Sun v Huang, 2021 ABQB 782

Court of Queen’s Bench of Alberta Citation: Sun v Huang, 2021 ABQB 782 Date: 20210928 Docket: 2101 03342 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 2001-15418 (the “Lease Action”). [ 2 ] The Lease Action concerned a lease agreement between the Plaintiff, Tong Heintz Sun, and one of the Defendants, Rong Wang, for a residential property in Calgary. My decision in that case is now reported at 2021 ABQB 781 (the “Lease Decision”).

[ 3 ] This action arises from interactions between the parties during and subsequent to their dispute over the leased premises. Mr. Sun claims that the Defendants’ actions amounted to harassment and threats. He seeks a restraining order, as well as damages for intentional infliction of emotional distress and punitive damages. II. Facts [ 4 ] The facts in respect of the Lease Action are set out in the Lease Decision and I will not repeat them here. The facts relevant to the restraining order application are as follows. [ 5 ] After Mr. Sun filed his Statement of Claim in the Lease Action, Ms.

Wang sent him a series of texts in her native language. The texts consisted of forwarded items from YouTube or other sources, as well as some written by Ms. Wang. The translated texts may be summarized as follows: • 13 Signs of Karmic Creditors Coming after You The God of Disasters Warns the Humanity: Four More Disasters • Now Heaven, Earth and Human have moral deficiency #Yi Cai Tang # Qin Zheng Feng Hua The God of Disasters warns humanity: four disasters are imminent. A more catastrophic disaster is on the way @ Yi Cai Tang • You cheat and harm others. You profit yourself at the cost of others.

You will be condemned and retributed. God is watching over what you are doing. You are going to be haunted by all kinds of ghosts. All your commercial contracts will fall through. You will lose all your legal cases. • Your brain cells will be cut off. Your tendons will be stripped off. You will be tortured in the uttermost depth of hell. Reckless ghosts will tear you into pieces • If you ever disturb our people again, they will call the police • I will see you in court • You are Satan, the devil.

God will destroy you • This is different from the revolution of the unknown Ninth Planet calculated by scientists • 2021 Nine out of Ten Households Die? Nine out of ten households die in 2021? Anand: a catastrophe in 2021. [ 6 ] In addition to the texts, Mr. Sun claims he and some of his family members received harassing phone calls from Ms. Wang and that there was a confrontation between Mr. Sun’s father and Ms. Wang and Mr. Huang outside the Calgary Courts Centre. Mr. Sun provided no details of the dates or times or number of calls or of what was said. III.

Summary Trial Process [ 7 ] As was the case in the Lease Action, Mr. Sun has applied for a

summary trial and the Defendants do not object. I discussed the

summary trial process in the Lease Decision and will not repeat that discussion in detail here. As I noted in the Lease Decision, the test for whether a

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

summary trials; and 2) whether it would be unjust to decide the issues in such a way: JN v GJK , 2004 ABCA 394 at para 40 ; SHN Grundstuecksverwaltungsgesellschaft MBH & Co v Hanne , 2014 ABCA 168 at para 9 . [ 8 ] As a restraining order amounts to a permanent injunction against the Defendants, I must be satisfied that the

summary trial process will provide a sufficient evidentiary basis upon which to grant such an order. The evidence consists primarily of Ms. Wang’s texts, which are set out with their English translations in Mr. Sun’s affidavits. Mr. Sun’s affidavit and an affidavit filed by his father, Jinzhong Sun, also set out some generalized allegations of contact between Mr. Huang and Ms. Wang and various of Mr. Sun’s family members. Mr. Huang gave viva voce evidence and Mr. Sun had the opportunity to cross-examine him. I am satisfied that the evidentiary record is sufficient upon which to assess the claim for a restraining order. [ 9 ] Mr. Sun claims that a restraining order is required urgently.

Summary trial will expedite the determination of the question and avoid the delay and expense of proceeding to a full trial. Given my finding that the record before the Court is sufficient and given that neither party objected to that process, I find that a

summary trial is appropriate and the application for

summary trial in this action is allowed. IV. Intentional Infliction of Emotional Distress [ 10 ] Mr. Sun claims damages for intentional infliction of emotional distress or, as the tort is more commonly known, intentional infliction of nervous shock. In the recent decision of Dubé v RCMP , 2021 ABQB 451 , the elements of the tort were succinctly summarized at para 157:

The elements of the tort of intentional infliction of harm (also known as intentional infliction of nervous shock or mental suffering) are:(1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible provable illness: Young v Borzoni, 2007BCCA 16 at para 24 quoting Prinzo v Baycrest Centre for Geriatric Care (2002), (ON CA), 60 OR (3d) 474 (CA),Universe v Fraser Health Authority, 2019 BCCA 234 at para 23. Psychological upset does not suffice.

A mental injury is a serious andprolonged disturbance going beyond the annoyance, anxieties and fears that come with living in a civil society. The court may considerfactors such as the seriousness of the impairment, the length of the impairment, and the nature and effect of any treatment in order todistinguish between upset and injury: Mustapha v Culligan Ltd, 2008 SCC 27 at para 9, Saadati v Moorhead, 2017 SCC 28 at para 38. [11] Mr. Sun has not established the required elements of the tort. While he was clearly annoyed, or may have even been alarmed,by Ms. Wang’s correspondence and by his interactions with Ms.

Wang and Mr. Huang, his evidence does not disclose any actual injury,mental or otherwise, attributable to the actions of Ms. Wang or Mr. Huang. In the absence of any injury, Mr. Sun’s claim for intentionalinfliction of emotional distress must fail. V. Restraining Order [12] The starting point for analyzing a claim for a restraining order is P(

R) v V(R), 2012 ABQB 353 at paras 23-33: In Qureshi v Gooch, 2005 BCSC 1584 at paras. 28-29, the British Columbia Supreme Court set out a series of factors relevant to issuinga permanent injunction in the context of breach of contract. While the case at bar implicates a different legal right, i.e. the Applicant’sfreedom to remain unfettered by harassing, intimidating, threatening, or violent conduct, I accept the general principles in Qureshi: 28 The issuance of a permanent injunction is a discretionary order.

In determining whether it is appropriate to grant a permanentinjunction the court looks at the nature of the rights that the injunction is sought to protect and the surrounding circumstances, andattempts to balance the equities between the parties: Cadbury Schweppes Inc. v. FBI Foods Ltd., (SCC), [1999] 1S.C.R. 142 (S.C.C.). 29 In determining whether it is appropriate to order a permanent injunction courts have considered a number of factors including: 1. whether an enforceable right and a threat/violation of that right exists: Delta Hotels Ltd. v. Okabe Canada Investments Co.(1991), (AB KB), 81 Alta.

L.R. (2d) 338 (Alta. Q.B.), var’d on other grounds (1992), 1992 ABCA 176 , 3Alta. L.R. (3d) 85 (Alta. C.A.); 2. whether the applicant will suffer demonstrable harm: Steeve Dairy Ltd. v. Twin City Co-operative Milk Producers Assn. (1925), (BC SC), [1926] 1 W.W.R. 25 (B.C.S.C.); 3. the hardship that would be caused to the defendant if a permanent injunction was granted compared to the hardship that would becaused to a plaintiff if he/she had to resort only to an award of damages: Cadbury; 4. the conduct of the parties; and 5. the effectiveness of an injunction.

In my opinion, within the context of a no-contact restraining order these factors lead to a more specific standard: has the applicantestablished that the respondent poses a legitimate risk of harm to the applicant, a person under the applicant’s care or the applicant’sproperty as a result of the respondent’s harassing, intimidating, molesting, threatening or violent behaviour. . . . In

summary, subject to the wide discretion of the Court to grant equitable remedies based on all the circumstances, the general rule thisCourt should follow before granting a restraining order under the common law is whether the applicant has sufficiently demonstrated areasonably held and legitimate fear for his or her safety, the safety of any other person under his or her care or the safety of his or herproperty as a result of the respondent’ harassing, intimidating, molesting, threatening or violent behaviour.

If so, the Court should grantthe injunctive relief barring any other circumstances that might militate against doing so, such as facts that implicate one or more otherequitable considerations, such as clean hands, excessive hardship, misrepresentation, laches, etc. [13] The test for a restraining order has evolved somewhat since the decision in P(R). An applicant no longer needs to demonstratean objective fear for their safety. Rather, it is sufficient to demonstrate a legitimate risk that the harassing intimidating, molesting orthreatening behaviour will persist.

As the Court said in Muslim Counsel of Calgary v Mourra, 2018 ABQB 118 at para 72, “. ..impugned behaviour need only be disruptive; it is not a requirement that it be violent. . .”. [14] Ms. Wang’s and Mr. Huang’s conduct does not meet even this lower threshold. While Mr. Sun certainly has a right to be freefrom conduct that is harassing, intimidating, molesting, threatening or violent, I find that Ms. Wang’s texts do not contain any form ofthreats or intimidation.

They are expressions of her beliefs about what may happen to a dishonest or dishonorable person in the afterlife.The texts were not persistent and consisted of only of a handful of individual communications insufficient to amount to a disruption. Mr.Sun could simply delete them and they would be of no further consequence. [15] Any other contact between Mr. Sun and Mr. Huang and Ms. Wang appears to be related to the Lease Action. While Mr. Sunclaims that Mr. Huang or Ms. Wang (he did not specify which) slashed his vehicle’s doors and tires outside the Calgary Court Centre, Ido not find that allegation credible.

While Mr. Huang and Ms. Wang may have been understandably upset that Mr. Sun was claiming inexcess of $14 million dollars from them, I find on the evidence before me that no physical altercation occurred and no damage was doneto Mr. Sun’s vehicle. [16] I am satisfied that Mr. Sun will not suffer demonstrable harm in the absence of a restraining order. He does not reside in

Alberta. The Lease Action has been dismissed and he has no reason to have any further dealings with Ms. Wang or Mr. Huang. Mr. Sun’s claim for grossly inflated damages against Mr. Huang and Ms. Wang invited a negative response, but that response was not so outrageous or persistent as to constitute harassing, intimidating, molesting, threatening, violent or even disruptive behaviour. A restraining order is not warranted. [ 17 ] In making this determination, I note that some of the contact between Mr. Huang and Mr. Sun and his family resulted from Mr. Huang’s attempts to enforce his monetary judgment against Mr.

Sun from the Residential Tenancy Dispute Resolution Service. Mr. Sun has not paid that judgment and now has a costs award against him in favor of Mr. Huang and Ms. Wang. They have been advised to seek legal advice as to the proper means to enforce a judgment. VI. Conclusion and Costs Award [ 18 ] This action against Ms. Wang and Mr. Huang is dismissed. [ 19 ] As this action was heard concurrently with the Lease Action in which I awarded costs to the successful self-represented Defendants, I decline to make any further award of costs. 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