) ) LINGPU BU, a.k.a. RICHARD BUSH Plaintiff (Appellant) – v. –, 2013 ONSC 6365

CITATION : Bu v. Xie, 2013 ONSC 6365 DIVISIONAL COURT FILE NO.: 134/13 DATE: 20131009 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) LINGPU BU, a.k.a. RICHARD BUSH Plaintiff (Appellant) – and – MING MICHAEL XIE, a.k.a. MICHAEL XIE Defendant (Respondent) )) )) )) )))))))) Lingpu Bu , In Person Philip C. Polster , for the Defendant (Respondent) ) HEARD at Toronto: October 9, 2013 HIMEL J. (orally) [ 1 ] Lingpu Bu (“Bu”) commenced an action in the Small Claims Court against the defendant Ming Michael Xie. Following a trial, Deputy Judge D. J.

Shapiro gave oral reasons on February 25, 2013 dismissing the plaintiff’s claim with costs to the defendant of $1,500 and HST plus disbursements. Mr. Bu appeals the judgment to the Divisional Court. Background [ 2 ] Mr. Bu was a one third owner of the shares of a company known as Steel & Ornaments Depot Inc. located at 800 Supertest Road, North York, Ontario. The majority shareholder and president was Guoyin Xie. Mr. Bu claimed that the parties had an agreement to split the cash amounts generated from monthly sales according to their respective interests.

The defendant, who is the nephew of the president, was working as a cashier for the company. His responsibility was to collect the cash owing and deposit it in a safety deposit box at the bank. In July 2010, the plaintiff made certain demands concerning approximately $19,000 in cash which he says the defendant refused to deposit. The plaintiff left the company in August 2010. The plaintiff alleged that Ming Xie retained the cash and did not deposit it in the company account. Mr. Bu sued Xie for $19,156.34 or, in the alternative, for one third of that amount according to his interest ($6,385.45). Mr.

Bu also had an action in the Superior Court against the company and its principal Guoyin Xie. The parties settled that action and Mr. Bu signed a release. The Trial Decision

[ 3 ] Both parties were represented at trial. The plaintiff testified at trial and produced various documents as exhibits. At the conclusion of the plaintiff’s case, the defendant brought a motion for a non-suit and elected to call no evidence. The court noted that the plaintiff did not plead the agreement to share in the cash receipts in the statement of claim and also noted that there was no evidence that any payments were paid to the plaintiff of cash receipts for any period of time.

The defendant’s motion for non-suit was based on the fact that there was no evidence that the plaintiff has a personal cause of action and any monies owing would be owed to the corporation. [ 4 ] The Deputy Judge granted the non-suit and dismissed the claim. The judge found that the plaintiff did not have an action for any cash receipts, that he had signed a release in full satisfaction of any further claims in the Superior Court action and that if there was any action, it should have been brought by the corporation. Positions of the Parties on this Appeal [ 5 ] The plaintiff represents himself before this court.

He submits that the trial judge erred in dismissing the action. In his written factum, the respondent submits that the trial judge made findings of fact and did not make any “palpable and/or overriding errors.” Counsel argues there was no merit to the appeal and that if there was any claim to alleged cash payments it could only be made by Steel and Mr. Bu had released Steel from any potential claims. Counsel also today opposes references by the plaintiff to evidence he put in an exhibit book which documents were not before the trial judge. No motion to adduce fresh evidence was brought by the plaintiff.

Decision [ 6 ] Following the plaintiff’s case, the trial judge entertained a motion for non-suit in this action. He reviewed the evidence concerning the existence of a verbal agreement between the plaintiff and the majority shareholder regarding cash receipts. He noted that this was not pleaded in the statement of claim and that there was no evidence that payments had been made to the plaintiff for cash receipts for any period of time.

The court found that there was no documentary evidence concerning the payment of cash receipts, that the plaintiff had released the defendant when he settled the Superior Court action and that any action for payment of funds should have been brought by the corporation. Accordingly, he granted a non-suit. [ 7 ] On a motion for non-suit in a civil action, the trial judge must decide whether a reasonable trier of fact could find in the plaintiff’s favour if he or she believed the evidence given in the trial up to that point.

The issue is not whether to accept the evidence but whether the inference that the plaintiff seeks in his favour could be drawn from the evidence adduced if the trier of fact chose to accept it. The ruling by the trial judge on a non-suit motion is a question of law: see Bryant, Lederman and Feurst , The Law of Evidence in Canada, Third Edition (LexisNexis: Toronto, 2009) at p. 183. [ 8 ] In reviewing the decision of the Deputy Judge granting the non-suit and dismissing the action, I see no palpable or overriding error which would justify reversing the decision or ordering a new trial.

The appeal of the judgment of the Deputy Judge is dismissed. Costs [ 9 ] I have endorsed the back of the Appeal Book, “Mr. Bu represents himself and Mr. Polster represents the respondent (defendant) on this appeal of the decision of the Deputy Judge of the Small Claims Court. For oral reasons given, the appeal of the decision dismissing the claim is dismissed. Order to go dispensing with the plaintiff’s (appellant’

s) approval as to form and content of this order. The defendant (respondent) seeks costs on a substantial indemnity basis of $2,500 and the plaintiff (appellant) says he has no money to pay costs. In light of the amount claimed, that the issue is not complex, nor important, the time spent and the work performed, I exercise my discretion and award costs fixed at $2,000 inclusive of disbursements and HST payable by the plaintiff (appellant) to the defendant (respondent) within 30 days.” HIMEL J. Date of Reasons for Judgment: October 9, 2013 Date of Release: October 22, 2013

CITATION : Bu v. Xie, 2013 ONSC 6365 DIVISIONAL COURT FILE NO.: 134/13 DATE: 20131009 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL J. BETWEEN: LINGPU BU, a.k.a. RICHARD BUSH Plaintiff (Appellant) – and – MING MICHAEL XIE, a.k.a. MICHAEL XIE Defendant (Respondent) ORAL REASONS FOR JUDGMENT HIMEL J. Date of Reasons for Judgment: October 9, 2013 Date of Release: October 22, 2013