Executive Summary: Key Legal and Evidentiary Issues

• The appeal centered on whether a chambers judge erred in refusing to adjourn a petition brought to enforce a strata lien for unpaid fees.
   
• Fresh evidence was challenged after the identified commissioner for taking affidavits could not be verified to exist in British Columbia.
   
• Litigation misconduct became a central issue once the court found the supporting affidavit had been fabricated to appear properly sworn.
   
• Special costs were ordered against the appellant based on his pattern of delay and disregard for court directions.
   
• A later assessment addressed whether the appellant's daughter, acting as his agent throughout the proceedings, could continue representing him without proper authorization.
   
• Ultimately, the registrar fixed the special costs owed after reducing several disputed billing items.
   

Facts of the case

Shimin Zhang appealed orders made by a chambers judge on a petition brought by the respondent, The Owners, Strata Plan BCS 4288 (the "Strata"), to enforce a lien for unpaid strata fees. The original lien was $751.19, and the Strata maintained that the amount owing as of December 2023 had grown to $1,822.74. Mr. Zhang did not attend the petition hearing; his daughter, Li Zhang, appeared and sought an adjournment on his behalf, stating he was in China. The chambers judge dismissed the adjournment request, declared Mr. Zhang in default, and ordered that the final amount owing be certified through an accounting by the registrar, with the property to be sold if payment was not made within 30 days of that determination. Mr. Zhang appealed, and the Strata cross-appealed the decision to refer the amount to the registrar rather than fix it directly, though the Strata later abandoned its cross-appeal.

Throughout the appeal, Mr. Zhang was represented by Ms. Zhang, who described herself as his agent, and he never personally appeared before the Court of Appeal or, to the Court's knowledge, in the proceedings below. The appeal was marked by repeated delays, adjournment requests, and a change in representation when counsel, Mr. Li, was briefly retained. A significant issue arose when Mr. Zhang sought to rely on an affidavit purportedly sworn by Xiaofei Sun on September 12, 2024, stating she had paid strata fees on his behalf. The affidavit identified the commissioner for taking affidavits as "Susan Jiang," but the Strata's investigation, including inquiries with the Law Society of British Columbia and the court registries, found no such lawyer or commissioner existed in the province. Ms. Zhang provided an explanation for how the affidavit had been sworn that the Court found implausible, and a re-sworn version of the affidavit was later submitted on the day of a continued hearing.

Mr. Zhang did not attend the January 27, 2026 continuation of the appeal hearing despite being directed to do so in person or by Zoom, citing difficulties accessing the hearing from China and ongoing recovery from surgery. The Court proceeded with the hearing, with an interpreter arranged, and Ms. Zhang appeared and submitted further material, including a letter purportedly authorizing her to represent her father.

Following the Court's dismissal of the appeal and its order for special costs, a second proceeding addressed the assessment of those costs. The respondent sought $49,786.13 in special costs. The assessment was repeatedly adjourned due to changes in representation and last-minute requests by Ms. Zhang, who eventually disclosed a 2007 power of attorney purportedly authorizing her to act for her father, though its authenticity remained unclear and it had not been previously provided to the Court or the Strata.

Policy and legislative provisions at issue

The Strata sought its costs under section 118 of the Strata Property Act, S.B.C. 1998, c. 43, which allows costs incurred in enforcing a lien to be added to the amount owing, though this provision was not addressed in detail given the parties' agreement that there was no practical difference between special costs and costs recoverable under that section.

The special costs assessment turned on Rule 71 of the Court of Appeal Rules, which directs the registrar to allow fees that were "properly or reasonably necessary" to conduct the proceeding. Rule 71(3) sets out non-exhaustive factors for this assessment, including the complexity and novelty of the matters involved, the amount at stake, the time reasonably spent, the importance of the proceeding to the party, and any conduct that lengthened or shortened the proceeding. Rule 72 governs the allowance of reasonable disbursements and applicable taxes.

Reasoning and analysis

On the fresh evidence application, the Court of Appeal found that Ms. Sun's affidavit could not be admitted given serious concerns about its authenticity, concluding that it appeared intended to mislead the Court into believing it had been properly sworn before a commissioner in British Columbia. The Court found Ms. Zhang's explanation for the affidavit's origins not reasonably capable of belief and noted that Mr. Zhang's continued reliance on the affidavit, even after these concerns were raised, showed a lack of understanding of the seriousness of his conduct.

On the merits of the appeal, the Court held that the decision to deny an adjournment was discretionary and entitled to deference, and Mr. Zhang identified no reversible error. The Court also rejected the argument that the chambers judge improperly delegated fact-finding to the registrar, finding that referring the final accounting to the registrar was a proportionate and practical solution given the small amounts involved, and that Mr. Zhang would still have an opportunity to prove payment at that stage.

On costs, the Court concluded that Mr. Zhang's conduct, including his reliance on the fabricated affidavit and his repeated disregard for court directions and procedural rules, amounted to reprehensible conduct warranting special costs. As for the cross-appeal, the Court found arguments on both sides and ordered each party to bear its own costs of that proceeding.

In the subsequent assessment, Registrar Outerbridge addressed whether Ms. Zhang could continue acting as Mr. Zhang's agent, noting that permission for an agent to appear does not amount to blanket authorization throughout a proceeding, and that Mr. Zhang had been given repeated opportunities to appear, retain counsel, or properly instruct an agent but had not done so. The Registrar found it neither necessary nor proper to allow Ms. Zhang to continue given unresolved doubts about her authorization, the late and unclear power of attorney, and her pattern of ineffective and misleading conduct, and proceeded with the assessment in the appellant's absence.

On the substance of the special costs claimed, the Registrar found the legal issues in the appeal were not complex, novel, or difficult, and that the amounts in dispute were minor. However, the Registrar accepted that the appellant's own conduct, including serial amendments to the notice of appeal, over 80 emails to respondent's counsel, and last-minute submissions, unnecessarily lengthened and complicated the proceeding. The Registrar allowed most of the claimed fees and disbursements as proper or reasonably necessary, subject to three exceptions: a reduction for excessive photocopying, a reduction for clerical and travel-related billing, and a partial reduction for time spent investigating a proposed consent appeal that did not proceed. The Registrar also fixed the costs of the assessment itself after finding some of the claimed preparation time excessive.

Ruling and overall outcome

The Court of Appeal dismissed Mr. Zhang's application to adduce fresh evidence, dismissed the appeal, and dismissed the cross-appeal as abandoned. Mr. Zhang was ordered to pay the Strata's costs of the appeal as special costs, while each party was to bear its own costs of the cross-appeal. In the subsequent assessment, Registrar Outerbridge assessed the special costs owed by Mr. Zhang to the Strata, reducing the respondent's claimed amount of $49,786.13 through specific deductions for photocopying, clerical and travel billing, and consent-appeal-related time, and fixed the assessment-related costs at $7,000. The final special costs and disbursements were assessed at $39,703.92, payable by Mr. Zhang to the Strata.