



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Chang v. Hua,









2018 BCCA 13




Date: 20180105

Docket: CA44562

Between:

Angela An-Chi Chang

Respondent

(Plaintiff)

And

Xing Xiu Hua

Appellant

(Defendant)




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice MacKenzie




On appeal from: an
order of the Supreme Court of British Columbia, dated
June 29, 2017 (
Chang v. Hua
, Vancouver Registry No. S1610493)

Oral Reasons for Judgment




Counsel for the Appellant:



J.W. Ryan





Counsel for the Respondent:



K.G. McKenzie





Place and Date of Hearing:



Vancouver, British
  Columbia

January 4, 2018





Place and Date of Judgment:



Vancouver, British Columbia

January 5, 2018








Summary:

Appeal from
a summary trial order in relation to a failed property purchase. The purchaser
alleged the vendor failed to mitigate her damages. Prior to and on the date of
the summary trial the purchaser sought an adjournment of the trial in order to
obtain allegedly pertinent document discovery and examination for discovery of
the vendor. The judge refused, finding there was sufficient evidence to decide
the issues and that the claimed discovery was, as the purchasers counsel
conceded, speculative. Held: appeal dismissed. The judge properly exercised her
discretion on the evidence before her. The appellant did not meet the test to
overturn a discretionary order and did not establish palpable error needed to
overturn the finding of fact that the vendor made bona fide efforts to sell the
property in mitigation of her damages.


[1]

KIRKPATRICK J.A.
:
This is an appeal from an
order following a summary trial which granted judgment against the appellant.
The appellants argument focuses on errors alleged to have been made by the
trial judge, when, under a separate order, she dismissed the appellants
application to adjourn the summary trial. The appellant contends the judge
erred in refusing the adjournment which, she says, would have permitted her to
obtain documents and discovery relevant to the issue of mitigation of damages.

[2]

It is unnecessary to provide an extensive recitation of
the dispute between the parties. It centred on a failed property purchase. The
respondent was the vendor of a newly-built home in Vancouver. The appellant
purchaser acknowledged that she did not complete the transaction but argued
that it had been voided by mutual agreement. In the alternative, she argued
that the vendor had failed to mitigate her damages.

[3]

The contract of purchase and sale was entered into on
June 12, 2016. The completion date was scheduled for September 28, 2016. It was
extended to October 14, 2016 on the condition that the deposit be increased by
$500,000. The increased deposit was not paid and the sale did not complete on
October 14, 2016. The vendor accepted the purchasers repudiation of the
contract of purchase and sale.

[4]

On November 14, 2016, the vendor filed a notice of
civil claim. The purchaser filed a response on December 30, 2016.

[5]

In her response to civil claim, the purchaser pleaded
that the vendor failed to mitigate her damages by rejecting the offer made by
the purchasers son, Hua Wang, following the repudiation on October 14, 2016.

[6]

The vendor provided the purchaser with her list of
documents on January 5, 2017. On February 17, 2017, the purchaser provided her
list of documents.

[7]

The property was sold to another purchaser on April 7,
2017. The vendor provided an amended list of documents to reflect the
information related to that sale.

[8]

The vendor set down her Rule 9-7 summary trial
application for May 30, 2017. The purchaser filed an application returnable on
May 30 for an order adjourning the summary trial and for an order that the
vendor attend an examination for discovery.

[9]

Mr. Justice Leask adjourned the trial to June 20, 2017.
A condition of the adjournment required the purchaser to execute and register a
$400,000
mortgage in favour of the Plaintiff on one
or more of the Defendants properties satisfactory to the Plaintiff to secure
the Plaintiffs claim. The order did not specify that examinations for
discovery be conducted or for further document production. No further
application for those orders was made by the purchaser prior to June 20, 2017.

[10]

On June 20, 2017, the purchaser applied again for an adjournment on
the basis that she needed further document disclosure and an examination for
discovery of the vendor.

[11]

The judge dismissed the application. In reasons indexed at 2017 BCSC
1096, she concluded that an adjournment was not warranted for these reasons:

[9]

The parties
have different perspectives on what led to the repudiation of the contract,
whether it was mutual or the result of unilateral action. A number of the
documents surrounding the September 28 and October 14 events, as well as
communications between the parties, have been brought to my attention. In light
of these materials, I am satisfied that the further documents sought by counsel
for the defendant and the desire to examine the plaintiff, are not of
sufficient grounding to warrant an adjournment of the summary trial
application.

[10]

Indeed, in
his submissions before me, counsel for the defendant indicated that he has no
substantive foundation on which to show that relevant documents other than what
the plaintiff has already produced to him exist, or will shed light on issues
that the Court must determine in assessing the merits of the plaintiffs claim.
He speculates that further documents might exist, but until an order for
production is made or the plaintiff is discovered, he will not know.

[11]

This is not
a sufficient basis on which to grant an adjournment of the summary trial, or
make the other orders that the defendant seeks in her Notice of Application. I
decline to grant her application in its entirety. The defendant has not
persuaded me that the additional steps sought will likely result in information
and/or evidence of probative value to the main issues in dispute between the
parties, including mitigation of the loss alleged to have been sustained by the
plaintiff.

[12]

In making
this ruling, I am also alive to the plaintiffs concerns about decreasing
equity in the property against which the $400,000 mortgage has been registered.
At present, the assessed value of this property stands at approximately
$4,917,000. In addition to the plaintiffs mortgage, the property has two other
mortgages registered against it, in the cumulative value of $6.5 million.
Justice Leask made the order in favour of a $400,000 mortgage, presumably
satisfied that there was sufficient equity in the property to ensure that the charge
had meaning. The evidence before me is that since then, the defendant has
continued to borrow against her various properties, including this one. As
such, I am satisfied that the summary trial should continue on track, as
planned, with a view to a determination on the merits.

[12]

The judge proceeded to hear the summary trial. She
concluded that she was able to find the facts necessary to decide the relevant
issues. She stated:

[49]
There are very few material
facts in dispute. The parties agree there was a contract for purchase and sale;
they agree that the first closing date came and went without completion; and,
they agree that both parties executed an addendum to the contract extending the
closing date to October 14, 2016.



[51]

The
Application Record contains all of the documents that were executed by, and
exchanged between the parties for both the September 28 and October 14
completion dates. In my view, these documents provide a sufficient evidentiary
basis from which to assess and determine any credibility issues that may arise
on the parties competing versions of events. The documents speak for
themselves.

[52]

The further
documents sought by the defendant, either through a production order or
examination of the plaintiff, do not speak to the dealings between the parties;
rather, they relate to alleged conversations and/or dealings that the plaintiff
may have had with third parties during this same time-frame.

[53]

I dismissed
the defendants adjournment application because counsel for the defendant was
not able to satisfy me that these documents, if they exist, would shed light on
the issues to be decided. The defendant argued that if the plaintiff was
considering other (and potentially better) offers to purchase her home on
September 28 or October 14, this speaks volumes about whether she was, in fact,
ready, willing and able to complete. However, he acknowledged that he was only
speculating on whether materials to this effect would be found.



[56]

I did not
consider speculation a sufficient basis on which to grant the defendants
adjournment request; similarly, I do not consider it a sufficient basis on
which to refrain from deciding this matter by way of summary trial.

[57]

Although
there is a substantial amount of money at stake, the issues are relatively
straightforward; the governing legal principles for resolution of the dispute
are settled; and, there is a comprehensive documentary foundation available for
the purpose of the Courts fact-finding. Proceeding with a summary trial in
these circumstances is consistent with the object of the
Rules.

[13]

In the result, the judge found that the defendant breached the
contract by failing to complete. She awarded the plaintiff $583,671.33 in
damages, consisting of the difference between the original purchase price and
the ultimate sale price; property taxes; insurance; and mortgage interest.

[14]

As I have noted, in her factum and at the hearing of the appeal, the
purchaser insisted that she had been deprived of her opportunity to establish
that the vendor had failed to mitigate her damages. Specifically, the purchaser
contends that the vendor failed to provide the documents demanded in a letter,
dated May 15, 2017:

We
require you to provide us with all correspondence including We-chat, emails,
faxes, letters, Whats-up and any other communication to and from the Realtor
for the Plaintiff, and her Attorney and the Plaintiff, and the Realtor for the
Plaintiff and the Realtor for the Defendant and the Realtor for the Plaintiff
and the Attorney pursuant to Rule 7-1-10 and 11.

We
require all offers either by contract of purchase and sale or other written
means and whether or accepted or not and including counter offers and all
correspondence relating to any offer or counter offer received by the Realtor
for the Plaintiff and all communications relating to those offers and counter
offers between the Realtor and the Plaintiff, the Realtor and the Attorney and
the Attorney and the Plaintiff from June 1, 2016.

We
require these documents to determine whether there was any acceptance by the
Vendor of the addendum dated September 28, 2016 which was relayed to the
Defendant or her Realtor.

We
require the documents to determine what offers were received from June 1, 2016
to the present.

We
require the documents to determine whether the offer of Wang Hua was forwarded
to the Plaintiff by her realtor and the response to determine as why the
Plaintiff failed to consider that offer in order to mitigate her damages.

[15]

The
vendors position was that all relevant documents had been produced and the
requested documents were, if they existed, irrelevant or were third party
documents outside the possession or control of the vendor and available to the
purchaser on demand to the third party realtor.

[16]

In my opinion, the purchaser has on
appeal attempted to broaden the ambit of her defence of mitigation beyond that
pleaded and argued before the trial judge. The trial judge had before her all
of the evidence brought to our attention. She gave thorough and considered
reasons on the basis of the evidence. She concluded:

[96]
Furthermore,
while a plaintiff must prove damages and their quantum, the burden of proof
moves to the defendant if he alleges that the plaintiff could have and should
have mitigated his loss:
Hargreaves,
at para. 2, referencing
Janiak v. Ippolito,
[1985] 1 S.C.R.
146 at 162.

[97]      The defendant does not take issue
with the plaintiffs calculation of her alleged damages. Rather, she argues
that the plaintiff failed to mitigate. In particular, she says the plaintiff
should have accepted the offers to purchase that were put forward by the
defendants son in October and November 2016.

[98]      On the evidence, there is no
indication that the plaintiff did anything other than make
bona fides
efforts to sell the property for a reasonable price after the defendant
repudiated the contract. The only thing the defendant points to as evidence to
the contrary is the plaintiffs refusal to accept the two offers put forward by
her son in October and November 2016, respectively.

[99]      I do not consider the plaintiffs
refusal to accept these offers unreasonable. The proposed new purchaser and the
defendant were closely connected. Two completion dates had already come and
gone without follow- through on the part of the defendant. Plus, she failed to
pay the $500,000 increase in deposit after the September 28 extension.

[100]    Within
this context, it is not surprising that the plaintiff declined to re­engage
with the same family unit. I also note that as a term of his offers, the
defendants son demanded that the $190,000 deposit paid by his mother be
released and applied to the new contract for purchase and sale. This would
require that the plaintiff forfeit her right to claim the
deposit, which she was entitled to as a result of the defendants repudiation
and based on the clear wording of the agreement. This was not a precondition
that the plaintiff had any obligation to accept.

[17]

In my opinion, the purchaser has failed to demonstrate that the
judge erred in refusing the application to adjourn or to require the vender to
produce documents and attend discovery. This was a straightforward case. The
judges refusal was essentially grounded in her conclusion that the purchasers
request was based on speculation and, if granted, would amount to a fishing
expedition.

[18]

The judges decision to refuse the adjournment involved an exercise
of judicial discretion. Bound up in that decision was the judges apprehension
that the documents said by the purchaser to be vital to the question of
mitigation were unnecessary in order to decide the case. Similarly, as a case
that rested on documentary evidence, the examination for discovery of the
vendor would not aid the purchaser. In my opinion, the purchaser has not
satisfied the test she must meet in order to overturn a discretionary order  misdirection,
acting on wrong principle or irrelevant considerations, or so clearly wrong as
to amount to an injustice. (See
Tyson Creek Hydro Corporation v. Kerr Wood Leidal Associates
Limited,
2014 BCCA 17 at para. 4).

[19]

Further, the purchaser asks us to overturn the judges
finding of fact that, on the evidence, there was no indication that the vendor
did anything
other than make
bona fide
efforts to sell the property for a reasonable price after
the purchasers repudiation.

[20]

In my opinion, that finding was available on the evidence before the
judge. Absent palpable error, of which none has been demonstrated, we cannot
overturn such a finding of fact.

[21]

I would dismiss the appeal with costs to the vendor.

[22]

BAUMAN C.J.B.C.
: I agree.

[23]

MACKENZIE
J.A.
: I agree.

[24]

BAUMAN C.J.B.C.
: The appeal is dismissed in accordance with the
reasons of Madam Justice Kirkpatrick.

The Honourable Madam
Justice Kirkpatrick


