Sun v Huang, 2021 ABQB 781

Court of Queen’s Bench of Alberta Citation: Sun v Huang, 2021 ABQB 781 Date: 20210928 Docket: 2001 15418 Registry: Calgary Between: Tong Heintz Sun Plaintiff - and - Jianxin Huang and Rong Wang Defendants _______________________________________________________ Judgment of the Honourable Mr. Justice R.W. Armstrong _______________________________________________________ I. Introduction [ 1 ] This is a

summary trial application that I heard concurrently with Action Number 2101-03342. [ 2 ] This Action concerns a lease agreement between the Plaintiff, Tong Heintz Sun, and one of the Defendants, Rong Wang, for a residential property in Calgary. Mr. Sun’s intention was to offer the premises for short-term rentals on sites such as VRBO and Airbnb. The lease was terminated by Ms. Wang and Mr. Sun has sued for damages. II. Facts [ 3 ] Ms. Wang owns a house located in NW Calgary, Alberta. She rents the house out as a means of generating income. [ 4 ] The Defendant, Jianxin Huang, is a friend of Ms. Wang’s. Ms.

Wang speaks limited English so Mr. Huang assisted Ms. Wang in arranging for the rental to Mr. Sun. [ 5 ] Mr. Sun and Ms. Wang entered into a written lease agreement (the “Lease”), which contained the following terms relevant to this action: • The Landlord was to keep the property in good repair and all major appliances and facilities in good working condition. • The Tenant was to pay $1,600 per month to the landlord and was responsible for paying the utilities including electricity, gas,

water, sewage, phone and cable. • The Tenant was entitled to operate a short-term rental business by listing the property on platforms such as Airbnb, HomeAway, VRBO, Expedia and Hotels.com and by subletting all or part of the property to short-term renters. • The Lease commenced November 1, 2020 for a 2-year term. • The Lease could be terminated by the Tenant if the property was not kept in good repair. The Lease could also be terminated by the Landlord in the event of non-payment of the monthly Lease payments. [ 6 ] The Lease was signed by Mr. Sun as the Tenant and Ms. Wang as the Landlord on November 1, 2020.

Mr. Huang also signed the Lease as the Landlord’s agent. Mr. Huang had agreed to provide services to the short-term rental business, including cleaning, laundry and greeting guests to let them into the property, all on a fee for service basis. [ 7 ] At the commencement of the Lease, Mr. Sun paid the first month’s Lease payment in the amount of $1,600.00, plus a damage deposit of $600.00. [ 8 ] After the Lease was signed, Mr. Sun purchased furnishings for the property for use in his short-term rental business. He purchased beds and bedding, as well as some other pieces of furniture and various kitchen items.

Receipts for purchases totalling $10,671.20 were provided in Mr. Sun’s affidavit evidence. [ 9 ] Mr. Sun hired Mr. Huang to assemble some of the furniture he had purchased, to install window shades and to remove some garbage from the premises. The fee for these services was to be $480.00. Mr. Huang completed the work, but Mr. Sun did not pay the fee. [ 10 ] Other than payment for the first month made at the time the Lease was signed, Mr. Sun did not make any further Lease payments. [ 11 ] When Ms.

Wang did not receive the Lease payment for December, she brought an application to the Residential Tenancy Dispute Resolution Service to terminate the tenancy. On January 8, 2021, a Tenancy Dispute Officer issued an Unconditional Order terminating the tenancy effective January 15, 2021 and granting Ms. Wang a judgment for unpaid rent in the amount of $1,600.00 for the period up to and including December 31, 2020 plus $52.60 per day from January 1, 2021 to the date she obtained possession of the premises. The Tenancy Dispute Officer ordered Mr.

Sun to deliver up vacant possession of the premises by January 15, 2021. [ 12 ] Mr. Sun moved most of his belongings out of the premises by that date, but left behind some bed frames and mattresses. [ 13 ] Mr. Sun appealed the Order of the Tenancy Dispute Officer to this Court. In an Order dated March 2, 2021, a Justice of this Court dismissed the appeal and affirmed that the Unconditional Order of the Tenancy Dispute Officer remained in full force and effect. [ 14 ] Meanwhile, on December 14, 2020, Mr. Sun filed a Statement of Claim against Ms. Wang and Mr.

Huang claiming damages for the loss of profit to his short-term rental business in the amount of $576,000, as well as compensation for furnishing and equipment in the amount of $12,000. [ 15 ] On June 4, 2021, Mr. Sun filed an Application for

Summary Trial. At that point, Mr. Sun claimed loss of profits from his short-term rental business in excess of $14 million dollars, in addition to out of pocket expenses. III.

Summary Trial Process [ 16 ] The

summary trial process is governed by Rules 7.5 – 7.11 of the Alberta Rules of Court . Rule 7.5(1) states: 7.5(1) A party may apply to a judge for judgment by way of a

summary trial on an issue, a question or generally. [ 17 ] The remedies available following a

summary trial are set out in Rule 7.9: 7.9(1) After a

summary trial, the judge may (

a) dismiss the application for judgment, or (

b) grant the application and give judgment in favour of a party, either on an issue or generally.

(2) Judgment must be granted after a

summary trial unless (

a) the application is dismissed, (

b) on the evidence before the judge, the judge is unable to find the facts necessary to decide the issues of fact or law, or (

c) the judge is of the opinion that it would be unjust to decide the issues on the basis of the

summary trial. [ 18 ] As noted above, the application for

summary trial was brought by Mr. Sun, but the Defendants did not object to the process. Both sides seek judgment in their favor. [ 19 ] Mr. Sun’s evidence was adduced by way of affidavits. The Defendants chose not to cross-examine Mr. Sun. Mr. Huang gave viva voce evidence at the trial on behalf of the Defendants and Mr. Sun cross-examined him. There were no other witnesses.

[20] The test for determining if a

summary trial is appropriate is 1) can the court can decide disputed questions of fact on affidavitsor by other proceedings authorized by the Rules of Court for

summary trials and 2) whether it would be unjust to decide the issues insuch a way: JN v GJK, 2004 ABCA 394 at para 40; SHN Grundstuecksverwaltungsgesellschaft MBH & Co v Hanne, 2014 ABCA 168at para 9 [21] As discussed in Duff v Oshust, 2005 ABQB 117 at para. 24 and Bonsma v Tesco Corp, 2011 ABQB 620 at para 29, whendetermining whether it would be unjust to decide the issues by way of a

summary trial, the following factors may be relevant: 1. the amount involved; 2. the complexity of the matter; 3. its urgency 4. any prejudice likely to arise by reason of delay; 5. the cost of taking the case forward to a conventional trial in relation to the amount involved; 6. the course of the proceedings; 7. whether all witnesses or only some will be cross examined in court; 8. whether there is a real possibility that the defendant can bolster its evidence by discovery of the plaintiff’s documents and witnesses;and 9. whether the resolution will depend on findings of credibility. [22] Additionally, the

summary trial rules must be read in light of foundational Rule 1.2, which stresses the importance of fairlyand justly resolving claims in a timely and cost-effective way. The Rules of Court are to be applied to facilitate the quickest means ofresolving a claim at the least expense. [23] In this case, I find that a

summary trial is an appropriate process for determination of the claim. The evidence before theCourt, including Mr. Sun’s affidavits and Mr. Huang’s viva voce evidence is sufficient to permit determination of the issues. There arevery few facts in dispute and a just resolution of the claim does not depend on findings of credibility that cannot be resolved on theevidence before me. [24] Further, while the amount Mr. Sun claims is large, the issues for determination are not complex.

There are essentially twoquestions that the Court must determine: 1) was there a breach of the terms of the Lease by the Defendants and 2) if so, is Mr. Sunentitled to damages and in what amount. [25] Mr. Huang’s evidence is that the lawsuit is weighing heavily on him and Ms. Wang. Given that the record before the Court issufficient to permit fair and just determination of the claim, and given that neither party objected to the

summary trial process, there is noreason to put the parties to the expense and the delay of sending the matter to a full trial. The

summary trial is an effective, efficient andfair means by which to hear and decide this claim. [26] Accordingly, the application for a

summary trial is allowed. IV. Analysis of the Claim [27] Mr. Sun claims that Ms. Wang was in breach of the Lease and thus he was entitled to terminate the Lease and claim damages. [28] However, the undisputed evidence in this case is that Mr. Sun breached the terms of the Lease by failing to make the requiredpayments. Mr. Sun did not deny that he did not pay rent. He attempted to negotiate a reduced rent for December based on perceiveddeficiencies in the state of the property, but no reduction was agreed to and the December rent was never paid. [29] The Unconditional Order of the Residential Tenancy Dispute Resolution Service was in evidence on the

summary trial. Itstates that Mr. Sun “. . . has substantially breached the Residential Tenancies Act and/or the Tenancy Agreement under

section 21(a)failing to pay rent when due.” It goes on to terminate the tenancy and award judgment to Ms. Wang for unpaid rent. [30] As noted above, the Unconditional Order was affirmed by Order of this Court on March 2, 2021. That Order also was inevidence on the

summary trial. [31] It is clear from the evidence before me that Ms. Wang properly terminated the Lease for non-payment of rent. [32] During the

summary trial, Mr. Sun argued that the Lease was a commercial lease agreement to which the ResidentialTenancies Act did not apply. He further argued that there was garbage left in the yard, which prevented him from renting out the propertyand amounted to a breach of the Lease, causing him losses. [33] Mr. Sun’s arguments amount to a collateral attack on the Unconditional Order and the affirming Order of this Court. Mr. Sunis asking this Court to disregard those orders and make contrary findings that the Residential Tenancies Act does not apply and that Ms.Wang improperly terminated the Lease. I cannot do that.

The Supreme Court of Canada described the prohibition on collateral attacks inWilson v The Queen, (SCC), [1983] 2 SCR 594 at para 8:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding andconclusive unless it is set aside on appeal or lawfully quashed.

It is also well settled in the authorities that such an order may not beattacked collaterally – and a collateral attack may be described as an attack made in a proceeding other than those whose specific objectis the reversal, variation, or nullification of the order or judgment. [34] The rationale behind the rule against collateral attacks was explained later in R v Litchfield, (SCC), [1993] 4SCR 333 at para 17: The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration ofjustice.

To allow parties to govern their affairs according to their perception of the matters such as the jurisdiction of the court issuing theorder would result in uncertainty.

Further, “the orderly and functional administration of justice” requires that court orders be consideredfinal and binding unless they are reversed on appeal. . . [35] Similarly, in Penner v Niagara (Regional Police Services Board, 2013 SCC 19 at para 28, the Supreme Court of Canadasaid: Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposes partiesto additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in theadministrative law field, may undermine the legislature’s intent in setting up the administrative scheme.

For these reasons, the law hasadopted a number of doctrines to limit relitigation. [36] Accordingly, as Mr. Sun’s claim for damages arising out of the termination of the tenancy amounts to a collateral attack onthe Unconditional Order and the affirming Order of this Court, it must be dismissed. [37] A portion of Mr. Sun’s claim pertains to the goods he left at the premises following the termination of the tenancy. While heremoved most of his furnishings and goods, there were some bed frames and mattresses left behind. [38] Under

section 31 of the Residential Tenancies Act, any items Mr. Sun left in the premises after the termination of the Lease onJanuary 15, 2021 constituted abandoned goods. Since these goods consisted primarily of second-hand mattresses, I am satisfied that Ms.Wang had reasonable grounds to believe that their market value was less than $2000.00, that being the amount prescribed by theregulations referred to in s. 31(2) of the Residential Tenancies Act. Therefore, Ms. Wang and Mr. Huang have no liability to Mr. Sunwith respect to any goods left abandoned at the premises after January 15, 2021. V.

Conclusion and Costs Award [39] Mr. Sun’s claim against Ms. Wang and Mr. Huang is dismissed. [40] Generally speaking, the successful party to litigation is entitled to a costs award. While a costs award typically is meant topartially reimburse the successful party for legal fees incurred in connection with the claim, Rule 10.31(5) permits an award of costs toself-represented litigants: 10.31(5) In appropriate circumstances, the Court may order, in a costs award, payment to a self-represented litigant of an amount or partof an amount equivalent to the fees specified in

Schedule C. [41] An award of costs to a self-represented litigant must be carefully considered and crafted to ensure that the objectives ofdiscouraging frivolous litigation and encouraging settlement are met.

Creating a windfall to a self-represented party could have exactlythe opposite effect and encourage litigation by self-represented parties in the hopes of receiving a large costs award at the end of theproceedings. [42] Each case must be decided individually but factors to be considered include how complicated the matter was, whether theself-represented litigant performed good quality work or caused unnecessary delay and whether the litigant lost time from work: Dechantv Stevens, 2001 ABCA 81 at para 21. [43] With respect to the risk of self-represented parties commencing or continuing litigation in the hopes of obtaining significantcosts awards at the end, the decision in Edmonton (Police Service) v Alberta (Information and Privacy Commissioner), 2019 ABQB864 at para 31 is instructive: I think there is a clear distinction to be made between litigation initiated by a self-represented litigant or maintained by the litigant himor herself after counsel has withdrawn for whatever reason, and a litigant responding to litigation brought against him or her.

It seems tome that there is less worry about a litigant turning the litigation into an occupation when the self-represented litigant is the defendant orrespondent. The litigant may have little choice but to represent him or herself for financial reasons. Legal aid is rarely available for civillitigants outside the family law area, and even in that are is limited to very poor litigants. A sued person has no choice but to respond,and faces a system where his or her legal costs will be fully indemnified on success only in very exceptional circumstances. [44] In this case, the Defendants were the successful parties.

They had no choice but to respond to the claim against them. Theydid nothing to prolong the litigation and had no interest in doing so. Mr. Sun’s claim was wholly without merit. He served lengthy andrepetitive affidavits on Ms. Wang and Mr. Huang. Most egregiously, his claim for in excess of $14.4 million was grossly inflated in whatcan only be interpreted as an attempt to intimidate the Defendants. Such conduct on the part of litigants must be discouraged and a costsaward is the means by which that objective can be achieved.

In the circumstances of this case, I will exercise my discretion to awardcosts to the successful Defendants. [45] Having exercised my discretion to order costs, I must now determine the appropriate quantum.

Schedule C provides a usefulstarting point. The applicable items in

Schedule C in this case are: item 1(1), commencement documents, affidavits, pleadings and related

documents; item 10(1), preparation for trial and

summary trial; and, item 11, first ½ day or portion thereof of trial or

summary trial. [ 46 ] Given the amount Mr. Sun claimed, Column 5 normally would apply, leading in this case to a costs award of $20,925.00. This is far in excess of what is required to achieve the proper objectives of a costs award in this case. [ 47 ] Costs based on Column 1, split equally between the two successful Defendants, is a more appropriate amount that considers the time and effort spent by the Defendants in defending the case while also serving as a deterrent for litigants like Mr.

Sun who choose to commence unmeritorious claims for inflated sums and prosecute those claims through to a final determination by the Court. [ 48 ] I therefore award costs in the total amount of $5,400.00, inclusive of any disbursements. Mr. Sun shall pay $2,700.00 in costs to the successful Defendant Ms. Wang and $2,700.00 in costs to the successful Defendant Mr. Huang. Heard on the 10 th day of September, 2021. Dated at the City of Calgary, Alberta this 28 th day of September, 2021. R.W. Armstrong J.C.Q.B.A. Appearances: Tong Heintz Sun Self Represented Jianxin Huang and Rong Wang Self Represented