Tran v. Le, 2020 BCPC 24

Citation: Tran v. Le 2020 BCPC 24 Date: 20200210 File No: 150707 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DINH TRAN CLAIMANT AND: NGA LE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE Appearing in person: Mr. Tran Appearing in person: Ms. Le Place of Hearing: Victoria , B.C. Date of Hearing: February 7, 2020 Date of Judgment: February 10, 2020 [ 1 ] Mr. Tran sues to recover certain funds which he advanced to, or at the request of, Ms. Le. He says that they were loans. She says that they were gifts. [ 2 ] Mr. Tran and Ms. Le met online early in 2011.

He made two visits to her home in Toronto in the summer of 2011, during which they became intimate. They also took a two-week holiday together in the USA. Ms. Le visited Mr. Tran at his home in Victoria in

January 2012. At Mr. Tran’s request, Ms. Le moved to Victoria in February 2012. She moved into rented accommodation in Victoria.Mr. Tran did not live there, but was an overnight guest from time to time. [3] Mr. Tran advanced the following funds to, or at the request of, Ms. Le: a. $300 by e-transfer to Ms. Le’s mother in Vietnam on January 3, 2012; b. $400 by e-transfer to Ms. Le’s mother in Vietnam on January 10, 2012; c. $2,700 by deposit to Ms. Le’s bank account on March 14, 2012; d. $2,000 by deposit to Ms. Le’s bank account on March 20, 2012; e. $700 by e-transfer to Ms.

Le’s mother in Vietnam on April 3, 2012; f. $1,450 to pay for an air ticket for Ms. Le to travel to Vietnam on April 16, 2012; g. $50 to pay a “document fee” for Ms. Le on April 18, 2012; h. $5,000 by e-transfer to Ms. Le’s mother in Vietnam on April 23, 2012; i. $500 to Ms. Le’s landlord on account of rent at the end of April 2012; and j. $500 by e-transfer to Ms. Le’s mother in Vietnam on May 13, 2012. He also incurred $29 in bank fees for the internet transfers. [4] Mr. Tran says that these were loans, and that Ms.

Le agreed to reimburse him for the funds advanced, although the terms ofrepayment were not discussed. Ms. Le says that: (

i) most of them were gifts; and (ii) those of them which were loans were repaid by apayment of $6,000 which she made to Mr. Tran on June 22, 2012. Mr. Tran acknowledges receipt of that payment. Neither version isinherently more probable than the other. There are no objective external circumstances or documentation to support one version over theother. [5] The governing principle in such cases depends upon the relationship between the payor and the recipient. If they were married,the “presumption of advancement” applies, and the payments are presumed to be gifts.

If they were not married, the “presumption ofresulting trust” applies, and the recipient is presumed to be obliged to repay the sums advanced. Either presumption may be rebutted byevidence of a contrary intention on the part of the payor. [6] In Zhou v. Wang [2004] BCJ No. 1659; 2004 BCSC 1073 at paras. 88 to 89, Justice Sigurdson said: A gift is a voluntary transfer to another with the full intention that the recipient will retain the thing as his or her own without restoring itto the giver: Halsbury's Laws of England, 3rd ed., Vol. 18 at p. 364. Regarding gifts, Mr. Justice Taylor in Rashid v.

Singh [1996] BCJ No. 1428 said at paragraphs 55-56: In order to establish a valid inter vivos gift, she who seeks to assert the gift must establish: 1. the intention of the donor to make the gift; and 2. the delivery of the gift. See Kooner v. Kooner (1979) (BC SC), 100 DLR (3d) 76. The degree of proof of intention where intention is disputed is such that the donee cannot succeed unless she meets the standard of proofwhich allows no reasonable room for doubt as to the donor's intention.

At para. 92, Justice Sigurdson said: The presumption of resulting trust does not arise where there is a transfer from husband to wife; in that case a presumption ofadvancement arises. However, it appears generally that the presumption of advancement has not been extended to persons who are notmarried but who are living in intimate relationships resembling marriage, or who are otherwise romantically involved …. Accordingly, Mr. Tran is entitled to succeed unless Ms. Le can prove beyond a reasonable doubt that Mr.

Tran intended these paymentsto be gifts. [7] I have found no later decisions considering the principles stated in Zhou. Those principles may require some reconsideration inlight of s. 3 of the Family Law Act, SBC 2011, c. 25, which was enacted seven years after the decision in Zhou.

Section 3 provides: A person is a spouse for the purposes of this Act if the person (

a) is married to another person, or (

b) has lived with another person in a marriage-like relationship, and (

i) has done so for a continuous period of at least 2 years, or

(ii) …, has a child with the other person. It is not necessary to decide the point in this case because Ms. Le was not Mr. Tran’s “spouse”, even under the expanded definition provided by the Family Law Act . [ 8 ] The evidence does not establish beyond a reasonable doubt that Mr. Tran intended the payments in issue to be gifts. Accordingly, the evidentiary onus carried by Ms. Le is undischarged, and Mr. Tran is entitled to judgment for $7,629, plus filing fees of $156 and prejudgment interest at the Registrar’s rate from June 1, 2012 to today’s date. _____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia