Court File and Parties

CITATION: Bakhit v. Shu, 2019 ONSC 3539

DIVISIONAL COURT FILE NO.: 676/18

DATE: 20190606

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: YOUSIF Bakhit, Plaintiff/Appellant

AND: MINGYING Shu and JULIE YUNHUA zhu, Defendants/Respondents

AND BETWEEN:

JULIE YUNHUA zhu, Plaintiff by Counterclaim

and

yousif bakhit. Defendant by Counterclaim

BEFORE: KITELEY J.

COUNSEL: Yousif Bakhit, acting in person for the Plaintiff Mingying Shu, acting in person for the Defendant Julie Yunhua Zhu, acting in person for the Defendant

HEARD at Toronto: June 6, 2019

ENDORSEMENT – (ORALLY)

[1] The appellant appeals from the judgment of the Deputy Judge dated October 2, 2018. The appellant’s statement of claim asserted claims against Ms. Shu pursuant to the Partnership Dissolution Agreement. The appellant also claimed that Ms. Zhu and Ms. Shu had colluded and as a result, the appellant had not been paid his rightful share of the assets of the partnership. The appellant had asked for judgment in the amount of $3,309.65 against Ms. Shu and $1,000 against Ms. Zhu.

[2] The appellant and Ms. Shu had a Partnership Agreement that took effect in January 2017. The partnership dissolved and Ms. Shu and the appellant signed the Partnership Dissolution Agreement. Ms. Zhu is an accountant. The appellant asserted that she had agreed to prepare a valuation of the “settlement of the accounts” pursuant to the Partnership Dissolution Agreement. The trial was held on May 10, 2018. All of the parties gave evidence. The decision of the Deputy Judge is dated October 2, 2018. He dismissed the claim and the counterclaim by Ms. Zhu.

[3] Both respondents attended today although neither had filed responding material. I allowed each to speak briefly. Both opposed the appeal.

[4] In his factum, the appellant set out the “relevant facts” followed by the “grounds of appeal – errors in judgment”. He takes the position that the Deputy Judge “erred by adopting, in wholesale, allegations made” by the respondents “in their defenses unsupported by evidence or contrary to documentary evidence or in disregard of evidence and in preference for a theoretical proposition”. He listed what he considered to be examples. In his factum he asked for judgment in listed amounts, including the cost of providing the transcript for the appeal, in the total amount of $5,590.49 plus costs, interest and fees.

[5] The appellant does not specifically address the standard of review in an appeal from a Deputy Judge. His factum references “errors” but he has made no reference to the standards by which this court is governed in hearing such an appeal. The case before the Deputy Judge was primarily factual. He had to interpret the Dissolution Partnership Agreement. His task was to hear and consider the evidence and determine whether the claims had been made out. Under the circumstances of this appeal, the standard of review is palpable and overriding error. (Housen v. Nikolaisen, 2002 SCC 33 [2002] 2 S.C.R. 235)

[6] I have reviewed the judgment and read the transcript and considered the submissions. I address first the claims against Ms. Shu. The appellant asserted a claim with respect to the rents. Ms. Shu gave evidence that she paid for July. The Deputy Judge pointed out that Ms. Shu produced only the front of the cheque and not the copy of the deposited cheque. However, the Deputy Judge pointed out that the appellant had provided no evidence that she had not paid. The Deputy Judge accepted her evidence.

[7] The appellant asserted a claim with respect to payment of half of the cost of purchasing PC Law. He had no evidence to corroborate that the software program had been purchased and Ms. Shu denied it had been purchased. The Deputy Judge accepted her evidence.

[8] The appellant asserted a claim for payment into court of $900 representing a retainer paid to the firm shortly before the date of dissolution. The Deputy Judge held that that was a matter for the Law Society.

[9] The appellant made a claim against Ms. Shu for improper use of the partnership Name “Square Law”. The partnership name was Square Law LLP and the Partnership Dissolution Agreement prohibited Ms. Shu from using that name. She used Square Law Inc. The Deputy Judge held that that was not a breach of the terms of the Partnership Dissolution Agreement.

[10] On all of the claims asserted by the appellant, the findings by the Deputy Judge are supported by the evidence. I am not persuaded that the judgment reflects palpable and overriding errors.

[11] The claim against Ms. Zhu was anchored in the appellant’s allegation that she had agreed to prepare the valuation of the partnership. He relied on his email to her dated July 5, 2017 in which he referred to the Partnership Dissolution Agreement and the requirement to “undertake a valuation of the value of the partnership” and he relied on her email that “we are working on it”. The Deputy Judge reviewed the evidence in paragraphs 12 to 16. He accepted her evidence that she had not agreed to prepare a valuation, that she was not qualified to do so and that what she provided to him and Ms. Shu was not a valuation. He concluded that Ms. Zhu’s evidence was consistent with the documentary evidence. He also found no evidence of collusion. All of the findings made by the Deputy Judge are supported by the evidence. I am not persuaded that the judgment reflects palpable and overriding error.

[12] The appellant disagrees with the finding of the Deputy Judge but that does not justify setting aside the decision.

[13] The appeal is dismissed.

[14] I have endorsed the Appeal Book and Compendium as follows: “For oral reasons given, the appeal is dismissed.”

KITELEY J.

Date of Endorsement orally released: June 6, 2019

Date released: June 12, 2019