Reasons for Decision

Court File No.: CV-24-4034
Date: 2025-02-06
Ontario Superior Court of Justice

Between:
Jun Cai Wang a.k.a. Jason Wang
Plaintiff/Defendant by Counterclaim

and

Run Ze Xie (a.k.a. Judy Xie), Aero Future Canada (AF-C) Inc., Ye-Hang Canada (EH-C) Technology & Services Inc.
Defendants/Plaintiffs by Counterclaim

Appearances:
Jun Cai Wang a.k.a. Jason Wang, Self-Represented
Aaron Gideon, for the Defendants/Plaintiffs by Counterclaim

Heard: January 8, 2025

Introduction

[1] This is a motion brought by the Plaintiff, Jun Cai Wang a.k.a. Jason Wang (hereinafter referred to as the “Plaintiff”), against the Defendants, Run Ze Xie (a.k.a. Judy Xie), Aero Future Canada (AF-C) Inc., and Ye-Hang Canada (EH-C) Technology & Services Inc. (“Ye-Hang”) (hereinafter referred to as the “Defendants”), for a partial summary judgment motion. The Plaintiff seeks damages in excess of $1,000,000 for breach of contract and tortious interference with economic relations, causing the Plaintiff to lose a down payment and potential profit from a pre-construction condominium purchase.

The Disputed Claim

[2] In the Statement of Claim, the Plaintiff, Mr. Wang, alleges that he entered into an Employment Agreement with the Defendant, Ms. Xie, and her associated company, Aero Future Canada (AF-C) Inc. (the “Company”) (the “Agreement”). Mr. Wang maintains that pursuant to the Employment Agreement, he was employed by the Company as a Director of Business Development from January 1 to August 9, 2024.

[3] According to the Plaintiff, the signed Employment Agreement contemplated he would be working as a Director of Business Development with Aero Future Canada Inc. in a full-time position.

[4] To secure a mortgage and close on the purchase of a pre-construction condominium unit, Wang even drafted a Proof of Employment letter on April 15, 2024, and requested Xie’s signature. Initially, Xie refused to sign the Proof of Employment. However, Wang promised the letter would be used solely for the mortgage application.

[5] Wang had to secure three months of consecutive salary payments and the Proof of Employment for his mortgage application. Wang even offered to provide some of the funds himself to ensure the “salary” payment was made.

[6] In the Statement of Defence and Counterclaim, the Defendants have denied each and every allegation contained in the Statement of Claim except for paragraph 3 of the Statement of Claim, which relates only to the area in which the Defendant Xie resides and where the registered address of the other corporate Defendant is located.

[7] The Defendant Xie provided evidence that she met the Plaintiff in 2019 and that in December of 2023, the Plaintiff and the Defendant corporation Ye-Hang Canada entered into a verbal independent contractor agreement for a one-year term wherein the Plaintiff agreed to complete projects for Ye-Hang as an independent contractor.

[8] By April of 2024, the Plaintiff’s poor performance and poor attendance constituted a substantial breach of the independent contractor agreement such that Ye-Hang was forced to terminate the independent contractor agreement and the Plaintiff agreed to same.

[9] The Defendant Xie asserts that the “Employment Agreement” relied upon by the Plaintiff was drafted by the Plaintiff solely for the purpose of demonstrating to a mortgagee that he was a salaried employee with the objective of purchasing a pre-construction condominium unit. The terms of the Employment Agreement were never contemplated to be enforceable.

[10] The Defendant Xie maintains that she was also pressured to execute the Employment Agreement as a favour to the Plaintiff. The communications between Xie and the Plaintiff were primarily in Mandarin, not in English. The Employment Agreement is in English, which is a language that the Defendant Xie purports not to speak, understand or read even on a basic level.

The Proceeding

[11] The Statement of Claim was served on the Defendant Run Ze Xie (a.k.a. Judy Xie) on August 31, 2024.

[12] A Statement of Defence and Counterclaim was prepared and served on the Plaintiff on September 30, 2024.

[13] A Reply and Defence to Counterclaim was delivered to the Defendants on October 18, 2024.

[14] On November 19, 2024, Justice Corkery established a timetable for delivery of further motion materials, cross-examinations and undertakings motions.

[15] The Plaintiff and the Defendants filed their motion materials in accordance with that Order and the Defendants conducted a cross-examination of the Plaintiff’s Affidavits in support of the motion for partial summary judgment. No cross-examination was conducted on the Defendants’ Affidavits filed in response to the Plaintiff’s motion.

[16] Pursuant to the cross-examination completed on December 10, 2024, the Plaintiff provided numerous undertakings for correspondence between the parties and other undertakings relating to relevant documents in the litigation.

[17] On December 17, 2024, the Defendants served and filed a Notice of Motion with respect to the outstanding undertakings and refusals generated as a result of the Cross-Examination on the Plaintiff’s Affidavits which occurred on December 10, 2024.

[18] On December 16, 2024, the Plaintiff provided an Affidavit of Documents which includes some of the aforementioned documents provided through undertaking. Importantly, the Affidavit of Documents includes the textual correspondence between the Plaintiff and the Defendants (text, email and WeChat) as a Schedule “A” production. The documents are in Mandarin and require translation to be understood by counsel.

Analysis

Is Partial Summary Judgment Appropriate in the Circumstances?

[19] The Court of Appeal for Ontario addressed the propriety of partial summary judgment motions in Butera v. Chown, Cairns LLP, 2017 ONCA 783. The Court traced the jurisprudence of summary judgment motions following Hryniak v. Mauldin, 2014 SCC 7 and found that pre-Hryniak decisions such as Corchis v. KPMG Peat Marwick Thorne, which expressed particular caution regarding the exercise of a partial summary judgment, were still relevant and correctly stated.

[20] The Court of Appeal for Ontario has described the partial summary judgment motion as “a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.” As the Court explained at para. 26:

Partial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.

See Butera v. Chown, Cairns LLP, 2017 ONCA 783, paras 26 and 34.

[21] In Malik v. Attia, 2020 ONCA 787, in addressing partial summary judgment, the Court explained:

When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:

(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;

(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

See Malik v. Attia, 2020 ONCA 787, para 62.

[22] The Defendants submit that none of the above factors referenced in Butera and Malik can be met by the motion brought by the Plaintiff.

[23] I agree with the Defendants that summary judgment is not warranted in this case.

[24] The Defendants take the position that the alleged Employment Agreement was drafted purely to assist the Plaintiff in his mortgage application and did not reflect the actual agreement between the parties which was on an independent contractor basis.

[25] There is support for the Defendants’ version of events. I find it unusual that the Plaintiff drafted the terms of the employment agreement. This is of particular concern given the Defendant’s issues with understanding English. Further, the Plaintiff acknowledges that he offered to provide the Defendants with money to facilitate the delivery of salary payments. These are unusual facts which do provide support for the Defendants’ version of events.

[26] The Plaintiff has only translated selected correspondence between the Plaintiff and the Defendant from April 2024 despite the fact that the working relationship between the Plaintiff and the Defendant commenced in 2019.

[27] The Defendants have also not had the opportunity to review the other texts given their recent disclosure. The Defendants maintain that these other texts still require translation and are crucial to understanding the full context behind the preparation of the “Employment Agreement”.

[28] Matters of credibility are central to a just determination of this matter and require a more complete record than the one here.

[29] In this case, the issues of the Counterclaim and the remaining requests for relief contained in the Statement of Claim are inextricably intertwined as they also relate to the same dealings between the parties. There is a serious risk of inconsistent findings by the judge hearing the balance of the Statement of Claim and Counterclaim.

[30] Cross-examination of the Plaintiff has also revealed that certain aspects of the Statement of Claim are moot as the Plaintiff was able to obtain a mortgage and is now receiving Employment Insurance payments.

[31] Partial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case.

[32] In the circumstances, I am not satisfied that partial summary judgment is warranted.

[33] The motion is dismissed.

[34] The Defendants can submit submissions on costs within three (3) weeks of the release of this decision. The Plaintiff has two (2) weeks thereafter to respond.

Justice C.F. de Sa
Released: February 6, 2025