Court File and Parties

COURT FILE NO.: CV-16-126117-00 DATE: 20190508 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF TAI-KIU MAK, RAYMOND CHI-FAI MAK, EDDIE CHI-KWONG MAK and STEVE CHI-WING MAK Plaintiffs – and – KENNY CHI-KEUNG MAK Defendant

Counsel: Thomas J. MacLennan, for the Plaintiffs Mark A.B. Donald, for the Defendant

HEARD: December 14, 2018

Reasons for Decision

EDWARDS J. :

Overview

[1] What was once described as a closely-knit Chinese family, has now been ripped apart as a result of acrimonious litigation involving four brothers, three of whom are aligned against one. That one brother, the Defendant Kenny Mak (“Kenny”), asserts that while the wills of his mother and father contended that their estate be divided equally amongst the four brothers, such intent was ultimately changed after the death of his father, such that it was his mother’s intent to benefit Kenny by gifting him various items of property.

[2] The three surviving brothers who are the Plaintiffs, bring a motion for summary judgment arguing that the so-called gifts made by their mother to Kenny were not, in fact, gifts, and that Kenny must account to the estate for those assets so that the estate trustee can now divide the estate of their mother equally, in accordance with their mother’s wishes.

The Facts

[3] The Mak family was made up of the two parents, Yiu-Loi Mak (“the father”), Tai-Kiu Mak (“the mother”), and the four sons, Raymond Chi-Fai Mak (“Raymond”), Eddy Chi-Kwong Mak (“Eddy”), Steve Chi-Wing Mak (“Steve”), and Kenny Chi-Keung Mak (“Kenny”).

[4] Between 1970 and 1990, the various family members immigrated to Canada.

[5] Before emigrating from Hong Kong, the father owned a Mini Mart (the “Mini Mart”). The mother and father sold their Hong Kong assets and immigrated to Canada in 1980 when they were in their late 40’s. Having sold their assets in Hong Kong, they were able to purchase a family residence mortgage-free in Markham, Ontario. They also purchased two rental properties, gold which was kept in their safety deposit box, and maintained a securities account and a savings account.

[6] The mother and father made what are described as “mirror wills” in 1994, which essentially named each as the other’s sole beneficiary, and directed that the residue of their estates be paid to their four children in equal shares if one predeceased the other.

[7] The father died on May 9, 2002. The mother died on November 19, 2015.

[8] Subsequent to the father’s death in 2002, Kenny argues that he took over the management of his mother’s finances and that he also became his mother’s primary caregiver. These facts are disputed by the Plaintiffs, who claim that they had significant involvement in their mother’s care.

[9] It is Kenny’s position that his mother gave him primary access to her various accounts because she wanted him to have them. The premise for preferring Kenny over the Plaintiffs is based on Kenny’s assertion that his three brothers were well placed in life; they were well-educated and had good jobs, while he was not well educated and was only a baker. As such, Kenny suggests that his mother wanted to provide for his future by making the various gifts that are at issue in this lawsuit.

[10] What is in dispute in this lawsuit are the following items:

(a) a TD security account held jointly by Steve and Kenny, valued at approximately $413,000;

(b) a term deposit (811-4649) in the amount of $108,000 representing the sale proceeds of a property known as 72 Montezuma Trail (“Montezuma”), funds which were then transferred to account 622-0747;

(c) a joint account (621-8370) which was opened in 2002 in the joint names of Kenny and the mother and all property into which it can be traced, which includes:

(i) $268,000 which was allegedly used to purchase a condominium by Kenny in 2008 (from the proceeds of a term deposit 807-8294);

(ii) $264,000 drawn against the equity of Kenny’s condominium in 2010;

(iii) 98 ounces of gold purchased through joint account 6218370 for approximately $125,000, between 2002 and 2008, alleged to be worth approximately $162,000 as of February 2017.

Analysis

[11] The Plaintiffs seek summary judgment, and assert that Kenny has no defence to their claim as he holds their mother’s property in an express or resulting trust. The issue on this motion, therefore, is whether or not there is a genuine issue which requires a trial. As the recent decision from the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, makes clear, there will be no genuine issue for trial when the motion judge is able to reach a fair and just determination on the merits. In order to reach such a fair and just determination, the judge will be in a position to make the necessary findings of fact and apply the law to the facts.

[12] In this case, the record before the court involves various motion records, supplementary motion records, and further supplementary motion records, which contain in excess of 30 affidavits. As well, there are various transcripts of the cross-examinations conducted of the various affiants, together with hundreds of pages of documents. The totality of the motion material occupies two banker’s boxes. The Plaintiff filed a factum containing 27 pages of factual and legal submissions, while the Defendants filed a factum containing 49 pages of factual and legal submissions.

[13] In approaching the expanded powers granted to motion judges under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I am mindful of the admonition of Lauwers J.A. in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, where, at paras. 44 and 45, he stated:

What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not ‘serve the goals of timeliness, affordability and proportionality’ (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.

[14] The more recent comments of the Court of Appeal as it relates to the enhanced fact-finding powers under Rules 20.04(2.1) and (2.2), are set forth in Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, where Benotto J.A. stated at paras. 48 and 49:

These changes were designed and implemented to improve access to justice by providing a mechanism to resolve issues more expeditiously than through a traditional trial. In appropriate cases, the motion for summary judgment provides an alternative model of adjudication that has the benefit of streamlining the process for litigants and making the civil justice system more accessible and affordable.

However, the fact that the new process of adjudication is well-intentioned and can be beneficial cannot impose an imperative on the court to use it in every case. There is a risk that, in an effort to dispose of the case, the evidence will not be properly analysed. The Supreme Court affirmed in Hryniak, at para. 28, that ‘[t]he principal goal remains the same: a fair process that results in a just adjudication of disputes’.

[15] There can be no doubt whatsoever that the preparation for this motion for summary judgment was extensive and undoubtedly very expensive for the parties. The Plaintiffs would have this court distill from all of the evidence, that their mother never intended to gift to their brother Kenny the various assets referenced in para. 10 above. Kenny, of course, asserts the contrary. So much of the evidence in this case flows from numerous affidavits and exhibits that, of necessity, were drafted by the lawyers. In my view, it is close to impossible to assess the reliability and credibility of this type of evidence on a motion for summary judgement. The sheer volume of material in and of itself, should alert the court that this is not a case where the court can be confident in deciding that there is no genuine issue requiring a trial.

[16] In a recent decision of Perell J. in Amelin Resources, Inc. v. Victory Energy Operations, L.L.C., 2018 ONSC 7104, the court was asked to grant summary judgment where the Plaintiff asserted a claim for breach of contract and conspiracy. The material filed with the court was voluminous. The motion was dismissed summarily in reasons comprising less than one page. In doing so, Perell J. stated at para. 7:

A recounting by me of the highly contested facts that underlie Amelin’s action would interfere with the trial judge’s assessment of this action and would involve, among other things, determining what pre-contract representations were made, whether there was a collusion between Russian corporation(s) with an American corporation, whether there were secret meetings, whether there as a conspiracy to harm Amelin or to misappropriate its business in Russia, and whether there was a conspiracy to interfere with Amelin’s cash flow to render it vulnerable to economic duress.

[17] More importantly, Perell J. went on in para. 8 to state:

A summary recounting of the facts would also involve determining how several contracts should be interpreted when they were created in a convoluted factual nexus, whether and which of the contracts and work orders were valid contracts, and whether any contracts or purchase order were breached, and, if so, the extent of Amelin’s damages, if any. There are missing witnesses, hearsay problems, and credibility and reliability issues associated with the various genuine issues.

While the action in Amelin was a breach of contract and conspiracy claim, the concerns that Perell J. expressed are of equal, if not greater concern, in what, in essence, is an estate fight amongst family members where the court will have to distill the intentions of the deceased long after she has passed away. It is worth noting that the decision of Perell J. in Amelin was the subject matter of a leave application to the Divisional Court. Leave was denied.

[18] The principles laid down by the Supreme Court in Hryniak are important. There has been a fundamental change in how motions judges have been called upon to apply the law as it relates to a motion for summary judgment. Much of the change has been positive. However, the facts of this case and the facts of Amelin demonstrate how litigants have shifted the responsibility for laying out the facts through the trial process to the motion judge, who must sift through a mountain of paper in the hope of reaching a fair and just determination on the merits without the need for a trial.

[19] The actual hearing of the motion for summary judgment may only take a day. The preparation for the motion for summary judgment, including the drafting of affidavits; the preparation for and attendance at the cross-examinations of the deponents to those affidavits; and the preparation of factums, are time consuming and expensive. One may seriously question, on the facts of this case, like many that the court sees, whether that time and effort represents much in the way of any saving for the litigants. Certainly, if the motion is unsuccessful, there has been unnecessary delay and expense in getting the case to trial.

[20] What is also lost on the litigants is that, after the motion has been heard, the motion judge then has the responsibility of sifting through a mountain of paper. The motion may have been argued in a matter of hours, but the motion judge’s job is far from over. Put also in the context that many judges are circuiting from courthouse to courthouse with ever changing assignments, it is not always possible to release a judgment in the time expected by the litigants. Where the court is confronted with two banker’s boxes of material as was the case before me, counsel and their clients should seriously consider if the case is one where the court can truly conclude that there is no genuine issue for trial. Some may argue that regardless of the volume of material, it is still possible, after argument and time, to reflect that the court can do justice to the principles laid down in Hryniak. I entirely disagree. With the pressures imposed on the court by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, it will be a rare case that a motions judge in a busy centre such as Newmarket, can dedicate the time necessary to review two banker’s boxes of material before moving on to various criminal trials previously assigned in that judge’s calendar.

[21] The volume of material that was filed in this case, in my view, should have made it self-evident to the parties and their counsel that this was not the kind of case that was suitable for a motion under Rule 20. There are serious credibility issues between the parties and the various witnesses, that make this case an obvious case where the court cannot be satisfied that it can reach a fair and just determination. The motion is dismissed.

[22] At the completion of the evidence, I sought submissions from counsel as to the issue of costs. Unless there are offers to settle that may impact on the awarding of costs, I intend to fix costs in the amount of $17,500, which was the midpoint between what both counsel suggested was a reasonable figure, should they be unsuccessful on the motion. Both sides clearly anticipated that, as the losing party, such a range was within their contemplation. As the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, makes clear, one of the considerations in fixing costs is to fix an amount that is fair and reasonable from the perspective of the losing party.

[23] As for the timing of the payment of the aforesaid costs, I intend to follow the line of reasoning set forth most recently in a decision of E.M. Morgan J. in Cuming v. Toronto, 2019 ONSC 2486. Cuming followed the earlier decisions of this court in Gafny v. Vainshtein, 2016 ONSC 4030; Smith (Estate) v. National Money Mart Co., 92 O.R. (3d) 224; and Masales v. Cole, 2016 ONSC 1814. Cuming, like the earlier cases referred to above, essentially stands for the proposition that if the court denies a party’s motion for summary judgement but is of the view the unsuccessful party brought the motion in good faith, the appropriate disposition as it relates to costs is that the costs should be in the cause. Fundamentally, the merits of this action remain to be determined. If the Defendant is ultimately vindicated he will get his costs of the action, which will include the costs I have ordered. If, on the other hand, the court finds in favour of the Plaintiffs, it seems a little incongruous that the Defendant should get his costs from this failed summary judgement motion.

[24] If the parties do wish to make further submissions on costs, both with respect to quantum and timing of payment, they may file written submissions limited to two pages in length, to be received within 10 days from the date of receipt of these Reasons. If submissions are not received within this time frame, the court will assume the parties are content with this court’s determination.

[25] While the time and effort expended by the parties on this motion for summary judgment may be viewed as wasted, I intend to build on the work conducted by counsel and will case manage this case, in an effort to have it ready for trial by November 2019. Counsel should contact my assistant Diane Massey, diane.massey@ontario.ca, to set up an initial telephone case conference to discuss any issues that need to be addressed to get this matter ready for trial.

Justice M.L. Edwards Released: May 8, 2019