Vancouver

02-Feb-17

No. S-169944
Vancouver Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
MARADADI PACIFIC HOLDINGS LTD.
PLAINTIFF
AND:
MELISSA ISABELLE CALL, ECOSSENTIALS LOCAL
MARKET INC. and 0985780 B.C. LTD.
DEFENDANTS

RESPONSE TO CIVIL CLAIM

Filed by: Melissa Isabelle Call, Ecossentials Local Market Inc. and 0985780 B.C. Ltd.
(the "defendants")
Part 1: RESPONSE TO NOTICE OF CIVIL CLAIM FACTS
Division 1 - Defendant's/s' Response to Facts
1. The facts alleged in paragraphs 2 to 5, 7 to 9, 14, 15, 30, 36 and 45 of Part 1 of the notice
of civil claim are admitted.
2. The facts alleged in paragraphs 10 to 13, 16 to 29, 31 to 35, 37, 38, 40 to 44, 46 to 54 of
Part 1 of the notice of civil claim are denied.
3. The facts alleged in paragraphs 1 and 6 of Part 1 of the notice of civil claim are outside
the knowledge of the defendants.
Division 2 - Defendant's/s' Version of Facts
1. Except where otherwise specified, the Defendants adopt for convenience only, and not as
any admission of fact or law, certain of the defined terms used in the Notice of Civil
Claim.
Parties
2. The Defendant, Melissa Isabelle Call ("Call"), became acquainted with Judeline Tyabji
Wilson ("Tyabji") through a community organization known as "Pebble in the Pond
Environmental Society", as referred to in the Notice of Civil Claim.
3. Except as otherwise referred to herein, Call's dealings with Tyabji were informal and in
the nature of a friendship.
4. Except as otherwise referred to herein, Call did not, either expressly, by acquiescence, or
by implication, enter into an agreement or agreements with the Plaintiff, Maradadi Pacific

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Holdings Ltd. ("Maradadi") or Tyabji, either on her own behalf or on behalf of

Ecossentials Local Market Inc. ("Ecossentials Inc") or 0985780 B.C. Ltd. ("098").
5. 098 is the owner of the Alberni Street Property and does not carry on any business
activity other than the leasing of commercial premises.
Background
6. By 2012, Call was operating two successful business enterprises, Sunshine Organics, a
home delivery service for local produce, and Ecossentials, a storefront retail business
("Ecossentials"). The businesses had grown to the point where much of her time was
pre-occupied by their operations.
7. Call, Tyabji and Carole Ann Leishman ("Leishman") would frequently meet socially to
discuss business, the affairs of Pebble in the Pond, and matters of personal and local
interest. It was not unusual for the group to discuss business strategies and provide
advice and input to each other in respect of their various business interests.
8. Both Tyabji and Leishman were established community leaders and active in local and
provincial politics. Call relied upon and trusted Tyabji because of her political and
business experience and connections.
9. Tyabji and her husband Gordon Wilson ("Wilson") are former members of the British
Columbia Legislative Assembly. Wilson is the former leader of the BC Liberal Party,
and sat as an MLA with the Progressive Democratic Alliance, as leader of that party, and
served as Finance Minister for the Provincial NDP Government.
10. Wilson is also a director of Maradadi.
11. Tyabji represented to Call, and Call understood and believed, that she had preferential
personal access to provincial Cabinet Ministers, local government officials, and senior
Ministry staff.
12. In 2012, Tyabji divulged to Call that she and Wilson were in significant financial
difficulty. Tyabji advised Call that she and Wilson had been obliged to sell some or all of
their interest in a software company and were significantly indebted to various personal
and business creditors and others as a result of litigation and other misfortunes.
13. On January 7, 2013, an order for sale of Wilson and Tyabji's home at 9573 Random
Road was pronounced by this Court within foreclosure proceedings initiated by CIBC.
14. Call understood that Tyabji was in desperate need of income and, as described below,
was willing to help her to the extent she was able.
15. In reply to the whole of the Notice of Civil Claim, Call did not agree to hire Tyabji or
Maradadi generally as a consultant or in any other capacity. The full extent of Call's
business dealings with Tyabji are described in the following section.
Buy BC Program
16. In or around 2012, Tyabji approached Call about the Buy BC Program. The Buy BC
Program is a funding match grant which required applicants to spend a specific amount of
money on eligible expenditures in order to access the grant funding. Applicants are

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required to submit a budget setting out their planned eligible expenditures, and then
provide detailed financial reporting on the actual expenditures demonstrating that the
eligible expenses were in fact incurred.
17. Tyabji represented to Call that the Buy BC Program was a business grant administered by
the Investment Agriculture Foundation of British Columbia ("IAF"). Tyabji also advised
Call that the program was perfectly suited to Sunshine Organics and Ecossentials because
most of their normal operating expenses were incurred in respect of expenses that would
be considered eligible under the Buy BC Program, such that the company would qualify
for the funding without adding to its existing operating budget. Further, Tyabji advised
that because of her experience political connections, she would be able to easily navigate
the process on behalf of the businesses and get access to the grant monies quickly.
18. Tyabji advised Call that she would handle the entire process on behalf of Ecossentials
and Sunshine Organics and take a fee from the grant money if and when it was received.
19. Call was aware of Tyabji's financial situation and, as a friend, agreed to help her by
allowing Tyabji to submit a Buy BC grant proposal to the IAF on behalf of Ecossentials
and Sunshine Organics on the basis that it would not cost anything to have her do so.
Call expressly advised Tyabji that she did not wish to add to her existing duties and
workload. Tyabji assured Call that she would take care of all aspects of the Buy BC
proposal and the related campaign including ensuing compliance and meeting all
reporting obligations.
20. In reply to paragraph 12 of the Notice of Civil Claim, it is correct that Tyabji agreed to
perform all work contemplated under the Buy BC proposal and that Call agreed to
cooperate as necessary to make the application and allow Tyabji to run the campaign.
Call trusted and relied upon Tyabji to submit a compliant and accurate proposal.
21. Without the assurances and representations made by Tyabji, as referred to above, Call
would not have agreed to submit a proposal for participation in the Buy BC Program. In
fact, had Tyabji not brought the Buy BC Program to the attention of Call, she would not
have known of its existence.
22. In reply to paragraph 13 of the Notice of Civil Claim, at no time did Call agree to pay
Tyabji and/or Maradadi the sum of $60,000. At all material times it was agreed, as
aforesaid, that Tyabji would be compensated from the grant funding if and when it was
received.
23. In further reply to paragraph 13 of the Notice of Civil Claim. The Defendants deny that
there was an agreement that Tyabji would be paid a fee of $60,000. There was discussion
of her recovering 60% of the grant monies if and when they were received, but no final
agreement on an amount or percentage was ever reached.
24. The fact is, Call did not agree and would not have agreed to pay Tyabji a fixed fee of
$60,000 payable notwithstanding the full funding of the Buy BC Program grant.
25. Tyabji prepared and submitted a proposal dated February 28, 2013 to IAF which outlined
a 10 month campaign referred to as the "Buy Local Campaign" (the "Proposal"). The
Buy Local Campaign consisted of promotions, advertising and events intended to

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promote and encourage the consumption of local produce and agricultural products (the
"Campaign").
26. In support of the Proposal, Tyabji submitted a letter dated January 10, 2013 from
"Duddles' Lair Farm", a business owned and operated by Wilson, which represented that
it would undertake various promotional efforts on behalf of Sunshine Organics. The
letter expressly represented that: 'We estimate this value [of the promotional services] to
be $5000 over the ten months Buy Local Campaign"
27. In addition, Tyabji arranged for a letter to be issued on Maradadi letterhead dated January
14, 2013, which represented:
'To support Sunshine Organics, we are prepared to offer our services for radio,
television, print, and social medial content production at cost, including materials
and travel, up to a value of $20,000 for Sunshine Organics Buy Local Campaign
for the Powell River and Comox Valley regions. We will not charge for our
investment of time. In the past, our lowest charge out rate is $150/hour, so this
represents over 150 hours of production, which is enough time to create basic
promotional videos, radio ads, and marketing materials, including the shooting
and editing."
28. Ultimately, in order to access the grant Tyabji represented to the IAF in the Proposal that:
(a) Sunshine Organics would contribute $330,000 to the campaign;
(b) Ecossentials would contribute $45,000 to the campaign;
(c) In-kind private services valued at $30,000 would be provided by Maradadi,
Duddles Lair Farms, and Pebble in the Pond Environment Society.
Tyabji made the representation without the knowledge or consent of Call.
29. Tyabji represented to IAF in the Proposal that total direct Campaign expenditures,
including the grant funding, would be in the amount of $475,000.
30. Call was not involved in the preparation of the Proposal or the Campaign and was not
made aware of their details at any time prior to the submission of the Proposal. She
trusted Tyabji to handle this on her own on the understanding that it would not cost
Ecossentials or Sunshine Organics anything, and that it would not increase normal
operating expenses.
31. Tyabji knew that the expenditures represented in the Proposal were far in excess of funds
reasonably available to Ecossential and Sunshine Organics. Indeed, the expenditures
represented an amount approximating the entirety of the operating budgets for those
businesses in 2013.
32. Tyabji's sole concern was in accessing the Buy BC Program funding for her own direct
benefit or for the benefit of Maradadi.
33. The Proposal was approved by IAF in February, 2013. The IAF agreed to release the
Buy BC grant in two tranches; the first $50,000 payable immediately with the second
tranche of $50,000 payable after submission of a final report outlining the Campaign and

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providing a financial reconciliation of the expenditures, as budgeted in the Proposal (the

"Final Report").
34. The initial tranche of the grant payment in the amount of $50,000 was released around
March 14, 2013. Tyabji was paid the sum of $38,832 from these funds. In addition, Call
paid certain personal expenses of Tyabji and Wilson, including personal airfare and
multiple cash e-transfers to Tyabji's son, Kasimiri (collectively, including the $38,832,
the "Tyabji Payments").
35. At all material times it was expressly agreed by Call and Tyabji that the Tyabji Payments
were to be credited against her overall fee entitlement, the payment of which was
contingent upon the funding of the Buy BC grant applied for under the Proposal.
36. Tyabji did not wish to wait for the second tranche of financing and almost immediately
sought its release. Tyabji's efforts to have the second $50,000 payment released included
the authoring of various correspondences to IAF on Sunshine Organics letterhead, and
culminated in the submission of an interim financial report to IAF around June, 2013 (the
"Interim Report").
37. Call was not involved in the preparation of the Interim Report, did not approve the
Interim Report, and was not aware of its details.
The IAF Audit
38. Following receipt of the Interim Report, IAF immediately raised serious concerns,
including, inter alia, unexplained reporting discrepancies, improperly claimed expenses,
and improperly claimed operating, equipment, consulting, labour and material costs.
39. The IAF refused to fund the second tranche of the grant pending receipt and review of the
Final Report. In addition, the IAF made significant interim demands for back-up
documents and further details relating to reported Campaign expenditures.
40. Tyabji assured Call that she would resolve the IAF concerns and submit a compliant
Final Report.
41. Tyabji did not submit the Final Report until May, 2014, close to 4 months after it was
due.
42. Tyabji continued, during the aforementioned period, to assure Call that the situation was
under control and that it was simply an issue of Ministerial interference by her political
enemies.
43. Tyabji represented to Call that she could rely on her political contacts to resolve and put
to an end the scrutiny from IAF.
44. By letter of September 5, 2014, the IAF advised Call that an auditor would make a site
visit to review the financial records, books and ledgers associated with the Proposal. The
letter further specified that Tyabji was not to attend.
45. The IAF letter was sent to Tyabji. Tyabji responded to Call by email of September 5,
2014 as follows:

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"/ will prepare those numbers for your accountant, and we need to track these
extra costs to you because the IAF told the minister that this was at their cost, not
yours.
I will start on this on Monday but need access to your bookkeeping. Better check
with Steve about those dates. I am not sure that they can dictate these terms. I will
be at the meeting, regardless of [the IAF's] request.''''
46. The IAF auditor ultimately attended for the site visit in October, 2014. Tyabji and Call's
bookkeeper also attended.
47. By letter dated October 27, 2014, the IAF wrote to Call to demand repayment of the
$50,000. The letter included the following summary:
"[The IAF auditor] reviewed the bookkeeper's notes, and the general ledger
provided by your accountant. [The IAF auditor] also reviewed information
supplied by Ms. Tyabji; both materials available during the site visit and also
additional materials email to her subsequent to the site visit. The result of [the
IAF auditor's] review of the material provided indicated that:
• discrepancies with wage, consulting and travel expenses exist between the
bookkeeper's notes, the general ledgers and the financial report submitted
in the final report to IAF;
• regular operating costs such as 100% of utility costs, advertising costs
and food purchase expenses were charged to the project during the period
of March to December, 2013;
• 100% of wages and associated CPP and EI costs for Sunshine Organics
were charged to the project, some of these charges were noted to be
outside the timeline of the Buy Local Program; and
• capital expenses including vehicle lease costs and equipment purchases
were charged to the program."
48. The IAF made demand that Call repay the $50,000 by January 15, 2015.
49. In early 2015, Call advised Tyabji that she no longer wished for her to communicate with
the IAF or have any further involvement in the Buy BC matter.
50. Call retained an accountant in March, 2015, and submitted a revised final report
indicating Campaign expenditures in the amount of $127,743 (the "Revised Report").
Call made a request to withdraw the original Proposal and for a reconsideration of the
new proposal which sought a $50,000 grant payment.
51. Call was required to submit a personal cheque in the amount of $50,000 as a precondition
to the IAF agreeing to reconsider the expenditures in light of the Revised Report.
52. Around April 20, 2015, the IAF agreed to cancel the Proposal and reconsider a new
proposal with a redefined campaign budget of $100,000 in eligible expenses at a 50%
grant match. Call was required to resubmit a revised Buy BC proposal and support for
the eligible expenditures outlined in the Revised Report. The revised proposal was

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ultimately accepted and Call's obligation to repay the initial $50,000 grant payment was
released. No new grant funds were paid to Ecossentials or Sunshine Organics.
53. Neither of Maradidi or Tyabji have reimbursed any part of the Tyabji Payments.
Alberni Street Property
54. In reply to paragraph 26 of the Notice of Civil Claim, Call denies that she entered into
any agreement with Maradadi (or Tyabji) for the provision of "strategic advice and other
assistance" relating to the purchase of the Alberni Street Property.
55. The fact is, the Alberni Street Property was an adjacent commercial property to the
existing facilities for Ecossentials, which was located on Marine Avenue (the "Marine
Avenue Property"). Its purchase was an arms-length transaction for a commercial
property valued at approximately $400,000, negotiated with the assistance of Aaron
Mazurek, a real estate agent.
56. The purchase of the Alberni Street Property closed in December, 2013.
57. The Alberni Street Property was previously a bookstore. Call knew and was friendly
with the owners of the bookstore. The transaction arose out of Call's knowledge that the
owners of the bookstore wished to relocate their business to a smaller location.
58. Accordingly, the book store relocated to the Marine Avenue Property while Ecossentials
relocated to the Alberni Street Property.
59. In reply to paragraph 27 of the Notice of Civil Claim, the purchase of the Alberni Street
Property did not involve extensive negotiations, the drafting of proposals, market
research, or any complex financing arrangements.
60. In reply to paragraph 28 of the Notice of Civil Claim, Tyabji was involved in the creation
of a business plan that was presented to First Credit Union for the purposes of obtaining
the mortgage loan which was used to partially fund the purchase of the Alberni Street
Property.
61. The business plan was prepared in conjunction with the Buy BC Program and was
discussed generally between Call, Tyabji and Leishmann during their meetings.
62. In reply to paragraph 31 of the Notice of Civil Claim, at no time did Tyabji offer her
assistance in preparing the business plan under any express or implied expectation of
remuneration, let alone the alleged 7% "standard fee" on the purchase price.
63. The fact is, Call would not have accepted any assistance whatsoever from Tyabji had
Tyabji indicated to her that she expected a 7% commission on the purchase price of the
Alberni Street Property.
64. At no time prior to the initiation of these proceedings have Tyabji or Maradadi alleged or
demanded payment of a commission or fee associated with the purchase of the Alberni
Street Property.
Powell River Community Investment Corporation
65. In reply to paragraphs 32 to 34 of the Notice of Civil Claim, the allegation that Call
retained Maradadi to advise and assist in the negotiation with Powell River Community

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Investment Corporation ("PRCIC") for the purchase of shares in Ecossentials Inc. is

untrue and without any factual basis.
66. At all material times, the share purchase and capital investment was negotiated directly
between Ecossentials Inc., Call and PRCIC. Call introduced herself to Sean Melrose, the
principal of PRCIC, and negotiated the share purchase and capital investment directly
with him and legal counsel.
67. In specific reply to paragraph 34 of the Notice of Civil Claim, at no time did Tyabji state
any express or implied expectation of remuneration associated with the PRCIC
investment, let alone the alleged 10% "standard charge" on the amount invested.
68. Alternatively, if any assistance or advice was provided by Tyabji, which is denied, Call
would not have accepted any such assistance or advice from Tyabji had Tyabji indicated
that such assistance or advice came at a cost equal to a 10% commission on the amount
investment.
69. At no time prior to the initiation of these proceedings have Tyabji or Maradadi alleged or
demanded payment of any commission or fee associated with the PRCIC financing.
Consulting Services
70. In reply to paragraph 35 of the Notice of Civil Claim, at no time did Maradadi or Tyabji
provide general consulting services outside of the work particularized above in reference
to the Buy BC Program.
71. In reply to paragraph 19, 20 and 21 of the Notice of Civil Claim, at no time did Call agree
generally to retain Maradadi to provide business consulting services pursuant to an oral
or written agreement.
Contractual Claims
72. In reply to the whole of the Notice of Civil Claim, and paragraphs 42 through 52 in
particular, if there exists any facts supporting a cause of action in contract, which is
denied, the claims of the Plaintiff are barred by the effluxion of time pursuant to section 6
of the Limitation Act, S.B.C. 2012, c. 13. In particular:
(a) The Buy BC Campaign was in 2013. As set out at paragraph 44 of the Notice of
Civil Claim, the Plaintiff is alleged to have delivered its final invoice on January
8, 2014;
(b) The purchase of the Alberni Street Property closed around December 27, 2013;
and
(c) The PRCIC investment and share purchase closed on January 10, 2014.
73. In reply to the whole of the Notice of Civil Claim, none of the Defendants received any
benefit whatsoever from the Proposal. Tyabji and/or Maradidi's continued retention of
the Tyabji Payments constitutes money had and received. These amounts must be repaid
to Call.
74. In specific reply to paragraphs 39 and 41 of the Notice of Civil Claim, the allegation that
Call expressly and overtly represented and agreed that Ecossential Inc. and 098 would

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accept general liability to Maradadi is not true. At no time did Ecossentials Inc., 098, or
Call acting on behalf of those incorporated entities, volunteer to assume liability at large
(or at all) for the multitude of claims now alleged by Maradadi in the Notice of Civil
Claim.
75. In reply to paragraph 46, 47, 48, and 49 of the Notice of Civil Claim, the second tranche
of the Buy BC grant was not released due to significant misrepresentation and errors in
the Proposal, Interim and Final Reports, correspondence, and communication submitted
to IAF by Tyabji.
76. The allegation that Call and Ecossentials Inc. opposed and obstructed the provision of
additional financial information to IAF is not true.
77. Call's direct costs arising from the IAF audit and the resubmission of financial reports
and records is well beyond the balance of grant money not consumed by the amounts
paid to Tyabji, if any.
78. In the alternative, if any sums are due and owing to Maradadi, which is denied, the
Defendants are entitled to claim a set-off for the costs incurred as a result of the IAF audit
and resubmission of Buy BC reports and proposals.
Equitable Claims
79. No factual basis is pleaded for either the application of the doctrine of unjust enrichment
or the remedial application of a constructive trust.
80. The doctrine of quantum meruit has no application to the present facts.
81. At all material times Tyabji and/or Maradadi's labour and effort were undertaken for
her/their/its own enrichment in the form of the Tyabji Payments. Neither of Tyabji or
Maradadi have any legal or equitable entitlement to retain the benefit of these payments,
which are properly due and owing to Call.
Division 3 - Additional Facts
1. The Plaintiffs filing of a Certificate of Pending Litigation against title to the Alberni
Street Property is an act designed and intended solely to cause hardship to the Defendants
and secure litigation advantage. It is accordingly an abuse of this honourable Court's
process and/or is deserving of rebuke.

Part 2: RESPONSE TO RELIEF SOUGHT

1. The defendants consent to the granting of the relief sought in NONE of Part 2 of the
notice of civil claim.
2. The defendants oppose the granting of the relief sought in paragraphs 1 through 9 of
Part 2 of the notice of civil claim.
3. The defendants take no position on the granting of the relief sought in NONE of Part 2 of
the notice of civil claim.

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Part 3: LEGAL BASIS

1. The Plaintiff has no valid claims in debt or otherwise against the Defendants under the
common law of contract or pursuant to the Court's equitable jurisdiction.
2. The Plaintiff and/or Tyabji's sole contractual relationship with Call is in respect to the
Buy BC Program. There was a complete failure of performance of any such contract.
3. The Defendants rely on the doctrine of indebitatus assumpsit and say the Tyabji
Payments constitute money had and received.
4. The Tyabji Payments have been improperly retained by Tyabji and/or the Plaintiff and
are to be repaid to Call.
5. Alternatively, if any amounts are owed to the Plaintiff, which is denied, the Defendants
are entitled to claim legal or equitable set-off against any such amounts.

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6. The Plaintiffs claims, in any event, are statute barred pursuant to section 6 of the
Limitation Act.

Defendant('s/s') address for service: Shane D. Coblin/Daniel F. Hepburn

Kornfeld LLP
1100 One Bentall Centre
505 Burrard Street, Box 11
Vancouver, British Columbia
Canada V7X 1M5

Fax number address for service (if any): 604.683.0570

E-mail address for service (if any): scoblin@,kornfeldllp.com and

dhepburn@kornfeldllp.cftm

Dated February £~-; 2017 : \ ^ kx I

Signature of Lawyerfor filing Defendant(s)
Kornfeld LLP

Shane D. Coblin
Rule 7-1 (1) of the Supreme Court Civil Rules states:
(1) Unless all parties of record consent or the court otherwise orders, each party of
record to an action must, within 35 days after the end of the pleading period,
(a) prepare a list of documents in Form 22 that lists
(i) all documents that are or have been in the party's possession or
control and that could, if available, be used by any party at trial to
prove or disprove a material fact, and
(ii) all other documents to which the party intends to refer at trial, and
(b) serve the list on all parties of record.

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