She v. Wang, 2012 ONSC 2508

CITATION: She v. Wang, 2012 ONSC 2508

DIVISIONAL COURT FILE NO.: 492/10

DATE: 2012/04/30

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: ZHAN SHE aka JIMMY SHE v. CHUANG WANG aka JACKIE WANG PHD ROOFING LTD

BEFORE: Justice Moore

COUNSEL: Chuang Wang, In Person, Zhan She, In Person

HEARD: 25 April 2012

E N D O R S E M E N T

Moore J.

[1] The Appellant, Chuang Wang (“Wang”), was a defendant in an action in the Small Claims Court brought by the Respondent in this court, Zhan She (“She”). The dispute between the parties arose from a partnership agreement involving a roofing business. She asserted that he was entitled to the return of his partnership investment of $11,735 plus damages for work done for Wang as an employee of the business.

[2] The matter proceeded to trial on 14 September 2010 before Justice Godfrey who heard evidence from the parties and who thereafter delivered judgment requiring Wang to return the investment of $11,735 and to pay the claimed damages for work done in an amount fixed at $7024.98. Wang was also ordered to pay court costs of $215.00, $700.00 for the translation of Exhibit 1, prejudgment interest at court rates from May 10, 2010 and a representation fee of $600.00.

[3] Wang appealed, seeking to set aside the order of Justice Godfrey or, in the alternative, an order sending the matter back to trial.

[4] Wang asserts that the learned trial judge erred in: finding that She was entitled to recision of the partnership agreement that the trial judge found applicable upon the evidence before him. His Honour found that Wang made a fraudulent misrepresentation to She inducing him to sign the partnership agreement. He found that this was a fundamental breach entitling She to seek recision and the return of his investment.

[5] Wang also appeals the finding that there was an employment relationship between the parties supporting the claim that the trial judge determined that She was entitled to and that was fixed in the amount of $7024.98.

[6] In reaching the judicial determinations that he did, the trial judge applied the law to the facts as he found them. He determined that the parties entered into a partnership agreement, that the doctrine of recision was applicable to the interpretation of the partnership agreement, that as a matter of law, the plaintiff must choose between damages pursuant to breach of contract and recision and cannot have both, that the legal maxim of contra proferentem applied to the interpretation of She’s contractual entitlement to $200 per working day, that a logical inference should be drawn that Wang, the person responsible for keeping detailed accounts and the person who failed to provide a proper accounting to She, had no intention to honour any contractual obligation to She when he signed the partnership agreement and, as such, Wang made a fraudulent misrepresentation to She inducing him to sign the partnership agreement. The trial judge went on to conclude that this fundamental breach by Wang entitled She to seek recision and the return of his investment.

[7] The trial judge also applied the doctrine of recision to She’s entitlement to damages based on unjust enrichment for days worked and/or under the tort of deceit.

[8] The trial judge reviewed the partnership agreement in question and, specifically, the provision providing for a 20 year repayment if a party leaves the partnership. He determined that that provision was not applicable to the facts of this case in light of the deceit of Wang.

[9] It is important to note that Wang did not assert or demonstrate that the trial judge failed to apply the law relevant to the determination of the issues between the parties. For appeal purposes, an assertion that the trial judge made an error of law gives rise to a standard of review of correctness. In this case, there is no basis upon which I can conclude that the trial judge made an error of law.

[10] Wang disagrees with the conclusions that the trial judge came to and in this regard his complaints involved questions of fact. He insists that the trial judge made inappropriate determinations based on the facts in evidence at the trial. On matters of fact, this court affords considerable deference to the trial judge. He, after all, had the opportunity to see and hear the parties as they gave their evidence. He was in a better position than an appeal judge is to weigh the accuracy and completeness of the evidence in the courtroom, to observe the demeanor of the witnesses and the manner in which they gave their evidence and withstood interrogation in cross examination and to make findings of credibility.

[11] In my view, the findings made on factual issues were reasonable and appropriate and I find no basis upon which to interfere with them.

[12] In the result, this appeal is dismissed. She is entitled to costs of this appeal in an amount to be agreed upon between the parties or fixed by me following receipt of brief submissions of no more than three pages by each party on costs and that may be delivered to me through the office of the Divisional Court within 15 days.

Moore J.

DATE: 30 April 2012