Shoolestani v. Ichikawa

2017 BCSC 139 Shoolestani v. Ichikawa

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Shoolestani v. Ichikawa, 2017 BCSC 139 Date: 20170131 Docket: S151691 Registry: Vancouver Between: Amir Yashar Shoolestani, Amir Behzad Shoolestani, Esmail Shoolestani, and Ashraf Rezaei Pour Plaintiffs And Glen Isao Ichikawa a.k.a. Glen Ichikawa, Amnis Engineering Ltd., HDR Corp., HDR Inc. a.k.a. HDR, Inc. a.k.a. HDR, Kawa Engineering Ltd., Peter Kiewit Infrastructure Co., Kiewit Corporation, Kiewit Management Co., Peter Kiewit Sons Co. a.k.a. Kiewit, Knight Piésold Ltd. a.k.a. Knight Piésold Consulting a.k.a. Knight Piésold Defendants Corrected Judgment: The text of the judgment was corrected on the front page on April 5, 2017 Before: The Honourable Mr. Justice J. Sigurdson Reasons for Judgment Plaintiff Amir Behzad Shoolestani: Appearing as representative for Ms. Pour Plaintiff Ashraf Rezaei Pour: Appearing in person Counsel for Amnis Engineering Ltd., Glen Ichikawa, Kawa Engineering Ltd.: Guy P. Holeksa Courtney MacLachlan Place and Dates of Hearing: Vancouver, B.C. December 21, 2016 Oral Decision Given: January 20, 2017 Place and Date of Written Judgment: Vancouver, B.C. January 31, 2017 [1] These are my reasons for a decision I gave orally on January 20, 2017. [2] This is an application by Ms. Ashraf Rezaei Pour to amend Part 2 of the relief sought in her Notice of Civil Claim filed March 2, 2015 in order to claim

"compensation in contract or quantum meruit; in the alternative, restitution for unjust enrichment". [3] She wishes to make this application to amend and then pursue summary judgment or summary trial against Mr. Ichikawa. According to a written reply submission filed on behalf of Ms. Pour, her application for summary judgment is for $43,642.86 based in contract or quantum meruit for unpaid food services. [4] This application to amend is opposed by the "Amnis" defendants (Glen Ichikawa, Amnis Engineering and Kawa Engineering). They oppose on the basis that the limitation period for claims of quantum meruit and unjust enrichment expired before this action was commenced. [5] There were a number of arguments advanced in support of the amendment including the argument that the cause of action has been confirmed by the defendants and as such the Limitation Act is no bar to the amendment. [6] I have decided that the application for the amendment should be allowed and find that in the circumstances a number of the arguments advanced by the plaintiffs need not be considered in order to determine this application. [7] In her initial pleading Ms. Pour advanced a claim in contract for monies owing for food services that she said she provided. Although the plea was somewhat imprecise because there was no reference to it in the prayer for relief, it is clear that this claim was advanced by

her in contract. [8] The Amnis defendants acknowledge this. According to their counsel's written submission: "Although the Amended Notice of Civil Claim is not as precise as it should be, the Amnis defendants previously understood the claim was advanced solely against Ichikawa and solely in contract." The Amnis defendants go on to say: " the true amendments are to advance claims for quantum meruit and unjust enrichment." [9] In my view, the underlying facts supporting the cause of action and the alternative pleas of quantum meruit and unjust enrichment have already been pleaded and in the circumstances, if there is an argument that any of the relief sought is out of time, I have concluded it is too late for the defendants to make that argument. [10] Let me provide some relevant background. [11] The claim by Ms. Pour was filed March 2, 2015 together with claims of her husband and, at least in this particular proceeding, the claims of two of her sons. The claims by her sons are, in very general terms, claims for wrongful dismissal among other things. [12] The initial pleading by Ms. Pour contained these paragraphs: 61. On or about April 30, 2007, to make it more efficient during the work hours and the overtime hours for the employees of Amnis Engineering, Ichikawa requested from Ashraf [Ms. Pour] to cook for the employees of Amnis Engineering starting May 1, 2007. Ichikawa excluded Paul Bullock, the recently hired "Receptionist", since the Receptionist would only eat speciality food because of his health situation.

62. Ichikawa and Ashraf made a verbal agreement that Ichikawa would compensate Ashraf for the cost of service and food, beverages, deserts and snacks for lunch and overtime dinners at a rate of $2,000/month. Ichikawa and Ashraf agreed that Ichikawa would pay her annually in a lump sum because Ichikawa made representations to Ashraf that the Employer was short on cash and Ichikawa was expecting to receive large payments from the clients soon. Ichikawa asserted to Ashraf that "[Amnis Engineering] is yours". [13] Under the heading in the pleading entitled "Some Examples of Ashraf's Unpaid Compensation", Ms. Pour pleaded: 90. Ashraf approached Ichikawa in May 2008 to enquire about her compensation for food service. Ichikawa made excuses that he would pay Ashraf by the end of the year 2008. In December 2008, Ichikawa again postponed the payments for February 2009 when Ichikawa's brother, the Accountant, would come to Vancouver to balance the books.

91. Throughout her food service, Ashraf received compliments about the delicious, healthy and the variety of the foods being served.

92. After the Accountant arrived in Vancouver on February 24, 2009 Ichikawa advised Ashraf to stop the food service and Ichikawa refused to pay her for her service. This was a shock to Ashraf and other plaintiffs who were all working full-time for Ichikawa.

93. Ichikawa owes Ashraf one year and nine months and 23 days of service totaling $43,642.86. [14] Although, as I pointed out, the prayer for relief in the original Notice of Civil Claim did not make a specific plea insofar as Ms. Pour's claim is concerned, the Amnis defendants replied on March 25, 2015 by filing a Response in which they answered Ms. Pour's claim. [15] The Amnis defendants denied the facts alleged above in Ms. Pour's pleading. They pleaded as well to the claims of Ms. Pour's sons and her husband. In particular, they referred to the plaintiff Amir Yashar Shoolestani allegedly being dismissed for cause on March 31, 2009, that the plaintiff Amir Behzad Shoolestani was dismissed for cause on March 31, 2009, and the plaintiff Esmail Shoolestani was dismissed for cause on February 24, 2010. [16] Insofar as the claim raised by Ms. Pour was concerned, the defendants pleaded that "the plaintiff Ashraf Rezaei Pour was never hired by, employed by or had any contractual relationship with Amnis Engineering Ltd. or with any other Defendant in this action." [17] Ms. Pour accordingly has pleaded that she provided food services at Mr. Ichikawa's request and was not paid. The Amnis defendants denied that she had a contract with Amnis or any defendant. [18] In my view, the essential facts to advance a claim in contract or in quantum meruit or unjust enrichment have already been

pleaded. In Credential Securities Inc. v. QTrade Canada Inc., 2014 BCSC 345, this Court discussed what constitutes a pleading of a cause of action: Cause of Action [40] Critical to the argument of Qtrade is its assertion that the amendments raise new causes of action. Because of what I am told is the sparseness of the law relating to what constitutes a cause of action for the purposes of amendments, the defendants turn to judicial considerations of what constitutes a cause of action from the law relating to cause of action estoppel. [41] In particular, there is a detailed consideration of what constitutes a cause of action in Grant McLeod Contracting Ltd. v. Forestech Industries Ltd., 2008 BCSC 756. In part, Mr. Justice Josephson noted: [19] In order to determine whether the claims advanced in this action constitute a separate and distinct cause of action, it is first necessary to address what constitutes a cause of action. [20] In the context of cause of action estoppel, one definition often quoted is the following statement from Diplock L.J. in Letang v. Cooper, [1965] 1 Q.B. 232 at 242-43 (C.A.): A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The B.C. Court of Appeal accepted this definition in Mohl at ¶23. [21] In Comeau v. Breau 1994 CanLII 4469 (NB CA), (1994), 145 N.B.R.

(2d) 329 (C.A.), the New Brunswick Court of Appeal defined "cause of action" in the context of cause of action estoppel as the combination of facts which give rise to the right of action by a party against another in the first action. At ¶18 the court held: The appellants argue that an action founded in tort cannot be res judicata with one founded in contract. They miss the point. What is the same in this case is the "cause of action", that is, the combination of facts which gave rise to the right of action pursued by Comeau against the others in the first action. Because the appellants framed their action in contract in one case and in tort in the second action does not change the determinative issues which the first court heard and decided and the second court was asked to redetermine but with a different result as the objective. [22] In the issue estoppel case of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460, Binnie J. for the Court provided the following definition of "cause of action" at ¶54: A cause of action has traditionally been defined as comprising every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court: Poucher v. Wilkins (1915), 33 O.L.R. 125 (C.A.). Establishing each such fact (sometimes referred to as material facts) constitutes a

precondition to success. It is apparent that different causes of action may have one or more material facts in common. [23] Black's Law Dictionary, 8th ed., s.v. "cause of action" defines a cause of action as: 1. A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person Under the same heading, Black's Law Dictionary also defines "new cause of action": A claim not arising out of or relating to the conduct, occurrence, or transaction contained in the original pleading [42] Credential submits this statement of the law is not applicable in this context. In my view, however, these descriptions obviously apply whether the cause of action is being looked at in the context of cause of action estoppel or in the context of amendments to pleadings. What constitutes a cause of action must logically be consistent. [19] While the facts giving rise to Ms. Pour's claim in contract, and in quantum meruit, were pleaded in a somewhat confusing manner, they were nevertheless pleaded. [20] The defendants nevertheless assert that the amendment should not be allowed because the limitation period had passed before Ms. Pour's claim was commenced. [21] In the circumstances, even if the defendants are correct, I do not agree that the Limitation Act is a bar to the amendment. [22] The same facts that

are relied on by the plaintiff in support of the quantum meruit/unjust enrichment claim are the facts advanced at the outset in support of the contract claim. The Amnis defendants did not raise a limitation defence in their Response although they responded directly to the claim of Ms. Pour and now a significant period of time has passed. [23] A limitation defence must be pleaded by a defendant. Where the material facts were known to the defendant and the defendant fails to plea the limitation defence or acts in a manner that permits the court to infer that it has effectively waived the limitation defence, then the action will not be statute barred (see Hrynenko v. Hrynenko (1997), 1997 CanLII 2093 (BC SC), 37 B.C.L.R. (3d) 35 9-10, [1998] 2 W.W.R. 412 (S.C.) (aff'd in Hrynenko v. Hrynenko (1998), 1998 CanLII 5992 (BC CA), 58 B.C.L.R. (3d) 258, [1998] B.C.J. No. 2945 (Q.L.) (C.A.)); see also Chouinard v. Army & Navy Dept. Store Ltd., 2008 BCCA 353.) [24] I find that on these facts any limitation date was waived and that applies to an amendment based on the same essential facts. [25] I would add that even if the conclusion above is not correct, there is an argument that, under the circumstances, it is just and convenient to grant the amendment. Due to the relatively short delay (the claim was advanced on March 2, 2015 and the limitation period arguably expired on February 24,

2015), as well as the close connection of this food service claim to the existing employment claims of the other plaintiffs and the absence of any serious prejudice to the defendants, the argument is that it would be just and convenient to grant the amendment. However, given my conclusion, I need not consider this alternate argument. [26] In the result, the proposed amendment is allowed. [27] The plaintiff Ms. Pour seeks costs. She may file a written submission on costs within seven (7) days and counsel for the Amnis defendants may reply within seven (7) days. Those written submissions must be no longer than four (4) pages. "The Honourable Mr. Justice J. Sigurdson"