Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220721 DOCKET: M53338 (C69556)

Feldman, Tulloch and Miller JJ.A.

BETWEEN

Biao Liu Plaintiff (Respondent/Moving Party)

and

Dong Jin Qiu Defendant (Appellant/Responding Party)

Counsel: Ran He and Christopher Tan, for the moving party Sara J. Erskine and Adrienne Zaya, for the responding party

Heard: in writing

Reasons for Decision

[1] The moving party was the respondent on the appeal, which was heard by this court on February 28, 2022, with reasons delivered March 21, 2022, allowing the appeal in part by finding that the trial judge erred on the issue of the quantum of damages: Liu v. Qiu, 2022 ONCA 232.

[2] The moving party now moves under rules 37.14 and 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order varying the decision of this court and dismissing the appeal. Under rule 61.16(6.1): “Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules.”

[3] Rule 37.14 has no application to this case. It applies only to an order by a registrar, or an order made on motion without notice, or against a party who did not receive sufficient notice, or who did not appear on a motion due to a mistake.

[4] Rule 59.06(1) applies where an order contains an accidental slip or omission or requires amendment on a particular on which the court did not adjudicate. The moving party submits that the court erred by basing its decision on a misreading of the record. He refers to passages from the evidence of the moving party and Mr. Yang, which he argues suggest that their interpretation of their deal was that once the house was sold, they would split not only the profit on the sale, but the entire sale proceeds (minus the construction costs) including the original capital investment. The moving party made the same submission on the appeal.

[5] This interpretation is not the finding of the trial judge, who stated at para. 51:

After Mr. Qiu backed out of their agreement, Mr. Liu found another investor, Zhen Yang, to mitigate his losses. Mr. Liu and Mr. Yang signed a partnership agreement on December 15, 2016 in relation to the Devondale property. Under the terms of that agreement, Mr. Yang agreed to contribute only $400,000 towards the purchase of the Devondale property in exchange for 50 percent of the profit when the property was resold.

[6] Nor is it borne out by the wording of their agreement dated December 15, 2016, para. 4 of which states:

4. After the rebuild of the house is completed, the Parties shall list the property for sale without delay to realize the profit, which will be divided equally between Party A [the moving party] and Party B [Mr. Yang].

[7] There was no error, accidental slip or omission. Rule 59.06 has no application. The motion is dismissed with costs to the responding party on the motion fixed in the amount of $5,000, inclusive of disbursements and H.S.T. No further motions may be brought.

“K. Feldman J.A.” “M. Tulloch J.A.” “B.W. Miller J.A.”