Miracle 786 Flooring Ltd. v. Canadian Western Date:, 2013 BCPC 36

Citation: Miracle 786 Flooring Ltd. v. Canadian Western Date: 20130128 2013 BCPC 0036 File No: 0924781 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MIRACLE 786 FLOORING LTD. CLAIMANT AND: CANADIAN WESTERN TRUST COMPANY, YETMAN'S LAW CORPORATION, HOMEMARK CONSTRUCTION AND BUILDING INDUSTRIES CORPORATION, AJAY SONI, AND SHAHIN SOHEILI DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE GIARDINI Appearing for the Claimant: No appearance Counsel for the Defendants Canadian Western Trust Company and Ajay Soni: K.

Sanderson Appearing on their own behalf: Shahin Soheili Appearing for the Defendants Yetman’s Law Corporation, Homemark Construction and Building Industries Corporation: No appearance

Place of Hearing: Vancouver , B.C. Date of Hearing: January 28, 2013 Date of Judgment: January 28, 2013 [ 1 ] THE COURT: Let me just summarize the applications I have before me. I will first start with a short introduction to provide context. Introduction [ 2 ] Miracle Flooring was a subcontractor at a building project on Abbey Drive in Surrey. It began proceedings as a claimant in Small Claims Court against a number of parties including: Canadian Western Trust, Homemark Construction, and Mr. Soni.

The claim advanced by Miracle Flooring was that it should be paid for the costs it had incurred, both labour and materials, for installing certain flooring materials at the Abbey Drive project. That project was a home that was being constructed for Mr. Soheili and his family. The amount it claimed was $13,388.42. [ 3 ] The trial was heard in this court on December 22, 2011, June 4, and August 30, 2012, and I rendered judgment on November 19, 2012. I am not certain if the judgment has been published on the database.

In any event, the unpublished judgment is dated November 19, 2012, Robson Vancouver Registry 09-24781. [ 4 ] On November 19, 2012, a Trial Record/Order ("trial record") was also completed. That trial record which is signed by me reads as follows: The claimant's claim against all defendants except A. Soni is dismissed. Judgment against Ajay Soni for $13,388.42, all inclusive, payable forthwith. Judge Giardini remains seized if it becomes necessary to address any issues regarding payment of the $13,388.42. [ 5 ] Mr.

Soheili, on his own behalf, and not as the principal of Homemark Construction and Building Industries Corporation, filed an application on January 7, 2013. He asks for an order to have the monies that were being held in trust by Yetman's Law Corporation, that is the $13,388.42, to be released to him rather than to Canadian Western Trust. [ 6 ] As it happens, I am on one of my rotations here at Robson so the matter was placed before me today. Mr. Soheili's position, (I am going to rely in part on what Mr.

Soheili has said and also what he wrote in the application) is that the $13,388.42 that were held in trust by Yetman's Law Corporation were part of proceeds of a mortgage that had been advanced. Mr. Soheili had placed a mortgage on two properties he owned in Surrey to finance the Abbey Drive project. [ 7 ] Mr. Soheili maintains there has been no order against him as a result of the proceedings in the Miracle Flooring litigation. He also maintains he paid the total mortgage amount, plus interest, that was owed to Mr. Soni.

He says the $13,388.42 is money that should have been released to him because it had been advanced on the mortgage. Therefore, since he paid out the mortgage, his argument is (although he did not state it this way) that he has paid for the $13,388.42 that had been advanced and has now ended up paying twice because he is out of pocket the $13,388.42 which had been held in trust pending the Miracle Flooring trial. [ 8 ] Mr. Soheili is also concerned because he spoke to Mr. Yetman and asked Mr. Yetman not to release the monies. He feels he did that fairly quickly. He provided some notes he had made to the court.

It appears the conversation between Mr. Soheili and Mr. Yetman was on November 20, 2012, the day after my written reasons were released. Mr. Soheili maintains he put Mr. Yetman on notice and therefore the money should never have been released. [ 9 ] On behalf of Canadian Western Trust and Mr. Soni, Mr. Sanderson makes a number of submissions. I will summarize the submissions as follows:

(1) The money has left Yetman's trust account and was fully paid out to Miracle Flooring. The application is, therefore, moot as there is nothing to order in terms of having the money held.

(2) Mr. Soheili did not make a claim in the course of the Miracle Flooring litigation. Although Mr. Soheili and the company of which he was a principal, Homemark Construction and Building Industries Corporation, were named as defendants, Mr. Soheili never issued a third party notice laying claim to the money.

(3) The most forceful argument advanced by Mr. Sanderson is that this court is functus officio in the circumstances of this case and can make no orders whatsoever. [ 10 ] Mr. Sanderson submitted two cases for the court's consideration. One is the Supreme Court of Canada case in Chandler v. Alberta Association of Architects . He relies on the general rule set out by the court in that decision under the heading, " Functus Officio. " This was in the majority judgment of Mr. Justice Dickson.

In that case, the majority noted that the general rule is that a final decision of a court cannot be reopened. [ 11 ] The basis for that proposition is that the power to rehear is transferred to the appellate division. The rule applies only after formal judgment has been drawn up, issued, and entered. Mr. Sanderson argued all of that has happened in this case. [ 12 ] Mr. Sanderson pointed out that the court in Chandler noted there were two exceptions; one, where there has been a slip in drawing up the judgment or order and two, where there was an error in expressing the manifest intention of the court.

He maintains that neither of those exceptions were alleged or proven in this application. Therefore, the Supreme Court of Canada's analysis should be

applied in this case. [ 13 ] Mr. Sanderson also relied on the case of Morriss v. Cuttler , 2013 BCSC 96 , reasons for judgment of Gropper J. that were issued on January 24, 2013, just a few days ago. At paragraph 23 of that decision, Gropper J. recited the general rule as being that the final decision of a court cannot be reopened after it has been drawn up, issued, and entered. [ 14 ] Mr. Sanderson, specifically drew my attention to the following statement: The rationale for this rule is the principle that litigation cannot proceed indefinitely.

It prevents the plaintiff from suing for the same wrong and similarly prevents defendants from raising objections to the final judgment. It is justified on the basis that the parties have a right to full appeal of the decision before an appellate court. [ 15 ] Madam Justice Gropper also refers to the two exceptions; one, where there has been a mistake in drawing up the order and, two, where there has been an error in expressing the manifest intention of the court. [ 16 ] At paragraph 26, Gropper J. notes that the functus officio rule and the exceptions: ... does not allow a judge to reverse an order ...

Nor does it permit a judge to change an order because of second thoughts or the parties merely seek to advance fresh details ... The case law confirms that changes made under this rule namely in situations where there are numerical mistakes, mistakes in the form of the order, or omissions. [ 17 ] Having set out the introduction, the nature of the application, and the parties' argument, I am now going to give my decision on the application. I am satisfied that Mr. Sanderson's submissions that I am functus officio is correct.

I have not only issued lengthy written reasons for my decision, there was also a trial order drawn up at the time I issued the decision which is signed by me. [ 18 ] I did state in the trial order that I remained seized in the event it was necessary to address any issues regarding the payment of the $13,388.42. Although I seized myself, I am still subject to the law. This is certainly not a case of a slip or a situation where the judgment misstates the manifest intention of the court. Accordingly, I conclude I am functus officio and, on that basis, must deny Mr. Soheili's application. [ 19 ] Mr.

Soheili, those are my reasons. I am going to just pass the whole file down. [RULING ON APPLICATION CONCLUDED]