Ontario (Attorney General) v. Zhou, 2009 ONCA 585

CITATION: Ontario (Attorney General) v. Zhou, 2009 ONCA 585

DATE: 20090723

DOCKET: C49600

COURT OF APPEAL FOR ONTARIO

Feldman, Juriansz and Epstein JJ.A.

BETWEEN:

Attorney General of Ontario

Applicant (Respondent)

And

62 Bradley Road, Markham; 41 Duxford Crescent, Markham; 49 Longbow Square, Scarborough; $50 in Canadian Currency and $1851 in U.S. Currency; Contents of Bank of Montreal Accounts 39753216-322 and 39753220-962; Contents of HSBC Bank Canada Accounts 012-063207-150, 012-063207-159, 012-074721-150, 112-340644-260, 152-007016-250, 152-007016-290 and 152-007016-210; Contents of Canadian Imperial Bank of Commerce Account 04612-87-35336; Contents of Bank of Nova Scotia Account 284720191; Contents of Royal Bank of Canada account 517-084-0; Contents of td Canada Trust Account 374-595792 (in rem); Chao Yun Zhou (also known as Chow Yun Zhou and Yun Chou Zhou); Yuan Ying Huang (also known as Yuang Ying); Sat Mui Voong (also known as Mui Sat Voong and Sat Mui Yoong Sau); Bank of Montreal and Royal Bank of Canada

Respondents (Appellants)

APPLICATION UNDER Civil Remedies Act, 2001, S.O. 2001, c. 28.

William Naylor, for the appellants

Rosalyn Train, for the respondent

Heard: July 15, 2009

On appeal from the judgment of Justice Rose Boyko of the Superior Court of Justice dated September 25, 2008.

ENDORSEMENT

[1] On September 25, 2008 Boyko J. dismissed the appellant’s motion under r. 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to set aside two forfeiture orders made by Fuerst J. on May 26, 2008.

[2] The matter commenced as an application by the respondent, the Attorney General of Ontario under the Civil Remedies Act, 2001 for an order to forfeit certain items of real and personal property to the Crown in right of Ontario as the proceeds, or the instruments, or both, of the unlawful activities of producing and trafficking in marijuana.

[3] On April 8, 2003 the respondent obtained preservation orders, pursuant to s. 4 of the Act, with respect to the appellants’ two residences and various bank accounts. The respondent took no further steps in the proceeding until January 15, 2005 when it brought an application for forfeiture, returnable March 31, 2005.

[4] Thereafter, for approximately three years, the parties discussed settlement. On January 31, 2008, the litigation resumed with the respondent’s serving a notice of return of the application for forfeiture. The return date was March 12, 2008.

[5] The appellants, through counsel, Mr. Naylor, who represented them throughout, requested an adjournment in order to obtain documentation they believed relevant to their response to the respondent’s application. Before Del Frate J., the parties agreed to an adjournment on terms that involved a strict timetable peremptory to the appellants. Specifically, the order included a term to the effect that if preparation for the application was not complete prior to April 30, 2008, the forfeiture orders, as requested, would be granted to the respondent on that day.

[6] On April 30, 2008, counsel for all parties appeared before the application judge, Fuerst J. Counsel for the appellants presented no evidence but orally advised that he was still having difficulty obtaining the necessary bank documentation. The application judge noted the specific wording of the order of Del Frate J., refused the appellants’ request for an adjournment and advised that she would grant the default orders.

[7] However, the application judge told counsel for the appellants that she would be available the next day to hear any application that counsel for the appellants may be instructed to bring seeking an extension of the timelines set out in the order of Del Frate J. The application judge and counsel for the respondent then waited a month, until May 26, 2008, before having the orders signed, issued and entered, thereby effectively giving the appellants an additional month to organize their material to reinstate their position in order to be able to defend the application for forfeiture on the merits.

[8] What followed the formal orders of Fuerst J. were further offers from counsel for the respondent to cooperate with counsel for the appellants with a view to allowing the matter to be heard on the merits. Several times, respondent’s counsel advised appellants’ counsel of the pending expiry of the appeal period from the order of Fuerst J.

[9] On June 26, 2008, the day after the appeal period expired, appellants’ counsel provided his clients’ unsigned copy of an affidavit, without exhibits, and advised the respondent that he would bring a motion before Fuerst J. to set aside the forfeiture orders. Again, the appellants took no further steps, notwithstanding numerous overtures from the respondent asking for dates for the motion and ultimately granting more accommodation when eviction proceedings commenced in early September of 2008.

[10] On September 15, 2008, the appellants brought their motion before Boyko J. to set aside the orders of Fuerst J. In their notice of motion, the appellants submitted that they defaulted in responding to the timelines set by Del Frate J. through no fault of their own, since they had not received the documentation necessary to complete their disclosure.

[11] Boyko J. noted that the appellants missed the appeal period from the forfeiture orders and failed to provide credible evidence explaining the delay. She held that there were no grounds to set aside the orders and dismissed the motion.

[12] We see no reason to interfere with the motion judge’s dismissal of the appellants’ motion to set aside the order of Fuerst J. under rule 59.06.

[13] We agree with the motion judge that that rule does not obtain in the circumstances here. That provision provides the following:

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

(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;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[14] In these circumstances, the appellants’ assertion that they had not received the documentation they felt they needed to respond to the forfeiture application does not qualify as “facts arising or discovered” after the order of Fuerst J. was made. We note that there was no affidavit filed at any point, including as proposed fresh evidence before this court, regarding the dates and substance of any efforts to obtain the bank documents. It follows that none of the sub-clauses in 59.06(2) are engaged.

[15] The appeal is accordingly dismissed. Counsel advised that neither party is seeking costs. Accordingly, there will be no order as to costs.

“K. Feldman J.A.”

“R.G. Juriansz J.A.”

“G.J. Epstein J.A.”