Hassan v. Yes Capital Corporation, 2019 BCPC 338

Citation: Hassan v. Yes Capital Corporation 2019 BCPC 338 Date: 20190115 File No: C14934 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: AHMED HASSAN, ABDINASIR AHMED HASSAN and ABDIBARI AHMED HASSAN CLAIMANTS AND: YES CAPITAL CORPORATION dba PACIFIC AVIATION ACADEMY OF BC, and SARBJEET MANDAIR DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.L. DOREY Counsel for the Claimant: Ryan Dueckman Appearing in person: S. Mandair Appearing for Yes Capital Corporation : S. Mandair Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: January 7, 8, 10 and 11, 2019 Date of Judgment: January 15, 2019 Introduction [ 1 ] Abdinasir Hassan and Abdibari Hassan are two brothers from Kenya (the “Hassan Brothers”) who, in 2010, sought to obtain their private pilots’ licences and thereafter take a commercial pilot licencing course in Canada.

They each entered into three contracts (the last of which were entered in 2012) with the Defendant, Yes Capital Corporation (“Yes Capital Corp.”), which operated a flight school in Pitt Meadows as sole proprietorship under the trade name Pacific Aviation Academy of British Columbia. [ 2 ] This Claim involves what appears, at first blush, to be a relatively straight forward contractual dispute involving a claim for a refund between the operator of the flight school and the Hassan Brothers who had been accepted into the flight school but who were denied student visas to come to Canada to attend the school. [ 3 ] This Claim has endured a long, protracted, and acrimonious history as it wound its way through the Provincial Court of British Columbia in Port Coquitlam and through the Supreme Court of British Columbia in New Westminster. [ 4 ] I am advised by counsel for the Claimants that this matter has been before the courts approaching now over 30 occasions over the five years it has been in litigation. [ 5 ] This Claim was set to finally begin a 5 day trial on January 7, 2019. [ 6 ] Prior to the start of trial, the Defendants brought an application, without advance notice, for

summary dismissal of the claim against Yes Capital Corp. [ 7 ] At the time the three contracts were signed by the Hassan brothers, Sarbjeet Mandair was the sole director, officer, and owner of Yes Capital Corp. [ 8 ] Mr. Mandair testified in the course of the

summary dismissal application that in early 2015, he sold the shares and the assets of Yes Capital Corp. to Mostafa Khosrowtaj. Mr. Mandair testified he was authorized under the terms of the Purchase of Business Agreement and by Mr. Khosrowtaj, to represent Yes Capital Corp. in the defence of this Claim. [ 9 ] Mr. Mandair further testified that he learned in late November or early December 2008 that Yes Capital Corp. was sold by Mr. Khosrowtaj that year to a new buyer, Mr. John Ling, and continued under the name Canadian Aviation College Corp. Mr.

Mandair tendered a corporate search which confirmed the appointment of new directors on May 1, 2018, notice of a filing of new Articles for Canadian Aviation College Corp., and a notice of alteration in name of the company which changed from Yes Capital Corp. to Canadian Aviation College Corp. on January 23, 2017. [ 10 ] Mr. Mandair testified that he had not been in contact with the current owner of the flight school, but had spoken to, Russell Robertson, previous corporate counsel for Yes Capital Corp. in late November 2018 or possibly early December 2018 and was uncertain, as a result of his discussion with Mr.

Robertson, whether he still had authority to continue defending Yes Capital Corp. at trial in view of the further change of corporate ownership. [ 11 ] Mr. Mandair submitted that as a self-represented litigant, he was unfamiliar with the procedural requirements for bringing a

summary dismissal application. He was, however, unable to provide a satisfactory explanation to the Court as to why he did not inform Claimants’ counsel until the first day of trial of his intent to do so. [ 12 ] Mr. Dueckman, on behalf of the Claimants, strenuously opposed the application proceeding on the grounds that the Claimants had been blindsided by Mr. Mandair who had not provided any advance notice of his intent to bring this application at the outset of trial. The Claimants took the position that Mr. Mandair was using the

summary dismissal application for tactical reasons to derail the trial. [ 13 ] Upon a consideration of the submissions of counsel and Mr. Mandair, I allowed Mr. Mandair to proceed with the Defendants’

summary dismissal application. [ 14 ] This application occupied much of the court’s time on January 7 and 8, 2019. [ 15 ] Upon a consideration of Mr. Mandair’s testimony, the additional documents tendered by Mr. Mandair on behalf of the Defendants during the course of the

summary dismissal application (and admitted with the consent of the Claimants and marked Exhibits 2, 3, 4 and 5 in the trial proper), and upon hearing the submissions of the parties, I dismissed the Defendants’ application to dismiss the Claim against Yes Capital Corp. and ordered that the trial proceed on its merits. [ 16 ] I was also satisfied upon a consideration of Mr. Mandair’s testimony together with the evidence and court file material that was before me on this application, that the facts in relation to the sale of Yes Capital Corp. only became known to the Claimants during the course of the Defendants’

summary dismissal application. I thus granted leave to the Claimants to file a further amended Notice of Claim. [ 17 ] I indicated to the parties, that I would provide reasons in due course for these Orders. [ 18 ] These are my reasons. Chronology and Key Procedural History Relevant to the Defendants’ Application for

Summary Dismissal [ 19 ] I provide below in chronological order, the procedural history which bears on the Defendants’

summary dismissal application.

[ 20 ] On September 12, 2014, the Claimants commenced their action against Pacific Aviation Academy of BC (“PAA”) and Sarbjeet Mandair. The address for delivery for both Defendants was listed as 160-18799 Airport Way, Pitt Meadows. Attached to the Notice of Claim, was filed a Sole Proprietorship

Summary for PAA. This search identified Yes Capital Corp. as the proprietor of the flight school. [ 21 ] A Reply was filed by Sarbjeet Mandair and PAA on October 14, 2014 denying the claim. In paragraph d. of the Reply, it is pled: Claimants entered into a Contract with Yes Capital Corp. a British Columbia Company d.b.a. Pacific Aviation Academy and paid an amount equal to the 1 st installment of the 3 [contracts], as agreed by wire to Yes Capital Corp. [ 22 ] A settlement conference was held on March 27, 2015. G. Smith, PCJ was the settlement conference judge presiding.

The Claim did not settle and Judge Smith referred the matter to trial. [ 23 ] The Settlement Conference Record indicates that Judge Smith ordered the Claimants to file an amended Notice of Claim with better particulars of the claim, and to “add Defendant”. I have concluded from my review of the Settlement Conference Record, that the intention behind this Order was for the Claimants to amend the style of cause to name Yes Capital Corp. as the proprietor of PAA and to further particularize the claims against Yes Capital Corp. and Mr. Mandair. [ 24 ] On April 14, 2015, Mr.

Mandair filed a notice of change of address for delivery on behalf of himself and PAA with the new address for both being 18038-92 nd Avenue in Surrey, British Columbia (the “Surrey Delivery Address”). [ 25 ] Also, pursuant to the Settlement Conference Record, the parties were directed to attend before the judicial case manager to set trial dates, but did not do so.

The Registry then set a trial date for October 13, 2015. [ 26 ] On October 6, 2015, the Claimants filed an Amended Notice of Claim with the amendments made pursuant Judge Smith’s Order. [ 27 ] The Claimants received the Notice of Trial and appeared on the day of trial. Neither Mr. Mandair not PAA appeared at trial. [ 28 ] Judge Steinberg was the assigned trial judge. Judge Steinberg noted the non-appearance of the Defendants, allowed the Claim, and granted default judgment against the Defendants.

Judge Steinberg awarded the Claimants judgment in the amount of $25,000, filing and service fees of $176.00, a penalty of $2,500, and $1,850.43 for costs (associated with Mr. Ahmed Hassan’s (the Hassan Brother’s father) travel expenses) to attend trial. The judgment was ordered “payable forthwith”. [ 29 ] On November 27, 2015, the Defendants unsuccessfully brought an application before Judge de Couto to set aside the default judgment. [ 30 ] The Defendants then sought to appeal Judge de Couto’s Order in the Supreme Court of British Columbia.

In 2016, this application was heard and dismissed by Madam Justice Fleming with leave to the Defendants to re-apply for judicial review under the Judicial Review Procedure Act . [ 31 ] On May 12, 2016, the Defendants issued a petition for judicial review (the “Petition”) of Judge de Couto’s decision refusing to set aside the default judgment. [ 32 ] On July 20, 2017, Mr. Justice Jenkins granted the relief sought by the Defendants in the Petition and the default judgment was set aside. [ 33 ] In his Reasons for Judgment, found at 2017 BCSC 1259 , Mr.

Justice Jenkins accepted the Defendants’ explanation and found as a fact that court registry staff in Port Coquitlam, through an oversight, failed to mail the Notice of Trial to the Defendants. His Lordship further found that this oversight was the reason why the Defendants did not attend the trial. [ 34 ] I reproduce below paragraphs 8 and 11 of Mr. Justice Jenkins’ Reasons for Judgment: [8] On October 6, 2015, an Amended Notice of Claim was issued by counsel for the respondents, the Hassan Brothers and their father, naming Yes Capital Corp. as a defendant along with Mr. Mandair.

The Amended Notice of Claim required the defendants to file a reply within 14 days of service of the Amended Notice of Claim which was received by Mr. Mandair on October 8, 2015. By that time, neither of the defendants/petitioners had received a Notice of Trial. Mr. Mandair has deposed that when he received the Amended Notice of Claim, he assumed that he had 14 days to reply and that a trial date had not been set as had been ordered at the previous settlement conference. [11] Mr. Mandair has deposed in the material before me that neither he nor Pacific received the Notice of Trial until after the trial date.

After reviewing the transcript of the hearing on an application to set aside the default judgment conducted by Judge De Couto, I agree that Mr. Mandair stated on several occasions that he had not received the Notice of Trial but also stated, for example in his application to set aside the default judgment, that he believed that Mr. Dueckman, as counsel for the Hassan Brothers, “perhaps…cancelled the trial date of October 13, 2015 to be re-scheduled by the court after receiving the formal Reply to the Amended Notice of Claim”. I take from that evidence that Mr.

Mandair had been advised of the trial but assumed that, as the Amended Notice of Claim allowed him 14 days to respond, and since the Amended Notice of Claim had been issued on October 8, 2015, the trial would not proceed on October 13, 2015. [ 35 ] At paragraph 40 of his Reasons, Mr. Justice Jenkins held: a. Mr. Mandair did not wilfully or deliberately fail to attend the trial on October 13, 2015.

He filed a Reply to the Notice of Claim, had attended at the settlement conference, did not receive a Notice of Trial as he understood would be issued by the registry and was most likely confused after receipt of the Amended Notice of Trial as to whether a trial based upon the original Notice of Claim was proceeding. He assumed he had 14 days to respond to the Amended Notice of Claim which amounted to a re-phrasing of the claim in the

sense that Yes Capital Corp. was being added as a defendant to the same claim for return of a deposit. [ 36 ] In applying the test in Rule 17(2) of the Small Claims Rules, B.C. Reg. 261/93 and the principles applicable to setting aside a default judgments established in Miracle Feeds v. D. & H. Enterprises Ltd. (1979), his Lordship found that the Defendants acted with dispatch to set aside the default judgment and further that there was a defence “worthy of investigation” on the material before him. [ 37 ] Accordingly, Mr.

Justice Jenkins allowed the Petition, set aside the default judgment, and at para. 44 of the Reasons, his Lordship ordered that the “Provincial Court Action C14934 be referred back to the Port Coquitlam Registry …. for a two day trial and that the defendants be given 15 days to file an Amended Response.” [ 38 ] On July 28, 2017, an Amended Reply was filed by Yes Capital Corp. d.b.a. PAA and Sarbjeet Mandair. The Surrey Address for Delivery was identified in the Reply as the service address for the Defendants. [ 39 ] In the

section of the court form which reads Counterclaim, the word “counterclaim” was struck and the following pleading is found in upper case letters: In view of the costs of proceedings, no counterclaim is filed. ** This right to reply has been order by Justice Jenkins of the Supreme Court of British Columbia. [ 40 ] A notice of trial was subsequently re-set for April 30, 2018. [ 41 ] On February 16, 2018, the Claimants made an application (the “February 16, 2018 Application”) for leave to file a further amended Notice of Claim, and for leave to lead their evidence by affidavit at trial.

A certificate of service confirming proof of delivery of notice of application and the affidavits of the three claimants was served by courier on the Defendants at the Surrey Address for Delivery. [ 42 ] Unbeknownst to counsel for the Claimants, Mr. Mandair was out of Country and did not receive the Claimants’ February 16, 2018 Application materials. He testified during his

summary dismissal application that he was in India at that material time and was unaware of the application. He added that he was undergoing a marriage break-up, and that his former wife did not bring this application to his attention on his return from India. [ 43 ] I pause to note that Mr. Mandair acknowledged that he did not alert Claimants’ counsel in advance that he would be out of Country for an extended period. [ 44 ] In any event, the Claimants’ February 16, 2018 application proceeded to hearing before Judge McQuillan on March 5, 2018.

Judge McQuillan allowed the amendments sought by the Claimants and adjourned the balance of relief sought to the trial judge. [ 45 ] The Further Amended Notice of Claim was filed on March 6, 2018 pursuant to Judge McQuillan’s Order and delivered to the Defendants by courier to the Surrey Address for Delivery. [ 46 ] Mr. Mandair brought an application to set aside Judge McQuillan’s Order and the Further Amended Notice of Claim on the ground the Defendants’ were not given proper notice of the application. The Defendants’ application was heard on April 16, 2018 before Judge Woods and was dismissed.

According to the Application Record, Judge Woods in his reasons held: The Defendants were given proper notice of the appearance before Judge McQuillan on March 5, 2018 and that the contention of Mr. Mandair that such notice was not given is rejected by the court. Accordingly, Mr. Mandair’s application that Judge McQuillan’s order of March 5, 2018 be set aside is dismissed. The remaining relief sought in Mr.

Mandair’s application is adjourned to be considered by the trial judge on April 30, 2018. [emphasis added] [ 47 ] On April 17, 2018, an Amended Reply was filed by “Pacific Aviation Academy and Sarbjeet Mandair”. Additionally, a Counterclaim was added by “the named Defendants and Yes Capital Corp.” in the amount of $30,000 for costs incurred for the “15 or 20 hearings by various judges” and the costs award granted by Mr.

Justice Jenkins in the Petition. [ 48 ] The trial did not proceed on April 30 th and was re-set for 5 days commencing on January 7, 2019. [ 49 ] The Claimants’ February 26, 2018 Application was re-set for hearing and proceeded before Judge Pothecary on May 1, 2018 and again on November 5, 2018. Judge Pothecary allowed the parties to lead their evidence at trial by affidavit and further granted a series of Orders to streamline the trial so as to ensure that the trial proceeded in an efficient manner.

Judge Pothecary’s November 5 th Order included, inter alia , the following terms: • The order made by Judge Pothecary on May 1 st , 2018 is clarified such that: Each party may provide his direct evidence by way of affidavit. Those affidavits are to be filed and exchanged on or before December 10 th , 2018. • There will be the pre-trial conference before the trial Judge before January 7 th , 2019 for that Judge to determine whether or not the Affiants must appear for cross examination.

In the event that one or more is ordered to appear that appearance may be by video link at the expense of the party appearing. • Either party may also provide their evidence in person in court instead of by affidavit. • Each party must provide to the other party all pertinent documents related to their claim or defence that have not already been disclosed not later than December 10 th , 2018. In particular the defendant must provide copies of all expense claims including receipts for expenses for consumables and other related matters.

[ 50 ] Judge Pothecary adjourned the parties to the case manager to fix a pre-trial conference between December 10, 2018 (i.e., the deadline for exchange of affidavits and any new documents in her Order) and January 7, 2019 (the first day of trial). [ 51 ] The Claimants elected to tender their direct evidence at trial by affidavit.

These are the Claimants’ four previously filed affidavits, which were before Judge McQuillan at the hearing of the Claimants’ February 18, 2018 Application. [ 52 ] I was satisfied from my review of the Claimant’s Trial Binder that the Claimants complied with the requirements of Judge Pothecary’s November 5 th Order and, accordingly, I admitted the Claimants’ Trial Binder into evidence in the trial proper as Exhibit 1. (The trial began after the Defendants’

summary dismissal application was dismissed.) [ 53 ] The Defendants elected to call viva voce evidence at trial. [ 54 ] On December 10, 2018, the Defendants filed a brief of documents marked “Binder 2 of 2”. (I determined during the course of submissions on the

summary dismissal application that Binder 1 of 2 was not filed by the Defendants with the Court. However, I allowed the Defendants leave to file Binder 1 as an exhibit at trial (which was subsequently marked as Exhibit 7 in the trial proper), as I was satisfied that the Claimants had previously received a copy of the document brief and thus there would be no prejudice to the Claimants in result.) [ 55 ] On December 12, 2018, the Defendants brought a Notice of Application for the following relief: a. An order that the Claimants attend trial to give viva voce testimony; b.

Alternatively, that the Ahmed Hassan (father of the Hassan Brothers), appear at trial in person to give viva voce evidence, and that the Hassan Brothers submit to cross-examination on their Affidavits at trial by video conference; c. The Claimants shall be prohibited from filling or presenting any new affidavits after December 10, 2018 (which is the deadline stipulated in Judge Pothecary’s order for delivery by the parties of “all pertinent documents related to their claim or defence that had not otherwise been disclosed …)”; d.

An Order that the Claimants’ failure to attend at trial, is “cause” for dismissal of the Claim. e. An Order that the Claimants post security for costs. f. An Order that the Claimants’ claim be limited to $25,000, which is the amount originally sought. [ 56 ] Noticeably absent from this Notice of Application was any reference to a request for

summary dismissal of the Claim against Yes Capital Corp. [ 57 ] The Defendant’s Notice of Application came before Judge de Couto on December 17, 2018 on the chambers list. Judge de Couto adjourned this application over to the trial judge.

Judge de Couto also directed that the pre-trial conference take place on the first day of trial to ascertain trial readiness of the parties and to address the relief sought by the Defendants in this Application. [ 58 ] In view of the fact that the Defendants’ application for security for costs (item e. of the Orders sought) was not argued before Judge de Couto, and was not raised by Mr.

Mandair as an outstanding issue during the pre-trial conference I conducted prior to the commencement of the trial, I am treating this aspect of the Defendants’ Application as having been abandoned. [ 59 ] I also dismissed the Defendants’ application to compel the Claimants to attend trial in person (items a., b., and d. of the Orders sought) in view of Judge Pothecary’s November 5 th Order. [ 60 ] I provided oral reasons for judgment on January 9, 2019 dismissing the Defendants’ application for leave to cross-examine the affiants on their affidavits (items b. and c. of the Orders sought) which application was heard during a voir dire during the course of the Claimants’ case. [ 61 ] On the afternoon of January 10 th , Mr.

John Ling appeared at trial. Mr. Ling identified himself as an officer and director of Canadian Aviation College Corp. (formerly Yes Capital Corp.), and is the new owner of the flight school. The trial then continued with Mr. Mandair’s opening statement and he began his evidence in chief. [ 62 ] At the beginning of the court day on January 11 th , both Mr. Mandair and Mr. Ling advised the Court that an agreement in principle had been reached for Mr. Mandair to continue the defence of the Claim on behalf of Yes Capital Corp. Mr. Ling then asked to be excused from the trial (which request I granted) and Mr.

Mandair was asked to continue with the presentation of the Defence case. Discussion [ 63 ] The Defendants’ position is summarized as follows: 1. Yes Capital Corp. was never properly served with the Notice of Claim at first instance, or alternatively, when the Amended Notice of Claim was delivered in October 2015. The reason is because Yes Capital Corp. had a change in ownership when the business was sold to Mr. Khosrowtaj in January 2015. The Claimants never served the new owner with the pleadings. 2. Neither Mr.

Mandair nor Yes Capital Corp. had proper notice of the Claimants’ February 18, 2018 Application because Mr. Mandair was out of the Country at the time the application materials were delivered to the Surrey Delivery Address, and therefore, the Further Amended Notice of Claim should be struck. 3. Alternatively, the typographical error in the certificate of service file by Mr. Dueckman’s assistant rendered the service of the

Claimants’ February 18, 2018 Application on Yes Capital Corp. a nullity. 4. In the further alternative, had the Claimants exercised due diligence, they would have learned of the further sale of Yes CapitalCorp. to Mr. Ling in 2017. Thus, the Defendants submit that the Claimants’ February 16, 2018 Application was improperly effected onYes Capital Corp. for this additional reason.

Therefore, the Further Amended Notice of Claim filed pursuant to Judge McQuillan’s Orderis null and void. [64] At the core of the Defendants submission is the contention that Yes Capital Corp. was never properly served with the Notice ofClaim as a result of these service defects. The Defendants further contend that the cumulative effect of these service defects is that YesCapital Corp. has been denied a full opportunity to be heard in the Provincial Court proceeding.

Accordingly, the Defendants submit thatthese service defects cannot be cured with a time extension for proper service and that the Claim against Yes Capital Corp. is a nullityand ought to be summarily dismissed. [65] In support of this submission, the Defendants have drawn my attention to Mr. Justice Jenkins’ Reasons in the Petition. Inparagraphs 42-44 of these Reasons, Mr.

Justice Jenkins held: [42] Alternatively, I am persuaded that, as the petitioners have submitted, a default judgment given without notice to the defendant is anullity, not merely an irregularity, as it denies the other party the right to be heard and should be set aside as of right: see Wright v.Czinege, 2008 BCSC 1292 [Wright], Bache Halsey Stuart Sheilds Inc. v. Charles Estate, (1982) (BC SC), 40B.C.L.R. 103 (S.C.) and Hudson’s Bay Co. v. Kallweit (1976) 2 B.C.L.R. 92 (S.C.). [43] At para. 41 of Wright, Humphries J. summarized paras. 26-40 of William v.

Lake Babine Indian Band, [2000] 1 C.H.L.R. 233, acase that also concerned an application to set aside a default judgment, which are applicable in the case before me as the petitioners werenever served with the Notice of Trial prior to the trial date: There seems little question that defective service of documents cannot be cured merely by the fact that such documents have found theirway into the possession of the person served. Service must be effected in a manner provided for by the Rules of Court or by such otherstatutory provision that may apply. . . . Service improperly effected is no service. . . .

Where there has been no service of the proceedings leading up to default judgment then the judgment cannot stand, for it was obtained incircumstances where the defendant was denied an opportunity to be heard. That cannot be said to be an irregularity . . . [44] If the petitioners were never served the Notice of Trial as required by the Rules until after the trial date, default judgment shouldnot have been entered against them.

On this basis, I find Judge De Couto’s decision was unreasonable. [66] I am satisfied from my review of these passages and the authorities discussed within them, that the principle quoted by Mr.Justice Jenkins from the Wright decision, namely that “service improperly effected is no service” is not a general statement of law for allpurposes involving irregularities in the service of process, but rather is a principle of law which applies to those specific situations wherea defendant did not have an opportunity to defend a claim having either never had proper service of the claim in the first instance or, as inthe case of the Petitioners, had not received proper notice of the trial date.

In such circumstances, it would be unfair for the Court toallow a default judgment to stand. [67] Turning now to the merits of the Defendants’ application, I find that “service was properly effected” on Yes Capital Corp. forthe following reasons: [68] First, Mr.

Mandair and Yes Capital Corp. were properly served with the Amended Notice of Claim in or about October 6, 2015.Service of the Amended Notice of Claim was effected on the Surrey Address for Delivery which is same address for Delivery for theDefendants Sarbjeet Mandair and PAA found in the Notice of Change of Address filed by the Defendants on April 14, 2015. [69] Second, Yes Capital Corp. attorned to the jurisdiction of the Provincial Court when the Amended Reply to the Amended Noticeof Claim was filed by the Defendants Sarbjeet Mandair and Yes Capital Corp. on July 28, 2017.

The Amended Reply lists the sameaddress for delivery as the address found in the change of address form filed by Mr. Mandair and PAA on April 14, 2015, that addressbeing the Surrey Address for Delivery. [70] Third, Mr. Mandair and Yes Capital Corp. were given proper notice of the Claimants’ February 16, 2018 Application. This is afinding of fact made by Judge Woods on a hearing of the Defendants’ application to set aside Judge McQuillan’s March 5, 2018 Orderwhich allowed the amendments. Judge Woods found that Defendants had a full opportunity to be heard on the application before JudgeMcQuillan.

Thus, this issue has been already decided by Judge Woods and is res judicata. [71] Fourth, Mr. Mandair testified that he had and continued to have the authority to defend the Claim on behalf of Yes CapitalCorp. after he sold the company to Mr. Khosrowtaj. This authority flowed from the Purchase of Business Agreement dated January 5,2015, and a subsequent agreement between Mr. Mandair and the purchaser, Mustafa Khosrowtaj. [72] Fifth, Mr. Mandair’s authority to defend Yes Capital Corp. (currently continued under the name Canadian Aviation CollegeCorp.) continued after Mr. Khosrowtaj sold the business to Mr.

John Ling. This was confirmed by Mr. Mandair and by Mr. Ling at thebeginning of the court day on January 11, 2019. [73] Sixth, a Counterclaim was filed on behalf of Yes Capital Corp. on April 17, 2018, and the address for delivery for Mr. Mandair

and Yes Capital Corp. in this pleading remained the Surrey Address of Delivery. [ 74 ] It is my opinion that the circumstances before me on this

summary dismissal application are entirely distinguishable from the circumstances that were before Mr. Justice Jenkins in the Petition. I find that Yes Capital Corp. was afforded an opportunity to be heard and indeed has attorned to the jurisdiction of this Court by filing a Reply and a Counterclaim. [ 75 ] I also find pursuant to Rule 18(16) and (17) of the Small Claims Rules that the Claimants were entitled to rely on the Surrey Address for Delivery because this was the service address listed by the Defendants in the Amended Reply and the Further Amended Reply and Counterclaim.

Rule 18(17) expressly obligates a party to notify, in writing, the registrar and all parties of any change in a party’s address. Mr. Mandair is well aware of this Rule having himself filed with the Court in April, 2015, written notice of the change of address from Airport Road, Pitt Meadows to the Surrey Address for Delivery. [ 76 ] The Claimants were thus entitled to rely on the Surrey Address for Delivery as the service address for the Defendants and were under no legal duty, as argued by Mr.

Mandair, to further search the corporate registry with respect to the corporate status of the Defendant Yes Capital Corp. [ 77 ] Accordingly, I find that service of the Claim, Amended Claim, and the Further Amended Claim was properly effected on Yes Capital Corp. throughout the course of this proceeding. [ 78 ] In sum, I find that the Defendants’

summary dismissal application was wholly without any merit. I further find that the trial was unnecessarily delayed by the bringing of the

summary dismissal application. [ 79 ] Accordingly, the Defendants’

summary dismissal application is dismissed. The Claimants have leave to speak to the issue of penalties and expenses at trial as a result of this application. __________________________ The Honourable Judge D.L. Dorey Provincial Court of British Columbia