



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Shen v. Chan,









2018 BCCA 4




Date: 20180105

Docket: CA43862

Between:

Shang Chen Shen

Appellant

(Plaintiff)

And

Edith Chan

Respondent

(Defendant)

And

Youti
Wan

(Defendant)

And

J
ohn A. Gunson
also known as
John Gunson Euro Canadian Construction Corp.

(Third
Party)






Before:



The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Hunter




On appeal from:  An
order of the Supreme Court of British Columbia
dated July 22, 2016 (
Shen v. Chan
, 2016 BCSC 1370,
Vancouver Docket S117400)




Appellant appearing on her own behalf:



S.C. Shen





Counsel for the Respondent Edith Chan:



K.A. Murray





Place and Date of Hearing:



Vancouver, British
  Columbia

November 29, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 5, 2018









Written Reasons by:





The Honourable Mr. Justice Tysoe





Concurred in by:





The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Hunter






Summary:

Appeal from an order of a
summary trial judge allowing Ms. Chans application to dismiss Ms. Shens
claim against her pursuant to Rule 9-7 of the Supreme Court Civil Rules. Ms. Shens
claim related to water leakage into her strata unit which she alleged was
caused by Ms. Chans negligence. Held: Appeal dismissed. Ms. Shen
failed to demonstrate that the summary trial judge made any error of fact or
law when he held Ms. Shen failed to prove the causes of the alleged leaks
or that the damage was caused by a breach of a duty on the part of Ms. Chan.





Reasons for Judgment of the Honourable
Mr. Justice Tysoe:

[1]

Ms. Shen appeals the order dated July 22, 2016 of a summary trial
judge allowing Ms. Chans application to dismiss Ms. Shens claim against
her.

[2]

Ms. Shens claim relates to water leakage into her strata unit
located at 700  1919 Beach Avenue in Vancouver.  She sued Youti Wan, the owner
of Unit 800 above her, and Ms. Chan, a real estate agent who deposed that
she was a friend of Ms. Wan and assisted her with matters relating to Unit
800.  The amended notice of civil claim detailed eight leaks alleged to have occurred
between May 2009 and December 2011, and claimed against both Ms. Wan and Ms. Chan
in negligence.

[3]

Ms. Wan passed away on April 6, 2014.  On the following day, Unit
800 was transferred to Allister David Chan, presumably by way of a transfer
signed by Ms. Wan before she died.  Ms. Shen alleges that Allister
David Chan is the son of Ms. Chan, and this is not denied by Ms. Chan.

[4]

In June 2016, Ms. Chan filed an application seeking the dismissal
of the claim against her on three bases.  The first basis was Rule 9-7 of the
Supreme
Court Civil Rules
, the summary trial rule.  The second basis was want of
prosecution.  The third basis was failure of Ms. Shen to comply with
orders made at two case planning conferences.

[5]

In her affidavit in support of the application, Ms. Chan deposed as
follows with respect to the alleged leaks:

(a)   she was not aware of the
precise cause or extent of each leak;

(b)   she believed the first leak
came from Unit 900 but Ms. Wan paid for the repair at the request of the
strata corporation;

(c)    she was unaware of the
second leak;

(d)   she was told by the tenants
in Unit 800 that they had flushed cat litter down the toilet causing it to
overflow, and the insurer of the strata corporation paid for the remediation,
with Ms. Wan paying the deductible;

(e)   she learned the fourth leak
had occurred while the tenants in Unit 800 were cleaning a bathtub, and Ms. Wans
insurer paid for the repair work;

(f)    she was told by a
representative of the strata corporation the fifth leak occurred when the
strata corporation retained a plumber to investigate the fourth leak;

(g)   the tenants moved out of
Unit 800 shortly after the fifth leak, and she arranged for the water supply to
Unit 800 to be turned off; and

(h)   she
was advised by a representative of the strata corporation that the seventh or
eighth alleged leak occurred at a time a contractor was renovating Unit 800 and
testing a new shower.

[6]

In her affidavit in response to the application, Ms. Shen deposed
as follows about the alleged leaks:

(a)    the first leak came from
Unit 800, and the damage was repaired by the strata corporation;

(b)    the second and third
leaks affected parts of Unit 700 (but she did not assert a cause for them);

(c)    the fourth leak (which
had been described in the amended notice of civil claim as the fifth leak) was
caused when an investigation was carried out into the causes of the previous
leaks  Ms. Shen quoted from a plumbers report that he had found water
leaking from [the] tub in 800 when the shower [was] used [and that] water [was]
leaking from [a] crack between [the] titles and [the] tub, but the report was
not appended as an exhibit;

(d)    the fifth and sixth leaks
(which had been described in the amended notice of civil claim as the sixth and
seventh leaks) affected parts of Unit 700 (but she did not assert a cause of
the leaks);

(e)    the eighth leak occurred
after she heard jackhammer noises from Unit 800, and she was told by the
resident manager that a contractor had been hired to replace a bathtub with a
shower; and

(f)    the
strata corporation shut off the water circuit for the bathroom of Unit 800
after the eighth leak, and Ms. Chans statement that the water was turned
off after the fifth leak was false.

[7]

Ms. Chans application was heard on July 11, 2016 and, in written
reasons issued on July 22, 2016 and indexed as 2016 BCSC 1370, the summary
trial judge dismissed the claim against Ms. Chan pursuant to Rule 9-7. 
The judge said he would not have dismissed the claim for want of prosecution if
he had not dismissed it under Rule 9-7, and he declined to rule on the third
basis relied upon by Ms. Chan.

[8]

Despite Ms. Chans contention that she was simply acting as a friend
of Ms. Wan, the summary trial judge found that Ms. Chan held herself
out as Ms. Wans property manager and agent and, as such, owed a duty of
care to Ms. Shen to facilitate communications between Ms. Shen and Ms. Wan
and had an obligation to take reasonable care to avoid conduct that entailed an
unreasonable risk of harm to Ms. Shen.  These findings are not disputed by
Ms. Chan on this appeal.

[9]

The judge held there was no evidence that anything Ms. Chan did, or
failed to do, caused any of the leaks alleged by Ms. Shen.  He said the
real evidentiary issue was whether Ms. Chan took reasonably quick steps to
investigate the source of the leaks when they occurred, arrange for repairs and
facilitate communication between Ms. Shen and Ms. Wan.  The judge
found that although Ms. Chans failure to provide Ms. Shen with Ms. Wans
contact information left Ms. Chan as the conduit between Ms. Shen and
Ms. Wan, there was no evidence that Ms. Chan failed to communicate Ms. Shens
concerns to Ms. Wan or that any failure of communication resulted in the
alleged damage to Unit 700.

[10]

The judge then turned to the issue of causation in more detail.  He
discussed each of the eight alleged leaks individually.  He held there was no
evidence of the causes of seven of the leaks.  He ruled that, while there was
some evidence as to the cause of the fifth leak (which Ms. Shen had
referred to as the fourth leak in her affidavit), it was hearsay evidence which
was not admissible because it was not shown to have been necessary for her to
have relied upon it.

[11]

Although it was not necessary to do so in light of his conclusion on the
issue of causation, the judge also addressed the issue of whether the alleged
damage was caused by a breach of the standard of care owed by Ms. Chan. He
held that, while there was some evidence of property damage to Unit 700, Ms. Shen
had failed to prove any breach of duty on the part of Ms. Chan or that any
breach of duty caused the damage.

[12]

In her factum, Ms. Shen says the summary trial judge erred in nine
respects.  In my opinion, Ms. Shen has not established the judge erred, in
fact or in law, when he held she had not proved the causes of the alleged leaks
or when he held she failed to prove the damage was caused by a breach of duty
on the part of Ms. Chan.  Several of the grounds of appeal relate to
issues which are not relevant to the bases upon which the judge dismissed the
claim against Ms. Chan.  I will deal with each of the grounds briefly.

[13]

Firstly, Ms. Shen says the judge erred by completely agreeing with Ms. Chans
affidavit.  At the hearing of the appeal, Ms. Shen spent considerable time
endeavouring to persuade us that all the documents provided by Ms. Chan
were fraudulent or otherwise questionable, and that none of her affidavit
evidence should have been accepted by the judge.  However, it was not what Ms. Chan
said in her affidavit that led the judge to dismiss Ms. Shens claim
against her.  Rather, the claim was dismissed because there was a lack of admissible
evidence regarding the causation of the leaks and a breach of duty by Ms. Chan.

[14]

Secondly, she says the judge erred by failing to accept correspondence
from the strata council that supported her submission that Ms. Chan
breached her duty of care by failing to repair the leakage.  This evidence is similar
to the hearsay evidence properly excluded by the judge when considering the
plumbers report.  Although this correspondence was admissible as part of the
narrative of the events which occurred during the relevant period of time, it
was inadmissible hearsay evidence on the issue of whether Ms. Chan
breached her duty of care.  In addition, the evidence does not overcome the
obstacle Ms. Shen faced of having to prove the causes of the leaks.

[15]

Thirdly, Ms. Shen asserts the judge erred in finding Ms. Chan
to be the only conduit between Wan, the Appellant and the strata council. In
the absence of any evidence that Chan communicated to Wan the Appellants
concerns respecting the water leakage. [
sic
]  All the judge found was
that Ms. Chans failure to provide Ms. Shen with Ms. Wans
contact information left Ms. Chan as the only conduit between Ms. Shen
and Ms. Wan.  The onus was on Ms. Shen to prove that a failure by Ms. Chan
to communicate with Ms. Wan caused any damage to Unit 700, and the judge
concluded that Ms. Shen did not discharge this onus.  It has not been
shown that he erred in that regard.

[16]

Fourthly, it is said the judge erred by concluding that Ms. Chan
took quick steps to investigate the leakage source and arranged for repairs.  On
my reading of his reasons for judgment, the judge did not make that finding. 
He stated it to be an issue arising on the evidence but it was not necessary
for him to decide the issue because he found there was no admissible evidence
as to the cause of any of the leaks.  He also found Ms. Shen failed to
prove any breach of duty on the part of Ms. Chan was the cause of the
damage.

[17]

Fifthly, Ms. Shen says the judge erred in finding no breach of duty
when she provided strata council documents demonstrating the strata council
made efforts to inform, or insist, that Ms. Chan should repair the source
of the water leakage.  This is a duplication of the second ground of appeal
raised by Ms. Shen.  These documents were not admissible on the issue of
whether Ms. Chan breached her duty of care, and the judge also dismissed
the claim on the basis that causation of the leaks had not been proven.

[18]

Sixthly, she maintains the judge erred in permitting the question of the
executor of Ms. Wans estate to remain unresolved.  Ms. Shen is
referring here to the uncertainty as to the identity of the proper executor of
the estate.  This issue relates to the prosecution of Ms. Shens claim
against Ms. Wans estate, and it is not relevant to the claim against Ms. Chan. 
The judge did not err in failing to deal with this question.

[19]

Seventhly, Ms. Shen says the judge erred in ignoring the delay in
her prosecution of the claim was caused by the failure to resolve the executor
issue, and in failing to answer the question of whether Ms. Wan left a
will.  The first part of this ground relates to the aspect of Ms. Chans
application to have the claim against her dismissed for want of prosecution,
but the judge did not dismiss the claim on this basis.  The second part of this
ground, like the sixth ground, relates to the prosecution of Ms. Shens
claim against Ms. Wans estate and is not relevant to the claim against Ms. Chan.

[20]

Eighthly, she contends the judge erred in dismissing her claim against Ms. Chan
by judging the Appellant did not comply with the case planning orders.  This
relates to the aspect of Ms. Chans application to have the claim against
her dismissed for failure to comply with the case planning orders, but the
judge declined to rule on that aspect of the application.  The claim was not
dismissed for failure to comply with the case planning orders.

[21]

Ninthly, Ms. Shen submits the judge erred by failing to take into
account that she and her family are still living in a damaged suite, which has
had a negative health impact and has led to financial loss.  The judge did not
fail to take this into account.  He found that there was some evidence
supporting Ms. Shens claim that she sustained damage from water leaks
into Unit 700.  The claim against Ms. Chan was not dismissed for failure
to prove damage.

[22]

Subsequent to the filing of her factum, Ms. Shen filed an
application to introduce fresh evidence, and the application was heard
concurrently with the hearing of the appeal.  The fresh evidence consists of an
affidavit sworn by Ms. Shen detailing failures to comply with the two case
planning orders and water leaks in Unit 700 in 2017.  I would not admit this
evidence because it does not meet the criteria set out in
Palmer v. The
Queen
, [1980] 1 S.C.R 759.  The evidence relating to the case planning
orders could have been adduced at the summary trial, and water leaks in 2017 go
beyond the scope of Ms. Shens claim because her amended notice of civil
claim deals with eight leaks alleged to have occurred between 2009 and 2011.  None
of the matters addressed in the affidavit would have affected the outcome of
the summary trial.

[23]

As Ms. Shen has not demonstrated an error on the part of the
summary trial judge in dismissing her claim against Ms. Chan, I would
dismiss the appeal.

The Honourable Mr. Justice Tysoe

I agree:

The Honourable Mr. Justice
Willcock

I agree:

The Honourable Mr. Justice
Hunter


