CITATION: Dang v. Anderson, 2016 ONSC 7844
COURT FILE NO.: DC-16-9400ML
DATE: 2016 12 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hong Linh Dang v. Natalie Anderson
BEFORE: LEMAY J
COUNSEL: A. McLennan for the Applicant
R. Lachmansingh for the Respondent
HEARD: In Writing
ENDORSEMENT
[1] Ms. Hong Ling Dang (“the Applicant”) seeks leave to appeal from the decision of Gray J. dated August 25th, 2016 denying the Applicant summary judgment in this case, and directing the Applicant to provide additional production to the Respondent. The Applicant also seeks leave to appeal from the costs Order of Gray J. dated September 15th, 2016. The Respondent opposes this application.
[2] The underlying case concerns the purchase of a house by Ms. Natalie Anderson (“the Respondent”) from the Applicant, as well as various loans and assistance that the Applicant allegedly provided to the Respondent in that transaction. At issue in the action is a promissory note payable to the Applicant for approximately $70,000.00 that the Respondent allegedly signed.
[3] While each party has made various allegations of forgery and other misconduct against the other party, there were two basic issues on the summary judgment motion. First, whether the evidence was sufficient to grant the Applicant judgment on the note. Second, whether the Respondent was entitled to additional production in order to advance her arguments, either on the motion or at trial. The Respondent was successful on both issues. The Applicant seeks leave to appeal.
[4] For the reasons that follow, the application for leave to appeal is dismissed.
Background Facts
a) The Transaction
[5] The transaction in this case involved the purchase of the Applicant’s home by the Respondent. The Respondent has raised a number of complaints in the manner in which the Applicant, and others who were involved with the transaction, handled it. I do not need to resolve these complaints on this motion.
[6] In any event, as part of the transaction, the Respondent signed a Promissory Note on or about March 26th, 2014. Under that note, the Respondent had borrowed $69,000.00 from a lender named Tracey Scimeca, who was known to the Applicant. Under the terms of this note, repayment was required fairly promptly.
[7] The Applicant asserts that there is a second Promissory Note addressing this same debt that contains different terms, that was also signed by the Respondent. The Respondent disputes the validity of this Promissory Note, and alleges that this note was forged.
[8] In any event, the parties agree that the Applicant paid Ms. Scimeca the amounts that owed under the Promissory Note. The Applicant now claims to stand in the shoes of Ms. Scimeca, and seeks to collect on the note. The Respondent does not dispute that she originally owed a sum of money to Ms. Scimeca, which is now owed to the Applicant. However, the Respondent disputes both the amount owed (as she is challenging the bona fides of the Promissory Note that the Applicant presents for payment) and the question of whether she has satisfied the debt by making payments under the Promissory Note.
[9] To that end, the Respondent presented a ledger as part of her material on the summary judgment motion, and claimed that it showed that payments had been made to the Applicant in amounts equivalent to the value of the Promissory Note.
[10] The Applicant disputes these payments, and alleges that the Respondent has forged her signature in the ledger that the Respondent has presented to the Court. In considering this dispute, it is appropriate to turn to the evidence filed on the motion.
b) The Evidence
[11] In terms of whether the second promissory note was validly signed, the Applicant has tendered an Affidavit from Ms. Scimeca. However, the Respondent has alleged that Ms. Scimeca and the Applicant had relationship, including some form of employment relationship.
[12] In terms of the Respondent’s ledger of payments, the Applicant points to two pieces of evidence to support that this ledger was forged. First, the Applicant states that a York Region Police Officer has found that it is likely that the Respondent forged her signature on these ledger entries. However, in the materials that were filed on the appeal, I see no Affidavit from any York Region Police officer.
[13] Second, the Applicant has provided a report from a handwriting expert, a Dr. Atul Singla which states that at least some of the signatures were forged. In response to this report, the Respondent points to the cross-examination of Dr. Singla, and notes that there are numerous issues with both his qualifications and with his report.
[14] In addition, the Respondent states that the Applicant has not disclosed all of her banking records. As a result, the Respondent brought a cross-motion for a further and better Affidavit of Documents.
c) The Motions and Order
[15] The motions were originally supposed to proceed to summary judgment in July of 2016. However, cross-examinations on the Affidavits were ordered. Both motions proceeded before Gray J. on August 25th, 2016.
[16] In a handwritten endorsement later the same day, Gray J. dismissed the Applicant’s summary judgment motion and granted the Respondent’s motion for a further and better Affidavit of Documents. In reaching his decision, Gray J. stated:
In my view, this matter cannot be justly and fairly decided on a motion for summary judgment. The evidence is in marked conflict, and it would not be fair to attempt to decide it without a full hearing at trial, with cross-examination of all witnesses. The lack of an expert report by defendant is not determinative.
Furthermore, I think defendant is entitled to a reasonable opportunity to secure evidence from the plaintiff: see Stever v. Rainbow International Carpet Dyeing & Cleaning Co., 2013 ONSC 4054 (S.C.J); and McLelland v. Farquar Plymouth Chrysler Ltd., 2013 ONSC 1216 (S.C.J). I am persuaded that there are documents the plaintiff has that might assist defendant, and she is entitled to examine the plaintiff for discovery after getting those documents. If she persists in refusing to answer the questions about deposits, it may be necessary to attempt to compel answers.
For these reasons, the motion for summary judgment is dismissed. This is not a case for a mini-trial. Plaintiff is ordered to produce a further and better affidavit of documents, and to attend for an examination for discovery once she has done so. I decline to award costs for the aborted discovery. That can be dealt with as part of the costs of the action in due course.
I will entertain brief written submissions as to costs from each party, not to exceed 3 pages together with a costs outline. Mr. Lachmansingh shall have 5 days and Mr. McLennan an additional 5 days to respond. Mr. Lachmansingh shall have 3 days to respond.
[17] The Applicant is seeking leave to appeal from both of these findings.
[18] I should note that, in 2015, the property in question was sold by the Respondent, and an amount equivalent to the higher promissory note was paid into Court. That amount remains in Court.
Applicable Law and Analysis
[19] Before considering the test for leave to appeal, there is a preliminary matter that I must address. The Respondent quite rightly points out that the Applicant has not filed her leave to appeal materials in a timely way. The Respondent goes on to request that the Application should be dismissed on this basis.
[20] I am not prepared to dismiss this Application because of the Applicant’s delay in filing her materials for the following reasons:
a. Judges have a discretion to determine whether they will extend timelines when they are missed.
b. In this case, the delay was very short, being less than a month. This application itself is being considered by the Court less than four months after the decision being appealed from was rendered.
c. In the Notice of Motion for Leave to Appeal, the Applicant asks for an extension of the time limits if necessary. As a result, dismissing the motion for leave to appeal because there is no separate motion is only going to result in a further motion for an extension of time limits.
d. Given the relatively small amount at stake in this litigation, requiring the parties to clear additional procedural hurdles does not appear to be cost-effective.
e. I do not see any prejudice that the Respondent would suffer if I addressed these issues at this stage.
[21] In the circumstances, therefore, I will consider the Application on its merits. I will now turn to the relevant legal tests and their applicability to this case.
a) The Test for Leave to Appeal
[22] Applications for leave to appeal to the Divisional Court are considered under Rule 62.02 of the Rules of Civil Procedure.
[23] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted. There are two possible branches upon which leave may be granted. If the test is met under either branch, then leave will be granted. However, both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.
[24] Under the first branch, Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).
[25] Under the second branch, Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).
[26] I will consider each of these issues in turn.
b) The Grounds for Leave to Appeal
[27] The Applicant advances somewhere between fifteen (15) and seventeen (17) grounds of appeal, which are set out in both the Notice of Motion and in the Plaintiff’s Factum. The Applicant’s submissions are difficult to follow. However, in reviewing the grounds that are listed, they can be broken down into the following categories:
a. There are conflicting decisions on the issue that Gray J. had to determine.
b. There is good reason to doubt the correctness of Gray J.’s decision.
c. Gray J. did not properly analyze the evidence before him. The Applicant asserts that, had he done so, it would have been clear that the Applicant would have been successful on the motion for summary judgment.
d. Gray J. did not consider or utilize the powers available under Hyrniak v. Mauldin ([2014] 1 S.C.R. 87, 2014 SCC 7) to consider whether there was a more efficient way for the Court to consider the issues in this case.
e. The Respondent should not have been given the opportunity to obtain further documentation from the Applicant, and the Order of Gray J. violates the principles of proportionality on discovery.
f. The costs ordered by Gray J. were excessive and disproportionate. The Costs should also not have been awarded until such time as the merits of the case had been determined.
[28] Ultimately, these grounds of appeal engage both parts of the test for leave to appeal.
c) Rule 62.02(4)(a)
[29] This portion of the analysis can be very briefly dealt with. The Applicant’s argument on this branch of the test is set out, inter alia, at paragraphs 4, 5(a) and 6(a) of the Applicant’s Amended Notice of Motion for Leave to Appeal, which reads as follows:
- The Learned Judge erred in principle in declining to follow and use the powers provided to the Court under Rules 20.04(2.1) and (2.2), to decide if there was a genuine issue for trial, by failing to provide the Plaintiff (Moving Party) with the ability to make submissions regarding procedural remedies short of dismissing the summary judgment motion that would have enabled the Plaintiff (Moving Party) to mitigate any potential prejudice as a result of the arguments by the Defendant (Respondent) that may have been outside the Notion of Motion of the Plaintiff (Moving Party), and by failing to take advantage of the presence of the Detective policemen available to the Court to give evidence of forgery pertaining to the Plaintiff (Moving Party)’s claim and the Defendant (Respondent)’s defence of repayment allegedly evidenced by written acknowledgements purportedly signed by the Plaintiff (Moving Party), but denied.
5.(a) The Learned Judge erred in principle by declining to follow the directions of the Supreme Court of Canada in Hryniak v. Mauldin 2014 SCC 7 (“Hryniak”) in not providing for the continuity in ‘judicial touch’ by remaining active when the motion for summary judgment did not resolve the action.
- (a) The learned Judge erred in law by applying different principles in the exercise of his discretion and not following the principles of Hryniak as espoused by the Ontario Court of Appeal in Read Jones Christoffersen Ltd. v. Neiles Inc. et al 2016 ONCA 321, 130 O.R. (3rd) 792(“Read Jones” at para. [9] encouraging the Superior Court of Justice in Milton to accommodate any request by a party for an expedited hearing on the merits including placing the proceeding on an expedited trial list, if requested, and resulting in a decision conflicting in principle with both Hyrniak and Read Jones.
[30] There are other passages in the Amended Notice of Motion for Leave to Appeal that set out different aspects of the Applicant’s argument. In essence, however, the Applicant is arguing that Gray J.’s decision is in conflict with the approach mandated by the Supreme Court in Hyrniak v. Mauldin, supra. In support of this argument, the Applicant points to the decision of the Ontario Court of Appeal in Read Jones Christoffersen Ltd. V. Neilas Inc. (2016 ONCA 321).
[31] I start with the decision in Read Jones. It is clearly distinguishable on its facts. In Read Jones, the Court of Appeal directed that a matter be returned to the Superior Court of Justice in Milton because there were insufficient reasons. In this case, the reasons for Gray J’s decision on both motions are clear. On the motion for summary judgment, Gray J. was clear that the evidence provided by the parties was in marked conflict and a trial was required to address these conflicts.
[32] On the motion for production, Gray J. noted that the Defendant was entitled to additional documentary production because she was entitled to a reasonable opportunity to secure evidence from the Applicant, and because Gray J. was of the view that the production must assist the Respondent.
[33] This brings me to the question of whether Gray J.’s decision to deny summary judgment and not to provide further directions to the parties is in conflict with the approach that the Supreme Court adopted in Hyrniak, supra. I find that it is not for the following reasons:
a. The evidence, as set out above, clearly indicates that this is a case where credibility is the paramount issue.
b. It is not every case where a focused trial or some other shortened proceeding can be used. Sometimes a full trial is going to be required.
c. Motions judges must consider the facts of each individual case to determine which cases lend themselves to further management and directions and which cases should be left for trial. In doing so, motion judges must consider, inter alia, the stage that the proceeding is at, whether a full trial is required and whether the interests of justice are best served by having the case heard at trial by the judge who heard the summary judgment motion or whether it is best served by having the manner dealt through the Court’s usual processes.
[34] This brings me to the Applicant’s request to set aside the Order for a further and better Affidavit of Documents. In my view, there are no inconsistent decisions on that issue that the Applicant has directed me to. Indeed, the Applicant submits that the balancing of disclosure obligations and proportionality mean that she has disclosed enough evidence. Deciding this issue is a clear exercise of discretion on the part of the judge hearing the motion, and it is unlikely that there would be a decision where the discretion would be exercised differently on exactly the same facts. Therefore, there is no “conflicting decision” that I have been pointed to.
[35] In addition, however, the information that the Respondent seeks includes information on both bank accounts and transactions during the relevant period. For example, there were transfers of funds (including cash payments) into the Applicant’s bank account during the period when the Respondent says that she was paying cash to the Applicant. The Applicant has declined to explain these transactions or produce any further detail about them. It seems obvious to me that additional information on these transactions would be at least arguably relevant.
[36] In this case, it is clear that the action was at an early stage, additional documentation from the Applicant was necessary, and additional examinations (including examinations for discovery) were necessary. As a result, it is not clear that the decision of Gray J. was in conflict with other decisions, and it is not desirable that leave to appeal be granted. This application fails on the first branch of the test.
Rule 62.04(4)(b)
[37] Under this branch of the test, the Applicant must demonstrate both that there is good reason to doubt the correctness of Gray J.’s decision and that there are matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance.
[38] In my view, there is no reason to doubt the correctness of Gray J’s decision on any of the issues that presented themselves to him. On the motion to grant summary judgment, it is clear that there is a dispute over the essential facts in this case. It is equally clear that this dispute can only be resolved by way of an assessment of the credibility of the parties.
[39] In that respect, I note that the evidence that the Applicant has provided to establish that her signature was forged will be challenged on cross-examination. Indeed, it was challenged in the cross-examination of her expert on his Affidavit. I also note that I have no record of any direct evidence from the York Regional Police supporting the Applicant’s claim of fraud. Even if evidence from York Regional Police were admissible, it is not present in this case.
[40] I should note that the Applicant’s materials regularly state that she has made out a prima facie case for fraud on the part of the Respondent. I disagree. The evidence that is before the Court still needs to be weighed and credibility findings still need to be made.
[41] Then, there is the motion for documentary production. Again, there is no good reason to doubt the correctness of Gray J.’s decision on these issues. Indeed, as I have set out at paragraph 34 and 35, I am of the view that Gray J’s decision is correct.
[42] The question of whether the motion raises issues of importance that go beyond this case is not one that I have to decide in this case as the first portion of this branch of the leave to appeal test has not been met.
The Costs Decision
[43] I should also address the issue of the costs decision. In reading the materials filed by the Applicant, it was not clear to me which parts of the test for leave to appeal the Applicant was relying on. In her Amended Notice for Leave to Appeal, the Applicant states at paragraphs 5(b) and 6(b):
The Learned Judge erred in principle in not making a detailed fact specific analysis of all the circumstances not only with respect to events leading up to the Costs Order, but also of those developments giving rise to the defence of the Defendant (Respondent) based on a false premise of relying on prima facie forged signatures of the Plaintiff (Moving Party) and to the lack of proof of any defence which ought to have been recognized as significant cost factors adverse to the Defendant (Respondent), but which were not made.
The Learned Judge erred in principle in not recognizing the costs submissions of the Plaintiff (Moving Party) that costs were awarded without any finding that the Defendant (Respondent) will succeed at trial, particularly with the serious prima facie case of forgery made out against her but not directly responded to, putting the reverse onus on the Plaintiff (Moving Party) to prove a negative, i.e. that she did not receive any cash repayments as alleged, resulting in a cost award conflicting with the principles of Brown v. Hudson’s Bay Company, 2014 ONSC 5079 in which costs in such circumstances as here are considered by the court to be better left in the cause than awarded at this early stage of the proceedings.
[44] I start with the decision in Brown v. Hudson’s Bay Company (2014 ONSC 5079). I have reviewed that case, and have reached two conclusions about it:
a. It is a costs award flowing from a motion for leave to appeal. As a result, it is distinguishable from the case that Gray J. had to decide.
b. Much of the law that Price J. cites in this decision points to the clear conclusion that costs decisions are discretionary. It is very difficult to appeal them.
[45] In addition, the Applicant is relying on this case because it asserts that there is a policy of deferring the determination of costs in summary judgment motions where the motion is “too close to call”. I reject this position for two reasons. First, the judge deciding the motion is the one who must make the determination of whether a case is “too close to call”. Gray J. was clear in his conclusion that this was a credibility case that required a trial. Second, I do not see any evidence that this was a case that was actually “too close to call”.
[46] As a result, the Applicant’s appeal of the costs decision fails on the first branch of the leave to appeal test.
[47] This brings me to the second branch of the leave to appeal test. Given my finding that there is no evidence that this summary judgment motion was a “close call”, I am also not convinced that it is wrong. It must be remembered that costs decisions will attract considerable deference from a reviewing Court. It is only if the decision is plainly wrong, or the motions judge has made an error in principle that a reviewing Court will interfere (see Boucher v. Public Accountants Council (Ontario) (2003) 2004 14579 (ON CA), 71 O.R. (3d) 291 at paragraph 20).
[48] In this case, there is no reason to doubt the correctness of Gray J.’s decision, and given the test for review of costs decisions, it is not desirable that leave to appeal be granted. As a result, the motion for leave to appeal the costs decision of Gray J. fails the second branch of the leave to appeal test.
[49] In the result, the motion for leave to appeal the costs decision of Gray J. is dismissed.
Disposition
[50] The Application for Leave to Appeal is dismissed as the tests under Rule 62.04(4)(a) and (b) are not met.
[51] The Respondent’s costs submissions are due ten (10) calendar days after the release of these reasons, being December 23rd, 2016. They are not to exceed two (2) double-spaced pages, exclusive of a bill of costs and case-law.
[52] The Applicant’s submissions are due on January 6th, 2017. These submissions are also not to exceed two (2) double-spaced pages, exclusive of a bill of costs and case-law
[53] The Applicant is being afforded additional time for her costs submissions to account for the statutory holidays that fall at the end of this month and beginning of next month.
[54] There are to be no reply submissions without leave of the Court. Any extensions to the deadlines for filing submissions require my leave. If I do not hear from the parties, I will presume that they have resolved the issue of costs.
LEMAY J
DATE: December 13, 2016
CITATION: Dang v. Anderson, 2016 ONSC 7844
COURT FILE NO.: DC-16-9400ML
DATE: 2016 12 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hong Linh Dang v. Natalie Anderson
COUNSEL: A. McLennan for the Applicant
R. Lachmansingh for the Respondent
ENDORSEMENT
LEMAY J
DATE: December 13, 2016