TS v Charkhandeh, 2020 ABQB 796

Court of Queen’s Bench of Alberta Citation: TS v Charkhandeh, 2020 ABQB 796 Date: 20201217 Docket: 1403 16713 Registry: Edmonton Between: T.S. Plaintiff - and - Shouresh Charkhandeh, S. Charkhandeh Professional Corporation, A.J.

Seehra Professional Corporation, 1724280 Alberta Ltd., 23rd Avenue Dental Studio Partnership, Whitemud Meadows Dental Studio Partnership, Rabbit Hill Dental Studio Partnership, Amarjit Seehra and Heritage Valley Dental Inc. operating as Imagine Orthodontics, Amarjit Seehra operating ss Imagine Dental Studio, A Seehra and S Charkhandeh Professional Corporation operating as La Perle Dental, A.J. Seehra Professional Corporation operating as Rabbit Hill Dental Studio, A.J. Seehra Professional Corporation operating as Aesthetica Dental Studio, A.J.

Seehra Professional Corporation operating as Terwillegar Dental Studio and ABC Corporation Defendants _______________________________________________________ Endorsement of W.S. Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application to dismiss for delay. [ 2 ] The Statement of Claim alleges sexual misconduct by the Defendant, Charkhandeh, between November 2012 and June 2013, when the Plaintiff was employed by Charkhandeh and Seehra as a dental assistant. The Plaintiff claims that she was forced to leave her job.

She also sues for wrongful dismissal. Some of these events are alleged to have occurred at the Plaintiff’s place of employment. The various corporate Defendants are alleged to be vicariously liable. [ 3 ] I mention this simply to put this in context for the purposes of the r 4.31 application. The nature of the lawsuit is largely irrelevant to a r 4.33 application, except to the extent that the nature of the claim might help put events in the lawsuit into context for the purposes of determining whether something constitutes a significant advance. Facts [ 4 ] The timeline is as follows:

1. November 14, 2014: Statement of Claim filed (but not served); 2. November 14, 2014: Amended Statement of Claim (filed but not served); 3. October 30, 2015: Amended Amended Statement of Claim filed; 4. November 3, 2015: Amended Amended Statement of Claim served; 5. November 13, 2015: service validated; 6. November 13, 2015: Amended Amended Amended Statement of Claim filed; 7. January 18, 2016: Defence to Amended Amended Amended Statement of Claim filed (Seehra Defendants); 8. January 18, 2016: Statement of Defence of Charkhandeh Defendants; 9. January 18, 2016: Counterclaim of Shouresh Charkhandeh, filed; 10.

January 18, 2016: Seehra Defendant’s Notice of Cross-claim against Shouresh Charkhandeh; 11. February 5, 2016: Defence to Counterclaim; 12. April 18, 2016: Plaintiff’s Affidavit of Records; 13. May 11, 2016: Plaintiff’s production provided; 14. June 17, 2016: Defendants’ Affidavit of Records; 15. August 18, 2016: Appointment for Questioning served on Charkhandeh’s counsel; who responded that Dr. Charkhandeh was in Belgium between September 2016 and June 2017, and that he would require conduct money from Belgium if the Plaintiff wished to examine him during this time period; 16.

December 21, 2018: Seehra Defendants’ receivership order and stay of proceedings(in a separate action); 17. February 7, 2019: Plaintiff files complaint with the Alberta Dental Association & College; 18. May 16, 2019: Judgment obtained against Dr. Seehra in a separate action in the amount of $543,063.26; 19. June 6, 2019: Application filed (returnable June 13, 2019) for a procedural order and a Litigation Plan; 20. June 6, 2019: Supplemental Affidavit of Records (containing materials relevant to the complaint at the Dental College provided by the Plaintiff); 21.

June 6, 2019: Counsel for the Applicants asks for an adjournment of the June 13, 2019 application; 22. June 11, 2019: the parties agree that “the time period from June 13, 2019 until [the Procedural Order] application is heard will not count in computing time...”; 23. June 28, 2019: Dr. Seehra declared in civil contempt in a separate action and ordered to pay a fine of $573,955.79; 24. September 2019: ATB obtains Judgment ($5,400,000) against Amarjit Seehra in a separate action; 25. March 13, 2020: Charkhandeh Defendants take out application to dismiss for delay, returnable April 2, 2020; 26.

March 17, 2020: Court sittings suspended until June 1, 2020. The delay application was rescheduled to August 19 and ultimately adjourned to Special Chambers heard on November 27, 2020; 27. March 23, 2020: Plaintiff requests that a procedural order application be heard at the same time as the application to dismiss for delay; 28. October 2020: A.J. Seehra Professional Corporation and Amarjit Seehra are placed into bankruptcy by Court Order. [ 5 ] The current status of the Seehra Defendants can be summarized as follows [from the Co-Applicant’s brief]: Defendant Status A.J.

SEEHRA PROFESSIONAL CORPORATION Struck from the Alberta Corporate Registry on December 2, 2019 and petitioned to bankruptcy on October 10, 2020 AMARJIT SEEHRA Petitioned to bankruptcy on October 10, 2020 HERITAGE VALLEY DENTAL INC. Listed as “start” status in the Alberta Corporate Registry and failed to file annual returns in 2019 and 2020 RABBIT HILL DENTAL STUDIO PARTNERSHIP Dissolved on March 2, 2016

23 RD AVENUE DENTAL STUDIO PARTNERSHIP Dissolved on March 2, 2016 WHITEMUD MEADOWS DENTAL STUDIO PARTNERSHIP Dissolved on March 2, 2016 AESTHETICA DENTAL STUDIO and TERWILLEGAR DENTAL STUDIO Tradenames registered to the bankrupt defendant, A.J. SEEHRA PROFESSIONAL CORPORATION [ 6 ] The various judgments, receiverships and bankruptcies in separate actions have rendered this action more procedurally complex. The Receivership Order and the subsequent bankruptcy of the Seehra Defendants would have the effect of staying this action against them. If this action is to proceed, some additional steps would be required.

The first order of business would be to have the stay under s 69.3 of the Bankruptcy and Insolvency Act lifted, and potentially, for a declaration that at least a portion of the claim will survive the bankrupt’s discharge under s 178(1)( a.1 ) of the Bankruptcy and Insolvency Act . Analysis [ 7 ] The applicable law is not in dispute. I. Rule 4.33 [ 8 ] The action was advanced by the Defendants’ Affidavit of Records of June 17, 2016. We are to put ourselves in the position that the parties would have been in on June 13, 2019, if the procedural application went ahead.

I am convinced that the application would have succeeded and that the resulting Procedural Order, especially given the procedural complexities in this lawsuit, would have constituted a significant advance. [ 9 ] I am not satisfied that the additional documents and the Amended Affidavit of Records provided June 6, 2019 constitute a significant advance. The additional documents relate primarily to the complaint registered with the Alberta Dental Association.

This supplemental production does not constitute a significant advance nor do the disciplinary proceedings with the Alberta Dental Association constitute a significant advance in an inextricably linked action. I acknowledge that the developments in that complaint could well be supportive of this civil claim but do not, in themselves, constitute a significant advance. [ 10 ] The Applicants argue that a procedural order is not, in itself, a significant step.

They argue that a procedural order merely sets deadlines and they point to authority that holds that setting a deadline, or agreeing to a date, does not constitute an advance unless the scheduled event actually takes place. On this basis, one of the procedural steps would have to have occurred between the June 13 application and the June 17 drop-dead date. [ 11 ] I concede that this argument shows some ingenuity.

It might be stronger if the Procedural Order went by consent but I regret that I am unable to agree with it. [ 12 ] It is one of the ironies of civil litigation that if everyone abided by the rules , the parties might never end up in court. A Procedural Order becomes necessary when a lawsuit is not advancing as it should. It has an element of compulsion and potential consequences for breach that are not already built into the rules . In my view, a procedural order is more than the sum of its parts.

It is my opinion that the procedural application would have been successful and would have constituted a significant advance, had it gone as planned. [ 13 ] The r 4.33 application is dismissed. II. Rule 4.31 [ 14 ] We are roughly six years into this lawsuit, or seven plus years from the events giving rise to it. The lawsuit proceeded smoothly until the summer of 2016. Then there was a delay between September 2016 and June 2017 when Dr. Charkhandeh was unavailable for Questioning. I acknowledge that Dr. Charkhandeh said that he would be available if he were paid conduct money to return from Belgium to Canada.

However, it is very difficult to blame the Plaintiff for this delay or fairly to expect her to pay conduct money as a result of the Defendant removing himself from jurisdiction. [ 15 ] The largest portion of the delay was from June 2017 to June 2019. This delay appears to be attributable to the Plaintiff. [ 16 ] The Plaintiff appears to have refocused her efforts on the complaint to the dental college. While it may constitute an inordinate delay, to my mind it is not inexcusable especially given the procedural complexities in this lawsuit caused by the Seehra Defendant’s insolvency.

I note that while the complaint to the Alberta Dental Association may not have constituted an event or an advance in this lawsuit, it did entitle the Plaintiff to counselling and treatment, the effect of which might have been to mitigate her damages. [ 17 ] Because there is not both inordinate and inexcusable delay, prejudice is not presumed. The Defendants say that they have lost track of employees, who may have been witnesses.

There is no indication of what evidence these former employees might have given and no evidence of what attempts have been made to find them; even if their evidence was shown to be significant. Furthermore, I do not believe that the failure of a Defendant in an ongoing lawsuit, to fail to keep track of their witnesses can be brought home to the Plaintiff in a delay application There is also no evidence that any of these witnesses disappeared or became unavailable during any delay

attributable to the Plaintiff. [ 18 ] Dr. Charkhandeh says that his own memory is fading. By that I understand him to mean that he might not be able to remember whether he engaged in sexual misconduct with the Plaintiff eight years ago. This issue would largely have been resolved if he had submitted for examination as requested in the 2016-2017 timeframe and is of limited significance now that there is no longer a statutory ‘best-before date’ for evidence in a sexual assault case. Dr.

Charkhandeh might also have made his own record of the events alleged in the Statement of Claim to help keep his memory fresh. [ 19 ] The r 4.31 application is dismissed. Conclusion [ 20 ] The Plaintiff is to propose a procedural order within 30 days of the date of this Endorsement. If the parties are unable to agree to it, they may return and I will give directions about moving this matter to trial. Heard on the 27 th day of November, 2020. Dated at the City of Edmonton, Alberta this 17th day of December, 2020. W.S. Schlosser M.C.Q.B.A. Appearances: Bradley J.

Smith Verhaeghe Law for the Plaintiff William Peachman Parlee McLaws LLP for the Defendants, A.J. Seehra Professional Corporation, 23rd Avenue Dental Studio Partnership, Whitemud Meadows Dental Studio Partnership, Rabbit Hill Dental Studio Partnership, Amarjit Seehra and Heritage Valley Dental Inc. operating as Imagine Orthodontics, Amarjit Seehra operating ss Imagine Dental Studio, A.J. Seehra Professional Corporation operating as Rabbit Hill Dental Studio, A.J. Seehra Professional Corporation operating as Aesthetica Dental Studio, and A.J.

Seehra Professional Corporation operating as Terwillegar Dental Studio Shane B. King McLeod Law LLP for the Defendants, Shouresh Charkhandeh, S. Charkhandeh Professional Corporation, 1724280 Alberta Ltd., and A Seehra and S Charkhandeh Professional Corporation operating as La Perle Dental