Saran v. United Collision Repair Ltd.

2016 BCSC 490 Saran v. United Collision Repair Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Saran v. United Collision Repair Ltd., 2016 BCSC 490 Date: 20160321 Docket: S142858 Registry: New Westminster Between: Kulwant Saran Plaintiff And United Collision Repair Ltd., Gobinder Khangura and Gurmit Khangura Defendants Before: The Honourable Mr. Justice Crawford Reasons for Judgment Counsel for Plaintiff: S.S. Grewal Counsel for Defendants: D. Kamachi Place and Date of Trial: New Westminster, B.C. February 22, 2016 Place and Date of Judgment: New Westminster, B.C. March 21, 2016 [1] The plaintiff Mr. Kulwant Saran seeks summary judgment against the defendants for the sum of $36,950; costs for two days of trial, namely 26 and 27 November, 2015; and costs of this application. [2] The legal basis for the application is somewhat original. It reads "it is in the best interest of the plaintiff if the required order is granted. Rule 12-5(76) of the rules of court anables [sic] the court to decide on the matter in the event fo [sic] a failure on the part of a party to attend the trial of the action". [3] In the notice of application's "Factual Basis" portion, the plaintiff says that the trial of the matter was set for November 26 and 27, 2015, but on November 26, 2015, neither the defendants nor their counsel showed up in court. The matter went before Madam Justice Arnold-Bailey who, according to the plaintiff, "directed" that

the plaintiff proceed to seek a default order in this matter given that the lawyer of record had not withdrawn and had failed to "show up at trial and failed to provide a reason to the court for not representing his clinet [sic] at the trial, aft [sic] having confirmed at the Trial Management Conference on November 4, 2015, he was ready to proceed". [4] Mr. Saran swore an affidavit in support saying the claim was for the $36,950 that was "loaned by me to the Defendants" and which had not been repaid despite repeated requests and demands. [5] He says further "on April 14, 2009, at the request of Gobinder Khangura, I got a draft made from the bank in the amount of $30,000 directly to Essex Collision in order to enable the defendants to purchase the assets of Essex Collision". [6] He then notes the rather slow progress of this action. Namely, a notice of civil claim filed June 6, 2012; response filed July 24, 2012; discovery of the defendants completed June 28, 2013; the plaintiff's notice to produce documents sent February 5, 2014; a request for documents sought on examination for discovery sent February 5, 2014; the notice of trial filed February 23, 2015; a trial management conference taking place November 4, 2015; a trial certificate "filed" in the matter November 4, 2015, and a trial record filed November 26, 2015. [7] Mr. Saran then deposes, consistent with the factual basis

asserted above, that on the trial date neither the defendants nor their counsel attended in court November 26, 2015, but Arnold-Bailey J. was not prepared to issue a default "order" and "directed" he proceed to seek a default order in this matter by filing the present application. The Pleadings [8] The claim of Mr. Saran repeats the claim for $36,950, explaining that at the request of Mr. Khangura, a draft of $30,000 was made out directly to Essex Collision in order to enable the defendants to purchase the assets that company, which was completed by the corporate defendant. [9] Paragraph 8 of the claim alleges part of the loan was paid by way of cheques which were made payable by the plaintiff to the corporate defendant on the express instructions of Gobinder Khangura, namely $1,000 on August 6, 2009; $3,000 on May 29, 2009; $1,350 on August 5, 2009; and $1,600 on June 18, 2009. That totals $6,950 and might account for the difference $30,000 and $36,950, save for the fact that it is said to be a part of the "payment of the loan". [10] Interestingly, the "Legal Basis" portion of the claim provided for the claim is said to be the Supreme Court Civil Rules (which is another original pleading) and other materials counsel may advise (which is common, but useless). [11] The defendant's response is in essence the following: the plaintiff and Mr. Khangura agreed to operate an

automobile repair business as partners, each with the 50% interest, under the name United Collision Repair Ltd.; they purchased the assets including the lease hold interest of Essex Collision Services Ltd. and began operating the business in Surrey, British Columbia; and that the business was not a financial success and the plaintiff abandoned it. Mr. Khangura pleaded he is trying to keep the business alive while the plaintiff is now "retroactively" claiming his purchase of 50% of the business was actually a loan. The defendants deny they were loaned any money as alleged, and put the plaintiff to the strict proof thereof. The Positions of Counsel [12] While both counsel spoke to the matter, no affidavit was filed by defendant party. Mr. Grewal, counsel for the plaintiff, also spoke of matters that were not in the plaintiff's affidavit. Plaintiff's Counsel [13] Mr. Grewal said that the day before the trial, November 24, 2015, he contacted Mr. Kamachi and was told that Mr. Kamachi was unable to get a hold of his client and would not appear at the trial. [14] It is on that basis Mr. Grewal says he attended at the courthouse in New Westminster on November 25, 2015. [15] Mr. Grewal also noted that he had attended a trial management conference on November 4, 2015, and Mr. Kamachi's articling student had attended. There, the presiding judge was satisfied (in spite of no trial briefs

being filed) that both sides were prepared and ready for trial. [16] With respect to the trial management conference, Mr. Kamachi said that in fact Mr. Grewal had contacted him shortly before November 4, 2015, advising that he had filed the trial management conference request and on short notice Mr. Kamachi then sent his articling student in his place. He did not contest that the presider at the trial management conference was told that the matter was ready to proceed. [17] However, with respect to the trial certificate required to be filed and served 14-28 days before trial (see R. 12-4(1)), it appears Mr. Grewal instead of filing the trial certificate in the registry so that it could get into a file, purported to file the matter at the trial management conference. The trial certificate did not get to the registry or the court file. [18] The trial record was likewise not prepared, filed and served 14-28 days before trial as required by the R. 12-3(3). It does appear a trial record was filed, but only on November 26, 2015, the same day that Mr. Grewal and his client went to the courthouse for a trial that was not on the trial list. [19] It then appear from the proceeding before Arnold-Bailey J., on the afternoon of November 26, 2015, that the registry could not find the court file. [20] Further, there were sufficient irregularities apparent in the process that Arnold-Bailey J.

would not issue the default judgment requested by the plaintiff. Defendant's Counsel [21] Mr. Kamachi is the solicitor of record for the defendants and appeared before me at the hearing on February 22, 2015. [22] In response to the plaintiff's application dated January 8, 2016, he said he had filed a response which is dated February 16, 2016. He alleges that the plaintiff did not serve the defendants a trial brief, a trial certificate or a trial record, all of which would put a party to the proceeding on notice a trial was set to determine the party's issues. [23] He further says that defendants needed an interpreter at the trial and in furtherance of securing one Mr. Kamachi checked with the trial coordinator at some stage to see whether the matter was on the trial list. At that time, he alleges he was advised the matter had been struck due to a failure to file a trial certificate. [24] It is thus clear that by November 26, 2015, Mr. Kamachi became aware of the irregularities and had no intention of going to trial, contrary to the advice given to the trial management conference judge. [25] Although he realized he had not been served the trial certificate and trial record, and the registry confirmed the matter had been struck from the list, he apparently advised Mr. Grewal he was not able to contact his client and would not be appearing at trial. He did so knowing full well

that if Mr. Grewal went to court on November 26, 2015, in all likelihood the matter would not proceed. [26] It is evident Mr. Grewal did attend the court house on November 26, 2015, found the action was not on the trial list, and the registry in its wisdom set the matter down in the afternoon of February 26, 2016, before Madam Arnold-Bailey . I'm equally satisfied that the only legal resort was an adjournment of the process of trial, and the suggestion and not a "direction" that the plaintiff could seek a default judgment. Conduct of Counsel [27] I cannot say that I was pleased with the actions of either counsel that appeared before me. [28] If matters were in dispute as to what had occurred between them the appropriate process is for them to file affidavits and hire independent counsel, for counsel cannot speak to their own affidavits. [29] This was not done. [30] Instead, both counsel purported to speak to the matter. [31] On the one hand, Mr. Kamachi is entitled to say he has not been served with a trial certificate or a trial record. However, he not only knew the plaintiff was under the impression the matter would proceed, but he had become aware the matter had been struck from the list. [32] He told the Court he was ready to proceed at the trial management conference, and then spoke with Mr. Grewal a day or so before the hearing and was not truthful with him when he

advised that he was not able to contact his clients and would not be attending. If he was on the record, which he was, he had an obligation to other counsel to advise them of the true state of affairs and, if need be, depend on the registry to reset the matter. To let Mr. Grewal proceed on the basis that he was not attending and not advise that the matter was not even on the list was inappropriate. [33] Against Mr. Kamachi's failings as counsel, Mr. Grewal seems to have not followed the Supreme Court Civil Rules in filing and serving the trial certificate, nor filing and serving the trial record, and the matter was struck from the list because of his inadequate process. [34] Further, in his submissions before Arnold-Bailey J. he was not frank in acknowledging the failures regarding the trial certificate and trial record. The Application for Summary Judgment [35] The use of R. 12-5(76) of the Supreme Court Civil Rules is odd in these circumstances for the rule allows the trial judge to deal with the absence of a party at trial and issue judgment. No judgment was issued. Had it been, and if the pleading clearly outlined a claim in debt, Arnold-Bailey J. might well have given judgment. But she did not, and simply adjourned the hearing. [36] That is not the situation before me, which should have been simply framed under the summary trial process. Even then, however, the affidavit

material is totally inadequate. [37] The affidavit evidence should state the facts of the loan, including who made the loan, to whom the monies were paid, and exhibit all the contractual documents (if any). [38] However, as near as I can distill from the pleadings the plaintiff may have made out a bank draft directly to Essex Collision, which may have been intended to be a loan, and it may be that there were several other loans in 2009. [39] The loan is said to be to the defendants, namely Mr. and Mrs. Khangura and the company. It is not clear who exactly may be liable for the loan. [40] None of the necessary factual evidence is set out in Mr. Saran's affidavit. [41] There is further no claim for interest and presumably no contractual basis for that, which would explain why there is a claim for court order interest. [42] The defendant's response to these allegations, as I can discern them, is that in fact the plaintiff is a joint partner in a business. However, the response which he entered in the registry on February 16, 2016 (and which Mr. Grewal failed to put in the application binder as it was not filed within in the time required by R. 8-1(9)), was not supported by the affidavit of his client. [43] Nonetheless, the court documents and recordings have satisfied me that there is still an issue to be tried between the parties, that liability is an issue as there needs to be

proof by the plaintiff as to the nature of the alleged loan, and if a loan is found, the amount that is outstanding must be calculated. [44] At the end of the hearing, I adjourned the motion generally. On further reflection, I order that if the plaintiff seeks summary judgement it should be done with a wholly new notice of application and affidavits in support, clearly stating which rules or other necessary laws are being relied on and outlining the evidence necessary for awarding judgment under them. Costs [45] My initial concern was that Mr. Saran had been put to unnecessary expense by preparing and attending for a trial that did not proceed. [46] However, I am not satisfied that Mr. Grewal taken the necessary steps to ensure the matter was on the trial list. While I am not amused by Mr. Kamachi's failure to advise Mr. Grewal that the matter had been struck from the trial list, it did occur due to Mr. Grewal's failure to properly follow the process for setting the matter for trial. [47] However, I likewise do not see any basis for ordering Mr. Kamachi's clients' costs for the attendance before me today. The unfortunate progress of this matter is in no small part due to his apparent delays, and the necessity of the application before me due to his lack of candour when discussing with opposing counsel their appearance on November 26, 2015. [48] In my view neither counsel has acted appropriately or forthrightly with each other. Both sides have failed to follow the rules and each side's pleadings, applications and affidavits leave much to be desired. [49] Given all of the above, each side will bear their own costs. "Crawford J."