Zheng v. Kao

2026 BCSC 777 Zheng v. Kao IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Zheng v. Kao, 2026 BCSC 777 Date: 20260430 Docket: S2210274 Registry: Vancouver Between: Zhi Min Zheng and Yan Yuan Luo Plaintiffs And Tsun-Ming Kao also known as Alan Kao also known as Tsun Ming Kao and Wetrust Enterprises Ltd. Defendants and: Zhi Min Zheng and Yan Yuan Luo Defendants by Counterclaim Before: Associate Judge Muir Reasons for Judgment Counsel for the Plaintiffs and Defendants by Counterclaim: C.M. Lo Counsel for the defendants: M. Beharry Place and Date of Hearing: Vancouver, B.C. April 22, 2026 Place and Date of Judgment: Vancouver, B.C. April 30, 2026 Table of Contents Introduction.. 3 Background.. 3 Analysis. 5 The test 5 Is the delay inordinate and inexcusable?. 7 Is it in the interests of justice to dismiss the counterclaim?. 9 Conclusion.. 9 Introduction [1] The plaintiffs, Zhi Min Zheng and Yan Yuan Luo, apply for dismissal of the counterclaim of the defendants, Tsun-Ming Kao and Wetrust Enterprises Ltd. ("Wetrust"), for want of prosecution and for orders that the builders lien and certificate of pending litigation ("CPL") registered by the defendants on title to their property be cancelled and discharged. Background [2] The plaintiffs are spouses and owners of property at 8059 Burnfield Crescent, Burnaby, BC, V5E 2B6 (the "property"). [3] The parties had entered into a fixed price agreement, which the plaintiffs assert was partly oral and partly in writing, whereby the defendants were to perform renovations to the plaintiffs' house. There is dispute about whether Mr. Kao was a party to that agreement, which he denies. [4] The plaintiffs allege delays and deficiencies in the work performed by the defendants, and say that the defendants ceased work prior to completion, resulting in them having to hire other trades to complete the renovation and repair the deficiencies. While the plaintiffs' evidence is somewhat vague on these points, they say they have photographs taken and notes made at the time. [5] The defendants deny the plaintiffs' claim and say that the work was substantially complete but that the plaintiffs refused to pay the amount owing under the contract. [6] On May 25, 2022, the defendants invoiced the plaintiff for $64,927.14, allegedly due under the contract. [7] When they learned of the invoice and the lien on title, the plaintiffs say they tried to contact Mr. Kao but he refused to speak with them. The plaintiffs then allege that, commencing in September 2022, they were threatened by a stranger, who said that they owed Wetrust $65,000 and that if the amount owing was not paid, they could be shot, their house could burn down, and Mr. Zheng could be fired from his job. The plaintiffs say that a man also smashed the window of their vehicle. These actions were reported to the police, but no culprit was ever identified. [8] Mr. Zheng, in his affidavits in support of this application, says that the threats were so severe that the plaintiffs installed many security cameras, and that their children are afraid to play in the yard or go into the basement by themselves. He says that he and his family are afraid to remain in the house and that he wants to sell and move but cannot do so with the builders lien and CPL on title. [9] Mr. Zheng says that the primary motivation for the plaintiffs filing the notice of civil claim was to try to put an end to the threats and that since the notice of civil claim was filed, the threats have stopped. As a result, he has not moved forward with the action but still wants to sell the property and move on. [10] The procedural chronology is as follows: June 22, 2022 The defendants filed the builders lien. December 30, 2022 The plaintiffs filed the notice of civil claim. January 19, 2023 The defendants filed their response and counterclaim. February 13, 2023 Wetrust registered the CPL on title of the property. March 13, 2023 The plaintiffs filed a response to the counterclaim. May 3, 2023 The plaintiffs provided the defendants with an offer to settle, which was not responded to. February 20, 2024 The plaintiffs filed a notice of intention to proceed. February 26, 2023 The plaintiffs filed this application. [11] Neither party has taken any other steps in the action. [12] The plaintiffs assert that the three years since the defendants have taken any steps in their counterclaim warrant it be dismissed for want of prosecution. [13] They argue that as the claim arises from a contract that is partly oral and as credibility will be in issue, the memory of participants will be particularly important and the delay will necessarily result in erosion of witnesses' memories. [14] Further, they argue that where a builders lien and CPL are tying up title to a property, there is an onus on the registering party to proceed with the action with dispatch. [15] The defendants say that their delay was caused by two factors, a mistaken belief on the part of Mr. Kao, said to be on the advice of his then lawyer, that he had to wait for the plaintiffs to advance their case first, and an ongoing back issue he has that resulted in surgery in 2024. [16] The defendants argue that their counterclaim clearly has merit, based as it is on a contract that they allege was substantially completed. They point out that they have documents, including notes and photographs of the premises before, during, and after the work done that substantiate their position. [17] The defendants also argue that the evidence relied upon by the plaintiffs is flawed in many ways, including in having no proper evidence or support for the damages they allegedly suffered. [18] Further, they argue that dismissing the counterclaim while leaving the claim extant would be contrary to the interests of justice. That the claim and the counterclaim are inextricably intertwined and that the plaintiffs similarly have not done anything to move their case forward. Analysis The test [19] Both parties noted that the Court of Appeal revisited and revised the test for dismissal of an action for want of prosecution in Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473 [Giacomini Consulting], where the court held: [69] For clarity, I will summarize the revised framework of analysis that, in my view, should govern applications to dismiss actions for want of prosecution in British Columbia. The first two questions are: (1) Has the defendant established that the plaintiff's delay in prosecuting the action is inordinate? (2) Is the delay inexcusable? [70] These two questions are to be answered in accordance with the law that has developed in British Columbia under the existing test. If both questions are answered in the affirmative, the court should move to the third and final question: (3) Is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay? [71] The non-exhaustive list of factors set out at paragraph 45 of International Capital Corporation [v. Robinson Twigg & Ketilson, 2010 SKCA 48] provides a useful starting point for assessing the interests of justice. To that non-exhaustive list, I would add one further factor: the merits of the action. While a judge should not engage in any searching examination of the merits on an application to dismiss for want of prosecution, if the action is bound to fail then the interests of justice favour its dismissal: Ed Bulley [Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52] at para. 62. [72] Under this framework of analysis, the prejudice to the defendant's ability to defend the action remains a relevant, and indeed important consideration. However, prejudice to the defendant is not a pre-requisite to an order dismissing a claim for want of prosecution. At the interests of justice stage, the court should look to all relevant circumstances rather than prioritizing the impact of delay on trial fairness. [73] By way of concluding comments, I make three further points. [74] First, in my view, it is not helpful to characterize the remedy of dismissal for want of prosecution as "Draconian", to the extent this label implies the remedy is excessively harsh or punitive. It must be remembered that a plaintiff faces the risk of dismissal of an action only once they are guilty of inordinate and inexcusable delay. Undue litigation delay undermines public confidence in the justice system, and should not be countenanced. Generally speaking, a plaintiff who has filed a civil claim should be expected to get on with it. If, having regard to the circumstances, it is not in the interests of justice to allow an action characterized by such delay to continue, then the remedy of dismissal is not excessively harsh or punitive. Rather, it is justified. [20] The Court of Appeal also noted the factors from para. 45 of International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48 at para. 66: [66] At paragraph 45 of International Capital Corporation, the Court set out a non-exhaustive list of factors that are relevant to the court's assessment of the interests of justice: (a) the prejudice the defendant will suffer defending the case at trial; (b) the length of the delay; (c) the stage of the litigation; (d) the impact of the delay on the defendant's professional, business, or personal interests; (e) the context in which the delay occurred, in particular whether the plaintiff delayed in the face of pressure by the defendant to proceed; (f) the reasons offered for the delay; (g) the role of counsel in causing the delay; and (h) the public interest in having cases that are of genuine public importance heard on their merits. Is the delay inordinate and inexcusable? [21] I note that the delay here is at or below the lower end of delay in reported cases that have been dismissed for want of prosecution. Even cases involving builders liens and CPLs generally have a longer period of delay than the roughly three years seen here. [22] I do not consider, however, that there is or should be a hard and fast line before which the order will not be granted. [23] In DEB Construction Ltd. v. Mondiale Development Ltd., 2023 BCSC 1167, relied upon by the plaintiffs, Master (now Associate Judge) Robertson set out the factors considered in determining inordinate delay, whether the delay is excusable and prejudice. Regarding delay, Master Robertson noted: [26] The various principles which have been developed since in respect of these considerations has been summarized in various decisions including Wiegert v. Rogers, 2019 BCCA 334 ("Wiegert"), as follows: Delay a) inordinate delay is a delay that is immoderate, uncontrolled, excessive and out of proportion to the matters in question, but with it being relative in that some matters call for a more expeditious prosecution than others: Wiegert at para. 32. b) silence or absence of encouragement to proceed from a defendant should not weigh in the plaintiff's favour: AAA Rebar Only Ltd. v. 1003708 B.C. Ltd., 2022 BCSC 1962 ("AAA Rebar") at para. 18 citing Callan v. Cooke, 2020 BCSC 290 ("Callan") at para. 74. c) in terms of determining when the last step was taken, "step", has been interpreted as one that is formal, in that it is either required or permitted under the Rules and moves the action forward toward trial, such that general exchanges of correspondence between counsel, is not considered a step: Canadian National Railway Company v. Chiu, 2014 BCSC 75, at para. 7. d) filing a notice of intention to proceed is not a step, as it does not actually move the proceeding forward: New Rightway Contracting ltd. v. 0790792 B.C. Ltd., 2023 BCSC 216 ("New Rightway") at para. 25, citing Kelly v. Dyno Nobel Canada Inc., 2016 BCSC 1601 at para. 20. e) one of the "special cases" which call for an expeditious prosecution are those in which liens have been filed under the [Builders Lien Act, S.B.C. 1997, c. 45 ("BLA")]: Parkerdean Plumbing and Mechanical Inc. v. Best Builders Ltd., 2019 BCSC 1969 ("Parkerdean") at para. 17, and AAA Rebar, at para. 19, citing Creative Door Service Ltd. v. 3609987 Canada Inc., 2006 BCSC 1676, at para. 23. The reason for this is that the BLA provides a special privilege of securing the full amount of a claim against property prior to any determination of the claim's validity. The lien is an extraordinary remedy for which an expeditious testing of the validity of the claim is essential: Lebon Construction Ltd. v. Wiebe, 1995 CanLII 216 (BCCA) at para. 41. f) however, there is no hard and fast rule as to when time starts to run, when considering whether there has been a delay in prosecuting a matter: Hanna's Construction v. Blue River, 2006 BCCA 142 ("Hanna's") at para. 22. G while the court can consider whether a delay was tactical, the reason for why there might be a delay, including a tactical one, is just one of the factors in determining if the delay was inordinate: Wiegert, at para 34. [24] In my view, it is difficult to argue that the defendants' delay in prosecuting their counterclaim is inordinate, when the plaintiffs have similarly not taken any steps to progress the litigation. However, that does not excuse the defendants from the expectation that they will prosecute their counterclaim expeditiously, particularly when relying on a builders lien as security. [25] As was noted in DEB Construction Ltd., cases are very factually dependent: [28] The parties each rely on different cases as to whether or not a matter has been dismissed for want of prosecution, however, as noted, each case is factually dependent. In any event, the following cases were specifically relied upon by these Defendants as being analogous: a) Parkerdean, where there had been a delay of three years since the last step was taken, and four and a half since the notice of civil claim was filed in an action under the BLA. The court found the delay to be inordinate "particularly in the context of a builder's lien claim". b) AAA Rebar where it has been six years since the action had been commenced, again in a builder's lien context. [29] In contrast, DEB relies on New Rightway, where the court did not dismiss the claim despite it being a claim under the BLA, and over 9 years passing since the notice of civil claim had been filed. [26] A delay of three years, while considerable, cannot, in my view, be said to be inordinate in the circumstances here. [27] The rationale for the delay, while perhaps thin, is nevertheless some explanation for the failure to move things along. Particularly where there is some failure of representation that is said to contribute to the delay, the circumstances must be looked at carefully. [28] Here, where both a failure of representation and injury are contributors to the delay, I cannot say that the delay was inexcusable. Is it in the interests of justice to dismiss the counterclaim? [29] Where, as here, the plaintiffs do nothing to advance their own case, to dismiss a counterclaim based on the same factual circumstances while leaving the plaintiffs' claim extant is, on its face, unfair. [30] The concern as to memories fading is ameliorated by the existence of photographs and notes that have been preserved by both parties. There was no suggestion that witnesses have died or are beyond the reach of the court. [31] As to the prejudice allegedly being suffered due to the builders lien and the CPL on title, both the Builders Lien Act, S.B.C. 1997, c. 45 and the Land Title Act, R.S.B.C. 1996, c. 250 have provisions allowing the plaintiffs to apply to cancel these charges from title without the counterclaim being dismissed. Conclusion [32] The plaintiffs' application for dismissal of the counterclaim for want of prosecution is therefore dismissed. [33] The defendants will have their costs of this application in the cause. "Muir A.J."