CITATION: Liang v. Yang, 2019 ONSC 6124
DIVISIONAL COURT FILE NO.: 405/18 DATE: 20191021
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
SI QING LIANG (A.K.A. “ASHLEY LIANG”)
Ryan Cookson, for the Plaintiff
Plaintiff (Respondent)
– and –
YONG YANG (A.K.A. “GEORGE YANG”); RE/MAX HALLMARK REALTY LTD.
Dheeraj Bhatia, for the Defendant, Yong Yang (A.K.A. “George Yang”)
Defendants (Appellant)
HEARD at Toronto: October 21, 2019
KITELEY J. (Orally)
[1] This is an appeal by the real estate agent from the decision of Deputy Judge Twohig dated June 5, 2018 in which the appellant was ordered to pay $4,920.00 plus costs for breach of contract between the appellant and the respondent namely, breach of an agreement dated January 19, 2016 in which the appellant agreed to rebate to his client, the purchaser, 1% of his 2.5% commission.
[2] At the trial on June 5, 2018, the Deputy Judge heard evidence from the appellant and the respondent as well as briefly from the manager of Re/Max Hallmark.
[3] The appellant agreed he had signed the agreement. In his defensee and claim, he raised a number of issues. The trial judge dealt with the live issues specifically, breach of contract and tort.
[4] Having admitted that he signed the simple agreement, the respondent’s claim was made out. The focus of the trial was on his defenses namely, duress and undue influence. The burden of proof was on the appellant.
[5] In order to succeed on either or both defenses, the trial judge had to be satisfied that the appellant had been subject to duress by the respondent and that he had been subject to influence that was “undue” by the respondent.
[6] The evidence from the respondent was that she persisted in insisting that the appellant reduce his commission.
[7] At page 4 of his ruling, the trial judge held as follows:
I find that there has been a breach of contract by Mr. Yang. Notwithstanding that he’s raised a number of defenses which include undue influence, coercion, economic duress, et cetera, in my view none of these defenses are made out. I’ve come to these conclusions in considering the evidence given by Mr. Yang and comparing it to the evidence given by Ms. Liang. I’ve been asked to make a finding of credibility among other things. I find that Mr. Yang’s evidence is inconsistent with the documents that were entered into evidence. As I said the contract seems quite clear and straightforward. His evidence was inconsistent with the pleadings. It was otherwise internally inconsistent and it flies in the face of common sense. Mr. Yang says he had no choice and in my view that’s quite incorrect. He had a lot of choice. He simply could have allowed Ms. Liang to walk away from the deal but in his rush to have his commission he made promises to her that he had no intention of fulfilling. He also could have sought assistance from his brokerage which he did not do. In fact, he went out of his way to keep the brokerage in the dark about this side agreement.
[8] That finding of credibility is well supported by the evidence. I do not agree that the trial judge disregarded any of the evidence which he says he took into account.
[9] The appellant has not persuaded me that the trial judge made a palpable and overriding error in arriving at his conclusion as to the credibility of the appellant. That conclusion justified the dismissal of the appellant’s claim for undue influence and duress.
[10] It therefore follows that the appeal will be dismissed.
[11] For oral reasons given, the appeal is dismissed. Appellant shall pay costs to Liang fixed in the amount of $3,000 including fees, disbursements and tax.
KITELEY J.
Date of Oral Reasons for Judgment: October 21, 2019
Date of Release: October 22, 2019
CITATION: Liang v. Yang, 2019 ONSC 6124
DIVISIONAL COURT FILE NO.: 405/18 DATE: 20191021
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
SI QING LIANG (A.K.A. “ASHLEY LIANG”) Plaintiff (Respondent)
– and –
YONG YANG (A.K.A. “GEORGE YANG”); RE/MAX HALLMARK REALTY LTD. Defendants (Appellant)
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Oral Reasons for Judgment: October 21, 2019
Date of Release: October 22, 2019