A B.C. Court of Appeal judge has dismissed a woman’s appeal of a trial judgment in favour of Chaoyin International School, deeming her to have abandoned the attempt.
The Chinese-owned private school in Richmond applied to the Court of Appeal to dismiss the appeal as Xiao Bo (Polly) Li took a year to file the appeal, just one month before the deadline, and did not take any action to continue the proceedings.
A judge originally ruled on July 23, 2021 that Li “improperly inserted” herself and her company into building the school. She was found to have fraudulently obtained $154,597 from the school’s owner without an agreement for professional services.
The trial judge ultimately ordered her to return the sum to the school. Special costs were also awarded to the school to punish Li for her “reprehensible conduct” during the trial.
Li represented herself and had originally told Chaoyin on July 26, 2021 that she was going to appeal the decision and get legal representation.
According to the timeline detailed in the decision from Court of Appeal judge, Hon. Justice G. Bruce Butler, Li managed to find a lawyer who suggested filing for bankruptcy would be the “best solution” to her problems. She filed for bankruptcy in September 2021.
Li’s notice of appeal was finally filed one year later, on July 25, 2022, which Chaoyin was unaware of until Nov. 15, 2022. She also applied for an extension of time to file the appeal since she was supposed to have filed it within 30 days of the original judgment. Justice Butler noted that Li has not taken any steps to proceed with her extension application.
According to court documents, Li’s reasons for the appeal include claims that the trial judge made a mistake in finding her to be not credible as well as failing to help her as a self-represented litigant.
During this time, the proceedings to assess the special costs Li owes to Chaoyin also continued and her lawyer was present at a pre-hearing conference back on Dec. 1, 2021.
Appellant chose bankruptcy as solution to financial troubles
Chaoyin told the Court of Appeal that Li’s “long periods of activity” in relation to the potential appeal suggested she no longer wanted to pursue it, adding that Li had gotten legal advice and taken steps in other matters such as filing for bankruptcy and having her lawyer attend the Dec. 1 conference.
The court also heard that the appeal, if allowed to proceed, would prejudice the school as it could delay the school’s ongoing attempt to recover the defrauded money and legal costs, among other reasons.
“(Chaoyin) also notes that Ms. Li is an undischarged bankrupt, and so would likely be unable to post security for appeal or trial costs, or to pay costs resulting from the appeal,” writes Justice Butler.
According to the judgment, Li’s trustee opposed her being discharged from bankruptcy, which would forgive her debts. The reasons given were that Li failed to “account satisfactorily for any loss or deficiency in assets” as well as to perform her duties in the process. The trustee later sued her family members for allegedly either holding property for her in trust or obtaining it fraudulently.
Although Li was not present during the Court of Appeal proceedings, Justice Butler was able to consider her arguments for the delay in her initial extension application. Her reasons include not being able to afford a lawyer immediately after the 2021 trial, issues with her lawyer’s workload, delays in obtaining court materials and being occupied by proceedings for the trial costs.
In his judgment, Justice Butler noted that Li had not perfected her appeal even though it has been more than a year and a half since the original judgment was rendered.
He acknowledged Li initially did appear to have intended to appeal the judgment, but she seemed to have decided to pursue bankruptcy instead after receiving legal advice.
He added Li failed to support her reasons for delay with documentary evidence and she didn’t explain why the notice of appeal and the extension application was not served on Chaoyin after they were filed.
Li’s decision to file the appeal after her trustee opposed to her discharge from bankruptcy was also considered by Justice Butler.
“In all of these circumstances, I would infer that Ms. Li relied on bankruptcy as a ‘solution’ to her financial problems, rather than pursuing the appeal,” he wrote.
He acknowledged that “some leeway must be given to self-represented parties,” but the court should follow procedural requirements out of fairness to the other parties.
“This is not a case where a self-represented litigant experienced difficulty in navigating court procedures while maintaining an intention to appeal,” he wrote.
“Ms. Li intentionally, and with the benefit of legal advice, chose to pursue personal bankruptcy rather than actively advancing this appeal.”
Justice Butler ultimately inferred Li didn’t have “a continuing intention to appeal” and dismissed the appeal as abandoned.
With files from Maria Rantanen.
