Chiu v. Lam

2016 BCSC 299 Chiu v. Lam

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chiu v. Lam, 2016 BCSC 299 Date: 20160223 Docket: 15-2923 Registry: Victoria Between: Lily Chiu Plaintiff And: Estella Pui King Lam Defendant Corrected Judgment: The text of the judgment was corrected at paragraph 15 on February 26, 2016. Before: The Honourable Mr. Justice Verhoeven Reasons for Judgment Counsel for the Plaintiff: J. Michael Hutchison, Q.C. Counsel for the Defendant: John E. Jordan Veronica Walters, Articled Student Place and Date of Trial: Victoria, B.C. February 10-11, 2016 Place and Date of Judgment: Victoria, B.C. February 23, 2016 I. Introduction [1] The plaintiff, Ms. Chiu, claims for the sum of $38,300 as the remaining amount due on loans made to the defendant, Ms. Lam, in 2007 and 2008. [2] She contends that she lent the defendant, her cousin, $30,000 in 2007 and a further $15,000 in 2008. She contends that the loan agreement was oral, with no agreed terms for repayment, and no term for interest, but the defendant began repaying the loan with $100 monthly cheques beginning in January, 2010. She contends that $38,300 remained due when she commenced this action July 31, 2015, including credit for payments of $100 per month in May, June and July 2015 after she made demand for payment on April 16, 2015. [3] Ms. Lam contends that there was no loan agreement, but if there was, the loan agreement was not made

with her, but rather was made with her now deceased husband Raymond Lam ("Raymond") who died April 18, 2009, or with his company, which operated a Victoria restaurant, or restaurants. She acknowledges providing monthly payments but says they were gifts to her cousin that had nothing to do with a loan obligation on her part. [4] The parties agree that the monthly payments continued until December, 2015. Therefore, if the plaintiff is successful a further five loan payments were made, and the amount due would be $37,800. [5] There is no documentary evidence of any kind substantiating the loans, or any agreement for a loan. There is documentary evidence of the $100 monthly payments, only. The only witnesses were the parties themselves. Their evidence is in substantial conflict on the material points. It is clear on the evidence of both that Raymond Lam was centrally involved in whatever transactions took place. He left no records bearing upon the loan issue. [6] The plaintiff carries the burden of proof. I do not consider her evidence credible. The only objective evidence the plaintiff relies upon are the payments her cousin made. However in my view that conduct is ambiguous. While I am somewhat sceptical of the defendant's evidence that the payments were merely gifts of "tea money" to her cousin, in general, I considered her to be a more credible witness than the plaintiff. I

conclude that the plaintiff has not met the burden of proof and the claim must be dismissed. II. Factual Background and evidence of the parties [7] The plaintiff is now 77 years of age. She immigrated to Canada from China in 1959. [8] She testified that in 2007 when the first loan transaction occurred she was living in Burnaby, with her second husband, whom she married in 1999. One of her three sons was also residing in Burnaby. Her other two sons resided in Victoria. [9] The defendant is 60 years of age. She immigrated to Canada from China in 1982. She met Raymond in Hong Kong six years prior to their marriage in 1984. For several years after she arrived in Canada she worked as a cashier in a supermarket. Her husband worked in restaurants. In 1997 or 1998 Raymond started his own restaurant, Raymond's Restaurant, in Victoria. [10] The Response to Civil Claim refers to "Raymond's Restaurant Ltd." as being the name of the company he operated. In her evidence the defendant also referred to "Raymond's Restaurant Ltd." However one of the immigration application documents in evidence refers to "PKL Enterprises Ltd. DBA Raymond's Restaurant" and another refers to "Raymond's Restaurant Ltd." While the correct name of the corporate entity may be unclear, what is clear is that the restaurant (or restaurants, as there appear to have been two locations, according to the documents) was or

were operated through a corporation. [11] The defendant worked for the restaurant business as a waitress. She described her role in the business as that of a head waitress. The plaintiff also refers to her as a waitress in the Notice of Civil Claim. She was not a director or officer or shareholder in the restaurant company. She was an employee of the business until her husband died in April 2009, and perhaps until it was sold about six months later. She referred in her evidence to a single location for the restaurant, on Cloverdale Avenue in Victoria. A letter in the evidence refers to two locations in Victoria. One is on Cloverdale Avenue, and another is at Aldersmith Place. I take it that the defendant worked at the Cloverdale Avenue location. [12] The defendant has two older sisters. In 1975, the plaintiff helped the defendant's second older sister, Pui Ling Too, immigrate to Canada. At the time the plaintiff was residing in Victoria. She says she paid someone to prepare documents for the immigration. She paid for the airplane ticket, and supported the sister with accommodation and food for some time. She was subsequently repaid for the cost of the flight. Pui Ling Too sponsored the defendant's immigration to Canada. The defendant has a close relationship with her sisters. [13] Both witnesses testified in Cantonese. I heard their evidence as interpreted. Due to what I assume

to be interpretation difficulties, the evidence was somewhat inconsistent and confusing as between "eldest" and "elder" sisters of the defendant. The conclusion that it was the defendant's second eldest sister Pui Ling Too that was sponsored by the plaintiff and who in turn sponsored the defendant is based upon my assessment of the evidence. It may be incorrect, but the correct identity of the sister is not important. [14] The defendant frequently accompanied her husband on trips to the Lower Mainland to buy restaurant supplies. The trips were as often as two or three times per month. The defendant states that on these trips she and her husband would frequently invite the plaintiff to join them for a meal, which they would pay for. Sometimes they gave her cash, such as $50 or $100 as gifts. She testified that these visits had been taking place for many years. She testified that she felt gratitude for her cousin's help in sponsoring her sister in immigrating to Canada. She said that the plaintiff was a great help to her family. [15] The plaintiff testified that the defendant and her husband frequently "came over" to buy supplies. So there is common ground on that much. [16] The plaintiff's testimony about the first transaction, in 2007, is vague. She testified that on one of the visits of the defendant and Raymond to the Lower Mainland to buy supplies, during 2007, the defendant

called her on the telephone and arranged for a "meeting" at a restaurant in Richmond. She did not provide details such as the date, or month, or the name of the restaurant. She says that at the "meeting" Raymond and her cousin (whose anglicized name is "Estella") said that they were having difficulty in hiring a chef for the restaurant. She says that Estella's older sister Pui Ling Too had told the plaintiff that she was aware of a very good cook in China. She testified that she told the defendant and Raymond about this cook. She testified that she could vouch for his cooking as she had tried his food on one of her trips to China. She testified that he was a somewhat distant relative. She testified that she would try to introduce this person (whom she did not name in her evidence) to Raymond and the defendant. [17] The plaintiff testified that Raymond and the defendant were "happy to proceed". In general terms, she says that Raymond and the defendant wanted to bring this person to Canada to work in the restaurant as a chef. She states that "they" said to hire this person to come over will require $30,000. She offered to pay the $30,000. In examination in chief, she stated that she paid the $30,000 by way of a cheque, at the "meeting". She is unsure as to who the payee was. She states that she gave the cheque to Raymond, but it was up to him or the defendant to fill in the name

of the payee. As a result, she does not know if her funds were received by the defendant or by Raymond or the company or otherwise. [18] In her Notice of Civil Claim, the plaintiff pleaded that the money was paid in cash. [19] The cheque the plaintiff testified about is not in evidence. There is no bank record of any kind relating to the transaction. The plaintiff says that when she tried to obtain bank records in 2015, she could not get records relating to 2007. In summary, what amounts if any were paid or to whom is undocumented. [20] The plaintiff says that there was no date for repayment agreed to. She says that she told them that when the person starts to work, the money should be repaid. She says she also said that if the person does not come, the money should be repaid. On her evidence then, there was no particular date for repayment. There was no interest to be paid. There was no expectation of gain. There was or was not some connection between the chef arriving in Canada to work in the restaurant. [21] On examination in chief, the plaintiff's evidence, as I understood it, was that the cheque for $30,000 was given at the restaurant "meeting" she spoke of. In cross examination she was asked about the source of the money. She identified the bank account. The records for the bank account in evidence begin at December 31, 2008. The balances are typically well below $10,000.

She said that if she did not have the $30,000 in her bank account at the time, she would have transferred the money into that account from other accounts or by cashing a GIC or getting money from her husband or son Danny, who owes her money. She gave or sold her Burnaby house to this son and he gives her money when she needs it. [22] It seems likely that if the plaintiff wrote a cheque for $30,000 it could not have been at the meeting, as she had to source the funds from somewhere. [23] Her evidence about the second payment of $15,000 is even more vague than the evidence about the first payment. She did not testify as to any date or circumstances surrounding the payment. She states that it took place in 2008, to her recollection. She could not recall where the discussion took place. Her Notice of Civil Claim says the second loan occurred in August, 2008, but she did not testify that the payment was in August. She states that the second loan was also for the sponsorship of a person to come to Canada from China to work in the restaurant. She said that this second person was a "young man," also as in the first instance, a distant relative of hers. [24] She testified that neither person came to Canada. She does not say how she learned that, or when. She says the persons did not make it past the interview stage. She says she did not ask them for repayment of the loans, however,

because Raymond died or had died, and she knew that "they" did not have the money. [25] Her cousin sent her cheques in the amount of $100, in groups of 12, beginning with January 2010. She received, she says, 12 cheques for each year from 2010 to 2015. She says the cheques arrived in an envelope with nothing else in it. She says she cashed them all. (There is no evidence as to why the amount paid does not add up to $6,000.) [26] She says that she did not keep copies of the cheques for 2010 to 2012. There are 21 cheques in evidence. They commence with January 15, 2013. There are no copies for 2014, and there are nine cheques for 2015. She testified that she did not keep copies of the cheques until 2013 because she trusted he cousin. She did not explain what happened to make her lose trust and decide to start keeping copies of the cheques. [27] As noted, the defendant acknowledges sending the cheques. She says that they were sent together with Christmas cards and were gifts. [28] The plaintiff states that in 2015, she asked the defendant for money so that she could take a trip with her sons to China. She did not state how the conversation occurred; that is, by telephone, or in person. She says she asked for $5,000, or if the defendant could not afford that, then perhaps $4,000, or $3,000, or $2,000, or $1,000. The defendant said she did not have the money. The plaintiff suggested

borrowing the money from the bank. Notably, the plaintiff does not say that the defendant acknowledged the debt. She did not get any money. She was able to finance the trip with money from her husband and her old age pension, she says. [29] On cross examination, she was asked about her income in 2007. She was vague in her answers, other than by saying she would have been able to come up with the money (both the $30,000 and the $15,000) from her savings, (GICs), or from her son, or her husband. [30] On cross examination she stated that the cost of the sponsorship of the second person was also $30,000, but she did not have the full amount, so she agreed to pay $15,000, and the rest "when the second person arrives". If she had no personal interest in the application, this evidence makes no sense. She testified that Raymond and the defendant told her not to tell anyone about the transaction. But she says that at a later date, she did tell her husband about the payment or payments, anyway. As noted, she says that she made no claim against Raymond's estate after he died because the restaurant was bankrupt, or Raymond and the defendant were "bankrupt". I do not believe she meant bankrupt in the technical sense. However, she said that "they" went broke, and her cousin had no money. [31] The defendant says that she had no role and no authority in operating the business other than as

head waitress. She did not have any role in hiring or firing staff. She denies, however, that the restaurant had trouble hiring staff locally. She says that the restaurant was always quite successful. She says that it continued to be successful after Raymond's death but it was sold six months later. The proceeds of the sale went to his estate. [32] She says that it was the plaintiff who, over a meal, said that she wanted to bring her relatives to Canada, and she asked Raymond to help. She denies that there was any discussion of any loan of $30,000. She denies that she or her husband asked for loan. She denies that a cheque for $30,000 was given by the plaintiff at this meeting. She acknowledges that there was another "meeting" in 2008 where sponsorship of another person was discussed. But she denies that there was any discussion of any $15,000 loan. She says if the plaintiff ever provided a cheque or payment to Raymond in connection with any of this, she was uninvolved, and never saw it. [33] In general, her evidence is that she was aware, from Raymond, that he was arranging for the immigration of two of the plaintiff's relatives at her request and that the plaintiff was paying the expenses associated with that effort. She denies that there was any loan. She says that Raymond told her the names of the two persons involved, a Mr. Zhan, and a Mr. Zhao. She says that after he

died, she found immigration application papers relating to these two gentlemen. The applications were not successful. She says she was not involved in the immigration application efforts. [34] She said that she often spoke with the plaintiff by telephone. The plaintiff frequently complained that she was short of money, and so she started sending her cheques, out of gratitude for her past help for the family, and out of respect for her as an elder, and as her cousin. She continued to pay even after the lawsuit was started because there was no connection between the plaintiff's claims and the cheques, she says. (I gather what she means is that she could have stopped payment on the remaining cheques for 2015, but she did not do so.) [35] She says that in January 2015 the plaintiff asked for repayment of the loan or loans, but in response she denied that there was a loan. [36] The immigration documents the defendant says she found in Raymond's papers after his death are in evidence. There is a proposal prepared by an immigration consulting firm dating from April 2007, which involves recruiting Mr. Qianguang Zhan as a chef for the "booming" restaurant. Attached is a letter offering Mr. Zhan employment as a chef for two years. The letter appears to be signed by Raymond Lam as General Manager of Raymond's Restaurant and by Mr. Zhan. The application is clearly on behalf of the company,

Raymond's Restaurant Ltd. There is also an agreement dated Feb. 27, 2007 between Mr. Zhan and the consulting company to pay $2,000 for its work in obtaining a work permit for Mr. Zhan. [37] There is a copy of an employment contract between Raymond's Restaurant and Mr. Guangzong Zhao, signed by Raymond Lam on August 25, 2008 and by Mr. Zhao in China on September 9, 2008, for work for two years as a kitchen helper at $12.00 per hour. The documents relating to Mr. Zhao are prepared by a Richmond law firm. There is a draft or file copy of a letter from the law firm dated September 18, 2008, in reference to a Foreign Worker Application relating to Mr. Zhao. [38] None of the immigration documents refer to the defendant. III. Analysis [39] The relevant legal principles are conveniently summarized by Mr. Justice Cohen in Clifford v. Flores, 2004 BCSC 358. As in the case at bar, that case involved a plaintiff attempting to prove and enforce an oral contract, where the evidence concerning the alleged contract was in dispute as between the parties. Cohen J. stated: 39 As can be seen from the summaries of the parties' testimony and their respective positions on the evidence, Clifford, Flores and Cunha have given versions of the dealings between them on the key issues which are irreconcilable. Thus, the court must decide whose version of events is most reliable in order to decide the

issues. The credibility of the witnesses must be tested against those facts that are not seriously in dispute, and with the preponderance of the evidence and the probabilities surrounding the events. 40 Although this task is primarily one of fact finding, some legal principles submitted by defence counsel are of assistance: a) First, the Plaintiff carries both the legal and evidentiary burden of proving, on a balance of probabilities, that the alleged oral contract was made. b) Second, the basic contractual principles of offer and acceptance, and certainty of terms are applicable. These principles are summarized in Fridman, The Law of Contract in Canada (4th ed.). at pp. 16-17, and 20, as follows: Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is concerned not with the party's intentions but with their manifested intentions. It is not what an individual party believed or understood was the meaning of what the other parties said or did that is the criterion of agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. Sometimes it is a simple matter

to decide what the parties have manifested to each other, and consequently, whether they have agreed, and if so, upon what. This is especially true where a document containing their agreement has been prepared and signed by the parties. If the plain wording of the document reveals a clear and unambiguous intent, it is not necessary to go further. It is different, however, where the language is not unambiguous but vague and uncertain. In the absence of the requisite certainty and clarity the courts will not declare that a contract exists. c) Finally, the Court of Appeal has also provided some guidance in how courts ought to assess the evidence of witnesses when credibility is an issue. In Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171 (B.C.C.A.) the plaintiff brought an action for libel contained in a letter. The recipient of the letter gave evidence that he did not know the meaning of the defamatory word or the identity of the person referred to in the letter. The trial judge found the letter to be defamatory, but did not expressly state in his reasons that he disbelieved the evidence of the recipient. On appeal, the appellant argued that the evidence of the recipient was uncontradicted and the judge in the course of the trial had commented favourably on the demeanour of the witness. The witness's evidence therefore ought to have been accepted by the trial judge. In dismissing

the appeal, at pp. 174 to 175 O'Halloran J.A. commented on how credibility ought to be assessed: If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility... . A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial judge and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that

surround the currently existing conditions. In short, the real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of a quick minded, experienced and confident witness, and of those shrewd persons adept in the half lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again, a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say I believe him because I judge him to be telling the truth, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to demand confidence, also state his reasons for that conclusion. The law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses. And a court of appeal must be satisfied that the trial judge's finding of credibility is based not on one element only to the exclusion of others, but is

based on all the elements by which it can be tested in the particular case. [My added emphasis] [40] Also helpful are these comments of Dickson J. in Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Ltd. 2009 BCSC 1303: 328 The interpretation of oral contracts turns on the same essential principles: Lawson Graphics Pacific Ltd. v. Simpson (1987), 12 B.C.L.R. (2d) 126. If the alleged agreement has not been reduced to writing, the Court must consider what the parties said and did and assess objectively whether, in context, their words and actions establish an intention to be bound: Periscan Financial Services Inc., supra; Leong & Associates, supra. The genesis and aim of the transaction is an aspect of the relevant context for consideration: Canada Square Corporation, supra. The credibility of witnesses will be particularly important and differing versions of events will increase the difficulty of establishing that an enforceable bargain was made: Anchorage Management Services Ltd. v. 465404 B.C. Inc., [1999] B.C.J. No. 2976, 1999 CarswellBC 2947 (C.A.). [41] Manifestly, the plaintiff's case depends entirely on her testimony. As noted, the plaintiff says that she paid by cheque, but no cheques are available. There are no bank statements showing money being paid or money being received. If she paid money, what might have become of it is unknown. There is nothing to indicate

that expenses approaching $45,000 were incurred, or supporting the alleged estimate of costs of $60,000 for the two applications. The amount seems far too high, but there is no evidence. [42] I have great difficulty accepting the evidence of the plaintiff. I have already said that her evidence concerning the 2007 "meeting" was vague, and her evidence about the 2008 transaction was even more vague. [43] Even making all possible allowances for interpretation difficulties, her evidence was often almost incoherent. It was also internally inconsistent on a number of matters. [44] As noted, in testifying about the alleged loan transactions, she consistently referred to the defendant and Raymond as "they", as in "they were happy to proceed." And later, when trying to explain why she did not demand repayment from her cousin when Raymond died, or after that, she said "they" did not have the money. "They" were bankrupt or broke. The impression is that if the loan was not to the business or to the company (or a company), then Mr. and Mrs. Lam were borrowing the money. In fact, she testified that both Raymond and his wife should have repaid the money. Yet she now insists that she believed she was making a loan to her cousin, only. Of course her subjective belief is of no relevance. She seems to firmly believe that the defendant is obligated to pay money to her, perhaps on moral grounds, as

her cousin, or as Raymond's wife. Her belief does not lead to a legal obligation. [45] Initially, she said the $30,000 was paid by cheque at the single meeting she spoke of. This would be highly unlikely of course, in the case of a person of modest means, unless she had made arrangements in advance. In cross examination, she suggested otherwise; that is, that she took steps after the meeting to gather the monies necessary to fund the cheque. She said that she could have sourced the money from her other accounts, or her husband, or her son. As noted, this suggests that the payment was made at some later time. But this is not consistent with her evidence. [46] If she used money from her husband, it seems likely that she would tell him about the loan. Yet she says she was told not to tell anyone about the loans, but she later told her husband. If in fact her husband or her son supplied funds, then they could perhaps corroborate that fact. Neither testified. [47] The plaintiff's evidence is unclear about what if any term applied relating to the success or failure of the immigration applications. She initially suggested that the loan or loans would be repaid once the workers began working in the restaurant. However she added that the loans were to be repaid whether the workers came to Canada and worked in the restaurant or not. In that case, there would not have been any need to

discuss terms relating the success or failure of the applications, or of the workers commencing work in the restaurant. If she was merely making a business loan, and had no personal interest in the outcome, she could have simply made a loan repayable at a certain time, or on demand. [48] At one point it seemed that she was suggesting that the workers would repay the money from their wages, or that repayment of the loans was somehow linked to the workers earning wages. Then she denied that. [49] She did not mention her shortage of funds for the second worker until she was asked on cross examination about why the first loan was $30,000, and the second loan $15,000. [50] Her Notice of Civil Claim says that the cheques were sent by the defendant "unilaterally". That is, there was no demand for payment, or payment in accordance with any discussion or prior agreement. Yet in cross examination, the plaintiff testified that the defendant said to her, "Dear cousin, I don't have the money. I can only pay you $100." In my view, this convenient bit of evidence was likely a fabrication in order to support the case. [51] She was not forthcoming about her income in 2007 and 2008. Her evidence as to the source of the funds she says she loaned was speculative in nature. [52] Beyond the very serious problems I have with the testimony of the plaintiff, standing alone, I have even more serious

doubts about it when placed in the context of surrounding circumstances and known facts. [53] The plaintiff suggests that she had nothing to gain and no personal interest in the immigration applications. The defendant and her husband needed a chef, and she happened to know of a good one. But they needed money, so she loaned it. Why she would do that is not explained. Why they would want to or need to borrow such large sums of money from her is also unexplained. She does not say that she was told that the restaurant had no money to pay for the immigration expenses or that it could not borrow commercially. Had she testified that she had been told that, then it seems that she would have recognized the loans were risky. She gave no such evidence. [54] On her version of events, the fact that both of these persons were relatives was just coincidental. It is more likely that the plaintiff did in fact have a personal interest in the transactions, either because she wanted to assist her relatives, or perhaps she hoped for some financial gain. The plaintiff is a person of modest means, quite clearly, and the sums involved were large, for her. She could not afford to fund the second "sponsorship" fully, she says. I fail to see why she would make large loans without any substantial personal interest or potential for profit. [55] The second transaction, in particular, does not seem to make

business sense. $30,000 is a lot to pay for the services of a $12 per hour kitchen helper. [56] In the main, I conclude that the plaintiff did not provide me with a complete, accurate story about the transactions, and I do not consider her evidence credible. [57] If there were loan transactions, it seems likely that the business (the company or companies) or perhaps Raymond would be the borrower, or borrowers, not the defendant. I accept that the defendant was merely a worker. She was not involved in managing the business. As I have noted, there is nothing on the immigration application documents to indicate that she was involved in those processes. The documents support her evidence that she was not involved in managing the business. If there were loans at all, the plaintiff has failed to establish that the defendant was personally a party to the loan agreements. [58] In general, I found the evidence of the defendant consistent and more believable than that of the plaintiff, in the context of surrounding circumstances. It makes sense to me that the plaintiff asked Raymond to sponsor her relatives by using the restaurant business and that she agreed to pay expenses associated with the applications. It also makes sense that the plaintiff dealt with Raymond in relation to the transactions and that the defendant was not involved, beyond being a party along with her husband to some

conversations with the plaintiff, and being given information by her husband. [59] The plaintiff argues that the conduct of the defendant in sending the $100 cheques is evidence of the loan agreements the plaintiff asserts. She argues that the conduct of a party may be considered to determine the existence of a binding contract: J.K. Campbell & Associates Ltd. v. Lahr Construction Ltd. et al (1987), 27 C.L.R. 220 (BCSC) at 224, Cohen J.; cited with approval in Remington Energy Ltd. v. British Columbia (Hydro and Power Authority), 2005 BCCA 191, at para.

31. The payment of these monies is relied upon very heavily by the plaintiff as evidence to support her case, but it is insufficient. [60] I acknowledge that the defendant's testimony about the steady supply of cheques for $100 strains credulity. I suspect that there is a bit more to this than she said. She did not deny that she understood the plaintiff paid some money to her husband for immigration application expense purposes for the two persons. There is evidence that some expenses were incurred (but nowhere near $60,000 or even $45,000). She may have felt some sense of moral obligation based upon her position as Raymond's wife, or because the plaintiff was her cousin. (That in fact seems to me to be the fundamental position of the plaintiff.) I accept that in addition the defendant was indeed grateful to her cousin for assisting her sister in the past, and historically there was a warm relationship between them. However in all of the circumstances of this case, even if I conclude that the defendant has not told me the whole truth about the reason she sent the cheques, that conduct does not establish the plaintiff's case. If the defendant was not liable on a loan contract to begin with, she could not become liable as a result of making these payments. I conclude that the payments were ex gratia, as the defendant maintains. [61] In summary, the burden lies with the plaintiff

to prove her case. She has not done so. She has not established that she made any loans at all. However, even if the transactions were loans, she has failed to establish that the defendant was a party to the loan agreements. [62] Given my finding that the payments made by the defendant were not payments on any loan agreement to which she was a party, the plaintiff's claims are also statute barred, under the former Limitation Act, R.S.B.C. 1996 c.

266. The defendant pleaded the Limitation Act, S.B.C. 2012 c. 13, which came into force June 1, 2013. However the plaintiff argues (and the defendant does not disagree) that pursuant to the transition provisions of that statute, the former Limitation Act applies. That statute provides for a six year limitation for debt claims. The limitation period for even the second loan would therefore expire as of August 2014 based upon the plaintiff's pleading, or in any event not later than December 31, 2014 based upon the "2008" evidence. [63] The plaintiff relies on the running of time being extended under s. 5(2)(a)(ii) of the former statute, which provides that a "person confirms a cause of action..." when the person "makes a payment in respect of a cause of action, right, or title of another." However as the payments were not in respect of the plaintiff's alleged cause of action, or right, there is no extension of time. IV. Conclusion [64] The plaintiff's claims are dismissed. The defendant is entitled to costs. "The Honourable Mr. Justice Verhoeven"