Citation: Park v. Park, 2011 ONSC 4234

DIVISIONAL COURT FILE NO.: DC 11-270

DATE: 2011-07-28

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, HEENEY AND POMERANCE JJ.

B E T W E E N :

JAE SUN PARK and KEUN JON PARK Plaintiffs/Respondents

– and –

HAE KYUNG PARK and YOUNG BIN PARK Defendants/Appellants

Joan M. Mouland, for the Plaintiffs/Respondents

Howard L. Shankman, for the Defendants/Appellants

HEARD: May 31, 2011 at London

MATLOW, J.:

The disposition of this appeal

[1] Order is to issue setting aside the order of Justice P. J. Flynn dated September 4, 2009. Written submissions regarding costs may be served and filed by the parties, in triplicate, at the office of the Registrar of this court at London. The first submissions are to be served and filed within 15 days of the date of this order and the second within 30 days of this order.

The order in appeal

[2] The following is a copy of the preamble and operative provisions of the order in appeal;

ORDER

THIS MOTION is made by the Plaintiffs, Jae Sun Park and Keun Jong Park, also known as Andrew Park, for a mandatory Order requiring the Defendants to release to the Plaintiff, Jae Sun Park, or her authorized representative, all of Jae Sun Park’s personal property including her OHIP care, Social Insurance Card, medications, jewelry, clothing and other personal belongings in the possession of the Defendant Hae Kyung Park, also known as Pamela Park, which are located at 110 Ernest Avenue, North York, Ontario, was heard this 4th day of September, 2009, at the Courthouse at 50 Frederick Hobson VC Drive, Simcoe, Ontario N3Y 4L5.

ON READING the Notice of Motion, the Affidavit of Keun Jong Park sworn the 14th day of August 2009, and the Affidavit of Keun Jong Park sworn the 31st day of August 2009, the Defendants, Hae Kyung Park and Young Bin Park having been noted in default, and no one appearing on behalf of the defendants, Hae Kyung Park and Young Bin Park, although properly served as appears from the affidavit of service of Joan Mouland sworn the 31st day of July, 2009, and on hearing submissions from the solicitor for the Plaintiffs,

1. THIS COURT DOTH ORDER THAT the Defendants allow Jae Sun Park, and any person authorized by her, including her son, the Plaintiff, Keun Jong Park, (also known as Andrew Park), her son Keun Chan Park (also known as William Park) and her daughters, Kyung Chan Park (also known as Christine Park), Eun Kyung Kim (also known as Ellen Kim), unfettered access to 110 Ernest Avenue, Toronto, Ontario.

2. THIS COURT FURTHER ORDERS THAT the Defendants allow Jae Sun Park, and any person authorized by her, including her son, the Plaintiff, Keun Jong Park (also known as Andrew Park), her son Keun Chan Park (also known as William Park), and her daughters, Kyung Chan Park (also known as Christine Park, Eun Kyung Kim (also known as Ellen Kim) to remove any property belonging to Jae Sun Park from 110 Ernest Avenue, Toronto, Ontario.

3. THIS COURT FURTHER ORDERS THAT the Defendants allow the Plaintiffs and their authorized representatives unfettered access to 110 Ernest Avenue for the purpose of obtaining an appraisal.

4. (This paragraph was struck out).

5. THIS COURT FURTHER ORDERS THAT the Defendants pay costs to the Plaintiffs in the amount of $1500.00, all-inclusive.

The record before this court

[3] Subject to paragraph 4, below the record consists of copies of the pleadings and other proceedings in this action, the affidavit of Ms. Knudsen sworn on January 2, 2011, and numerous exhibits attached, copies of the notice of motion of the plaintiffs before the motions judge and the affidavit of Keung Jong Park sworn on July 30, 2009, and numerous exhibits attached.

[4] The material before us does not contain copies of any reasons for decision or any endorsement signed by the motions judge. There is only a brief unsigned notation in handwriting, apparently that of the motions judge, at tab 2 of the respondent’s compendium. It reads as follows;

4 Sept 09 Mouland for P’s

Ms Knudsen for D’s

(but noted in default –no P’s consent to set aside-nothing filed by Defs-not even Notice of Intent to Defend)

[5] The material does, however, contain a copy of the order granting leave to appeal to this court. Leave to appeal was required pursuant to rule 62.02 (1) as the order in appeal is an interlocutory order. Rule 62.02 (4) set out the grounds on which leave may be granted and rule 62.02 (7) requires that the judge granting leave give brief reasons in writing. Regrettably, the order granting leave does not specify the grounds on which was leave was granted and the material does not contain a copy of any reasons given by the judge who granted leave.

The parties and the background leading to this appeal

[6] The plaintiff, Jae Sun Park, (“Mrs. Park”) was, at all material times, married to the defendant, Young Bin Park, (“Mr. Park”); the plaintiff, Keun Jon Park, (“Andrew”) is a son of Mr. and Mrs. Park; and the defendant, Hae Kyung Park, (“Pamela”) is a daughter. These short designations were used by both counsel instead of full names in their submissions to us and I will continue to use them for the sake of simplicity.

[7] This action arises out of various disputes between members of the Park family relating to a residential property located at 110 Ernest Ave, Toronto, money and to certain belongings left by Mrs. Park at the property that she wished to recover. I will describe the issues relating to the disputes in more detail only to the extent that they relate to the issues in this appeal. Counsel advised us that Mr. Park and Mrs. Park are now divorced and that the claim by Mrs. Park for the recovery of certain belongings has been resolved. As a result, this appeal raises mainly legal issues relating to the granting of the order in appeal rather than to the disputes between the parties.

[8] It is not disputed that Andrew held legal title to 110 Ernest Ave. but only a one-third interest was held for him beneficially. The remaining two-thirds were held by him in trust in equal shares for each of Mr. and Mrs. Park. There is, however, a counterclaim in this action by Pamela who now claims a personal interest in the property.

[9] This action was commenced by statement of claim issued on July 29. 2009. The statement of claim was served on the defendants during the evening of the following day, July 30, 2009, resulting in service being effective on July 31, 2009. At the time when the action was commenced, Mrs. Park was no longer residing at 110 Ernest Ave but some of her personal belongings remained there.

[10] Paragraph 1 of the statement of claim includes the following claims made by Mrs. Park against the defendants;

(a) To recover possession from the Defendants of all of her personal property including her Ontario Health Insurance card, Social Insurance card, medication, clothing, jewelry, and all other personal belongings;

(b) A mandatory injunction to recover possession from the Defendants of all of her personal property including her Ontario Health Insurance card, Social Insurance card, medication, clothing, jewelry, and all other personal belongings.

(g) and such further and other relief as this Honourable Court may deem just.

[11] Following service of the statement of claim, Jill M. Knudsen, was retained by the defendants to represent them. Ms. Knudsen quickly took the position that there was an issue as to whether Mrs. Park was a person under disability and that it might be necessary to arrange for the appointment of a litigation guardian to act for her. As well, Ms. Knudsen maintained that, until that issue got resolved, she could not properly deliver a notice of intention to defend or a statement of defence. There followed communications between Ms. Knudsen and Joan M. Mouland, counsel for the plaintiffs, in which Ms. Mouland urged Ms. Knudsen to proceed quickly with the defence of the action and in which Ms. Knudsen repeated that she could not so long as Mrs. Park’s capacity was in issue. As well, during this period arrangements were made by both counsel by which many, if not all, of Mrs. Park’s remaining belongings were obtained by her.

[12] Apparently not satisfied that all of Mrs. Park’s belongings had been returned to her, Ms. Mouland proceeded to deliver a notice of motion, dated July 30, 2009, returnable on August 7, 2009, at Simcoe, giving notice that she would seek an order to effect the recovery of Mrs. Park’s personal belongings. The provisions of the order sought were set out in the notice of motion in the same language as used in paragraphs 1 (b) and (c) of the statement of claim. This motion was then adjourned, on consent, ultimately to September 7, 2009.

[13] On September 2, 2009, apparently still dissatisfied with the extent of Mrs. Park’s recovery of her belongings and Ms. Knudsen’s failure to deliver a statement of defence, Ms. Mouland faxed a letter to Ms. Knudsen advising that she would “proceed on Friday (September 4) to ask for the relief “outlined in our August 31st correspondence” and that “Your clients will be noted in default”. In her letter of August 31, 2009, Ms. Mouland had stated that;

We will be seeking an order on September 4, 2009 allowing Mrs. Park or anyone on her behalf, including any of her children, Andrew, William, Christine or Ellen to attend at 1110 Ernest Avenue to retrieve Mrs. Park’s property. Please advise your clients’ position.

Since our motion is returnable this Friday, September 4, 2009, we must insist that we receive your clients’ Statement of Defence before noon on Wednesday, September 2, 2009. If we do not, we will note your clients in default on Wednesday afternoon.

[14] According to Ms. Knudsen’s affidavit evidence, at approximately 5 PM on September 3, 2009, she received a copy of a draft order from Ms. Mouland setting out the precise relief she intended to seek on the following day. The draft order indicated that the defendants had already been noted in default. As well, it contained, in Ms. Knudsen’s view, provision for relief that “far exceeded any relief which could have been awarded based on the Notice of Motion”.

[15] Later that evening, Ms. Knudsen served on Ms. Mouland, by email, a notice of motion giving notice that she would seek, on the following day, an order setting aside the noting in default of the defendants and advising that she would attend court at Simcoe on the following day. She then faxed to Ms. Mouland a notice of motion, which included a request for an abridgment of the time required for service, returnable on September 4, 2009, and copies of the supporting material.

[16] Ms. Knudsen attended court on September 4, 2009 as she said she would. The following is how she describes what occurred;

I attended court in Simcoe on September 4th. Justice Flynn was presiding. Ms. Mouland advised His Honour the defendants had been noted in default and handed up the draft Order she had sent me the previous evening. She began making submissions on the contents of the draft Order, at which point I rose. Justice Flynn noticed me and asked who I was. I advised His Honour that I acted for the defendants and that I had only learned the defendants had been noted in default late the previous afternoon. I asked him to entertain the motion to set aside the default. However, His Honour refused to accept the material and hear me on why the default should be set aside, and he would not allow me to make any submissions on the substantive issues on the motion. (par. 29)

The only part of the draft Order which Justice Flynn refused to grant was that paragraph requiring Pamela to pay several thousands of dollars to Mrs. Park. He allowed the other three paragraphs without regard to the substantive content of the Notice of Motion. (par. 30)

Justice Flynn only allowed me to make very brief submissions on costs. Ms. Mouland had asked for more than $5,000.00 even though there had been no responding material, no cross-examination and no argument on the motion on the merits. In the brief time that I was permitted, I suggested that no costs should be awarded in the circumstances. His Honour made it clear he was going to award costs, and asked me for submissions on quantum. I suggested that no more than $1,500.00 would be appropriate. Justice Flynn awarded $1.500.00 to the plaintiffs. (par.31)

Immediately after we left the courtroom, Ms. Mouland consented to setting the default aside provided that a Statement of Defence was delivered in short order. It was clear that the defendants had been noted in default so that the plaintiffs could secure relief they would not otherwise have obtained on the motion. I confirmed our arrangements by letter sent to Ms. Mouland later that afternoon. (par. 32)

Ms. Knudsen’s evidence is not challenged by any other evidence before us.

The reasons for the disposition of this appeal

[17] Each of the errors of law and denials of procedural fairness to the defendants referred to below requires that the order in appeal be set aside. I will deal with them in turn.

Reason #1

[18] The motions judge erred by denying Ms. Knudsen an opportunity to make submissions to him, before hearing the plaintiffs’ motion, with respect to whether her motion to set aside the noting in default of the defendants should be heard before the plaintiffs’ motion.

[19] Although it was within the discretion of the motions judge to decide when the motions should be heard and the order in which they should be heard, it was necessary that his discretion be exercised judicially. If the defendants’ motion were successful, they would no longer be restricted by consequences of being noted in default set out in rule 19.02 and they would be entitled to deliver material in opposition to the plaintiffs’ motion.

[20] This decision by the trial judge reflects an error of law and fails to meet the requisite standard of review, correctness. It also resulted in procedural unfairness to the defendants.

Reason #2

[21] The motions judge further erred by denying Ms. Knudsen an opportunity to make submissions to him, other than in relation to costs, with respect to the plaintiffs’ motion which he proceeded to hear in her presence.

[22] Although there were evidently no reasons given by the judge for refusing to give Ms. Knudsen an opportunity to address the merits of the motion, it may be that he mistakenly believed that she was not entitled to make submissions on behalf of clients who had been noted in default.

[23] If that was the reason for the judge’s decision, it was based on a mistaken interpretation of rule 19.02 (1) and rule 19.02 (3) which read, in part, as follow;

19.02 (1) A defendant who has been noted in default,

(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and

(b) shall not deliver a statement of defence or take any other step in the action other than a motion to set aside the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent of the plaintiff.

19.02 (3) Despite any other rule, where a defendant has been noted in default is not entitled to notice of any step in the action and need not be served with any document in the action except…

[24] There is nothing in either of these provisions that deprives a counsel for defendants who have been noted in default from making submissions on their behalf in response to a motion brought against them. In particular, I would not consider the making of submissions to fall within the scope of “take any other step” in rule 19.02 (1) (b). The use of “other”, in the context of the rule, is a clear indication that the prohibition was intended to apply to a step similar to the delivery of a statement of defence, the step to which it referred.

[25] As well, the fact that a defendant who has been noted in default is “not entitled to notice of any step in the action and need not be served with any documents, including a notice of motion, does not mean that his or her counsel cannot independently ascertain the time and place of a motion brought by the plaintiff and attend and make submissions. In my view, there have to be clearer language in the rule to lead to an interpretation that the fundamental right of a counsel to speak on behalf of his or her own client had been taken away.

[26] This decision by the trial judge, as well, reflects an error of law and fails to meet the requisite standard of review, correctness. It also resulted in procedural unfairness to the defendants.

Reason #3

[27] The motions judge further erred by granting an order that far exceeded in scope the order that was proposed in the plaintiffs’ notice of motion.

Rule 37.06 reads as follow;

CONTENT OF NOTICE

37.06 Every notice of motion (Form 37A) shall,

(a) state the precise relief;

(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and

(c) list the documentary evidence to be used at the hearing of the motion.

[28] It is self-evident that the order granted by the motions judge was vastly different and significantly more invasive than the order sought, as disclosed in the notice of motion. It cannot be said that the notice of motion served on the defendants gave meaningful notice to the defendants of the order that the plaintiffs stated that they would seek or of the order that the motions judge granted.

[29] If the notice of motion had described the order sought in the same language as the order that was granted, the defendants would have had an opportunity to consider it and, if so inclined, to assert their opposition to it differently.

[30] This decision by the trial judge, as well, reflects an error of law and fails to meet the requisite standard of review, correctness.

Reason #4

[31] The motions judge further erred by granting the relief set out in paragraphs 1, 2 and 3 of his order in terms that were excessive, unlimited in time and duration and not supported by the evidence contained in the affidavit sworn by Andrew, the only evidence before him.

[32] Even if the defendants, or some of them, were still in possession of some of Mrs. Park’s belongings and even if she required the assistance of the court to recover them, there was no justification for the motions judge to provide, in paragraphs 1 and 2 of his order, “unfettered access” to 110 Ernest Avenue to “any person authorized by her”.

[33] Similarly, the evidence before the motions judge made no reference to anything related to “an appraisal” and it was totally unsupported by the evidence. Accordingly, there was no justification for the motions judge to provide, in paragraph 3 of his order, “unfettered access” for the purpose of an appraisal.

[34] The plain language of these three provisions of the order, without justification, required the defendants to allow an unlimited number of persons, including strangers, authorized by Mrs. Park to enter upon the property, at times that Mrs. Park should authorize and as often as she should authorize, during the day and at night and without prior notice, to remove “any property” that belonged to her or, as the case may be, for the purpose of an appraisal.

[35] These provisions were especially harsh in light of the fact that Mr. Park, one the persons against whom the order was directed, was a part owner of 119 Ernest Ave. and thereby entitled, as an incident of ownership, to peaceful possession.

[36] Each of these decisions by the motions judge, as reflected by paragraphs 1, 2 and 3 of his order, reflects one or more of the errors of law described in paragraphs 29 to 33 and each fails to meet the requisite standard of review, correctness.

Reason #5

[37] The motions judge further erred by failing to provide reasons for his decision that would allow, if required, for a meaningful review on an appeal.

[38] We are, nevertheless, able to adjudicate on this appeal because the errors referred to above involve discreet issues of law or because they are otherwise patent and obvious or both.

[39] This failure by the motions judge, as well, reflects an error of law and fails to meet the requisite standard of review, correctness.

Brief comments on the conduct of counsel

[40] I conclude by offering, in the hope that it may be of value to both counsel and perhaps to others, the following brief comments on the tactical conduct of both counsel which led to the bringing of this appeal

[41] When Ms. Knudsen decided that it might be necessary to arrange for the appointment of a litigation guardian to act for Mrs. Park and that, until that issue got resolved, she could not properly deliver a notice of intention to defend or a statement of defence she ought to have sought Ms. Mouland’s consent to an extension of time for that purpose. If that could not be achieved and Ms. Mouland would not agree to delay noting the defendants in default, she could no longer risk not delivering a statement of defence. Faced with that situation, she ought to have sought an order extending the time. She was not entitled to assume that Ms. Mouland was required to wait endlessly for her while she resolved the issue of Mrs. Park’s capacity.

[42] When Ms. Mouland decided not wait any longer for Ms. Knudsen to deliver a statement of defence and to proceed with a motion for interlocutory relief, she ought not to have presented an order in the form she drafted to Ms. Knudsen and the motions judge.

[43] In retrospect, one can now see how much time, effort, money and court resources were wasted because counsel did not act prudently and exercise good judgment.

[44] These factors may be relevant to our disposition of costs and counsel are invited to respond to these observations in their costs submissions, if any.

Matlow, J.

Heeney, J

Pomerance, J.

Released: July 28, 2011

CITATION: Park v. Park, 2011 ONSC 4234

DIVISIONAL COURT FILE NO.: DC 11-270

DATE: 2011-07-28

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, HEENEY AND POMERANCE JJ.

B E T W E E N :

JAE SUN PARK and KEUN JON PARK Plaintiffs/Respondents

– and –

HAE KYUNG PARK and YOUNG BIN PARK Defendants/Appellants

REASONS FOR JUDGMENT

MATLOW J.

RELEASED: July 28, 2011