Court File and Parties
COURT FILE NO.: CV-18-590295
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kyoung Hwa Lee and Young Sea Guak, Plaintiffs
AND:
Myoung Ja Chang a.k.a. Myoungja Chang a.k.a. Myoung-Ja Chang a.k.a. Myoung Ja Yoon a.k.a. Myoungja Yoon a.k.a. Myoung-Ja Yoon and Kwang Eui Chang a.k.a. Kwangeui Chang a.k.a. Kwang-Eui Chang and Ji Young Chang a.k.a. Jenny Chang a.k.a. Jenny Ji Young Chang a.k.a. Ji-Young Chang and Bo Young Chang a.k.a. Bonnie Chang a.k.a. Bonnie Bo Young Chang a.k.a. Bo-Young Chang, Defendants
BEFORE: Master Jolley
COUNSEL: Sang Joon Bae, Counsel for the Moving Party Plaintiffs Robert Choi, Counsel for the Responding Party Defendants
MOTION HEARD: 15 October 2018 HEARD: 15 October 2018
Reasons for Decision
[1] The plaintiffs bring this motion for an order requiring the defendant Kwang Eui Chang (“Kwang”) to comply with the order of Dow, J. made on 18 January 2018 and prepare a sworn statement describing the nature, value and location of his assets worldwide, whether in his own name or not and whether solely or jointly owned and to then submit to be examined on that sworn statement. They also seek the imposition of a discovery plan.
Order for Asset Disclosure by Kwang
[2] Kwang takes the position that the order of Dow, J. has expired as it was brought without notice and the plaintiffs did not serve him with a further motion to extend the time beyond the initial ten day period as required under Rule 40.02(2). The plaintiffs argue that they served Kwang through service on Mr. Choi pursuant to correspondence from Mr. Choi sent 26 January 2018 in which he represented that he had “been retained to act for the defendant s in this matter” (emphasis added) and had requested service of all materials on his office. The plaintiffs also note that the endorsement made by Cavanagh, J. that same day references Mr. Choi as counsel for the defendants.
[3] Mr. Choi now says that the email was inaccurate as he was then acting for the defendants other than Kwang. He expected to also be retained by Kwang but had not been at that stage. Mr. Choi was in fact retained by Kwang but not until sometime around 20 June 2018 when he filed a defence for Kwang. Mr. Choi points to a subsequent court attendance before Favreau, J. on 29 January 2018 and 2 February 2018 where the record notes that he appeared for the defendants other than Kwang who was not represented at the hearing.
[4] I do note that Mr. Choi served a notice of motion on behalf “the defendants” on 23 February 2018 which would also lead the plaintiffs to believe he acted for Kwang at that stage. (As an aside the record shows that the plaintiffs also served Kwang under the Hague Convention but that was not done until April 2018.)
[5] Whether or not Kwang was properly served, Favreau, J. had all the information before her concerning the status of Kwang and she made an order on 7 February 2018 that “the plaintiffs’ motion to continue the Order [of Dow, J.] is granted as it affects the defendants Myoung Ja Chang and Kwang Eui Chang, without the [sic] prejudice to these defendants’ ability to bring a motion at a later date to set aside or vary the Order.”
[6] A plain reading of the decision does not limit the further continuation to ten days as set out in Rule 40.02(3). Further, it is implicit in the language chosen by Favreau, J. that the continuation does not expire after ten days as it references the ability of Kwang to bring a motion to set it aside or vary it “at a later date”. That option was and remains open to Kwang. Kwang did not appeal the order of Favreau, J. or seek to limit it to a ten day extension and I am bound by Her Honour’s endorsement that the order continues.
[7] Kwang has also not challenged the order of Dow, J. and it remains binding on him. Nor has he complied with that court order in the intervening nine months. I order him to provide the information set out in the order of Dow, J. no later than 26 November 2018.
[8] Dow, J. did not indicate how the examination of Kwang on his sworn statement was to proceed other than to state it was to take place within twenty days of Kwang’s delivery of the sworn statement. His Honour would have known that Kwang resides Seoul, Republic of Korea as that information appears on the statement of claim attached to his order. The plaintiffs requested that the examination take place in Toronto. Subject to my comments in paragraph 17 below, I order Kwang to be examined on his sworn statement at the same time and place as his examination for discovery, addressed below.
Discovery Plan
[9] The plaintiffs sent defendants’ counsel a proposed discovery plan in August 2018 along with their sworn affidavits of documents. Defence counsel did not respond to requests for input. Accordingly the plaintiffs seek an order imposing their proposed plan. The defendants made submissions on that plan before me, despite not having corresponded with the plaintiffs’ counsel when requested.
[10] The plaintiffs propose that the defendants deliver their affidavits of documents by 25 October 2018. The defendants suggest 30 November 2018 and advise that the documents to be produced go back as far as 1996. The defendants presumably have been assembling their relevant documents since January 2018 when they were served with the statement of claim and filed their statement of defence in February 2018. I order the defendants to deliver sworn affidavits of documents by 10 November 2018, along with electronic copies of the Schedule “A” productions. The scope of documentary discovery as set out in paragraph A is reasonable and is ordered.
[11] The defendants object to any further steps in the discovery plan being imposed on the basis that they intend to bring a motion for security for costs. The difficulty with this position is three-fold. First, they intend to base their motion on the non-payment of a costs award that at present does not exist. Favreau, J. has received submissions on costs but has not released her decision and it is only speculative whether and in what amount and on what terms she will award costs. Second, even if Her Honour awarded costs in favour of the defendants, there is no evidence that the plaintiffs will not pay those costs by whatever time is allotted. Third, on 23 February 2018 the defendants served a notice of motion for security for costs returnable 26 March 2018. The motion was premised on the supposition that by the return date of the motion the defendants would have an order against the plaintiffs for costs which are “unlikely to remain unpaid”. The plaintiffs brought a motion to dismiss this motion without prejudice to the defendants to bring it on after a timetable was put in place. On 8 March 2018 the defendants then abandoned the return date of March 26 and requisitioned a long motion date. To date the motion has not been scheduled.
[12] I am not prepared to await a potential costs award and the potential lack of payment of that costs award before imposing a discovery plan. The defendants are able to bring a security for costs motion in future and to claim as part of their costs any costs already incurred as of the date of the motion.
[13] The plaintiffs propose to examine the defendants, other than Kwang, in Calgary, Alberta where those defendants reside. The defendants are agreeable, provided Mr. Choi can participate by video conference. The plaintiffs have concerns that the video connection will fail and the examination will be unable to proceed. They are prepared to pay Mr. Choi’s airfare and hotel up to $1,500 but not Mr. Choi’s travel time. Mr. Choi is not agreeable to attending in person unless his travel time is also paid. I order the defendants other than Kwang to be examined in Calgary at Independent Court Reporters on November 21 and 22, 2018. Mr. Bae will take immediate steps to ensure that the court reporter’s office offers video conferencing that will allow Mr. Choi to hear and participate in the examination of his clients. Given that all parties need an interpreter, I will allow more than the usual time for these examinations. The plaintiff shall have seven hours to examine Myoung Chang and four hours to examine each of Ji Young Chang and Bo Young Chang for a total of 15 hours for these three defendants. As agreed by counsel, each defendant shall be excluded from sitting in on the examination of the other defendants.
[14] The plaintiffs propose to examine Kwang in Seoul, Republic of Korea on December 17 or 18, 2018. Again, the defendants do not object provided that Mr. Choi can participate by video conference. I order Kwang to be examined in Seoul on whichever of those two dates are agreeable to both counsel, failing agreement, on December 17, 2018 at a court reporter’s office chosen by Mr. Bae and suitable to Mr. Choi. Mr. Bae shall ensure that the court reporter’s office offers video conferencing that will allow Mr. Choi to hear and participate in the examination of Kwang. The examination shall take place at a time reasonable to all parties, including Mr. Choi who will be participating from Toronto. The plaintiffs shall have four hours to examine Kwang. The plaintiffs may examine Kwang for an additional two hours on his sworn asset statement as ordered by Dow, J. and by this endorsement.
[15] The plaintiffs propose that they be examined for discovery on December 19 and 20, 2018 in Seoul, Korea, which is where they reside. Mr. Choi will conduct that examination by video conference with the same terms and conditions on ensuring working video conferencing capability and start time as above. The defendants will have seven hours to examine the plaintiff Lee and four hours to examine the plaintiff Guak. As agreed by counsel, each plaintiff shall be excluded from sitting in on the examination on the other plaintiff.
[16] Interpreters will be retained by the parties who are being examined.
[17] If the parties cannot agree on costs, they may each file a costs outline and costs submissions no more than three pages in length by 25 October 2018. If the plaintiffs are seeking to examine Kwang on his sworn statement on a day other than December 17 or 18, 2018, they may make submissions on that date as well. If that issue is raised, Kwang shall have three days from that submission to reply to that issue.