SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 05-50/05
DATE: 20151130

RE: JIAN SU, Plaintiff/Applicant

AND:

SEC-YONG LAM, in his personal capacity and as executor and trustee of the estate of GAB YI LAM also known as GABY YI LAM or GAB YI CHU, deceased, Defendant/Respondent

BEFORE: Stinson J.

COUNSEL:
Jian Su, in person

David M. Goodman, for the Defendant/Respondent

HEARD: By written submissions

ENDORSEMENT

[1] On June 29, 2015, I convened a case conference in response to a request from Mr. Su. He was seeking an appointment to argue a motion under rule 59.06(2) with a view to reopening the trial in this matter, with the ultimate goal of having the judgment dated March 30, 2012 set aside.

[2] At that case conference, I ordered as follows:

(1) Should Mr. Su decide to proceed with a motion under rule 59.06(2)(a), he should serve and file his motion materials (but not his factum) by Sept. 1, 2015.

(2) Mr. Lam may, by written submission, ask the court to dismiss the motion, prior to preparing evidence in response, within 30 days of receipt of Mr. Su's materials. Mr. Su will have 15 days to serve and file a response.

(3) Following receipt of my ruling on (2), Mr. Lam may, if he chooses, bring a motion for security for costs.

(4) Following any motion for security for costs, Mr. Lam may serve and file evidence in response to the motion under rule 59.06(2)(a).

(5) After step (4), the parties may, if they choose, cross-examine on the opposing affidavits.

(6) Once cross-examinations are completed, a date for argument of the motion can be requested from my office.

(7) In relation to the costs of today, in the event Mr. Su does not serve and file motion materials by September 1, 2015, Mr. Lam may make written submissions as to the costs of today. Otherwise, the costs of today will be dealt with as part of a future disposition of Mr. Su's motion.

[3] Subsequent to the case conference, I received written submissions from the parties by way of a motion record (including an affidavit) from Mr. Su dated July 28, 2015, a written submission (but no evidence) from Mr. Goodman on behalf of Mr. Lam under cover of a letter dated August 19, 2015 and reply submissions from Mr. Su dated August 31, 2015 (and amended reply submissions dated September 1, 2015). This ruling addresses those submissions.

[4] By way of background, this litigation has its origins in a personal and financial relationship between Mr. Su and the late Gab Yi Lam, who at the time was married to Sec-Yong Lam.

[5] Ms. Lam died in April 2004. She made no provision for Mr. Su in her will. Following her death, Mr. Su initiated several legal proceedings against her estate. These were defended by Mr. Lam, as the executor named in the will. During the course of the proceedings, Mr. Su or his then counsel sought information from Mr. Lam or his counsel, regarding the assets of the estate. On multiple occasions (and, on at least one occasion, in response to a court order), Mr. Lam and his counsel stated that the value of the estate for purposes of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) was in the order of $1 million.

[6] In my decision released on February 17, 2011, I found that Mr. Su and Ms. Lam were in a spousal relationship and Mr. Su was her dependent for purposes of Part V of the SLRA. Following the release of that decision, Mr. Lam and his lawyer for the first time asserted that the estate had no assets available for an SLRA order. In my decision released on March 30, 2012, I concluded that the value of the estate for SLRA purposes was zero. On this basis, I granted no relief to Mr. Su.

[7] This litigation had a lengthy history prior to the hearings that gave rise to my two decisions. At a key point in the proceedings, Mr. Su consented to the dismissal of all of his other claims against the estate, on the basis that he could thereafter maintain his SLRA dependant’s claim. The dismissal of his other property and debt claims was embodied in a consent order of D. Wilson J. dated February 6, 2009. As the date of that order would indicate, at the time it was made, Mr. Lam and his counsel had not yet revealed that the value of the estate for SLRA purposes was zero.

[8] As matters now stand, Mr. Su has obtained no relief in his SLRA application. His other claims were dismissed, on consent, by the order of D. Wilson J. He has been left without relief or any means to seek a remedy in relation to the claims he gave up when he chose to pursue the SLRA claim only.

[9] Against the foregoing backdrop, Mr. Su seeks to argue a motion to set aside the March 30, 2012 decision on the ground of fraud and subsequently discovered facts. To date, Mr. Lam has not filed any evidence in response. Rather, as contemplated by my order of June 29, 2015, Mr. Lam has filed written submissions, in which he asks the court to dismiss the motion summarily. In essence, Mr. Lam submits that the requirements of rule 59.06 have not been met because:

(a) nothing in the affidavit of Jan Su sworn July 28, 2015 alleges any impropriety on the part of Mr. Lam or his solicitors that could constitute fraud upon the applicant or upon the court; and

(b) nothing in the affidavit of Mr. Su reveals any facts that arose after the judgment was made.

[10] I agree that nothing recited in Mr. Su’s affidavit sets out any facts that were not known to Mr. Su prior to March 30, 2012. That was the date upon which I released the second of my two decisions in relation to Mr. Su’s application for support against the estate, pursuant to Part V of the SLRA.

[11] The focus of Mr. Su’s submissions is that, over a period of years prior to 2012, Mr. Lam and his lawyer provided misleading statements or summaries under s. 72 of the SLRA in which it was never disclosed that the value of the estate for SLRA purposes was zero. In reliance upon the summaries and the representations of Mr. Lam and his lawyer that the estate had a value for SLRA purposes in excess of $1 million, Mr. Su continued the prosecution of his SLRA application only. Only late in the proceedings, in July 2011, was the value of the estate for SLRA purposes said to be zero. As I noted in paragraph 19 of my endorsement as to costs released October 5, 2012, “up until that point [i.e. July 2011] Mr. Su had believed (quite reasonably, in my view) that the estate had sufficient assets to satisfy his claim and that there was no issue regarding the recoverability or attachability of estate assets.”

[12] Mr. Su’s materials identify only a single document that he says came to his notice subsequent to March 30, 2012: a letter dated July 27, 2010 to Mr. Su’s then lawyer. That letter contains no fresh or additional information, but rather is another recitation of the same information from the defendant, namely, that for SLRA purposes the estate had a value of approximately $1 million. That is the very same information that had been provided on other occasions.

[13] It is thus apparent that, well before March 30, 2012 (the date of the judgment which he seeks to reopen), Mr. Su was aware of the prior representations by the defendant that the estate had an SLRA value of approximately $1 million; he was also aware that, as of July 2011, the defendant was resiling from those representations and taking the position that the estate had no assets that could be the subject of an SLRA order. In other words, to the extent the defendant and his lawyer had made misrepresentations, they were known to Mr. Su prior to the judgment he now seeks to set aside.

[14] It follows that, to the extent any such misrepresentations may have formed the basis for setting aside the March 30, 2012 decision, or might somehow have effected a different result, Mr. Su was well aware of those facts before the hearing in October 2011 that gave rise to the March 30, 2012 decision.

[15] In view of the foregoing, I am unable to find that the judgment dated March 30, 2012 was procured by fraud or that it warrants being set aside or varied on the ground of fraud or facts discovered after it was made. All of the relevant information was available and could have been presented prior to that decision being rendered. Nothing new has arisen subsequently. Mr. Su had ample opportunity to present all available arguments germane to the SLRA proceeding in advance of the March 30, 2012 decision. The principle of finality in litigation means that it is not now permissible for Mr. Su to seek to re-argue the case or reopen it on the basis of information that was known to him at the time. No new facts have arisen.

[16] As well, Mr. Su had an opportunity to have the decision of March 30, 2012 reviewed by the Court of Appeal and to advance such additional arguments as he may have considered appropriate at the time. The Court of Appeal affirmed the decision of March 30, 2012 (save in relation to costs). No new facts have come to light since then.

[17] I therefore conclude that there is no proper basis for reopening the trial that led up to the decision dated March 30, 2012 or for setting it aside. That decision stands.

[18] I am compelled to note, however, that the SLRA support application was only a subset of the litigation commenced by Mr. Su following Mrs. Lam’s death seeking payment from the estate by reason of contributions that he allegedly made to her assets. In addition to the SLRA Part V application, he made claims in relation to chattels, against her real estate assets and against the proceeds of funds originating from those assets. Those claims were advanced in proceedings commenced in Court File No. 05-50/05 and in Court File No. 05-CV-283500.

[19] During the course of the various proceedings, several court orders were made requiring Mr. Lam to provide details of the assets of the estate. Mr. Lam produced several versions of the summary of estate assets under those orders. None of them showed the value of the estate assets to be zero. As well, at Mr. Lam’s examination for discovery in July 2007, his lawyer stated “if your client proves his best position in terms of assets, there is more than enough equity in the various properties to pay him out.” At that time, Mr. Su’s claim was much broader than one for support under the SLRA.

[20] In his affidavit in support of the current motion, Mr. Su deposed that, in reliance on the summaries of the estate assets provided by Mr. Lam and by the statement quoted above, Mr. Su and his then lawyer believed that the estate had sufficient assets to satisfy his claim and that there was no issue regarding the recoverability or attachability of estate assets. He further deposed that his then lawyer decided to focus on the support claim and “changed my loans to my contributions to Ms. Lam’s support.” The parties then proceeded to consent to an order to dismiss Action No. 05-CV-283500 and to confine Mr. Su’s claims to his dependant support claim under the SLRA. Implicit in Mr. Su’s assertion is that he agreed to the dismissal of his other claims in reliance on the representation that there were sufficient assets to satisfy his dependency claim, a representation it turned out to be untrue. In other words, Mr. Su altered his position and agreed to the dismissal of his other proceedings based on inaccurate information provided by Mr. Lam and his lawyer.

[21] The question thus arises whether the order of dismissal granted by D. Wilson J. on consent dated February 6, 2009 should be set aside or varied pursuant to rule 59.06(2), and, if so, what procedure should be followed thereafter. Mr. Goodman on behalf of Mr. Lam disputes Mr. Su’s explanation for the origins of the order of D. Wilson J. That submission is not supported by any evidence. Perhaps for this reason and perhaps because it was not the focus of Mr. Su’s original submission, Mr. Su’s reply submissions did not address it squarely.

[22] At this juncture, because Mr. Su has not asked for the order of D. Wilson J. to be set aside, I am not required to decide this point. Should he determine that that is the course he wishes to pursue, fair notice must be given to the opposite party so that appropriate evidence can be provided by both sides.

[23] I therefore direct the parties to participate in a further case conference to determine the future course of these proceedings, if any, including a potential motion for security for costs, as previously mentioned by counsel for Mr. Lam.

Stinson J.

Date: November 30, 2015