COURT OF APPEAL FOR ONTARIO

CITATION: Nguyen v. Lee, 2015 ONCA 371

DATE: 20150526

DOCKET: C58653

MacPherson, Gillese and van Rensburg JJ.A.

BETWEEN

Bao Duc Nguyen

Appellant

and

Iwin Lee, 1634502 Ontario Inc., Phuoc Nghia Ly and Va Lay Duong

Respondents

Bao Duc Nguyen, acting in person

Harry J. Doan, for the respondents

Heard: May 20, 2015

On appeal from the judgment of Justice Stephen E. Firestone of the Superior Court of Justice, dated March 21, 2014.

ENDORSEMENT

[1] This is an appeal of a trial decision awarding damages and pre-judgment interest in the sum of $57,566 to the appellant against the respondent Iwin Lee. The appellant contends that the trial judge erred in failing to award the total amount claimed: $135,000 plus interest, and in dismissing the action against the other respondents.

[2] The appellant and Lee were parties to a loan agreement dated September 25, 2004. The loan was for $135,000, consisting of $70,000 “from before” and a further $65,000 advanced by the appellant at the time of the agreement. The loan was for a one year term from September 30, 2004, to September 30, 2005, and the agreement provided that “Lee can pay [Nguyen] anytime”.

[3] The respondent Lee operated a jewellery business. From time to time he provided jewellery for sale on consignment to Phuong Nguyen. Lee believed that Phuong was married to the appellant; at trial, they claimed to be divorced, and the trial judge observed that their marital status was “unclear”.

[4] According to the evidence, Lee had borrowed $70,000 over time from the appellant to fund his jewellery business. The further $65,000 was advanced in order to complete Lee’s purchase of the appellant’s property at 1276 Bloor Street West, in Toronto. The purchase closed in October 2004. Title to the property was taken in the name of the corporate respondent, 1634502 Ontario Inc., a company owned by Lee and his wife, the respondent Va Lay Duong.

[5] On July 19, 2005, the property purchased by Lee from the appellant was mortgaged for $170,000 to Lee’s sister, the respondent Phuoc Nghia Ly, and on May 2, 2006 the property was transferred for nominal consideration to Duong.

[6] The central issue at trial was whether and to what extent the loan had been repaid. The appellant claimed that no payments had been made, and the respondents asserted that there had been an overpayment.

[7] In concluding that a total of $90,700 had been repaid, the trial judge made three central findings. First, he found that there was a payment by a bank draft dated May 26, 2005 in the sum $23,200. The trial judge accepted the respondents’ evidence as to the circumstances of repayment: that the appellant and Phuong were in urgent need of money, and that Lee arranged to obtain a bank draft from his sister to pay the sum of $23,200 toward repayment of the loan. The trial judge rejected the evidence of Phuong that she received the bank draft made out to the appellant as payment for jewellery she had sold to Lee. He accepted that Phuong would occasionally sell Lee’s jewellery on consignment, and that Phuong would owe Lee money, not the other way around, as Phuong had testified.

[8] Second, the trial judge found that payments (of $35,000, $10,000 and $22,500) had been made on May 27, 2005, September 14, 2005, and April 29, 2007, as noted and initialled by Phuong on the back of a second copy of the loan agreement. The trial judge rejected Phuong’s evidence that, although she had made the notations acknowledging receipt of payments, she had never received the money.

[9] Finally, the trial judge refused to credit Lee in respect of a May 28, 2005, notation for $35,000 on the front page of the agreement. He observed that the notation was not initialled, and even if it did represent a credit, according to Lee’s evidence it was in respect of an agreement between Lee and Phuong regarding jewellery provided to Phuong on consignment, and not between the appellant and Lee.

[10] Regarding the fraudulent conveyance claims, the trial judge stated that he considered the evidence regarding the sale and transfer of the Bloor St. W. property, and he concluded that there was no evidence that any dealings with the property should be found to be void as fraudulent conveyances.

[11] On appeal the appellant did not provide oral submissions but relied on his factum. His central argument is that he was treated unfairly at trial, when the trial judge prevented him from doing certain things while permitting the respondents various liberties.

[12] We have carefully read through the transcript of the trial proceedings. Contrary to the appellant’s assertion, during the five day trial, the judge treated all of the parties and witnesses with fairness, patience and respect. He provided appropriate guidance to the appellant as a self-represented litigant, ensuring at every step in the trial that he understood the process and that he had the opportunity to put forward his case.

[13] The trial judge accommodated the appellant on several occasions, when he requested breaks to prepare for parts of the trial, in affording him a second chance to cross-examine the respondent Lee, and in permitting the appellant to read in passages from a discovery transcript during the defence case, and after the plaintiff’s case was closed.

[14] The appellant takes objection on appeal to certain rulings and directions of the trial judge. In our view, the trial judge exercised his discretion appropriately in his various rulings and directions, including: his decision to exclude the appellant’s daughter and son from the court room after it appeared that the son might be communicating with Phuong, contrary to an order excluding witnesses; his caution that the appellant not discuss his evidence with potential witnesses during the trial; his directions respecting the proper use of discovery transcripts in cross-examination; his refusal to accept into evidence a book of documents containing settlement offers and irrelevant materials, while ensuring that the relevant documents were in evidence; and his measured and appropriate response to the appellant’s contention that he had been threatened by someone at the respondents’ behest.

[15] The trial judge was even-handed in responding to the objections of both sides. In fact, at the conclusion of the trial during closing submissions, the appellant expressed his appreciation to the judge for the fair manner in which the trial was conducted, a sentiment that was echoed by defence counsel.

[16] There is simply no basis for the appellant’s argument that the trial was unfair. Accordingly, we reject this ground of appeal.

[17] The appellant also contends that the trial judge erred in his findings with respect to the $23,200 payment. He asserts that the draft was money payable to Phuong from the sale of jewellery to Lee, and not a payment on account of the loan. This explanation of the payment was offered by Phuong at trial, and rejected by the trial judge. This he was entitled to do. His decision respecting the $23,200 was amply supported by the evidence that he did accept. Accordingly, this ground of appeal cannot be sustained.

[18] Finally, the appellant contends that the trial judge erred in dismissing the fraudulent conveyance claims. The conveyancing documents show that title to the Bloor St. W. property was taken in the name of the numbered company, with the knowledge of the appellant. The evidence respecting the mortgage was that it was security for Lee’s borrowings from his sister, which included the $23,200 bank draft. Lee and his wife Duong testified that the transfer of the property to her name in 2006 was out of concern for her security at a time when she had health problems. There was no evidence that Lee was insolvent or as to how the transfer affected his ability to meet his obligations. Indeed, he made a further payment on the loan after the impugned transactions. There is no basis for interfering with the trial judge’s conclusion respecting the fraudulent conveyance claims. This ground of appeal is without merit.

[19] The appeal is therefore dismissed. The respondents are entitled to their costs of the appeal payable by the appellant. In view of the brevity of the respondents’ factum and oral submissions the costs are fixed at $1,000, inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“K. van Rensburg J.A.”