IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  Mr. Malek Mohammadi's claim is for wrongful dismissal.  He was given a letter of termination -- actually, a letter offering him a transfer, on July 30th, 2015.  Mr. Malek Mohammadi worked in sales as a supervisor.  Once he received that letter, he immediately concluded it was provided in bad faith; that this was an attempt by the company to dismiss him constructively by transferring him to a Coquitlam store.  He made no inquiries whatsoever of Mr. Haghnegahdar or made any inquiries with respect to what he would be paid or the conditions of employment at the new job with the person running that store.

[2]           He proceeded with a complaint at the Employment Standards Branch.  That matter went through a hearing and was appealed.  This matter proceeded before me with an application by the defendant, Mr. Haghnegahdar, who has filed a reply, to have Mr. Malek Mohammadi's claim dismissed for failure to comply with a disclosure order made at a settlement conference.  Indeed, it is quite clear that Mr. Malek Mohammadi did not comply with that order.  However, that was with respect to the trial.

[3]           With respect to his application for default, I allowed him to rely on a binder of materials which was produced and provided to counsel for the defendant on the trial who is acting for both the company and Mr. Haghnegahdar in this matter.  That binder contains insufficient documentation to establish his claim before this court.  Instead, Mr. Malek Mohammadi continually referred to the findings of the Employment Standards at original hearing.  He did not mention to the court that the matter had gone through to an appeal.  He asked the court to revisit many matters including commissions, vacation pay, and medical that were addressed both in the Employment Standards' original hearing and at the appeal.  I find if the court were to do so and not defer to the Employment Standards' finding, there is insufficient evidence before the court for the court to even embark on a reassessment of those issues.

[4]           Mr. Malek Mohammadi insisted that because certain findings had been made in the Employment Standards hearing and appeal that he was simply going to rely on those and that is what he thought he could do.  So we proceeded on that basis through his application for default.  However, then it became clear that, in fact, he disagreed with some of the findings made and was going to be asking the court for new findings.  I have indicated, the court is not in a position to do that and he has failed to prove to the balance on the evidence before the court that there is even a basis to revisit the findings made at the Employment Standards hearing.

[5]           Mr. Malek Mohammadi did not produce evidence of his income over a number of years in order to allow the court to come to a fair conclusion as to what income his notice should be based on.  He produced only information with respect to the first five months of 2015 up to the time of his dismissal, presumably because that was the most favourable figure that he wanted the court to deal with.  There is certainly a suggestion that his 2015 income up to the time of the offer of the transfer was disproportionately high due to certain commissions paid during the early part of 2015.

[6]           Counsel for the defendant company and Mr. Haghnegahdar, however, did produce his 2013 and 2014 income.  Averaging those incomes out and giving the benefit of the highest possible income for 2015 to Mr. Malek Mohammadi, I come out to an average monthly salary of $4,079.  During the entire period of time that Mr. Malek Mohammadi was off work, he was, although he says he was fit to return to work, for some reason, continuing to receive Worker's Compensation benefits in the amount of $2,648 a month.  The difference, then, between the $4,079 a month which would be his average over 2013, 2014, and 2015, is $1,431 a month.  Because he commenced his work in August of 2015, at his new monthly salary of $3,350 for that month it would be $729.  This yields a total potential notice payout to him of $15,039.  However, he already received $8,761 from the Employment Standards Act which means that at best his claim here today would be $6,278.  That covers 10-and-a-half months which, again, does not appear to be at issue.

[7]           I am not certain that in the particular circumstances of this case that Mr. Malek Mohammadi would be entitled to the general one-month-per-year-of-service which is generally applied to people in executive positions, but even given that that was the case, that would be his maximum amount.  The primary issue on this application for default is whether he is entitled to any notice at all due to a failure to mitigate.

[8]           As I have indicated, he was offered a transfer.  He dismissed that transfer out of hand because it was in Coquitlam as opposed to North Vancouver.  The length of commute would have been, and I will infer, about 45 minutes to the Barnet Highway area of Coquitlam.  Mr. Malek Mohammadi insisted here, and did so at the Employment Standards as well, that he could not have taken that employment due to the needs of his child.  He has a special needs child and said that he could not work outside of North Vancouver.  However, it turns out that the job he did eventually take is in the western part of Burnaby off Boundary Road and fairly close to 1st Avenue.  So, clearly, that is not something that was a compelling reason not to take the job because it would have been only another 15 minutes or so from there going against traffic to the area of the store in Coquitlam along the Barnet Highway.

[9]           Mr. Malek Mohammadi's evidence was rife with inconsistencies and I find he dissembled repeatedly throughout his testimony.  It was difficult to get a single responsive answer from him.  On many issues, he was evasive and despite being pressed with clear questions continued to suggest that he was somehow confused or otherwise.  If I accept his level of confusion to be sincere that in itself makes his evidence unreliable.

[10]        He was unable to provide accurate evidence and repeatedly claimed he did not remember material evidence relating to conversations with the person at the new place he was to be transferred to or dates.  All in all, I found his evidence to be most unsatisfactory.  I do not accept his evidence about his inability to work outside of North Vancouver due to the needs of his child.  I do not accept that his stated confusion in many areas was even sincere.  Most significantly, there is no corroboration anywhere regarding the information he says he obtained from a different director that that transfer was not bona fide.  Both Mr. Haghnegahdar and the person running the new store he was being transferred to were both directors of the company that operated that store.  In fact, the letter transferring Mr. Malek Mohammadi to the new store was copied to that very person.

[11]        In the appeal decision commencing at paragraphs 40 and running through to 49, the question of whether the geographic transfer constituted a constructive dismissal was addressed.  I adopt the reasons therein and I agree with the conclusion of the tribunal member, Mr. Thornicroft, that, in fact, there was not a basis to conclude that the transfer amounted to a constructive dismissal.  There is no evidence before me to suggest otherwise.  Indeed, as I find, Mr. Malek Mohammadi dismissed that option out of hand and there is insufficient evidence to establish that this was anything other than reasonable alternative employment.

[12]        As a result, I do not find that Mr. Malek Mohammadi has established on this application for default against the company that he is, in fact, entitled to any award of damages over and above that already provided to him under the Employment Standards rulings.  So the application for default against the company is dismissed.  Mr. Whyte?

[13]        MR. WHYTE:  Yes, sorry, Your Honour, I did not mean to interrupt.  I have some submissions.

[14]        THE COURT:  With respect to the claim against Mr. Haghnegahdar, the ruling I have just given effectively disposes of that claim, as well.

[15]        Earlier, there was an application that Mr. Malek Mohammadi's claim be dismissed for failure to disclose his documents.  Having heard now the evidence that I have from him on his application for default against the company, I now will dismiss the claim against Mr. Haghnegahdar.  I already ruled that I would not permit Mr. Malek Mohammadi to rely on the documents because of not disclosing them in time.  He offered no reasonable excuse for not complying with the order of Judge Moss at the settlement conference.  He simply said he did not get around to it and that is an insufficient reason to have late disclosure in this matter.

[16]        I have already indicated the documents are insufficient, in any event, to establish a claim against Mr. Haghnegahdar.  Furthermore, I accept that with respect to the claim against Mr. Haghnegahdar, Mr. Malek Mohammadi is in the wrong court.  Pursuant to the definition of "corporation" in s. 1 of the Corporations Act if he wishes to pursue that matter, he would need to file in Supreme Court.

[17]        Any further issues that need to be --

[18]        MR. WHYTE:  Yes, Your Honour.  Now that Your Honour has rendered judgment on all aspects of this matter, on behalf of the defendants, I am seeking an order effectively for costs on the basis of an offer to settle, and this is now the appropriate time to bring this to the attention of the court.

[19]        THE COURT:  [RECORDING EQUIPMENT TURNED ON] ... advise now that Mr. Malek Mohammadi has left.  He has -- I take it he has taken his materials and gone?

[20]        THE CLERK:  That is correct, Your Honour.

[21]        THE COURT:  Mr. Whyte, what I am going to do is -- this is all very new, but because the offer was made -- unless you want to make further argument on this, because this offer was made and rejected at a time when our limit was $25,000 as opposed to $35,000, in my view, the 20 percent penalty should apply on the $25,000 limit.

[22]        MR. WHYTE:  Yes.  I have no submissions, Your Honour.

[23]        THE COURT:  So that is $5,000 which will be payable to -- I am sorry, may I just -- okay.  So that was on behalf of both defendants.  So that will be payable to -- well, I suppose Mr. Haghnegahdar and/or Canadian Carpet & Tile - BC Inc.

[24]        MR. WHYTE:  Yes, I propose that it is to be made payable to Mr. Haghnegahdar.

[25]        THE COURT:  Yes, any other costs?  I do not think you had any other expenses?

[26]        MR. WHYTE:  No, there is undoubtedly a few photocopy expenses.  I do not have that material with me.

[27]        THE COURT:  But no filing expense, right?

[28]        MR. WHYTE:  I do not think so.  I do not think there is an expense for --

[29]        THE COURT:  I do not see any on that reply.

[30]        MR. WHYTE:  I do not think there is an expense for filing a reply, is there, in this court?

[31]        THE COURT:  No, not unless there is a counterclaim.  All right.  So I will make the -- I am not going to make a payment order with respect to the $5,000.  He will have to come to court and ask for a payment hearing unless you want me to -- he is not here to discuss what a payment hearing might be.

[32]        MR. WHYTE:  No, he is not and so the process from here, should my client wish to proceed with it, is that he will need to bring on -- basically apply for a payment order.

[33]        THE COURT:  Yes.

[34]        MR. WHYTE:  Okay, well, that is fine.  I can take instruction from that at some other time.

[35]        THE COURT:  Okay.  All right.  Thank you, and is -- the family matter is now stood down to 2:00 p.m.?

[36]        THE CLERK:  2:00, yes, Your Honour.

[37]        THE COURT:  All right.

[38]        THE CLERK:  Sorry, just clarification, Your Honour.  So the claim has been dismissed against both company and Mr. --

[39]        THE COURT:  Haghnegahdar.

[40]        THE CLERK:  -- Haghnegahdar?

[41]        THE COURT:  Yes.

[42]        THE CLERK:  Yes, okay, thank you.

[43]        MR. WHYTE:  Thank you.  Your Honour, I suppose I should ask this just in terms of procedure.  The evidentiary record, then, to support my client's potential application for a payment order, does the fact that Your Honour has made this appear in the trial record that will shortly be --

[44]        THE COURT:  Yes, yes.

[45]        MR. WHYTE:  Yes, okay.

[46]        THE COURT:  You will get an order and then he just simply needs --

[47]        MR. WHYTE:  Okay.

[48]        THE COURT:  -- to make application for a payment hearing at the registry once -- depending on what efforts.

[49]        MR. WHYTE:  Okay, that is simple enough.  Thank you.