COURT OF APPEAL FOR ONTARIO

CITATION: Chong v. Chong, 2025 ONCA 126

DATE: 20250219

DOCKET: COA-24-CV-0625

Pepall, Paciocco and Sossin JJ.A.

BETWEEN

Jeffrey Chong*, Stephen Chong* and Anne Chong

Applicants (Respondents*)

and

David Oymon Chong aka David Chong* and Julietta Pangilinan

Respondents (Appellant*)

David A. Brooker and Daria Krysik, for the appellant

Shawn Pulver and Breanna Needham, for the respondents

Heard: February 11, 2025

On appeal from the judgment of Justice Cory A. Gilmore of the Superior Court of Justice, dated April 23, 2024, with reasons reported at 2024 ONSC 3290.

REASONS FOR DECISION

[1] The appellant, David Oymon Chong, appeals from the April 23, 2024 judgment enforcing a settlement agreement he entered into with the respondents, Jeffrey and Stephen Chong, who are his nephews.[^1] After hearing oral submissions, we dismissed the appeal with reasons to follow. These are those reasons.

Background

[2] Kingsley Chong had three sons: the appellant, Gary, and Don. Kingsley owned property on McGill Street in Toronto. In his will, he left one-third of this property to Gary, one-third to the appellant’s two children, Jason and Taryne, and one-third to Don’s children, the respondents Jeffrey and Stephen.

[3] In 1993, Kingsley’s Estate transferred two-sixths of the property to Gary and one-sixth of the property to the respondent Jeffrey, who was an adult at the time. The remaining three-sixths of the property were transferred to the appellant to be held in trust equally for his two children and his nephew, the respondent Stephen, all of whom were minors. As the children became adults, the appellant was to transfer their interests to them but that never occurred.

[4] The appellant and Don began living in the property with their spouses in 1991. In 1993, the appellant and Don registered a mortgage on the property. In 2003, allegedly as a result of the appellant assuming Don’s mortgage obligations, a Transfer Agreement was signed in Stephen’s name and the name of the respondents’ mother, Anne Chong, acting as power of attorney for Jeffrey. The Transfer Agreement purportedly transferred Stephen and Jeffrey’s interest in the property to the appellant in trust for his two children, Taryne and Jason. However, no transfer of title was ever registered pursuant to the Transfer Agreement. Jeffrey, Stephen, and Anne all denied the authenticity of the Transfer Agreement.

[5] In 2007, Gary, who also lived in the property, died. His will, made two days before he died in hospital, left his estate including his two-sixths interest in the property to the appellant. A prior will purportedly also left the property to the appellant.

Legal Proceedings

[6] In 2019, the three respondents (Don’s two children, Stephen and Jeffrey, and their mother, Anne) sued the appellant and Gary’s Estate Trustee, Julietta Pangilinam. They challenged both the 2003 Transfer Agreement, which they maintained was falsified, and Gary’s 2007 will. The appellant countered with a claim seeking compensation for carrying costs and renovations to the property as well as a declaration that the respondents’ interest in the property had been transferred to the appellant in trust for Taryne and Jason. An additional application involved a dispute over seven burial plots at Mount Pleasant Cemetery. The appellant’s children Taryne and Jason were not party to any of these proceedings. Throughout the proceedings, the appellant was represented by counsel.

The Settlement

[7] At a hearing before Myers J. on June 22, 2023, following one day of evidence and submissions, the parties reached a settlement relating to all of the applications, the terms of which were read out by counsel in open court in the presence of the appellant. They were subsequently incorporated into an endorsement which was also read out in open court and described as fair by Myers J., again in the presence of the appellant. The appellant did not raise any concerns.

[8] The settlement provided that the property was to be sold with the proceeds held in trust subject to certain payments, including $175,000 to be paid to the appellant. The net proceeds were then to be divided equally among Kingsley Chong’s four grandchildren, namely Don’s two children, Jeffrey, Stephen, and the appellant’s two children, Jason, and Taryne. The burial rights to three of the Mount Pleasant plots would go to the respondents and the other four to the appellant and his family. The parties and Taryne and Jason were to provide mutual releases to be agreed by counsel acting reasonably.

[9] On July 19, 2023, the appellant corresponded with Myers J.’s assistant complaining about the settlement and saying he did not agree with it. This was the first time that the respondents had heard of any complaint about the agreement.

Motion to Enforce Settlement

[10] The respondents then brought a motion for judgment seeking to enforce the settlement agreement which was memorialized in the endorsement of Myers J. The motion was heard in December 2023. The appellant took the position that the settlement ought to be set aside on the grounds of unconscionability, fraudulent misrepresentation, and mutual mistake, among other grounds. He also argued that it could not be implemented absent a release signed by his two children, Taryne and Jason.

[11] The motion judge first addressed the appellant’s claim of unconscionability. Relying on Uber Technologies Inc. v. Heller, 2020 SCC 16, [2020] 2 S.C.R. 118, the motion judge identified the two required components of a claim of unconscionability: (i) proof of inequality in the positions of the parties, and (ii) proof of an improvident bargain. The motion judge found that the first component was not met, finding that “the parties were in equal bargaining positions as they were both represented by counsel throughout the settlement negotiations, the finalizing of the terms of the settlement, and the enquiries of [Myers J.] as to whether the parties had any concerns with respect to the settlement terms.”

[12] In coming to this conclusion, the motion judge also rejected the appellant’s claim that he did not comprehend the settlement. There was no medical or other evidence in support of the appellant’s allegations of hearing and comprehension difficulties. A law clerk from the office of the appellant’s counsel noted that the settlement instructions had been carefully read to the appellant. There was no evidence from any other party that the appellant had raised any issues despite being given repeated opportunities to do so.

[13] Moreover, there was no evidence to support his allegation that he was tricked by his counsel into signing a settlement document. The settlement had been confirmed by Myers J. after discussion with the parties and counsel and validated by Myers J. as being fair after no party objected to the terms. In these circumstances, the motion judge concluded that the claim of unconscionability was not established.

[14] The motion judge also rejected the appellant’s arguments based on fraudulent misrepresentation, prejudice, duress and coercion, the focus of which was mainly on his counsel, Mr. Canizares. She noted that if the appellant was of the view that his counsel did not raise all necessary arguments or properly represent him, those issues would form the grounds for a separate legal proceeding. As for the releases to be provided by Taryne and Jason, they were not required. In any event, Taryne and Jason had left the litigation to be conducted by the appellant. The appellant agreed to the terms of the settlement on behalf of his entire family. In sum, the motion judge concluded that this was a case of settlor’s remorse, and she granted the order requested by the respondents enforcing the settlement.

The Appeal

[15] Before us, the appellant submits that the motion judge erred in enforcing the settlement. He claims that the motion judge misapplied or applied the incorrect test for unconscionability, failed to consider that the agreement was entered into under a mutual mistake of fact, and erred in finding that the appellant understood and agreed to the terms of settlement. In oral submissions, he did not press any argument relating to the releases. Much of his complaint focuses on the legal representation he received from his counsel at the time, Mr. Canizares, and he relies on new evidence that is not the subject matter of a motion for leave to admit fresh evidence.

[16] The fresh evidence regarding the appellant’s former counsel is not properly before us. Even if a motion for leave to admit fresh evidence had been brought, we are not persuaded that it would have affected the result: see Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; Costanza v. Desjardins Financial Security Life Assurance Company, 2023 ONCA 54, 165 O.R. (3d) 621, at para. 60. The new evidence primarily addresses disciplinary proceedings in an unrelated matter involving the appellant’s former counsel that post-date the order in issue on this appeal.

[17] We see no error in the motion judge’s analysis of the ground of appeal relating to unconscionability. She identified the correct legal principles and justified her application of those principles by examining the whole of the evidence. This included the fact that the appellant was represented throughout the proceedings by legal counsel. However, as we have described, this was not the sole basis for the motion judge’s decision. Quite apart from the evidence of the appellant’s counsel, there was ample evidence to support the motion judge’s conclusion that the appellant’s claim of unconscionability had not been made out. This included the facts relating to the court attendance on June 22, 2023, the absence of evidence corroborating the appellant’s assertions, the evidence of the law clerk, and the appellant’s failure to object at the time or in the ensuing weeks. Lastly, the appellant was the trustee of the property for Taryne and Jason and he advised that he had authority to enter into the settlement agreement on their behalf. Neither Taryne nor Jason ever sought to be added as a party to set aside the settlement.

[18] In a similar vein, the appellant has simply not made out his other grounds of appeal relating to mutual mistake and misrepresentation. The appellant has not established any errors in law or palpable and overriding errors that would warrant appellate intervention.

[19] For these reasons, the appeal is dismissed.

[20] The settlement of these proceedings was reached on June 22, 2023. Various dates aimed at selling the property were agreed to and have long since passed. As such, it is necessary to amend the dates contained in the April 23, 2024 order of the motion judge. Accordingly, and as advised at the end of oral submissions, paragraph 2a. is amended to state: “The parties’ counsel, acting reasonably, shall jointly select a realtor to sell the Property within 30 days” of February 11, 2025, the date of the hearing of the appeal. Moreover, paragraph 2b. is amended to state: “David Chong and any other family members, residents, or tenants shall vacate the Property on or before June 11, 2025”, and the date in paragraph 2c. is amended to state June 12, 2025.

[21] The appellant shall pay the costs of the appeal fixed in the amount of $16,426.28 inclusive of disbursements and applicable tax, such sum to be deducted from the $175,000 due to the appellant on closing along with the costs award made by the motion judge.

“S.E. Pepall J.A.”

“David M. Paciocco J.A.”

“L. Sossin J.A.”

[^1]: For convenience, we will refer to the family members by their first names.