SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Chun Xiang Yan and Zhenhua Wang, Plaintiffs

AND:

Xi Chen aka QuiXi Chen aka Jessica Chen aka Jessi Chen aka Xi Chan, Chi Leung SzeTo aka ChiLeung SzeTo aka Louie SzeTo, Jim Jia aka Jian Jun Jia, JinHua Chen, HongMei Zhao, Mixculture Capital Management Group Inc., Mixculture Tourism & Technology Col, Ltd., China Canada Business Times Ltd., 2380523 Ontario Inc., American Visiontech Co. Ltd. and Max Carrier Limited, Defendants

BEFORE: D. M. Brown J.

COUNSEL: M. Gottlieb and D. Naymark, for the Plaintiffs

G. Sidlofsky, for Jim Jia

H. Manis, for Xi Chen, Chi SzeTo and other defendants

HEARD: Counsel appeared in my courtroom in my absence and without an appointment on January 17, 2014

REASONS FOR DECISION

I. How to arrange for quick access to a Commercial List judge

[1] This morning, after finishing a case conference and a few 9:30 appointments, I attended a meeting from 10 a.m. until 1:30 p.m. On my return I discovered that all counsel had come to my courtroom later this morning, evidently on an urgent basis, and the terms of a consent adjournment order were left on my chair. I gather those terms were worked out by the parties after a negotiating session in one of the Court’s boardrooms. Since the parties have agreed to the adjournment terms, I will grant an order incorporating those terms, with some modifications. But, given the events of yesterday and today, I think it necessary to remind counsel about how to arrange quick appointments before a Commercial List judge who is dealing with a case.

[2] Yesterday morning Mr. Manis sent an email to the Commercial List Office advising that Ms. Chen and Mr. SzeTo were in the process of retaining him. He wanted to appear before me on an urgent basis to seek an adjournment of the January 21, 2014 return date of the Mareva motion. I advised the Commercial List Office to let counsel know that I would see them at 2 p.m. That attendance occurred. I made an order, to which I will refer shortly. But, just stopping there, Mr. Manis followed the correct procedure to seek an urgent appointment before a Commercial List judge.

[3] Yesterday Mr. Manis sought an adjournment. Mr. Gottlieb, on behalf of the plaintiffs, strenuously opposed. I wrote the following endorsement:

Mr. Manis and Ms. Sigal appeared advising that later this afternoon they will be meeting with the defendant, Ms. Chen, and they expect to go on the record for her and Mr. SzeTo. They sought a variation of the schedules set out in my Dec 20/13 endorsement and Jan 13/14 Reasons. The plaintiffs opposed.

Although I understand the position that prospective defendants’ counsel are in, the fact is that the Dec 20 order was agreed to by the Chen/SzeTo first counsel. If Mr. Manis and Ms. Sigal go on the record, they will be the 4th set of counsel for Chen/SzeTo in just under one month. Although a party is entitled to counsel of his/her choice, a party cannot use the hiring and firing of lawyers as a technique to delay a lawsuit.

Given that Mr. Manis has not yet had a meaningful discussion with his potential client, I am not prepared to grant the requested adjournment. Mr. Manis may or may not end up on the record. Accordingly the scheduled Jan 21 return of the Mareva motion will be the appropriate time to consider formally any request for an adjournment.

I have made orders in this proceeding on Dec 20/13, Jan 3/14 and Jan 13/14. I am not prepared to vary any of those orders. If, when the parties appear before me on Jan 21, one party asks for an adjournment, one factor I will take into account is the extent to which that party has complied with my orders.

Mr. Gottlieb requested that I give further directions about the ordered CXs. He is concerned that should he seek to CX Chen and SzeTo tomorrow, his clients could be prejudiced should the defendants attempt to file a further affidavit. My goal is to ensure a fair hearing for all parties. It follows that no party should expect to be able to file substantive evidence without affording the opposite party an opportunity to test that evidence.

An interim order in the nature of a Mareva has been granted; production orders have been made; further orders have been made. On Tuesday I am scheduled to hear the plaintiffs’ request to continue the interim order and, perhaps, the details of appointing a monitor over two companies. I repeat. If on Tuesday a party seeks an adjournment, I will assess that request in light of the party’s compliance with my existing orders.

[4] From inquiries which I have made, I understand that counsel appeared in my courtroom today at the instance of plaintiffs’ counsel. I understand that plaintiffs’ counsel did not make any prior request of the Commercial List Office to secure an urgent hearing before me. That was not the proper procedure to follow. I can only conclude that plaintiffs’ counsel did not like the way I exercised my discretion yesterday and required other counsel to attend at Court in the hope of persuading me to change my mind. If that was the purpose of plaintiffs’ counsel, he should have emailed the Commercial List Office to request an urgent appointment before me. I would have been available after 1:30 p.m. today. That would have been the proper course to follow and a request to vary my order should have been made directly to me.

[5] Of course, whenever counsel are able to work out consent terms on a matter, they can email those to the Commercial List Office with a request that the terms be put before the appropriate judge. Counsel, however, cannot by-pass the Commercial List’s urgent request process and require other counsel to appear before a judge without prior notice to the Commercial List Office. Some notice must be given to the Court of counsel’s intention to appear especially where, as in this case, all counsel had been before the judge the previous day.

[6] Since the proper procedure was not followed, I order that the plaintiffs will not be able to claim any costs for their attendances of yesterday and today in the event that the Court ultimately awards costs in their favour. I will remain seized of this matter, and I order that all parties must make a prior request through the Commercial List Office before seeking to appear in my courtroom. Counsel know that they can gain quick access to me; there was no justification for failing to make a prior request this morning.

II. The adjournment sought by all parties

[7] As to the terms of adjournment worked out by the parties, they have agreed that no cross-examinations shall take place today. That is their choice.

[8] They then sought a consent variation of my December 20, 2013 and January 13, 2014 orders as follows:

(i) Ms. Chen and Mr. SzeTo shall file any further responding affidavit material by 12 noon on Tuesday, January 21, 2014;

(ii) On Monday, January 20, 2014, Ms. Chen and Mr. SzeTo shall attend for cross-examination on their affidavits of assets sworn January 16, 2014. Any further or supplemental affidavit of assets from them shall be served by Sunday, January 19, 2014, at the latest;

(iii) The plaintiffs shall file any reply material on the Mareva motion no later than 5 p.m. on Friday, January 24, 2014;

(iv) The parties shall conduct cross-examinations on the affidavit in respect of the Mareva motion on January 30, 31 and February 3, 2014.

I grant an order to that effect.

[9] The parties also agreed (i) to adjourn the Mareva motion returnable next Tuesday, January 21, 2014, (ii) to continue the interim injunction until the new return date, and (iii) to return the Mareva motion before me on February 10, 2014 for three (3) hours. I do not have three free hearing hours on February 10, 2014. Had the parties waited to appear before me this afternoon, I would have proposed February 12, when I do have the time. Since, as judges, we simply exist to serve, I will place the motion on my February 10, 2014 list, as that date appears to be most convenient to counsel, but it will be called at the end of the list and I will only allocate a maximum of two (2) hours for the motion. The interim injunction will continue until that time and the February 10, 2014 hearing date will be made peremptory to all parties.

[10] In paragraphs 35 to 37 of my January 13, 2014 Reasons I granted the plaintiffs’ request to appoint a monitor over CCBT and Mixculture Capital Management Group Inc. I directed that the parties submit to me, no later than 12 noon on Monday, January 20, 2014, their proposals for the selection of the monitor and the terms of appointment, if they were unable to agree on such terms before that time. The consent terms of adjournment left on my chair today did not address that issue. Accordingly, I expect to receive, no later than 12 noon on Monday, January 20, 2014, the information I directed in paragraph 37 of my January 13, 2014 order, or a joint letter from counsel explaining any agreement they have reached on the issue of the appointment of a monitor.

D. M. Brown J.

Date: January 17, 2014