Park v. Myong, 2015 ONSC 2287

CITATION: Park v. Myong, 2015 ONSC 2287

DIVISIONAL COURT FILE NO.: 513/14

DATE: 20150414

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JUNG MI PARK

Applicant

AND:

CHARLES MYONG, ADMINISTRATOR WITH WILL ANNEXED

FOR THE ESTATE OF JUNG MYONG and in his personal capacity,

KI TAE MYONG AND ALICE SOONYOUNG MYONG, LIMITED

CO-CONSERVATORS FOR JOHN JE MYONG, ALICE MYONG,

SUSAN MYONG, HYUN SEOK PARK, HYUNG SUN PARK (ALSO

KNOWN AS ELIE PARK), JEANNE KENNEDY AND THE ROYAL

BANK OF CANADA

Respondents

AND

COURT FILE NO.: 05/42-14

IN THE MATTER OF THE ESTATE OF JUNG JA MYONG, deceased

B E T W E E N:

CHARLES MYONG, in his capacity as Administrator with Will Annexed

for the Estate of Jung Ja Myong

Applicant

AND:

JUNG MI PARK, HYUN SEOK PARK, HYUNG SUN PARK (also known

as ELIE PARK), ALICE SOONYOUNG MYONG, SUSAN MYONG and

KI TAE MYONG, in his capacity as limited co-conservator for John Je

Myong

Respondents

BEFORE: LEDERER J.

COUNSEL: Charles B. Ticker, for the Applicant, Jung Mi Park

Brendan Donovan, for the Respondent, Charles Myong, in his capacity as

Administrator with Will Annexed for the Estate of Jung Ja Myong

Sean Lawler, for the Respondent, Jeanne Kennedy

Kelly A. Charlebois, for the Estate Trustee During Litigation, Bank of

Nova Scotia Trust Company

HEARD at Toronto: In Writing

ENDORSEMENT

[1] This is a motion for leave to appeal an order made by Mr. Justice Penny. He stayed the action pending the determination of a related proceeding in the state of California.

[2] Jung Myong is deceased. She died on April 30, 2013. At the time of her death, she lived in California. She was survived by four grown children, all of whom live in the United States. It had been twenty years since she had any contact with any of her children.

[3] Jung Myong made a Will. It was drafted by a lawyer in California. It was prepared there and executed there.

[4] The applicant, Jung Mi Park, is named as the executor of the Will. The applicant lives in Toronto with her daughter, Hyung Sun Park (“Elie”). Her son, Hyun Seok Park (“Ronald”), attends school in the United States. The children are beneficiaries of the estate of the deceased.

[5] The Will noted that the deceased specifically omitted to provide for anyone else, particularly her four children:

I have specifically omitted to provide for any other person(s), namely, SUSAN MYONG, ALICE MYONG, JOHN MYONG and CHARLES MYONG and any of their heirs. I direct that any such person(s) claiming an interest in my state take no part thereof.

[6] The Will does not contain a residue clause.

[7] At the time of her death, there were significant assets held in the name of the deceased both in Canada and in the United States.

[8] In the United States, there was personal property valued at $3,886,753.85(US) and real property in California valued at $315,000 (US).

[9] In Canada, there were two bank accounts in the name of the deceased at the Royal Bank of Canada with values of approximately $75,808.42 and $34,193.99 and a guaranteed investment certificate (GIC) that matured following the death of the deceased on May 21, 2003, with a principal value of $2,500,000(CDN), plus interest of $40,500(CDN). The proceeds were deposited into one of the two bank accounts. There was also real property, in Canada, registered in the name of the deceased: (1) 3063 Ridge Road, Shanty Bay, Ontario purchased in 2006 for $1,500,000(CDN); (2) an interest in a condominium, Suite 2108, Unit 8, Level 12, Emerald Park, Toronto, Ontario purchased in 2010 for $509,000(CDN); and (3) an interest in a condominium, Suite 1009 Tangle 2, Tangle 2 Project, Toronto, Ontario purchased in 2011 for $359,300(CDN).

[10] The Will contains two specific bequests: the first to the son of the applicant (Ronald), being the property at 3036 Ridge Road, Shanty Bay, Ontario; and the second to her daughter (Elie), being a Dominion Securities Account to be held in trust by the applicant until her daughter reaches the age of eighteen. Without reference to any evidence, the factum of the applicant/moving party advises that, at the time of her death, there were no funds in the name of the deceased in any account held by RBC Dominion Securities. There is no mention of such an account in any discussion of her assets.

[11] On January 28, 2013, following the execution of her will and a few months before her death, the deceased purportedly executed a “Declaration of Trust” that reads, as follows:

I confirm that any real property which is registered in my name in Canada and any fund from the selling of those properties should belong to

Ronald (Hyun Seon) Park

And the person he would designate to take at any time.

[Emphasis added]

[12] This document was also drafted in California.

[13] During October 2013, the applicant and the children of the deceased filed a Stipulation and Order in the Superior Court of California admitting the Will of the deceased to probate, appointing the son of the deceased, Charles Myong, as the administrator of the estate of the deceased and confirming the waiver of notice and assignment of interest in the estate of the deceased by Alice Myong, the daughter of the deceased. During January 2014, Charles Myong filed a petition to determine entitlement to estate distribution. This petition specifically raised the absence of any provision in the Will for distribution of the residue of the estate and sought a declaration that the residue pass to the children of the deceased on an intestacy.

[14] The applicant filed a statement of interest in response to the petition, opposing the relief sought. In her statement of interest, the applicant asserted the absence of a residue clause in the Will was an error of the solicitor. The applicant seeks rectification of the Will so as to leave the residue to her. This position is supported by the lawyer who drafted the Will. She has deposed that she received specific instructions from the deceased to name the applicant as the residuary beneficiary of her estate. The lawyer has deposed that she gave instructions to her law clerk to insert the residue clause in the Will of the deceased. It was through inadvertence that the residue clause was left out of the final draft. The lawyer deposed that her notes indicate clearly that the applicant was to be named the residuary beneficiary of the Will.

[15] During March 2014, the applicant commenced an application in Ontario. She seeks a declaration that Charles Myong, the administrator of the estate, hold the assets present in Ontario in trust for her and an order that the Will be rectified by naming her the sole residuary beneficiary. Charles Myong responded by filing a cross-application. He sought a stay of the Ontario application until his petition in California is finally settled or determined.

[16] In September 2014, the applicant commenced proceedings in California against Charles Myong, in his capacity as estate administrator, claiming that the assets of the deceased were all acquired with money of the applicant and were held, by way of contract and resulting constructive trust, for her.

[17] On October 23, 2014, Mr. Justice Penny made the order staying the proceedings which had been commenced in Ontario pending a decision or settlement of “…the petition to determine the entitlement to estate distribution…filed in the Superior Court of the State of California…”. It is this order that Jung Mi Park seeks leave to appeal.

[18] The test on a motion for leave to appeal is well-known. It is found in r. 62.02(4) of the Rules of Civil Procedure. One of two tests, each of which includes two requirements, must be satisfied. Leave to appeal will be granted if there is a conflicting decision and, in the opinion of the judge hearing the motion, it is desirable that leave be granted. In the alternative, leave to appeal will be granted where there is good reason to doubt the correctness of the order and that the proposed appeal involves matters of such importance that, in the opinion of the judge, leave to appeal should be granted.

[19] In this case, neither of the two tests is met.

[20] There are two questions that need to be answered. The first concerns the Will: the intentions of the testator and the identification of the beneficiaries. This is captured by the requests for rectification which should determine who is entitled to the residue of the estate. The second is the ownership of the real estate located in Ontario. This is caught by the assertion of the applicant that the assets in Ontario are being held for her in trust and the concomitant determination of the import of the Declaration of Trust.

[21] One issue follows from the other. If the residue of the estate is found to belong to the applicant, there may be no need to proceed to the second question. There will be no need to rely on the proposition that the deceased purchased the assets with money from and in trust for the applicant. Without a further claim, the property would be hers. Should it transpire that the residue goes to the children of the deceased, there will be a need for a further consideration as to the presence, and effect, of any trust. Should it happen that the children of the applicant are the beneficiaries of the residue, it could be that there will be a need to examine the impact of any trust that may exist. On its face, the Declaration of Trust refers to any Canadian real estate registered in the name of the deceased as belonging to Ronald. It could be he would seek to have its impact clairified. On the other hand, perhaps mother and children will be able to agree and there will be no purpose in going further.

[22] Mr. Justice Penny understood the dichotomy presented by the two questions. In his order, he did not remove every issue from consideration by the courts in Ontario. He stayed the proceedings in Ontario pending a determination of entitlement under the Will:

THIS COURT ORDERS that the within Applications be stayed to be brought back by any party upon 10 days’ notice after the resolution, by court order or settlement, of the petition to determine entitlement to estate distribution in the estate of Jung Ja Myong filed in the Superior Court of the State of California, County of San Bernardino (case no. PROPS 1300555).

[23] Mr. Justice Penny determined that “the rectification issue is the key issue in this litigation”. He noted that the Will was drafted in California. The solicitor who drafted the Will, whose evidence on the rectification issue the judge found would be critical, resides in California. The residuary beneficiaries, on an intestacy, also live there. The Will has been probated in California. The judge concluded that convenience and cost favoured California as the convenient forum.

[24] The judge observed that multiple proceedings had arisen because the applicant now seeks to litigate in Ontario issues which are before the courts in California. “[A]voidance of the cost and inconvenience of multiple proceedings, favours a stay of Ontario proceedings until rectification is decided in the more appropriate forum of California.”

[25] Mr. Justice Penny was concerned that the risk of inconsistent results was “very real in this case”. He concluded that this “favours a stay of Ontario proceedings to enable the rectification issue to proceed to conclusion in California”.

[26] Moreover, the Will made clear that the law governing the rectification issue was California law and that there was no loss of juridical advantage in requiring the applicant to proceed there.

[27] The stay imposed by Mr. Justice Penny applies to the rectification of the Will and an understanding as to the proper beneficiaries, nothing more. What happens after that issue is determined depends upon the finding that is made.

[28] Counsel for the applicant sees the situation differently. As he perceives it, the issues before the court are driven by the question of title to the real estate in Canada. Such actions are, generally, in rem (involving or determining the status of a thing) and not in personam (directed toward a particular person). It follows that proceedings where title is concerned must be dealt with in the jurisdiction where the land is located:

The general rule is that the courts of a country have no jurisdiction to adjudicate on the right and title to lands not situate within its borders. Only the courts of the jurisdiction in which lands are situate, may adjudicate on the rights and title to such lands: Duke et al. v. Andler et al. 1932 32 (SCC), [1932] S.C.R. 734. The rule is not confined to the formalities of transfer of title, but extends to all disputes touching the land, including debt, trust, or tort: see Deschamps v. Miller, [1908] 1 Ch. 856; Purdom etc. v. A.E. Pavey & Co. (1896), 1896 17 (SCC), 26 S.C.R. 412; The British South Africa Company v. The Companhia de Macambique, [ 1893] A.C. 602 (H.L.)

(Tezcan v. Tezcan 1987 157 (BCCA), at p. 4)

[29] It is the position of counsel that, since this one issue must be determined in Ontario, the entire proceeding should be. He submitted that:

…in this case Ontario has exclusive jurisdiction to deal with claims involving the real estate in Ontario. Therefore, the judge should not have considered the issue of convenient forum.

[Emphasis in the original]

[30] In furtherance of this proposition, counsel referred to the following quotation from Club Resorts v. Van Breda 2102 S.C.C. 17, at para. 99:

I should add that it is possible for a case to sound both in contract and in tort or to invoke more than one tort. Would a court be limited to hearing the specific part of the case that can be directly connected with the jurisdiction? Such a rule would breach the principles of fairness and efficiency on which the assumption of jurisdiction is based. The purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency.

[31] As counsel sees it, this confirms his point: if the court assumes jurisdiction over one aspect of a case, the court must assume jurisdiction over all aspects of the case. I do not agree. The quotation needs to be looked at more carefully. It deals with a case where there are two causes of action, tort and contract (“a tort claim in Manitoba and a related claim for restitution in Nova Scotia”) arising from the same set of facts. That is not the case here. The causes of action are different and so are the facts on which the two claims are based. One reflects on the intention of the testator in the preparation and execution of her Will. The other deals with the ownership of land arising from questions concerning a trust that may or may not be in place. The issues of any purported trust arising from the Declaration of Trust (which refers only to “real property which is registered in my name in Canada”) or otherwise will be determined here after the rights under the Will have been dealt with. I say this recognizing that the Declaration of Trust was prepared in California.

[32] The decision of Mr. Justice Penny allows that each issue be tried where it can best be decided. In this regard, it should not be forgotten that, while there is real estate in Ontario, there are also substantial assets in this estate in the United States, including some real estate. The real property in the United States is not affected by the Declaration of Trust and no reason was given or is apparent as to why issues surrounding its ownership should be determined in Ontario. At the same time, the decision made by Mr. Justice Penny requires that one set of proceedings be stayed pending the outcome of the other in the expectation that the breadth of the second may be limited by the decision in the first and, depending on that decision, may not be necessary at all. There is no reason to believe that the court in California will not respect the ruling of this court, that it wishes to maintain jurisdiction over the issue of ownership of the land in Canada or that any subsequent proceeding in Ontario will fail to accept whatever determination is made in California as to rights under the Will.

[33] There is no conflicting decision and no reason to doubt the correctness of the finding made by Mr. Justice Penny.

[34] The motion is dismissed.

[35] No submissions were made as to costs. There is no reason why they should not follow the event. The motion was in writing; counsel did not appear. In the circumstances, costs are awarded to the responding parties in the amount of $750.00.

LEDERER J.

Date: 20150414