Zhao v. Hui, 2019 ONSC 1929

COURT FILE NOS.: CV-17-581137; CV-17-581395; CV-581395-00A1; CV-17-586026; CV-17-586026A1

MOTION HEARD: 20190322

ENDORSEMENT RELEASED: 20190326

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

GUI ZHAO and JUANLI LIU Plaintiffs

• and-

QING HUI a.k.a. VICKY HUI and ROYAL FAMILY REALTY INC. Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: R. Huang E-mail: rhuang@rh-law.ca -for Juanli Liu and Gui Zhoa (the “Liu Parties”)

A. Postelnik E-mail: aaron@ksalaw.com

• for Hui in the Liu Action

S. Turney E-mail: sturney@fasken.com

• for the Plaintiffs in the Vander Ploeg Actions (the “Vander Ploeg Plaintiffs”)

A. Tabrizi E-Mail: ayda@gmllp.com

• for the Defendant Remax Hallmark York Group (“Remax”

R. He E-Mail: hsd@dorseylaw.ca

• for the Plaintiffs in the Knowles Action

ENDORSEMENT RELEASED: March 26, 2019

Actions: Zhao v. Hui (CV-17-581137)(the “Liu Action”); Knowles v. Liu (CV-17-581395) and Knowles v. Liu (CV-581395-00A1)(the “Knowles Actions”); Vander Ploeg v. Liu (CV-17-586026) and Vander Ploeg v. Liu (CV-17-586026A1)(the “Vander Ploeg Actions”)

ENDORSEMENT

Introduction

1As set out in my Endorsement dated February 1, 2018, I am case managing the above 5 related actions arising from three aborted real estate transactions (collectively, the “Actions”).

2As set out in my Endorsement dated October 12, 2018 (Zhao v. Hui, 2018 ONSC 6806)(the “October Endorsement”), 8 motions proceeded before me on October 10, 2018. Some of the relief was adjourned including the following 3 motions which remain in dispute and proceed today:

i.) a motion by Hui to dismiss or stay the Liu Parties’ cross-claim in the Knowles Action (the “Motion to Strike”);

ii.) a motion by Hui to compel the Liu Parties to deliver additional relevant, non-privileged documents from the file of Robert Kligerman, the lawyer for the Plaintiff Gui Zhao on the real estate transaction which is the subject of the Liu Action (the “Production Motion”); and

iii.) the Liu Parties’ motion for approval of discovery plans (the “Discovery Plan Motion”, collectively, the “Motions”).

3Similar to previous attendances, the Motions and related issues were resolved by case management and directions of the Court and agreement of the parties.

Motion To Strike

4As set out in the October Endorsement, Hui seeks to dismiss or stay Liu’s cross-claim on the basis that it is substantially similar to the Liu Parties’ claim in the Liu Action. This motion was adjourned on the first attendance as Hui did not file a Factum or Book of Authorities in support of his submissions. The Liu Parties oppose the Motion To Strike largely on the basis that the claims in question are not redundant or overlapping.

5After reviewing the parties’ materials and discussing the Motion To Strike with counsel, it is apparent that that Hui’s primary concerns relate to his representation by two different counsel: one appointed by an insurer in the Knowles Action and another counsel not appointed by an insurer in the Liu Action. Liu submits that representation by two counsel is not contemplated by the Rules and will present difficulties in obtaining instructions and filing materials.

6In my view, since the real issue is representation and not the substance of the Liu Parties’ claims, it would be inappropriate, particularly at this early juncture, to consider a motion to strike or stay the Liu Parties’ crossclaim. It is not unheard of for parties to be represented by more than one law firm and administrative issues regarding the filing of materials can be addressed by appropriate court orders and directions. Further, counsel have advised that they may be able to resolve these representation issues without court assistance and/or an opposed motion.

7Accordingly, I conclude that it is reasonable and appropriate in the circumstances to adjourn the Motion To Strike sine die while the parties determine if the representation issues can be resolved, without prejudice to Hui’s rights to bring it back before the Court or seek further directions.

Discovery Plan Motion and Production Motion

8The parties agree that discovery plans are necessary for the Actions and there appear to be only minor disputed issues with the 3 drafts filed by the Liu Parties, one for each of the Actions (the “Discovery Plans”). However, notwithstanding ongoing efforts over 8 months, the parties have not agreed to the Discovery Plans.

9In my view, it is imperative that the Discovery Plans be finalized, approved and implemented as soon as practicable particularly since examinations for discovery are scheduled to commence on April 2, 2019. I also conclude that the Production Motion be addressed as part of the Liu Action Discovery Plan.

10The only impediment to finalizing and approving the Discovery Plans on today’s attendance is the non-attendance of counsel for Royal Family Realty Inc. (“RFR”) or any knowledge of RFR’s position. Counsel for RFR was unable to attend due to a family medical emergency. Otherwise, other than the discrete issues set out below, the parties have now either consented to or do not oppose approval of the Discovery Plans. Accordingly, I am satisfied that, subject to any comments or issues raised by RFR, an order should issue approving the Discovery Plans. RFR is ordered and directed to provide any final comments on the Discovery Plans on or before March 29, 2019. Any final revisions should not delay examinations for discovery.

11Liu Action Discovery Plan - With respect to the Production Motion, Hui submits that the Liu Parties have failed to produce relevant non-privileged documents from Mr. Kligerman’s files which, based on the pleadings and facts of this case, they should have in their possession or control. The Liu Partes advised the Court that they have produced all relevant, non-privileged documents from Mr. Kligerman’s files.

12Where a party seeks the production of further documents, but it is not apparent that there are additional relevant documents to produce, the proper procedure is not to order further productions but to re-attend on discovery to ask further questions including those regarding the existence and availability of additional documents (BDD Solutions Inc. et al v. Huynh et al, 2017 ONSC 2869 at para. 36; Arenza Global Technologies Corp v. Cue Network Ltd., [2000] O.J. No. 1524 (S.C.J.)). In the present case, examinations for discovery have not even commenced. Accordingly, it is reasonable and proportionate that the Liu Parties advise on or before March 27, 2019 whether they have any additional relevant non-privileged documents to produce from Mr. Kligerman’s files, barring which any questions regarding such documents can be asked on examinations for discovery.

13Further, paragraph 10 of the Liu Action Discovery Plan shall be amended to accurately reflect Rule 31.05.1 which provides that no party shall exceed a total of 7 hours of examinations for discovery regardless of the number of parties or other persons to be examined.

14Finally, Hui shall properly number all productions in his Affidavit of Documents.

15Vander Ploeg Actions Discovery Plan – The only revision, other than those agreed upon between counsel, is the deletion of paragraph 9(4) as the Liu Parties have agreed that they no longer need to examine Remax.

16Knowles Actions Discovery Plan – The only revisions are those agreed upon between counsel. The Plaintiffs in the Knowles Actions submit that the scope of documentary discovery should be expanded so that paragraphs 4(c) and 4(d) include the Liu Parties’ global, non-Canadian real estate experience, if any. Based on the pleadings and the record, I am not inclined to expand the scope of documentary discovery to include any global real estate experience at this time. Although it may become clearer as a result of examinations for discovery and/or further productions, it is not apparent at this stage that any such experience is relevant.

Dismissal Of Vander Pleog Action Against Remax and Payment of Funds

17I signed orders, granted on consent, dismissing the Vander Ploeg Actions as against Remax and directing the payment of funds from the transaction at issue from Remax to counsel for the Vander Ploeg Plaintiffs in trust.

Order and Costs

18I am satisfied that the orders, directions and agreements set out above are a reasonable, efficient and proportionate resolution to the Motions and related issues before me consistent with Rule 1.04 which will permit the parties to move forward to examinations for discovery. Counsel may file a form of order with me for my review and approval.

19The costs of the Motions including today’s attendance are reserved to a future attendance.

20Counsel may schedule another telephone case conference if and when necessary. Counsel for the Liu Parties shall ensure that all counsel receive a copy of this Endorsement.