Mousavi v. Darya Construction et al. Date:, 2013 BCPC 321

Citation: Mousavi v. Darya Construction et al. Date: 20131204 2013 BCPC 0321 File No: 12-23192 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SAM MOUSAVI CLAIMANT AND: DARYA CONSTRUCTION INC., MAJID MOJAHED, AZAM TOUSI DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Appearing in person: 12-23192 Place of Hearing: North Vancouver , B.C. Date of Judgment: October 30 and December 4, 2013 [ 1 ] THE COURT: On July 23rd, 2012, the claimant, Mr. Sam Mousavi, commenced this action against Darya Construction Inc. and Mr.

Majid Mojahed, seeking to recover unpaid wages from August 20th, 2011 until February 3rd, 2012 in the amount of $11,566.28 as well as overtime of some $585 and vacation pay of $616.40. [ 2 ] In his Notice of Claim he stated he was employed by Darya as a coordinator from August 3rd, 2011, to February 3rd, 2012, and

was to be paid at the rate of $20 an hour in August 2011, but at a salary of $2,600 a month starting in September 2011. He alleged he had received only three partial payments of the wages owed to him, one in August and two in September 2011, and nothing thereafter. There was no allegation that the claimant ever had a contract of any kind with the personal defendants, Mr. Mojahed or Azam Tousi. [ 3 ] On August 10th, 2012, the defendants filed a reply asserting that they owed no money to the claimant.

As well, they filed a counterclaim essentially seeking damages in conversion of $18,000 for items they alleged the claimant took from a gallery operated by the defendants in West Vancouver and, without their permission, failed to return. Implicit in this claim is that the claimant refuses to return the items.

Very importantly, the counterclaim as initially filed alleges that the claimant, without the defendants' permission, did not return some goods to his gallery including but not limited to the five items really in issue in this lawsuit. [ 4 ] No explanation has been given as to why on the first day of the trial this pleading was narrowed down to the five items only.

I ordered particulars of the counterclaim be provided by the defendants to the claimant on the first day of the trial because I found the counterclaim to be very unclear as to what it was the defendants asserted the claimant had taken, when, and under what circumstances and their efforts, if any, to regain possession of these items.

These particulars were provided and it became clear there were five items only in issue in the counterclaim. [ 5 ] On September 7th, 2012, the claimant filed his reply denying that he ever held any goods of the gallery. [ 6 ] The claimant's wage claim was pursued under our Employments Standards legislation and, on November 2nd, 2012, one Christina Ewasiuk, a delegate of the Director of Employment Standards, gave a written decision in favour of the claimant awarding him compensation for work he did in the months of August 2011 to January 2012 in the total amount of $9,019.38 which includes certain statutory holiday pay, $480, and is net of wages paid in the amount of $4,160. [ 7 ] The claim advanced by Mr.

Mousavi in this count seems to have been against Darya up to January 4th, 2012, but he filed a letter dated January 2nd, 2012, thereat, whereby Ms. Ewasiuk found, effective January 5th, 2012, the claimant's duties were reassigned to Treasure Gallery Inc. This, in my view, is not a finding that as at January 5 Mr. Mousavi's employment commenced with this company as employer and not Darya Construction. [ 8 ] Following this Employment Standards award, Mr.

Mousavi filed an amended Notice of Claim on October 17th, 2012, in essence deleting all earlier wage claims advanced against the defendants and leaving outstanding only the following claims: 1. a corporate search, $22.40; 2. severance pay, $600, October 16th, 2012; 3. expenses October 16th, 2012, $1,120.

This amount was particularized at trial by the claimant to include: (a) $120 for photocopying; and (b) $1,000 for car expense; 4. interest for unpaid wages: $2,535 at October 16th, 2012, for a total of $4,277.40. [ 9 ] I have advised the parties during the course of this trial that I will not reopen the above Employment Standards proceedings or go behind the decision made by Ms. Ewasiuk. I am fully satisfied, having read her written reasons, that the defendant, Mr. Mojahed, was given every fair opportunity to attend and take

part in these proceedings and simply elected not to do so. I am aware that his appeal from her decision was unsuccessful. I will therefore only deal with the above claims and the defendants' counterclaim in these reasons. [ 10 ] I turn now to the evidence offered by the parties and their witnesses. Mr.

Mousavi testified that he worked for Darya from August 31st, 2011, to February 3rd, 2012, and thereafter was ill, and on his doctor's advice took two months off work. [ 11 ] The evidence discloses he commenced working as a coordinator/consultant for Darya as early as August 5th, 2011, initially at $20 an hour, and as at September 1st, 2011 at a salary of $2,600 a month. Both employment contracts are in writing. Neither contain a term relevant to the above claims now being advanced by the claimant in his amended Notice of Claim. [ 12 ] On January 4th, 2012, Mr. Mojahed, on behalf of Darya, wrote to Mr.

Mousavi stating that beginning on January 5th, 2012: You are assigned to our sister company, Treasure Art Gallery, up to February 1st, 2012. [ 13 ] He was asked to report to the gallery manager as soon as possible. I do not find that this letter did anything more than tell Mr. Mousavi that his place of work had changed. It could not and did not have the effect of creating a new contract of employment with the company that ran the gallery. [ 14 ] Mr. Mousavi explained that he felt he was entitled to $600 severance pay or for two weeks.

By my calculation, two weeks' pay at the monthly rate of pay of $2,600 would be $1,200. He says his various contracts do not set out a term certain or a severance provision and are therefore contracts of indefinite hiring. I agree with this statement. He said he did not claim this severance pay when his case was proceeding before the Employment Standards Branch because they could only award unpaid wages. The claim for severance pay is, arguably, not a claim for wages. [ 15 ] Mr.

Mousavi agreed he had left Darya on February 3rd, 2012 due to ill health, but then testified that he felt Darya breached an implied term in his contract of employment that it would, if it dismissed him without cause, provide either notice or payment in lieu of

notice. He testified that, "In a way," Darya had dismissed him as the last time he spoke to Mr. Mojahed in late March 2012 he said to him that if he did not pay him he had no reason to work for free, to which Mr. Mojahed responded that it was up to him. [ 16 ] This brief conversation was said to have occurred in March 2012. In the result, the claimant said he then made a decision not to return to work with Darya and did not do so. [ 17 ] During his testimony, he referred the court to Exhibit 2, tab F, page 4, which is a

summary of the items included in his claim. This

summary advances all of the above claims save the severance pay as set out at $1,200, that is to say two weeks at $600 per week, whereas in the amended Notice of Claim, the amount is $600, and as well in the above

summary he has included a filing fee of $156 and a service fee of $110. [ 18 ] These last two items are only recoverable by Mr. Mousavi in the event he is successful in his lawsuit. The $120 amount apparently related to copies Mr. Mojahed wanted made of certain photographs he had taken of his apartment and, pursuant to this direction and oral authorization, Mr. Mousavi said he did what he was asked and had the copies made and paid for them. While tab 4 of Exhibit 2 contains various invoices, I am not able to see they total $120. [ 19 ] The $1,000 claim relates to an arbitrary car allowance Mr.

Mousavi feels he is entitled to at the rate of $200 a month for five months from September 2011 to and inclusive January 2012. He readily admitted he had no documents to support this claim and that there was nothing in his contract with Darya on point. He testified that initially Darya owned a van that he was supposed to use. This was sold in August. [ 20 ] In early September 2011, Mr. Mojahed proposed that if they needed a car for Darya that they could use Mr. Mousavi's and that Darya would pay some amount never agreed upon to cover gas, depreciation and insurance costs.

They had the same discussion in January 2012. [ 21 ] Mr. Mousavi suggested this proposal or discussion really amounts to an oral term and amendment or addition to his written contract of employment with Darya. He said he used his 2008 Toyota Corolla several times in the five months on Darya business, but not that much in January 2012. The several times, he explained, was one or two times each day on Darya business. The $200-a-month amount was, again, an arbitrary amount he had come up with. [ 22 ] As to the interest claim on unpaid wages, namely $2,535, Mr.

Mousavi said that he was not being paid regularly or indeed at all by Darya and in early January 2012 discussed with Mr. Mojahed receiving interest at the rate of 21 to 22 percent on his unpaid salary. This time, Mr. Mojahed was, in essence, putting Mr. Mousavi off, saying he was awaiting money to come from either St. Marrtens in the Caribbean or Iran and would pay him his outstanding wages on its arrival. [ 23 ] The interest was to start January 1st, 2012.

He said he used as the unpaid amount of wages $13,000 and started his calculation, as set out in the Notice of Claim, on the date he left work, namely February 3rd, 2012, and went to the date he filed his Notice of Claim, October 17th, 2012, using an interest rate of 21 percent. [ 24 ] Mr. Mousavi gave some direct evidence as to the counterclaim advanced by the defendants. He said he did not know what goods they were referring to. Importantly, he said he did not possess anything of the defendants' without their permission.

He said he had not wrongfully kept any property referred to on Exhibit 1, these being as per the particulars I ordered of the goods the defendants say they are referring to in their counterclaim, namely: 1. silver set of hand-carved antique mirrors, (1) and two sets of candelabras said to be valued at $10,000; and 2. two framed hand-woven silk carpets (picture rug) said to be valued at $8,000 in total. [ 25 ] He said he had never been asked to return these items and had refused to do so. [ 26 ] On cross-examination and consistently with his direct evidence, he said it was mutually agreed that if he used his car for work that he would get paid for it and that he had used it from September 1st to December 31st, 2011, twice a day including driving Mr.

Mojahed to court. He said his last salary or wage payment from Darya was on October 25th, 2011, for $997.66 and that, thereafter, Darya paid him nothing. [ 27 ] He said he worked at the Treasure Gallery from January 5th to February 3rd, 2012. His duties, which he said he performed, are referred to in his email, Exhibit 2, tab I, page 7. His full-time hours were typically 9:00 a.m. to 5:30 p.m. daily. [ 28 ] Mr. Mojahed testified he first met the claimant in 2010. Mr. Mousavi's wife was friendly with the defendant's then fiancée, one Flora. He employed the claimant in August 2011.

He then had a successful construction company on the island of St. Maartens and a carpet company in Vienna, Austria. Treasure Gallery Inc. was created in September 2011. [ 29 ] At the outset, Darya had no work. He had his own car. Mr. Mousavi did not drive him anywhere. He had a valid Austrian driver's licence he could use to drive with legally in the Province of British Columbia contrary to Mr. Mousavi's evidence to the effect he had no valid driver's licence. He agreed the claimant had driven him a few times, for example, to Main Street in Vancouver and home, but said he always had his own car.

It was not one of the claimant's job duties to drive him anywhere. [ 30 ] He paid all the office bills and never asked Mr. Mousavi to pay for something for him with a promise that he would reimburse him later. There were also no emergency expenses that arose that the claimant had to pay. [ 31 ] The art gallery was located in the same complex as Darya Construction in West Vancouver at 1475 Marine Drive. It was in the business of selling art and antiques. It had an opening night on December the 18th, 2011. [ 32 ] A Persian TV station videotaped the opening party in the gallery and posted the film on YouTube.

A friend of the defendant's

took three photographs of the YouTube images. These were initially marked as Exhibit A for Identification at the trial and thence became Exhibit 5. [ 33 ] The first photo shows a silver mirror and two candleholders which Mr. Mojahed said were valued at at least $10,000 Canadian. This evidence seems to have been based on advice from a person who was neither called to testify on values nor who had taken the time to prepare a written report on same for trial purposes. Mr. Mojahed said he had had these items appraised, but did not file the appraisals in evidence at trial.

These items are also shown in the second photo. [ 34 ] The third photo being part of Exhibit 5 shows a framed picture rug. The defendant testified that an Iranian rug maker had copied a very famous Iranian painting in this rug made of silk and wool. Mr. Mojahed said that he had purchased this rug (he did not say where) had it in St. Maartens, and brought it to West Vancouver. Likewise, he had purchased the silver mirror and two candlesticks in Iran in 1990 or 1991 and they, too, ended up in West Vancouver via his home in St.

Maartens. [ 35 ] He testified that he also owned a second carpet acquired in either Iran or Austria and between 1992 and 2008 brought it to West Vancouver in the same way. He could not find a photo of it, but said it was hanging on the side wall of the gallery on December 10th, 2011. [ 36 ] The space for the gallery was first leased in October 2011. It had first to be renovated before any items could be displayed therein. This took until December 2011. He said the public opening of the gallery occurred variously on December the 18th or 19th, 2011. Mr. Mousavi and his wife were present. [ 37 ] Mr.

Mousavi had a key to the gallery from October 1st onward. This was his only role for the gallery: possession of a key. Only when the renovations were done did he start to unpack items and place them in the gallery. Mr. Mousavi had no role in the renovations nor placing the items on display therein. The gallery had no surveillance system, but did have an alarm system and Mr. Mousavi had the code for it. [ 38 ] When asked what had occurred to the above two rugs, Mr. Mojahed said Mr. Mousavi had them. He testified that the two framed rugs had been in St.

Maartens and both were admired by his then fiancée, Flora, who lived with him there and who also came to Canada with him in mid-August 2011. He had intended to give her one in Canada as a wedding gift, but their relationship ended so he did not do so. [ 39 ] In January 2012 and because of poor sales, he elected to change his gallery to a café gallery. He then gave the $5,500 carpet (item 1 in paragraph 2 of Exhibit 1 and said to be shown in the third photo, being part of Exhibit 5) to Mr. Mousavi because he felt bad when he saw it. He told him to hold onto it.

When he wanted it back, he would ask him. [ 40 ] He did not ask him to give it to Flora, but in January 2012 was still hopeful he would mend his relationship with Flora and get back together with her, in which case he would then give her this rug as a wedding gift. He told Mr. Mousavi this was his plan. He did not actually hand this rug to Mr. Mousavi.

Rather, he pointed to it and said, "Take it to your place and hold onto it." [ 41 ] No one else was present when this direction was given by him to the claimant. [ 42 ] The second $2,500 rug also hanging in the gallery was mentioned this same January day as were the two candlesticks and silver mirror. The second rug was to be a present for Flora as well. This is contrary to his first direct evidence on point that only one of the two rugs was to be a wedding gift. He testified that he had given Flora the two candlesticks and silver mirror as an engagement gift in St. Maartens.

If they were married in Vancouver, they were to be present at the wedding ceremony, and afterwards Flora would own them as well. [ 43 ] On the same January day he asked Mr. Mousavi to keep these items for him in safekeeping in the event he got back together with Flora. Flora did not know of this plan whereby Mr. Mousavi was to be, in essence, a custodian of all items in Exhibit 1. [ 44 ] At the end of March 2012, Mr. Mojahed asked Mr. Mousavi to return all items. The request was made in the evening in his gallery when the two men were there alone.

There is no evidence to suggest that by this date he had reconciled with Flora and wanted to give her any of the five objects as a gift. According to Mr. Mojahed, Mr. Mousavi then said he was owed money and would not return these items until he was paid what he was owed. Mr. Mojahed testified that he told the claimant he owed him nothing. The two then parted. [ 45 ] Mr. Mousavi was not cross-examined on this evidence by Mr. Ghafarri, when he first took the stand at trial. Mr. Mojahed never saw Mr. Mousavi take the five items out of the gallery, nor had he been to Mr.

Mousavi's home to see if they were there, nor had a friend of his done so, nor has he apparently asked the police to investigate this matter. [ 46 ] He testified that he only believed the claimant had these items because: (

a) he told him to take them; and (

b) alleges Mr. Mousavi refused to return them until he was paid the money Darya Construction owed him. [ 47 ] When asked why he had not simply put the five items in storage, he said Flora was a good friend of Mr. Mousavi's wife, would go to their home to visit, see the items, associate them with Mr. Mojahed and feel good about Mr. Mojahed and want to reconsider their break-up, and in essence reconcile with him. He testified he had last spoken to Flora in August 2011.

She did not attend the gallery opening in December 2011. [ 48 ] From January to March 2012, he said he had a restraining order concerning Flora such that he could not call her or send a message directly or indirectly to her concerning the items. Clearly, she had by then alleged he had done something wrong to her in order for such an order to have been made in the first place.

[ 49 ] Flora was not called as a witness at trial. [ 50 ] He said there were no emails or correspondence concerning any of the five items said to be with Mr. Mousavi, for example, "Give them back or I'll call the police." [ 51 ] He denied he had had any discussion with Mr. Mousavi concerning the payment of interest on his wages or made any agreement with him concerning same. [ 52 ] He identified a photograph of himself and Flora taken by her daughter in St. Maartens showing the two candlesticks and silver mirror in issue in this lawsuit.

This was marked as Exhibit 7 at trial. [ 53 ] In cross-examination when shown his letter of January 4th, 2012 assigning Mr. Mousavi to the gallery (Exhibit 2, tab A, page 3) he said he had not issued the letter but had signed about 20 pieces of blank paper at Mr. Mousavi's suggestion. He also denied that he had issued the contract (Exhibit 2, tab A, page 2) which he said was a fraud. It was all filled out after he signed it in blank, the clear suggestion in his evidence being by Mr. Mousavi. He said he had reported it to the West Vancouver Police. He denied that as part of his job, he had instructed Mr.

Mousavi to look into whether Flora had stolen items from his home, but said he had no belief she had ever done so. When Mr. Mousavi left the gallery, I assume on February 3rd, 2012, the five items in issue were not there. [ 54 ] The defendant called his architect who had designed his gallery, one Mr. Shahidi, as a witness. He testified to seeing Mr. Mousavi in the gallery about 10 to 15 times after its opening and later including in January and February 2012. [ 55 ] Within one to three weeks of the gallery opening, he recalled a telephone discussion with the claimant wherein Mr.

Mousavi told him that he had got one famous old man rug from the defendant, Mr. Mojahed, as a gift. He said that Mr. Mojahed had given it to him to keep for him. Mr. Mojahed had independently told him the same thing. Mr. Shahidi had an interest in this rug, but Mr. Mojahed had said it was not for sale, it was for Flora. [ 56 ] Mr. Mojahed gave no such evidence, nor was Mr. Mousavi ever cross-examined on this admission said to have been made by him to Mr. Shahidi. [ 57 ] In cross-examination, Mr. Shahidi said Mr. Mousavi, in the above telephone call, mentioned no details of the framed rug, but said he assumed Mr.

Mojahed had given it to him as it represented some of the money Mr. Mojahed owed to Mr. Mousavi. Why, then, would Mr. Mousavi have said to Mr. Shahidi that he had got it to keep for Mr. Mojahed? This evidence makes no sense. I do not believe Mr. Shahidi and his evidence as to the above telephone call. [ 58 ] Mr. Mousavi testified in reply with respect to the five items in Exhibit 1. As I have stated earlier, because the defendants' counterclaim was so poorly drafted, I ordered that it be particularized on the first day of trial. I also allowed Mr.

Mousavi to respond to the defendants' evidence relevant to the counterclaim once he had heard it and could then understand what it was they were alleging against him therein. [ 59 ] Mr. Mousavi testified that most of the items that Mr. Mojahed had brought to Canada were placed in storage and not put in the gallery. I did not understand Mr. Mojahed to state he used the gallery, which did not really exist until December 2011 by his evidence, to store anything. Mr. Mousavi recalled a discussion once with Mr. Mojahed when he asked him why he did not insure the items on display in the gallery, to which Mr.

Mojahed responded that he had his very expensive and valuable items in storage. He, therefore, assumed the less valuable items were in the store or gallery. [ 60 ] I found a great deal of Mr. Mousavi's reply evidence was difficult to follow, for example, being based on photos and magazine covers he had obtained from others. One example relates to his evidence that when he worked with Mr.

Mojahed, one task assigned to him was to photograph and document all carpets in the gallery, on the walls or sitting on the floor. [ 61 ] He said he took a photo at the beginning of December 2011 (number 2 in his counterclaim brief) and that it was in his camera. It was not a photo of either rug in Exhibit 1, paragraph 2. He testified that this was the rug that Mr. Mojahed had earlier shown him and said he wanted to give to Flora, not that shown in Exhibit 5 at page 3. [ 62 ] He testified that on February 6, 2012 Mr. Shahidi came to the gallery and met with Mr. Mojahed and with him and then settled Mr.

Shahidi's outstanding architectural fee account of $9,000 for seven or eight rugs, one of which was the rug shown in photo number 2 of his counterclaim binder. None of this evidence was put to Mr. Shahidi or Mr. Mojahed in cross-examination by Mr. Mousavi. At most, it shows that a framed rug, not sought to be recovered in this action, went to Mr. Shahidi in part payment of his fees. [ 63 ] It really does not assist me in determining whether or not Mr. Mousavi has the items as particularized in the counterclaim and is refusing to return them. However, I repeat, Mr.

Mousavi did state in early December 2011 he took photos of all goods in the gallery and left them with Mr. Mojahed. None of these photos said to have been taken in this way were filed in evidence by Mr. Mojahed at the trial. Instead and oddly, he got Exhibit 5 from a friend through Facebook. The Law [ 64 ] This case, when all is said and done, comes down to the evidence of two men: the claimant and the defendant, Mr. Mojahed. I did not find the evidence of the other witnesses called by Mr. Mojahed or Darya Construction to be particularly helpful, and I have not dealt with all of it for this reason.

In the result, credibility of these two men is an important factor for me to consider and make findings on same. Who do I believe? Who has given the most reliable evidence? Can I believe either of them? [ 65 ] Some of the factors a court can consider in assessing the credibility of a witness are conveniently set out in a criminal case, namely, R. v. Parent , 2000 BCPC 11 , a judgment of Her Honour Judge Ann Rounthwaite. She said this, in part, in paragraphs 4 and 5 of her reasons:

[4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include: 1. the witness' ability to observe the events, record them in memory, recall and describe them accurately, 2. the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. its internal consistency. Does the witness' evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. the "sense" of the evidence.

When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. motives to lie or mislead the court: bias, prejudice, or advantage . . . 7. the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? . . . [66] As to point 5, the "sense" of the evidence of the witness, Judge Rounthwaite also used the expression often used by judgessynonymously being: Does the evidence have a ring of truth to it? [67] As well, our Court of Appeal, in a civil case called Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354, dealtwith the sense of a witness's evidence. Mr. Justice O'Halloran said this at page 4 of his reasons: The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [68] I found the claimant to be an honest witness. He appeared to be telling me the truth and openly admitted at times he simply didnot know things rather than trying to make them up. Most of the lengthy cross-examination of the claimant had, in my view, little effecton weakening his credibility.

The defendant seemed to want to re-litigate the matter of his unpaid wages over my clear direction that Iwould not re-examine the Employment Standards award made by Ms. Ewasiuk referred to above. Much time was wasted dealing withtime sheets, for example. [69] During the course of this cross-examination, the defendants elicited from the claimant that at Mr. Mojahed's direction, fromSeptember 12 to November 4, 2011, Mr.

Mousavi created two sets of timesheets, really against his own better judgment, one withaccurate dates and times found in the white binder (Exhibit 2 at trial), and a second set that contained false entries, found in the blackbinder (Exhibit 3 at trial). Mr. Mojahed told Mr. Mousavi the "phony" timesheets (Exhibit 3) were to go to the company accountant. Mr. Mousavi prepared them every Friday and gave them to Mr. Mojahed to sign. There is no evidence these timesheets were everultimately used for an unlawful purpose. Mr.

Mousavi admitted being so worried about what he did and what he was being asked to dothat he spoke to a lawyer friend or acquaintance to get some advice. Strangely, Mr. Mojahed gave no evidence at all as to this phony setof timesheets, notwithstanding that he heard what the claimant had to say on point before he testified. [70] I did not find Mr. Mousavi was shaken on cross-examination. There were no material inconsistencies in his direct evidence ascompared to the evidence he gave during cross-examination.

He appeared to give his evidence in a careful manner and appeared to makean effort to fully answer questions put to him. [71] I turn to Mr. Mojahed. [72] Early on in Mr. Ghaffari's cross-examination, I explained for all the rule of trial fairness often referred to as the rule in Brownev. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), and most recently discussed by our Court of Appeal in the case of R. v.Drydgen, [2011] B.C.J. No. 555.

I did so, explaining that if the defence was going to call evidence that on important matters would bedifferent from what the claimant had said, that the claimant should be given a chance to respond to it and in essence, it should be put to

him in cross-examination. If this was not done, it could affect the weight of the defendant's evidence on point. [ 73 ] The two defendants in this action, Mr. Mojahed and Darya Construction, are related. Mr. Mojahed owns Darya Construction. They are both taken to know at the outset of the trial what evidence each will give and what their own witnesses will say when they testify. As I have commented above, some important defence evidence was not put to the claimant in cross-examination. Far more importantly, some of the evidence Mr.

Mojahed gave simply did not make sense and certainly had no ring of truth to it, in my view. He was at pains to present himself at trial before me as a reasonably successful businessman with successful businesses in St. Maartens, having 25 employees, and one in Vienna, Austria; yet he said in his testimony that at Mr. Mousavi's request, he signed approximately 20 blank sheets of paper so that Mr. Mousavi could, in essence, "fill in the blanks", which he did as to the September 2011 contract and assignment document referred to above. This is not, in my view, the act of an experienced and successful businessman.

Rather, it is the evidence of a person potentially seeking to escape the legal consequences of the documents in issue. I do not believe it. [ 74 ] A second example is Mr. Mojahed's evidence that he gave the five items in issue in the counterclaim to Mr. Mousavi, (said to be worth $18,000 Canadian, a significant sum, in my view) for safekeeping because he was still hopeful he might reconcile with his former fiancé, one Flora, who was a friend of Mr.

Mousavi's wife and who might visit the Mousavi home, see the five items, think fondly of him on seeing the five items and want to reconcile with him. [ 75 ] I find this evidence to be, frankly, nonsense. I do not believe it. It is but a poor excuse to explain away the obvious, namely, that if he really wanted the five items in issue to be kept safely on the off-chance he might reconcile with Flora and want to gift them to her thereafter, that he would have put them in a safe storage place such as Henderson's, a firm he clearly knew about and had used before.

Not only did they have, according to him, significant monetary value but also superimposed a significant emotional value too. Why ever would he give them to Mr. Mousavi? There is no evidence Mr. Mousavi's home is particularly well-secured. Worse still, central to Mr. Mojahed's plan and implicit in it was that Mr. Mousavi would display these valuable items publicly so that on a visit, including a chance visit, Flora would see them and connect them in a warm and positive way to Mr. Mojahed. The plan, apparently, was not to store them safely out of sight. There is no evidence Mr.

Mojahed knew or believed Flora ever went to visit Mrs. Mousavi or at all. I do not believe this evidence either. [ 76 ] On balance, where the evidence of Mr. Mojahed differs from that of Mr. Mousavi, I find I prefer that given by Mr. Mousavi. I find Mr. Mousavi to be a credible witness. I do not find Mr. Mojahed to be a credible witness. Discussion [ 77 ] I will deal with the counterclaim first. In this action, both the claimant and defendant in its counterclaim must to be successful prove their respective cases on the balance of probabilities. If they do not, they fail.

The tort of conversion is defined as the wrongful taking, using, or destroying of goods or the exercise of dominion over them that is inconsistent with the title of the owner. It is the intentional exercise of control over a chattel which seriously interferes with the right of another to control it. The ingredients of this tort or legal wrong are as follows: 1. a wrongful act; 2. involving a chattel.

The word chattel in the English language means a thing or an item, sometimes called personal property; 3. consisting of handling, disposing, or destruction of the chattel; 4. with the intention or effect of denying or negating the title of another person to the chattel. (See The Law of Torts in Canada , 2nd Ed., by Fridman, page 135-6.) [ 78 ] Mr. Mousavi does not appear to seriously take issue with the fact that at least four of the five items were owned by Mr. Mojahed and were in West Vancouver in his gallery in the month of December 2011. Mr. Mojahed said there was a second framed rug there, but Mr.

Mousavi seemed unable to agree with this proposition, no photograph being presented showing it in evidence at trial. Mr. Mojahed has filed no document showing that he owned or purchased any of these items or even the value of same. He was not qualified at trial as an expert on the value of Persian antiques.

What a friend or acquaintance may have told him as to their value outside the four corners of the courtroom is, at best, called hearsay evidence which I, as the judge, cannot rely upon in this case. [ 79 ] Reference was made in the evidence to the existence of appraisals on some of the items in dispute, but none were filed at trial. I have only Mr. Mojahed's testimony as to their value. I need not make a finding of fact that Mr. Mojahed owned the five items in the counterclaim by reason of the decision I have come to.

In any event, I am not satisfied such a finding could be made based on the lack of documentary evidence relating to these five items said to be worth $18,000 Canadian and my above finding as to Mr. Mojahed's credibility or lack of same. If a wrongful act was committed here by Mr. Mousavi, it would have occurred in March 2012, if I were to believe Mr. Mojahed's evidence that he then requested the return of these goods from the claimant and the claimant refused, on the assumption, of course, that the claimant possessed the goods at all. Only then would Mr.

Mousavi be in possession of the items and acting, arguably, contrary to Mr. Mojahed's title in the chattels in question, assuming without finding that he owned them at all. [ 80 ] I am not able to find on the evidence in this case that Mr. Mousavi either took the five items into his possession at all or refused to return them when asked to do so by Mr. Mojahed, if indeed that event occurred. [ 81 ] In the result, factors one, three, and four referred to above in Fridman's text are not established on the balance of probabilities by the defendants on their counterclaim.

The counterclaim must fail for this reason alone. I do not believe Mr. Mojahed's story as to why he says he gave these items to Mr. Mousavi, nor do I believe his testimony not put to Mr. Mousavi's in cross-examination that when he asked for them back, Mr. Mousavi said he was owed money and essentially refused to return them until his outstanding wages were paid. The decision I have made on the counterclaim will not prevent Mr. Mojahed from, in future, pursuing any other avenues of lawful investigation that are open to him with respect to the unproven allegations in this case.

[82] I turn now to the claims advanced by Mr. Mousavi, other than costs. All of them, save one, are dismissed. In my view, theremedy sought by him at the Employment Standards Branch resulted in an award that made him whole following his relationship withMr. Mojahed save for severance pay. I will deal with this claim last. [83] As to his car expense claim, I am prepared to accept that he and Mr. Mojahed discussed some compensation for him in theevent his vehicle was used for business purposes, but I do not find any agreement was ever reached between Darya Construction and theclaimant on point.

The claim of $200 a month is purely arbitrary in amount and not really supported by evidence. Had Mr. Mousaviwanted to be paid a certain amount, for example, 50 cents per kilometre driven on business, he could and should have set out thisagreement in writing and submitted, in essence, an expense account to Darya Construction each week with his timesheets requesting Mr.Mojahed's approval and payment. This claim is really an afterthought, an after-the-fact effort, in my view, to seek reimbursement for anamount Mr. Mousavi feels morally entitled to.

It fails. [84] I am not persuaded that the $120 copying claim is properly made out or proven at trial. I had difficulty attempting to reconcilethe various receipts produced with the amount claimed by the claimant. I had difficulty understanding Mr. Mousavi's evidence as towhat this claim was all about. It too fails for want of proper proof at trial. [85] As to the interest on unpaid wages, in my view, the alleged oral agreement, the precise terms of which are uncertain at best, isnot a sufficient basis for me to make the award sought. Mr. Mousavi said that the interest rate discussed was 21 or 22 percent.

He didnot state there was any discussion as to whether the interest was simple or to be calculated on some type of compounded basis. He didnot state they discussed when it would be due or payable.

The terms, if they were discussed at all, in my view were never agreed to bythe parties; hence there can be no recovery on this claim. [86] Lastly, I turn to the claim for two weeks of severance pay advanced in the amended Notice of Claim in error at $600 but in factbeing one for $1,200, as per the above court exhibit. [87] Severance pay is only payable in the event the employer terminates the employment of the employee where there is no justcause permitting it to do so and where it has given no notice or payment in lieu thereof to the employee, sometimes called workingnotice.

There is a term generally implied by the common law into a contract of employment of indefinite duration, a requirement that ontermination without just cause, that the employer will give the employee reasonable notice of termination of the employment relationshipor pay in lieu of such notice. Such a term, if it exists, allows an employee an opportunity to look for new work and is said to be anecessary condition of the relationship between employer and employee: see The Law of Contracts by McCamus, page 743-4. [88] There is no dispute that Mr. Mousavi was an employee of Darya Construction. Mr.

Mojahed, at trial, suggested, as I understoodhis evidence, that his employment was probationary and of only three months' duration. I reject this view. If there was a probationaryterm of three months, it ended in November 2011, and thereafter, Mr. Mousavi was no longer on probation and continued working as anemployee. I find that there was the above referred to implied term in his contract of employment with the defendant Darya Construction. [89] The real issue that arises on this point, in my view, is did Mr. Mojahed terminate Mr. Mousavi's employment at some point, ordid Mr.

Mousavi, by his actions, really indicate that he was not wanting to work any further and essentially resign? His evidence wasthat he took off work on medical advice February 3, 2012, for some two months. He also told Mr. Mojahed the last time he spoke to himin the last week of March 2012 that he was not going to work for nothing. He said Mr. Mojahed agreed he could take the two monthsoff and in response to Mr. Mousavi's statement that he would not work for nothing said, "It was up to him." In the result, Mr.

Mousavimade a decision not to return to work with Darya Construction and I think did so on the understanding that had he returned to work forDarya, he would not be paid. I have not lost sight of the fact of his evidence that for some period of time prior to February 3, 2012, hewas not paid for considerable work that he did for Darya Construction and had to resort to a claim before the Employment StandardsBranch to prove that he was entitled to the pay he did not receive. [90] Mr. Mojahed did not really deal with these points in his evidence. [91] I find that Mr. Mousavi did not resign.

On the evidence in this case, his sick time was both necessary and consented to by hisemployer. In not agreeing to pay Mr. Mousavi if he returned to work, Mr. Mojahed caused Darya to breach the employment contract. Mr. Mousavi was entitled to treat his refusal to pay him if he returned to work as a repudiation of the employment contract and sue fordamages for breach of the implied term. [92] In my view, the proper amount of damages would be the two weeks' notice sought or the amount of $1,200.

I make this awardtaking into account all factors, including the character of the employment, the length of service of the servant, the age of the servant, andthe availability of similar employment having regard to the experience, training, and qualifications of the servant: see the case ofMachtinger v. HOJ Industries Ltd., (SCC), 1992 CarswellOnt 892 (S.C.C.). Where this reference uses the word"servant", it of course refers to the employee. [93] This award is made only against the defendant Darya Construction. All the claimant's claims against Mr. Mojahed personallyare dismissed. Mr.

Mojahed had no contract with the claimant and had, at all material times, used his limited company for suchpurposes. [94] Mr. Mousavi has been successful as to part of his claim. I find, pursuant to Rule 20(2), he is also therefore entitled to recoverhis corporate search fee of $22.40, his filing fee of $156, and any service fees he incurred in serving the defendant Darya only with hisNotice of Claim.

If he spent $110, he will recover this amount upon proof of such an expenditure. [95] He will have judgment only against the defendant Darya Construction for the total amount of $1,200, not inclusive of the aboveexpenses. This amount is payable by Darya 30 days from today unless, in the interim period before this date, Darya shall properly seek apayment order from this court. [96] In addition, this judgment will bear court-order interest at the legally mandated rates from April 1, 2012, to October 30, 2013.

April 1, 2012, is when severance pay ought to have been paid by Darya Construction to the claimant and was not.

[REASONS CONCLUDED]