COURT FILE AND PARTIES

COURT FILE NO.: 133/09
DATE: 2012/02/10
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

INTERIM ENDORSEMENT

[ 1 ] The plaintiffs have brought a motion to set aside a transfer of the house and lands at 110 Ernst Avenue, Toronto (“the property”) made by the late Young Bin Park. The transfer severed the joint tenancy through which he had owned that property with his estranged wife and son (the plaintiffs). If the transfer is upheld, Mr. Park’s interest in the property would devolve to his daughter, his co-defendant Hae Kyung Park (Pamela), through his estate. If the transfer is not upheld, his interest in the property would pass by right of survivorship to the two plaintiffs.

[ 2 ] At the outset of this motion, counsel urged the court to deal with the issues raised without hearing viva voce evidence and to effectively treat it as a motion for summary judgment. In other words, they submitted that the evidence at trial would not get any better or be of greater assistance to the court than the written record before it on the hearing of this matter.

[ 3 ] 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.

[ 4 ] In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , at para. 146 , a five member panel of the Court of Appeal stated:

We emphasized, at para. 50, that cases should not be decided summarily where full appreciation of the evidence and issues that is required to make dispositive findings which can only be achieved by way of a trial. And we went on to say, an example of such a case is one that calls for “multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record.”

[ 5 ] In this case, the evidence of Mr. Ryu may very well conflict with that of Dr. Gagnon. Pamela will possibly have to explain the information given to the EMR officers that Mr. Park had been confused for several days. Credibility determinations may very well lay at the core of the ultimate finding of fact in this matter. In my view, this is the type of case that requires a motions judge to be able to hear certain of the witnesses in order to reach a just decision.

[ 6 ] Under Rule 20.04(2)(b), the court can grant summary judgment if the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. In making that decision, subrule 20.04 (2.1) permits the presiding judge to weigh the evidence, evaluate the credibility of a deponent, and to draw any reasonable inference from the evidence. To facilitate the judge performing those tasks, subrule 20.04 (2.2) permits the ordering of the presentation of oral evidence by one or more of the parties.

[ 7 ] I find that oral evidence should be heard by me on this motion. Mr. Ryu, Dr. Gagnon, and Pamela should be called to give oral evidence with respect to their evidence proferred on this motion. Their affidavits and report (in the case of Dr. Gagnon) should act as their examinations in chief. Each shall be subject to cross examination for a maximum of one hour with the right of re-examination limited to 15 minutes.

[ 8 ] In my view, this will allow the parties to have a summary disposition of this matter, as their counsel feel is appropriate. The summary judgment rule used in this way will save them extensive legal expenses with respect to pleadings, discoveries, undertakings and the calling of innumerable witnesses to establish the facts that are uncontroverted in the expansive motion record before this court.

[ 9 ] I would be pleased to discuss the timing of this hearing with counsel by telephone conference call arranged through the trial co-ordinator at Simcoe. At that time, if counsel feel that additional witnesses need to be called and/or a more expansive examination of witnesses need be undertaken, I will hear those submissions.

The Honourable Mr. Justice J. R. Turnbull

Date: February 10, 2012