to instruct counsel at the time of the trial.

[10] I can understand why the PGT did not assert that the presumption of undue influence is applicable. There is little evidence about Mrs. Bajwa’s capacity in 2016. There is no specific evidence that there was a “potential for domination” in 2016 or that Mrs. Bajwa lacked the capacity to make a gift in 2016.

Mrs. Bajwa’s Evidence Lacked Detail

[11] Mrs. Bajwa’s evidence was brief. On the specifics of the terms for the alleged loans, few details were provided. In my endorsement of April 6, 2022, at paras. 27 to 39, I reviewed Mrs. Bajwa’s trial evidence in which she stated she loaned the money to her daughters, and that she wanted the money back with interest.

[12] However, Mrs. Bajwa did not, for instance, describe much about the discussion she had with the defendants when she made the loans. She did not say who was present for the discussions. She did not explain why, in the case of the funds advanced to Raman, three separate payments were made, or describe any different discussions regarding each advance.

[13] The detail in Mrs. Bajwa’s evidence was also limited relative to the detail in her pleading, and inconsistent with her pleading. As I mentioned in my April 6, 2022 endorsement, at para. 38 and 43, in her statement of claim Mrs. Bajwa asserts the following.

a. The $10,000 loan to Kulminder would attract interest at 3% per annum and would be repaid by Kulminder by September 28, 2018.

b. The funds advanced to Raman and Rajinder were advanced on the basis that she was making an investment. According to the statement of claim, she was to receive “an equal ownership interest” in Raman and Rajinder’s house. The claim asserts that:

i. the $68,000.00 would be used to renovate the property;

ii. Raman, and Rajinder agreed that once the renovation was completed, the property would be sold; and

iii. the profit from the sale proceeds would be equally shared between her, Raman, and Rajinder.

[14] These aspects of the alleged arrangements were either not mentioned or barely mentioned by Mrs. Bajwa at trial. As I described in my April 6, 2022 endorsement, at para. 39, she did testify that the defendants said they would give her interest. When asked if she remembered how much interest they promised her, she testified: “They said whatever the bank has.” And apart from the testimony, “They said that they will give it quickly, but they did not give it,” there was no other evidence about a repayment deadline.

[15] Other evidence gives context to the statement of claim:

• Mrs. Bajwa admitted during cross examination that it was her son Gurnam’s idea to bring this lawsuit.
• Kulminder said that when she got a demand letter from Mr. Mangat, she called her mother and her mother denied knowing about the demand (but did remember being taken to a lawyer).
• Nimmi credibly testified that Mrs. Bajwa had admitted to Nimmi that “Gurnam did the case for her and that he gave directions to the lawyer.”

[16] Overall, Mrs. Bajwa’s evidence on the central issue was weak. There was nothing convincing in her evidence pointing towards loan rather than gift. Although she confirmed “yes” when asked if her daughters promised to pay the money back, and she said they would pay it back quickly, she was not asked what she meant by “quickly” or whether instalments were discussed. She testified that she asked for the money back “two to three times,” but did not say when, how, or in what context. She provided no detail about how the defendants responded to her alleged demand for repayment.

Mrs. Bajwa’s Evidence Was Unreliable

[17] Mrs. Bajwa’s evidence also proved to be unreliable in several respects.

[18] She misstated her age. She could not initially state why she was in court. She said she gave Raman one payment of $68,000 and one payment of $5,000, which is not true. She said she gave money to Raman in cheques and in cash. That is not true. There was no cash. In cross examination, she had difficulty stating the amounts of the three payments to Raman and getting them to add to $68,000. She also said in cross examination that Rajinder withdrew money from her bank account on his own, but this allegation was not:

a. further developed or pursued;

b. pleaded; or

c. established through any banking record.

It was not even put to Rajinder or any of the defendants that they had taken cash from Mrs. Bajwa or had otherwise taken money from her account.

[19] In examination in chief in March of 2022, Mrs. Bajwa said that her husband died “six years ago,” meaning in 2016. This was not accurate. Mr. Singh died in 2010.

[20] Mrs. Bajwa said that Raman and Rajinder came to live with her in 2016 because she was alone as a result of her husband’s death. In fact, Raman and Rajinder came to live with her because she had had a fall and upon her discharge from hospital, she required assistance.

[21] Mrs. Bajwa also incorrectly said that Kulminder drove the vehicle when Nimmi took her to see Nanda lawyers in November 2019 to get the lawsuit stopped. This is not accurate, it was Narinder Dhillon, a neighbour and friend of Kulminder.

[22] Finally, Mrs. Bajwa incorrectly stated that the cheque and three bank drafts were delivered by Paramjot, when in fact Paramjot only delivered the cheque.

Control of Mrs. Bajwa’s Finances

[23] Ms. Bajwa also incorrectly stated that after her husband died, Raman and Rajinder took control of her finances. This evidence came in answer to a leading question. There is no evidence corroborating it. Mrs. Bajwa has not described the payments as unauthorized payments, so the point is extraneous anyway. As noted, Mrs. Bajwa did testify that some cash payments were made, but this point was not pursued. It is not pleaded in the statement of claim that Raman and Rajinder took control of Mrs. Bajwa’s finances. Mr. Mangat did not refer to any banking or other documentation to suggest Raman and Rajinder had taken control of Mrs. Bajwa’s finances.

[24] During the trial, a theme advanced on behalf of Mrs. Bajwa was that Raman and Rajinder had effectively given themselves the money from Mrs. Bajwa’s bank account. In his opening statement, Mr. Mangat described what had occurred as “evil” and as “elder abuse” and that the defendants had “preyed upon” their elderly mother and their actions “led to emptying out the plaintiff’s bank account.” These allegations were pursued in cross examination of Raman and Rajinder, as they were each asked questions about whether they were in “care and control” of Mrs. Bajwa. Rajinder was cross examined on whether he had full access to Mrs. Bajwa’s house as he was staying with her in 2016 while Mrs. Bajwa was convalescing from a fall. He was asked whether he had access to her mail and financial documents, and about who had keys. It was suggested during Rajinder’s cross examination, that Mrs. Bajwa’s bank account had been emptied out by the payments in issue, but the bank balances never became evidence. The only evidence from Mrs. Bajwa about this was as follows:

Q. Do you recall the approximated amount of money of your life savings at the time of your husband's death? [ sic ]

A. $68,000. [^2]

[25] Mrs. Bajwa was not specifically asked what her bank balance was or what other investments or assets or liabilities she had. Also, immediately before and immediately after giving this evidence, Mrs. Bajwa said her husband had died “six years ago,” meaning in 2016, which is the same year as the payments, suggesting her bank balance when the payments were made was $68,000. But this was confused because, as already mentioned, it was later established that Mr. Singh died in 2010.

[26] Mrs. Bajwa’s bank statements from September and October of 2016 were made exhibits but only to show the funds for the alleged loans coming from her account. All other entries and all balances were redacted.

[27] In the end, no meaningful evidence was presented to establish the allegation that Raman and Rajinder took control of Mrs. Bajwa’s finances. And there was no reliable evidence that Mrs. Bajwa’s life savings were $68,000, or that the defendants had cleared out her life savings. The serious allegations of misconduct made against the defendants in Mr. Mangat’s opening statement were not made out.

Car Accident

[28] Mrs. Bajwa testified that the reason she loaned $10,000 to Kulminder was that Kulminder “had a car accident and she wanted to get that fixed.” This is consistent with her pleading.

[29] Kulminder testified that her husband did have a car accident, but it was on October 21, 2016. This was almost a month after the date of the $10,000 cheque, making it impossible that the purpose of the $10,000 payment was to fund a car repair.

[30] I would have benefited from receiving documentary evidence showing the date of the accident (Kulminder herself noted that there are typically many documents showing the date of loss when a car accident occurs). It would also have been helpful if Mrs. Bajwa had been confronted with this discrepancy in cross examination. As a result, the force behind Kulminder’s evidence on this point was greatly diminished. However, based on the specificity of Kulminder’s evidence, I think it is more likely than not that the accident did occur after the loan was made, and this also detracts from Mrs. Bajwa’s version that the $10,000 payment was a loan.

Paramjot’s Evidence

[31] Paramjot testified he did not recall ever seeing Mrs. Bajwa give anyone a gift including him, her children, and her grandchildren. This evidence was seemingly advanced in support of an inference that Mrs. Bajwa was not likely to have given a gift to Raman or Kulminder because she rarely gave gifts. However, Paramjot works seven days a week and he agreed that he does not spend that much time with Mrs. Bajwa. The character of the alleged gifts here – significant amounts of money – is different than the kinds of gifts Paramjot was asked about.

[32] Paramjot testified after Mrs. Bajwa. Mrs. Bajwa was not asked if she ever gave gifts or what her attitude was about giving gifts.

[33] Paramjot’s evidence on this point was contradicted by Kulminder, who said she had received gifts of clothes, money towards appliances, a ring, and a bracelet from her mother. I did not find Paramjot’s evidence on this point or any other issue to be of much value.

[34] Paramjot facilitated preparation of the bank drafts and delivering one of the bank drafts to Raman, but he had no insight to offer on why the bank drafts were given to them, the amounts, or whether they were intended as gifts or loans. Given the time span between these events and his testimony, this is not surprising. One minor point from his testimony that may be noted is that he said he only delivered one of the payments, and this was inconsistent with Mrs. Bajwa’s testimony and consistent with the defendants’ testimony. Raman said Paramjot delivered the first payment, but her mother directly gave her the other two bank drafts during visits at Mrs. Bajwa’s house. Kulminder described going to visit her mother after a trip to Vancouver, and said Mrs. Bajwa handed her an envelope containing the $10,000 bank draft.

Motivation for Gift

[35] Raman testified that when her mother gave her the money, her mother said, “I’ve never given you anything,” and “This is the gift I’m giving you because [Satpal] and Gurnam, they, they both want the house. And I don’t want them having the house and the money.” Raman said that when her mother gave her the third payment, her mother said she was the youngest and she needed the money the most.

[36] Raman’s evidence on these points was credible and consistent with the facts, but this evidence was not put to Mrs. Bajwa during her cross examination. Mrs. Bajwa’s testamentary intentions were not addressed in her evidence and her will was not placed in evidence. As a result, Raman’s testimony on this point is significantly weakened. I do not rely on this aspect of the evidence because I find myself unable to either accept or reject this evidence.

Factors Supporting Gift

[37] Raman and Kulminder gave relatively detailed evidence about the circumstances in which they received the payments from their mother. They described the locations and conversations surrounding receipt of the cheque and bank drafts, and their evidence was that Mrs. Bajwa made it clear the payments were intended as gifts. Their evidence on this point was not successfully challenged in cross examination.

[38] Several other factors also support the conclusion that the payments were intended as gifts.

Loan not Documented

[39] Except through the bank drafts, the amounts advanced were not documented. The $20,000 cheque has an empty memo line. The drafts have no memo line. So the bank instruments themselves provide no particular insight as to whether they were intended as gifts or loans.

[40] No contemporaneous documentation exists to suggest that Mrs. Bajwa expected to be repaid, that she should receive interest, or that the payments to Raman were intended as an investment.

Nimmi’s Evidence

[41] Mrs. Bajwa’s granddaughter Nimmi Kahlon was the most credible and reliable witness at this trial. Her evidence fit with the other evidence I accepted and was internally consistent. She did not try to cast herself in a favourable light. For example, she freely acknowledged not seeing her grandmother very frequently and not following up for many months when her grandmother did not drop the lawsuit after saying she was going to do so. In addition, during her cross examination, Mrs. Bajwa was confronted with some of the facts Nimmi was expected to say, and Mrs. Bajwa agreed with much of it, thereby lending credibility to Nimmi’s testimony.

[42] I reviewed Nimmi’s evidence in some detail in my April 6, 2023 endorsement, at paras. 52 to 61, and will not repeat it here. Significantly, Nimmi testified that her grandmother told her she had given the money as a gift, and she did not want the money back. That credible piece of evidence significantly impairs the claim.

Wanting to End the Lawsuit

[43] Mrs. Bajwa confirmed that she asked Nimmi to take her to see a lawyer so she could drop this case. This fact does not necessarily establish that the case brought because of pressure from Gurnam, or that the payments were gifts and not loans. For instance, it is possible that Mrs. Bajwa did not want to pursue this matter because she was seeking family harmony. During cross examination, she said:

Q. And why did you want to drop the case?

A. I thought, what is this? Day, day after day at the lawyers.

[44] During re-examination, she said:

Q. Ms. Bajwa, did Nimmi ask you to drop this case? Or did you tell Nimmi you wanted to drop the case?

A. My thought is that it should be closed. Why go to court houses day after day?

[45] It is also possible that she just changed her mind about wanting the money back. However, Kulminder testified that when she got Mr. Mangat’s initial demand for repayment, she went to see her mother and Mrs. Bajwa acknowledged being taken to a lawyer but said the claim was being made without her permission, and shortly after that her mother’s phone was blocked so Kulminder and Raman could not talk to her anymore. I accept Nimmi’s evidence to the effect that the blocking of Kulminder’s and Raman’s phones was contrary to Mrs. Bajwa’s wishes (although, again, it would have been helpful if the issue of blocked phones was put to Mrs. Bajwa in cross examination).

[46] Satpal and her husband Avtar Dhinsa did not testify.

[47] The inconsistency, described above, between the pleading and Mrs. Bajwa’s evidence is another factor suggesting Gurnam may have played an oversized role in Mrs. Bajwa’s position that the payments were loans and in directing the lawsuit. The preponderance of evidence suggests that the lawsuit was commenced due to pressure from Gurnam and, after his death, the lawsuit continued due to pressure from Satpal and Avtar.

No Demand for Repayment Prior to Demand Letter from Counsel

[48] I have already mentioned that although Mrs. Bajwa said she asked for the money back “two to three times,” she did not say when, how, or in what context. She gave no evidence about a payment schedule or about making inquiries for the possibility of partial payments. I do not accept that Mrs. Bajwa made any demand for repayment prior to the demand letter sent by Mr. Mangat. This is a significant indicator that the payments were intended as gifts and not loans.

Interest

[49] Mrs. Bajwa’s inexact evidence about interest and the inconsistency between her evidence and her pleading (where it is stated that the payments to Raman were an investment) also point towards a conclusion that the payments were gifts not loans.

Conclusion

[50] The defendants have credibly established that the payments in question were gifts. At the time the payments were made, Mrs. Bajwa intended to give the payments to the defendants. There was sufficient delivery of the gifts. And there was acceptance of the gifts.

[51] These conclusions do not rest on the onus of proof. The presumption of resulting trust was against the defendants. The onus of proof was on the defendants. They have met that onus.

[52] The action is therefore dismissed.

Costs

[53] I will hold a hearing on costs. The parties are to coordinate the hearing date through the Brampton trial coordinator.

[54] Given:

a. that Mrs. Bajwa was not capable of instructing counsel and the strong indicators of this during her testimony;

b. Mr. Mangat’s insistence that she had the capacity to instruct him; and

c. the resulting difficulties arising from the fact that Mrs. Bajwa’s capacity was addressed prior to trial,

I will receive submissions on whether or to what extent Mr. Mangat should be required to personally pay costs. Mr. Mangat is to be given notice of the hearing and the date is to be coordinated with him.

Chown J. Released: 2023-July-07

[^1]: My April 6, 2022 endorsement, at para. 27, is inaccurate on this point. I said at para. 27, “For the claim to succeed, it must be established that the money Mrs. Bajwa advanced to the defendants was not a gift but rather a loan.” This would reverse the burden of proof. [^2]: In the transcript obtained by the PGT, the transcriptionist wrote $16,000 and not $68,000. My notes and the in-court reporter’s notes both say $68,000. I have reviewed the audio recording and can confirm that the transcript is incorrect. I will add here that this is questionable evidence from Mrs. Bajwa. The goal seemed to be to connect the amount of her life savings to the amount she gave the defendants, but she gave $68,000 to Raman and $10,000 to Kulminder, so when she gave them the money, she must have had $78,000.