IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Li v. Li,
	2019 BCSC 1115

Date: 20190709

Docket: S188785

Registry: Vancouver

Between:

Sisi Li

Plaintiff

And

Man Long Li

Defendant

Before: The Honourable Mr. Justice N. Smith

Reasons for Judgment

Counsel for the Plaintiff:	J.W. Ryan
Counsel for the Defendant:	J. West
Place and Date of Hearing:	Vancouver, B.C. June 4, 2019
Place and Date of Judgment:	Vancouver, B.C. July 9, 2019

 

[1]             The parties entered into a contract of purchase and sale for a residential property in Burnaby, British Columbia. The sale did not complete and the plaintiff vendor (the “Vendor”) seeks forfeiture of the defendant purchaser’s (the “Purchaser”) deposit and damages for breach of contract. The Purchaser applies on a summary trial for dismissal of the Vendor’s claim and return of his deposit.

[2]             The contract is dated August 26, 2017, with a completion date of December 1, 2017. The purchase price of $1.8 million included a $90,000 deposit, which the Purchaser provided in two bank drafts dated September 15, 2017.

[3]             Terms of the contract included a requirement that the Vendor remove a wall that had been built in the living area and an acknowledgment by the Purchaser that property contained “unauthorized accommodation”. This was apparently a reference to the property being used for short term rentals. The contract said the Purchaser had been informed of “the potential loss of income should the rental use be discontinued”.

[4]             During the fall of 2017, inspectors from the City of Burnaby visited the property. At least partly as a result of those inspections, issues arose between the parties about both the short term rentals and the necessary renovations. It is not necessary to review those issues because counsel for the Purchaser concedes, for the purpose of this application, that there continued to be a valid and enforceable contract until one day before the completion date.

[5]             But, on November 30, 2017, the Purchaser’s solicitor, Mr. West, sent an email to the Vendor’s solicitor, Mr. Aleksejev, and to the realtor, Mr. Chan, who was holding the deposit. The email indicated that there had been a telephone conversation earlier in the day and said:

We confirm that the Contract between our respective clients with respect to the Property is at an end and we hereby request that the deposit (together with any interest accrued) be released to our client.

[6]             Mr. Aleksejev responded on December 1, 2017:

I confirm as counsel for the vendor that the deposit is to be released to the purchaser on the basis that the contract has been frustrated and therefore mutual releases are not required.

[7]             The Vendor says she disagreed with Mr. Aleksejev on the need for mutual releases and refused to release the deposit without them. Mr. Chan, as the realtor holding the deposit, also said he required a document signed by both parties. Mr. West forwarded a document for the Vendor’s signature, but she never signed it.

[8]             The Purchaser says the communication between the solicitors on November 30, 2017 constituted an agreement to cancel the contract.

[9]             Rule 9-7(15)(a) of the Supreme Court Civil Rules reads as follows:

(15) On the hearing of a summary trial application, the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii) the court is of the opinion that it would be unjust to decide the issues on the application, ...

[10]         There can be no question that this matter is suitable for summary trial. The relevant evidence is contained in documents. I agree that those documents show a clear agreement between the solicitors for the respective parties that the contract was at an end and the deposit was to be returned. The Vendor, in her affidavit, acknowledges that Mr. Aleksejev was her conveyancing lawyer.

[11]         Unless a solicitor clearly communicates the contrary to those with whom he or she is negotiating, a solicitor is the agent of the client and thus may bind the client to an agreement: Hartslief v. Terra Nova Royalty, 2013 BCCA 417 at para. 22.

[12]         I therefore find that the parties, through their solicitors, mutually agreed to termination of the contract and return of the deposit. That agreement is binding on the Vendor. I therefore order that the deposit be returned to the Purchaser and the Vendor’s action is dismissed with costs. Although the notice of application seeks special costs, this is not an appropriate case for such an award.

“N. Smith J.”