Executive Summary: Key Legal and Evidentiary Issues

• Appellants failed to comply with a court-ordered security for costs, leading to dismissal of their appeal as abandoned.

• The underlying trial judgment awarded over $1.2 million in damages for breach of fiduciary duty and negligence.

• Mr. Ma claimed financial hardship but provided insufficient evidence to justify non-payment of security.

• Procedural fairness was challenged but ultimately upheld by the appellate court.

• The Court emphasized that the appeal’s limited merit did not justify overriding procedural defaults.

• The respondent was awarded costs due to prolonged litigation and noncompliance by the appellants.

Facts and outcome of the case

Zhi Yong Ma and his company, Superoptionforex Consulting Inc., were sued by Hong Fang Wu in the Supreme Court of British Columbia for financial losses incurred from investments managed by Mr. Ma. Ms. Wu’s funds were placed into a company called DryShips, which eventually went bankrupt. The trial court found that Mr. Ma had breached fiduciary duties and was negligent in handling Ms. Wu’s investments. As a result, the trial judge, Justice Winteringham, awarded Ms. Wu approximately $1.2 million in damages, along with a significant cost award. The judgment was issued in 2022 (Wu v. Ma, 2022 BCSC 1737).

Following this judgment, Mr. Ma filed a notice of appeal on November 2, 2022, but took no further action, leading the appeal to be placed on the inactive list. Although it was reinstated in April 2024, the respondent successfully applied for an order requiring Mr. Ma to pay security for the costs of the appeal and the trial judgment. Justice Groberman ordered Mr. Ma to pay $11,996.40 for appeal costs and $125,340 for trial costs. Mr. Ma failed to comply with this order and instead applied to vary it, which was rejected by a division of the Court of Appeal and later denied leave to appeal by the Supreme Court of Canada.

In 2025, Ms. Wu applied to dismiss the appeal as abandoned. Mr. Ma applied to reinstate the appeal and for a no-fee order. All applications were heard together by Justice Edelmann, who concluded that the appeal should be dismissed. He found Mr. Ma failed to demonstrate a material change in circumstances or present a viable plan to pay the security. The judge also determined the appeal lacked strong merit, as it was largely based on factual disputes or mixed questions of fact and law, and Mr. Ma’s explanations did not meet the high threshold needed for appellate intervention.

Justice Edelmann dismissed the appeal as abandoned and awarded costs to Ms. Wu. The decision was subsequently reviewed by a panel consisting of Justices Fisher, Dickson, and MacNaughton. They upheld Edelmann J.A.’s ruling, finding no error in law, principle, or fact. The review application was dismissed, leaving the original trial judgment and cost orders in place.