COURT FILE NO.: 05-50/05 DATE: 20170419

SUPERIOR COURT OF JUSTICE – ONTARIO

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, acting in person David M. Goodman, for the Defendant/Respondent

HEARD: January 30, 2017

Endorsement

Introduction

[1] This decision concerns a motion brought by Mr. Su under rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to set aside the consent order of D. Wilson J. made February 6, 2009 (the “Consent Order”) on the ground of fraud or of facts arising or discovered after it was made. By means of the Consent Order, all of Mr. Su’s remaining claims against the Estate of Gab Yi Lam were dismissed, except for his claim for support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). At the heart of Mr. Su’s motion is his contention that, at the time he agreed to the Consent Order, he had been misled by the defendant/respondent regarding the assets of the estate that were still available to respond to his claim for support.

Background

[2] These proceedings have a lengthy history. They originated from a common law relationship between Mr. Su and the late Gab Yi Lam that began in 1993 and lasted until Ms. Lam's death in April 2004. Despite her common law relationship with Mr. Su, throughout that time she remained legally married to Sec-Yong Lam (the “defendant/respondent” or “Mr. Lam”), whom she named as the executor in her will. She made no provision in her will in favour of Mr. Su.

[3] Following Ms. Lam's death, Mr. Su advanced claims against her estate on several grounds. Initially, he issued a statement of claim (Court File No. 05-CV-283500) on February 4, 2005. In that action he sued Mr. Lam in his capacity as “Estate Trustee and/or Personal Representative” of Ms. Lam's estate. That action dealt only with the assets of Ms. Lam, and a claim by Mr. Su that he was entitled to a share of her assets; in the alternative he claimed repayment of more than $200,000 from her estate, on the ground that he had loaned her that amount of money. Mr. Lam defended the action as Estate Trustee.

[4] Mr. Lam obtained a certificate of appointment of estate trustee with a will for Ms. Lam's estate on May 6, 2005. More than seven months later, on December 8, 2005, Mr. Su commenced an additional proceeding by issuing a notice of application for dependant's support under Part V of the SLRA (Court File No. 05-50/05) (the “SLRA Application”). That seven month delay subsequently proved fatal for Mr. Su's support claim, as I will later explain. Significantly, in the SLRA Application, Mr. Su named Mr. Lam as the respondent “in his personal capacity and as Executor and Trustee” of Ms. Lam’s estate.

[5] On January 26, 2006, Hoilett J. made an interim support order in favour of Mr. Su in the SLRA Application, gave directions regarding procedure and production of documents, and ordered that action 05-CV-283500 be transferred to the Estates List. He further directed that the SLRA Application and the action either be consolidated, tried together or heard one after the other.

[6] Over the succeeding four and half years, the litigation took a number of twists and turns. A large number of documents were produced by Mr. Lam. In addition, there were a number of motions, including those discussed below.

[7] On July 26, 2006, on a motion brought by Mr. Su, Siegel J. granted a consent order that required Mr. Lam to provide (by August 10, 2006) an accounting and tracing of Ms. Lam’s assets, including any proceeds of sale and profits, bank accounts and records, and any assets chargeable under s. 72 of the SLRA. This resulted in a document prepared by Mr. Lam’s lawyer entitled “Summary of Assets Prepared August 10, 2006” (the “August 10, 2006 Statement”). The August 10, 2006 Statement purported to list all of Ms. Lam’s assets and explain what had become of them since her death.

[8] At some point, the contents of the August 10, 2006 Statement were incorporated into a more formal document, headed with the title of proceedings in Court File No. 05-CV-283500, and entitled “Summary of Assets for SLRA” (the “First SLRA Summary”). The information contained in each of these documents was identical. Neither contained a statement that purported to estimate the value of the estate for SLRA purposes. As discussed below, a later version of the First SLRA Summary did contain such a statement, indicating that the estimated value for SLRA purposes was approximately $1,250.000. Ultimately, Mr. Lam and his counsel resiled from that statement and took the position that there were no estate assets available to satisfy Mr. Su’s claim for support. That change of position subsequently gave rise to one of the key disputes between the parties.

[9] On December 22, 2006, on a motion brought by Mr. Lam due to Mr. Su’s failure to attend for examination, Stewart J. ordered that payment of interim support directly to him be suspended, and directed that further payments be made to Mr. Lam's lawyer in trust pending further order of the court.

[10] On July 17, 2007, Mr. Lam was examined for discovery by counsel for Mr. Su. At that time the parties had in hand the August 10, 2006 Statement as well as extensive documentation produced by Mr. Lam, much of which was reviewed and discussed during the examination. At this stage of the proceedings, both Mr. Su’s claim to an ownership interest in Ms. Lam’s assets and his claim for support were in issue.

[11] On September 9, 2008, on a motion brought by Mr. Lam, Strathy J. ordered Mr. Su to attend for further examination on his undertakings. He further ordered Mr. Su to pay security for costs in the amount of $25,000, as well as an outstanding unpaid costs award.

[12] By the end of 2008, Mr. Su had not paid the outstanding costs award as ordered by Strathy J., nor had he posted the required $25,000 for security for costs. As a consequence, Mr. Lam brought a motion to dismiss Mr. Su’s claims.

[13] Mr. Lam’s motion to dismiss came before D. Wilson J. on February 6, 2009. At the time Mr. Su was represented by counsel. On consent of the parties, D. Wilson J. dismissed action 05-CV-283500, and dismissed all Mr. Su’s property claims in the SLRA Application. By her order, she directed that the costs of the action and the property claims in the application be reserved to the judge hearing the SLRA Application. As a result of the Consent Order, by agreeing to forego his claims to an interest in the estate assets, Mr. Su avoided the dismissal of his support claim and he also avoided the need to post security for costs and payment of the outstanding costs award, as had been ordered by Strathy J. The order of D. Wilson J. is the Consent Order that Mr. Su now seeks to set aside on the ground of fraud or subsequently discovered facts.

[14] At some point after the Consent Order and before the trial of Mr. Su’s SLRA Application, Mr. Lam’s lawyer prepared and produced a revised version of the First SLRA Summary. For convenience, I will refer to it as the “Second SLRA Summary.” As I have mentioned, unlike the First SLRA Summary, the Second SLRA Summary included a paragraph at its conclusion which recited that the approximate value of the estate for SLRA purposes was $1,250,000.

[15] The trial of Mr. Su’s SLRA Application proceeded before me over five days in October 2010, followed by subsequent written submissions. In my decision released February 17, 2011 (2011 ONSC 1086), I found that Mr. Su had proven that he and Ms. Lam were spouses within the meaning of s. 30 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"), and s. 57 of the SLRA. I further found that, pursuant to s. 30 of the FLA, Ms. Lam was under a legal obligation to provide support to Mr. Su immediately before her death. As such, I concluded that Mr. Su was a dependant of Ms. Lam for purposes of s. 57 of the SLRA.

[16] In my February 17, 2011 decision, I directed the parties to attend before me further to adduce evidence regarding the factors recited under s. 62(1) of the SLRA and in particular the value of Ms. Lam's estate for purposes of Part V of the SLRA. During a case conference convened to deal with the scheduling of that further hearing, for the first time in the proceedings, counsel for Mr. Lam raised a defence premised on the argument that there were no assets remaining in the estate against which an order for support could be made; in effect, he disowned the Second SLRA Summary and asserted that it was not correct. As a consequence, on October 27, 2011, a further day of trial was held, focusing on that issue.

[17] In my decision released March 30, 2012 (2012 ONSC 2023) I held that, despite the contents of the Second SLRA Summary, there were no remaining estate assets against which an order for support in favour of Mr. Su might be made. The basis for that conclusion was that all estate assets had been distributed prior to the commencement of Mr. Su's SLRA Application. As well, in light of the fact that all of the estate assets had been distributed, and because the SLRA Application had been commenced more than six months after the issuance of the certificate of appointment of estate trustee, there was no basis for making a discretionary extension of the six month limitation period under s. 61(2) of the SLRA. I therefore concluded that Mr. Su's claim for support could not succeed.

[18] In my subsequent costs decision, released October 5, 2012 (2012 ONSC 5488), I considered the significance of the late disclosure by Mr. Lam that there were no remaining estate assets, as well as the previous information provided by him regarding the supposed quantum of the estate available for SLRA purposes as contained in the Second SLRA Summary. At paras 27 and 28 I wrote:

[27] From the commencement of the SLRA proceeding, Mr. Lam was aware – but did not disclose – that there were no further assets in the estate against which a support order could be made. Had Mr. Su been armed with that knowledge, he would have been able to reassess the strategy he was pursuing to seek monetary compensation for his contributions to Mrs. Lam's support. Instead, for several additional years, Mr. Su continued to pursue a claim that was ultimately defeated by late disclosure by Mr. Lam and by the late plea of, in effect, a limitation period.

[28] In my view, it would be unfair and inequitable to order Mr. Su to reimburse Mr. Lam for all his costs in defending the SLRA claim, when Mr. Lam failed to make proper disclosure and did not alert Mr. Su to the fact that there were no assets available – the basis upon which the claim was ultimately defeated. Not only does such non-disclosure warrant a sanction by the court, but Mr. Lam's conduct in this regard is a relevant factor under rule 57.01(1)(e): the proceeding was unnecessarily lengthened as a consequence.

On this basis, I reduced the costs awarded to Mr. Lam by 50%.

[19] Mr. Su appealed my March 30, 2012 decision to the Court of Appeal. In an appeal book endorsement released June 12, 2013, the Court of Appeal affirmed my decision (save in relation to costs). It set aside my costs award and directed the parties to bear their own costs, reasoning that “the trial judge erred in principle in failing to give effect to his finding that the non-disclosure led to the extensive litigation.”

[20] Subsequently, Mr. Su brought a motion to reopen my March 30, 2012 decision on the ground of fraud and subsequently discovered facts. In my decision released November 30, 2015 (2015 ONSC 6968), I dismissed that motion, reasoning as follows:

[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.

The Current Motion

[21] Mr. Su has now brought a motion pursuant to rule 59.06(2)(a) to set aside the Consent Order of D. Wilson J. made February 6, 2009. This motion, too, is founded on the ground of fraud or of facts arising or discovered after it was made. As mentioned, the Consent Order dismissed all of Mr. Su’s remaining claims against the estate, except for his Part V SLRA claim for support.

[22] Before proceeding with an analysis of the current motion, I should note that incorrect information provided by Mr. Lam and his counsel about the true state of the estate assets available for Mr. Su’s claim for support has, in two previous judicial decisions, already formed the basis for the reduction (and subsequent denial by the Court of Appeal) of Mr. Lam’s claim for costs. Those decisions focussed on the contents of the Second SLRA Statement (later disowned by Mr. Lam and his counsel), which expressly set out a value of the estate “for SLRA purposes” and the failure of Mr. Lam to notify Mr. Su that he had no prospect of recovery in his claim for support. As I noted in my costs decision, had Mr. Su been told there were no assets available to respond to his support claim, he may well have chosen not to pursue the litigation to trial. The Court of Appeal imposed a more severe sanction by refusing any costs award in favour of Mr. Lam. I should also point out that this motion is the first time I have examined and considered the actual chronology of the incorrect information, the surrounding circumstances, and their potential impact on the Consent Order. Put another way, the issues I must address in connection with Mr. Su’s current motion have not previously been determined by me.

Applicable Legal Principles

[23] In McCowan v McCowan (1995), 24 OR (3d) 707 (C.A.), the Court of Appeal considered the principles applicable to motions to set aside consent orders. At paras 16 to 18 (Q.L.) the court said:

[16] In Huddersfield Banking Co. v. Henry Lister & Son Ltd., [1895] 2 Ch. 273 (C.A.), one issue before the court was whether an order issued on consent further to an agreement between the parties should be set aside. The defendants took the position that a consent order was as binding on the parties as any other order and could not be set aside once acted upon, except on proof of fraud. Lindley L.J. held that a consent order could be impeached on any ground (including fraud) that would invalidate the agreement giving rise to the consent order. He said at p. 280:

A consent order, I agree, is an order; and so long as it stands it must be treated as such, and so long as it stands I think it is as good an estoppel as any other order. I have not the slightest doubt on that; nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud, but upon any grounds which invalidate the agreement it expresses in a more formal way than usual.

To my mind, the only question is whether the agreement upon which the consent order was based can be invalidated or not. Of course, if that agreement cannot be invalidated the consent order is good. If it can be, the consent order is bad.

[17] See also Canadian Imperial Bank of Commerce v. Whites Lake Services Ltd. (1982), 32 C.P.C. 128, 56 N.S.R. (2d) 236 (Co. Ct.); Re Kline, [1924] 1 D.L.R. 295, 56 N.S.R. 389 (S.C.).

[18] The general principle set out in these authorities was accepted by this court in Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164 at pp. 165-66:

A consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or where there is fraud. In other words, a consent judgment can only be rectified on the same grounds on which a contract can be rectified.

[24] The test under rule 59.06(2)(a) for setting aside an order includes both the ground of fraud, as well as “facts arising or discovered after it was made.” Thus, for purposes of the present motion, I need to review Mr. Su’s allegations and decide whether the Consent Order was obtained by fraud or whether, as he asserts, he did not know nor could he have known the information upon which he now relies in seeking to set the order aside. In applying the test, both for fraud and allegedly after-acquired information, the state of the parties’ knowledge at the time the Consent Order was made, i.e. February 6, 2009 is key. I turn now to that task.

Application of the Test to Our Case

[25] As noted at the outset of this decision, at the heart of his motion is Mr. Su’s contention that, at the time he agreed to the Consent Order, he had been misled by Mr. Lam regarding the assets of the estate that were still available to respond to his claim for support. Mr. Su relies in particular on a series of documents containing statements of estate assets provided by Mr. Lam and his counsel, Mr. Goodman, a specific answer given by Mr. Goodman on Mr. Lam’s examination for discovery and the fact that Mr. Lam paid the interim support order despite the lack of estate assets. I will deal with each point.

Documentary Disclosure

[26] Of all the documents produced in the litigation, Mr. Su highlights the various statements of estate assets that he submits demonstrate fraud by Mr. Lam. The first such document is the August 10, 2006 Statement. Subsequent to the creation of that document, Mr. Lam’s lawyer prepared and produced several additional asset summaries, which were entitled “Summary of Assets for SLRA Purposes”. The First SLRA Summary is undated, but it contains the same information as the August 10, 2006 Statement.

[27] The Second SLRA Summary is also undated. It was created after the Consent Order, in the course of preparation for the trial before me. Two amended versions of the Second SLRA Summary were prepared subsequently, containing various revisions, after the time when Mr. Lam asserted that no assets were available to pay a support award.

[28] The August 10, 2006 Statement purported to list and summarize the estate assets, and to explain where they went. It made no express reference to the SLRA. The August 10, 2006 Statement was available and was examined upon at Mr. Lam’s examination for discovery, which took place before the Consent Order was made.

[29] The Second SLRA Summary also included a list of estate assets. It further included a purported “Summary of Estate Assets” that ended with the following statement: “Approximate Total for SLRA Purposes = $1,250,000.” This is the sole document containing this statement. The subsequent versions of the SLRA Summary did not contain an approximate total for SLRA purposes. Instead, they concluded with the submission that, because all estate assets had been distributed prior to the commencement of the SLRA Application, the value of the estate for support purposes was zero.

[30] The contents of the Second SLRA Summary (and in particular the statement that the approximate total value of the estate for SLRA purposes was $1,250,000) and Mr. Lam’s later position that there were no remaining assets, led to a dispute over the actual value of the estate assets and how they were distributed. That issue was litigated before me in October 2011, and resulted in my decision dated March 30, 2012. In that decision, I examined three questions, as follows:

(a) What were the original assets of the estate? (b) What became of the original assets and when? (c) Is it proper to make an order for support as against any remaining assets?

[31] In my decision dated March 30, 2012, after reviewing all available evidence, I concluded as follows in relation to issues (a) and (b) (at paras 53 and 54):

[53] By means of the foregoing analysis, I have reviewed the assets held by Mrs. Lam prior to her death, and the disposition of those assets. In my view, all of her assets have been accounted for. Put another way, the evidence does not suggest to me that any of her assets disappeared or were not collected by her executor in the discharge of his duties.

[54] With respect to the distribution of Mrs. Lam's assets, once again, I am satisfied on the evidence that they have been duly allocated consistent with the law of survivorship and the terms of Mrs. Lam's will. All of these steps had been completed prior to the commencement of Mr. Su's SLRA application in December 2005. As such, the estate had no assets remaining in it at the time this application was initiated.

[32] In the course of reaching these conclusions, I also considered Mr. Su's submission that certain properties still remained in Ms. Lam’s estate by reason of them having previously been held in joint tenancies that had been had been severed prior to death. I determined that there had been no severance of the joint tenancies. As a result, the remaining value of those properties did not form part of Ms. Lam’s estate. I therefore concluded that no order for support should or could be made.

[33] My March 30, 2012 decision was upheld by the Court of Appeal. It is therefore final and binding. Those decisions establish affirmatively and conclusively that, despite the contents of the Second SLRA Summary, Mr. Lam properly accounted for the assets of the estate and that none remained for purposes of a support order under the SLRA.

[34] The question remains, however, as to the significance of the Second SLRA Summary for purposes of this motion. To begin with, as I have noted, the Second SLRA Summary was not prepared until after the Consent Order. Thus it cannot have been a factor that influenced Mr. Su’s decision to agree to the terms of the Consent Order: simply put, this document did not exist at the time that order was made. I therefore reject Mr. Su’s submission that the Second SLRA Summary somehow amounted to a fraudulent inducement that led to his consent. I should mention as well that, in his submissions, Mr. Su also pointed to a letter dated July 27, 2010, sent by Mr. Lam’s counsel, Mr. Goodman, to a lawyer who was then acting for Mr. Su, in which the statement was made “The bottom line is that no matter what we are dealing with an Estate (for SLRA purposes) of approximately $1,000,000.00 or slightly more.” As with the Second SLRA Summary, this letter was prepared after Mr. Su agreed to the Consent Order and thus it cannot have influenced Mr. Su’s decision to do so.

[35] Additionally, in my decision dated March 30, 2012, I found that Mr. Lam had fully accounted for the estate assets and that none remained. In essence I found that, despite the contents of the Second SLRA Summary, no assets remained when that document was prepared. In other words, the statement contained in the Second SLRA Summary that the approximate total value of the estate for SLRA purposes was $1,250,000, was erroneous and incorrect. Rather, the statements in the later versions of the SLRA Summaries, to the effect that no assets remained for purposes of a support order, were correct.

[36] It follows that, by themselves, the Second SLRA Summary and the subsequent versions of that document cannot amount to after-acquired information or subsequently-discovered facts that would justify setting aside the Consent Order. In effect, after Mr. Su agreed to the Consent Order, he was provided with incorrect information about the estate assets available for SLRA purposes. That incorrect information was later corrected. Without more, the later versions of the SLRA Summaries – which correctly disclosed that there were no available assets – form no basis to attack the propriety of the consent. This is because, as I have found, they were accurate. At the very least, Mr. Su must establish that he was unaware of (or had no means to discover) the facts they contained when he agreed to the Consent Order.

[37] There are other documents that bear upon Mr. Su’s motion to set aside the Consent Order. As previously mentioned, in 2006, in response to earlier court orders, Mr. Lam through his lawyer Mr. Goodman prepared a list of the assets of Ms. Lam's estate, together with a brief explanation as to the status of those assets. This is the document I have previously defined as the August 10, 2006 Statement. That Statement was backed up by and cross-referenced to copies of documents, such as deeds, conveyances, registry office forms, bank statements, etc. The August 10, 2006 Statement and the backup materials were produced as part of Mr. Lam’s affidavit of documents.

[38] Mr. Lam was examined for discovery by counsel for Mr. Su on July 17, 2007. On that occasion, questions were posed about the August 10, 2006 Statement and the information and documents referenced in it. The back-up documents were available to be reviewed. They are the very same documents that were available at the October 27, 2011 hearing that resulted in my decision dated March 30, 2012. Based on that material, I concluded that there were no remaining assets.

[39] The same conclusion that I reached following the October 27, 2011 hearing was open to Mr. Su or his counsel in July 2007, had they reviewed and analyzed the same documents. It was possible for them to do so since Mr. Lam had made full production as required by the court.

[40] Accordingly, at the time he agreed to the Consent Order, Mr. Su had available to him information that would have, had it been properly and carefully examined, revealed that, on the face of the documents, there were no remaining assets against which a support order could be made.

[41] I therefore do not accept the submission that Mr. Lam somehow concealed the true value of the estate in advance of the Consent Order by failing or refusing to produce documents and records. To the contrary, the documents he produced at the time of the discovery process told the story. It follows that this material cannot amount to after-acquired information, since it was available to Mr. Su before he agreed to the Consent Order.

The Discovery Answer

[42] Mr. Su also relies on a statement made during Mr. Lam’s examination for discovery by Mr. Lam's counsel, Mr. Goodman, to support his assertion that he was induced by fraud or incorrect information to forego his property claims when he agreed to the Consent Order. As mentioned previously, during Mr. Lam’s examination for discovery (conducted on July 17, 2007) he was asked questions about the August 10, 2006 Statement and the back-up documentation. At the time the examination was conducted, Mr. Su’s claims included not just his SLRA Application, but also his claims to an interest in Ms. Lam’s properties, for the tracing of proceeds of sale and for repayment of loans, all as advanced in the action (Court File No. 05-CV-283500).

[43] In the context of Mr. Su’s claims for an interest in Ms. Lam’s assets and to trace the proceeds of sale of those assets, Mr. Su's counsel asked Mr. Lam a series of questions about various properties and transactions and what had become of the proceeds. He was directed to the summary of assets contained in the August 10, 2006 Statement and the various documents referenced there, to explain what had happened to the properties and the proceeds of sale, where they had been sold.

[44] Among the assets that were discussed was Ms. Lam’s former residence on Buckhurst Road in Scarborough and a house on Meadowcliffe Avenue in Richmond Hill, now owned by the Lams’ children. Mr. Goodman confirmed that the proceeds of sale of Buckhurst could be traced into the equity in Meadowcliffe.

[45] Another property discussed was an apartment building on Mutual Street in Toronto. It had been owned by Ms. Lam and Mr. Lam jointly prior to her death. At the time of the examination, the Mutual Street property was the subject of litigation arising from an abortive sale transaction, and was also subject to a mortgage. The questions posed by Mr. Su’s counsel were directed to determining whether there was sufficient equity in that property should Mr. Su’s claim to an interest in Ms. Su’s assets be successful.

[46] The questions and discussion about these properties ultimately led to the following statement by Mr. Goodman:

Let me put it this way counsel – 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.

[47] Mr. Su relies on the foregoing statement to support his assertion that he was misled into believing that there were sufficient assets in the estate to cover his claim for support, and that he was operating under that mistaken belief at the time he agreed to the Consent Order. Viewed in isolation and taken out of context, the quoted words might support Mr. Su's position. In my view, however, and when considered in context, the quoted words do not reflect an acknowledgement or confirmation by Mr. Goodman that there were sufficient exigible assets in the estate to meet a support order.

[48] As I have noted, at the time the examination for discovery was conducted, Mr. Su was advancing claims both in relation to support as well as in relation to assets in which he claimed an interest, and he was seeking tracing orders. The questions preceding Mr. Goodman’s statement confirm that it was intended merely to assure Mr. Su’s counsel that, if the claims for an interest in Ms. Lam’s assets were accepted by the court, there was sufficient value in the properties to cover those claims: i.e. “to pay him out.” Read in context, Mr. Goodman’s statement does not support Mr. Su’s assertion that he was misled into believing there were sufficient assets to pay his support claim.

Payment of Interim Support

[49] Mr. Su also submits that he relied on the fact that he was paid interim support by the estate following the order of Hoilett J. made on January 26, 2006. No issue was raised by Mr. Lam at that time regarding the availability of estate assets to respond to the court order, and thus Mr. Su says he was unaware of the lack of assets at the time he agreed to the Consent Order.

[50] Mr. Su is correct that, as far as I can ascertain, no issue was raised by the defendant/respondent at the time the interim support order was made regarding the lack of estate assets to fund it. It is important to note, however, that the support order was made in the SLRA Application and it directed “the Respondent” to pay $1,000 per month. As mentioned previously and as the order itself confirms, in the SLRA Application Mr. Lam was sued both in his personal capacity and as executor of the estate. When the order directed “the Respondent” to make monthly payments, it did not distinguish between Mr. Lam’s payment obligation as executor and his personal capacity. The order was made and Mr. Lam complied with it.

[51] Given that the estate had been fully distributed by this time, it is likely that Mr. Lam merely paid the sums that were ordered out of his own funds (some of which were the product of income or proceeds of sale from properties of which he became the sole owner by right of survivorship following Ms. Lam’s death). It may well be that, at that stage, Mr. Lam himself did not expressly distinguish between his own assets and the ones that came to him from the estate, for purposes of funding the payments required by the interim support order.

[52] For present purposes, the question is this: by complying with the interim support order, should Mr. Lam be taken as, in effect, conceding or misrepresenting to Mr. Su that sufficient assets remained in the estate to fund any final order for support that might be made at the conclusion of the SLRA Application? In my view, the answer to that question is “No”.

[53] Firstly, as I have noted, the support order was made against Mr. Lam, and did not distinguish between his personal status and his status as executor. As such, the lack of estate assets to pay support would not have been an answer to excuse non-payment. Given that the order was directed to “the Respondent”, it cannot be read as an acknowledgement or representation by Mr. Lam that the estate (as opposed to Mr. Lam personally) still had assets to pay a final support order.

[54] Moreover, by its very nature the interim support order was just that – an interim direction by the court, made at a preliminary stage of the SLRA Application, before either side had the opportunity to make production, conduct discovery, or fully articulate their position. The mere fact that one party may not have made a certain argument at a preliminary stage of a proceeding does not, generally speaking, preclude that party from advancing that argument at a later stage when it may be considered by the court on a proper record.

[55] It took considerable effort to assemble and produce all relevant records relating to Ms. Lam’s various holdings, including the status of some properties that had been held in joint tenancy with Mr. Lam. (Indeed, the status of those joint tenancies remained in dispute through the second hearing before me, in October 2011.) Much of that material had not yet been assembled at the time Hoilett J. made the interim support order in early 2006. Importantly, by the time he agreed to the Consent Order, Mr. Su had received production from and conducted an examination for discovery of Mr. Lam. As discussed previously, Mr. Su and his counsel had the opportunity to learn for themselves the status of the various estate assets.

[56] For these reasons, I do not accept Mr. Su’s submission as to the significance of the interim support payments.

Conclusion and Disposition

[57] As I have explained above, at the time he agreed to the Consent Order, Mr. Su had not been provided with any incorrect or misleading information about the assets of the estate. He had available to him information that, had it been properly and carefully examined, would have revealed that there were no remaining assets against which a support order could be made (subject only to the court deciding whether certain joint tenancies had been severed prior to Ms, Lam’s death). Nothing was said at Mr. Lam’s examination for discovery that, when considered fairly and in context, suggested otherwise.

[58] To the extent that Mr. Su was provided with misleading information in the Second SLRA Summary, that information came after the Consent Order was made. The Court of Appeal has already sanctioned Mr. Lam for providing that erroneous information, by depriving him of costs.

[59] I therefore conclude that Mr. Su has failed to prove that he was induced by fraud to agree to the Consent Order. Additionally, Mr. Su has failed to demonstrate that there are any after-acquired facts or information that would warrant setting aside the Consent Order.

[60] For these reasons, Mr. Su’s motion to set aside the Consent Order of D. Wilson J. made February 6, 2009 is dismissed.

[61] In relation to costs, I invite the parties to reach agreement. If they are unable to do so, I direct as follows:

(a) Mr. Lam shall serve his bill of costs on Mr. Su, accompanied by written submissions, within fifteen days of the release of these reasons. (b) Mr. Su shall serve his response on Mr. Lam within fifteen days thereafter. I invite Mr. Su to submit the bill of costs he would have submitted, had he prevailed on the motion. (c) Mr. Lam may, but is not obliged to serve a reply, within ten days thereafter. (d) In all cases, the written submissions shall be limited to three double-spaced pages, plus bills of costs. (e) I direct counsel for Mr. Lam to collect copies of all parties' submissions, and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, counsel for Mr. Lam will assemble a single package for delivery as described above.

Stinson J. Date: April 19, 2017