Court File and Parties

Newmarket Court File No.: CV-15-122196-00 Date: 20190423 Ontario Superior Court of Justice

Between: Kelvin-Hoi Lam Plaintiff/Defendant by Counterclaim (Responding Party) – and – Hui Juan Chen also known as Hui-Juan Chen Defendant/Plaintiff by Counterclaim (Moving Party)

Counsel: Michael D. Magonet, for the Plaintiff/Defendant by Counterclaim (Responding Party) Alfred J. Esterbauer, for the Defendant/Plaintiff by Counterclaim (Moving Party)

Heard: March 27, 2019

Reasons for Decision

DiTOMASO J.

Introduction

[1] The Defendant/Plaintiff by Counterclaim, Hui Juan Chen also known as Hui-Juan Chen (“Ms. Chen”) brings this motion to set aside or vary my Judgment, dated April 12, 2018 (the “Decision”). The Decision granted summary judgment to the Plaintiff/Defendant by Counterclaim, Kelvin-Hoi Lam (“Mr. Lam”) to require specific performance of an agreement and purchase and sale, dated October 9, 2014 (the “APS”), of a residential property located at 101 Aitken Circle, Markham (the “Aitken Property”).

[2] Ms. Chen does not seek to set aside or vary my Judgment regarding liability where it was found she breached the APS. Rather, Ms. Chen seeks to set aside or vary my Judgment where Mr. Lam was granted the remedy of specific performance and was awarded professional costs thrown away.

The Summary Judgment Motion

[3] The Summary Judgment Motion was heard by me on March 16, 2018 and my Decision was released on April 12, 2018. Lengthy reasons were given. I do not propose to review all my reasons. However, the following is a brief highlight of important findings.

[4] As reflected in the Decision, the Court found that:

(a) there was indeed a binding abatement agreement concluded as between the parties in respect of the sale of the Aitken Property to Mr. Lam which agreement Ms. Chen failed to comply with; and,

(b) Mr. Lam was entitled to an order for the specific performance of that agreement.

[5] With respect to the Court’s finding of a binding abatement agreement, in para. 31 of the Decision, after reviewing its reasons in support thereof, the Court noted as follows:

I find that there exists a written abatement offer communicated by Mr. Tsang to Mr. Lee which was accepted in writing within the specific time frame provided for acceptance. The acceptance was in writing, both by email and fax before noon on December 11, 2014. I find that the Offer was never repudiated, rejected or withdrawn. Ultimately, I find the abatement agreement is in force and effect and therefore enforceable.

[6] With respect to the relief requested by Mr. Lam, and the Court’s finding that he was entitled to an order for the specific performance of the abatement agreement, the court noted as follows:

(a) Mr. Lam was seeking an order for specific performance or, in the alternative, an award of damages by reason of Ms. Chen’s failure to close the transaction;

(b) It accepted Mr. Lam’s evidence that the Property was unique to him on the basis set out, inter alia, in Mr. Lam’s Affidavit;

(c) At para. 36 of the Decision, the court found that:

Ms. Chen has not tendered any evidence at all, calling into question the uniqueness of the Property to Mr. Lam, such as a list or information and particulars of any other suitable properties in the areas that she could maintain would have been available for purchase by Mr. Lam. Further, no evidence has been tendered by Ms. Chen to otherwise call into question Mr. Lam’s evidence in support of his claim for specific performance.

The Present Motion

[7] In this motion, Ms. Chen seeks an order setting aside or varying the Decision by vacating the Judgment for specific performance, and in its place, directing that there be a trial on the issue of remedy, including what damages, if any, Mr. Lam may be entitled to recover and costs.

[8] Ms. Chen maintains that Mr. Lam allegedly misrepresented facts in respect of his evidence on the uniqueness of the Property such that an order for specific performance should not have been granted. In particular, Ms. Chen alleges that Mr. Lam failed to disclose the purchase of another property municipally known as 51 Berkeley Court, to which Mr. Lam took legal title by way of a transfer registered on June 1, 2019 (the “Berkeley Property” or the “Berkeley Transaction”), and further to which Ms. Chen now claims that the Aitken Property was not unique. Also, notwithstanding that the Decision has already issued and that Ms. Chen had counsel who vigorously resisted the Summary Judgment Motion, Ms. Chen is seeking leave to deliver further evidence in respect of the Summary Judgment Motion on the basis that Mr. Lam allegedly “misled the Court” about his inability to find a suitable substitute property.

The Issue

[9] The issue on this motion is whether Mr. Lam knowingly or recklessly made material misrepresentations or failed to disclose relevant information to the learned motion judge, such that the interests of justice require the Decision be set aside or varied.

Positions of the Parties

The Position of the Moving Party, Ms. Chen

[10] Ms. Chen submits Mr. Lam’s evidence on the alleged “uniqueness” of the Aitken Property was not true in numerous respects. Mr. Lam did not disclose that he purchased a substitute property in Unionville on June 1, 2016, in close proximity to his daughter’s residence, being the Berkeley Property. (On a list that Mr. Lam provided to support his claim of his attempts to mitigate, the Berkeley Property was incorrectly described as 52 Berkeley Court).

[11] Ms. Chen also submits the Berkeley Property was closer to his daughter’s residence than was the Aitken Property and has similar or better attributes than those Mr. Lam claimed were important to his decision to purchase the Aitken Property. It is further submitted, Mr. Lam failed to give the Court the true and actual picture of what the living arrangements were regarding Mr. Lam and his family upon the return of the Summary Judgment Motion. It is submitted that he ought to have done so and he deliberately failed to make this disclosure.

[12] As the underpinnings of the judgment for specific performance was Mr. Lam’s evidence, Ms. Chen submits that he misrepresented and/or failed to disclose important facts which bring Mr. Lam’s credibility into question and which infects the basis for the Decision.

[13] Ms. Chen submits that as Mr. Lam misinterpreted the facts to the Court, he should not be allowed to maintain the judgment for specific performance. As he has not been candid in his evidence on material facts, there are credibility concerns and the totality of his evidence is now generally suspect. She submits that Mr. Lam should be sanctioned as a result of his lack of candor and abuse of this Court’s process.

[14] It is submitted that Mr. Lam’s misrepresentations and non-disclosures are also fraudulent, which supports the admissibility of relevant and material evidence that goes to the foundation of the Decision.

The Position of the Responding Party, Mr. Lam

[15] Mr. Lam submits that there is no basis for either the introduction of the “fresh evidence” that Ms. Chen is now seeking to tender or to the setting aside of the Court’s decision in respect of the order for specific performance. As further addressed herein, the “evidence” that Ms. Chen only now seeks leave to introduce does not in any way support the allegation that Mr. Lam misled the court; the said “evidence” was available and could have been tendered to the court prior to the issuance of the Decision (but it was not); and, the so called “fresh evidence” does not, in any event, provide the basis for any setting aside or variation of the Decision.

[16] Mr. Lam submits that Ms. Chen is now simply attempting to bring forward new evidence that was clearly available to her prior to the Decision in order to somehow, without basis, re-establish a broken down case which would only serve to undermine the need for certainty and finality in litigation.

[17] Further, Mr. Lam submits he neither misled nor acted fraudulently. He offers a rational explanation of what transpired after the Aitken Property transaction failed to close. The so-called “fresh evidence” which Ms. Chen’s seeks to adduce changes nothing. He asserts the Decision granting him specific performance is correct, ought to stand and this motion to set aside or vary should be dismissed with costs.

Analysis

Legal Principles

[18] The jurisdiction for a motion to set aside or vary resides in two places, firstly, r. 59.06 (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and secondly, as no formal judgment has been taken out, the motion judge is not functus officio and the judgment can be reversed, set aside or varied as the Court deems appropriate, where to do so is “clearly in the interests of justice.”

[19] The parties agree there is no dispute regarding this court having jurisdiction.

[20] However, by way of illustration, in the circumstances of an appeal, the courts have held a party seeking to re-open an appeal after the appeal decision has been rendered, faces a “high hurdle”. The court will re-open an appeal prior to the entering of an order “sparingly and only where it is clearly in the interests of justice.”

[21] Ms. Chen relies upon r. 59.06(2) (a), which provides:

AMENDING, SETTING ASIDE OR VARYING ORDER

59.06 (2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made…may make a motion in the proceeding for the relief claimed. R.R.O. 1990, Reg. 194, r. 59.06 (2).

Test to Set Aside or Vary a Judgment

[22] The applicable test under r. 59.06(2)(a) involves a consideration of the following factors:

(a) The fraud alleged must be proved on a reasonable balance of probability;

(b) The proved fraud must be material;

(c) The evidence of fraud must not have been known to the moving party at the time of the original proceeding;

(d) The moving party applied reasonable or due diligence at the original hearing. Applying an objective test: what did the moving party know, and what ought the moving party reasonably have known?

(e) The motion to set aside must be bought without delay.

[23] Relief under r. 59.06 is discretionary. The conduct of the moving party is relevant. The central question is whether the moving party has shown that material facts have been newly discovered, which either by themselves or in combination with previously known facts, would provide reason to set aside the earlier decision.

[24] The Courts have considered the meaning of fraud as that term is used in r. 59.06 as follows:

…that fraud is a false representation made either knowingly, or without belief in its truth or else recklessly, careless as to whether it is true or false.

Facts and Findings

Evidence Tendered on Summary Judgment Motion in Support of Specific Performance

[25] In support of Mr. Lam’s Summary Judgment Motion and the matter of his claim for specific performance, he swore an Affidavit on July 7, 2016 that spoke to, inter alia, the unique nature of the Property to him. In this regard, in his Affidavit, Mr. Lam noted as follows:

(a) He sought to purchase the Property to use as his family residence;

(b) The Property is in close proximity to the residence of his daughter and grandson;

(c) His wife is particularly fond of the layout and the backyard which is difficult to find in the area in which the Property is situate;

(d) The Property is in an older district, such that houses are unique with their own characteristics;

(e) The Property is located in the heart of Unionville and within walking distance to historic Main Street Unionville and Too Good Pond Park;

(f) In addition, the Property is located next to 16th Avenue and Kennedy, in close proximity to two High Schools – Pierre Elliot Trudeau High School and Markville Secondary School – in addition to being in close proximity to both Highway 407 and Highway 404;

(g) The Property is a four bedroom home with hardwood finishes for the living room, dining room, office and family room with approximately 3742 square feet, and this is rare for the location;

(h) The Property has an irregular lot size with frontage of approximately 18.01 metres by a depth of approximately 33.68 metres;

(i) The ceiling in the basement at the Property is 8 feet which is not common in the houses in this location;

(j) The house has a second suite in the basement equipped with a bathroom and kitchen. Mr. Lam’s family plan was for his son to move in with Mr. Lam and his wife and to reside in the basement further to which Mr. Lam’s son would assist by contributing to the carrying the costs for the Property.

[26] In the Decision, commencing at page 17 and following, I dealt with the issue of specific performance and recoverable costs. I considered and accepted Mr. Lam’s evidence that the Aitken Property was indeed unique to him and could not be replaced by a similar property.

[27] I further found Mr. Lam’s Affidavit evidence and referenced above was uncontroverted and was in no way called into question on Ms. Lam’s cross-examination. To the contrary, on his cross-examination, Mr. Lam further testified:

(a) He was renting a home, where he still resides, prior to entering into the Agreement. Mr. Lam and his wife were looking for a property to put an offer on in the Unionville area, where the Property is located, because Mr. Lam and his wife wanted to be close to their daughter and grandchildren who Mr. Lam’s wife wished to babysit. Mr. Lam’s family goal was to live close with their daughter and the Property is the only property that they put an offer on at the time.

(b) Mr. Lam has only owned two houses over the years (i.e., he has not been involved in purchasing homes for resale or commercial purposes).

(c) The reasons for Mr. Lam to purchase the Property are indeed as set out in the preceding paragraph.

[28] Mr. Lam provided further affidavit evidence that was also uncontroverted, and which I accepted, that he searched the market for a property similar to the Aitken Property, but had been unable to find any such property. Consistent therewith, on his cross-examination, Mr. Lam testified that:

(a) he and his wife have considered some 20 other potential houses in the same area and there has been nothing suitable available as these other properties were either too small, too far a distance from his daughter’s residence, or the price was outrageously ridiculous; and

(b) Mr Lam actually put an offer on one house just at the end of the street on which the Property is located at 5 Dalecroft Circle which offer was unsuccessful and he was outbid.

[29] At paragraph 35 of the Decision, I found:

By way of undertaking, Mr. Lam has also provided a list of 21 properties that he and his wife looked at as part of their efforts to secure a suitable replacement property, as well as a copy of the deposit cheque issued in respect of Mr. Lam’s offer on 5 Dalecroft Circle property. That offer was unsuccessful as Mr. Lam was outbid.

[30] At paragraph 36 of the Decision, I also found:

I find Ms. Chen has not tendered any evidence at all, calling into question the uniqueness of the Property to Mr. Lam, such as a list or information and particulars of any other suitable properties in the areas that she could maintain would have been available for purchase by Mr. Lam. Further, no evidence has been tendered by Ms. Chen to otherwise call into question Mr. Lam’s evidence in support of his claim for specific performance.

[31] I went on to find that Mr. Lam incurred professional costs thrown away in the amount of $6,367.30.

Allegation that Mr. Lam Misled the Court or Committed Fraud

[32] Subsequent to the Decision, Ms. Chen filed an Affidavit sworn by her solicitor, David Goodman, further to which Ms. Chen now maintains that she is somehow entitled to have the Decision set aside or varied on the basis that “Lam has not been candid about his alleged inability to find a substitute property” as he “did not disclose that he had purchased 51 Berkeley Court, Markham, on June 1, 2016, for a price of $1,638,000”.

[33] In Ms. Chen’s Factum, dated November 27, 2018, at pages 15 to 17 inclusive, under the heading of “Fraud”, counsel for Ms. Chen provides the foundation of Mr. Lam’s alleged misrepresentations intended to secure an award of specific performance, as follows:

50. [Mr.] Lam gave inaccurate and incomplete evidence in respect of the SJ Motion, the most egregious of which was his failure to disclose his purchase of the Berkeley Property on June 1, 2016. By failing to disclose this purchase of a suitable replacement property, or even include it in the list of viewed properties, his evidence on the SJ Motion is entirely suspect.

51. Notable features of the Berkeley Property include its proximity to his daughter’s house at 62 Woodman’s Chart. It is, in fact, closer to the Woodman’s Property than the Aitken Property.

52. The Berkeley Property is also designated as [Mr.] Lam’s matrimonial home with his wife, despite [Mr.] Lam’s bald assertion that he purchased the home for his daughter.

53. While it was [Mr.] Lam’s intention to use the basement suite in the Aitken Property for his son, [Mr.] Lam disclosed on cross-examination for the herein motion that he implemented a different arrangement for his son and daughter: he helped his daughter purchase the Berkeley Property in exchange for his son’s family being allowed to live rent-free at the Woodman’s Property.

54. Notably, [Mr.] Lam asserts on this motion that his son intended to move in to the Aitken Property to “assist in contributing to the carrying costs”, which was among the relevant factors adduced as evidence of the Aitken Property’s “uniqueness.” Yet, by [Mr.] Lam’s own admission, his son has been living rent-free since August 2016 in the Woodman’s Property and would not need to reside in the basement of the Aitken Property.

55. In addition to the Berkeley Property, [Mr.] Lam failed to disclose that he had previously owned his current rental home at 83 Fairway Heights Drive, which he sold to Wentou Li on December 27,2013 for $2,388,888.

56. [Mr.] Lam’s evidence was that he only owned two houses, and that “he has not been involved in purchasing homes for resale or commercial purposes.” These statements were clearly misleading given that, in addition to the Goldring Property, which he disclosed owning, [Mr.] Lam purchased and owns 6 condominium properties, one of which is listed as the business address for one of [Mr.] Lam’s companies.

57. Moreover, [Mr.] Lam gave evidence on the SJ Motion that he only put in one offer on a house, the Dalecroft Property, which was “smaller in size” than the Aitken Property. [Mr.] Lam’s offer was purportedly “outbid”, even though he advanced an offer for “full asking price.” Curiously, the property was transferred on July 29, 2015 to another purchaser for $2,000.00 under asking.

58. By not disclosing his purchase of the Berkeley Property, or the state of his other assets, [Mr.] Lam’s credibility is entirely suspect, as he made inaccurate and incomplete statements knowingly or recklessly, without regard to their truth. These misrepresentations were clearly intended to bolster his position on the “unique” nature of the Aitken Property to secure an award of specific performance.

Ms. Chen’s “Fresh Evidence”

[34] Ms. Chen now seeks to introduce so-called “fresh evidence” relating to the failure by Mr. Lam to disclose the purchase of the Berkeley Property, the ownership of his other real estate assets, his being outbid on the Dalecroft Property, and his search for an alternate suitable substitute property. The purpose and focus of this evidence is to establish that Mr. Lam has not been candid in his evidence on material facts, that there are credibility concerns and the totality of his evidence is now generally suspect, all of which ultimately infects the basis of the decision.

[35] I advised counsel that I would consider the evidence which Ms. Chen sought to proffer on this motion. I wanted to consider the “full picture” that her counsel argues I should have had before me on the Summary Judgment Motion and that if I had said information available then, it would have been material to the issue of uniqueness and my ultimate decision.

[36] For the following reasons, I find that so-called “fresh evidence” does not support Ms. Chen’s claim that Mr. Lam misled the court or otherwise committed fraud. The evidence proffered now by Ms. Chen would have made no difference whatsoever to my ultimate finding and granting the remedy of specific performance to Mr. Lam.

[37] On this motion, Ms. Chen relies upon Mr. Goodman’s affidavit, sworn June 18, 2018, and the exhibits attached thereto.

[38] Ms. Chen seeks to introduce the following evidence:

(a) The property parcel register for the Berkeley Property, together with three related instruments, being a transfer registered June 1, 2016, a charge registered against title to the said property on June 1, 2016, and an application also registered the same date (collectively the “Berkeley June 1, 2016 Instruments”); and,

(b) A number of parcel registers and related instruments – all also publicly available and registered well prior to Ms. Chen’s cross-examination of Mr. Lam, the delivery of Ms. Chen’s motion materials, and the hearing of the Summary Judgment Motion on March 16, 2018 – with respect to the two houses identified as being previously owned by Mr. Lam (68 Goldring Crescent and 83 Fairway Heights Drive), the condo office premises for Mr. Lam’s company, ONS Ontario Nursing Services Limited (80 Acadia Avenue, Suite 201), and a residential condominium that Mr. Lam and his wife have never lived in registered in Mr. Lam’s wife’s name and rented out to a residential tenant (88 Times Avenue, Unit 1012). For ease of reference, this “evidence” will be hereinafter referred to collectively as the “Other Instruments”.

[39] In addition, the following is noted in respect of the “fresh evidence”:

(a) The information set out in the Goodman Affidavit regarding the properties referenced, including the registered owners of the said properties and the history of transfers and the like, all relate to publicly available information that was easily accessible to Ms. Chen well before she delivered her responding motion materials, and well before she cross-examined Mr. Lam on September 27, 2017, in connection with the Summary Judgment Motion.

(b) Notwithstanding this, none of this information that Ms. Chen is now seeking to put before the Court was introduced into evidence by her in the context of the Summary Judgment Motion. Ms. Chen had every opportunity to do this in responding to the motion had she, acting with counsel, been so inclined. In other words, Ms. Chen, in moving to set aside the Decision on the basis of this “fresh evidence”, is now seeking to resurrect what she knew or ought to have known prior to the issuance of the Decision. Accordingly, as the evidence in question could have easily been discovered by reasonable diligence before the Decision was issued, it is Mr. Lam’s position that no leave should be granted as requested by Ms. Chen.

The Berkeley Transaction and the Absence of Materiality to the Decision

[40] On this motion, Mr. Lam delivered his Affidavit together with exhibits, sworn August 1, 2018.

[41] In Yan v. Nadarajah, 2015 ONSC 7614, at para. 49, Vallee J. states the test regarding specific performance:

The plaintiffs state that in order to succeed a claim for specific performance, they must show that the property is unique in that it has a quality that cannot be readily duplicated elsewhere. The time to determine whether a property is unique is the date on which the breach takes place. Here, it would be on the date that the defendants refused to close the transaction. (see John Dodge Holdings Ltd. v. 805062 Ontario Ltd., 56 O.R. (3d) 341 pars 39 and 40). A vendor can challenge the presumption of uniqueness of real property by providing evidence that the property can be replaced for the purchaser’s purposes. (see 904060 Ontario Ltd. v. 529566 Ontario Ltd., [1999] O.J. No. 355 par 14). [Emphasis mine]

[42] I found the date of the breach in this case was December 11, 2014, which date is not contested on this motion. Mr. Lam provided a rational explanation, which I accept, as to why the living arrangement for the Lam family changed after the date of the breach of contract. I accept Mr. Lam’s explanation as set out in Mr. Lam’s Factum at paras. 25 and 26, as follows:

25. Unfortunately, as a result of the Defendant’s failure to comply with the agreement that had been reached and to allow for the Plaintiff’s purchase of the Aitken Property to proceed, the Plaintiff and his wife were unable to move into this property as planned, and alternate arrangements were made to allow for the Plaintiff’s family remembers (sic) to live close to each other. In this regard, the Plaintiff’s daughter, Wendy, and her husband, Danny Lau, were interested in the Berkeley Property, which they could not afford to purchase on their own, and the Plaintiff agreed to buy this property for them. Further, after Wendy moved into the Berkeley Property with her family, the Plaintiff’s son moved with his family into the Woodman’s Chart property, where Wendy had previously been residing with her family. In other words, while the Plaintiff is registered on title as the owner of the Berkeley Property, the Plaintiff has always thought of same and treated his property as his daughter’s property. That is why, in response to the question put to the Plaintiff on his cross-examination as to whether he had put an offer in on a property aside from the Dalecroft Drive property (which the Plaintiff and his wife looked to purchase for their own use), the Plaintiff did not reference the Berkeley Property.

26. Consistent with the fact that the evidence that [the] Plaintiff provided in support of the SJ Motion (with which the Defendant now takes issue) was entirely truthful to the Plaintiff’s understanding, and reflective of the fact that the Berkeley Property is, for all intents and purposes, the Plaintiff’s daughter’s property, the following is also to be noted:

(a) The Plaintiff and his wife have never resided at the Berkeley Property since the property was transferred on June 1, 2016. On the contrary, the Plaintiff and his wife have continued to reside at the property that they rent (and which they formerly owned) at 83 Fairway Heights Drive, and this has continued to remain the case from the June 1, 2016 transfer date to the present. The evidence that the Plaintiff provided in support of the SJ Motion on his cross-examination (as referenced in the Goodman Affidavit) is entirely accurate and consistent with this.

(b) The Plaintiff’s daughter, Wendy, together with her husband and children, moved into the Berkeley Property following the transfer of same in June 2016. Further, Wendy has resided at the Berkeley Property with her family since that time.

(c) In further support of the above, the Plaintiff has also produced various documents (i.e., miscellaneous bills and statements) directed by third parties to Wendy and her husband, Danny Lau, at the Berkeley Property (and going as far back as July 2016) in respect of various charges incurred on their account such as for dental charges, cellular mobility charges etc.

(d) In taking registered title to the Berkeley Property in his name, the Plaintiff did so given that he funded the down payment and signed on for the mortgage registered on this property, and in order to protect his daughter’s interest in the event that matrimonial issues might surface with her husband.

[43] Apart from the above, I find there is no basis to the assertion made by Ms. Chen that the Berkeley Property would have been a suitable alternate property in the place of the Aitken Property. While the Berkeley Property is indeed in close proximity to the Aitken Property, it has some fundamental differences with the Aitken Property. As a result, Mr. Lam and his wife had no interest in acquiring the Berkeley Property as their residence. Among other things, Mr. Lam and his wife did not find the Berkeley Property to be suitable for their own residence as they felt that it was in a noisy area much too close to busy Kennedy Road and in close proximity to railroad tracks frequently used, issues which Wendy did not find objectionable but Mr. Lam and his wife did.

[44] I accept Mr. Lam’s evidence on his cross-examination on his Affidavit, held August 1, 2018, that the Berkeley Property is located right next to Kennedy Road and backs onto the GO railway line. The first train stars at 5:00 a.m. and the engineer sounds his horn every time the train goes by. The intention is to extend train travel to almost midnight through to Stouffville.

[45] I reject the submission on behalf of Ms. Chen that non-disclosure of the 51 Berkeley purchase of Mr. Lam on the Summary Judgment Motion amounted to misleading the court or fraud on his part.

The Other Properties and the Absence of Materiality to the Decision

[46] As noted in the Goodman Affidavit, reference is also made to a number of other properties also which I find have no relevance to and offer no support for any basis to set aside the Decision. In this regard, I refer to the “Other Instruments” and the related “fresh evidence” tendered, set out at Mr. Lam’s Factum at para. 28:

(a) 83 Fairway Heights Drive – the Plaintiff specifically referred to this property as being the rental property where he resided at the time of his cross-examination (and at present), and this is correct. The Plaintiff and his wife did formerly own this property and it is one of only two single family houses that the Plaintiff has ever owned. As noted, this property was acquired on August 11, 2009, following which same was sold in December 2013.

(b) 68 Goldring Crescent – This property was the one other family home that the Plaintiff and his wife had acquired (in August 1999), and where they resided before we (sic) moved into the 83 Fairway Heights Drive property.

(c) 80 Acadia Avenue, Suite 201 – This is an office condominium unit that the Plaintiff acquired sole title to in January 2000, which the Plaintiff transferred to his wife that same year. It is used as the office for the Plaintiff’s company, ONS Ontario Nursing Services Limited.

(d) 88 Times Avenue, Unit 2012 – This is a residential condominium unit that the Plaintiff’s wife, Rosemary, acquired back in 2006, and which she rents out. The Plaintiff and his wife have never lived at this property.

[47] I find that, as in the case with the “fresh evidence” tendered in connection with the Berkeley property, all of the information set out in respect of these properties, as reflected in the Goodman Affidavit, including the transfers of title and the registered owners of the said properties was publicly available well before motion materials were exchanged in respect of the Summary Judgment Motion and the issuance of the Decision. Further, I find such “evidence”, in any event, is entirely immaterial as same has no relevance to and does not in any way serve to support any basis to set aside the Decision.

[48] In the face of the position alleged by Ms. Chen that, somehow, proper disclosure was not made by Mr. Lam, with which issue is indeed taken, Mr. Lam has also disclosed that he owns two residential condominium properties in Toronto, and a third condominium jointly with his wife, which are rented out and at which Mr. Lam and his wife have never resided. It is Mr. Lam’s position that these tenanted properties acquired over a number of years prior to this action are also entirely irrelevant to this action. I agree.

[49] Further, I accept Mr. Lam’s evidence about his continued search for a substitute property. I accept his evidence that before and after the Dalecroft offer failed, the search continued. The fact remains that Mr. Lam was outbid by $2,000 on the Dalecroft Property. This fact does not affect the ultimate decision. I accept that both Mr. Lam and his wife continued their search for a substitute property.

[50] Also, the fact still remains that Mr. Lam and his wife only owned two houses. I find all of the other properties owned by him, his wife or a corporate entity are immaterial and have no bearing on the uniqueness of the Aitken Property as of December 11, 2014.

[51] On this motion, Mr. Goodman was cross-examined on his Affidavit. I accept that the so-called “fresh evidence” was already available to Ms. Chen well before the Summary Judgment Motion was launched and the Decision was issued.

[52] I find Mr. Goodman could have exercised due diligence by conducting a Tereview or Teranet search on Mr. Lam to see what properties were registered in his name or in the names of his family members. In this case, Ms. Chen was not relieved of her responsibility to perform due diligence particularly where there existed allegations of fraud and allegations that the court had been deliberately misled.

[53] All the parcel registrations that Ms. Chen made as exhibits to the Goodman Affidavit were available as a matter of public record (but were not accessed) prior to Mr. Lam’s cross-examination on September 27, 2017.

Setting Aside or Varying Orders - Fraud

[54] In exercising its discretion to re-open a trial before the entry of judgment, the following principles are derived from the cases:

1. Until judgment has been entered, a trial judge has a discretion to reopen the trial and hear fresh evidence.

2. In exercising such discretion the judge should be guided by the twofold test: that the evidence would probably have changed the result at trial and it could not have been discovered by reasonable diligence.

3. Where justice demands it and particularly where fraud is involved or the court may have been deliberately misled, a judge is justified in departing from the diligence requirement in order to prevent a miscarriage of justice.

4. The power should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof.

5. Once a litigant has obtained a judgment, he is entitled not to be deprived of it without very solid grounds.

[55] A motion to set aside a judgment for fraud is subject to, inter alia, the following principles:

(a) Fraud must be proved on a reasonable balance of probability;

(b) The fraud must be material – go to the foundation of the case;

(c) The fraud must not have been known a the time of the trial;

(d) The moving party’s conduct is relevant; and,

(e) The new facts must provide a reason to set aside the judgment.

Balanced against the court’s right to remedy abuses in appropriate circumstances is the public and private interest in there being certainty and finality in litigation. It is generally not open to a litigant in moving to set aside a judgment to resurrect what it knew or ought to have known prior to the issuance of the judgment.

[56] The mere possibility of fraud does not necessarily outweigh the need for finality. As noted by the Court in Pajelle Invts. Ltd. v. Guaranty Trust Co., (1977), 3 C.P.C. 221 (Ont. H.C.), where a possible explanation of the evidence with which the moving party took issue was given, the Court held that it is not appropriate to set aside the subject decision. The Court found that in the absence of precise evidence of fraud, the defendant should not have the opportunity to investigate certain issues that they had failed to earlier investigate.

[57] In our case, I find that in the exercise of my discretion, the evidence that Ms. Chen now seeks to proffer on this motion would not have changed the result of the Summary Judgment Motion Judgment and this evidence could have been discovered by due diligence.

[58] I find this evidence does not establish that the court was misled by Mr. Lam or that his conduct amounted to fraud in any way. I accept the principles set out in Qit Fer et Titane Inc. v. Upper Lakes Shipping Ltd., 3 O.R. (3d) 165, and in particular, those principles set out at paragraphs 16 and 17 of that decision.

[59] I accept the rational explanation given by Mr. Lam as to how the living arrangements changed after December 11, 2014, including the purchase of the Berkeley Property on June 1, 2016. The purchase of the Berkeley Property by Mr. Lam and its ultimate disclosure does not alter my findings regarding the uniqueness of the Aitken Property on the date of the breach or whether such disclosure would have altered my uniqueness analysis.

[60] In the court’s decision in Mazumder v. Bell Canada, 2007 CarswellOnt 1220 (C.A.), the Plaintiff’s r. 59.06 motion for an order setting aside summary judgment in favour of the defendants on the basis of fraud was refused. As noted by the court, even if one or more of the affidavits before the judge contained incorrect statements, there was no evidence that any affiants deliberately perpetrated a fraud on the court by knowingly swearing to false statements or by acting recklessly in swearing to allegedly false statements.

[61] On a further review of the evidence given by Mr. Lam through his affidavits, and on his cross-examination, and upon review of the Goodman Affidavit, exhibits and his evidence on cross-examination, I find there is no evidence that Mr. Lam perpetrated a fraud on the court by knowingly swearing false statements or by acting recklessly in swearing allegedly false statements.

[62] Before a judgment will be set aside on the grounds of fraud by perjured evidence, the evidence must be shown to have been material to the court’s decision. Fraud should clearly be made out and it should undoubtedly be at the foundation of the decision which is being attacked.

[63] As I have previously found, the evidence now proffered by Ms. Chen on this motion is not material to the court’s decision. I have given my reasons for such a finding. Further, in our case, Ms. Chen has not satisfied this court that fraud has been clearly made out and that it should undoubtedly go to the foundation of the Decision being attacked.

[64] On a motion to set aside summary judgment based on fresh evidence, it must be shown that the new evidence,

(a) Has an important influence on the decision of whether or not there is a triable issue;

(b) Is apparently credible; and,

(c) The fresh evidence could not have been obtained by reasonable diligence before summary judgment.

[65] In our case, I find that Ms. Chen’s “new evidence”, while apparently credible, does not have an important influence on the Decision of whether or not there is a triable issue. The fresh evidence could have been obtained by reasonable diligence before summary judgment. Said evidence was a matter of public record and available through a Tereview or Teranet search.

Conclusion

[66] For these reasons, I am not persuaded that Mr. Lam knowingly or recklessly made material misrepresentations or failed to disclose relevant information to the motion judge, such that the interests of justice require the Decision to be set aside or varied. Accordingly, this motion is dismissed.

Costs

[67] The parties have agreed that costs will be determined by way of written submissions. Within 10 days of the receipt of these reasons, counsel for Mr. Lam shall serve and file with my judicial assistant at Barrie, a concise 2 page summary of position in respect of costs, together with a costs outline and draft bill of costs and any relevant authorities. Counsel for Ms. Chen shall thereafter serve and file the same materials within the following 10 days. Thereafter, if required, counsel for Mr. Lam will serve and file any reply materials within the next 5 days.

Mr. Justice G.P. DiTomaso

Released: April 23, 2019