Reasons for the Judgment against Sant Baba Amar Singh

2001

Citation:
Gill v. Nanaksar Thath Ishar Darbar and Amar Singh Sidhu
Date:
20030130

2003 BCSC 172
Docket:
C975444

Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

WAHIGUROO PAUL SINGH GILL, HARBANS KAUR GILL, TAGE KAUR SIDHU,

AN INFANT BY HER GUARDIAN AD LITEM,

JASMOHANJIT KAUR GILL, JASMOHANJIT KAUR GILL,

ADMINISTRATRIX OF THE ESTATE OF SURINDER KAUR SIDHU, DECEASED

PLAINTIFFS

AND:

NANAKSAR THATH ISHAR DARBAR AND

AMAR SINGH SIDHU ALSO KNOWN AS AMARSINGH SIDHI ALSO KNOWN AS

AMAR SINGH ALSO KNOWN AS AMARSINGH ALSO KNOWN AS

BABBA AMAR SINGH JI

DEFENDANTS

REASONS FOR JUDGMENT

OF THE

HONOURABLE MR. JUSTICE FRASER

Counsel for the Plaintiffs
David H. Unterman

Counsel for the Defendants
Adam J. Roberts

[1] In my judgment of 28th June 2002, I found that the defendant Amar Singh Sidhu had, through fraud, caused Surinder Kaur Sidhu to transfer valuable land she owned in British Columbia to an Ontario society controlled by him, the defendant Nanaksar Thath Ishar Darbar. The consequence of my judgment was an order vesting the title to the land in Tage Kaur Shokker, the daughter and heir at law of Surinder Kaur Sidhu.

[2] By reason of the fraud, Tage Kaur Shokker was deprived of the ownership of the land for a period of approximately five years, during which time it increased in value.

[3] Mr. Unterman, counsel for Ms. Shokker, now contends that there should be, as well, an award of equitable interest. The suggested amounts vary, according to interest rates, from $408,000 to $602,000, based on the value of the land.

[4] Mr. Unterman concedes that an award of equitable interest is usually thought of in the context of the wrongdoer having deprived the person wronged of money, in which case equity presumes that the wrongdoer would have made a profit from the money. Indeed, there is no case which has been cited to me and no case uncovered by the further research of my law clerk[1] in which an award of equitable interest has been made for deprivation of anything other than money.

[5] But Mr. Unterman contends:

It must be kept in mind that [Ms. Shokker] in our case lost an opportunity to use her land. The fact that she was deprived of an opportunity may be sufficient to justify an award of equitable interest.

He cites the words of the Supreme Court of Canada, in a different context, that "[e]quitable remedies are flexible; their award is based on what is just in all the circumstances of the case."[2]

[6] Similarly, the majority of the Supreme Court of Canada, in another case, said this:

The remedy of disgorgement . . . is simply insufficient to guard against the type of abusive behaviour engaged in by the respondent in this case. The law of fiduciary duties has always contained within it an element of deterrence.[3]

[7] In B.(K.L.) v. British Columbia, Dillon J. awarded equitable interest on damages she awarded to the plaintiffs, drawing a distinction between assessing the quantum of damages, on the one hand, and awarding compensation for delay in the payment of damages, on the other.[4] She characterized her award of equitable interest as one founded upon the plaintiffs' loss of the use of their money, that is, loss of the use of the damages to which they were entitled.[5]

[8] On appeal, it was held that the actions of the defendants, while actionable in tort, could not be characterized as breaches of a fiduciary duty. Thus, the award of equitable interest necessarily fell. The Court of Appeal went further and held that an award of equitable interest was not appropriate "beyond the limited category of property claims".[6] Mackenzie, J.A., for the Court, quoted Lord Denning M.R., with approval, as to the following passage:

[I]n equity, interest is never awarded by way of punishment. Equity awards it whenever money is misused by an executor or trustee or anyone else in fiduciary position . . . who has misapplied the money and made use of it himself for his own benefit ....[7]

I note in this passage the specific reference to money.

[9] Despite suggestive references in some general quotations to "property", my conclusion is that the concept of interest, as opposed to damages, restitution and other remedies, is founded exclusively on the use or deprivation of money. Reinforcing this conclusion is the definition of interest for a non-legal source, the Oxford English Dictionary (2nd ed. 1989): "Money paid for the use of money lent (the principal), or for forbearance of a debt...."

[10] The result is that the remedy of equitable interest, in consequence of the deprivation of the land, is not available to Ms. Shokker.

[11] Perhaps the defendants could have been found liable to pay equitable interest to Ms. Shokker as a consequence of receiving the proceeds of the mortgages registered against the land by them while title was in the name of the defendant society. However, I have already made an order compensating Ms. Shokker with reference to these mortgages.

Summary

[12] The application is dismissed.

"G.P. Fraser, J."
The Honourable Mr. Justice G.P. Fraser

[1] Amber Elliot

[2] Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, para. 34

[3] Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at 453

[4] (1998) 163 D.L.R. (4th) 550, para. 11 (B.C.S.C.)

[5] Ibid., para. 22

[6] B. (K.L.) v. British Columbia 2001 BCCA 221, para. 55; (2001), 87 B.C.L.R. (3d) 52, at 73.

[7] Wallerstein v. Moir (No. 2), [1975] 1 Q.B. 373, at 388 (Eng. C.A.), cited in B. (K.L.) v. British Columbia 2001 BCCA 221, para. 55; (2001), 87 B.C.L.R. (3d) 52, at 73.