Ghasemi v. Insurance Corporation of British Columbia (ICBC), 2021 BCPC 190

Citation: Ghasemi v. Insurance Corporation of British Columbia (ICBC) 2021 BCPC 190 Date: 20210805 File No: 1862317 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: FERIDON GHASEMI CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA (ICBC) DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.LEE Appearing on his own behalf: F. Ghasemi Counsel for the Defendant: R. Tangry Place of Hearing: Vancouver , B.C. Date of Hearing: July 20, 2021

Date of Judgment: August 5, 2021 Introduction [ 1 ] This is an application by Feridon Ghasemi to set aside a dismissal order made on March 16, 2020, when Judge Harris dismissed Mr. Ghasemi’s claim for failing to appear at a scheduled pre-trial conference. The defendant, the Insurance Corporation of British Columbia (“ICBC”), also failed to attend court on that date. [ 2 ] It was also on March 16, 2000 that the Provincial Court issued a notice that it would only hear urgent matters due to the COVID-19 pandemic. Mr.

Ghasemi failed to attend the court appearance due to a genuine confusion over whether the pre-trial conference was proceeding that day. [ 3 ] Small Claims Rule 17(2) governs an application to cancel a dismissal order. In support of the application, the applicant must file an affidavit setting out the following: i. the reason the party did not file a reply or attend the settlement conference, trial conference or trial, or make a deposit under

section 56.3 of the Civil Resolution Tribunal Act , ii. the reason for any delay if there has been delay in filing the application, and iii. the facts that support the claim or the defence. [ 4 ] The issues I will address are whether Mr. Ghasemi unreasonably delayed filing an application to set aside the dismissal order, and whether there is any merit to his claim. Background [ 5 ] Mr.

Ghasemi filed a Notice of Claim on October 9, 2018, which referred to ICBC’s refusal to accept a vehicle damage claim. [ 6 ] ICBC filed a Reply on October 16, 2018, and then an Amended Reply on February 8, 2019 [ 7 ] On February 14, 2019, a settlement conference was scheduled before me. Mr. Ghasemi failed to attend and I dismissed his claim. [ 8 ] On March 4, 2019, Mr. Ghasemi applied to set aside the dismissal order.

On March 18, 2019, Judge Oulton granted the application and set a new settlement conference date. [ 9 ] The settlement conference was held on April 1, 2019 before Judge Cowling and he ordered that the matter be set down for a ½ day trial. [ 10 ] The trial came before Judge Rideout on August 22, 2019, who adjourned the matter to a two-day trial. Judge Rideout also ordered Mr. Ghasemi to post $500 as security for costs, to be paid prior to November 1, 2019, failing which the case would be dismissed. Judge Rideout raised with Mr. Ghasemi significant concerns he had about the case and strongly recommended that Mr.

Ghasemi seek legal advice. The $500 deposit was subsequently paid into court. [ 11 ] On March 2, 2020, Judge Harris made an order for the disclosure of RCMP records and adjourned the matter to a pre-trial conference set for March 16, 2020.

The trial itself was scheduled for March 31 and April 1, 2020 [ 12 ] I take judicial notice of the fact that on March 11, 2020, the World Health Organization classified COVID-19 as a pandemic. [ 13 ] On March 16, 2020, pursuant to the Public Health Act , BC Provincial Health Officer Bonnie Henry issued an order prohibiting the gathering of groups of over 50 people. [ 14 ] Also on March 16, 2020, Chief Judge Gillespie of the Provincial Court issued a notice that due to the COVID-19 pandemic, the Provincial Court would only be hearing urgent matters. [ 15 ] The pre-trial conference scheduled on March 16, 2020 still proceeded before Judge Harris.

Because neither party attended court, the claim was dismissed. [ 16 ] Mr. Ghasemi became aware of the dismissal order either that same day or shortly afterwards. By March 18, 2020, Mr. Ghasemi had informed ICBC counsel of the dismissal order. [ 17 ] On March 19, 2020, the Provincial Court issued a Notice to the Profession and Public (NP 19) announcing the suspension of court operations effective March 25, 2020.

The effect of this notice meant that an application to set aside the dismissal order could not be filed at this time. [ 18 ] On July 13, 2020, a revised Notice to the Profession and Public (NP 19) was issued which now permitted the filing of any applications with the Small Claims Court. At this point, Mr. Ghasemi was free to file an application to set aside the dismissal order. [ 19 ] I have reviewed the affidavit of Callan W. MacKinlay, a lawyer acting for ICBC, filed May 4, 2021. At paragraph 16, Mr. MacKinlay states that he advised Mr.

Ghasemi that applications to the court would be accepted starting July 13, 2020, and that if an application to set aside the dismissal order was done “with some alacrity,” ICBC would consent to an order to reset the trial. This information was set out in an email sent to Mr. Ghasemi dated July 3, 2020 and attached as an exhibit to the affidavit.

[ 20 ] On August 9 and 10, 2020, Mr. Ghasemi was advised by emails from the court and ICBC that he had to file an application to reset this matter. [ 21 ] On August 10, 2020, Mr. Ghasemi emailed Mr. MacKinlay to say he would not be available until January 2021 and asked if he can “do it upon my return by jan 2021?” [ 22 ] On August 11, 2020, Mr. Ghasemi emailed Mr. MacKinlay to say that he had to leave the country to deal with a family situation, and would deal with the court application once he was back. [ 23 ] Mr. Ghasemi filed with this court a copy of an email from Qatar Airways, which refers to a trip

summary for Feridon Ghasemi. The email shows a flight departing for Tehran on August 21, 2020 and returning to Vancouver on September 30, 2020. [ 24 ] It was not until February 17, 2021 that Mr. Ghasemi filed an application to set aside the dismissal order. The application was set down for March 15, 2021. Mr. Ghasemi did not serve the application on ICBC. He also did not attend court on March 15, 2021 and Judge Smith struck the matter off the court list. [ 25 ] Mr. Ghasemi said he was not able to attend the March 15, 2021 court date due to some unnamed illness. Mr.

Ghasemi provided what appeared to be a screenshot of a hospital record. That record appears to confirm that there was a hospital stay from March 19, 2021 until March 26, 2021. [ 26 ] Mr. Ghasemi did not provide any explanation for the delay from September 30, 2020, when Mr. Ghasemi returned to Vancouver, to February 17, 2021, when the first application to cancel the dismissal order was filed. He did confirm that he was required to isolate for two weeks after his return to Canada, which would then bring us to mid-October 2020. [ 27 ] On April 22, 2021, Mr.

Ghasemi filed a further application to set aside the dismissal order. This application came before Judge Denhoff of May 10, 2021. I have the benefit of a transcript of that appearance and I will reproduce part of the transcript below. FERIDON GHASEMI: Your Honour, I communicated with the counsel and I told him I’m leaving the country and I came back and I was - - I got COVID-19, Your Honour. I just [indiscernible] - - THE COURT: When did you - - just a moment, when did you leave the country?

FERIDON GHASEMI: In few weeks after the dismissal because I was sure I’m coming back, right, but in meantime - - THE COURT: Just a moment sir, just listen to my questions, okay? When did you leave the country? What date? FERIDON GHASEMI: That was - - I don’t have all that information but it was a few - - couple of weeks after the dismissal. And I contacted Mr. MacKinlay, I said I can’t be here, right - - THE COURT: Okay, just a moment, where did you go? FERIDON GHASEMI: I went to Iran. THE COURT: Okay, and why did you go there?

FERIDON GHASEMI: Because of my mother is sick and I have to attend, I’m the only son she has, right. THE COURT: And when did you come back? FERIDON GHASEMI: I came back on December and I got sick and I was in the hospital. - - THE COURT: When did you get sick? FERIDON GHASEMI: On December when I came back, you know, after few weeks I was positive for COVID-19 and I was sick for a while, then I was in hospital a while. I was just released four weeks ago. [ 28 ] In addition, Mr. Ghasemi filed a Small Claims action though the North Vancouver Registry in November 2020. According to Mr.

Ghasemi, he was still in Iran at the time and he had his brother-in-law file the application on his behalf. For this proceeding, Mr. Ghasemi said it was a serious matter and he wanted to file the application himself. [ 29 ] Judge Denhoff expressed concerns about the information provided to her and she required Mr. Ghasemi to provide proof of the following:

(1) When Mr. Ghasemi left Canada and when he returned (i.e. airplane tickets)

(2) When Mr. Ghasemi tested positive for COVID19

(3) When Mr. Ghasemi was hospitalized. [ 30 ] Judge Denhoff also asked for an affidavit from Mr. Ghasemi’s brother-in-law to confirm that he filed court documents on behalf of Mr. Ghasemi in the North Vancouver action. [ 31 ] The court adjourned the matter over to May 31, 2021, and then again to July 20, 2021, when it came before me. [ 32 ] As I set out earlier, Mr. Ghasemi did file with the court information about travel to Iran and his hospitalization. Mr. Ghasemi said

he did not file an affidavit from his brother-in-law because he did not want him involved in these proceedings. Mr. Ghasemi also had no evidence to show that he had tested positive for COVID-19, or received any treatment for it. The Law [ 33 ] Small Claims Rule 17(2) governs an application to cancel a dismissal order.

In support of the application, the applicant must file an affidavit setting out the following: i. the reason the party did not file a reply or attend the settlement conference, trial conference or trial, ii. the reason for any delay if there has been delay in filing the application, and iii. the facts that support the claim or the defence. [ 34 ] These three factors are described in the leading case Miracle Feeds v. D. and H. Enterprises Ltd. (1979), 10 B.C.L.R. 58 . [ 35 ] The decision Passero v.

Cupo, 2010 BCSC 1667 states that not all three factors need to be proven before a court cancels a dismissal order. [ 36 ] Rule 17(2) is also not a complete code and the court may consider other factors when considering an application to cancel a dismissal order or a default order: see Bagher et al v Starlite Marina Ltd. et al , 2016 BCPC 9 at paragraph 35 . The Position of the Parties [ 37 ] Mr. Ghasemi says his case is a simple one of a damaged vehicle for which ICBC is denying coverage.

He says both parties were confused about the need to attend court on March 16, 2020 and that it would be unfair to deny him his day in court. [ 38 ] ICBC says the vehicle in question was a 2010 salvage vehicle and that Mr. Ghasemi made an insurance claim two days after the vehicle was insured. ICBC also refers to invoices supplied by Mr. Ghasemi as proof of the damage, which ICBC alleges were falsified. Simply put, ICBC does not believe Mr. Ghasemi. [ 39 ] Aside from the merits of the claim, ICBC says Mr. Ghasemi has not acted within a reasonable time to set aside the dismissal order.

The Delay in Filing the Application [ 40 ] The Provincial Court permitted court applications to be filed again starting July 13, 2020. An Application to a Judge can be filed with the Robson Square Court in one of three ways:

(1) Physically attending at a court registry to file the application.

(2) Mailing the printed forms to the registry.

(3) Filing the application online using Court Services Online. This requires registration with Court Services Online and the creation of an account. [ 41 ] Other Provincial Court Registries may have different restrictions or options for filing documents. [ 42 ] There is no indication that Mr. Ghasemi was aware of the option of filing his application by mail or through Court Services Online, or that he held a Court Services Online account. Therefore, my focus is on when Mr. Ghasemi could have personally filed his application.

I remain mindful that he could have used his brother-in-law to file the application, as was done in the North Vancouver Court action. [ 43 ] Mr. Ghasemi flew to Iran August 21, 2020 and returned September 30, 2020. I accept that Mr. Ghasemi was concerned that the court could have scheduled his application for a time when he was in Iran and so I do not fault him for failing to file the application for the period from July 13, 2020 until his return to Vancouver on September 30, 2020. [ 44 ] Upon Mr. Ghasemi‘s return to Vancouver, COVID-19 protocols would have required him to isolate for two weeks.

Therefore, he was able to file his application starting about October 15, 2020. He filed his first application to cancel the dismissal order on February 17, 2021. It was set for March 15, 2021 and Mr. Ghasemi said he did not attend court due to being ill. His documents do show a hospitalization from March 19 to March 26, 2021. I will give Mr. Ghasemi the benefit of a doubt and accept that he was ill and for that reason, he did not serve ICBC with his application or attend court on March 15, 2021. [ 45 ] Mr.

Ghasemi filed his second application to cancel the dismissal order on April 22, 2021, which is the matter I have before me. [ 46 ] Based on the above analysis, the time available to Mr. Ghasemi to personally file his application was approximately 5 months. The time available to him to file the application using a third party, such as his brother-in-law, was greater. The Merits of the Claim [ 47 ] It is clear that Mr. Ghasemi provided false information to the court. [ 48 ] Mr.

Ghasemi filed an affidavit with this court on February 17, 2021 stating that he only became aware of the dismissal order on December 23, 2020. Mr. Ghasemi confirmed before me that he actually learned of the dismissal order in March 2020. When I asked him for an explanation, Mr. Ghasemi could not provide one, other than to say he did not ask for the dismissal order. In those circumstances, I

can only conclude that either Mr. Ghasemi intentionally included false information in the affidavit or was wilfully blind about the importance of being factually accurate. [ 49 ] There are also the discrepancies in the information Mr. Ghasemi provided to Judge Denhoff on May 10, 2021. [ 50 ] Mr. Ghasemi said he left Canada a few weeks after the dismissal order of March 16, 2020. Mr. Ghasemi’s documents in fact show he flew to Iran on August 21, 2020. [ 51 ] Mr. Ghasemi told Judge Denhoff that he returned to Canada in December 2020. Mr.

Ghasemi’s documents show he flew back to Vancouver on September 30, 2020. [ 52 ] Mr. Ghasemi also said he had his brother-in-law filed the claim in the North Vancouver Registry in November 2020 because Mr. Ghasemi was still in Iran. As I said, Mr. Ghasemi’s own documents show that he had returned to Vancouver on September 30, 2020. [ 53 ] These are all factors that raise into question Mr. Ghasemi’s credibility and would certainly be a significant consideration at a trial. Analysis [ 54 ] I am satisfied that Mr. Ghasemi has placed little priority on having this matter heard by the court.

He has demonstrated a lackadaisical attitude to having the dismissal order set aside. He confirmed to me that his focus was on other things rather than this claim. [ 55 ] One of the central issues for the trial will be Mr. Ghasemi’s credibility.

His attempts to set aside the dismissal order and the evidence he has provided in support have only added to the credibility concerns. [ 56 ] I am mindful of the comments of His Honour Judge Dyer in Bagher et al v Starlite Marina Ltd. et al , 2016 BCPC 9 , in discussing an application to set aside a default payment order: [36] As well, there is binding authority, I think, to the effect that whether or not the applicant establishes that there is a meritorious defence based on facts set out in an affidavit, if believed, it is the factor entitled to paramount consideration of the three factors listed in Rule 17(2)(b)(

i) to (iii) (see, for example, the decisions of Lou Guidi Construction Ltd. v. Fedick , [1994] B.C.J. No. 2409 , and Waterloo Park Golf Inc. v. Little Bear's Catering Ltd. , 2011 BCPC 432 ). [ 57 ] Judge Dyer went on to say at paragraphs 78 and 79 that although he found the defendant’s case to be weak, he could not say it was certain to fail. Accordingly, Judge Dyer set aside the default order. [ 58 ] I have similar concerns. The delay in filing the application to set aside the dismissal order was excessive. However, that is just one of the factors I must consider.

At the same time, even though there are significant concerns about Mr. Ghasemi’s credibility, I am unable to conclude that Mr. Ghasemi’s claim is certain to fail. [ 59 ] I am also mindful that Mr. Ghasemi has posted $500 as security for costs. I hope this will provide him with some incentive to resolve this matter quickly. [ 60 ] I have concluded that I will set aside the dismissal order for two reasons: 1. I cannot say that Mr. Ghasemi’s claim is certain to fail. 2. The $500 deposit provides security should the court make an order pursuant to Small Claims Rule 20 if Mr.

Ghasemi does not actively pursue his claim or if the court dismisses the claim [ 61 ] A settlement conference has not occurred in this matter. I am satisfied though that there is no prospect of settlement. Scheduling a settlement conference will only result in unnecessary delay. Pursuant to Rule 17(5), I cancel the requirement for a settlement conference. [ 62 ] The judicial case manager is directed to

schedule a 2-day trial, which is to be peremptory on Mr. Ghasemi. This means that this trial is a priority matter and will proceed without delay, subject only to a further order of a judge. [ 63 ] If by August 31, 2021 a new trial date has not been scheduled, then either party is at liberty to apply to court to resolve any scheduling issues. [ 64 ] The parties need to contact the judicial case manager by email to arrange the trial date.

The case manager’s email address is Robson.scheduling@provincialcourt.bc.ca. [ 65 ] Thirty days prior to the trial date, each party is to provide to the other with a copy of all documents that party intends to rely upon at the trial.

If a party fails to provide documents as required, then the use of those documents at the trial will be at the discretion of the trial judge. [ 66 ] Each party must also bring to the trial two additional copies of all documents for the use of the court. [ 67 ] Thirty days prior to trial, each party will provide to the other with a list of their witness names, witness contact information and a

summary of each witnesses’ evidence, including any expert witnesses. [ 68 ] Thirty days prior to trial, each party must provide to the other with a copy of any caselaw they intend to rely upon at the trial, and to bring one additional copy to the trial for the use of the court.

Order [ 69 ] I summarize my order as follows:

(1) Pursuant to Small Claims Rule 17(2), the dismissal order of Judge Harris dated March 16, 2020 is set aside.

(2) Pursuant to Small Claims Rule 17(5), the requirement for a settlement conference is cancelled.

(3) A two day trial will be scheduled for the hearing of the Notice of Claim filed October 9, 2018 and the parties shall contact the judicial case manager to arrange a hearing date, which hearing date will be peremptory on Feridon Ghasemi.

(4) If by August 31, 2021 a new trial date has not been scheduled, then either party is at liberty to apply to court to resolve any scheduling issues.

(5) Thirty days prior to the trial date, each party is to provide to the other with a copy of all documents that party intends to rely upon at the trial. If a party fails to provide documents as required, then the use of those documents at the trial will be at the discretion of the trial judge.

(6) Each party shall bring to the trial two additional copies of all documents they intend to rely upon at the trial for the use of the court.

(7) Thirty days prior to trial, each party will provide to the other with a list of their witness names, witness contact information and a

summary of each witnesses’ evidence, including any expert witnesses.

(8) Thirty days prior to trial, each party must provide to the other with a copy of any caselaw they intend to rely upon at the trial, and to bring one additional copy of the caselaw to the trial for the use of the court. [ 70 ] The Court Registry will prepare the form of this order. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia