Li v. Dong Date:, 2017 BCPC 285

Citation: Li v. Dong Date: 20170912 2017 BCPC 285 File No: 14-50448 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: CHUNMEI LI ALSO KNOWN AS MICHELLE LEE CLAIMANT AND: YAN DONG ALSO KNOWN AS ROCKY DONG DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI Appearing on her own behalf: C. Li Appearing on his own behalf: Y. Dong Place of Hearing: Vancouver , B.C. Dates of Hearing: January 3, 4, 5, June 12, 13, 2017 Date of Judgment: September 12, 2017

A Corrigendum was released by the court on September 25, 2017. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] The claimant, Chunmei (Michelle) Li, seeks payment of $15,696 from the defendant, Mr. Yan (Rocky) Dong, for what are essentially commissions (also referred to as agent fees) for referring students from China to certain schools in British Columbia that provide English language training courses. The particulars of the claim are set out below. Ms. Li maintains she and Mr.

Dong had an agreement whereby she would be his sub-agent for recruiting students from China to attend several schools in British Columbia. Ms. Li maintains the agreement between them was that she would receive an agent fee for each student she recruited in addition to a $5000 consulting and supervision fee she charged directly to the parents. [ 2 ] Ms. Li seeks the following: a) $5000 – that is, $1000 for each of five students she referred to Surrey Christian School in 2012. Ms. Li maintains she was only paid $1000 for each student but should have been paid $2000 for each student.

With respect to a sixth student (Ms. Chen), Ms. Li acknowledges this was a transfer from the Westside Preparatory School to Surrey Christian School. Accordingly, she maintains she and Mr. Dong reached a special agreement in this case that she would only receive $1000. Ms. Li therefore is only seeking a fee of $1000 each for five students she referred to Surrey Christian School. b) $10,000 – that is, $2000 for each of five students she referred to Canadian College of English Language (“CCEL”), three in 2012 and two in 2013. Ms. Li says she is owed an agent’s fee of 20% of the tuition fee paid by each student.

She maintains she received no payment from Mr. Dong for making those referrals. c) $696 – for the referral of one student (Hu Zhongming) to CCEL who paid three months’ additional tuition in 2013. He was one of the students she had referred in 2012. He only enrolled for three months. Ms. Li maintains she is owed a fee based on 20% of his tuition.

d) The total amount Ms. Li seeks from Mr. Dong is $15,696. She also seeks interest on that amount as well as her filing fees and legal costs. At the very end of the trial Ms. Li advised court she wanted to add additional claims, namely, the costs of her interpreter, $500 for a legal opinion and $200 for courier services. [ 3 ] The defendant Mr. Dong acknowledges he and Ms. Li worked together to recruit students to attend certain British Columbia schools. However, he does not agree they had a contract in the terms stipulated by Ms. Li.

In particular, he denies there was any agreement, either written or oral, regarding the payment of a specific agent’s fee for students referred to CCEL and Surrey Christian School. [ 4 ] Mr. Dong maintains Ms. Li approached him and asked him to help her understand the Canadian education system and to help her recruit Chinese students from New Dynamic Institute and other contacts Ms. Li had in China. Mr. Dong maintains he never agreed she could charge a $5000 student service fee for international students. In fact, he maintains he advised her against charging such a high fee.

He also says some of the schools he represented charged fees for providing the same services Ms. Li was providing for students and hence there could be a conflict. [ 5 ] Mr. Dong counterclaims against Ms. Li for the following amounts: a) $5795 – for a mistaken payment to Ms.

Li in respect of a referral of several students to Surrey Christian School; b) $1500 – for a custodianship letter fee ($300) and custodian service ($1200) in relation to Luoxiang Xia; c) $6600 – for expenses for a trip to China in 2012 consisting of $4200 for 14 days accommodation, food, and local city transportation, $1200 for the cost of travelling between six cities in China, and $1200 airfare between Canada and China; d) $206 – for filing fees. At the end of the trial Mr. Dong also added a request for legal fees, as well as $200 for deliveries. BACKGROUND

Summary of Claimant’s Evidence [ 6 ] Ms. Li immigrated to Canada from China in July 2011. Before immigrating to Canada, she worked as a director in New Dynamic Institute. She also had a business interest in New Dynamic Institute which, she said, was one of the largest English language training companies in China. [ 7 ] Ms. Li learned about Mr. Dong through an advertisement he placed in a Chinese newspaper. She said he was seeking an agent for recruitment of students to attend local schools. Ms. Li contacted Mr. Dong. According to her, they reached an oral agreement that Ms.

Li would recruit students from China to enrol in local British Columbia schools. She said Mr. Dong told her he was the exclusive agent for some Canadian schools. He agreed to use her as an exclusive sub-agent at those schools. In turn, she agreed to use her contacts/resources in China to obtain students for enrolment in English language programs in certain schools in British Columbia. Ms. Li said she and Mr. Dong entered into an oral agreement which specified the amount she would receive for each student she recruited to enrol in local British Columbia schools.

She acknowledged that each local British Columbia school pays agent fees differently and that agent fees vary depending on the school. However, she maintained Mr. Dong agreed to share his agent fee with her. [ 8 ] Ms. Li said she had a formal written agreement with Mr. Dong regarding students recruited for Westside Preparatory School. She recruited four students in 2012 and one student in 2013. She received full payment of an agent fee of $2780 for each of the students who enrolled at Westside Preparatory School. That arrangement is not in issue in these proceedings.

[ 9 ] Ms. Li said she also recruited students for Surrey Christian School and for CCEL. This was pursuant to an oral agreement with Mr. Dong. Ms. Li said she recruited six students for Surrey Christian School and five students for CCEL. [ 10 ] Ms. Li maintained Mr. Dong knew from the beginning of their business relationship that she was going to charge a $5000 fee for each student she recruited. This was a consulting and supervision fee paid by the parents directly to Ms. Li to provide services to the students. Ms. Li maintained Mr.

Dong knew she was going to charge this $5000 fee for every student she recruited from China. The school in which they enrolled made no difference to the fee she charged the parents. Ms. Li maintained this was an agreement between her and the parents to protect the parents’ interest. The fee was not related in any way to the school the students chose to attend. [ 11 ] Ms. Li, in particular, testified:

a) She had a specific written contract with Mr. Dong regarding four students she recruited in 2012/2013 to attend Westside Preparatory School. As noted above, there is no issue regarding any payments pertaining to the students who attended that school.

b) She did not have a formal sub-agent contract with Mr. Dong in respect of Surrey Christian School. However, she pointed to emails and certain instant messaging notes on a platform called QQ. She said that correspondence established that Mr. Dong agreed to pay her $2000 for each student she enrolled. Ms. Li also maintained she had conversations with Mr. Dong in which he told her he would pay her $2000 for each student she recruited to attend Surrey Christian School. Ms. Li submitted six identically worded letters from the parents of various students who attended Surrey Christian School. These letters state that the students did so “with the help” of Ms. Li.

c) She did not have a formal sub-agent contract with Mr. Dong in respect of CCEL. However, she referred to a spreadsheet she received via email from Mr. Dong in October 2012. That spreadsheet listed all the schools Mr. Dong promoted and, according to Ms. Li, it also listed agent fees for his sub-agent for each school. She maintained that spreadsheet clearly established that Mr. Dong agreed to pay her 20% of the tuition fee.

d) Ms. Li maintained that after she started to work with Mr. Dong, she went back to China (in February or March 2012) and visited all the schools in the districts covered by New Dynamic Institute, a private educational institution which provided English language training in China. She was a co-founder and shareholder of New Dynamic Institute. However, she resigned as a director in 2011 before immigrating to Canada, but she remained a shareholder. At the time New Dynamic Institute had schools in 48 locations in 18 cities. Ms.

Li explained that the CEO of New Dynamic Institute agreed she could set up an overseas business department to recruit students to attend schools in British Columbia. She did not receive any salary from New Dynamic Institute but she could charge $5000 Canadian as a supervisory service fee from each student she recruited at New Dynamic Institute to attend schools in British Columbia

e) She explained that through this project they (referring presumably to herself and New Dynamic Institute) could combine English language training with overseas credentials. This would be a big benefit in promoting sales. They would be able to tell potential clients that, if they took English courses at New Dynamic Institute, it could provide confirmation that they had reached a certain level of English proficiency and the courses they had taken would be recognized in certain Canadian schools. [ 12 ] According to Ms.

Li, after her trip to China in February – March 2012, she was able to recruit a number of students in a very short time. She discussed this with Mr. Dong when she returned. Mr. Dong told her he was going to China but had not yet made arrangements for the trip. Ms. Li maintained Mr. Dong proposed she introduce him to her contacts at New Dynamic Institute. In return, he promised that every student he successfully recruited at New Dynamic Institute would be put under her name. Mr. Dong told her he would honour his promise and pay her the sub-agent fee. More important, Ms. Li maintained it was Mr.

Dong who asked her to arrange his schedule. She denied he went there at her request. She also denied she agreed to pay his expenses for the China trip. [ 13 ] In giving evidence in respect of Mr. Dong’s counterclaim, Ms. Li maintained she terminated the relationship with Mr. Dong and stopped sending him students. She maintained that in the summer of 2013, Mr. Dong called her and told her she had to send more students or he would not pay her the sub-agent fee. Ms. Li maintained she was one of Mr.

Dong’s best sub-agents and he was very worried that if she stopped sending students he would not be able to meet his quota of enrolments.

Summary of Defendant’s Evidence [ 14 ] Mr. Dong gave evidence himself and called Ms. Chi Yung (Cindy) Lii to give evidence in this matter. [ 15 ] Mr. Dong testified that when he met Ms. Li he was working for a company called CIBT (he did not know what the initials stood for). The company owned several schools and was also involved with other educational programs. CIBT was the exclusive recruiting agent for students at Southpoint Academy. Mr. Dong was asked by CIBT to be the exclusive agent for the recruitment of students from China. Mr. Dong put an ad in the paper looking for students. [ 16 ] Mr. Dong said Ms.

Li approached him. Ms. Li told him she had just immigrated to Canada and wanted to learn about the Canadian educational system and the referral of international students to British Columbia schools. She had no knowledge about the Canadian school system and no knowledge about the British Columbia system. She told Mr. Dong she worked for an English training school in China called New Dynamic Institute. It was a large school with 20 campuses. Ms. Li told Mr. Dong that some of the students who attended New Dynamic Institute might want to come to Canada for their education.

She wanted to learn about the Canadian educational system. She also wanted Mr. Dong to help her recruit Chinese students to attend Canadian schools from New Dynamic Institute and from other contacts she had in China. [ 17 ] Mr. Dong agreed to help her. He provided Ms. Li information about the Canadian education system and also about the procedures and processes followed by the schools he represented. He acknowledged the plan was that Ms. Li would get in touch with the parents of prospective students, through her contacts.

If those parents expressed an interest, he would make the application for their children and communicate with schools in Canada. [ 18 ] Mr. Dong said Ms. Li asked him to go to China and visit the different campuses of New Dynamic Institute. She arranged the trip for Mr. Dong; however, he travelled to China by himself. He made a number of presentations and met with parents and students who

were attending at New Dynamic Institute. He went to 10 cities and 10 different campuses of New Dynamic Institute. He promoted several British Columbia schools including the Westside Preparatory School and CCEL. [ 19 ] Mr. Dong and Ms. Li discussed three British Columbia schools to which referrals could be made. One school was the Westside Preparatory School. This school provided English language programs for international students but did not offer the students any supervisory services. In particular, it did not offer custodianship services. Accordingly, Ms.

Li wanted to provide supervisory services for the students. Ms. Li wanted to charge $5000 to $6000 for the services she provided. He thought the amount was somewhat high and told her so, but Ms. Li was very determined to charge that amount. [ 20 ] Mr. Dong acknowledged he reached a written agreement with Ms. Li in relation to students at Westside Preparatory School. He was the exclusive agent for Westside Preparatory School at the time. He said the fee Ms. Li wanted to charge for supervisory services did not jeopardize anything, so he reached an agreement with her.

The agreement was that she would pay him $300 for a custodian notarization fee and $1200 for a custodian fee. She could then charge the students for other supervisory services she provided. She referred four students to Westside Preparatory School for September 2012. All payments were made in accordance with their agreement. The only issue, according to Mr. Dong, was that Ms. Li did not pay him a $300 notarization fee and $1200 custodianship fee in respect of Luoxiang Xia. [ 21 ] Mr. Dong testified that CCEL had a university pathway program.

It charged a $3000 agent student service fee which is set out in the school invoice. However, in Ms. Li’s case, because she was charging a $5000 student service fee directly to the parents, she requested they not charge the $3000 fee, because she would do the necessary student services. In return, Mr. Dong would keep the entire agent fee, i.e. the commission. He pointed to two invoices for two different students. He noted that for the student who was referred by Ms.

Li, the invoice did not charge for an agent student service fee, whereas for a different student, during the same period, who was referred by someone else there was a $3000 charge for an agent student service fee. [ 22 ] Mr. Dong testified about the spreadsheet titled Vancouver Student Services Association. He said that document was prepared by him, but it was not a complete chart. It was created at the end of 2011. He said the purpose of the spreadsheet was to show potential sub-agents the programs that were available and the schools that provided those programs.

He said he was a direct agent and sub-agents could work with him to send students to those schools/programs. [ 23 ] Mr. Dong agreed the chart showed that CCEL charged $10,000 tuition, plus another $3000 fee. He said the $3000 fee represented an agent student service fee. That fee was separate and apart from a commission for the referral. The commission for the referral was 25% of $10,000. He said there were several differences in how the commissions/fees were calculated depending on the program. [ 24 ] With respect to the agent student service fee of $3000, Mr.

Dong explained that he kept $2500 and $500 would go to the sub- agent. However, in the case of Ms. Li, because she charged the family a $5000 fee directly, no student service fee was charged either by him or by the school. Accordingly, because she charged a $5000 student service fee directly to the parents, he and Ms. Li agreed he would keep the commission from the school and she would keep the $5000 fee she directly charged to the parents. [ 25 ] Mr. Dong noted that Ms. Li referred five students to CCEL with his help.

In September 2012, she referred three students and in September 2013, she referred two students. He pointed out she never sent any email requesting commission payment for the referral of those students. That was because she received a $5000 fee directly from the parents. Mr. Dong said it was understood in that situation that Ms. Li would not receive any commission. [ 26 ] With respect to Surrey Christian School, Mr. Dong explained that in September 2012 he became a master agent for Surrey Christian School.

He had an exclusive agreement with Surrey Christian School and therefore they would not sign with any other agents. Part of his agreement with Surrey Christian School was that he had to meet certain quota requirements of student referrals. However, he was able to use sub-agents for referrals. He would receive credit towards the quota of students he was required to refer even if the students were referred from sub-agents. [ 27 ] Mr.

Dong testified that Surrey Christian School was different from some other schools because it offered services to the students including pick up at the airport, homestay, custodianship and so on. A fee was paid directly to Surrey Christian School for such services. The school charged a $2000 fee for the first year and a $1500 fee for the second year. He explained this to Ms. Li and explained this service covered such things as homestay, custodianship, communicating with the parents, etc. Mr. Dong told Ms.

Li he did not agree with her practice of charging the parents of students attending Surrey Christian School a $5000 student service fee. That amount was two times the service fee charged by the school. Ms. Li insisted she was going to charge that amount and told him she would take the responsibility for doing so. [ 28 ] Ms. Li referred five students to the Surrey Christian School. He disagreed with her evidence that all of them took summer courses. He said two students were late and did not take summer courses. [ 29 ] With respect to his counterclaim Mr. Dong testified as follows:

a) Travel costs – Mr. Dong maintained that Ms. Li agreed to pay for his trip to China. He pointed to certain emails which he said supported that proposition.

b) Mistaken payment of $5795 – Mr. Dong explained that in September 2013 he gave Ms. Li a $5000 payment. He also gave her a payment in respect of three students for the summer of 2013 which amounted to $795. Mr. Dong said after the summer of 2013 he stopped working with Ms. Li. He explained that at that time she was about to have a baby. Her husband was not working. He said he gave Ms. Li money not because it was in any agreement but because she needed help.

The court asked him to explain whether he was claiming, as he stated in his Trial Statement, that it was a mistake or whether he was now maintaining it was a gift. Mr. Dong said he gave the money to Ms. Li as a gift but he wants to take it back because Ms. Li filed this lawsuit against him.

c) Mr. Dong claimed he was owed custodian related fees, namely, $300 for notarizing a document and $1200 as a custodian fee.

He said this was an agreement he made with Ms. Li but she never paid him. Ms. Cindy Lii’s Evidence [ 30 ] Ms. Cindy Lii testified for the defendant Mr. Dong. She met the claimant Ms. Li through Mr. Dong. She helped Ms. Li prepare documents for student visas and school applications for three students. Ms. Cindy Lii testified that she herself referred a student to CCEL through Mr. Dong. She said there was an agreement between her, Mr. Dong and the school that the student would be charged a $3000 student service fee. If that was done, the school would pay a commission of $2000 for the referral. Ms.

Cindy Lii was aware that in order for an agent to qualify for a $2000 commission the student would need to pay $3000 to the school as a student service fee. [ 31 ] Ms. Cindy Lii said she was aware the claimant Ms. Li charged students a $5000 student service fee. She was aware of this because she helped Ms. Li process the student visa applications. She saw that parents were invoiced for a $5000 student service fee by Ms. Li. Ms. Cindy Lii said she provided services to some of the students Ms.

Li recruited, this included picking some of them up from the airport, arranging homestays, dealing with medical issues, in essence looking after them. She said the parents of all five students recruited by Ms. Li also contacted her. However, Ms. Li did not share her service fee with her. [ 32 ] Ms. Cindy Lii testified that for the student she referred she provided an invoice to Mr. Dong in order to receive the $2000 commission. She presented the invoice within one month. She did so pursuant to a written contract she had with Mr. Dong. [ 33 ] In cross-examination, Ms. Cindy Lii acknowledged that the claimant Ms.

Li referred four students to her in order to prepare visa applications. She also acknowledged she was paid by Ms. Li for those services. Her fee was $6000 RMB (Chinese currency); however, she had an agreement with Ms. Li that she would give her $2000 RMB from that fee. Ms. Cindy Lii agreed to pay that amount to Ms. Li because, if she did not do so, Ms. Li would not refer students to her. [ 34 ] Ms. Cindy Lii was cross-examined on a number of matters which I have not set out in this

summary of her evidence. Those matters pertained to the details of the arrangements between her and the claimant Ms. Li. In particular, they pertained to the financial arrangements beneficial to Ms. Cindy Lii and the way she did business. POSITION OF THE PARTIES Ms. Li’s Position [ 35 ] Ms. Li submits she came to know Mr. Dong, approximately two or three months after she immigrated to Canada from China, through an advertisement he had placed in a local paper. She used New Dynamic Institute, a private company in which she had a business interest, to recruit students. She acted as “agent” for overseas students. Ms.

Li said, using a company she incorporated in Canada, she signed an agreement with the parents of the students to provide certain services. Those services included identifying and recommending suitable schools, offering preparatory counselling to the students, assisting students once they arrived, including but not limited to finding a homestay, and representing the parents by assisting students to adapt to their life and studies in Canada. Ms. Li submitted she charged the parents a fee for every student she recruited.

She would only make recommendations regarding appropriate schools if a contract was signed with the parents. [ 36 ] Ms. Li submitted she and Mr. Dong worked together in relation to three schools, namely, Westside Preparatory School, CCEL, and Surrey Christian School. She submitted there is no issue between the parties regarding their arrangements for students referred to Westside Preparatory School as Ms. Li and Mr. Dong have settled their account. The issues before the court pertain to CCEL and Surrey Christian School. [ 37 ] With respect to CCEL, Ms. Li submitted Mr.

Dong was one of the first people she came to know in the education sector in Canada and that is why she gave Mr. Dong business. She met Ms. Cindy Lii through him and Ms. Lii became one of her service providers, mainly preparing study visa applications. [ 38 ] Ms. Li acknowledged in her closing argument that she and Mr. Dong did not sign any formal agreement regarding their business arrangement at CCEL. However, she submitted that a review of a number of the documents she filed during the trial established Mr. Dong agreed to pay her a 20% fee for students she referred to CCEL.

In particular, she pointed to a spreadsheet titled Vancouver Student Service Association (written in Chinese characters with portions of it translated by her during the trial) to show that the tuition at CCEL was $10,000 per student with a $3000 management fee and a 20% agent fee. She maintained that the 20% was to be calculated on the tuition and would amount to $2000 as an agent’s fee payable to her. Ms. Li pointed out she had received this spreadsheet in an email from Mr. Dong and it clearly supports her testimony that Mr. Dong agreed to pay her $2000 for each student she enrolled at CCEL. [ 39 ] Ms.

Li reviewed certain documents that were entered either by her or Mr. Dong at trial. Relying on those documents she submitted Mr. Dong was not being truthful in some of his testimony before this court. Ms. Li urged me not to accept his testimony or that of Ms. Cindy Lii who testified for the defendant. She noted CCEL is a school that provides English training and related bridging courses. There are a number of other schools in Vancouver and elsewhere in the Lower Mainland that provide similar services. If she had known Mr.

Dong was not going to pay her a $2000 agent fee, she would have had many opportunities to refer students to other schools. Ms. Li said the reason she did not look into other schools was because she would be receiving a $2000 fee for students she referred to CCEL and, additionally, CCEL was not a bad school. [ 40 ] With respect to Surrey Christian School, Ms. Li submitted this was a private school which ranked outside of the top 100 schools. My understanding is she was referring to rankings from the Fraser Institute. Ms.

Li pointed to an email dated October 26, 2012, written in Chinese characters, which he translated for the court. In that email Mr. Dong set out the agent fees for three different schools. He wrote that the agent fee for Surrey Christian School was $2000 . Ms. Li argued that Mr. Dong’s response was an answer to her email asking how much commission she would receive. She maintained that Mr. Dong’s explanation confirms she would receive a $2000 fee; however he also explained the composition of tuition.

[ 41 ] Ms. Li submitted Mr. Dong only paid her $1000 for each of the five students she recruited and referred to Surrey Christian School. She maintained she did not receive full payment and should now be awarded a further $1000 for each of the five students. She argued that Mr. Dong’s explanation of why and how he calculated what she was paid should not be believed. Ms. Li asserted she did not have any agreement with him about forgoing commissions from Surrey Christian School. She maintained Mr.

Dong knew from the beginning she would be charging a $5000 fee to the parents of students she referred to Surrey Christian School. She acknowledged she did not have a formal sub-agent contract with Mr. Dong. However, she pointed to the various documents filed as exhibits at trial and maintained those documents clearly show Mr. Dong agreed she would receive an agent fee of $2000 for each student she enrolled at Surrey Christian School. Mr. Dong’s Position [ 42 ] Mr. Dong submitted Ms. Li was the one who approached him and asked him to teach her about the Canadian education system.

She also asked him to help her recruit students to go to the British Columbia schools he represented. Mr. Dong did both of those things. They met often. He explained the process to her and he helped her look for students. He also introduced her to Ms. Lii. Mr. Dong noted that he, the claimant Ms. Li, and Ms. Cindy Lii worked together. [ 43 ] Mr. Dong acknowledged the only formal agreement he had with Ms. Li was for Westside Preparatory School. They had no written agreement regarding CCEL. Mr. Dong submitted, because Ms. Li charged a $5000 service fee to the parents, no student service fee was paid to CCEL.

Accordingly, she was not entitled to a commission. He pointed to the fact Ms. Li initially sent three students and later referred two more students to CCEL. He asked rhetorically – why would she do that if she did not receive the commission she says she was expecting? He pointed out that, if an agent was not paid by the parents for services provided to the students while attending a school, neither the school nor he received any money. Therefore, there would be no reason to pay a commission to Ms. Li on top of the service fee paid directly to her by the parents. [ 44 ] With respect to Surrey Christian School, Mr.

Dong said he was the master agent for recruitment for Surrey Christian School. That school charged a settlement fee for students. He submitted he made Ms. Li aware of this and, accordingly, as she was charging $5000, she would not receive any other service fee payment from Surrey Christian School. He said such a payment would be duplication. Mr. Dong asserted Ms. Li was determined to charge the $5000 service fee and she said she would not sign any agreement with him. [ 45 ] Mr. Dong submitted some parents contacted Surrey Christian School about the service fees charged by both Surrey Christian School and Ms.

Li for providing services to students. In this regard, I note that letters submitted by Mr. Dong on this point were not admitted into evidence. Accordingly, while I note he raised this point as part of his submission, since there is no admissible evidence in this regard, I have not taken it into account. Mr. Dong submitted he did not want to jeopardize his relationship with Surrey Christian School and therefore he did not agree with Ms. Li’s decision to charge a $5000 student service fee directly to the parents. [ 46 ] Mr. Dong raised issues about Ms. Li’s testimony. He maintained she was not truthful.

He noted she blamed him and others for her decisions, and she fabricated evidence. APPLICABLE LEGAL PRINCIPLES The Burden and Standard of Proof [ 47 ] The legal burden in a civil case lies on the party whose responsibility it is to prove a fact or an issue. If the party who bears the legal burden does not prove his/her case, or if the evidence weighs equally between the two sides, then the party who bears the legal burden loses, see: Northland Properties Corp. v. British Columbia , 2010 BCCA 177 . [ 48 ] In addition to having the legal burden, a party may also have an evidential burden.

This is not synonymous with the legal burden. An evidential burden means that a party has an obligation to present sufficient evidence to put a matter in issue. It is not the same as having the obligation to prove a fact, see: Northland Properties Corp. [ 49 ] In the civil context, a case must be proved on the balance of probabilities. In the present case, Ms. Li, the claimant, has the legal burden of proving, on a balance of probabilities that there was an agreement between her and Mr. Dong in the terms she alleges, see: Clifford v. Flores , [2004] B.C.J. No. 522 . On the counterclaim, Mr.

Dong has the burden of proving his claim that Ms. Li asked him to travel to China and agreed to pay his expenses as well as the other payments he seeks. [ 50 ] In civil cases, where there is a dispute between the parties about the events in question, including whether the parties reached an agreement and the terms of that agreement, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

In reaching a decision, I am required to make findings of fact based on the testimony of witnesses presented during the trial and relevant documentary evidence. I may accept all, some, or none of the evidence given by the witnesses called by the parties. Throughout the fact-finding process, I must bear in mind which of the parties has the burden of establishing a particular fact or set of facts, see: Troico Manufacturing Inc. v. Khersonski , 2016 BCPC 104 . [ 51 ] Agreements between parties may be made orally, in writing, or by a combination of the two.

However, the fact an agreement has not been reduced to writing does not alter a party’s responsibility to satisfy the court about the certainty of the terms agreed to by the parties, see: Canadian Bedding Co. v. Western Sleep Products Ltd ., [2009] B.C.J. No. 2180 . The basic contractual principles of offer and acceptance and certainty of terms apply, see: Clifford v. Flores . [ 52 ] In order to determine whether Ms. Li has proved her claim against Mr. Dong, as well as whether Mr. Dong has proved his counterclaim, I need to determine whether they entered into a legally enforceable contract.

As well, I need to determine the specific terms to which they agreed. Courts strive to uphold contractual obligations that are solemnly and freely undertaken. However, courts will not impose obligations upon parties who have not reached agreement on all essential terms, see: Le Soleil Hotel and Suites Ltd. v. Le Soleil Management Inc ., 2009 BCSC 1303 . Elements Required for a Valid Contract

[53] The elements necessary for the formation of a valid contract are: making an offer, acceptance of the offer, providingconsideration, an intention to create legal relations, certainty of terms, and existence of a complete agreement. [54] There must be a meeting of the minds between the parties about the essential terms agreed to before a binding contract can beestablished. The question to be asked is whether the reasonable observer, examining the exchanges between the parties, would concludethat a contract has been entered into, see: British Columbia (Minister of Transportation and Highways) v.

Reon Management ServicesInc., [2001] B.C.J. No. 2500. [55] In determining whether a valid contract has been created, the court will consider the manifested intentions of the parties.Sometimes it is a simple matter to decide what the parties have agreed to, for example, when the parties have put their agreement into awritten document and have signed it. However, if there is no single document then everything that occurred between the parties relevantto the alleged contract must be considered by the court.

This will assist the court to determine whether an agreement can be establishedon the basis of what the parties have said, done, or written, see: G.H.L. Fridman, The Law of Contract in Canada, Scarborough: Carswell 1999 (4th ed.), at pages 16 -18. Assessment of Credibility [56] In this case there were considerable differences in the evidence submitted by the parties about the nature and the terms of theiragreement. Therefore, I must assess the credibility of the parties themselves and any witnesses who gave evidence on their behalf.

Inmaking that assessment I will be guided by the observations of the British Columbia Court of Appeal in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354. [57] In assessing credibility a judge must consider the preponderance of probabilities evident in the surrounding circumstances andconsider the evidence as a whole. Truthfulness and reliability are not necessarily synonymous.

A witness may sincerely attempt to betruthful but lack the perspective, recall, or narrative capacity to provide reliable testimony on a given matter. [58] In the present case, I will consider a number of factors including: the personal interests of the parties in the outcome of thiscase, the lack of complete documentation of Ms. Li’s and Mr. Dong’s business dealings with each other, and the passage of time, toassess the reliability of their testimony. It was obvious during the course of the trial, in particular, in final submissions that therelationship between Mr. Dong and Ms. Li did not end well.

Neither party trusted the other and each of them believed the other party hadnot been truthful and had attempted to mislead the court. In this regard, I note that their subjective assessment of one another does notform a basis for my findings of credibility. ANALYSIS AND FINDING OF FACT [59] After considering the evidence I heard in this trial I make the following specific findings of fact:

a) At the time that the events concerning this litigation occurred, Mr. Dong, the defendant, engaged in activities to promote certainLower Mainland English language training schools and to recruit students to attend those schools. The nature of his businessrelationships with the schools varied. For example, in some cases he was a non-exclusive agent, while in other cases he was an exclusiveagent. In the course of his business activities he also worked together with other individuals who assisted in recruiting students.

b) Ms. Li, the claimant, immigrated to Canada from China in July 2011. While in China she worked as a director in New DynamicInstitute, a private English language training company in China in which she was also a shareholder. Her testimony as a whole makes itclear that she was interested in pursuing business opportunities in the same field in British Columbia. Ms. Li saw an advertisement placedin a Chinese newspaper by Mr. Dong and contacted him.

c) Mr. Dong and Ms. Li agreed they would work together to their mutual benefit. Their evidence about the details of thatarrangement was diverged in significant respects. However, I find that they entered into a formal written relationship regarding WestsidePreparatory School. They also agreed to work together to recruit students for CCEL and Surrey Christian School. There was no writtenagreement regarding the nature of their relationship, the duties they would each perform, their expectations regarding remuneration, thebasis for remuneration, and so on.

I have concluded on the evidence that each of them, in their haste to cement a relationship, simplydiscussed how they would work together without specific documentation of their business arrangement.

d) There is no admissible independent evidence before the court regarding the specific details of the business relationship that Ms.Li or Mr. Dong had with the schools.

e) Ms. Li relied on email/QQ communications between her and Mr. Dong and on her own evidence regarding the oral agreementshe maintains was reached with Mr. Dong. Mr. Dong does not accept Ms. Li’s

interpretation of the email/QQ communications.Moreover, he disagrees there was an oral agreement on the terms asserted by Ms. Li.

f) I find that the documentary evidence relied on by Ms. Li does not set out in clear and uncertain terms the contractual conditionsrelied upon by Ms. Li to make her claim. In particular, I do not accept that the QQ communication dated June 5 and 6, 2013 between Mr.Dong and Ms. Li (as translated by Mr. Luk, a certified translator) establishes that Mr. Dong agreed to pay Ms. Li $2000 for every studentshe referred to CCEL and Surrey Christian School. First, the context of this communication is not clear as there is no evidence of whatpreceded or followed this particular communication.

Second the communication is not clear about what students are being referred to orwhat schools are being referred to. Third, the communication does not make clear what the interplay is, if any, between the “agent fee”and the student service fee Ms. Li planned to charge the parents. [60] The central issue in this case is whether there was an oral contract:

a) Between Ms. Li and Mr. Dong, whereby, Mr. Dong agreed to pay Ms. Li a fee (essentially a commission) for referring studentsto CCEL and Surrey Christian School as claimed by Ms. Li;

b) Between Mr. Dong and Ms. Li, whereby, Ms. Li agreed to pay Mr. Dong’s expenses for a trip to China in 2012, and some other monies arising out of their business relationship, as claimed by Mr. Dong in his counterclaim. [ 61 ] Ms. Li maintains she had an oral agreement with Mr. Dong that she would be his exclusive sub-agent for recruiting students to local British Columbia schools. She maintains Mr. Dong agreed to pay her a fee of $2000 for each student she referred to CCEL and Surrey Christian School. Mr.

Dong agrees there was an arrangement between them whereby they worked together to refer students to CCEL and Surrey Christian School, but he does not agree that Ms. Li was to receive any payment other than the $5000 consulting and supervision fee paid to her by the parents of the students she recruited. [ 62 ] In coming to a conclusion about whether a contract was entered into as claimed by Ms. Li, I have taken into account the testimony of Ms. Li and Mr. Dong and the admissible documents they provided at trial. Mr. Dong also called one witness in addition to testifying himself.

However, the testimony of that witness was not particularly helpful in reaching a conclusion about the existence of an oral contract between Mr. Dong and Ms. Li and the terms of any such a contract. [ 63 ] Ms. Li relied on written exchanges between her and Mr. Dong to support her claim that Mr. Dong had agreed to pay her a $2000 agent’s fee. In particular, Ms. Li submitted a QQ communication between her and Mr. Dong dated June 5 and 6, 2013. She submitted the original in Chinese characters and a translation of the dialogue between her and Mr. Dong.

It was my understanding that either she or someone else had translated that document. Mr. Dong raised issues about the authenticity of the communication. He maintained that what was put into evidence was not a snapshot of the QQ communication, it was not the original, and more importantly he did not have it in his QQ account. Ms. Li, in fact, submitted two different translations of that communication. One was attached to her Trial Statement along with other documents which were marked as Exhibit 1. The other was a stand-alone email which was marked along with another document as Exhibit 2.

That version (Exhibit 2) of the QQ communication was translated by Mr. Luk, a certified translator and member of the Society of Translators and Interpreters of British Columbia. [ 64 ] Mr. Dong was asked by the court whether, apart from authenticity of the QQ document he had any issues with the translation. Mr. Dong told the court that he wanted to see the whole document rather than just a portion of it. He pointed to one line in the QQ dialogue and said he did not agree with how it was translated.

When asked by the court whether there were any other issues about translation with that document (Exhibit 2) he said there were no other issues. Mr. Dong also pointed out that Mr. Luk’s translation of the spreadsheet which was a document attached to be translated by him was missing the line for CCEL. [ 65 ] Ms. Li also relied on an email exchange of October 26, 2012, to advance her claim that Mr. Dong agreed to pay her certain agent fees. She provided a translation of the emails exchanged between her and Mr. Dong. My understanding was that a professional interpreter did the translation for her.

However, there was no certification in the materials provided by Ms. Li to indicate who prepared the translation and whether the person was a certified translator. [ 66 ] The original translated email (time stamped 2:20 PM) submitted by Ms. Li referred to “Western University” and “SCS”. The original translated version also included the sentence: “Please email me back to make clear the agent fee that you should pay me about those programs.” [ 67 ] Ms. Li submitted into evidence another translated version of the same October 26, 2012, email exchange. That translation (Exhibit 3) was done by Mr. Luk.

That translation refers to “UWO” instead of “Western University”. It also refers to “Christian School” instead of SCS. Further, the sentence regarding fees was translated as: “Please reply by email to confirm the agent fees I can get from these programs.” [ 68 ] Ms. Li’s original translation of Mr. Dong’s reply was also entered into evidence by Ms. Li. That translation under item 1 referred to “Western University”; whereas Mr. Luk’s translation later submitted into evidence by Ms. Li referred to “UWO”. [ 69 ] Under item 2 in the original version submitted by Ms.

Li, there was a reference to “SCS”, whereas in the version translated by Mr. Luk the reference is to “Christian School” – there is no reference to Surrey. [ 70 ] The significance of these differences is that Ms. Li maintains that email shows Mr. Dong agreed to pay her a certain level of agent fee. On the other hand, Mr. Dong maintains he was simply pointing out in a general way what the agent fees were -- not what she would actually receive. Moreover, Mr. Dong testified that Ms.

Li added the word “Surrey” in her original translation of the email and in his reply (item 2) although the word Surrey was not used in the email, thus changing the meaning of the phrases involved. [ 71 ] The documentary evidence, in particular, the emails and attachments thereto referred to above, does not directly support the existence of the contract as claimed by Ms. Li. It does provide circumstantial evidence that there were discussions between the parties about referral of students and commissions/fees paid by some of the local schools.

However, there is nothing in the documentary evidence that directly supports Ms. Li’s assertion that she and Mr. Dong reached an agreement whereby he would pay her $2000 for each student she referred to CCEL and Surrey Christian School. [ 72 ] The most critical evidence before the court regarding the existence of an agreement comes from Ms. Li and Mr. Dong. However, their testimony regarding the existence of an agreement conflicts in a number of material respects. Ms. Li is adamant that Mr. Dong agreed to pay a $2000 fee.

She maintains there were a number of other schools to which she could have referred the students she recruited. However, she chose the schools Mr. Dong recommended because, in addition to the student service fee she charged the students’ parents, she would also receive an agent fee for the referral. Mr. Dong on the other hand says there was no such agreement. [ 73 ] Assessments of credibility are often a challenging exercise. In this case, it is not necessary to embark on a detailed analysis of the parties’ credibility. It is sufficient to note that both Ms. Li and Mr.

Dong have a significant personal interest in the outcome of this matter. I do not doubt they sincerely believe that events unfolded as they recalled during their testimony at trial. However, taking into account the whole of the evidence, I am satisfied there are issues with the reliability of both Ms. Li’s and Mr. Dong’s recollection. The passage of time, their subjective assessment of the validity of their positions, and the lack of documentation, have all affected the accuracy and reliability of their testimony. Thus, as noted in Faryna v.

Chorny , the real test of the truth of their stories must be its harmony with the preponderance of the probabilities which were reasonable at that time and in those conditions.

[ 74 ] I will now consider whether Ms. Li has met the responsibility, which lies on her, to establish that she entered into an agreement with Mr. Dong for the payment of a $2000 agent’s fee for all students she referred to CCEL and Surrey Christian School. The case law makes it clear that an oral contract can be as binding on the parties as a written contract. Accordingly, I must consider whether Ms.

Li has established the elements necessary for the formation of a valid contract. [ 75 ] A central factor to consider in determining whether there is a valid contract is whether there has been a meeting of the minds between the parties about all the essential terms. In this case, I find that the documents relied upon by Ms. Li and her own testimony do not establish, on a balance of probabilities that Mr. Dong categorically agreed to pay her a fee of $2000 for each student she referred to the schools he recommended.

I further find that other essential elements of a valid contract, for example – when and how payments would be made, the exact basis on which the agent’s fee would be paid, whether the agent’s fee would be paid by the school or Mr. Dong, etc. – were not proven to the required standard. [ 76 ] In

summary, I am not satisfied that Ms. Li has proven her claim against Mr. Dong on the civil standard. Accordingly, her claim against Mr. Dong is dismissed. [ 77 ] Next, I turn it to Mr. Dong’s counterclaim. In assessing whether Mr. Dong has proved his counterclaim, I will also apply the civil standard, namely, whether he has established the elements of his counterclaim on a balance of probabilities. First, I will deal with his counterclaim that Ms. Li agreed to pay for his trip to China. Mr. Dong maintains Ms. Li agreed to pay for the cost of his trip. He pointed to several emails exchanged between him and Ms.

Li in late March 2012. [ 78 ] There is nothing in those emails that states Ms. Li agreed to pay the cost for the trip. The trip was made in April 2012. There was no documentary evidence, prior to the commencement of Ms. Li’s claim against him, that Mr. Dong had sought payment for that trip. Having taken into account the evidence as a whole, I find Mr. Dong has not established his counterclaim against Ms. Li for payment of a trip to China in 2012. [ 79 ] Mr. Dong also claims for the repayment of $5795 from Ms. Li. He says he mistakenly made payments to Ms.

Li in that amount in respect of referrals of students ($1000 per student) to Surrey Christian School. Having considered the evidence, I am not satisfied Mr. Dong has established on a balance of probabilities that he personally made the payments to Ms. Li or that the payments were made by mistake. [ 80 ] I also find Mr. Dong has not proven on a balance of probabilities that there was an agreement between him and Ms. Li for the payment of $1500 – $300 (for a custodianship letter) and $1200 (for custodian services). [ 81 ] In

summary, Mr. Dong’s counterclaim for various damages against Ms. Li is dismissed. [ 82 ] Given the dismissal of both Ms. Li’s claim and Mr. Dong’s counterclaim, I make no award to either party regarding any costs or other expenses related to this claim and counterclaim. CONCLUSION [ 83 ] For the reasons set out above, I dismiss all of Ms. Li’s claims against Mr. Dong. I also dismiss all of Mr. Dong’s counterclaims against Ms.Li. _____________________________ The Honourable Judge M.F.

Giardini Provincial Court of British Columbia CORRIGENDUM - Released September 25, 2017 In the Reasons for Judgment dated September 12, 2017, the following changes have been made: [ 84 ] On page 2, paragraph 3, first line, the second “and” should be deleted. The sentence should now read as follows: [3] The defendant Mr. Dong acknowledges he and Ms. Li worked together to recruit students to attend certain British Columbia schools. … [ 85 ] On page 6, paragraph 15, first line, the word “the” should be deleted. The sentence should now read as follows: [15] Mr. Dong testified that when he met Ms.

Li he was working for a company called CIBT (he did not know what the initials stood for). … [ 86 ] On page 10, paragraph 27, 4 th sentence, the word “he” should be deleted. The sentence should now read as follows: [27] … He explained this to Ms. Li and explained this service covered such things as homestay, custodianship, communicating with the parents, etc. Mr. Dong told Ms. Li he did not agree with her practice of charging the parents of students attending Surrey Christian School a $5000 student service fee. … [ 87 ] On page 12, at paragraphs 31, 32, and 33, the name “Ms. Cindy Li” should read “Ms.

Cindy Lii”. [ 88 ] On page 22, paragraph 59, item

e) the name “Ms. Lee’s” should read “Ms. Li’s”. the sentence should now read as follows:

e) Ms. Li relied on email/QQ communications between her and Mr. Dong and on her own evidence regarding the oral agreement she maintains was reached with Mr. Dong. Mr. Dong does not accept Ms. Li’s

interpretation of the email/QQ communications. Moreover, he disagrees there was an oral agreement on the terms asserted by Ms. Li.