SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 133/09
DATE: 2012/05/04

RE: Jae Sun Park and Keun Jong Park , Plaintiffs

-AND-

Hae Kyung Park and Hae Kyung Park, Estate Trustee of Young Bin Park,

Defendants

BEFORE: Turnbull, J.

COUNSEL:
Joan Mouland, Counsel, for the Plaintiffs

Howard A. Shankman, Counsel, for the Defendants

costs endorsement on motion for summary judgment

[ 1 ] The plaintiff originally brought a motion for several heads of relief, which was originally returnable August 16, 2011. These matters were ultimately dealt on consent at a pre-trial in this action and incorporated in an order signed by me on August 16 th , 2011. That order made no reference to costs. The plaintiff now seeks costs of $1,000.00 for those matters incorporated in the order. If the plaintiff was seeking costs of the motion for those matters, that issue should have been dealt with at the time the consent order was being negotiated. The plaintiffs are not entitled to their costs for that portion of the motion which has been resolved.

[ 2 ] The one issue in the aforesaid motion which was not resolved was the plaintiff’s request that the transfer of the property from joint tenants to tenants in common registered on May 18, 2011 be set aside. That matter was not dealt with in the order of August 16, 2011. At the second stage of the pre-trial on October 4, 2011, counsel for the defendant indicated that his client wished to proceed with this part of the motion. On October 5, 2011, counsel for the defendant served the plaintiff with a Notice of Return of the plaintiff’s motion. Thereafter, a considerable amount of material was prepared by both parties and both parties agreed that this issue was suitable for determination on a motion. Both parties agreed not to cross examine on the affidavits filed by the opposite party.

[ 3 ] Ultimately, the court issued an endorsement dismissing the motion for summary judgment and asked for submissions with respect to costs. That endorsement is reproduced below to give context to this matter.

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.

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.

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.

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.

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.

In the circumstances, the motion for summary judgment is dismissed, with costs to be assessed.

[ 4 ] The plaintiff’s change of position with respect to this motion was the cause of it being dismissed before final adjudication. While the plaintiff was aware that I had conducted the pre-trial of this action and “caucused” with the defendant Ms. Park during that pre trial, there was never any concern expressed by either counsel or their clients (all of whom were present at the pre-trial) with respect to me hearing this motion.

[ 5 ] During the period that the motion was before the court, the defendant indicated that she wanted to retain a medical expert to counter that of the plaintiff. In other words, the defendant was not fully prepared to have this motion heard on the record before the court at the commencement of the hearing of the motion.

[ 6 ] When I issued my interim ruling that I wished to hear viva voce evidence on the motion. the plaintiff expressed reservation about me continuing as the presiding judge in this matter. In fairness to the plaintiff, both counsel had urged me to hear the motion at the outset and despite my expressed reservation that some viva voce evidence may have to be heard on this motion, I was urged to proceed. Both parties through their counsel urged me that the decision could be made without hearing viva voce evidence.

[ 7 ] In the end, I was unable to do so. Without it, the motion had to be dismissed.

[ 8 ] In the unusual circumstances of this matter, each party should bear its own costs, subject to the qualification below. The defendant brought the motion on to be determined by way of summary judgment. It did not succeed in meeting the test for summary judgment on the record put before the court. Additional evidence was necessary. The process was arguably derailed by the decision of the plaintiffs but in the circumstances, it was not unreasonable for them to ask that I recuse myself when I sought to hear viva voce evidence. It was not, in my view, foreseeable that I would seek to hear viva voce evidence. At the outset of the motion, both parties through counsel insisted that the matter could be decided without it despite my reservations expressed to them at the very outset of the motion.

[ 9 ] Hence, the parties shall bear their own costs of this motion. However, to the extent that time was spent on work that would be necessary for the trial of this matter such as interviewing witnesses, obtaining affidavits, and obtaining expert’s reports, those and any other similar or related costs or disbursements should be reserved to the trial judge, for much of the effort related to such activities may be assessable costs which the trial judge may feel are to be allowed in the main action.

Turnbull, J.

Date: May 4, 2012