Kabani Holdings Ltd. v. Oloresisimo, 2020 BCPC 90

Citation: Kabani Holdings Ltd. v. Oloresisimo 2020 BCPC 90 Date: 20200406 File No: 17405 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KABANI HOLDINGS LTD. CLAIMANT AND: PERLA OLORESISIMO, CIRIACO MENDOZA OLORESISIMO, and GREAT PACIFIC PAWNBROKERS LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.L. DOREY Appearing for the Claimant: N. Kabani Appearing for P. Oloresisimo and C.M. Oloresisimo: C.M. Oloresisimo Appearing for Great Pacific Pawnbrokers Ltd.: B. Stasiuk Place of Hearing: New Westminster , B.C. Dates of Hearing: September 19, 2019, November 20, 2019, January 9, 2020 Date of Judgment: April 6, 2020 Introduction

[ 1 ] This claim involves a dispute over the sale of a second hand 2006 Mazda 3 (the “Mazda”) that was bought from the Claimant with purchase financing in May, 2017. [ 2 ] In early August, 2017, the buyer’s husband used his wife’s Mazda as collateral for a short term loan from a pawnbroker two weeks before she surrendered the vehicle to the Claimant. The Claimant was unaware that a lien had been placed on the Mazda when it agreed to release the buyer from her obligations under the financing agreement. [ 3 ] The Claimant re-registered and insured the vehicle and then re-sold it to a third party.

In November, 2017, the pawnbroker seized the vehicle from the new purchaser after the buyer’s husband defaulted on the loan.

The Claimant paid out the loan owing to the pawnbroker in order to facilitate the return of the Mazda to the purchaser and then brought this claim. [ 4 ] The parties agreed, at a settlement conference held on November 27, 2018, to resolve the dispute by way of a $3,500 payment to the Claimant that was conditional on the funds being paid that same day. [ 5 ] There are two conflicting accounts of what happened during the course of the money exchange between the buyer’s husband and the Claimant’s general manager.

The Claimant alleges the husband “grabbed” the settlement money back from the general manager, after he signed and handed over the payment receipt. The husband claims he did no such thing. [ 6 ] The settlement was set aside by the settlement conference judge, and the claim was referred to trial on all issues. All parties are self-represented.

Facts [ 7 ] Kabani Holdings Ltd. (the “Claimant”) operates a new and used car dealership in New Westminster. [ 8 ] The personal defendants, Perla Oloresisimo and Ciriaco Oloresisimo, are a married couple who purchased the vehicle which is the subject of this Claim. [ 9 ] In May 2017, Mrs. Oloresisimo wanted to buy a newer second hand car. Mr. Oloresisimo helped her with this task. He went to the Claimant’s dealership, checked out the vehicles, and selected a used vehicle that he thought would be suitable for his wife to purchase.

He met with a salesperson, discussed and agreed upon a price, and advised the salesperson that his wife would buy the vehicle but required financing. [ 10 ] On May 26, 2017, Mr. and Mrs. Oloresisimo went to the dealership to complete the sale. Mrs. Oloresisimo purchased the Mazda for $9,000, plus taxes. She added a 12 month/12,000 km repair warranty with a third party warranty provider at a cost of $850.00. The total amount owing, inclusive of taxes and extended warranty, was $11,280.50. [ 11 ] Mrs.

Oloresisimo made a $5,000 cash down payment and financed the balance owing by way of a financing agreement with the Claimant, in which she promised to pay six equal instalments payments of $1,046.75. It was a term of Mrs.

Oloresisimo’s financing agreement with the Claimant that: The Borrower agrees that he/she will not, without first obtaining the dealer’s permission, sell, transfer title, or any interest in the motor vehicle or suffer or permit any charge, lien, or encumbrance, whether possessory or otherwise, to exist against the vehicle until all amounts owed by the Borrower /Purchaser to Kabani Holdings Ltd. by virtue of this agreement are fully paid. [ 12 ] On May 30, 2017, the Claimant placed a lien on the Mazda as security for the loan. [ 13 ] Three weeks later, Mr.

Oloresisimo bought himself a used Suzuki 7 van (the “Suzuki”) from the Claimant, on similar financing terms as his wife’s vehicle purchase, and also added a 12 month repair warranty. He made a $5,000 cash down payment and financed the balance owing by monthly instalment payments. [ 14 ] Mr. Oloresisimo claims that the Suzuki’s transmission failed within a few days of purchase. He complained to the dealership about the transmission and was told to make a warranty claim. [ 15 ] By mid-July, the Oloresisimos had cash flow problems and fell behind on their car payments. [ 16 ] Mr.

Oloresisimo wanted the Claimant to buy back the Suzuki. He went to the dealership and met with Naizer Kabani, co-owner and general manager of the dealership. Mr. Oloresisimo claims he confronted Mr. Kabani about his complaints about the Suzuki and wanted the dealership to buy both vehicles back. [ 17 ] Mr. Kabani, on the other hand, knew the Oloresisimo’s failed to make their payments on time and understood that was the reason they wanted the Claimant to buy back both vehicles. Although the Claimant was within its contractual rights to hold the Oloresisimo’s to their financing agreements, Mr.

Kabani decided to release them from their agreements and buy back the two vehicles. He did this as a good will gesture recognizing that the Oloresisimo’s had financial difficulties. [ 18 ] Mr. Kabani offered to refund them one-half of their down payment money on the two vehicles (i.e., $5,000), plus they would receive the unused portions of their vehicle warranties from the warranty provider. He told Mr. Oloresisimo that this was the best he could do, otherwise the dealership would be “out” money on the sales ( i.e., after paying commissions to the salesperson and other related transaction costs). Although Mr.

Oloresisimo was unhappy with the offer, he accepted it. [ 19 ] On August 17, Mr. and Mrs. Oloresisimo went to the dealership to surrender their vehicles. Each completed and signed various paperwork to transfer title of their vehicles back to the Claimant and they received $5,000, as agreed. [ 20 ] On August 18, the Claimant removed its lien on the Mazda. The Mazda was re-registered and insured in the name of the Claimant and returned to the dealership’s inventory. The Mazda was re-sold to another buyer on September 5, 2017.

[ 21 ] Unbeknownst to the Claimant, on August 3, 2017, another lien was registered on the Mazda. This lien was registered by the Defendant, Great Pacific Pawnbrokers Ltd. (“Great Pacific”), as the secured party with Mrs. Oloresisimo as the base debtor. [ 22 ] According to the loan documents in evidence, the Mazda secured a $5,000 car loan between Great Pacific and Mr. Oloresisimo. The loan was signed by Mr. Oloresisimo as the borrower, and it was to be repaid within 90 days. Mrs. Oloresisimo was not named as a party, and did not sign the loan agreement. [ 23 ] Neither Mr. Oloresisimo nor Mrs.

Oloresisimo informed Mr. Kabani when they met on August 17th to surrender their vehicles that the Mazda was pledged as collateral for a car loan to Great Pacific. [ 24 ] Mr. Oloresisimo’s $5,000 loan came due on November 3rd. He defaulted on the loan. Great Pacific retained Mundies Towing to act as bailiff to seize the Mazda. [ 25 ] A short time later, Mr. Kabani received a panicked telephone call from his customer advising that the Mazda had been seized by Mundies Towing. [ 26 ] Mr. Kabani conducted a PPSA lien search and discovered the lien registered by Great Pacific on the Mazda.

Thinking the registration was made in error, Mr. Kabani contacted Blair Stasiuk, owner/manager of Great Pacific, to demand that the lien be discharged and the vehicle released to his customer. Mr. Stasiuk refused. He told Mr. Kabani that he would not release the Mazda until the outstanding debt and towing bill were paid. [ 27 ] After some negotiations, Mr. Stasiuk agreed to accept payment of the principal amount of the loan ($5,000), plus the towing fees ($181.61) from the Claimant to release the vehicle. In the “interests” of his customer, Mr.

Kabani agreed to pay out these charges on his credit card to Great Pacific, and decided to pursue the Oloresisimos separately for repayment. Great Pacific then discharged its lien and authorized Mundies Towing to release the Mazda to the Claimant. Mr. Kabani then returned the Mazda to his customer. [ 28 ] Mr. Kabani made several attempt to reach Mrs. Oloresisimo by telephone to resolve the matter without success. He also went to the Oloresisimos’ home in person. He spoke to Mr. Oloresisimo and was told that Mr. Oloresisimo was not responsible for Mrs.

Oloresisimo’s “legal matters”. [ 29 ] On January 24, 2018, the Claim was commenced. [ 30 ] On November 27, 2018, the parties attended a settlement conference before Judge Steinberg where they each agreed that the Claim would be resolved, without an admission of liability, by way of all-inclusive payment of $3,500 to the Claimant. The settlement was conditional on the payment being made to Mr. Kabani that same day. [ 31 ] Following the settlement conference, Mr. Kabani went to Great Pacific and received a cheque for $2,000 from Mr. Stasiuk. He was informed by Mr. Stasiuk that Mr.

Oloresisimo would pay the balance of the settlement payment in cash and would attend the dealership that afternoon. [ 32 ] Late that afternoon, Mr. Oloresisimo went to the dealership. He met with Mr. Kabani in his office. The meeting was brief. He told Mr. Kabani he had $3,500 in cash. Mr. Kabani agreed to return the cheque to Mr. Stasiuk once he received the cash payment from Mr. Oloresisimo. [ 33 ] Mr. Oloresisimo removed a stack of bill notes from a white envelope he had been carrying and gave the money and the envelope to Mr. Kabani. Mr. Kabani took the money and the envelope from Mr. Oloresisimo.

After counting out the money, Mr. Kabani signed the receipt and handed it to Mr. Oloresisimo. [ 34 ] From there on, the account of events diverge between Mr. Kabani and Mr. Oloresisimo. [ 35 ] Mr. Kabani testified that after he signed and gave Mr. Oloresisimo the receipt, Mr. Oloresisimo “grabbed” the envelope with the money and the receipt off of his desk, and then quickly walked out of his office and exited the dealership. [ 36 ] Mr. Oloresisimo testified that he did not take the money, but rather Mr. Kabani gave him back the empty envelope after he finished counting the money and that Mr.

Oloresisimo left the premises carrying the empty envelope and the payment receipt. [ 37 ] Once Mr. Oloresisimo left the dealership, Mr. Kabani contacted the police to report the incident as a “theft”. After making the call to the police, Mr. Kabani attempted to cash Great Pacific’s $2,000 cheque for its share of the settlement payment, however, a stop payment was issued by Mr.

Stasiuk on the cheque. [ 38 ] On December 7, 2018, the Claimant brought an application to set aside the settlement. [ 39 ] On February 12, 2019, Judge Steinberg granted the application and made and order setting aside the settlement and adjourning the parties to the trial on all issues. [ 40 ] The Claimant seeks recovery of the full amount of the Claim of $5,497.61 (inclusive of filing fees and expenses) from the Defendants, jointly and severally. Position of the Parties [ 41 ] The Claimant’s claims are broadly framed in contract and in tort and are summarized as follows: a. Mrs.

Oloresisimo breached the financing agreement by permitting the Mazda to be used by her husband as security for his loan with Great Pacific without the knowledge and consent of the Claimant.

b. Neither Mr. Oloresisimo nor Great Pacific had any lawful authority to utilize the Mazda as security for the $5,000 loan and, inso doing, each committed the tort of conversion. c. Mr. Oloresisimo committed a further act of conversion by taking the $3,500 he was obligated to pay the Claimant, pursuant tothe settlement agreement. d. Since the payment conditions of the settlement were not met, the Claimant is entitled to recover the full value of the claim assought. [42] Mr. Oloresisimo’s position is that Mrs. Oloresisimo consented to having the Mazda pledged as security for his loan. Hecontends that Mr.

Kabani’s account of events of November 27, 2018, regarding the money exchange at the dealership, is false. [43] Great Pacific submits that it is entitled to rely on Mr. Oloresisimo’s declaration in the loan agreement that he had “soleownership” of the Mazda, and thus, it is not liable to the Claimant for this loss. [44] The Defendants contend that the Claimant was paid in full under the terms of the settlement agreement. [45] They submit the Claim should be dismissed. Alternatively, the Defendants submit that the Claim should be capped at $3,500 asagreed at the settlement conference.

Witness Credibility [46] Given the conflict in the accounts respecting the money exchange between Mr. Kabani and Mr. Oloresisimo, I make thefollowing comments about the importance witness credibility and reliability in my evaluation of the evidence. [47] The task of assessing witness credibility is a difficult one and involves the assessment of the trustworthiness of a witness’testimony based upon the examination of various factors, including his or her “… [o]pportunities for knowledge, powers of observation,judgment and memory”. All of these factors “... combine to produce what is called credibility”: Raymond v.

Bosanquet (Township),(1919), (SCC), 59 SCR 452, at p. 460. [48] The following passage in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, at p. 357 (B.C.C.A.), offersguidance on the importance of considering the probability of a witness’ account in the overall credibility assessment: The credibility of interested witnesses, 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.

Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth…. [49] A credible witness may or may not be a reliable witness. Credibility and reliability thus are different concepts – in thatcredibility involves the truthfulness of a witness and reliability involves the accuracy of the witness’ account. The distinction betweenthese concepts is succinctly summarized in R. v.

Khan, 2015 BCCA 320, at para. 44, where Chiasson JA, writing for the Court, states: Credibility and reliability are not the same. In R. v. Perrone, 2014 MBCA 74 at para. 26, appeal dismissed 2015 SCC 8, the Courtreferred to the description of the difference in R. v. H.C., 2009 ONCA 56 at para. 41. Credibility concerns the veracity of a witness;reliability involves the accuracy of the witness’s testimony. Accuracy engages consideration of the ability of the witness to observe,recall and recount. [50] I am guided by these principles in my assessment of the credibility and reliability of the witnesses in his case.

Witnesses [51] Three witnesses testified on behalf of the Claimant: Mr. Kabani, his wife and co-director, Mubina Kabani, and their 17 yearsales employee, Eduardo Guillen. Mrs. Kabani and Mr. Guillen testified that they saw Mr. Oloresisimo take the envelope of money fromMr. Kabani and corroborate Mr. Kabani’s account of the events in question. [52] Mr. Stasiuk testified on behalf of Great Pacific. He did not witness the money exchange at the dealership. [53] Mrs. Oloresisimo did not testify at trial. Mr. Oloresisimo explained his wife could not attend trial because she was sick.

Heproduced a doctor’s letter to excuse Mrs. Oloresisimo from attending trial for medical reasons when the second day of trial continued. [54] Mr. Oloresisimo testified on his own behalf and on behalf of his wife. The Claimant’s Evidence (

i) The Showroom Layout [55] The centre piece of the dealership is a modern showroom surrounded by glass windows. Customers enter into the showroomthrough the front entrance, which has a double set of glass doors that open directly into the main area of showroom. [56] There are two side-by-side interior business offices along the back wall at the end of and perpendicular to the front windows ofthe showroom. The office closest to the window is the general manager’s office, which is where Mr. Kabani meets with customers totransact business.

[ 57 ] Mubina Kabani’s office is beside Mr. Kabani’s office. Their offices are divided by a long internal sliding glass window which is kept open during business hours and was fully opened at the material time. [ 58 ] A still image of the two interior offices was entered in evidence by Mr. Kabani. This photograph was taken from the outside of interior offices looking in and shows the interior of the two side-by-side offices. The long interior glass window dividing the two offices is shown in the photograph in an open position. Mrs.

Kabani’s desk is also seen in this photograph and is set back in her office from where Mr. Kabani’s desk is situated in his office. (ii) Naizer Kabani [ 59 ] Mr. Kabani’s evidence in chief primarily focussed on the money exchange that took place in his office on November 27, 2018 and his review of the video surveillance footage and still images. [ 60 ] Mr. Kabani described the money exchange with Mr. Oloresisimo as follows: [ 61 ] After Mr. Oloresisimo entered his office, Mr. Kabani stood-up from his desk and remained standing with his back against the open interior window. Mr.

Oloresisimo stood across from him on the other side of his desk and was standing on an angle towards the open door. Mr. Oloresisimo stood approximately an arm’s length across from where Mr. Kabani stood behind the desk. Mr. Kabani described his desk as being a large wide desk that had a desk blotter in the centre. [ 62 ] Mr. Kabani saw Mr. Oloresisimo remove a stack of bills from the white envelope he carried with him and gave him the money. He asked Mr. Kabani to sign the receipt and return the $2,000 cheque to Great Pacific. [ 63 ] Mr.

Kabani did not recount what was said during their brief meeting in his evidence in chief, but he did agree in cross- examination that their exchange was heated, and that Mr. Oloresisimo was the aggressor. While under cross-examination, Mr. Kabani agreed there “was some commotion in his office” (in referring to their meeting). He also agreed that they, “exchanged words and it got loud and heated”. It was loud enough that it caused his employee, Mr. Guillen, to stand outside his office doorway in case there was “trouble”. [ 64 ] Mr. Kabani counted the bills in front of Mr.

Oloresisimo on the edge of the desk closest to him. He confirmed in cross- examination that the bills were $100 bills and that the money added up to $3,500. [ 65 ] Mr. Kabani put the bills back into the envelope after counting the money so it could be ready for deposit, and then placed the envelope on top of the desk blotter. He signed the receipt and handed it back to Mr. Oloresisimo. At that point, Mr. Oloresisimo “grabbed the envelope” and ran out of his office. Mr. Kabani stated that he briefly was in “shock” after this happened and became upset that he “got scammed again” by the Oloresisimos. [ 66 ] Mr.

Kabani was firm in his denial of Mr. Stasiuk’s suggestion in cross-examination that he put the money in the desk drawer and handed the empty envelope back to Mr. Oloresisimo, reiterating that Mr. Oloresisimo “grabbed” the money off of his desk. [ 67 ] He instructed Mr. Guillen not to pursue Mr. Oloresisimo and told him that he would instead call the police. In cross- examination, in response to Mr. Stasiuk’s questions, Mr. Kabani testified that did not want to get into a physical altercation with Mr.

Oloresisimo, stating the reason was because he was “not a violent person”, adding that he was “business man and not a thug”. [ 68 ] He agreed with Mr. Oloresisimo in cross-examination that Mr. Oloresisimo told him to “go ahead and do what you want to”, after telling him that he would call the police. Mr. Kabani, did just that and called the police. (iii) Eduardo Guillen [ 69 ] Mr. Guillen met with Mr. Oloresisimo and negotiated the sale terms for the Mazda. He was aware that Mr.

Oloresisimo was unwelcome at the dealership due to his rude behaviour and was quite surprised to see him enter the dealership on November 27th. [ 70 ] He was on duty in the showroom when he saw Mr. Oloresisimo enter the dealership carrying a white envelope in his hand and walk directly into Mr. Kabani’s office. Shortly after entering Mr. Kabani’s office, he heard Mr. Oloresisimo “yelling loudly” at Mr. Kabani and went to investigate. He entered Mrs. Kabani’s office to ask her if everything was okay in the next office.

He “hovered” near the doorway between the two offices to keep an eye on what was happening in case there was a problem. [ 71 ] Mr. Guillen estimates he was approximately 4½ feet in distance away from Mr. Kabani’s desk from the doorway where he was standing and that he had a clear view of what took place. He observed that Mr. Oloresisimo stood “sideways on an angle” across the desk from Mr. Kabani. He did not see Mr. Kabani count the money but saw Mr. Kabani put a stack of bills into a white envelope and place the envelope onto his desk in front of him. He then saw Mr.

Oloresisimo “grab” the envelope of money and a “piece of paper” that was also on the desk. Mr. Oloresisimo then exited Mr. Kabani’s office and the dealership walking “quite fast”. [ 72 ] Mr. Guillen was tested in cross-examination by Mr. Stasiuk and Mr. Oloresisimo on his observations and was steadfast in his testimony that he saw Mr. Oloresisimo remove the white envelope containing money off of the desk and then exit the premises. (iv) Mubina Kabani [ 73 ] Mrs.

Kabani manages the business records in the daily operations of the dealership, including the vehicle sale records, financing agreements, the monthly instalment payments, bank deposits, and accounts payables. She was working in her office on November 27th and recalled seeing Mr. Oloresisimo enter the dealership and walk straight into Mr. Kabani’s office. [ 74 ] From where she was sitting, Mrs. Kabani testified that she could see both men standing in Mr. Kabani’s office. Mr. Kabani stood behind his desk and Mr. Oloresisimo stood across from his desk on the other side. She watched Mr. Oloresisimo hand her husband

a bundle of cash. She saw Mr. Kabani count out the cash and then sign a sheet of paper which he handed back to Mr. Oloresisimo. [ 75 ] Normally, she would help Mr. Kabani count cash when larger sums are tendered by a customer but in this instance, she testified that she was not called to assist Mr. Kabani. She watched Mr. Kabani count out the money and could see one hundred dollar bills and fifty dollar bills. In cross-examination, in response to Mr.

Oloresisimo’s questions, she agreed the bills were all in one hundred dollar denominations. [ 76 ] She recalled, in her evidence in chief, hearing a loud verbal exchange between Mr. Kabani and Mr. Oloresisimo, but did not recount what was said between the pair. She remembered their employee, Mr. Guillen, came into her office in response to the loud “commotion” to see if she needed assistance. She asked him to “stick around”. [ 77 ] She testified that she saw Mr. Oloresisimo “pick-up the money and the receipt” and then leave Mr. Kabani’s office. [ 78 ] Both defendants sought to test Mrs.

Kabani on her observations of what she saw. Both contended that Mrs. Kabani could not see Mr. Oloresisimo take the envelope given the distance between her desk and Mr. Kabani’s desk. Mrs. Kabani disagreed. [ 79 ] During Mr. Stasiuk’s cross-examination, Mrs. Kabani re-confirmed that she saw Mr. Oloresisimo exiting Mr. Kabani’s office carrying the envelope in his right hand together with the piece of paper that Mr. Kabani signed. She then later changed her answer to state that Mr. Oloresisimo was carrying the envelope and piece of paper in his left hand. [ 80 ] In answer to Mr. Oloresisimo’s questions, Mrs.

Kabani remained firm in her testimony that given the position and location of her desk, she has a clear view of what transpires in Mr. Kabani’s office with customers when she is sitting behind her desk working and that she saw what happened between Mr. Kabani and Mr. Oloresisimo. [ 81 ] In short, Mrs. Kabani was unshaken in her testimony during cross-examination. Despite the minor inconsistencies in her evidence, Mrs. Kabani remained firm in her testimony that she saw Mr. Kabani count out the money and place it back in the envelope, and that she then saw Mr.

Oloresisimo grab the money off of the desk and leave the office. The Defendants’ Witnesses (

i) William Blair Stasiuk [ 82 ] Mr. Stasiuk owns and operates Great Pacific, a pawnbroker, located in New Westminster. Between July and August 2018, Mr. Oloresisimo borrowed money from Great Pacific and entered into four short term loans, including the $5,000 car loan which was secured by the Mazda. [ 83 ] Mr. Stasiuk described in his testimony Great Pacific’s customary lending practices for borrowers such as Mr. Oloresisimo looking for short term financing. A customer seeking a loan will pledge a chattel, often jewellery, or vehicles. Mr.

Stasiuk would make an assessment of the value of the chattel to determine whether there is sufficient value to cover the loan in the event the loan is not repaid. If the chattel is a vehicle, Great Pacific’s practice is to conduct a PPSA lien and vehicle search to confirm ownership before entering into a loan agreement and advancing funds to a borrower. [ 84 ] In Mr. Oloresisimo’s case, Mr. Stasiuk testified that he was “certain” that he would have checked the registration on the four vehicles that Mr. Oloresisimo used as collateral for the loans to ensure that he owned them. [ 85 ] Mr.

Stasiuk acknowledged that he had some concerns that the Mazda had a lien registered against it (and thus was aware the lien was registered to the Claimant) but was satisfied from his discussion with Mr. Oloresisimo, and from his own due diligence, that there was “equity” in the vehicle due to amount of the down payment money paid at the time of purchase. [ 86 ] In cross-examination by Mr. Oloresisimo, Mr. Stasiuk confirmed that he was aware his wife was sick and could not come to the premises in person. He agreed that Mrs. Oloresisimo authorized Mr.

Oloresisimo to take out the loan on her vehicle after having spoken to Mrs. Oloresisimo on the telephone. He also stated he could not remember the reason why Mr. Oloresisimo explained he needed the loan. [ 87 ] Mr. Stasiuk further testified that Mr. Oloresisimo returned to Great Pacific shortly after the car loan became due to inform Mr. Stasiuk that he was “annoyed” with Mr. Kabani, that he would not pay back the loan, and told him that Great Pacific could seize the Mazda. Mr. Stasiuk then engaged Mundies Towing to seize the vehicle. [ 88 ] In cross-examination by Mr. Kabani, Mr. Stasiuk confirmed that Mr.

Oloresisimo repaid his other short term loans owing to Great Pacific but not the $5,000 loan. (ii) Ciriaco Oloresisimo [ 89 ] Mr. Oloresisimo helped facilitate his wife’s purchase of the Mazda. He wrote the cheques for the instalment payments and he had all of the dealings with Mr. Kabani. [ 90 ] Mr. Oloresisimo bought the Suzuki three weeks after the Mazda was purchased. He paid half of the total amount owing in cash and financed the balance. He gave Mr. Kabani a series of post-dated cheques for the instalment payments on both vehicles and he made two payments on the Mazda.

He testified that he needed to wait for money in his chequing account to clear before he could make the next payments on both vehicles, thus acknowledging the fact that he had cash flow problems. [ 91 ] Mr. Oloresisimo testified that he spoke to someone at the dealership by telephone around the time the July payment was due to ask that they defer cashing his cheques until his money cleared in his account and was told that they would be in contact with Mr. Kabani about the request. He went to the dealership the next day to speak to Mr. Kabani in person about their payments and was

informed that Mr. Kabani was out of town on vacation. He learned that no one had spoken to him, and that his instalment cheques had been deposited and returned due to insufficient funds in his chequing account. This made him upset. [ 92 ] Mr. Oloresisimo’s main complaint with the Claimant, however, was in relation to the condition of Suzuki. He testified that it began to leak oil shortly after he bought it. He made a warranty claim and was told by the warranty provider to take it to an accredited mechanic for evaluation and repair.

He was told by a mechanic that the transmission needed replacement and to return the vehicle to the dealer. He also understood from this mechanic that the transmission parts were not sold in North America for this model of vehicle and could not perform the repairs. [ 93 ] Mr. Oloresisimo then telephoned Mr. Kabani. He wanted the dealership to buy back the Suzuki. Mr. Oloresisimo remained upset with Mr. Kabani following their discussion. He felt Mr. Kabani should do more for him as a customer to help him out with his warranty claim. He became even more upset at Mr.

Kabani when he looked into what his model and year of Suzuki would sell for privately in the marketplace. He felt that the dealership not only sold him a “lemon”, but overcharged him in light of his inquiries. (Mr. Oloresisimo did not elaborate on what led him to conclude he had been overcharged in his testimony.) [ 94 ] Mr. Oloresisimo met with Mr. Kabani at the dealership. He wanted the dealership to buy back both vehicles and return their down payment money to them because of the repair issue and because he felt they had overpaid. Mr.

Kabani gave him the option to buy back both vehicles but would not agree to return their full down payment money. Instead, Mr. Kabani told him the dealership “lost money” on both sales. For this reason, he was told the dealership would only give them back half of their down payment money, provided that Mr. Oloresisimo had the transmission repaired. [ 95 ] Mr. Oloresisimo decided to accept Mr. Kabani’s offer. He knew he needed to repair the transmission first before Mr. Kabani would take back both vehicles.

He needed to borrow money to repair the transmission and went to Great Pacific to borrow more money. [ 96 ] Although Mr. Oloresisimo testified that he had the Suzuki repaired using the loan proceeds from Great Pacific, he did not explain why his warranty claim was not pursued or approved. He did not produce any documents to support the fact that a warranty claim was even made. He did not produce an invoice for the transmission repairs.

He did not state what he spent on these repairs, or how these repairs were made by mid-August when he surrendered the Suzuki since the parts were no longer available, as he had testified. [ 97 ] I do not find Mr. Oloresisimo’s reason for borrowing the money from Great Pacific to pay for the repairs to be credible. He bought a repair warranty for this purpose and it is apparent from his testimony that made little effort to pursue the warranty claim.

It is clear from his evidence that he had cash flow problems and was having difficulty making the car payments on time. [ 98 ] Regardless of his stated reasons for borrowing money, Mr. Oloresisimo borrowed $5,000 from Great Pacific on August 3, 2017 using the Mazda as collateral. Mr. Oloresisimo also had other loans with Great Pacific that were secured by three other vehicles he owned. Mr. Oloresisimo did not mention these loans in his evidence in chief. They were disclosed in the loan documents produced by Great Pacific and were raised by Mr. Stasiuk in his testimony. [ 99 ] Mr.

Oloresisimo was questioned on his other loans from Great Pacific during Mr. Kabani’s cross-examination. Mr. Oloresisimo acknowledged that he owned several vehicles, sixteen in fact. He admitted he took out loans on three vehicles he owned from Mr. Stasiuk, and that he had borrowed money from Great Pacific in the past. [ 100 ] When questioned about the $5,000 loan on the Mazda, Mr. Oloresisimo testified that Mrs. Oloresisimo gave him permission to use the Mazda as collateral for the loan. He explained that his wife was sick and could not attend at Great Pacific in person, and that Mr.

Stasiuk spoke to his wife by telephone and received her authorization for the loan. [ 101 ] Mr. Oloresisimo was asked during Mr. Stasiuk’s cross-examination, why he told Mr. Stasiuk to have the Mazda seized by a bailiff, and he replied the reason was because Mr. Stasiuk “was pressuring” him to pay the loan which was due and felt this was his “only option”. [ 102 ] Mr. Oloresisimo’s account of the money exchange with Mr. Kabani is as follows: [ 103 ] Late that afternoon, Mr. Oloresisimo drove to the dealership and parked his car in the lot. He entered the dealership and walked into Mr.

Kabani’s office carrying a white envelope and the payment receipt. He could see Mrs. Kabani in the adjacent office from where he stood across from Mr. Kabani’s desk. Mr. Kabani sat at his desk. [ 104 ] He testified that after Mr. Kabani counted out the money, he put the money into a drawer in the middle of the desk, signed the payment receipt, and asked him if he wanted his envelope back. Mr. Oloresisimo took the empty envelope together with the signed receipt from Mr. Kabani and left his office. [ 105 ] Mr. Oloresisimo asked if Mr.

Kabani would give him back some of the settlement money to compensate him for the Suzuki warranty premium refund which he had not yet received and that Mr. Kabani refused. This made him angry and led to the “commotion” that was overheard by Mrs. Kabani and Mr. Guillen. [ 106 ] Mr. Oloresisimo testified that he walked out of the dealership at a leisurely pace (pointing to the video surveillance to corroborate this aspect of his testimony) and that no one called out to or came after him as he was leaving. He then exited the showroom, entered the drivers’ seat of his car, waited briefly and then drove off.

He testified that his wife was in the car waiting for him. [ 107 ] Mr. Oloresisimo did not confront Mr. Kabani during cross-examination about most of the statements he attributed to Mr. Kabani during his evidence in chief, contrary to the rule in Browne v. Dunne (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.). I did allow Mr. Oloresisimo to continue his testimony and advised the parties that Mr. Kabani would be given the opportunity to re-open the Claimant’s case to call evidence in response to many aspects of Mr.

Oloresisimo’s testimony that were not put to him during cross-examination that he might wish to address. Following the conclusion of Mr. Oloresisimo’s testimony, Mr. Kabani decided against calling further evidence, wishing instead to proceed to closing arguments.

Video Surveillance [ 108 ] Surveillance cameras placed throughout the car lot, the showroom, and the front and back entrances of the dealership. [ 109 ] Mr. Kabani testified that he downloaded and emailed to the police the surveillance footage of Mr. Oloresisimo’s November 27 th attendance at the dealership. During the police investigation, a technician came to the dealership to download the video images directly from the camera equipment’s computer hard drive. Mr. Kabani saved these images onto his smart phone before the images were recorded over on the hard drive. [ 110 ] In his evidence in chief, Mr.

Kabani showed the five video clips from the surveillance cameras, showing three different camera angles inside the showroom that he transferred from his smart phone onto a USB stick. He identified the still images and surveillance footage in his testimony. [ 111 ] The focus of much of Mr. Kabani’s cross-examination centred on the accuracy of the video footage. It is the defence theory that Mr. Kabani tampered with the images and that there was missing footage favourable to Mr. Oloresisimo that Mr. Kabani intentionally deleted. Mr. Kabani denied that he tampered with the surveillance footage.

He explained that he downloaded the raw images from his surveillance cameras and disclosed only the footage that he thought was pertinent for the police investigation and for his civil claim. [ 112 ] The video surveillance clips are time stamped and dated. What is shown on the video clips aligns with the sequence of events described by each of the witnesses in their testimony, including Mr. Oloresisimo. On a careful review of the surveillance footage, I am satisfied that the video clips accurately depict what is shown on the date and times recorded. Accordingly, I accept Mr.

Kabani’s testimony as accurate and truthful with regard to the steps he had taken to compile and preserve this video footage and I reject the Defendants’ contention that Mr. Kabani tampered with the footage. [ 113 ] Turning now to the video surveillance footage, it shows Mr. Oloresisimo and Mr. Guillen captured on four video clips. Two video clips are duplicates of Mr. Oloresisimo entering the dealership. The other two video clips are also duplicate video clips showing Mr. Oloresisimo exiting the dealership.

The fifth video clip shows another sales person and a customer in the centre of the showroom, and is unrelated to the events in question. [ 114 ] On the first and second video clips, Mr. Oloresisimo is seen arriving at the dealership in a white sedan at 4:20:00 p.m. He enters the showroom through a double set of glass doors. Mr. Oloresisimo is seen carrying a white envelope and a letter sized piece of paper in his left hand. His gait is slow as he walks across the showroom heading towards Mr. Kabani’s office and then disappears off screen at 4:20:26 p.m. [ 115 ] In these same video clips, Mr.

Guillen is seen at 4:21:22 p.m. walking towards and then stopping outside of the doorway of two interior offices. At 4:21:34 p.m., he enters the office on his left side (Mrs. Kabani’s office), and then exits Mrs. Kabani’s office at 4:21:44 p.m. to stand outside between the two offices, and is seen looking into Mr. Kabani’s office when the camera footage ends at 4:22:00 p.m. [ 116 ] The third and fourth video clips start at 4:22:01 p.m. with Mr. Oloresisimo standing in front of two large exterior glass doors at the front centre of the showroom windows trying to open them.

He then heads over toward the main exit doors. He is shown carrying a white envelope and a sheet of paper in his left hand. He then exits through the doors at 4:22:09 p.m. and walks toward the driver’s side of the white sedan and gets into the car. The car remains stationary. [ 117 ] It is significant that Mr. Oloresisimo is shown in the third and fourth video clips walking toward the exit door at a much faster pace in comparison to the slower speed of his gait when he entered the dealership and walked towards Mr. Kabani’s office. [ 118 ] Mr.

Guillen then comes on camera in the foreground of the screen at 4:22:06 p.m., exiting an office. Mr. Guillen starts to make a movement in the direction of the exit door but then hesitates, and then re-enters one of the offices at 4:22:19 p.m. This footage is consistent with Mr. Kabani’s testimony that he instructed Mr. Guillen not to pursue Mr. Oloresisimo to avoid a physical confrontation. The camera footage the ends at 4:22:31 p.m. Discussion [ 119 ] In civil actions, the burden of proof is “proof on a balance of probabilities”. What does “proof on a balance of probabilities” mean?

It does not mean proof beyond a reasonable doubt—that standard of proof applies only in criminal trials. In civil trials, the party who has the burden of proof must convince me as the trial judge that what he or she asserts is more probable than not, in other words, that the balance is tipped in his or her favour. [ 120 ] Simply put, the balance of probabilities means that the only “practical way in which to reach a factual conclusion” is to decide whether it is more likely than not that the event occurred on “sufficiently clear, convincing, and cogent evidence”: H. (F.) v.

McDougall , 2008 SCC 53 , at paras. 44 , 45, and 46. [ 121 ] I will now address the following questions: Did the Defendants’ Commit the Tort of Conversion? [ 122 ] Conversion is an intentional tort that involves the wrongful interference with the goods and chattels of another and the protection of owner’s the proprietary interests in the same. The elements of the tort of conversion are as follows: (

i) A wrongful act; (ii) Involving a chattel;

(iii) Consisting of handling, disposing or destruction of the chattel; (iv) With the intention or effect of denying or negating the title of another person to such chattel. G.H.L. Fridman, the Law of Torts in Canada, 2nd ed. (Toronto: Carswell, at p. 136) [123] What constitutes a wrongful or intentional act is discussed by Sutherland J. in CIT Financial Ltd. v. 1153461, [2004] O.J. 3308,at para. 56., in the following terms: 56. Conversion is an intentional tort.

That does not mean that the perpetrator intended to commit the tort; it means that the perpetratorintended to do the physical act or to authorize the transaction that the court later found amounted to a conversion. In BomaManufacturing Ltd. v. Canadian Imperial Bank of Commerce (1996), (SCC), 140 D.L.R. (4th) 463 (S.C.C.) atparagraph 31, the following appears: 31 The tort of conversion involves a wrongful interference with the goods of another, such as taking, using or destroying these goods in amanner inconsistent with the owner's right of possession.

The tort is one of strict liability, and accordingly, it is no defence that thewrongful act was committed in all innocence. Diplock L.J. asserted this principle in Marfani & Co. Ltd. v. Midland Bank Ltd., [1968] 2 All E.R. 573 (C.A.), at pp. 577-78: ... the moral concept of fault in the sense of either knowledge by the doer of

an act that is likely to cause injury, loss or damage toanother, or lack of reasonable care to avoid causing injury, loss or damage to another, plays no part. [124] In applying these principles to the evidence, Mr. Oloresisimo knew that his wife was the registered owner of the Mazda and thatthe Claimant had a lien registered on this vehicle. He knew that because he helped facilitate the purchase and made the financingarrangements with the Claimant. [125] Mr. Oloresisimo testified under oath that his wife was sick and could not meet with Mr. Stasiuk to sign the loan documents.

Hesigned the agreement instead as the borrower. He did not explain why her illness prevented her from attending when she was able tomeet with Mr. Kabani in person on two separate occasions at the dealership to sign paperwork to purchase and surrender the Mazda. Ithus do not find Mr. Oloresisimo’s explanation why his wife did not sign the loan agreement credible. [126] Mr. Stasiuk was “certain” that Mr. Oloresisimo was the Mazda’s registered owner from his inquires and relies on the followingstatement found in the paragraph 6 of the loan agreement to support his contention.

It provides: I declare sole ownership of above pledged items and agree to the above mentioned terms. [127] Mr. Stasiuk would have known from the vehicle registration and PPSA search that Mr. Oloresisimo did not own the Mazda. Heacknowledged in his testimony that he knew there was a lien registered to the Claimant, and thus, would have reviewed these records toconclude this fact. [128] Mr. Stasiuk never asked to see the financing agreement, nor did Mr. Oloresisimo mention in his testimony that he brought thisagreement to Mr. Stasiuk’s attention when he arranged the loan. Mr.

Stasiuk approved the loan on the strength of his inquiries and wassatisfied there was sufficient equity in the vehicle to cover the loan notwithstanding the Claimant’s lien. [129] Mrs. Oloresisimo did not testify at trial. Instead, Mr. Oloresisimo gave evidence on her behalf and testified that she consented tothe loan and agreed to allow the Mazda to be used as collateral for the loan. Mr. Stasiuk testified under oath that Mr. Stasiuk spoke toMrs. Oloresisimo on the telephone about the loan. Mr. Stasiuk testified during Mr.

Oloresisimo’s cross-examination that Mrs.Oloresisimo consented to loan. [130] Both witness proffer Mrs. Oloresisimo’s out-of-court statements as proof that she consented to the loan. This evidence ishearsay. In order for these statements to be admissible in accordance with the principles set out in R. v. Khan, (SCC),[1990] 2 SCR 531, I must be satisfied that the evidence is reasonably necessary and reliable. [131] On the issue of necessity, a doctor’s note was tendered to excuse Mrs. Oloresisimo from attending due to “sickness”.

Mrs.Oloresisimo did not provide an affidavit attesting to her account in relation to the loan, and Mr. Oloresisimo did not explain why one wasnot provided. However, I do accept that Mrs. Oloresisimo had an illness that excused her from attending trial and I will accept that thenecessity requirement is met. [132] In terms of the reliability of those statements, there is nothing in evidence to document the fact that Mr. Stasiuk discussed theloan with Mrs. Oloresisimo. Neither Mr. Stasiuk nor Mr. Oloresismo described in their testimony what was discussed with Mrs.Oloresisimo about the loan, that Mrs.

Oloresisimo understood that the Mazda would be used as collateral, and that she understood theimplications if the loan was not repaid before she consented to the loan (i.e., that her vehicle would be seized by the lender). Withoutthese assurances, Mrs. Oloresisimo’s out of court statements are not trustworthy and hence are unreliable. [133] On a plain reading of the loan agreement, Mrs. Oloresisimo was not a co-borrower and I find as a fact that Mr. Oloresisimo wasthe sole borrower. I further find that Mr. Oloresisimo handled all aspects of this loan without the knowledge or consent of Mrs.Oloresisimo.

I thus reject Mr. Oloresisimo’s testimony that his wife allowed the Mazda to be used as collateral for the loan. It is clearlyhearsay and his explanation is not credible. [134] Accordingly, I disbelieve both Mr. Oloresisimo’s and Mr. Stasiuk’s testimony and find as a fact that there was no telephone callbetween Mr. Stasiuk and Mrs. Oloresisimo to discuss the loan. [135] Mr. Stasiuk was well aware that Mr. Oloresisimo was not the registered owner of the Mazda. Notwithstanding this knowledge,

he caused Great Pacific to register a lien on a vehicle that Mr. Oloresisimo did not own. Mr. Stasiuk knowingly did so without the consent of the registered owner, Mrs. Oloresisimo. [ 136 ] Mr. Oloresisimo failed to disclose the lien to Mr. Kabani when he and Mrs. Oloresisimo met at the dealership on August 17, 2017 to surrender Mazda and the Suzuki. [ 137 ] I further find that Mr. Oloresisimo had no intention of repaying the $5,000 loan to Great Pacific when it came due. The fact that Mr. Oloresisimo repaid his other three loans to Great Pacific reinforces my conclusion. [ 138 ] In sum, I find that Mr.

Oloresisimo and Great Pacific committed the wrongful acts of obtaining and extending a $5,000 loan using a chattel as collateral for the loan that Mr. Oloresisimo did not own. In so doing, these defendants knowingly interfered with the Claimant’s right and interest in the Mazda in placing the lien on the Mazda, in failing to pay out the loan, and in causing the bailiff to seize the Mazda from the Claimant’s customer. Accordingly, the Claimant has proven on a balance of probabilities that Mr.

Oloresisimo and Great Pacific committed the tort of conversion and they are jointly and severally liable to the Claimant for damages. Did Mrs. Oloresisimo Breach the Financing Agreement? [ 139 ] In light of my findings in answer to the previous question, I find on a balance of probabilities that Mrs. Oloresisimo was unaware that the Mazda was used as collateral to secure Mr. Oloresisimo’s loan from Great Pacific. Thus, the Claimant has not met its burden to prove a breach of the financing agreement and therefore, the Claimant’s claim against Mrs. Oloresisimo is dismissed. Did Mr.

Oloresisimo Commit a Further Act of Conversion? [ 140 ] Mr. Kabani, Mrs. Kabani, and Mr. Guillen testified in a forthright and candid manner and each witness gave clear, thorough, and convincing evidence that they saw Mr. Oloresisimo take the white envelope of money off of Mr. Kabani’s desk. [ 141 ] I do not accept Mr. Oloresisimo’s account of the events in Mr. Kabani’s office as accurate or truthful. He was not a credible witness. [ 142 ] Based on my own observations of the surveillance footage, I find as a fact that Mr. Oloresisimo exited the dealership at a much quicker pace when he left Mr.

Kabani’s office than when he entered the dealership to meet with Mr. Kabani. [ 143 ] Accordingly, I find that Mr. Oloresisimo took the envelope of settlement money and the payment receipt from Mr. Kabani’s office and left the dealership in a hurry. In so doing, Mr. Oloresisimo committed a further act of conversion. [ 144 ] I further find that Mr. Stasiuk placed a stop payment on Great Pacific’s share of the settlement payment after being informed by Mr. Kabani that Mr. Oloresisimo had taken the funds.

Conclusion [ 145 ] In light of the foregoing, the settlement conditions were not met and the Claimant is entitled to judgment for the sum of $5,497.61 against Mr. Oloresisimo and Great Pacific, jointly and severally. The Claimant is entitled to pre-judgment interest on this sum. Post-judgment interest will accrue on the total judgment (including pre-judgment interest) from the date of these reasons. [ 146 ] Great Pacific is entitled to contribution or indemnity from Mr. Oloresisimo in respect of any portion of the judgment it pays to the Claimant. [ 147 ] The Claim is dismissed against Mrs.

Oloresisimo. [ 148 ] I direct the Registry to prepare the Order and I will dispense with the parties’ signature on the Order. ___________________________ The Honourable Judge D.L. Dorey Provincial Court of British Columbia