Confill Concrete Injection Ltd. v. Highmark Homes Ltd., 2022 BCPC 58

Citation: Confill Concrete Injection Ltd. v. Highmark Homes Ltd. 2022 BCPC 58 Date: 20220311 File No: S87969 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: CONFILL CONCRETE INJECTION LTD. CLAIMANT AND: HIGHMARK HOMES LTD. DEFENDANT CORRIGENDUM RULING ON APPLICATION OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Claimant: G. Gill Counsel for the Defendant: J. Sandhu (Director G. Bassi via telephone Jan. 24, 2022) Place of Hearing: Surrey, B.C.

Dates of Hearing: January 24 and March 8, 2022 Date of Judgment: March 11, 2022 A Corrigendum was released by the Court on May 9, 2022. The corrections have been made to the text and the Corrigendum is appended to this document.

[ 1 ] On July 8, 2021, the claimant filed a Notice of Claim against the defendant advancing that it rendered two invoices for the repair of concrete work undertaken at the request of the defendant, and that both invoices remain outstanding.

In filing the Notice of Claim, a current Registered and Records Office address search was tendered to the file at the time that the filing was made. [ 2 ] There is a Certificate of Service in the file proving that the Notice of Claim and a blank Reply were sent by registered mail to the Registered and Records Office which received it on August 5, 2021. [ 3 ] No Reply was filed. [ 4 ] On September 16, 2021, the claimant received a Default Judgment against the defendant in the amount of $11,372.00, filing and service fees of $176.00, interest in the amount of $31.98, and default filing fees in the amount of $25.00 for a total amount due and owing of $11,604.98. [ 5 ] The claimant filed a Certificate of Judgment in the Land Title Office on October 1, 2021. [ 6 ] The defendant filed an Application to set aside the Default Order on January 7, 2022, with a scheduled court hearing date of January 24, 2022.

The Application is opposed by the claimant. EVIDENCE AND THE APPLICATION OF THE LAW [ 7 ] The test for setting aside a default judgment is that contained in the decision of Miracle Feeds v. D. & H. Enterprises Ltd., [1979] B.C.J. No. 1965 , wherein at para. 5 the test is: 1. That he did not wilfully or deliberately fail to enter an appearance or file a defence to the plaintiff’s claim; 2. That he made application to set aside the default judgment as soon as reasonably possible after obtaining knowledge of the default judgment, or give an explanation for any delay in the application being brought; 3.

That he has a meritorious defence or at least a defence worthy of investigation; and 4. That the foregoing requirements will be established to the satisfaction of the court through affidavit material filed by or on behalf of the defendant. [ 8 ] I have carefully considered all four prongs of the test in arriving at my decision. Wilful or Deliberate Failure to File [ 9 ] A Certificate of Service is filed and I am satisfied that there was good and valid service on August 5, 2021. [ 10 ] I turn my mind to the Affidavit of Karen Jones, Legal Administrative Assistant, filed on January 7, 2022.

There was no sworn or affirmed affidavits on the part of Mr. Bassi, the Director of the Defendant corporate entity. Exhibit C of the Affidavit of Ms. Jones contains a signed “affidavit” from Mr. Bassi, wherein at para 6., Mr. Bassi states: In or around September 2021, David L. Takahashi contacted me via phone and advised that he had received legal documents for Highmark. I did not receive copies of the documents nor any other correspondence regarding the legal documents. I was not advised that Highmark must take any action including filing a reply.

I was unaware of any default judgment application brought by the claimant against Highmark. [ 11 ] No additional evidence is provided by Mr. Bassi. [ 12 ] At Exhibit J of the Affidavit of Fiona Yee, Legal Assistant, filed on January 19, 2022, there is an email from Mr. Bains sent on December 9, 2021 at 1:37:12 p.m. which states: I have been retained by Highmark for this matter for which you have already obtained default judgment. My client advises he was never served with a notice of claim or any other correspondence for this matter.

Can you please share the certificate of service and affidavit filed for this matter. This is time sensitive as my client needs to deal with this matter in order to obtain financing. [ 13 ] This is completely contrary to what Mr. Bassi has stated in Exhibit C to the Affidavit of Ms. Jones wherein at para. 6 of Exhibit C, Mr. Bassi acknowledged that indeed “in or about September 2021” legal counsel contacted him from his Registered and Records Office address telling him that the office had received “legal documents for Highmark”.

At an absolute minimum, the Registered and Records Office received the written demand which is affixed or alternatively, the Notice of Claim. Mr. Bassi’s Exhibit C document is extremely vague. [ 14 ] There is no evidence before me as to why the defendant did not respond or file a defence to the Notice of Claim or take some action after being “advised” that his Registered and Records Office “had received legal documents for Highmark.” There is no evidence as to why Mr. Bassi, as the director of the defendant company took no steps to inquire as to the nature of the legal documents.

I find evidence of wilful blindness on the part of the defendant. Making an Application [ 15 ] There is evidence that is unchallenged in the Affidavit of Ms. Yee confirming that the Certificate of Judgment was filed in the Land Title office on October 1, 2021. Mr. Bassi confirms that he became aware of it on December 1, 2021. The Application to set aside was not filed until January 7, 2022, thus making it a 38 day delay before taking steps to set aside the Default Judgment. Mr.

Bassi, as the operating mind and director of the defendant company, provides no explanation as to the reason for the delay in taking steps.

[ 16 ] Page 54 to the Affidavit of Ms. Jones contains a letter dated December 1, 2021 from the solicitor for the financial lender placing the defendant’s funding solicitor on an undertaking to pay out and discharge, inter alia , the registered judgment and to discharge or settle the claim to discharge it within 25 days of the funding date. [ 17 ] On page 51 of the same Affidavit, the solicitor (Mr. Shoker) for the defendant wrote to the lender’s solicitor on December 2, 2021 at 9:44 a.m. as follows: With respect to the judgment, our office will hold back sufficient funds.

However, it will not be possible to have the judgment discharged (2b) or pay the funds into court (2c) within 25 days of funding. One of our litigation lawyers is going to be doing the application and advises that the Court will be closed for the holiday break and additional time will be needed in order to serve the judgment debtor and set down a hearing date. Since this is a Provincial Court file, there is no short leave. I will let you know later today, what a realistic timeline is once Mr. Bains has reviewed the file today. [ 18 ] That email included Mr. Bains’ email so he was aware of the pressing deadline.

As a factual point, the Provincial Court, (save and except weekends), was not impacted by any closures or any COVID-19 reduction in services for December 2021. With the exception of weekends, December 25 and 26, 2021, the court registry was in full operation and thus, there was no institutional delay nor was the court closed for “the holiday break” as Mr. Shoker advances. [ 19 ] Page 50 of the Affidavit includes an acknowledged receipt of the request by Mr. Alam, counsel for the financial lender, on December 2, 2021 at 9:53 a.m. and asks how much time is needed. Mr.

Shoker emailed back on December 2, 2021 at 2:23 p.m. (again including Mr. Bains in the notice), asking for “approximately 45 days” and Mr. Alam responded on December 2, 2021 at 2:29 p.m. (page 49) that this was acceptable (again, Mr. Bains who was the lawyer tasked with bringing the Application was included in that email). [ 20 ] The funding of the mortgage occurred and was registered on December 15, 2021 on the accepted undertakings. [ 21 ] There is no explanation as to why there was a delay from December 1, 2021 to January 7, 2022.

The defendant received the benefit of the financial funding and was aware of the requirements at a minimum from his counsel, both Mr. Shoker and Mr. Bains, to attend to the judgment. [ 22 ] The document to the Affidavit of Ms. Jones and namely Exhibit C, pages 60 and 61, is not signed by Mr. Bassi until January 3, 2022. There is no explanation provided as to why there was a one month delay on the part of Mr. Bassi to attend to any documentation required for filing and service upon the claimant. Meritorious Defence Advanced [ 23 ] There is nothing in the “affidavit” of Mr. Bassi nor in the Affidavit of Ms.

Jones as to any possible meritorious defence. Satisfying the Court of the Three Prongs in the form of Affidavit for the Court to consider [ 24 ] The Affidavit of Ms. Jones, namely at Exhibit C, pages 60 and 61, purport to contain Exhibits A through to D. There is nothing attached. In addition, the purported “affidavit” of Mr. Bassi does not contain the style of cause, is void of any exhibits, is not affirmed or sworn and the witnessing signature simply says, “I know the deponent who has signed in my presence and he is still in India until March, 2022”.

The drafting of the document is defective on a number of fronts. As noted, it was not signed until January 3, 2022. There is no explanation for the delay. [ 25 ] For consideration is if there is a meritorious defence and there is nothing in the signed document of Mr. Bassi nor in the Affidavit of Ms. Jones upon which this court could rely to conclude that there is a possible meritorious defence. Nothing has been put forward. [ 26 ] The Application was not filed until January 7, 2022, some five weeks at an absolute minimum that the defendant became aware of the Default Judgment.

That being said, I am however, not wholly convinced that Mr. Bassi was void of knowledge when first “advised” by the office of Mr. Takahashi “in or about September, 2021” (documents were served on August 5, 2021). There is no explanation for the delay in filing of documents. The court registry was open and accepting both in person and e-filings.

There is nothing in the materials to provide any possible meritorious defence. [ 27 ] The defendant seeks, in the alternative, to challenge the Order of myself that it be afforded a further adjournment from the one given on January 24, 2022, in which to file additional materials. I made an Order on January 24, 2022, that no further materials were to be filed. The defendant retained counsel to set aside the Default Judgment on his behalf, the defendant did not sign any “affidavit” until January 3, 2022, and it was counsel for the defendant who had control of the filing date and the date for the hearing.

The claimant should not be repeatedly inconvenienced with their counsel attending on multiple court dates in order to afford the defendant and his legal counsel additional time to properly prepare when the filing was in full knowledge and control of counsel for the defendant and the date for the hearing.

To grant multiple adjournments and additional filings is prejudicial to the claimant who followed all of the rules in the small claims regulations correctly and the claimant would incur additional costs for his counsel to attend on his behalf multiple times. [ 28 ] For all of the reasons set out above, the Application is dismissed. The Default Judgment stands and is payable forthwith. _______________________________ The Honourable Judge K. Arthur-Leung

Provincial Court of British Columbia CORRIGENDUM - Released May 9, 2022 In the Ruling on Application dated March 11, 2022, the following changes have been made: Paragraph 18 should read: [18] That email included Mr. Bains’ email so he was aware of the pressing deadline. As a factual point, the Provincial Court, (save and except weekends), was not impacted by any closures or any COVID-19 reduction in services for December 2021.

With the exception of weekends, December 25 and 26, 2021, the court registry was in full operation and thus, there was no institutional delay nor was the court closed for “the holiday break” as Mr. Shoker advances. _____________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia