Court File and Parties

COURT FILE NO.: CV-14-509784 DATE: 20180718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: RPC CONSTRUCTION LTD. Plaintiff (Respondent) – and – ZHIYI ZHOU and LINA WU Defendants (Moving Parties)

COUNSEL: Julian Binavince, for the Plaintiff (Respondent) Paul J. Pape and Justin H. Nasseri, for the Defendants (Moving Parties)

HEARD: May 24, 2018

G. DOW, J.

Reasons for Decision

[1] The moving parties defendants, Zhiyi Zhou and his spouse, Lina Wu (whom I shall refer to collectively as “Mr. Zhou”) seek to set aside the report of Master Weibe of September 22, 2017. In effect, Mr. Zhou appeals the findings of Master Weibe. They do so on the following basis:

1. the Master erred in concluding Mr. Zhou engaged in a subterfuge by inserting in what became known as the “Base Contract”, a reduction of $57,969.00 as contained in the first three stages or milestones of a construction contract;
2. the Master demonstrated a reasonable apprehension of bias in his conduct of the trial and in his reasons;
3. the Master erred in concluding Mr. Zhou agreed to pay the April 28, 2014 invoice for extras; and
4. the Master erred in concluding Mr. Zhou improperly terminated the agreement with RPC and thus was not entitled to back charges for deficiencies and incomplete work.

[2] I do not propose to summarize the background. It is well summarized in the Reasons for Judgment [2017] O.J. No. 3468 of Master Wiebe.

[3] Mr. Zhou retained counsel who, before me, focused on three points to demonstrate Mr. Zhou did not get a fair trial and the result should be overturned. The first point was the Master permitted counsel for RPC Construction Ltd. (“RPC”) to raise an issue in final closing submissions without proper notice to Mr. Zhou. This position brought the rule in Browne v. Dunn (1893), 6R. 67, into consideration.

[4] The action by RPC asked to be paid money it claimed was owed to it for demolishing and rebuilding a 5607 square foot, two storey home in Scarborough at Mr. Zhou’s request. RPC was not the initial builder but responded to an advertisement posted by Mr. Zhou. I also note RPC was operated by Mr. Kwok who speaks Mandarin and English as a second language but cannot read or write Mandarin (which I was advised is the same as Cantonese and was referred to in the trial as “Chinese”). Mr. Zhou spoke and reads only Mandarin. Mr. Zhou is also able to write Chinese and required interpretation assistance at the trial.

[5] Mr. Kwok utilized a friend, Falong, to translate documents written in Chinese into English. The parties met at Mr. Zhou’s existing home on at least three occasions to determine the details of the agreement between them, the last being August 22, 2012 when the “Base Contract” was executed and contained a discrepancy between the English version and the Chinese version. The English version required Mr. Zhou to pay RPC for the first three milestones totaling $57,969.00. The Chinese translation indicated these amounts, including HST, were already paid and thus a credit against the total price. The total price was based on a dollar cost to build – being $138.00 per square foot and the size of the building, a then rounded figure of 5,000 square feet. The first three milestones were three of fifteen.

[6] It is clear RPC did not begin the trial believing the Chinese version of a credit was a defence to the amounts for which it was seeking to be paid. Counsel for RPC explained and referred to the trial transcript that Mr. Zhou failed to serve his material as ordered in a timely manner. However, Mr. Zhou brought additional material to the trial which was accepted without being scrutinized at the time in order to efficiently utilize the trial time allotted.

[7] When the issue arose after Mr. Kwok’s cross-examination, counsel for RPC sought permission to re-examine on the issue including time to discuss and prepare Mr. Kwok in this regard. Master Wiebe rendered a ruling on this point which allowed such re-examination but without preparation. Further, Master Wiebe allowed additional cross-examination to be conducted on what is later described as the “genesis” of the Base Contract (see trial transcript, January 11, 2017 at page 48).

[8] Counsel for Mr. Zhou, retained for this hearing, relied on the Master’s comments of the previous day of the trial, January 10, 2017 (at page 88) when the Master acknowledged, in response to counsel for Mr. Kwok stating the Master had asked a lot of questions, “I’ve been taking charge here. I know this is way out of … the boundaries of my normal practice … because I feel like if I don’t, this is going to go in circles”.

[9] Mr. Kwok’s evidence went no further than he did not know who put the Chinese version of the first three milestones into the contract. Mr. Zhou was not cross-examined on the point.

[10] In closing submissions, counsel for RPC responded to questions from the Master that the conclusion from the evidence should be Mr. Zhou inserted the Chinese version of a credit for the first three milestones.

[11] In response to the Master’s question that Mr. Zhou “pulled a fast one” by inserting, in Chinese, (which Mr. Kwok could not read) a credit for the first three milestone payments, counsel acknowledged it was the appropriate inference. I note the submissions in questions from the Master at this point also canvassed the dollar amount of the contract and an admission of the amount through Mr. Zhou’s counter-claim pleading. These three submissions were described as the “three pillars”.

[12] As pointed out in reply submissions by counsel for Mr. Zhou before me, this is not the ordinary application of the rule in Browne v. Dunn, supra, where the defence must put to the plaintiff the contradictory evidence it intends to tender. Rather, and accurately, (see the Law of Evidence in Canada, 4th Edition, paragraph 16.199 at page 1185), the rule also applies to closing arguments. That is, as applied here, it was unfair to rely on the allegation in closing argument that Mr. Zhou altered the Base Contract without putting that to him in cross-examination. The Master’s reliance on this in concluding Mr. Zhou was not credible resulted in his not receiving a fair trial and the result must be set aside.

Analysis

[13] I disagree.

[14] The Master’s reasons contain 13 paragraphs that address the credibility of all of the witnesses. Comments and conclusions were made about each witness that testified. Four paragraphs dealt with evaluating the credibility of Mr. Zhou and concluded much more than just “subterfuge” or whether Mr. Zhou inserted a reduction in the price of the contract by crediting the first three milestone amounts in the Chinese language. This included finding Mr. Zhou to be:

1. profoundly self-assured, indeed arrogant despite lacking any education or training in construction;
2. a witness that readily overstated the truth to suit himself;
3. a witness that gave surprising admissions in cross-examination about his obligation to pay for certain items installed;
4. unprepared for the trial with regard to bringing the documents that were required and those documents not being organized;
5. inappropriate in the manner he conducted himself during the trial such as interrupting counsel and conducting cross-examination without direction; and
6. unaware or incapable of providing corroboration on his version of issues in dispute.

[15] Further, the Master’s evaluation of the other defence witnesses described their shortcomings, particularly when compared to the plaintiff’s witnesses. The result, as stated by the Master, was the decision to accept the evidence of the plaintiff’s witnesses over that of the defendants’ witnesses “whenever the two conflicted”.

[16] This was not a situation where RPC, through counsel, was putting forward a case that relied on the Master to find Mr. Zhou had purposely redrafted the contract to have the first three milestones be a credit against the amounts owed without RPC’s knowledge or consent. Mr. Kwok only gave evidence of what he understood about the terms of the contract to be from his oral discussions and his evidence was consistent with the English version. While the Master reached the conclusion Mr. Zhou must have been responsible for the variation in the Chinese version, the Master did so, in my view, on an overall basis and in consideration of all, particularly the conflicting evidence about what RPC was owed and why. I conclude this was not a sufficient basis to set aside the result or conclude that Mr. Zhou failed to get a fair trial. Further, it was not a sufficient basis to conclude that Mr. Zhou was not given a fair opportunity to present his case.

[17] It is well settled that the legal test for concluding the conduct of the presiding judicial officer, here the Master, exhibited a reasonable apprehension of bias (to quote Justice Armstrong in Lloyd v. Bush 2012 ONCA 349 at paragraph 23) is, “an extremely high one”. The test, as set out in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at pages 394-395 is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”.

[18] The analysis starts from the “strong presumption in favour of the impartiality of a trier of fact”. (paragraph 25 of Lloyd v. Bush, supra)

[19] The next part addresses the situation where one of the parties is self-represented. As stated by the Court of Appeal in Davids v. Davids (1999), 125 O.A.C. 375, at paragraph 36:

“fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party”.

[20] The essential portion of this statement of the law is treating the litigant fairly in attempting to accommodate the self-represented person’s lack of knowledge of the process while respecting the rights of the other party. In the decision cited by Mr. Zhou in support of reasonable apprehension of bias, there was no reference to moments in the trial where the judge indicated having already determined the outcome. The comment by the Master of taking charge, it being out of the boundaries of his normal practice and the trial “going to go in circles” was relied upon does not reach the applicable legal test of a reasonable apprehension of bias.

[21] The facts before me do not compare to what occurred in Lloyd v. Bush, supra where the trial judge’s comments following the evidence of the plaintiff’s engineering expert clearly raised in the judge’s mind the issue of fraud on the part of the municipal defendant while trial counsel maintained it was only evidence about what the expert would have expected to see as to the condition of the roadway had the sand/salt mixture been applied as indicated from the records of the municipal defendant. It was the judge and not the witness or counsel that raised the evidence “is cooked on the other side” or that the municipal defendant had “cooked their books”. My review of the reasons of Master Wiebe and the portions of the Master’s comments during the trial does not approach an informed person, viewing the matter realistically and practically concluding a reasonable apprehension of bias on the part of the Master.

[22] Similarly, in Martin v. Martin, 2015 ONCA 596, the court states “when one party is self-represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging” (at paragraph 108).

[23] In her reasons, Justice MacFarland reviewed “a sampling of the comments” (at paragraph 111) raised with regard to assessing whether the trial judge exhibited a reasonable apprehension of bias. The comments were described by Justice MacFarland as:

a) insensitive to one litigant and may have appeared as though the trial judge did not take that litigant’s allegation seriously (at paragraph 112); b) an unfortunate choice of language (at paragraph 113); and c) giving an appearance of trying to help one of the litigants out of a difficult spot while under cross-examination (at paragraph 114)”.

[24] Despite same, none of the comments made “either alone or viewed together, would themselves have risen to the level of reasonable apprehension of bias” (at paragraph 115).

[25] I have also reviewed the seven insistences counsel for Mr. Zhou submits the Master chastised Mr. Zhou which are detailed in paragraph 94 of Mr. Zhou’s factum. In my view, reviewed on the basis of the legal test of the informed person, viewing the matter realistically and practically and having thought the matter through, I am unable to conclude the Master exhibited what must be described as a reasonable apprehension of bias.

[26] Regarding the decision by the Master concluding that Mr. Zhou had agreed to pay for the extras set out in the April 28, 2014 invoice, the Master relied on a variety of evidence and factors aside from concerns over Mr. Zhou’s credibility. They included:

1. delays which occurred without consequence before the April 28, 2014 invoice was delivered;
2. Mr. Zhou did not dispute the work contained in the April 28, 2014 invoice was done with one minor exception; and
3. Mr. Kwok’s evidence that one of the reasons he agreed to return to work on the property was Mr. Zhou’s verbal promise to pay the April 28, 2014 invoice.

[27] As a result, there is no basis for concluding an error has occurred which should be overturned. Similarly, the final aspect of the decision which concluded the termination of the contract was improper, it was open for the Master to conclude same given the evidence which was accepted. This involved the agreement reached in May, 2014 following the resolution of the disagreement over the April 28, 2014 invoice and the construction not being complete. The Master relied on the Court of Appeal authority requiring the breach to “strike at the heart” of the transaction and application of this principle of law to construction contracts.

[28] As a result, Mr. Zhou’s motion is dismissed. The report of Master Weibe September 27, 2017 is confirmed.

Costs

[29] Counsel agreed the successful party be awarded $15,000.00 for costs including HST and disbursements. I award this amount to RPC Construction Ltd., payable by Zhiyi Zhou and Lina Wu forthwith.

Mr. Justice G. Dow Released: July 18, 2018