Court of Appeal for Ontario
CITATION: Yim v. Song, 2016 ONCA 642
DATE: 20160824
DOCKET: M46733, M46813, (C61980)
Miller J.A. (In Chambers)
BETWEEN
Kyoung Ja Yim, Moonho Yim and 2251363 Ontario Inc. c.o.b. Song Cooks Korean Restaurant-Thornhill
Plaintiffs (Appellants)
and
Chang Bae Song, Koung Ok Lee, 221237 Ontario Inc. c.o.b. Song Cooks Corean Chill and 2302632 Ontario Inc. c.o.b. Sharon Garden
Defendants (Respondents)
Charles C. Chang, for the respondents/moving parties/responding parties on cross-motion
Song Joon Bae, for the appellants/responding parties/moving parties on cross-motion
Heard: August 19, 2016
ENDORSEMENT
[1] The ultimate dispute between these parties has not yet proceeded to trial. Nevertheless, the appellants have already attracted two substantial indemnity costs awards and their poor judgment and unreasonable conduct in this litigation has drawn sharp criticism from motions judges. No amount of judicial shaming seems to have had the least impact, however, and what is now unfolding in this court is more of the same.
[2] The appellants brought an undertaking and refusals motion before Conlan J. They were largely unsuccessful.[^1] They then sought leave to appeal the Conlan order to the Divisional Court, which is the correct path for an interlocutory order. They were once again unsuccessful, with leave being denied by Trimble J.[^2]
[3] They then appealed the denial of leave by Trimble J. to this court.
[4] That appeal is not before me. The general rule is that decisions refusing or granting leave to appeal are not appealable. The appellants’ argument, as I understand it, is that they come within an exception to the general rule because they sought leave to appeal from a final order; Conlan J.’s decision on the undertaking and refusals motion is final and not interlocutory, because in effect it deprives them of a substantial part of their cause of action. They take this position notwithstanding that they treated the Conlan order as an interlocutory order when they sought leave to appeal to the Divisional Court.
[5] The respondents have brought a motion to quash the appeal of the Trimble order. That motion is not before me either, and is scheduled for September 22, 2016. If the respondents are successful on that motion, they will save themselves the expense of filing responding materials and arguing the appeal. Accordingly, they sought the appellants’ consent to extend the time to deliver their responding materials to 60 days following the disposition of their motion to quash the appeal.
[6] The appellants will not agree to this.
[7] The appellants have taken the position that the motion to quash the appeal should be heard together with the appeal, and they have brought a cross-motion seeking that relief. Their reasoning is that in order to defend the motion to quash, they will need to argue the entirety of the appeal in order to demonstrate that the Conlan order disposed a large part of their claim and is a final order. Unless the motion and the appeal are heard together, they say, they will have to argue their appeal twice.
[8] The appellants are misguided and this motion was unnecessary. The procedure to be followed on a motion to quash on jurisdictional grounds is governed by this court’s Practice Direction Concerning Civil Appeals (in force January 1, 2004; updated 2008):
5.2.2 Motions to Quash an Appeal
Motions to quash appeals are heard by a panel of the court. Where the basis for the motion to quash is that the court lacks jurisdiction to hear the appeal, the motion will be scheduled at an early date.
Motions to quash an appeal based on an argument that the appeal is devoid of merit will be heard together with the appeal, since the court will be obliged to consider the merits of the appeal, in any event, in determining the motion.
[9] The basis for the respondents’ motion to quash is that the court lacks jurisdiction. On that basis, the motion is to be scheduled at an early date. That is the end of the matter. It is not relevant, for scheduling purposes, that the appellants intend to defend by arguing the merits. It is unreasonable for the appellants to have forced today’s motion by not consenting to an extension of time to deliver responding materials as sought by the respondents, and by not consenting to schedule the hearing of the appeal until after the disposition of the motion to quash.
Disposition
[10] The motion is granted. The cross-motion is dismissed. An order shall issue: (1) extending the time for the respondents to deliver responding materials to 60 days after the disposition of the motion to quash the appeal, and (2) providing that the hearing of the appeal shall not be scheduled until after the disposition of the motion to quash.
[11] This motion was necessitated by the unreasonable position taken by the appellants. The respondents are entitled to their costs of the motion on a substantial indemnity basis in the amount of $3,250.00 inclusive of disbursements and HST.
“B.W. Miller J.A.”
[^1]: “I do not blame the Plaintiffs for bringing the Motion in the first place. That was not an unreasonable thing to do, albeit framed too broadly and ultimately unsuccessful in nearly every respect. But virtually everything that the Plaintiffs did after the Motion was served and filed was, indeed, unreasonable.” Reasons for Decision on Costs, January 20, 2016, Conlan J., para 17.
[^2]: Their conduct again drew criticism, with Trimble J. remarking that they had “learned nothing and forgotten nothing since they were before Conlan J. Their behaviour needs correcting”: Costs endorsement, April 6, 2016, Trimble J., para.7.