Court of Appeal for Ontario

Date: December 4, 2017 Docket: C63610 Judges: Pardu, Trotter and Paciocco JJ.A.

Between

Yao Wei Li, William Li also known as Fee Liann Li, Charles Li also known as Fee Sang Li, Lily Li also known as Fee Lee Chen and Linda Li also known as Fee Thao Linda Li

Plaintiffs (Respondents)

and

Yao Chao Li also known as Yao Chao Lee

Defendant (Appellant)

Counsel

For the appellant: Shawna Sosnovich and Christopher Statham

For the respondents: H. David Marks, Q.C. and Corey Bergstein

Heard: November 15, 2017

On appeal from: The order of Justice Frederick Myers of the Superior Court of Justice, dated March 10, 2017.

Reasons for Decision

[1] This is an appeal from the dismissal of a motion for summary judgment brought by the appellants, as defendants in the action. The appellant had sought to end an action on the basis of a previously dismissed lawsuit brought by the respondent against the appellant in India relating to the same cause of action.

[2] The appellant invoked the doctrines of res judicata and abuse of process in aid of the summary judgment motion, but relied primarily on a provision of the Indian Civil Procedure Code, Order 23, Rule 1(4), that provides a substantive right to prevent attempts at relitigating claims that are dismissed as abandoned, without the leave of an Indian court. The parties agreed that this Indian law applied, and that leave had not been obtained in this case.

[3] The motion judge denied the motion, disposing finally of the res judicata and abuse of process defences and ordering that the matter be relisted for trial. The key factor in each of the motion judge's rulings was that the respondent had never been served in the Indian action, and no disposition had ever been made on the merits of the respondent's claim. These facts drove each of the motion judge's rulings.

[4] We dismiss the appeal. The appellant has not demonstrated that the motion judge erred in his treatment of Order 23, Rule 1(4). The onus was on the appellant to establish the foreign rule of law it sought to rely upon. The motion judge was not satisfied on the expert evidence presented by the appellant that Indian Order 23, Rule 1(4) applied. He preferred and accepted the view of the respondent's expert's interpretation of an Indian decision, Dalmia Cement (Bharat) v Uthandi alias Peria Uthandi AIR 2005 MAD 457, holding that Order 23, Rule 1(4) does not operate where a suit is "dismissed as not pressed" before the opposing party has been served. In the absence of evidence establishing the meaning of the term "dismissed as not pressed", the motion judge was not persuaded that the respondent's suit would be caught by the rule, given that the appellant had never been served. On the basis of the evidence before the motion judge, we find no error in that determination.

[5] Nor is there any basis for finding that the motion judge erred in not applying the doctrines of res judicata or abuse of process. As indicated, the Indian lawsuit terminated without the appellant ever having been served with the action. The motion judge made no error in finding that the Ontario suit would not involve relitigation, or an abuse of Ontario's civil processes.

[6] The appeal is dismissed with costs to the respondent in the amount of $15,601.46, inclusive of disbursements and HST.

"G. Pardu J.A."

"G. Trotter J.A."

"David M. Paciocco J.A."