Court File and Parties
COURT FILE NO.: CV-16-552002 MOTION HEARD: 20170512 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Sang Min Lee, Responding Party Plaintiff AND: Soon Nam Lee et al, Moving Party Defendants
BEFORE: Master Jolley
COUNSEL: Ken MacDonald, Counsel for the Moving Party Defendants Nabila Qureshi, Counsel for the Responding Party Plaintiff
HEARD: 12 May 2017
Reasons for Decision
Overview
[1] The plaintiff brings this action seeking a declaration of a constructive trust over three named properties, a declaration that transfers of certain assets amounted to either oppressive conduct or fraudulent conveyances and damages in the amount of $2.7 million.
[2] The defendants seek particulars of certain of the allegations in the statement of claim, taking the position that they cannot plead without the requested information.
[3] The plaintiff takes the position that the particulars sought are not needed for the defendants to file a statement of defence. The information sought is in the nature of evidence and this request is an attempt to obtain information that is more appropriate at the discovery stage. Further, the plaintiff argues that defendants have not deposed that they do not have the information they seek and that is a precondition for the relief sought. (Physicians’ Services Inc. v. Cass, [1971] 2 O.R. 626 (C.A.))
[4] Answers have been provided, albeit belatedly, to a number of the demands for particulars. Before me are items 10, 11, 12, 13, 15 and 16.
Request items 10, 11 and 12
[5] The plaintiff seeks in paragraph 33.10 of the statement of claim, “a declaration of constructive trust over Ms. Lee’s interest in the following properties currently owned directly or indirectly by Ms. Lee, Eun Jin Kim and Dahyun Kim: 63 Madawaska Avenue, North York, Ontario (“Madawaska”); 867 Bloor Street West, Toronto, Ontario (“Bloor”) and 145 McNamee Road, Kirkfield, Ontario (“McNamee”).”
[6] The defendants seek to know which of those three properties the plaintiff says are indirectly owned by the defendant Soon Nam Lee (“Lee”) and how; which of those three properties the plaintiff says are indirectly owned by the defendant Eun Kim (“EK”) and how; and which of those three properties the plaintiff says are indirectly owned by the defendant Dahyun Kim (“DK”) and how.
[7] The statement of claim alleges that Bloor is registered to DK and that Lee has some interest in it. Lee is entitled to know whether the indirect interest that she is alleged to have is to the extent that she advanced funds for the purchase of Bloor (paragraph 33.5) or whether the plaintiff is alleging an indirect interest of some other amount and on some other basis. I am of the view that this is not in the nature of evidence. It is not “how the plaintiff intends to prove his case, i.e. a matter of evidence, but “what [he] is going to try to prove” against the defendant and, therefore, properly the subject of particulars (Commissioner of Competition v. Rogers Communications Inc. 2013 ONSC 3224 at paragraph 18) and is required for pleading. The defendants need not depose they do not have this information as they could not know what properties the plaintiff intended to mean and against which defendant in this statement of claim; it is a bald allegation that, on its face, requires particulars.
[8] Similarly, the statement of claim alleges that McNamee was sold by Lee to EK. Both Lee and DK are entitled to know whether it is alleged they have an indirect interest in McNamee and, if so, on what basis. EK is entitled to know whether the claim against her is on the basis of her direct ownership or otherwise.
[9] There is no allegation in the statement of claim concerning Madawaska other than an allegation that Lee owned or held an interest in it, either directly or indirectly. She is entitled to know whether the plaintiff’s position is that Lee still has a direct or indirect interest in Madawaska and, if so, on what basis. EK and DK are each entitled to know whether the plaintiff alleges that they have a direct or an indirect interest in Madawaska and, if so, on what basis.
[10] These particulars sought are to be answered.
Request item 13
[11] In paragraph 33.11 of the statement of claim, the plaintiff “seeks damages on the basis of unjust enrichment and quantum meruit for the disproportionate share of the wealth and assets acquired during the course of the relationship unjustly retained by Ms. Lee, Eun Jin Kim and Dahyun Kim.”
[12] The defendants request that the plaintiff separate out the amounts he claims from each of Lee, EK and DK.
[13] In my view, this is not necessary for pleading. Nor is it practical to request those particulars from the plaintiff at this stage, given his claim is based on quantum meruit and unjust enrichment which have yet to be quantified.
[14] This portion of the motion is dismissed.
Request item 15
[15] The plaintiff alleges in paragraph 33.15 of the statement of claim that Lee “retained the earnings and profits of EBI Sushi Izakaya, (his former employer and an entity owned directly or indirectly by Lee) and orchestrated the transfer of the income of EBI Sushi Izakaya through its rental payments to 867 Bloor Street West.”
[16] The defendants argue they need to know to whom and where the income of EBI Sushi transferred (and when), given Bloor is not a legal entity.
[17] Given this portion of the pleading is in the nature of a fraudulent conveyance allegation, the defendants are entitled to know to whom the plaintiff says the income was transferred and when he alleges that transfer or those transfers took place, to the best of his knowledge (EnerWorks Inc. v. Glenbarra Energy Solutions Inc. 2012 ONSC 414 at paragraph 52). As to the recipient, the plaintiff simply needs to clarify the entity to which he is referring when he pleads the payments went to 867 Bloor Street West. As to the time of the transfers, the plaintiff may not have that information, in which case, he can advise that the dates of such transfers are unknown to him.
[18] This particular sought is to be answered.
Request item 16
[19] With respect to paragraph 33.15, referenced above, the defendants plead that they need to know what amounts were transferred by way of rental payments.
[20] I find that this is in the nature of evidence and not necessary for the defendants to respond to this allegation. Whether the transfer was $100 or $100,000 will not affect the defendants’ response. As noted in Telus Communications v. Kennedy, 2010 ONSC 2135 at paragraph 37, the defendants do not need to know the exact total of the expense claim (in that case) involved in order to plead to the statement of claim. To the extent the timing of the transfers is important, that has been covered, above.
[21] This portion of the motion is dismissed.
Conclusion
[22] The plaintiff shall deliver answers to the particulars ordered within 20 days of the date of this endorsement. I have not ordered a deadline for the defendants to deliver their defence, in light of the submission of counsel for the defendants as to his two significant upcoming trials but I trust the parties can reasonably work out a schedule for that delivery.
Costs
[23] There has been mixed success on the motion and I order no costs.