



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Chang v. Leung,









2016 BCCA 42




Date: 20160115

Docket: CA43053

Between:

Da Wei Chang

Appellant

(Plaintiff)

And

Elizabeth Foo-Yun
Chang Leung, Executrix of the Estate of Hsieu Chang also known as Chen Hsieu
Chang also known as Chang Chen Hsieu, deceased

Respondent

(Defendant)




Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Mr.
  Justice Fitch




On appeal from: an
order of the Supreme Court of British Columbia, dated
July 30, 2015 (Chang v. Leung, Vancouver Registry No. S078347)

Oral Reasons for Judgment




No one appearing on behalf of the Appellant:






Counsel for the Respondent:



J.D. Whyte





Place and Date of Hearing:



Vancouver, British
  Columbia

January 15, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 15, 2016








The appellant appeals the
dismissal of his property action in a summary trial. The appellant filed no
material in response to the summary trial application, nor did he attend the
hearing of the application or appeal. Held: Appeal dismissed. The appellants
failure to adduce evidence on the summary trial application was properly held
to be fatal to his claim. The remaining grounds of appeal are also without
merit.

[1]

FITCH J.A.
: The appellant, Da Wei Chang, appeals the dismissal of
his action in a summary trial heard July 30, 2015.

[2]

Mr. Chang has not appeared at the hearing of his appeal this morning. He
has been paged on at least two occasions and has not responded to those pages.
We have been advised by counsel for the respondent that he has been in touch
with the Registry this morning and the Registry has not received contact from
the appellant this morning either. We have, however, had the opportunity to
read the reasons of the summary trial judge and the factums that have been
filed on this appeal. In my view, this appeal should be dismissed on its
merits.

BACKGROUND

[3]

The background facts necessary to dispose of this appeal may be briefly
stated.

[4]

The respondent, Ms. Leung, is the executrix of the estate of her mother,
Hsieu Chang. Mrs. Chang died on May 25, 2007. Mrs. Changs husband predeceased
her in 2001. The appellant and respondent are siblings.

[5]

In May 1988, Mr. and Mrs. Chang purchased residential property in
Surrey, British Columbia (the Surrey Property) for $175,000. They supplied
the entirety of the purchase price.

[6]

The Surrey Property was registered in the names of Mr. Chang, Mrs. Chang
and the appellant as joint tenants.

[7]

On January 9, 1998, Mr. and Mrs. Chang severed the joint tenancy by
transferring their interests in the Surrey Property to themselves as joint
tenants, but as tenants in common with the appellant. Thereafter, Mr. and Mrs.
Chang held an undivided two-thirds interest in the Surrey Property as joint
tenants, and the appellant held an undivided one-third interest in the Surrey
Property as a tenant in common with Mr. and Mrs. Chang.

[8]

Mrs. Chang executed her last will and testament on July 10, 2000. In it,
she bequeathed $10 to the appellant with the remainder of the estate to be
divided between her other children. One of her stated reasons for doing so was
that a one-third interest in the Surrey Property had already been given to the
appellant. Mrs. Chang confirmed the will in a codicil executed July 6, 2005.

[9]

Mr. Chang Sr. died on January 11, 2001. His interest in the Surrey
Property passed to Mrs. Chang by right of survivorship.

[10]

In 2004 and 2005, the appellant sought to sell his one-third interest in
the Surrey Property back to his parents or, in the alternative, purchase his
parents interest in the property. The letters proposing this arrangement,
which were authored by the appellant, are addressed to Mother and Father and
Dad. It would seem the appellant was unaware that his father had died in 2001.

[11]

Mrs. Chang died on May 25, 2007. Her interest in the Surrey property
passed to her estate and constitutes virtually the whole of the estate.

[12]

On December 10, 2007, the appellant commenced the action that is the
subject matter of this appeal (the Property Action). He alleged he had been a
party to an oral agreement with Mr. and Mrs. Chang that they would not sever
the joint tenancy in which the Surrey Property was originally held without his
consent. Among other things, the appellant sought a declaration that he is the
sole legal and beneficial owner of the Surrey Property. The Property Action was
commenced nine years and 11 months after the cause of action arose - January 9,
1998, being the date upon which Mr. and Mrs. Chang severed the joint tenancy.

[13]

In May 2008, the respondent applied to prove Mrs. Changs last will and
testament and the codicil in solemn form (the Probate Action). The appellant
contested the Probate Action, challenging the validity of the will on grounds
that Mrs. Chang lacked testamentary capacity and that the will was a product of
coercion and/or undue influence.

[14]

Pending resolution of the Probate Action, the appellants Property
Action was held in abeyance. Resolution of the Probate Action was required
before the respondents authority to defend the appellants Property Action
could be confirmed.

[15]

By reasons for judgment dated June 3, 2013 (indexed at 2013 BCSC 976),
Madam Justice Dardi found that the last will of Mrs. Chang was a valid and
subsisting will which had been proven in solemn form. The appellants appeal
from the order of Justice Dardi was dismissed by this Court on January 21, 2014
for reasons indexed at 2014 BCCA 28. The respondent obtained a grant of probate
of the will on May 15, 2014. The appellants further application for leave to
appeal to the Supreme Court of Canada was dismissed on November 6, 2014.

[16]

On June 27, 2014, counsel for the respondent wrote the appellant noting
that the appellants counsel on the Property Action had withdrawn as solicitor
of record. The respondent re-served her Response to Civil Claim in relation to
the Property Action on the appellant personally and asked that the appellant
supply his List of Documents on or before July 11, 2014. The appellant took no
steps to prosecute the Property Action.

[17]

On January 15, 2015 the respondent served her List of Documents upon the
appellant. Once again, the appellant took no steps to prosecute the Property
Action.

[18]

On July 7, 2015 the respondent filed a summary trial application which
sought dismissal of the appellants Property Action. The application and
supporting materials were delivered to the appellants address for service (the
address of the Surrey Property) on July 12, 2015. The affidavit of service,
which was before the summary trial judge, reflects that these materials were
posted to the gate at the appellants address for service.

[19]

The summary trial application was returnable on July 30, 2015.

[20]

The appellant filed no material in response to the summary trial
application, nor did he attend the hearing.

[21]

The summary trial judge allowed the respondents application and
dismissed the appellants Property Action, with costs. She noted that the
appellants contention he believed himself to be entitled to his parents
interest in the Surrey property on their death was inconsistent with his
efforts to sell his one-third share to them, or acquire their share, in 2004
and 2005. More importantly, she noted that the appellants action was
unsupported by any evidence. Her reasons for allowing the respondents application
for dismissal of the appellants claim were expressed as follows:

I believe that absent any opposition and sworn evidence from
Mr. Chang with respect to the alleged oral agreement, that on several bases the
action should be dismissed.

Firstly, that there is no evidence of a written or oral
agreement, express or implied, between the deceased, Mr. and Mrs. Chang, and
the plaintiff that they would not without his consent sever the joint tenancy.
There is also no evidence  of any consideration that flowed from the plaintiff
to either of his parents  to support that agreement.

It is also an agreement that would necessarily have been
required to be in writing pursuant to Section 59(3) of the
Law and Equity
Act
[because it]  concerned an interest in land. And lastly the limitation
period would have run from the date upon which the severance occurred. And that
was January 9, 1998. The plaintiff [has] provided no evidence that there was a
delay in his discovery that such severance had occurred and therefore there is
no postponement of the limitation period and therefore the last day the
plaintiff could file the action was on January 8, 2004, and he missed that
limitation period by almost four years

So for all -- so on all those
grounds, I find the action of the plaintiff must be dismissed with costs to the
defendant.

[22]

The appellant advances nine grounds of appeal. He is self-represented
and English is likely not his first language. It is difficult to discern the
appellants position in relation to many of these grounds, and I am grateful to
counsel for the respondent who has attempted to group the appellants various
complaints into discrete categories.

[23]

Before dealing with the appellants grounds of appeal, I note at the
outset that the appellant has included material in his Appeal Book that was not
before the summary trial judge, including what purports to be a handwritten
loan agreement relating to the Surrey Property. In addition, the appellants
factum refers to evidence and documents that were not before the summary trial
judge. No application to adduce fresh evidence is before us and I would not
admit this evidence for the first time on appeal.

[24]

Several grounds of appeal relate to the summary trial judges decision
to proceed with the application. First, the appellant appears to take issue
with the proposition that he was properly served with notice of the
respondents summary trial application. He says the respondent played tricky
on document delivery. I see no merit in this ground of appeal. The notice of application
and accompanying materials were left at the appellants address for service in
accordance with Rule 4-2(2) of the
Supreme Court Civil Rules
.

[25]

The appellant argues that the summary trial judge ought to have given
effect to medical notes dated August 22, 2014. I take this to be a complaint
that the summary trial judge ought to have adjourned the application. There is
no merit in this argument. The appellant put no medical evidence before the
summary trial judge, nor did he seek an adjournment of the application.

[26]

The appellant also alleges that the action was unsuitable for
disposition by way of summary trial proceeding. In support of this position he
cites the test applicable on applications for summary judgment. That test had
no application in the circumstances of this case. The appellant chose not to
respond to, or participate in, the summary trial application. In the result,
his argument that the action was not suitable for disposition by way of summary
trial proceedings is asserted for the first time on appeal. Even if we were to
entertain the appellants submission on this point, in the absence of any
evidence supporting his claim, the action was suitable for disposition by way
of summary trial proceeding.

[27]

The appellant submits that the summary trial judge erred by failing to
accept admissible evidence. There is no merit in this complaint as the
appellant offered no evidence in response to the application.

[28]

The appellant also complains about the conduct of the respondents
counsel on the summary trial. He submits that it was improper for the
respondents counsel to refer to the Probate Action. He further submits that
the respondents counsel misled the summary trial judge by advising that the
Probate Action was at an end. Again, there is no merit to either of these
submissions. It was entirely proper for the respondents counsel to refer to
the Probate Action as part of the procedural history of the matter and to
explain why the appellants Property Action was held in abeyance until 2014.
Contrary to the appellants submission, the Probate Action is at an end and the
respondents counsel accurately conveyed this state of affairs to the summary
trial judge.

[29]

Finally, the appellant submits that the summary trial judge did not
properly calculate the limitation date which applied to his Property Action. Clearly,
this was an alternative basis upon which the appellants action was dismissed.
Even assuming error in the calculation of the limitation period, a point not
conceded by the respondent, that error could not possibly have affected the
result for the simple reason that the appellant, having been duly served with
notice of the summary trial application, adduced no evidence to support his
claim.

[30]

In the result, I would dismiss the appeal. Regrettably, the appellants
pursuit of this unsupported action and meritless appeal has caused considerable
delay and expense. I would order that the respondent have her costs of the
appeal against the appellant, with the balance of her legal expenses to be paid
as special costs out of the estate.

[31]

SAUNDERS J.A.
: I agree.

[32]

KIRKPATRICK J.A.
: I agree.

[33]

SAUNDERS J.A.
: The appeal is dismissed. The respondent shall have
her costs of the appeal against the appellant, and the balance of her legal
expenses are to be paid as special costs out of the estate.

The
Honourable Mr. Justice Fitch


