Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20221129 DOCKET: C69556

Feldman, Tulloch and Miller JJ.A.

BETWEEN

Biao Liu Plaintiff (Respondent)

and

Dong Jin Qiu Defendant (Appellant)

Counsel: Sara J. Erskine and Adrienne Zaya, for the appellant Ran He and Christopher Tan, for the respondent

Heard: February 28, 2022 by video conference

On appeal from the judgment of Justice Breese Davies of the Superior Court of Justice, dated May 14, 2021, with reasons at 2021 ONSC 3461, and from the costs order, dated July 19, 2021, with reasons at 2021 ONSC 5047.

Costs Endorsement

[1] The appellant’s appeal of the quantum of damages was successful. In accordance with this court’s reasons dated March 21, 2022, the parties have agreed on the calculation of the damages set out at para. 15 of the Reasons for Decision. The agreed amount is $29,503.32. The court ordered that from that amount will be deducted $40,000, an amount already paid by the appellant to the respondent in connection with the purchase of a car. That amount was deducted by the trial judge and similarly was ordered deducted by this court.

[2] In the result, there is no amount payable by the appellant to the respondent, and instead, the respondent must refund the difference, being $10,496.68 to the appellant.

[3] The parties were asked to make written submissions with respect to the trial costs, based on the outcome of the damages calculation. The respondent takes the position that the appellant should still pay partial indemnity costs of $35,261.83 on the argument that the $40,000 “deposit” should be forfeited to the respondent, and therefore, the respondent was successful in the action.

[4] This argument is contrary to the decision of this court of March 21, 2022 that the $40,000 is to be subtracted from the interest calculated as damages, as an amount already paid, in accordance with the decision of the trial judge. Because the respondent must return money to the appellant, it is the appellant who was successful at trial and on appeal.

[5] The costs submissions filed on behalf of the appellant first request an order that no costs be payable to the respondent, then conclude by saying that $10,000 - $12,000 payable to Mr. Liu would be appropriate. As Mr. Liu was unsuccessful, no costs are payable to him. As the appellant has not asked for costs, there will be no order for costs of the trial.

“K. Feldman J.A.”

“M. Tulloch J.A.”

“B.W. Miller J.A.”