Adrangi v. Manesh, 2015 BCSC 1130

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Adrangi v. Manesh, 2015 BCSC 1130 Date: 20150630 Docket: E113154 Registry: Vancouver Between: Parisa Adrangi Claimant And Ali Khezr Safaei Manesh also known as Ali Safaei, Dr. AliSafaei Inc. Parazalix holdings Ltd., Bear Management Ltd., and Kioumars Shezr-Safaei-Manesh also known as Kioumars Khezr Safaei Manesh Respondents Before: The Honourable Mr. Justice Affleck Reasons for Judgment Counsel for the Claimant: T. H. Hopman Counsel for the Respondents: R. Yousefi Place and Date of Trial/Hearing: Vancouver, B.C.

March 24-27, 30-31 and April 2, 2015 Written Submissions of the Claimant: June 8, 2015 Written Submissions of the Respondents: June 16, 2015 Reply Submissions of the Claimant: June 22, 2015 Place and Date of Judgment: Vancouver, B.C. June 30, 2015 [ 1 ] The trial of this family proceeding began on March 23, 2015. The evidence concluded on March 31, 2015. Thereafter argument was heard and my decision was reserved. At the trial the claimant represented herself. On May 11, 2015 the claimant, through counsel, filed an application to reopen the trial.

May 29, 2015 was agreed as the date for the hearing of the application. Subsequently that date became unavailable. On May 27, 2015, the parties requested the reopening application be addressed through written submissions. I agreed. The submissions have been delivered. [ 2 ] The trial addressed several issues including

a) the parenting arrangements for the child of the claimant and respondent, Ali Khezr Safaei Manesh, who I will refer to as Dr. Safaei;

b) child and spousal support; and

c) division of property including real property and the dental practices of Dr. Safaei and the dental and laboratory practice of the claimant. [ 3 ] This litigation has been difficult for all parties and it has suffered from too much delay. The respondents attribute the delay to the conduct of the claimant. There is some merit to that complaint but I have concluded with reluctance that the trial nevertheless must be reopened. A Brief Outline of the Proceeding [ 4 ] The parties separated in May 2011. The notice of family claim was filed in October 2011.

On November 30, 2011 at a judicial case conference the parties agreed to a parenting arrangement for their child and various procedural steps in the action were agreed and ordered. [ 5 ] On June 6, 2012 by consent a declaration of irreconcilability was made pursuant to

section 57 of the Family Relations Act , R.S.B.C. 1996, c. 128. The claimant was represented at that time by her present counsel. Various other steps were then taken regarding

the appraisal of assets. [6] A collaborative process was undertaken for a number of months thereafter but to no avail. A settlement conference wasconducted on April 2, 2014, before Mr. Justice G.C. Weatherill. The claimant acted for herself at the conference. It appeared, at least toDr. Safaei, that a settlement of all issues had been reached but the claimant eventually took a different view. There were a number ofhearings before Mr. Justice Weatherill to settle the form of the order coming out of the settlement conference, but no order was made. OnOctober 15, 2014, Dr.

Safaei applied for a declaration that a settlement agreement had been reached. Mr. Justice Weatherill declined tomake the declaration. A trial date was obtained for March 23, 2015. [7] At the end of the last day of argument at the trial on March 31, 2015, the respondents sought an order that certificates ofpending litigation be removed from the real property in issue. I was informed of, among other matters, the difficulties encountered by therespondent Kioumars Shezr-Safaei-Manesh (Mr. Manesh) in obtaining financing. He is the registered owner of some of the real propertyin issue in this action.

I also understood that Dr. Safaei was having difficulty financing his dental practices. I agreed over the objection ofthe claimant to an order removing the certificates. This appears to have prompted the claimant to seek advice from Ms. Hopman. [8] I am informed that the claimant instructed Ms. Hopman to conduct various searches. At least one of them I have been advisedwas a search that a self-represented litigant is not entitled to make, namely a search of family proceedings in the registry. The claimantlearned that a certificate of pending litigation had been registered by the wife of Mr.

Manesh against real property owned by Mr. Maneshand in issue on this proceeding. I understand the position of the claimant it is that Dr. Safaei provided money to his father Mr. Manesh toenable him to make that purchase. The claimant wishes to explore these matters further at a reopened trial. I have reviewed the pleadingsin the action searched by the claimant’s counsel and it appears those pleadings touch on real property in issue in the action before me. [9] The claimant also refers to cheques which she submits were not canvassed at the trial and a loan for about $50,000 byMr. Safaei to Mr.

Manesh, which she submits she did not know at the trial. The respondents assert there is no evidence to support such aloan. [10] There may not be evidence to support such a loan, but I am persuaded the claimant should be given an opportunity to leadevidence about these matters. I have made no findings of fact or credibility. I will refrain from a further discussion of the facts in thesereasons which address only the issue of reopening the trial. [11] Among other authorities the respondents refer to K.F.P. v.

D.J.P., 2004 BCSC 466, in which one factor considered was whethera reopening would probably change the outcome. That cannot be a factor when the outcome is as yet unknown. [12] In Vander Ende v. Vander Ende, 2010 BCSC 597, Madam Justice Ballance considered a reopening application when judgmenthad not yet been given. Paragraph 84 of those reasons reads as follows: [84] The decision to permit or disallow reopening is a matter of judicial discretion. The discretion of the trial judge presiding over a civiltrial to reopen the trial before judgment has been rendered is wide.

The scope of the discretion is generally narrower where judgment hasbeen issued, and the test becomes even more rigorous depending on whether the order has or has not been entered: G.C.H. v. H.E.H.,2009 BCSC 4 [G.C.H.]; Clayton v. British American Securities Ltd. (1934), (BC CA), 49 B.C.R. 28 (C.A.) [Clayton];Zhu v. Li, 2007 BCSC 1467 , [2007] BCJ No. 2150. While the ambit of the judicial discretion is acknowledged as beingunfettered, it must be exercised cautiously so as to prevent an abuse of process: Clayton; G.C.H.; K.F.P. v.

D.J.P., [2004] BCJ No. 782.In considering whether to reopen, the court should turn its mind to the relevance of the proposed evidence, the effect, if any, ofreopening on the orderly and expeditious conduct of the trial at large, and most fundamentally, whether the other party will be prejudicedif the reopening is permitted: R. v. Hayward (1993), (ON CA), 86 C.C.C.(3d) 193 (Ont. C.A.). [13] Notwithstanding Ms. Yousefi’s able argument, I conclude that despite its manifest inconvenience, expense and delay there is arisk of a miscarriage of justice if I refuse to hear further evidence.

However, the reopening must be of a limited nature. The parties willarrange as soon as reasonably possible for a trial management conference at which the scope of the reopened trial will be considered. [14] The costs of this application will be in the cause. “Affleck J.”