Court File and Parties

COURT FILE NO.: 1983/15 DATE: 2017 03 03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hong Linh Dang AND: Natalie Anderson

BEFORE: Trimble J.

COUNSEL: K. Juriansz for the Defendant/Applicant A. McLennan for the Plaintiff/Respondent

HEARD: March 1, 2017

Endorsement

[1] This Defendant’s motion to strike the Statement of Claim, and release $72,230 to the Defendant currently paid into Court, was before me on 12 January, 2017 and returns to me pursuant to my endorsement.

[2] In my 15 December endorsement I stayed the Plaintiff’s action because of her failure to pay Gray, J.’s 15 September 2016 cost order of $30,000. I ordered that if the costs and accrued interest were paid by December 23, 2016, the stay would be lifted, automatically. Irrespective of the payment, I adjourned the balance of the motion returnable before me during the week of January 9, 2017.

[3] On 12 January, 2017, I declined to order payment out of court of the $72,230. However, I awarded costs against the Plaintiff fixed at $13,000 for attendances on this motion up to and including 12 January, 2017.

Events Since 12 January, 2017

[4] The Plaintiff did not pay the costs order of Gray, J. as ordered, by 23 December, nor did she pay my costs order of 12 January, 2017. She has not paid even a portion of the outstanding costs orders.

[5] At the return of the motion today, I and Defence counsel were given an Affidavit wherein Ms. Dang says that on February 1, 2017 she received a wire transfer of money from off shore sufficient to pay the costs, but that those funds were being held in her RBC account. She seeks another adjournment. She says that dismissing this action for failure to pay costs is draconian, especially since there are fraud charges pending against Ms. Anderson concerning one of the documents she relies on in defence of this action.

[6] Defence counsel asks that the action be dismissed. Ms. Dang has not paid a cent toward the costs. Instead, she appeals on specious grounds, and when appeals are dismissed, she pleads for more time to pay. This is nothing more than delay. In the meanwhile, Ms. Anderson continues to suffer prejudice. She continues to pay non-recoverable solicitor and client costs, has not been paid almost $50,000, and $73,000 of her money is tied up in Court.

Brief History

[7] It is common ground that Ms. Dang paid certain of Ms. Anderson’s creditors a total of $72,230.00. The parties knew each other. Ms. Dang sold her home to Ms. Anderson and lived with Ms. Anderson and her family for some time thereafter.

[8] Ms. Dang applied, ex parte, for a Certificate of Pending Litigation which Van Melle, J. granted by order of 23 April 2015. At the time, Ms. Anderson had listed the property for sale. At the return of Ms. Dang’s Application on notice on 20 July 2015, Gibson, J. discharged the CPL to permit the sale of the property on condition that $72,230 was paid into Court to the credit of the Application, and that the Application be converted into an Action. The sale closed on 24 July and the money was paid in. The Application was converted into an action.

[9] No appeal was taken by either party from the orders of Van Melle or Gibson, JJ.

[10] In her action, Ms. Dang alleges that Ms. Anderson never repaid the money; Ms. Anderson says that she repaid it and relies on a ledger showing payments. Ms. Dang says that ledger is a forgery; Ms. Anderson says it is not. She says that the promissory notes that Ms. Dang relies on regarding the debt are forgeries; Ms. Dang says that they are not.

[11] On August 25, 2016, Dang brought a summary judgment motion. Anderson brought a cross motion for a further and better Affidavit. Gray J., by handwritten endorsement, dismissed Dang’s motion and ordered that she produce a further and better Affidavit of Documents. Gray, J. implicitly rejected Dang’s evidence that she had no further documents. On 15 September, 2016, Gray. J. awarded $30,000 in costs against Dang.

[12] Dang sought leave to appeal. Lemay, J. dismissed the leave application on 13 December, 2016. He held that there was no reason to doubt Gray, J.’s decision. He went further, however. He said that Dang had not made out a prima facie case of fraud, an argument she repeats before me. Rather, Lemay held that she alleged fraud but that allegation and the evidence in support of it was subject to proof and cross examination at trial.

[13] On 11 January 2017, Lemay, J. fixed costs for the unsuccessful leave application against Dang at $6,500, all inclusive, payable within 14 days. Those costs remain outstanding.

Decision:

[14] This action is dismissed because of Dang’s failure to pay any of the costs orders made in this action. I agree with Dang’s lawyer’s submission that dismissal of a cost order is draconian, and that generally matters should be determined on their merits. However, in this case, the draconian remedy of a dismissal is necessary. Further, the money now held in court to the credit of the action should be paid to Ms. Anderson care of her counsel.

Why do I come to this decision?

[15] While the Court does not wish to prevent people from pursuing their rights through the courts, they cannot do so in face of outstanding costs order, where the failure to pay is unjustified (Susin v. Chapman aff’d ). Costs orders like any other court order, are to be obeyed. Rules must be obeyed. Orders and rules must be enforced. To hold otherwise in the face of persistent failure to pay cost orders would amount to giving litigants access to the courts with no fear of consequences (Stacey v. Barrie Yacht Club, para. 15; Baksh v. Sun Media, para. 14, 16-17, 19; 1066087 Ontario Inc. v. Church of the First Born Apostolic Inc.). In order for the debtor’s action to be dismissed, however, there must be many costs orders that remain unpaid, the amounts must be significant and/or the failure to pay must be egregious.

[16] This is one of these cases. I say this for the following reasons:

1. Ms. Dang says that this action is part of a larger litigation strategy in which Juriansz & Li, Ms. Anderson’s current counsel, attempts to represent different clients in different actions that arise out of the same series of transactions involving Ms. Anderson, in which Jurianzs & Li’s clients have conflicting interests. They cannot act in those differing capacities and actions.

   There is no evidence of this aside from Ms. Dang’s suspicion or theory. Her position presumes that Jurianzs & Li’s clients in the various actions (who own the conflicts) have not waived the conflicts or resolved their differences.

   In any event, if no conflict exits for Jurianzs & Li acting in this and the related claim, Ms. Dang seeks to ensure a conflict by threatening to bring a Third Party Claim against Anderson in the companion action.

   This threat is not serious. She made it in her Affidavit sworn in December, 2016. The companion action has been ongoing for some time. Motions were being brought in August, 2016 in that action. There is no evidence that any Third Party claim was issued as Ms. Dang threated in December, 2016 that she would bring.

2. Ms. Dang says that her action should not be dismissed since there is an outstanding charge of fraud against Ms. Anderson since 5 December 2016. The charge, she says, is based on the opinion of a handwriting expert Dang retained who opines that Dang’s signature on the Ledger that Anderson says is proof that she repaid Dang, is a forgery.

   While the outstanding charges may be relevant to the merits of the action, they are of no import when it comes to the outstanding costs orders. There are three costs orders in this action totalling $49,500, on which post-judgment interest accrues. The total is $65,500 if one includes Master Haberman’s costs order. Those orders are final. The amounts are outstanding regardless of the merits of the action.

   In any event, the charges are only evidence of the fact that the police had reasonable and probable grounds to lay them. Ms. Dang’s repeated reference to the “prima facie” case of fraud that she has made (which both Lemay and I have said is not correct) indicates that her motivation in laying the charges when she laid them (and not commenting on the merits of the charges, themselves) was to gain advantage or leverage in her civil disputes with Anderson. Ms. Dang admits that based on her handwriting expert, Dang contacted the police and set the criminal process going. The expert’s report was in her possession at least in August, 2016. She argued it before Gray, J. She went to the police only after Anderson brought this motion to dismiss and to pay out the money Anderson paid into court. She went to the police while the leave application from Gray, J.’s order (served 9 September, 2016) was outstanding, while Ms. Dang was threatening to bring Third Party claims against Anderson in the other related action, and while her counsel raised a conflict of interest in correspondence with Anderson’s counsel which prevented them from acting in this motion – an issue which, incidentally, was never raised at the motion before me.

3. Ms. Dang says that she cannot afford to pay the costs orders. I do not accept that. She does not say that she is impecunious. There is evidence that she has resources: for example, while the costs orders were pending (albeit during the leave to appeal application period) she travelled extensively (to Bangkok in March, 2016, Vietnam in April, 2016, Dubai in June, 2016 and Venice in August, 2016.) She said the trip was a gift from a business associate. She told others, however, that she was travelling with her children. I do not accept her statement that the trip was a gift from a business associate. She does not provide any particulars of the trip or who this business associate was.

4. She says that if given time, she can pay the costs. In the affidavit she filed today, she said that on February 1, 2017 she received “a substantial wire transfer from overseas sufficient to cover the 3 outstanding costs orders plus applicable interests thereon deposited into my RBC account” but which RBC has not yet released.

   I do not accept this for several reasons. First, her Affidavit does not contain documents showing the wire transfer, who made it, its deposit to her RBC account or that it would be held, why and for how long. She refers to discussions and correspondent between RBC, her own bank manager and she which occurred in order to obtain release of the funds. There is no evidence in support of this, such as an email. She does not say that the contacts were purely oral.

   Second, this is not the first time that Dang has said that she was to come into funds imminently. In response to this motion, in September Dang produced a letter from MFI (a Montreal company) dated in September, 2016 saying that by December 23, 3016, her commissions of $96,800 earned in 2016 would be paid to her. She asked for more time. On December 15 I stayed her action until the money was paid, holding that if it was paid by that date, the stay would be lifted automatically. The costs orders were not paid. At the 12 January 2017 hearing Dang produced a letter from MFI dated 10 January 2017 saying that the $96,800 would be paid to her on 17 January 2017. She assigned $30,155 of the money to Anderson’s lawyer’s firm. The costs orders are not yet paid.

5. There are other costs orders outstanding. According to the affidavit filed by Anderson’s lawyer on this motion, para. 51, in the companion action, on 25 August 2016 Master Haberman made a cost order that Dang pay the Plaintiffs $16,000 within 30 days. In her response affidavit to para. 51 of the Plaintiff’s Affidavit in support of this motion Dang addresses other aspects of para. 51 but does not address the costs issue. In para. 52 of the Affidavit the Plaintiff filed in support of the motion, Dang is said to have sought an adjournment of the 30 day payment limit for the Master’s costs order, but the confirmation was incorrect and the motion was not heard. I infer from the absence of evidence from Dang that Master Haberman’s costs order was paid, that it too is outstanding.

6. Dang’s litigation strategy has been aggressive. She has refused to make production. She brought a motion for summary judgement before exchange of Affidavits of Documents or oral discovery. This was rejected as premature and an order made regarding production and discovery. She sought leave to appeal from that. When the cost order of $30,000 was made, she sought leave to appeal from that. When she was unsuccessful, she did not meet the production order. When she delivered her further and better Affidavit of Documents in November or December, production was still not complete. She delivered another Affidavit of Documents in the last few days.

   Dang was entitled to bring all of these proceedings. She knew when she brought each proceeding that she might lose, and if she lost she would be responsible for the cost consequences. She lived, and must die by the litigation sword.

   Once the cost orders were in place, Dang has delayed matters. She has engaged in a game of ‘bob and weave’ wherein she files affidavits full of irrelevancies and broad statements about the merits of her case and the criminal charges, but which do not address her failure to pay cost orders. When she does give evidence relevant to the cost orders, it is vague (for instance explaining how she could afford to be on one trip of 6 months or several trips during a 6 month span, or regarding money wired to her).

7. Finally, notwithstanding the number of costs awards or the total value of them, Dang has not made any payment toward the accumulated cost debt to show her good faith. Rather than make a good faith payment, she continues to fight, seek adjournments of the motion, and seek more time to pay. She missed deadlines imposed by the Court. She asked for an extension of time which was denied. She did not make the payment by the proposed extended date, in any event. Had Dang made any payment as a show of good faith, the outcome of this motion might have been different.

[17] For the foregoing reasons, I find that Dang has elected not to pay the costs orders, while pursuing her litigation. She is entitled to pursue her remedies by any strategy that complies with the Rules. However, she cannot do so with impunity. The Court has granted sufficient indulgences to Dang. As the Court said in Baksh, the Plaintiff’s breaches of the cost orders have become contumelious. There is no order in the circumstances of this case that is “more just” than a dismissal.

[18] The action having been dismissed, the $73,230 that Anderson paid into court is ordered paid to her.

[19] As for costs, if the parties cannot agree on costs, I will entertain written submissions as to who should pay whom costs and in what amount. The submissions are limited to 3 double spaced typewritten pages, excluding appendices. The Defendant’s submissions are to be served and filed by 4 p.m., 17 March, 2017 and the Plaintiff’s by 4 p.m., 31 March, 2017.

Trimble J. Date: March 3, 2017

COURT FILE NO.: 1983/15 DATE: 2017 03 03 ONTARIO SUPERIOR COURT OF JUSTICE Hong Linh Dang AND: Natalie Anderson ENDORSEMENT Trimble J. Released: March 3, 2017