COURT OF APPEAL FOR ONTARIO
CITATION: Geng v. Cao, 2024 ONCA 169
DATE: 20240301
DOCKET: COA-23-CV-0688
Pepall, George and Dawe JJ.A.
BETWEEN
Zhen Geng
Applicant (Respondent)
and
Lei Cao
Respondent (Appellant)
Ran He, for the appellant
Jeff Li, for the respondent
Heard and released orally: February 28, 2024
On appeal from the order of Justice David Jarvis of the Superior Court of Justice, dated May 30, 2023.
REASONS FOR DECISION
[1] The parties were in a seven-year common law relationship until February 1, 2019. They established two very successful immigration businesses, one in Canada and the other in China, and shared their earnings from them.
[2] On separation, the parties equalized their bank account balances, including proceeds of disposition from the sale of a residential property. On a going forward basis, they agreed to share their profits from the immigration businesses on a 60/40 basis.
[3] The respondent, Zhen Geng, commenced proceedings claiming that he was the 50% beneficial owner of residential property known as Salterton. The property was purchased for $880,000 with a mortgage of $520,000 and a downpayment of $380,000. The purchase of the property closed on November 13, 2018. The appellant signed the purchase agreement and the parties each lived there for varying periods of time. In January 2020, the appellant Lei Cao stated to the respondent that “half of the money in it is yours.”
[4] On a motion for summary judgment brought by the respondent, the motion judge concluded that the respondent’s claims were rooted in a concept of trust or joint family venture (which was acknowledged by the appellant) and that the respondent was entitled to a 50% beneficial interest in the Salterton property.
[5] Before us, the appellant claims that the motion judge erred in singling out the Salterton property and failed to analyse the entire picture, and more particularly, the agreed upon 60/40 split of the profits from the immigration businesses.
[6] We disagree.
[7] The motion judge preferred the evidence of the respondent to that of the appellant on the events leading up to the Salterton purchase and what transpired afterwards. Apart from the Salterton property, the parties divided all their property. The appellant and the respondent each maintain 100% of the shares in the two immigration businesses. The motion judge fairly found that the case before him as pleaded was only about Salterton. The appellant had advanced no separate claim to any entitlement. The motion judge’s determination was also consistent with the appellant’s assertion that half of the money in Salterton was the respondent’s.
[8] The appellant seeks leave to admit fresh evidence alleging depression and anxiety to explain why, although he filed an Answer, he failed to plead any claim against the respondent. This after-the-fact justification does not meet the test in Palmer v. The Queen, [1980] 1 S.C.R. 759. It is not relevant nor dispositive and could easily have been obtained before the hearing with the exercise of due diligence.
[9] Lastly, the appellant also takes issue for the first time in oral argument, with the adequacy of the reasons and the motion judge’s application of the summary judgment test. We see no error with the latter and read as a whole, it is clear what the motion judge decided and why.
[10] The appeal is dismissed, as is the motion for leave to admit fresh evidence. The appellant is to pay the respondent $13,000 in costs of the appeal inclusive of disbursements and applicable tax on a partial indemnity scale.
“S.E. Pepall J.A.”
“J. George J.A.”
“J. Dawe J.A.”