Zhang v. Han, 2011 ABQB 176

Court of Queen ’ s Bench of Alberta Citation: Zhang v. Han, 2011 ABQB 176 Date: 20110310 Docket: 1003 17245 Registry: Edmonton Between: Yan Hua Zhang Appellant - and - Dun Jiao Han Respondent Corrected judgment: A corrigendum was issued on March 18, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Oral Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] Mrs.

Yan Hua Zhang appeals the decision of a Provincial Court judge, who dismissed her civil claim and awarded costs to the Defendant Dun Jiao Han. [ 2 ] Mrs. Zhang’s claim stems from a dispute respecting a lease. On December 10, 2009, she entered into a one year lease with a landlord, Boardwalk Reit Limited Partnership (“Boardwalk”) to rent a two bedroom apartment in a complex called Galbraith House. The term of the lease was to expire on December 31, 2010. She lived there with her husband, Mr. Zhang although his name was not on the lease with Boardwalk. [ 3 ] In March of 2010, a Mr.

Zheng moved into the same apartment as a subtenant. His agreement with Mrs. Zhang was that he would pay $400 per month. Mrs. Zhang was to continue to be responsible for the rental payment to Boardwalk and for the utilities.

[ 4 ] Some time in April of 2010, Mrs. Zhang advertised on a Chinese language website for someone to take over the lease. The details of what this advertisement says were not properly before the court because only an untranslated copy of what purports to be the advertisement was made an exhibit. [ 5 ] Mr. Dun Jiao Han responded to this advertisement and he and Mrs. Zhang had some discussions which resulted in Mr. Han signing a lease agreement on April 19, 2010. This lease agreement was made between Boardwalk, Mrs. Zhang, Mr. Zheng, and Mr. Han. The latter three persons are named as tenants in the agreement.

On its face it is for the same apartment previously rented by Mrs. Zhang, purports to be for a term from January 1, 2010 to December 31, 2010, and is otherwise on the same terms and conditions as the lease entered into by Mrs. Zhang in December of 2009. [ 6 ] Notwithstanding the lease agreement, Mr. Han did not move into the apartment and Boardwalk rented another apartment to him. [ 7 ] Mrs. Zhang sued Mr. Han for breach of their agreement which she said was that Mr. Han would take over the lease on the apartment.

As damages she claimed the costs totalling $2309 which Boardwalk charged her when she and her husband left the apartment near the end of May, 2010. This amount consists of $1000 as a lease break penalty and $1309 in charge backs of certain rental incentives she enjoyed at the commencement of the lease period. She had not paid this amount when this matter came to trial. [ 8 ] The agreement reached between Mrs. Zhang and Mr. Han was not in writing and it was a primary issue between them at the trial, whether the agreement between them was clear and what its terms were.

This had to be established through oral evidence. [ 9 ] The trial judge decided that he accepted Mr. Han’s evidence over that of Mrs. Zhang, concluding at page 75 of the transcript, lines 18-32, as follows: In the end I accept and prefer the evidence of Mr. Han over the evidence of Mrs. Zhang in this particular instance. I accept Mr. Han telling Mrs. Zhang that he expected the apartment to be vacant, at least from their perspective, by May 1 st so that he would have a bedroom for he and his wife and young child to reside in. I accept Mr. Han’s evidence that he could accept Mr.

Zheng living there in that apartment until the end of May. I do not accept Mrs. Zhang’s evidence that he accepted a new arrangement where it would see him live on the sofa until the end of May. This would have made absolutely no sense to the living arrangement with his wife Yajin Zhao, the young baby and his parents, the in- laws of Mrs. Zhao soon moving in. In the end I find it a condition precedent to the sublease arrangement that Mr. Han have possession of the apartment from the occupancy of Mrs. Zhang and her husband. There is another issue and I find the case by Mrs. Zhang against Mr.

Han fails in that regard. In the end the claim against Mr. Han is dismissed. [ 10 ] Mrs. Zhang argues that the trial judge made several errors in his findings of fact. She argues, among other things, that the judge misunderstood her evidence that she and her husband would remain in the apartment until May 13 and that it was only until that date that she and Mr. Han agreed that he would stay temporarily in the living room of the apartment. She also argued that the trial judge failed to recognize that the agreement she reached with Mr.

Han changed a number of times in the period between April 19 and May 1 because Mr. Han changed his mind a number of times. [ 11 ] The appeal is allowed. I have concluded that the judge misunderstood some of the evidence. It is possible he would have made another decision respecting credibility had he properly understood this evidence. I direct, therefore, that the matter be returned to the Provincial Court for a new trial.

[ 12 ] There were certainly problems with understanding in respect to all of the witnesses at the hearing. All of them are of Chinese background and all spoke Mandarin as their first language. No interpreter was available. The trial was conducted in English and the Trial Judge made it clear that he did not speak or read Mandarin. [ 13 ] I conclude that he erred in concluding that Mr. Han told Mrs. Zhang that he expected the apartment to be vacant by May 1 and that this was a condition precedent to the sublease. This was not Mr. Han’s evidence. [ 14 ] Instead, both Mr.

Han and his wife Yajing Zhao gave evidence that could be seen as corroboration of Mrs. Zhang’s evidence. [ 15 ] In cross examination by Mrs. Zhang, Mr. Han appeared to agree that the parties had amended their original agreement and decided that Mrs. Zhang and her husband would not move out on May 1 but, instead would stay until May 13 but changed his mind after speaking to his wife about the proposed arrangement. Beginning on page 63 at line 4, the following exchange took place: Q Well, April 1 st did you, Mister and I reach a new agreement in my house -- my apartment with your father and my husband?

A What kind of agreement? Q In April 1 st . The agreement says I will move out on May 13 th and you will move in on May 1 st , and you will stay in the living room and Mr. Zheng will move out on May 31 st , before the May 31 st , Mr. Zheng will move out before May 31 st . A And but -- Q Right? A After that -- Q Yes or no? I just want to -- A Yes. Q Yes. A But after that because my wife in China at that time and because of the time differences and like 14 hours, so I can’t talk with my wife even on that date.

So consider all the situations I’m in love with her, so I -- I don’t think it’s -- it’s enough safety for me to living in the living room, because I never -- I never know the person before. And they -- they tried to -- they first confirms May 1 st then they like they cannot, so I -- at that time we decided not to move in. Q But -- A And also Mrs. Zhang had said to me her stuff has been touched and removed by -- by other person without permission, that is what she said, and my father is also over there at that time, but she refused to accept -- to recognize that.

So that’s why I -- I feel it’s not -- not safety for me to, you know, put all my personal stuff and living in the living room, there is no separate doors for that. And also my -- my parents, my father will live with us, so there’s really no enough space for -- for me to, you know, to support my family. And my wife and son also will come in around the 20s, I need time and space to prepare to for alls furniture -- like, you know, have no furniture and just came here with suitcase. And there’s -- I think that’s not reasonable for me to stay there when they came here with nothing.

So that’s why I decided I -- if you cannot move out on May 1 st , you know, I have to find another new place on May 1 st to prepare for my family’s coming also with my parents to Canada. Q If the -- as you --

THE COURT: Any other questions? Q MRS. ZHANG: Yeah. If I -- if you don’t change your mind, if you didn’t change your mind, I will move out on May 1 st , you will stay -- you will live in the apartment with Mister, right, you know this before you sign the lease? A Yeah. I know this before that. [ 16 ] In cross examination, Mrs. Zhao, Mr. Han’s wife, said (page 70, lines 9-14) was as follows: A Yeah. I didn’t get information. The information I only get is Mrs. Zhang will move out. THE COURT: Okay A And the Mrs. Zhang will move out earlier by the end of the – the May.

Again, the following exchange took place at page 71, lines 37 to 41 continuing on page 72, lines 1-6: Q So I agreed that your husband changed his mind, you know these things? A Yeah. Q At that moment? A Yeah. Q At that time? And - - A Actually I persuade my husband to change his mind because you changed a lot of time. You said you will move out before May 1 st or on May 1 st , but you cannot do that, that’s because you’re changing.

So I persuade my husband to -- to change his mind to look -- go to ask for the landlord’s help. [ 17 ] The trial judge appears to have overlooked these exchanges in his reasons and does not mention them. Instead, he appears to have relied only upon the direct examination of Mr. Han, who said quite clearly at page 60 of the transcript that he signed the lease at Boardwalk because he understood that Mrs. Zhang and her husband would move out on May 1. [ 18 ] The date agreed to between Mr. Han and Mrs. Zhang, when Mrs.

Zhang and her husband would actually leave the apartment is crucial to the decision reached by the judge as is when they reached this agreement. Because the trial judge makes no mention of the contradictory evidence given by Mr. Han and Mrs. Zhao in cross examination and does not attempt to reconcile this evidence with what Mr. Han said in examination in chief, I cannot be satisfied that the trial judge would have come to the same decision respecting the credibility of Mr.

Han, if he did properly consider this contradictory evidence. [ 19 ] As a result, as I have said, I allow the appeal and remit it for retrial to the Provincial Court. Heard on the 10 th day of March, 2011.

Dated at the City of Edmonton, Alberta this 10 th day of March, 2011. D.C. Read J.C.Q.B.A. Appearances: Yan Hua Zhang 7187 South Terwillegar Dr. Edmonton AB T6R 0P3 appeared on her own behalf Dun Jiao Han 1306, 12020 - 49 Avenue Edmonton AB T6H 5B5 appeared on his own behalf _______________________________________________________ Corrigendum of the Oral Reasons for Judgment of The Honourable Madam Justice D.C. Read _______________________________________________________ The 2011 ABQB number was not on the filed judgment. The citation should read Zhang v. Han, 2011 ABQB 176.