Zhekova v. Alexandrov Date:, 2011 BCPC 100

Citation: Zhekova v. Alexandrov Date: 20110426 2011 BCPC 0100 File No: 1032965 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LILIYA EVGENIEVA ZHEKOVA CLAIMANT AND: TEODOR NEDELTCHEV ALEXANDROV DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP M. PRATCHETT Appearing on their own behalf: Liliya Zhekova Appearing on their own behalf: Teodor Alexandrov Place of Hearing: Vancouver , B.C. Date of Hearing: April 20, 2011 Date of Judgment: April 26, 2011 [ 1 ] The Claimant brings this action for payment of $1942.69 . The amount claimed in the Notice of Claim was $2217.97.

The Claimant acknowledged that the correct amount of the claim was $1942.69. [ 2 ] The basis of the claim is as follows: the Claimant alleges that in the period February 2002 to September 2002, while she was not resident in Canada, the Defendant, without the Claimant’s knowledge or consent, wrongfully took and converted the sum of $1926.00 to his own use. The amount alleged to have been converted was not the property of either the Claimant or the Defendant.

The amount was received by way of Government of Canada cheques payable to the Claimant for child tax benefits on the mistaken assumption that the Claimant and her child were resident in Canada at the time of the payment. As the cheques were payable to the Claimant, the Claimant has been required to repay the sum of $1926.00 to the Government of Canada. [ 3 ] Prior to September 2002, the Claimant and Defendant were married and had one child. In February 2002 the parties separated. The Claimant and their child returned to Bulgaria, leaving the Defendant residing and working in Canada.

Between February 2002 and September 2002 cheques from the Government of Canada were mailed addressed to the Claimant at the former marital residence in

Vancouver, British Columbia, where the Defendant then resided. Those cheques, payable to the Claimant, were received, opened and negotiated by the Defendant. [ 4 ] There is a question as to what the Defendant did with those cheques. The cheques were cashed. The Defendant says that he paid them into a bank account that was a joint account with the Plaintiff. The bank records are no longer available from the bank in question. The bank maintains copies for only 7 years. Copies of the bank statements were received by the Defendant but he states that he did not keep those statements.

Copies of the cheques, front and back, were obtained by the Claimant from the bank. The cheques show a signature on the back that somewhat resembles the Claimant’s signature. It is not the Claimant’s signature. The Defendant denies that he forged the Claimant’s signature on the cheques. That evidence is not objectively reasonable. The Defendant was the only person who had access to and handled the cheques at the time and he acknowledges negotiating the cheques. I find as a fact that the Defendant wrongfully caused a signature or endorsement to be placed on the back of the cheques in question.

That fact does not answer the question of what happened to the money. The Claimant says that the bank advised her that the forged endorsement would only have been necessary if the Defendant was obtaining cash for the cheques rather than depositing them into the joint account. This is hearsay. There is no evidence that would allow the Court to determine whether the cheques were cashed by the Defendant or paid into the account as he alleges. Being Government of Canada cheques they contain a place on the reverse for endorsement by the payee.

One might assume from the cheque itself that they are required to be endorsed upon negotiation, whether by deposit into an account or by cashing. [ 5 ] The Defendant alleges that he paid them into a joint account and the Claimant might have had access to that account from Bulgaria, so he argues there is no evidence that the Defendant misappropriated those money’s to his own use. I disagree. The Claimant testified that (

a) when she left there was a nominal amount of money in this joint account; (

b) as far as she knows and knew at the time, her bank card cannot be used in Bulgaria; (

c) she had her own bank accounts and (

d) she did not access the account. She had a viable business in Bulgaria and was supporting herself and her daughter. In that regard the Claimant submitted evidence of her having sent the Defendant money by way of a “MoneyGram” in August 2002 when he asked her for financial assistance. If in fact the joint account could have been accessed by way of the Claimant’s bank card, there would have been no need to send money to the Defendant by way of “MoneyGram”.

Further the Defendant testified that he used this account, his paycheque was deposited into this account and he received the monthly statements for the account. I find as fact that notwithstanding that the account was in joint names, the account was used by the Defendant exclusively for his own purposes. Whether he cashed the cheques or deposited them is irrelevant. He negotiated cheques payable to the Claimant for his own purposes and without the knowledge or consent of the Claimant. [ 6 ] The Claimant returned to Canada briefly at the end of October and into November 2002.

At that time the Defendant gave the Claimant a cheque received from the Government of Canada for child tax benefits dated October 2002. The Claimant deposited that cheque to her own account. Subsequently in 2007 the Claimant learned that this money was not payable to her and she repaid it, together with the other amounts paid from February to September 2002. The Claimant’s position, which I accept, is that she did not know that these payments had been sent to her for the period that she was not in Canada, February to September 2002. [ 7 ] The Claimant and her daughter returned to Canada in June 2007.

At that time she learned that the Government of Canada required repayment of the sums paid by the Government while she was out of the country in 2002. The Claimant started the process of finding out what sums were in question and what had happened to them. According to the Claimant this is the first she became aware of the fact that the cheques had been received and negotiated by the Defendant. I accept that evidence.

The Claimant repaid the amounts to the Government of Canada over time, with the final payment being made on May 20, 2008. [ 8 ] The Claimant looked at various avenues or options to recover the money from the Defendant, including asking the Defendant to repay the money. According to the Claimant, the Defendant advised her that he would repay the amounts taken but needed time and for that reason she did nothing for some period expecting that he would make payment to her. The Defendant denies that he agreed to repay the Claimant.

The Defendant states that the Claimant informed him in 2007 that she would sue him if he did not repay her and he told her she should pursue that course. I make no findings on this point of contention as I do not consider the point necessary to the determination of the issue. However were I to make a finding, I would favour the evidence of the Claimant. Her evidence was straightforward and consistent. [ 9 ] No statutory limitation period has expired in respect of this claim.

The Defendant argues that he has been prejudiced by the Claimant’s delay in pursuing her claim because the bank statements are no longer available. Although not articulated in legal principles, the Defendant appears to be arguing that equitable principles such as laches should be applied to prevent the Claimant from proceeding. In my view, these equitable principles should not apply on the facts to prevent the Claimant from pursuing her remedies. Both parties are prejudiced by the lack of bank records. However the Defendant had possession of the statements and he chose not to keep them.

Additionally by his own evidence, he was advised by the Claimant of her intention to pursue a claim against him at a time when the records would have been available had he taken steps to obtain them. His only explanation for not getting copies of the bank records at that time was that he was busy spending time with his daughter. This is not a reasonable excuse.

If in response to the Claimant’s question to him as to why he took the money, he wanted to show her that she herself had been the person who accessed the account and used the money as he now asserts, he could have obtained copies of the statements and given them to her. He made no effort to do so. Finally, for equitable principles to be applied as a defence, the Defendant must come to the Court with “clean hands”, meaning that the Defendant must not have done anything wrong in regards to the subject matter of the action.

These facts would not support an application by the Court of equitable principles. [ 10 ] The Claimant is entitled to be fully indemnified by the Defendant for the money she was required to repay to the Government of Canada. The Claimant is entitled to judgment against the Defendant in the amount of $1942.69 plus interest pursuant to the Court Order Interest Act RSBC c 79 from May 20, 2008 to date plus costs. __________________________ M. Pratchett

Adjudicator