Court rules against absentee landlord who lived in China while his B.C. tenants caused nuisance

The home Xian Yu Tang owned on Dory Street as of the summer of 2020 is seen in this image from BC Assessment. (bcassessment.ca)

The China-based owner of a house in Coquitlam has lost his bid to get a default judgment against him thrown out.

In the summer of 2020, Xian Yu Tang was the owner of a house on Dory Street, which he rented to tenants who owned two large dogs – a Rottweiler and a German shepherd – according to a B.C. Supreme Court decision issued last week.

In the decision, Justice Baljinder Kaur Girn notes that the dogs barked "incessantly" and the tenants "played loud music throughout the day and night."

Neighbours Heide Goldmanis and Micka Devkota were among those frustrated by the noise, and would eventually become plaintiffs in a small claims case against Tang.

Before commencing that action, however, Goldmanis attempted to address the situation by engaging with the tenants and their landlord directly.

"Ms. Goldmanis spoke to the tenants and asked them to control their dogs," the decision reads. "The tenants refused and also refused to identify themselves. Thereafter, Ms. Goldmanis wrote a note to the landlord, the petitioner, addressed to the house in question. She gave the letter to the tenants and asked that they forward it to the landlord. The tenants told her that the petitioner lived in China and would not provide his mailing address."

Goldmanis conducted a land title search and determined that Tang was the owner, and that his listed mailing address was the property in question, according to the decision.

She and Devkota then filed their notice of claim in small claims court and sent notice to Tang by registered mail at the Dory Street address.

Tang never responded to the claim, and a default judgment was awarded in favour of the plaintiffs. In March 2022, a provincial court judge awarded damages of $7,500 to each plaintiff, plus an additional $5,000 to Goldmanis for what Girn describes in her later decision as "pain, suffering and mental stress caused by the noise disturbances."

Landlord responds

Girn's decision indicates a "certificate of judgment" was sent to the Dory Street address, and this time, Tang received it.

His lawyer filed an application asking the provincial court to set aside the default judgment and dismiss the nuisance claim in its entirety.

The provincial court judge who heard the application rejected it, finding that – although the absentee landlord had not willfully or deliberately ignored the initial notice of claim and had filed his application to set it aside without unreasonable delay – Tang did not have "a meritorious defence" against the claim.

Specifically, the lower court judge found that Tang's lawyer had provided no evidence to suggest that a landlord is not liable for his tenant's nuisance. Indeed, Tang's lawyer told the court no such case law exists in Canada, and instead asked the court to consider a U.K. case that established such a precedent.

Canadian judges are not bound by decisions from other countries, even those with very similar legal systems, and the provincial court judge dismissed Tang's application.

"The defendant certainly has an opportunity now to sue the tenants for the debt owing by the defendant to the claimant," the lower court judge wrote when dismissing the application, as quoted in Girn's B.C. Supreme Court decision.

The day after the provincial court decision, Tang's lawyer "attended the court registry" to ask the judge to reconsider, according to Girn's decision. The reason for the request was that the lawyer had found a B.C. case that he claimed would establish the same principle he had argued citing the U.K. case.

"Having already issued his reasons, Judge Smith declined to accept the new case for reconsideration," Girn's decision reads.

B.C. Supreme Court ruling

Girn issued her decision in response to Tang's application for a judicial review of the lower court's rulings.

Tang sought to have Girn set aside the provincial court decisions and issue her own ruling on the case. Goldmanis and Devkota opposed Tang's application.

Tang's lawyer argued that the lower court judge's decision was unreasonable, and that he should have reopened the case when presented with the newly discovered B.C. decision that supported Tang's position.

Girn disagreed with this argument, concluding it was reasonable for the judge to rely on Tang's lawyer's assertion that there was no Canadian case law on the subject.

"Counsel for the petitioner informed Judge Smith that the only case on point was from the United Kingdom," Girn's decision reads.

"If I were to accept the petitioner’s submissions, it would require me to conclude that Judge Smith should have rejected the petitioner’s argument that there were in fact no cases in Canada on this point. It simply cannot be."

Further, the Supreme Court justice declined to consider the B.C. case Tang's lawyer had belatedly brought forward, noting that a judicial review is not an opportunity to re-argue the facts of a case.

"In my respectful view, the failure of the petitioner’s counsel to adequately research the issue prior to bringing his application before Judge Smith should not now permit the petitioner a further opportunity to re-argue his claim," the decision reads.

"He ought to have raised this case before Judge Smith in the first instance. The respondents are entitled to finality on the underlying issue of nuisance that occurred almost four years ago."

Girn dismissed Tang's case and awarded court costs to Goldmanis and Devkota.