Executive Summary: Key Legal and Evidentiary Issues

• Appellants sought to reinstate a default judgment and $430,000 damages assessment after the chambers judge set both aside in favour of the respondent, Li Min Wang.

• Whether Rule 22-1(3) of the Supreme Court Civil Rules properly applied to grant Ms. Wang standing to challenge the damages assessment was a central legal question.

• Ms. Wang's extended absence in China from May 2023 to January 2025 — due to family medical emergencies — was key to the finding of no willful delay or default.

• Substitutional service was effected through multiple methods (lobby posting, registered mail, text message, and email), yet the Court accepted that Ms. Wang did not actually receive notice.

• Alleged palpable and overriding errors of fact — including whether tenants informed Ms. Wang of lobby postings and the nature of her qq.com email address — were rejected as non-overriding.

• The Court of Appeal unanimously dismissed the appeal, upholding the lower court's decision to set aside both the default judgment and the damages assessment.

The failed property purchase and the claim for damages

In March 2023, Marida Holdings Ltd., Shannon Marie MacKenzie, Marilyn Ethel Anderson, and Heather Anderson (the appellants/plaintiffs) filed a notice of civil claim against Li Min Wang in the Supreme Court of British Columbia. The claim arose from Ms. Wang's failure to complete the purchase of a 3.4-acre property located in Anmore, British Columbia. The agreed sale price under the agreement for purchase and sale was $1.58 million, but after the deal fell through, the property ultimately sold for $1.15 million — a difference of $430,000. Ms. Wang had already paid a $55,000 deposit directly to the plaintiffs, and the court later ordered that a further $20,000 deposit be released to the plaintiffs following the damages assessment.

Substitutional service and default judgment

Because Ms. Wang could not be served personally, the plaintiffs obtained an order permitting substitutional service by posting a copy of the notice of civil claim on the lobby door of an apartment building located at Manchester Drive, Burnaby, British Columbia, where Ms. Wang owns unit 115, and sending a photograph of the posting by text message to 778-855-2743. When Ms. Wang did not file a response, the plaintiffs obtained a default judgment on October 16, 2023, and in December 2023 they filed the judgment against title to Ms. Wang's apartment. In September 2024, the plaintiffs filed a notice of application to assess damages. On October 22, 2024, Justice Norell ordered the plaintiffs to serve the application on Ms. Wang using five different methods: posting the materials on the lobby door to Ms. Wang's apartment; sending the materials by regular registered mail to her apartment; sending a photo of the lobby door posting to the same telephone number as in the first substitutional service order; and sending the materials by email to two different email accounts of Ms. Wang. On November 8, 2024, in Ms. Wang's absence, the court assessed damages at $430,000 plus interest of $27,961.74 and costs of $8,127.48, and ordered that the further $20,000 deposit be released to the plaintiffs.

Ms. Wang's absence from Canada and lack of actual notice

Ms. Wang had travelled to China in May 2023 to care for her mother, who had suffered a stroke. Her father was then hospitalized with health issues, and Ms. Wang also suffered medical issues while in China. Other than a brief trip back to Canada in or about March 2024, she was largely out of the country from May 2023 to January 2025. During this time, she ceased using her Canadian phone number, which was the phone number used for substitutional service in both orders. Her apartment was rented to tenants, but she was not told of the lobby postings of the notice of civil claim or the damages assessment application. She did not check her Canadian mailbox, so she did not receive the mailed copy of the damages assessment application, and the registered mail copy had no signed acknowledgment of receipt. Due to Chinese internet restrictions, she was not able to access her Canadian email accounts while she was in China, and she primarily used WeChat for communication. Ms. Wang stated that she first became aware of the judgment and damages assessment when she returned to Canada in January 2025 and checked her emails. She immediately cancelled her return ticket to China, hired a Mandarin-speaking lawyer, and on April 11, 2025, applied to set aside both the default judgment and the damages assessment.

The lower court's decision to set aside the default judgment and damages assessment

At the hearing before the chambers judge on April 28, 2025, Ms. Wang argued she was entitled to apply under Rule 22-1(3) of the Supreme Court Civil Rules, which provides the court with jurisdiction to reconsider an order made when a party to a chambers proceeding fails to attend at a hearing, provided that the person who failed to attend was not guilty of willful delay or default. The chambers judge agreed. Relying on the Court of Appeal's decision in Ibrahim v. Hashemi, 2024 BCCA 383, the judge found that Ms. Wang was entitled to notice of the damages assessment hearing as a result of the earlier substitutional service order, and therefore had standing to apply under R. 22-1(3) even though she had not filed a response and was not a party of record. The judge applied the three requirements from Ibrahim: (1) the applicant is not guilty of willful delay or default; (2) the application for reconsideration was brought as soon as reasonably possible; and (3) the applicant has shown a meritorious defence, or at least a defence worthy of investigation. The judge found all three requirements satisfied, concluding that it was in the interests of justice to set aside both the damages assessment order under R. 22-1(3) and the default judgment under R. 3-8(11).

The appeal: applicability of Rule 22-1(3)

On appeal to the British Columbia Court of Appeal, the appellants argued that Justice Norell's order did not require service on Ms. Wang but rather only permitted them to serve her substitutionally, as the order used the word "may." Justice Mayer, writing for the unanimous panel, rejected this interpretation. The Court found the circumstances in Ibrahim parallel to those in this appeal and held that Justice Norell's order was not optional — judges do not generally make optional orders. The judge ordered both the manner of substitutional service on Ms. Wang and a deadline for her to respond. Having sought a substitutional service order and then perfected service pursuant to Justice Norell's order, the appellants gave Ms. Wang standing to apply to set aside the damages assessment order under R. 22-1(3).

Alleged palpable and overriding errors of fact

The appellants contended that the chambers judge made two errors of fact relevant to whether Ms. Wang was guilty of willful delay or default. First, they said the judge erred in finding that Ms. Wang's affidavit contained evidence that her apartment was rented to tenants but she was not told of the lobby postings, when in fact her affidavit contained no such explicit statement. They also argued the judge should have drawn an adverse inference from Ms. Wang's failure to call her tenants as witnesses. The Court of Appeal acknowledged that the judge misstated the evidence in this respect but held the error was not overriding, as there was an evidentiary basis for the judge's conclusion that Ms. Wang did not know about the proceedings until January 2025. The Court declined to find the judge erred in not drawing an adverse inference, noting that the decision to draw such an inference is discretionary, that it was unclear whether Ms. Wang would have anticipated the argument, that there was no evidence the tenants were within her exclusive control, and that it would have been speculative to conclude a tenant would have notified Ms. Wang while she was in China. Second, the appellants argued the judge erred in finding that Ms. Wang's qq.com email address was a Canadian email address she could not access while in China due to Chinese internet restrictions, when in fact it was a Chinese email address. The Court found it was not entirely clear whether the judge assumed this, and noted there was no admissible evidence before the Court or the court below as to whether the email account ending in "qq.com" is Chinese or Canadian. In any event, Ms. Wang's evidence was that she was unable to access this account and her Gmail account when she was in China. The appellants' further argument that the judge improperly took judicial notice of Chinese internet restrictions was also rejected, as the judge had relied on Ms. Wang's own evidence rather than taking judicial notice.

Ruling and outcome

The Court of Appeal unanimously dismissed the appeal. Justice Mayer, with Chief Justice Marchand and Justice Griffin concurring, held that the chambers judge properly applied R. 22-1(3) and relevant law from Ibrahim v. Hashemi and did not commit any palpable and overriding errors of fact. The default judgment and the damages assessment — which had totalled $430,000 plus interest of $27,961.74 and costs of $8,127.48 — remain set aside in favour of Ms. Wang, the successful respondent. No separate monetary award was granted on appeal; the effect of the decision is that the previously obtained damages assessment and default judgment are vacated.