newmarket COURT FILE NO.: CV-15-122986-00
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HEZHEN YIN
Plaintiff/ Defendant by Counterclaim
— and —
YING XUE and WEITAO QU
Defendants/
Ying Xue Plaintiff by Counterclaim
COUNSEL:
Robert Leck, for the Plaintiff,
Rolf M. Piehler, Shaneka M. Taylor for the Defendant Ying Xue,
Weitao Qu, self-represented.
HEARD: May 30, 31, June 1, 2, 2017
Shaughnessy J.
REASONS FOR JUDGMENT
Overview
1The plaintiff claims that she is the sole owner of the property municipally known a 6 Roosevelt Drive, Richmond Hill, Ontario. The plaintiff also claims damages from both defendants related to their renovation and damage to the building and loss of rent. The defendant Ying Xue claims that she has a one-half ownership interest, legal or equitable in the property and she also seeks damages for the loss of use and loss of value of the property.
Issues for Trial
2(1) Is the plaintiff the sole beneficial owner of the property, or does the defendant Xue have an equitable interest in the property?
(2) Is the plaintiff entitled to damages from the defendants for the damage inflicted on the building and consequent loss of rent?
(3) Is the defendant Xue entitled to receive any of her funds that were deposited into the plaintiff’s bank account, and whether the funds are payable by the plaintiff and/or the defendant Qu?
Background Information
3There are a number of facts that are not in dispute. I will first summarize those facts not in dispute followed by the facts that are in dispute and essential to the findings to be made by the court as they relate to the issues to be decided.
4The defendant Ying Xue went by the name and was referred to by all the witnesses throughout their testimony as “Sophie.” Therefore, I will reference the defendant by that name. Sophie is a registered real estate agent and broker.
5The defendant Weitao Qu (“Qu”) is the 45 year old son of the plaintiff.
6Sophie and Qu had met one another in 2010. The evidence of Qu was that in the years prior to 2012 he had done some general labour work, he delivered pizza and did some house “drive-by appraisal” work. His testimony is that Sophie obtained for him an authorization to access the MLS service as an “agent.” He was also seeking out business investment opportunities. The evidence is that Qu wanted to become a business partner with Sophie in the real estate business. It was not until the fall of 2012 that Sophie agreed to go into business with Qu.
7The evidence of Sophie, denied by Qu, but which I accept as accurate and reliable is that Qu held himself out to Sophie as a builder, developer and real estate investor.
8While the evidence was not complete, it was established that Qu’s mother and father and perhaps other members of the family owned two other homes on Roosevelt Drive, in Richmond Hill during the relevant time period. At all material times, the plaintiff resided at 37 Roosevelt Drive, Richmond Hill, as her principal residence. The defendant Qu provides his residence as 35 Roosevelt Drive, Richmond Hill.
9The plaintiff testified that she saw a “For Sale” sign go up on 6 Roosevelt Drive in September 2012. She contacted her son Qu, who then contacted Sophie. An agreement of Purchase and Sale was drawn up in the name of the plaintiff as purchaser. Bank Financing was approved for a mortgage on the property.
10The accepted purchase price of 6 Roosevelt was $ 785,000.00 with a $30,000.00 deposit. In addition further cash amounts were paid and the balance of the closing funds were secured by a mortgage to the Bank of Nova Scotia in the amount of $510,250. Title to the property was registered solely in the name of the plaintiff and she was the only mortgagor. The defendant Sophie acted as the buyer’s agent and she received a 2.5 % commission on the sale. On closing the plaintiff was required to accept an existing tenant who was paying rent of $1,750 per month. The transaction closed on October 31, 2012 and the Transfer of Title was registered on that date.
11This completes the facts that are not in dispute. It is necessary to outline the testimony of the plaintiff and defendants in relation to facts that are in dispute.
12I wish to indicate at the outset, that this trial, which should have been a relatively straightforward case involving a contract dispute was protracted by the manner and nature of the testimony as presented by the parties. I accept that no case proceeds smoothly when an interpreter is required or when English is a second language for witnesses. However, in this case, I have serious reservations about the veracity of all three of the parties in relation to certain aspects of their testimony at trial. Accordingly, I will be making credibility findings and reminding myself of who has the burden of proof on the issues and whether the burden of proof is met.
The Second Agreement of Purchase and Sale dated November 4, 2012
(a) The testimony of Ying Xue (Sophie)
13The testimony of Sophie (the defendant Ying Xue) is that the first day that 6 Roosevelt came on the market Qu called her and told her that this property “has a good house listed at a good price.” Qu stated that he did not have enough money to purchase the property on his own and he asked her (Sophie) if she could go 50-50 with him to buy the property. Sophie asked first: whose name would go on title? She stated she already had properties in her name and this was the reason she did not want her name on title. She testified that Qu said he also owned properties in Newmarket and therefore he did not want title in his name.
14Sophie testifies that Qu, in this same conversation, suggests that they can use his mother’s name on title because his mother is a new immigrant and as such she will qualify for a new mortgage without proof of income provided there is a 35% down payment. This is Sophie’s explanation of how the plaintiff’s name was registered as owner on title. However she testified that she met with the plaintiff, the plaintiff’s husband and Qu a couple of times in the negotiations with the vendor of the agreement of purchase and sale dated September 15, 2012 .These meetings were at 35 Roosevelt which was the plaintiff’s primary residence. Sophie testified that the plaintiff knew that she “was only on title and I own 50%.” She states that she told the plaintiff at one of these meeting that she (Sophie) would give her 50% of the deposit and get 50% interest in the property. She stated that the plaintiff was very happy that Sophie was going to join her son as “her son was crazy to rebuild homes.”
15It is the testimony of Sophie that the plaintiff through Qu gave a cheque to Sophie in the amount of $15,000 as the plaintiff’s 50% share of the deposit. At Exhibit #1 tab 9 is a photocopy of the cheque made payable to Yin Xue dated September 17, 2012 in the amount of $ 15,000 drawn on the bank account of Qualand Development Limited. It is the testimony of Qu that his father owned Qualand Development Limited and other than running errands he (Qu) had no control over the company.
16Sophie testified (and the documents at Exhibit # 1-tab 8 confirms) that she deposited the Qualand $ 15,000 cheque to her personal bank account and then she drew a cheque for $ 30,000 for the full deposit of $ 30,000 and had it delivered to the seller’s agent on September 17, 2012.
17The mortgage approval commitment letter from Scotiabank dated September 19, 2012 was sent to the plaintiff. (Exhibit # 1 tab 10)
18The lawyer who acted on behalf of the plaintiff in the closing prepared a Trust Ledger Statement which is found at exhibit # 1 Tab 15 pg.3. This statement indicates that balance due on closing of the transaction, which includes all the closing costs, was $ 256,405.29. This amount was paid by the plaintiff on closing. The significance of this sum will be evident after a few more details are explained.
19Sophie testified that she did not have sufficient cash flow in her business and therefore she contacted her brother Lin Xue to assist her financially in this transaction.
20Lin Xue, who testified that he is a real estate broker, testified that he received a telephone call from his sister, Sophie, in September 2012 advising that she had a good investment opportunity to purchase a 50% interest in a property located at 6 Roosevelt Drive, Richmond Hill. Lin Xue testified that he agreed to “help” his sister by contributing half of his sister’s financing requirement in exchange for a 25% interest in the equity of the property.
21It is noteworthy that Sophie and her brother, in his evidence in chief, attempted to leave the impression with the court that he was just a goodhearted brother who was willing to come to the aid of his sister when in fact, as a result of the cross-examination by Qu, it was apparent that Sophie Xue and Lin Xue while brother and sister, were also working together as partners in their real estate brokerage business. They jointly split the commission on the closing of the 6 Roosevelt transaction. In examination in chief, and under the charade that he was the kindly brother assisting his sister, Lin Xue testified that his sister said she was investing with a client and that she was getting a 50% interest in the property. He testified that he researched the property values in the area and did a drive- by estimate. He states that he then orally agreed with his sister to have a 25% interest in the property by providing her with $70,000. He testified that he provided a bank draft drawn on his personal account for $70,000 on November 1, 2012. Exhibit # 1 tab 16 is a copy of his bank account showing a $ 70,000 withdrawal. Neither the plaintiff nor the defendant Qu had met Lin Xue before he testified in court. They were unaware that Lin Xue claimed to have a 25% equity interest in 6 Roosevelt Drive.
22Sophie testified that while it was clear from her conversations with the plaintiff and her husband and Qu that she held a 50 % interest in the property, nevertheless, she decided she needed something in writing before providing the plaintiff with 50% of the amount due on closing. Therefore, after the October 31, 2012 closing of 6 Roosevelt Drive, Sophie prepared another Agreement of Purchase and Sale dated November 4, 2012. (Exhibit #1 tab 18). The buyer is shown as Ying Xue and the seller is Hezhen Yin. The purchase price is shown as $ 392,000. It is Sophie’s testimony that this agreement was signed in the presence of the plaintiff, her husband, Qu and herself. She testified that her signature appears on the top of page 5 of the agreement of purchase and sale and the plaintiff’s signature is below. The date opposite the signatures is November 5, 2012. Sophie stated that she cannot remember who witnessed the signatures or the name of the witness. Schedule A, annexed to the Agreement of Purchase and Sale of November 4, 2012, provides that it is for the “purchase and sale of 50% share of 6 Roosevelt Richmond Hill, dated the 4th day of Nov. 2012.” This Schedule A goes on to provide that the “buyer agree to pay the balance of 35% the price subject to the usual adjustments by certified cheque to the Vendor on closing(sic).” Further, “[t]he buyer agrees to assume the existing mortgage from Scotia Bank for the rest 65% of the price under the seller’s name and pay the principle and interest for the amount of [blank] to the seller every month. The buyer and seller acknowledge and agree to share all the cost and profit on a 50/50 bases (sic) for the future development of this property. The seller acknowledge that she got a deposit $ 15,000 from the buyer on 21 September 2012 (sic).” Sophie’s counsel referenced this document as an “equity agreement” throughout the closing written argument.
23At exhibit # 1 tab 17, Sophie identified a bank draft drawn on her Toronto Dominion Bank account dated November 4, 2012 payable to “Yin, Hezhen” in the amount of $ 128,202.65. Sophie testified that this amount was arrived at by taking the lawyers Trust Ledger Statement and all the closing costs (see para. [18] supra) and dividing by half. Therefore, it is Sophie’s position that by paying this sum of $128,202.65, she had fulfilled the terms of the “equity agreement entered into by her with the plaintiff in September 2012.”
24Sophie testified that the next matter that had to be attended to was “getting rid of the existing tenant”. She testified that she engineered two orders from the Landlord and Tenant Board to “get the tenant evicted.” The tenant wanted repairs made to the home which was in a state of disrepair. The Tenant stopped paying rent after two months when his calls went unheeded. An order for non-payment of rent was obtained. Sophie testified, without any hesitation, that an application was made for a second order from the Board on the basis that the plaintiff was moving back into the home (6 Roosevelt Drive) as her principle residence. There was no element of truth to this application. While this order may not be germane to the main issue to be decided, nevertheless it reflects the ethics and credibility of all the parties to this proceeding.
(b) The testimony of the plaintiff, Hezhen Yin
25The plaintiff is 78 years of age and retired. She immigrated to Canada in 2010, then shortly thereafter she returned to China “for medical help” and then returned to Canada on February 1, 2012. As a recent immigrant to Canada, she testified that she cannot speak or read English. She testified that since she already lived at 37 Roosevelt Drive, she was interested in purchasing 6 Roosevelt Drive as an investment property to provide an income stream as a rental property to assist with her “life standard in retirement.”
26The plaintiff testified that she had given her son (Weitao Qu) a Power of Attorney over her bank account so that he could make deposits and withdrawals when she was otherwise unavailable. The Power of Attorney titled “ Continuing Power of Attorney for Banking in Bank of Nova Scotia” is dated January19, 2012 and filed as exhibit #1 tab 1.However, she insisted that the Power of Attorney never provided her son with authority to purchase or sell property on her behalf. It was only available for banking purposes.
27The testimony of the plaintiff is that in relation to the Agreement of Purchase and Sale dated September 15, 2012 she paid the entire deposit of $30,000. Her testimony is that a cheque in the amount of $15,000 was written by her husband on his company, Qualand Development Limited , and that she had $15,000 in cash on hand at her home. Therefore she states that she gave the full deposit of $30,000 to Sophie.
28The plaintiff vehemently testified that at no time did she ever agree or even discuss with Sophie that she would share ownership of 6 Roosevelt with Sophie. She denied that Sophie had paid one-half of the deposit ($15,000) for 6 Roosevelt.
29The purchase of 6 Roosevelt closed on October 31, 2012 and the plaintiff states that she paid the balance due on closing together with all the closing costs (i.e. Land Transfer Tax, solicitors fees and registrations etc.) in the amount of $256,405.29 (as confirmed by the copy of the Bank draft found at exhibit # 2 tab 19.)
30The plaintiff testified that she had a choice of 3 Chinese real estate agents and she chose Sophie to be her agent because she was a good friend of her son. Since she could not read or speak English, she chose a lawyer whose staff was conversant in Chinese and who reviewed all the documents with her to sign on closing.
31The plaintiff was aware that a first mortgage in the amount of $510,250 was registered on closing in favour of the Bank of Nova Scotia and she was the only chargor on the mortgage document. She also executed a sworn Declaration to the Bank that “the proceeds of this mortgage are for my sole benefit and not for the benefit of any third party, nor is any third party controlling the disbursements of these funds.” (Exhibit #2 tab 13 pg. 2 para. 11).
32In relation to the Agreement of Purchase and Sale dated November 4, 2012 which Sophie testified that she drafted and was executed by all on November 5, 2012 (exhibit # 1 tab 18), the plaintiff testified that the document does not bear her signature and she never met with Sophie or agreed to sell her a 50% interest in the property. She further testified that no one approached her to sell one half of 6 Roosevelt and she never had an intention to sell any portion of an interest in 6 Roosevelt.
33The plaintiff testified that her settled intention was to purchase 6 Roosevelt and then rent it out to generate a revenue stream of rental income for her retirement. She testified that she never gave her son authority to administer or sell any interest in 6 Roosevelt Drive.
(c) Testimony of the defendant Weitao Qu
34Weitao Qu is referred to as Qu throughout with his consent. He is presently 45 years of age. He immigrated to Canada in late 2002.
35He testified that he knew Sophie for some time. She assisted him to get a MLS agent’s license so that he could access listing investment properties in the GTA and which would assist him as well in the part time appraisal work that he was doing. In 2012 he was doing part time jobs and began studying to get his real estate agent license after which he intended to pursue a broker’s license. He maintained that he and Sophie had agreed to be business partners in a real estate brokerage business and it was his testimony that his mother was agreeable to have the existing tenant at 6 Roosevelt evicted so that he and Sophie could do renovations to 6 Roosevelt and convert it into a real estate broker’s office for them. He testified that his mother was willing to forego rent from them until the renovations were completed for the real estate brokerage business. Thereafter, she expected to be paid rent. The plaintiff’s testimony was confirmatory of this arrangement.
36Qu was unrepresented at trial. In his examination in chief he testified that his mother never signed the Agreement of Purchase and Sale dated November 4, 2012. He testified that he signed the Agreement, in the presence of Sophie and that he did not have his mother’s authority or agreement to execute the document on her behalf. In cross- examination by counsel for the plaintiff, Qu testified that Sophie gave him a money order made payable to his mother in the amount of $ 128,202.65 at the same time he executed the agreement of November 4, 2012, which he immediately deposited to his mother’s bank account. His mother’s bank account records, filed as an exhibit, confirms this transaction.
37Qu testified that on November 6, 2012, he told his mother about Sophie’s “proposal” and he asked his mother to consent to the agreement. He relates that his mother told him that the home was a rental property and was part of her retirement plan and she did not want to share it with anyone. When he told his mother that Sophie had given her share of the money for the closing costs, he states that his mother told him to give the money back to Sophie.
38Qu’s evidence is that he then spoke to Sophie, to advise her of his mother’s refusal to consent to the sharing of an interest in the property. He testified that Sophie said that “they” need the property for their proposed business as well as they needed money to do renovations and proceed with an application to get the existing tenant out of the premises for the purpose of commencing renovations.
39Qu decided not to return the funds to Sophie as directed by his mother. He states that when his mother made further inquiries about whether the money was returned to Sophie, Qu tells her he is going to use some of the money for the renovations and then return the balance of the funds to Sophie in due course.
40Qu and the plaintiff both testified that the plaintiff was content to have the existing tenant removed and for renovations to be done. The plaintiff also testified that she was agreeable to await the completion of the renovations before receiving rent from Qu and Sophie. One clear stipulation of the plaintiff was that she was not going to be responsible for the renovation costs incurred. The existing tenant was evicted in June 2013 and no further rent was then ever collected.
Events Post June 2013
41The existing tenant of 6 Roosevelt left the property in June 2013. Qu, with the knowledge of the plaintiff and Sophie became the contractor for the renovation of the property. In his testimony, he denied this and stated that Sophie chose the contractor. His testimony was not true. He took it upon himself to hire sub-contractors and direct them in their work and pay them. Indeed his testimony that there was another contractor was contradictory on this point. His evidence demonstrated that he was directing all the renovations and he held himself out to Sophie as a contractor.
42After the tenant moved out in June 2013, Sophie testified that “we planned to sell the property.” When asked who she meant by “we” she responded she meant herself and Qu. Produced at exhibit # 1 tab 22 is a listing agreement Sophie prepared on August 2, 2013 for $ 949,800 for 6 Roosevelt. She testified that this listing attracted no offers and the comments made from persons who viewed the property was that the price was too high. She testified that the house inside was in “bad shape.”
43Sophie testified that she and Qu decided to do what she described as “cosmetics” to the house to make it more saleable and then to flip it as it was a very good real estate selling market. She testified that by “cosmetics” she meant installing new floors, paint the walls and replace some doors. In any event, in what is rather confusing testimony, Sophie testifies that after discussing the cosmetic work with Qu, and from her perspective agreeing on “cosmetics”, Qu proceeds with the work. Qu tells her that the costs of what he describes as her share of the “renovations” at that point in time was $12,500 and he also asked her to pay the mortgage on the home for the month of August in the amount of $ 2,400. Therefore, Qu tells Sophie in August that he needs approximately $15,000 from her payable in installments of $ 5,000. When Sophie went to provide Qu with the first instalment of $ 5,000, he directed her to make the cheque dated August 19, 2013 payable to Yu Mengy who apparently was the daughter of one of the sub-contractors doing some of the renovation work at 6 Roosevelt Drive (exhibit #1 tab 24). Qu told her that this contractor was making a demand for immediate payment for his work. Sophie did not make the August mortgage payment or any other payments on account of “renovations”.
44Sophie’s evidence is that four days after making the payment of $ 5,000 for renovations she visited the home to see what progress had been made. Again she testified that Qu was completely in charge of the renovations. However, despite what she said was their agreement to do “cosmetics”, Qu had directed that all the drywall, partition walls, supporting walls as well as the kitchen, bathroom and all doors be removed leaving a large cavernous space. The third bedroom had been torn out. Sophie immediately contacted Qu and asked why he had departed from what they had agreed to in relation to renovations. She states he said he said he was trying to create an “open concept”. Sophie was angry and upset and she decided that because she is not able to get Qu to agree to put everything back as it was originally, she drafts an agreement dated August 26, 2013 (exhibit #1 tab 25) which was meant to be executed “between the two shareholders: Yin, Hezhen (50%) and Ying Xue (50%) about the renovations for the upper level and basement” of 6 Roosevelt Drive. The agreement was never executed and therefore, I do not find it necessary to recite its terms.
45Sophie testified that she met with the plaintiff, her husband and Qu as well as the contractors at the job site and asked Qu’s parents to stop him from doing the work and to restore the building to its original layout with only some cosmetic work. It is her testimony that Qu’s parents told him to stop the work but he would not listen. She also tried to limit her exposure for the renovations and responsibility to pay the mortgage payments in another document she drafted dated August 26, 2013. This document (exhibit #1 tab 27) was not executed. I find that by August 2013 Sophie had made it quite clear that she was no longer involved in any shareholding agreement and/or cost share arrangement with either the plaintiff and/or the defendant Qu. She and Qu were engaged in bitter arguments. She testified that because she could not get any agreement on the renovation costs and mortgage liability and because she “saw a big problem coming as no work permit had ever been obtained from Richmond Hill building department”, she decided to “stop this relationship.” She testified that she gave them suggestions for a buy out of their respective 50-50 shares. Sophie told the plaintiff and Qu that she wanted all the money she had paid out immediately paid back to her. She testified that Qu and both his parents advised her that she would be paid in due course. I accept that the Plaintiff and Qu gave Sophie these assurances and accordingly she did not commence any legal proceedings until she determined that Qu, who by then had a real estate license, was attempting to sell the property.
46The inevitable happened on August 28, 2013 when Inspectors from the Town of Richmond Hill entered the premises and a Stop Work Order issued on September 3, 2013.
47By October 18-19, 2013 Sophie was making it clear in text messages she testified she sent to Qu, that due to the misrepresentations and Qu’s unwillingness to cooperate she wanted out of the entire shareholding arrangement and she was seeking payment of $ 162,346.33 as the amount of money she had paid to date. Included in her demand was 5% interest if paid within one week and 8% interest if not paid within one week. Over the next two months Sophie vigorously pursued the plaintiff to be paid what she states was owed to her.
48In the meantime, Qu gets his real estate license. There are 2 listings prepared by him for 6 Roosevelt Drive to sell the property in its damaged condition. The first listing (exhibit # 1 tab 29) is dated April 8, 2014 for $ 1,650,000. He lists the property again February 5, 2015 for $ 1,970,000 (exhibit # 1 tab 30). This listing states it is for land value only.
49Qu testified that he did not have the money to rebuild the interior of the home to the requirements of the Town of Richmond Hill. His mother was paying hefty fines for bylaw infractions. He was unable to sell the property in its existing condition and his mother was urging him to do something with the building out of safety concerns. Therefore, he obtained a demolition permit dated May 19, 2015 and the home was demolished shortly thereafter.
50I have serious reservations about much of the evidence of the defendant Qu. He states that he signed the November 4, 2012 agreement, forging his mother’s signature. He testifies that he did not think there was anything wrong in executing the agreement by forging his mother’s signature as he was going to ask her consent later. He states “unfortunately” his mother did not consent. It therefore begs the question why did he accept half of the closing funds from Sophie and put it into his mother’s bank account and not return it to Sophie. Clearly he formed the intent that he was going to get into the real estate business with Sophie. I find that Sophie, played on his wishes to open a real estate brokerage but her real intention was to flip the property and make a quick profit. Evidence of her intention is the August 2, 2013 listing agreement as referenced in paragraph [42] above. When it became apparent that their goals were very different Sophie and Qu clashed. Sophie had to have known that 6 Roosevelt would have zoning bylaw issues and opening a commercial business in a residential area would not likely be approved by the Municipality.
51While I find that Sophie, unscrupulously played on the desires of Qu and his mother, telling them that she and Qu were opening a real estate office, nevertheless her version of the facts, on the whole are more credible and reliable than the evidence of Qu and the plaintiff. Qu and his mother concocted a story which was completely unbelievable and unreliable. The home was listed for sale with the knowledge and consent of Qu and the plaintiff as soon as the tenant was evicted in August 2013. They knew that Sophie had paid for an interest in the property and there was no objection raised by anyone until the goals of Sophie and Qu clashed as discussed above. The plaintiff’s evidence was not credible. Her son ran her affairs with her full knowledge and consent. The plaintiff was aware that Sophie had paid what was half of the closing costs as well as half the deposit. Yet, she proceeded to tell this court a story that was not credible or reliable. The plaintiff followed the directions of her son. Her son took the money that Sophie provided as her share of the closing costs. He did so with the full knowledge and consent of his mother. I find that there was an agreement for Sophie to have a 50 % interest in the property and that she paid half the deposit and half of the closing costs for her interest. However, as will be discussed below, Sophie decided that she wanted out of the entire transaction and accordingly she terminated the agreement when it became apparent that she and Qu were at opposite ends of the pole in relation to what the objectives or goals were in relation to the property at 6 Roosevelt Drive.
Funds Paid by Sophie
52The testimony of Sophie concerning the amount of money paid out by her is summarized as follows:
(a) One half of the deposit on the Agreement of Purchase and Sale dated September 15, 2012 $ 15,000.00
(b) She paid by bank money order to the plaintiff as her 50% share of all the closing costs $128,202.65
(c) Exhibit #1 tab 20 is a reconciliation statement jointly prepared by Qu and Sophie that related to offsets for rent received and mortgage payments up to and including June 11, 2013 that Sophie paid to Qu $ 6,412.90
(d) Amount paid by Sophie towards renovations $ 5,000.00
Total $ 154,615.55
Issue # 1
Is the plaintiff the sole beneficial owner of the property, or does the defendant Xue have an equitable interest in the property?
The Plaintiff’s Position
53The plaintiff’s position is that she is the sole equitable owner of the property. She is also the sole person responsible for the mortgage registered on title to the property and she has continued to pay all the expenses related to the property, including the property taxes and property insurance since the property was purchased. There is no trust agreement in place with respect to the title to the property or equity in the property.
54The defendant Qu and the plaintiff believed that Qu had entered into a business arrangement with Sophie, whereby they intended to renovate the building so that it could be used as a real estate office. The plaintiff agreed to the building being renovated for this purpose. However, the plaintiff never agreed to a binding sale of any portion of the property to the defendant Sophie.
55It is further the position of the plaintiff that she never made a contact regarding the ownership of the property nor did she promise an ownership interest in the property. It is the position of the plaintiff that she is not bound by any alleged agreement between the defendant Qu and Sophie.
56The plaintiff’s position is that she paid the full $ 30,000 deposit in relation to the Agreement of Purchase and Sale dated September 15, 2012, half by a Qualand cheque and half by cash. She obtained the first mortgage from Scotiabank, as the sole mortgagor and she paid the balance of the closing amount from her own funds.
57The plaintiff testified that she did not sign the “Agreement of Purchase and Sale” dated November 4, 2012 that was presented to her by her son Qu. Whereas, Qu testified that he forged his mother’s signature when she advised him that she did not consent to sell a half interest in the property to Sophie. It is the position of the plaintiff that Qu did not have the legal authority to bind the plaintiff to a contract. Therefore there was no agreement between the plaintiff and the defendant Sophie with respect to ownership of the property.
58The plaintiff’s position is that even if the Agreement of Purchase and Sale was signed by the plaintiff, which is denied, the contract is not enforceable against the plaintiff. The document is an “Agreement of Purchase and Sale” and the terms were never completed by the parties, including, but not limited to, the payment of the purchase price of $ 392,500.00, the assumption of “the existing mortgage from Scotiabank for the rest 65% (sic) of the price under the seller’s name,” the closing on the listed completion date of November 6, 2012 and all other terms of the Agreement of Purchase and Sale. The document does not acknowledge the existence of any trust, nor does it purport to document one.
Statute of Frauds
59It is also the position of the plaintiff is that there was no agreement in writing between the plaintiff and Sophie. Pursuant to Section 1(1) of the Statute of Frauds R.S.O. 1990 c. S. 19 there must be an agreement in writing for a person to claim an interest in property. Further, there was no trust agreement in writing between the parties. Therefore, section 9 of the Statute of Frauds was also not complied with and there is no enforceable trust agreement with respect to the property.
Real Estate and Business Broker’s Act, 2002
60The plaintiff also takes the position that Sophie breached not only the Realtor’s Code of Ethics but also section 32(1)(a) of the Real Estate and Business Brokers Act, 2002, SO 2002 c. 30.
61One of the requirements of the Realtor’s Code of Ethics is that “Realtors cannot acquire an interest in property (either directly or indirectly) without disclosing the fact that they are real estate professionals.”
62Section 32(1) (a) of the Real Estate and Business Brokers Act 2002 states that “Unless the registrant first delivers to all other parties to the agreement the notice described in subsection (2) and the other parties have acknowledged in writing receipt of the notice, no registrant shall directly, or indirectly, (a) purchase, lease, exchange or otherwise acquire for himself, herself, or itself, any interest in real estate, or make an offer to do so.” In her testimony the defendant Sophie states that she did not comply with the requirement to disclose her alleged interest in the property to the Sellers who sold to the plaintiff, despite her testimony that she had made the verbal agreement with the plaintiff long before the closing on October 31, 2012. It is the plaintiff’s position that if Sophie wanted to ever have the right to even allege she had an interest in the property then Sophie was obligated to prepare and serve a Form 160, Registrant’s Disclosure of Interest Acquisition of Property, which in fact, she did not comply.
63Finally, as an alternate position, the plaintiff states that if there was an agreement between the plaintiff and Sophie related to the equity in the property, this agreement was terminated by Sophie who testified to not having made any mortgage contributions with respect to the property since August 2013.
Position of Ying Xue (Sophie) Defendant/Plaintiff by Counterclaim
64The position of the defendant Sophie in relation to the first issue to be decided is that she entered into an agreement to purchase an equity interest in 6 Roosevelt Drive with the plaintiff.
65It is the position of Sophie that the defendants entered into a joint venture arrangement to purchase an investment property in Richmond Hill. The defendants selected 6 Roosevelt Drive as their investment property. The defense position is that Sophie and Qu agreed that Qu’s mother, the plaintiff Hezhen Yin would hold legal title to the property in her name. It was the position of the defendants that all income and expenses related to the purchase, maintenance and disposition of the property would be shared equally between the defendants as the beneficial owners of the property.
66The relationship between the defendants broke down in August 2013, at which time Qu and the plaintiff repudiated the alleged agreement between the parties, failed to acknowledge Sophie’s interest in the property and refused to return any of her financial contribution to her.
67It is the position of the defendant Sophie, that Qu, through his mother, the plaintiff, seeks complete legal and beneficial ownership of the property in breach of what the defendant Sophie states was the investment agreement with her.
68The defendant Sophie’s position is that Qu and the plaintiff agreed orally with her terms in late September as follows:
(a) Sophie and Qu would contribute equally to the purchase of the property, that is each would contribute 50% towards the down payment and closing costs;
(b) Sophie and Qu would contribute equally to all carrying costs of the property including mortgage payments, property taxes, property insurance, utilities, general maintenance costs and repairs;
(c) The plaintiff would take legal title to the property as trustee with Sophie and Qu being the beneficial owners of the property;
(d) All decisions regarding the use, maintenance and disposition of the property were to be made jointly by Sophie and Qu; and
(e) Sophie and Qu would share equally in any rent equity or net proceeds from the Property, including upon disposition.
69The position of Sophie is that since she was not going on title, then she and the plaintiff would sign an agreement reflecting Sophie’s interest in the property which she refers to as the “Agreement” but is in fact the Agreement of Purchase and Sale dated November 4, 2012 and which she alleges was signed by her and the plaintiff on November 5, 2012.
70Sophie denies that Qu gave her $ 15,000 cash as part of the down payment. She testified that she received only a cheque for $ 15,000 drawn on an account of Qualand Development Limited. She then put this cheque in her personal account and then drew and delivered a cheque for $ 30,000 to the vendor’s agent.
71Sophie’s evidence is that she met with Qu, and the plaintiff and her husband on November 5, 2012 at 35 Roosevelt (the plaintiff’s residence) where she states that the plaintiff signed the “Agreement” which is the document titled Agreement of Purchase and Sale. The plaintiff’s evidence is denial (a) that she ever signed this document and (b) that the document contains a signature which is not her signature. Qu testified that he signed his mother’s signature to the document without her consent or approval.
72Sophie’s position is that she provided $ 128, 202.65 as half of the closing costs and this cheque was deposited to the plaintiff’s bank account on November 6, 2012. She further provided another cheque for $ 6,142.90 representing her 50% share of the net carrying costs of the property from November 3, 2012 to June 30 2013 as per the reconciliation statement (exhibit # 1 tab 20). These amounts and dates of payment are not in dispute.
73It is Sophie’s position that in August 2013, she and Qu agreed to list the property for sale. Following two weeks on the hot real estate market and the property was not attracting offers, Sophie states that she and Qu agreed to undertake basic “cosmetic” renovations to the property to make it more marketable for sale. Sophie’s position is that she and Qu agreed to keep the three bedrooms and kitchen and remove the fireplace and old floor and install a new floor, paint the walls and change the doors. It is her position that Qu, who told her he was an experienced builder, agreed to manage the renovations which commenced in August 2013. She provided Qu with a cheque for $ 5,000 on August 19, 2013 (exhibit #1 tab 24). Less than a week after providing the $ 5,000 in renovation funds she attended the property and observed that Qu had completely gutted the inside of the property including removing load bearing walls. It is Sophie’s position that this work was completely contrary to what they had agreed upon. She confronted Qu about what he had done. She states that this was the beginning of the breakdown of their business relationship.
74When Qu ignored her demand that he honour their original agreement regarding renovations, and when the plaintiff and her husband refused to get involved, Sophie gave notice that she wished to terminate the entire 50-50 share in the equity in the property and it is her position that she requested the return of the monies she invested with interest. It is her evidence that Qu refused her offer to settle the dispute.
75It is Sophie’s position that she has not paid any mortgage payments for the property since August 2013, on the basis that she was never given an opportunity to do so by the plaintiff and/or Qu, both of whom refused to cooperate with her. This testimony lacks credibility and is inconsistent with her evidence that she told the plaintiff and Qu that any 50-50 shareholder or equity interest was terminated by her and she wanted repayment of the money she had put out in the transaction.
76The position of Sophie is that the plaintiff’s son Qu was in charge of all aspects of his mother’s financial affairs including the purchase of 6 Roosevelt Drive and she had willingly abdicated responsibility for all transactions to him including the selling of an equity interest in 6 Roosevelt.
Position of the Defendant Weitao Qu
77The position of Weitao Qu (“Qu”) as set forth in his one page of submissions is that he signed his mother’s name to the agreement of purchase and sale dated November 4, 2012. He submits that this was done so that he “could explore my new career to found a real estate office”. He testified that he never had his mother’s authorization to sign the agreement.
78In his written submissions to the court and in his testimony at trial, Qu’s position was that he would like this dispute to be sent to Small Claims Court for resolution as there was very little money left “after the major renovations during our business cooperation (sic).”
Analysis
79I find on the evidence that while the registered owner of 6 Roosevelt Drive is the plaintiff, there was an intention on the part of Qu and Sophie that they would get involved in the purchase of the property for their own objectives. Their objectives were quite different. Qu wanted to get into the real estate brokerage business and he saw 6 Roosevelt Drive and Sophie as he means of attaining his objective. Sophie on the other hand had an objective to get in and out of a real estate investment with a tidy profit in a hot real estate market in the Greater Toronto Area. She saw an opportunity to realize her objective by getting an equity interest in 6 Roosevelt Drive and utilizing the naiveté of Qu and his mother to achieve her objective.
80I do not accept the plaintiff’s evidence that she paid the entire deposit. On her examination for discovery the plaintiff stated that the deposit was paid by Qu and Sophie but then suggested she did not recall who paid the deposit and that her memory is poor. She testified that she does not know who owns or what the Qualand Development Company is about. She also stated that her son never told her that Sophie had paid 50% of the deposit. Further the plaintiff was aware that Sophie had paid to her by cheque half the amount due for closing costs in the amount of $128,202.65. She testified that she told her son to return the money. Accordingly, I accept the testimony of Sophie and her version of how the deposit and closing costs got paid. The only logical reason for Sophie to pay half the deposit and closing costs was to gain an equity interest in the property.
81Qu’s testimony relating to the deposit is not credible. As but one example of the inconsistency in his evidence is that he testified that he says that the deposit consisted of a cheque drawn on Qualand Development Limited which he states is his father’s business despite a business card of his which states that he is the Chief Executive Officer. He states that he did not have any involvement or control over Qualand Development Corporation. He then testifies that the Qualand deposit cheque was given to him unsigned by his father. He then testifies that he signed the cheque for his father and that he had his father’s authority to do so. When challenged on this evidence he changed his testimony to indicate that the cheque was left for him already signed. Qu is not a credible witness on this point and others.
82Qu’s evidence was also unreliable and not credible when he testified that the funds for closing costs in the amount of $128,202.65 was given by Sophie for renovation costs and for the operation of a real estate brokerage (which did not even exist in 2012 and he was not even a licensed real estate agent). He made this assertion despite his contradictory testimony that the funds were based on a reconciliation statement he prepared and gave to Sophie indicating what she owed as her share of the closing costs (exhibit 1 tab 20). Indeed he testified that these were the funds which his mother told him to return to Sophie. Again Qu’s testimony was internally inconsistent and not reliable or credible.
83The plaintiff was not a credible or reliable witness in many aspects of her testimony including the payment of the deposit. I acknowledge that the language barrier and testifying through an interpreter is less than ideal. However, I formed the opinion that she was purposely antagonistic and had memory lapses when it came to having to admit obvious facts such as listing the property for sale with Qu on at least two occasions after the stop work order was issued.
84I find that Sophie, while a real estate broker, was inept at drafting an agreement to protect her interest in the property. The Agreement of Purchase and Sale dated November 4, 2012 was not a trust agreement. Its terms were not complied with including the assumption of the first mortgage obligation. However, I find that Sophie’s claim of an equitable interest is not defeated by the plaintiff’s argument related to the Statute of Frauds or the argument that Sophie failed to obtain an equity agreement with all the necessary constituent elements. While the case law is dated, nevertheless in McKenzie v. Walsh (1920), 1920 CanLII 72 (SCC), 61 S.C.R. 312 it was held that once the issue of contract formality is raised by the party seeking to establish such an agreement, if sufficient detail of the transaction is provided, any kind of a document will do as evidence of an agreement’s existence, including receipts acknowledging payment of part of the purchase price. In Harvie v Gibbons (1980) 1980 ABCA 38, 109 D.L.R. (3d) 559, 12 Alta. L.R. {2d) 72, 16 R.P.R. 174 (Alta. C.A.) para 16, 18, 19, Laycraft JA stated:
…it is clear that no rigid or precise form of memorandum is prescribed by the Statute of Frauds, nor need the entire contract be contained in the writing. What is required is a statement of the essential terms of the contract: the parties, the price and the Property.
85All three of the elements—parties, price and Property—are clearly ascertainable in a number of documents including exhibit # 1 tabs, 9, 17, 18, 20. The defendant Sophie submits and I accept that the necessary documents needed to evidence the investment are not comprised of a single document (i.e. Exhibit #1 tab 18). The agreement can be inferred when one document is incorporated into another by reference, or documents are read together or when a document can be connected by fair and reasonable inference by parole evidence. (Harvie v Gibbons supra at para 16, 18, 19; Doran v. McKinnon (1916) 1916 CanLII 627 (SCC), 53 S.C.R. 609 pg.2; Paguette v. Smith 1989 CanLII 4167 (ON SC), [1989] O.J. No. 1936.) The various payments that Sophie made which ended up in the plaintiff’s bank account before and after the signing of what she describes as the “equity agreement” proves to the satisfaction of this court that she had a 50% interest of the equity in 6 Roosevelt Drive. I find that the poorly drafted “equity agreement” drawn as if it was an Agreement of Purchase and Sale dated November 4, 2012, was not an attempt to “purchase” an interest in the Property post-closing. Instead it was intended to formalize the parties’ understanding of the investment. While the form of the “equity agreement” was inappropriate, I nevertheless find in relation to the essential elements it suffices to set out the terms agreed to wherein Sophie was to have an equitable interest in the property.
86There still remains the issue of whether the plaintiff executed the November 4, 2012 Agreement of Purchase and Sale which the defendant Sophie characterizes as the “equity agreement.” I find that Qu and his mother were acting in concert and whatever Qu told the plaintiff to do she complied. It is evident that when the relationship soured between Sophie and Qu that it was only then that the plaintiff advanced the position that she never agreed to sell a 50% interest to Sophie and that she always had the intention to keep 6 Roosevelt Drive as an investment tool to fund her retirement. This position is entirely inconsistent with the plaintiff permitting Sophie to pay half the deposit and half of all the closing costs as adjusted. I find that the plaintiff was not telling the truth to the court when she testified on this issue. She was antagonistic, aggressive and inconsistent in her testimony. There were aspects of her testimony in cross-examination when she refused to answer questions that were unfavourable to her position. Further, either Qu executed the Agreement of Purchase and Sale dated November 4, 2012 with his mother’s knowledge and consent or his mother executed it at his direction. Either way Sophie relied on the Agreement of Purchase and Sale of November 4, 2012, believing it to be executed by the plaintiff and reflecting the terms the parties had all orally agreed. Even if the “equity agreement” is incomplete, there is an exception to the Statute of Frauds requirement, that contracts be reduced to writing, in the equitable doctrine of part performance. It alleviates against the strict interpretation of the Statute of Frauds.
87The equitable doctrine of part performance looks at the conduct of the parties, particularly where one party acts in reliance on the existence of a contract. In Taylor v Rawana 1990 CanLII 6916 (ON SC), [1990] O.J. No. 1363 para. 23-28, the Court of Appeal set forth the principles of the equitable doctrine of part performance. I find that the specific requirements of the equitable doctrine of part performance are met on the facts of this case. Accordingly, I find that it would be unjust for the plaintiff to take advantage of the lack of a written agreement or a poorly worded agreement to defeat the defendant Sophie’s claim to an equitable interest in 6 Roosevelt Drive.
88Therefore the parties conduct leading up to and following the signing of the November 4 2012 agreement captures what were the parties’ intentions and understandings throughout.
Conclusion on Issue # 1
89Therefore, the determination on issue #1 is that the defendant/plaintiff by counterclaim Ying Xue (Sophie) had a binding, enforceable agreement between her, Weitao Qu (Qu) and Hezhen Yin (the plaintiff) for a 50% interest in the property in exchange for her contribution towards the purchase price and maintenance payments including payment of one-half of the mortgage on the property.
90However, while Sophie may have entered into an agreement for a 50% equitable position in the property, she nevertheless repudiated the agreement in its entirety by the fall of 2013. She did not make the payments of the mortgage or any of the other costs as outlined at para. [68] above.
Issue # 2 Is the plaintiff entitled to damages from the defendants for the damage inflicted on the building and consequent loss of rent?
91The uncontradicted evidence is that Qu, despite the objections of his mother and Sophie, proceeded to carry out renovations that were never agreed upon and he refused to restore the house to its original design when asked to do so by Sophie.
92Qu on his own initiative directed work that resulted in a Stop Work Order issued by the Municipality. The cost to restore the home to its original condition was more than Qu or his mother could or wished to pay. Accordingly the home was demolished.
93I find that the plaintiff’s position that she was going to rent the home to the defendants as part of her retirement plan was in effect a charade and sham. I make this finding based on the fact that the plaintiff signed a listing agreement to sell the home with Sophie as the listing agent in August 2013 as soon as the existing tenant had moved out.
94All the damage to the home at 6 Roosevelt Drive was done by Qu. There was little in the way of proper documentation to support the quantum of damages and therefore I find that the plaintiff has not met the burden of proof. I specifically make a finding that the defendant Sophie is not liable for any damage inflicted to the building and the consequent loss of rent. I seriously doubt that the plaintiff had any intention to collect damages made to the building by her son Qu. She would not intervene to stop her son when she was shown the extent of the damage he caused in August 2013. The plaintiff’s position is that she is entitled to the loss of rent from August 2013 to the present time at $ 1,750 per month since this is the amount the existing tenant paid at the time of the purchase up until the parties obtained vacant possession of the building. However, it was also the testimony of the plaintiff that she was not going to charge rent for the period in which renovations were completed by the defendants. The facts are that the defendants, with the knowledge of the plaintiff, intended to make “cosmetic” renovations and sell the home in the August-September 2013. I do not accept the evidence of Qu that a real estate brokerage was the parties intended use of the property. It may well have been his intention but as Sophie testified she never had the intention to run a real estate brokerage out of this house. Besides the property was zoned residential and no application had ever been made for a zoning change. While there is evidence that an existing tenant was paying rent at $ 1,750 per month from October 31 2012 until August 2013, nevertheless, the plaintiff was the party who had the tenant evicted by using false and misleading information that she wished to move into 6 Roosevelt Drive as her principle residence. The plaintiff authorized and permitted her son Qu to gut the residence resulting in it being demolished. Therefore based on these findings of fact I dismiss the plaintiff’s claim for loss of rent. For much of the same reasons, I dismiss the claim of Sophie for loss of rent as she was part of the scheme to have the existing tenant evicted based on false and misleading information, and in addition thereto is the fact that she repudiated the entire “equity agreement” by August 2013.
Issue #3: Is the defendant Xue entitled to receive any of her funds that were deposited into the plaintiff’s bank account, and whether the funds are payable by the plaintiff and/or the defendant Qu?
95A significant aspect of the evidence is that the defendant Sophie, by late August 2013, had repudiated the agreement entered into with the plaintiff and the defendant Qu on the basis that he had altered the three bedrooms in the home and made it less saleable on the real estate market. She refused to pay her one-half share of the mortgage, property taxes, property insurance, utilities, general maintenance costs and repairs. The testimony of Sophie was that she advised the plaintiff, orally and in writing, that by August 27th, 2013 she would not be paying her share of the mortgage or any further renovation costs. She also on August 26, 2013 asked for a buy-out whereby she was reimbursed for the money she had paid out ($154,615.33) plus interest. Neither the plaintiff nor the defendant Qu responded to this proposal.
96In all the circumstances, notwithstanding the defendant Sophie’s repudiation of the agreement in August 2013, I find that nevertheless, she is entitled to restitution by way of reimbursement of all monies she paid to the plaintiff related to the deposit and closing costs and other costs related to adjustments to August 2013. Her repudiation of the equity agreement was prompted by the actions and conduct of Qu, with the full knowledge and acquiescence of his mother, who is the plaintiff and defendant by counterclaim. Therefore, I find and direct that the Ying Xue shall have judgment as against the plaintiff, Hezhen Yin in the amount of $ 149,615.55 plus prejudgment interest calculated in accordance with the Courts of Justice Act. This amount of restitution to be paid to Sophie by the defendant by counterclaim, Hezhen Yin is calculated as follows:
(a) Closing costs $ 128,202.65
(b) Deposit $ 15,000.00
(c) Reconciliation to August 2013 $ 6,412.90
97In addition thereto, I hereby order and direct that the defendant/plaintiff by counterclaim, Ying Xue, shall have judgment as against the defendant Weitao Qu in the amount of $ 5,000 plus prejudgment interest calculated in accordance with the Courts of Justice Act. This judgment represents the payment that Sophie made to Qu for the cosmetic renovations that she would approve. Qu failed to carry out the renovations in the manner and in accordance with the terms of agreement with Sophie. She is entitled to restitution from Qu for this amount.
The issues relating to Real Estate and Business Brokers Act
98Counsel for the plaintiff, in argument, raised the issues relating to Sophie not disclosing her interest in the property and the related provisions under the Real Estate and Business Brokers Act as detailed above. However, I accept that the plaintiff did not plead in her statement of claim that the Agreement of November 4, 2012 was invalid and/or unenforceable because Sophie was a real estate broker at the time it was signed and she failed to disclose her interest in the property to the previous owner and /or the mortgagor. I acknowledge that the issue of the requirement under the Real Estate and Business Brokers Act 2002, S.O. 2002, c.30 Sch. C was first raised by me, the trial judge, during the course of trial. The plaintiff has taken up the comments of the trial judge and advanced this theory of the case in written argument. I find that it is neither fair nor reasonable for the plaintiff to rely on this theory raised for the first time by the trial judge. The plaintiff did not plead the Code of Ethics or the Real Estate and Business Brokers Act nor did she seek leave to amend the Statement of Claim during the trial of this action. I am persuaded that at the late stage in the trial, the defendant Sophie was afforded no opportunity to address new liability theories raised by the trial judge. The difficulty created here is that the parties did not frame their law suit or conduct the trial on the bases raised by the trial judge. (TSP-Intl Ltd. V. Mills (2006), 2006 CanLII 22468 (ON CA), 81 O.R. (3d) 266 para 29-35 (Ont. C.A.)). Therefore, I am ignoring the arguments advanced by the plaintiff as outlined here.
Damages for Loss of Chance/Loss of Opportunity
99The defendant/plaintiff by counterclaim, Sophie advances a claim as against the plaintiff and Qu for the lost opportunity “to invest her $ 154,615.55 in another similarly situated real estate property” and for which counsel does a calculation (written argument para. 135). I note first that the evidence of Sophie and corroborated by her brother, was that her brother loaned her half of all the money she invested. Further applying the principles set forth in Jarbeau v. McLean, 2017 ONCA 115, I am not satisfied that Sophie adduced evidence to show that the chance lost was sufficiently real and significant to rise above mere speculation. I further find that Sophie did not establish on a balance of probabilities, that but for the wrongful conduct, she had a chance to obtain a benefit or avoid a loss. Therefore, I dismiss this specific claim for damages for loss of chance/loss of opportunity.
Loss of Rental Income
100In the notes of a building inspector dated March 25, 2014 (exhibit #1 tab 36) there is reference to 6 boarders being found in the building. However, Qu denied there were borders. I am not satisfied that Sophie proved on a balance of probabilities that there were borders residing in the building or for what period of time and the amount, if any, received for rent. I dismiss this specific claim for loss of rental income.
Plaintiff’s Cross-Claims
101On the final day of testimony, Mr. Leck, counsel for the plaintiff, advised the court that the plaintiff was abandoning all her cross-claims. His written argument makes no reference to any cross-claims. In the event that I misunderstood counsel’s submission to the court, he will be permitted to raise the issue of cross-claims with me again when costs are spoken to in court.
In Summary
102Counsel will submit to me a draft judgment, which I will review when costs are spoken to in court. The draft judgment should reflect the terms outlined in the Reasons for Judgment, (subject to correction of mathematical errors, omissions and other errors), namely:
(a) The defendant/plaintiff by counterclaim, Ying Xue shall have judgment as against the plaintiff Hezhen Yin in the amount of $ 149,615.55 plus prejudgment interest calculated in accordance with the Courts of Justice Act.
(b) The defendant/plaintiff by counterclaim, Ying Xue shall have judgment as against the defendant Weitao Qu in the amount of $ 5,000 plus prejudgment interest calculated in accordance with the Courts of Justice Act.
(c) The action commenced by the plaintiff Hezhen Yin including cross-claims as against Ying Xue and Weitao Qu are dismissed with costs to be determined.
(d) Any and all other claims or counterclaims of the defendant Weitao Qu and Hezhen Yin are dismissed with costs to be determined.
103The parties will contact the trial coordinator at Oshawa and arrange a date to appear before me to speak to the issue of costs and settle the terms of the formal judgment.
Justice J. Bryan Shaughnessy
Dated: July 27, 2017