CITATION: Bui Duy Thinh et al. v. Tran Quoc Chinh et al., 2015 ONSC 3406

COURT FILE NOS.: CV-15-524684

CV-15-519469

DATE: 20150601

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bui Duy Thinh, Monique Metrasse and Bui Duy Thinh (on behalf of the estate of Bui Ngoc Chau), Moving Parties

AND:

Tran Quoc Chinh and Bui Thi Linda, Responding Parties

BEFORE: C. J. Brown J.

COUNSEL: Bui Duy Thinh, representing himself and the other Moving Parties

No one appearing for the Responding Parties

HEARD: May 28, 2015

ENDORSEMENT

[1] The moving parties bring a motion pursuant to r. 17.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), for leave of the Court to serve the responding parties ex juris. The moving parties have brought a substantially similar motion, premised on the same facts and with essentially a “copy and paste” factum, with respect to different defendants in a separately numbered court file, Court File No. CV-15-519469. As the factual underpinning and relief sought is identical, I have dealt with the motions in both actions in the course of this endorsement.

[2] For the reasons that follow, I do not grant leave to serve the responding parties ex juris.

Background and Procedural History

[3] This is not the first time Mr. Bui has appeared before the Ontario Superior Court seeking relief on the basis of these same facts or essentially the same factual underpinnings. Mr. Bui and the moving parties have appeared both before Masters and Justices of the Superior Court on a number of occasions. I have provided a brief factual background before summarizing the various procedural steps this litigation has taken.

[4] The factual underpinnings of this litigation relate back to the administration of the estate of Mr. Bui’s father. His father passed away in France in 2004, and his estate was dealt with by French courts and in accordance with French law. The estate was comprised of real and personal property in France, and possibly property in Asia and Québec as well. None of the moving parties has ever demonstrated that the estate had any property in Ontario or any other connection to the province of Ontario.

[5] While Mr. Bui maintains that the two causes of action before me do not relate back to the administration of the father’s estate in France, but rather relate to his property in France wrongfully taken by the defendants and transported to Quebec, I am of the view, based on the records before me, that the claim ultimately relates back to the administration of the father’s estate.

[6] Following the administration of Mr. Bui’s father’s estate in France, Mr. Bui brought an action in Ontario against the lawyer who acted for members of his family in those proceedings: Bui Duy Thinh et al. v. Sackoun Philippe, 2013 ONSC 7395. Mr. Sackoun, defended by Ontario counsel, brought a r. 21.01(3) motion to dismiss the action on the basis that Ontario did not have jurisdiction simpliciter over the plaintiffs’ claims. Mr. Bui, representing himself and the other plaintiffs, was unable to satisfy the Court that any of the presumptive connecting factors from Club Resorts v. Van Breda, 2012 SCC 17, applied, and did not raise any other factors that might favour a finding of jurisdiction simpliciter. Consequently, the Court found that Ontario did not have jurisdiction simpliciter over the action and dismissed the action against Mr. Sackoun.

[7] On the basis of the same factual matrix, Mr. Bui brought an action against the same defendants to the present action, who are members of his family resident in France. He did so, however, in the name of a partnership (SCP Metrasse, Bui & Associés) comprised of himself, his spouse (Monique Metrasse) and their son (Alexander Bui Metrasse): SCP Metrasse, Bui & Associés v. Chinh, 2014 ONSC 5056. The defendants, represented by Ontario counsel, moved for summary judgment on the basis that the partnership had no cause of action: para. 2. The Court agreed and adjourned the motion in order to allow the plaintiffs to bring a motion to amend before a Master, in order to add both Mr. Bui and Ms. Metrasse as individually-named plaintiffs in the proceedings: paras. 20-23.

[8] The summary judgment motions judge remained seized of the matter and heard additional argument on the merits of the summary judgment motion following the adjournment: SCP Metrasse, Bui & Associés v. Chinh, 2015 ONSC 66. The plaintiffs had not brought a motion to a Master and had not amended their pleadings, notwithstanding the Court’s instructions to the contrary: para. 12. The Court held that a partnership may not advance the interests of individual partners through litigation, and dismissed the plaintiff partnership’s claim for want of a valid cause of action: para. 17. The Court made the following alternative finding in support of dismissing the action:

Given this finding [i.e. that the partnership had no cause of action], the Court does not need to rule on the Defendants’ limitation period argument. However, it should be noted that the Court accepts the submissions of the Defendants with respect to their expiration of the limitation period defence. If the Court had found that the statement of claim did disclose a valid cause of action, the Court would have dismissed the Plaintiff Partnership’s claim because of the expiration of the applicable limitation periods.

[9] Finally, on February 10, 2015, the Divisional Court did not grant the partnership an extension of the period of time for filing an appeal to the Divisional Court from a decision of Master Glustein (as he then was): SCP Metrasse, Bui & Associés c. Kim, 2015 ONCS 951. In an action against Pham Dang Kim (a resident of Québec and a party to the litigation in Court File No. CV-15-519469), Master Glustein had made an order setting aside the service ex juris of the defendant and staying the proceedings: para. 1. The Court noted that the appeal “n’est pas bien-fondé” [“is not well-founded”]: para. 4. The Court also expressed agreement with Master Glustein’s conclusion that “[t]he statement of claim does not demonstrate how it falls under rule 17.02 to give this court jurisdiction. […] Real and substantial connection cannot be presumed since none of the Rule 17.02 facts apply”: para. 6.

Analysis

[10] It is clear from the foregoing that these moving parties, these responding parties, and these facts have been before the Court on numerous occasions and in various iterations. Following the responding parties’ successful motion for summary judgment, Mr. Bui and Ms. Metrasse – two of the three partners of SCP Metrasse, Bui & Associés, and the two who drove the previous litigation – have brought the same action, though now in their own right. It is noteworthy that the summary judgment motion was adjourned so that they could amend their pleadings to include themselves among the named plaintiffs, an action which they failed to take. In summary, in a prior action against the same defendants and on the same facts, they did not amend their pleadings to include themselves as named plaintiffs as the Court had instructed them to do. To bring a new action in these circumstances is a waste of judicial resources and an abuse of process. I would be inclined to dismiss their motion on this basis alone.

[11] In addition, while the limitation period findings of Pollak J. on the motion for summary judgment were made by way of obiter, I am bound by them and would also dispose of the motion on this basis. The motion for summary judgment involved the same defendants (Tran Quoc Chinh and Bui Thi Linda), the same factual matrix (claims arising out of the administration of Mr. Bui’s father’s estate), and effectively the same parties. I say effectively because, while the partnership was the named party (and the motion for summary judgment was disposed of principally on that basis, though not exclusively), the partners driving the litigation were Mr. Bui and Ms. Metrasse: 2014 ONSC 5056 at paras. 17, 19. The law with respect to issue estoppel is clear that the parties need not be identical for the doctrine to be applied. The doctrine of issue estoppel applies to parties or their privies: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at paras. 59-60. Therefore, to the extent that the parties and the facts are one and the same, I am bound by Pollak J.’s finding that the cause of action, if indeed there is one, is statute-barred.

[12] Similarly, it is unclear how the present action against Pham Dang Kim, among others, differs materially from the one that was before Master Glustein and the Divisional Court. Master Glustein set aside the service ex juris of Mr. Pham and stayed the proceedings against him, in accordance with r. 17.06: 2015 ONCS 951 at paras. 1, 7. The plaintiff partnership in that case, SCP Metrasse, Bui & Associés, was denied an extension of time within which to file its appeal to the Divisional Court: 2015 ONCS 951 at para. 15. The parties are effectively the same and the facts are the same: Danyluk, supra. Not only that, Master Glustein’s decision, endorsed by the Divisional Court, directly addressed the issue of service ex juris, setting it aside and staying the proceedings. In these circumstances, I do not see how a new action based on the same facts and against at least one of the same defendants could not be considered an abuse of process.

[13] Given that the underlying facts have remained constant throughout this protracted litigation, this Court’s application and analysis of the Van Breda factors in Sackoun, supra, stands. The moving parties have provided no further particulars as to why the Ontario courts should assume jurisdiction over this dispute. They have made passing reference, in their factum, to rr. 17.02(h), (m) and (o) as the grounds upon which their claim may be brought, and presumably as the connecting factors supporting Ontario’s assumption of jurisdiction. I note that rr. 17.02(h) and (o) have been revoked by O. Reg. 231/13, s. 5, and O. Reg. 43/14, s. 6, respectively. They are no longer in force. Rule 17.02(m) allows a party to be served ex juris and without leave for claims based “on a judgment of a court outside Ontario.” There is no evidence before me of a valid judgment of a foreign court that the moving parties are attempting to enforce in Ontario. Rule 17.02(m) is therefore of no assistance to the moving parties. In sum, the moving parties have not provided evidence, nor do their pleadings or notices of action or motion indicate that Ontario has any connection with this litigation sufficient to ground the assumption of jurisdiction simpliciter. It is clear that the Court cannot grant leave to serve the defendants ex juris in these circumstances.

Conclusion

[14] For the reasons above, both of the moving parties’ motions are dismissed.

[15] The moving parties have tied up too many judicial resources bringing actions and motions relating to the administration of an estate in France, an estate that never had the slightest connection with the province of Ontario. Ontario does not have jurisdiction simpliciter, it is not the forum conveniens for these matters, and any further litigation in this province respecting these issues is to be strongly and vigorously discouraged.

C. J. Brown J.

Date: June 1, 2015