Citation and Court Information
CITATION: Chi-Chun Liu et al. v. Daniel Executive (Canada) Holdings Corp. et al., 2011 ONSC 379
DIVISIONAL COURT FILE NO.: 450-10
DATE: 20110124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CHI-CHUN LIU, CHIUN LI BIOTECHNOLOGY (BVI) INC., TIEN-TSAI LIU AND BAU SHAN BIOTECHNOLOGY CORP. Plaintiffs
– and –
DANIEL EXECUTIVE (CANADA) HOLDINGS CORP., CHENG-SHING CHEN, AND SHU-CHEN LIU Defendants
COUNSEL:
David Greenwood, for the Plaintiffs
Ford W. Wong, for the Defendants
HEARD at Toronto: January 10, 2011
Endorsement
Ferrier J.:
[1] The Defendants seek leave to appeal the order of Honourable Mr. Justice Wilton-Siegel dated April 12, 2010 which upheld Master Glustein’s September 25, 2009 order. Master Glustein’s September 25th, 2009 order set aside his own March 25, 2009 order dismissing the claims of the plaintiffs, Chi-Chun (“Keelson”) Liu’s and Chiun Li Biotechnology (BVI) Inc.’s (collectively referred to as the “Keelson plaintiffs”).
[2] On February 25, 2009, the Keelson plaintiffs’ then counsel brought a motion to be removed as solicitor of record. On the same day, the defendants brought a motion for security for costs. The Master ordered the removal of the solicitor and ordered the Keelson plaintiffs to pay $300,000 security for costs within 10 days, failing which the defendants could move without notice to dismiss their action. The Keelson plaintiffs were unrepresented. The Keelson plaintiffs reside in Taiwan.
[3] The Keelson plaintiffs did not provide the security and the defendant then moved without notice to dismiss the action. The Master dismissed the action by order dated March 25, 2009.
[4] The circumstances following the granting of the order for security, including the significant efforts by the defendants to bring the security order to the attention of the Keelson plaintiffs and to advise them of the pending ex parte motion to dismiss, are reviewed in the decisions below.
[5] The Keelson plaintiffs retained new counsel and in due course moved before Master Glustein to set aside the dismissal order, which he did by order dated September 24, 2009.
[6] The reasons of the master reflect a thorough and careful analysis of the issues. He exercised his discretion and set aside the dismissal order. He did so pursuant to rule 37.14(1)(a). After reviewing the conflicting case law, he preferred the reasoning in Rolling Stone Haulage v. Wilkinson, Tyrell, McKay Insurance Brokers and Consultants 1997 CarswellOnt 5371 (Div. Ct.) at para. 10, to that in Warger v. Nudel, [1989] O.J. No. 1880 (Mast), confirmed on appeal (1990) 49 C.P.C. (2d) 126 (Div. Ct.), and the cases flowing from them respectively.
[7] On appeal to Mr. Justice Wilton-Siegel, the learned judge, in an equally thorough and carefully reasoned decision, dismissed the appeal. He too recognized the conflict in the cases and preferred the Rolling Stone line of authority.
[8] Thus, the Master clearly exercised his discretion correctly, without error in principle, unless rule 37.14(1)(a) had no application, and on that question there are conflicting decisions.
[9] Thus, the first branch of rule 62.02(4)(a) is satisfied, and the question becomes whether it is "desirable that leave to appeal be granted".
[10] In my view the answer to that question is no. In the circumstances following the making of the order for security, it is my view that it would be quite unjust to allow the dismissal to stand. That is not to say that the Keelson plaintiffs are without fault in their default and the circumstances as they developed following the security order. They could have been and should have been more diligent in paying attention to their affairs – namely, the substantial lawsuit in which they are involved and which they initiated.
[11] To be sure, the argument that the conflict in the cases should be cleared up has considerable merit, but in my view this is not the case which should go forward on the issue. The circumstances here are particular to this case – Taiwanese plaintiffs, long distance communication aspects, a solicitor getting off the record immediately before the security order, some difficulty, however slight, in retaining new counsel, and a counterclaim which remains alive, involving many of the same issues in the claim.
[12] Concerning rule 62.02(4)(b), notwithstanding the conflicting case law, I am not of the view that the matter is open to serious debate. A "motion without notice" is such whether it is permitted by the rules or by leave granted in an order. I agree with the analyses of the master and the judge below. Furthermore, in Warger, supra, the motion was brought pursuant to rule 59.06(2)(a) and the comments of Master Sandler concerning rule 37.14 and the ex parte motion in that case, would appear to be obiter. In Vesely v. Dietrich, [1998] O.J. No. 6475 (Div. Ct.), the court did not take the principle in Warger, supra, to be correct. The other authorities cited by the plaintiffs and referred to in the decisions below, are clearly distinguishable on their facts.
[13] I am reinforced in this view by the provision of rule 1.04(1), that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Sub-rule (1.1) specifically directs the court to consider proportionality. The dismissal of an action is quite obviously a very serious event, one which should be relieved against if there is a legitimate basis for the exercise of the court's discretion.
[14] Even if I am wrong on the first branch of this sub-rule, for the reasons expressed above – the particular circumstances of this case – I am of the view that this is not the case which will advance the interests of the administration of justice in reference to the issue.
[15] Accordingly, the motion for leave to appeal is dismissed.
[16] On the question of costs, there was a reasonable argument that could be made in support of the motion for leave, in view of the conflicting cases. In the circumstances, there will be no order as to costs.
Ferrier J.
Released: January 24, 2011
CITATION: Chi-Chun Liu et al. v. Daniel Executive (Canada) Holdings Corp. et al., 2011 ONSC 379
DIVISIONAL COURT FILE NO.: 450-10
DATE: 20110124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CHI-CHUN LIU, CHIUN LI BIOTECHNOLOGY (BVI) INC., TIEN-TSAI LIU AND BAU SHAN BIOTECHNOLOGY CORP. Plaintiffs
– and –
DANIEL EXECUTIVE (CANADA) HOLDINGS CORP., CHENG-SHING CHEN, AND SHU-CHEN LIU Defendants
ENDORSEMENT
Ferrier J.
Released: January 24, 2011