COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Zhu v. Li,
	2008 BCCA 239

Date: 20080610

Docket: CA035533; CA035848

Between:

Yuancheng Zhu also known as Richard Zhu

Appellant

(Plaintiff)

And

Lian Li also known as Eileen Li

Respondent

(Defendant)

Before:	The Honourable Mr. Justice Donald
	(In Chambers)

 

J. A. Henshall	Counsel for the Appellant
G. K. Yu	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
May 15, 2008
Place and Date of Judgment:	Vancouver, British Columbia
June 10, 2008

Reasons for Judgment of the Honourable Mr. Justice Donald:

[1]                Mr. Zhu applies for an extension of time to file a notice of application for leave to appeal, and if granted, applies for leave to appeal Mr. Justice Ehrcke’s refusals to reopen the trial of this matter to consider new evidence.  The first refusal to reopen was on 2 October 2007: 2007 BCSC 1467; the second was on 28 January 2008: 2008 BCSC 102. 

[2]                The motions are opposed on the ground that there is no reasonable likelihood of success in the proposed appeals.  I agree with that position and accordingly I dismiss the applications. 

[3]                The appellant hopes to join these matters with appeal CA035347, which is from the judge’s main decision dealing with distribution of family assets: 2007 BCSC 1117.

[4]                In a marriage of less than eight months, the appellant transferred to the respondent title in three properties and cash in the amount of US $66,000.  He said the cash was for her to invest for him.  She said it was a gift.  He said he transferred the properties under the duress caused by her threats to use her criminal contacts to harm him and his family if he did not give her the properties.  She said the transfers were to compensate her for his taking US $280,000 of her funds for his own use.

[5]                The parties executed a separation agreement, which provided that they would keep their own properties and debts.

[6]                The judge did not find the duress argument credible.  He decided that “each party shall retain the property and debts in their own names”, thereby giving effect to the separation agreement, with one exception.  The judge held that the US $66,000 given to the respondent was not a gift but was for her to invest for the appellant.  He ordered her to transfer the investment to him.

[7]                The appellant twice applied to reopen the trial on the basis of fresh evidence regarding the respondent’s alleged threats. 

[8]                On the first attempt, the appellant proposed to adduce testimony of four new witnesses.  No affidavits of those witnesses were presented on the application.  The judge found he could not assess the value of the evidence in the form in which it was offered (2007 BCSC 1467): 

[22]  The fact that the plaintiff has not supported his application with affidavits from the proposed witnesses themselves poses a significant problem.  It is impossible to determine in the abstract whether the fresh evidence would probably affect the result at trial without making at least an initial assessment of whether the proposed witnesses might be believed.  If they are not believed, then their evidence would not affect the result.  Since the proposed witnesses have not sworn affidavits in support of this application, there is no way to make even an initial assessment of whether their evidence might be believed.  See Mahoney v. R., (1979) 11 C.R. (3d) 64 (Ont. C.A.) at p. 83, where the court rejected fresh evidence on the basis that the proposed new witness, by refusing to be cross-examined on his affidavit, had effectively limited the court’s ability to assess his trustworthiness.

[9]                He also found that the appellant did not exercise due diligence and that refusal of the motion would not create a miscarriage of justice:

[28]  I find that if Mr. Zhu had used reasonable diligence, he could have called the proposed new witnesses during the course of the trial.  He has not provided a satisfactory explanation for his failure to do so.  I find that the plaintiff has not shown that a miscarriage of justice would probably occur if the trial is not re-opened. 

[10]            The second motion to reopen was supported by several new affidavits, in an obvious attempt to overcome the deficiency in the first application.  The judge analysed the evidence and concluded that (1) the evidence was of threats after the execution of the separation agreement, and therefore irrelevant to the duress claimed as a reason for signing it; (2) the evidence was not credible; and (3) the appellant gave no satisfactory reason for not calling this evidence at the trial.

[11]            The appellant acknowledges that he must show an injustice would occur if the new evidence is not considered:  Hodgkinson v. Hodgkinson, 2006 BCCA 158, 53 B.C.L.R. (4th) 52 at paras. 36-37. 

[12]            The judge heard the parties over 19 days of trial.  He had difficulty believing either of them on several important matters.  In particular, he did not believe the appellant’s allegations of threats.  In my judgment, the appellant has virtually no prospect of success in persuading a division of this Court that the judge was wrong in resisting his serial attempts to enhance the case on duress.  The judge applied the correct principles to the applications to reopen, and he gave clear reasons for finding that the fresh evidence did not justify a second look at duress.  I do not agree with the appellant’s argument that the judge failed to consider the materiality of the evidence.  To the contrary, the judge carefully assessed the evidence, and it cannot be said that he was plainly wrong.  The appellant has not presented a credible argument that the judge erred in his disposition of these matters.

[13]            In the result, the applications for an extension of time and for leave to appeal are dismissed.

“The Honourable Mr. Justice Donald”