Court File and Parties

Court File No.: 133/09
Date: 2012/03/07
Superior Court of Justice - Ontario

Re: Jae Sun Park and Deun Jong Park , Plaintiffs

-AND-

Hae Kyung Park and Young Bin Park, Defendants

Before: Turnbull, J.

Counsel:
Joan Mouland, Counsel, for the Plaintiffs
Howard A. Shankman, Counsel, for the Defendants

Heard: January 11, 2012 and by telephone conference call March 1, 2012

Endorsement

[ 1 ] This motion for summary judgment was argued by counsel on January 11, 2012. After reserving my decision, I issued an interim endorsement on February 10 th , 2012. I found as follows:

After a detailed review of my notes taken during submissions and after re-reading the entire record, I cannot agree. It is very clear to me that there are significant factual issues that need to be determined and that oral evidence, tested by cross examination need be presented to the court. Without that oral evidence, I am not satisfied that the court can have a full appreciation of the evidence necessary to make a determination that there is no genuine issue requiring a trial.

[ 2 ] I asked counsel to contact the trial co-ordinator to arrange a conference call to work out the timing of evidence to be called on the continuation of the motion pursuant to the provisions of Rule 20.04 (2.2), which permits the ordering of the presentation of oral evidence by one or more of the parties.

[ 3 ] It was at the time of this conference call that counsel for the plaintiffs first indicated that her clients were concerned with the fact that I would be hearing viva voce evidence after having conducted a settlement conference in this matter during which I met separately with the defendant Pamela Park and her counsel. It was suggested that I should recuse myself from this motion and permit another judge to hear the evidence on this motion.

[ 4 ] The Rule does not envisage two different judges hearing submissions and evidence on a motion for summary judgment. I indicated to counsel that without hearing viva voce evidence, I did not feel that I could have a sufficient appreciation of the facts of the case to give summary judgment. I asked counsel to seek instructions from their clients on how they wished to proceed and absent consent from both parties about me hearing viva voce evidence, I would have to dismiss the motion for summary judgment.

[ 5 ] The office of the Trial Co-ordinator has been advised that the parties have not mutually agreed that I should hear the viva voce evidence.

[ 6 ] In the circumstances, the motion for summary judgment is dismissed, with costs to be assessed. I will accept written submissions from counsel on or before March 23, 2012.

Turnbull, J.

Date: March 7, 2012.