Court File and Parties

COURT FILE NO.: CV-19-00625249 DATE: 20200723 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tribute (Grandview) Limited, Plaintiff – AND – Sheng Ye, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Ranjan Das and Sarah Berhane, for the Plaintiff James Chow, for the Defendant

HEARD: July 23, 2020

Endorsement

[1] The Plaintiff seeks summary judgment of a claim relating to an aborted sale of a home.

[2] The motion was scheduled by Faieta J. in Civil Practice Court on December 17, 2019. Justice Faieta set out a detailed schedule for motion materials, cross-examinations, and factums leading up to the motion date, with a Direction that stated: “The parties shall comply with the attached timetable.”

[3] The Plaintiff has complied with the timetable. The Defendant has not.

[4] Until last night at 8:00 p.m., counsel for the Plaintiff had not received any responding materials of any sort from counsel for the Defendant. For that reason, in preparation for today’s hearing, counsel for the Plaintiff went so far as to prepare a draft judgment for my consideration. Much to Plaintiff’s counsel’s surprise, however, last night – i.e. the night before the hearing – they received a responding record and factum from Defendant’s counsel.

[5] The Defendant’s late filed record contained an appraisal report for the property in issue that the Plaintiff has never seen before. If Justice Faieta’s Direction had been followed, this would have had to be served on the Plaintiff by February 20, 2020. The Defendant’s late filed factum contained an admission of liability from the Defendant and a statement that only quantum of damages is at issue, again for the first time. If Justice Faieta’s Direction had been followed, this would have had to be served on the Plaintiff by April 27, 2020.

[6] Counsel for the Plaintiff submit that this late arriving material has put them in a position where they are compelled to seek an adjournment. They have not had time to analyze and digest the appraisal report, or to consider their response to it. They may want to reply with an appraisal report of their own, or they may want to cross-examine the Defendant’s appraiser, or both.

[7] Plaintiff’s counsel are concerned that this last minute delay may provide an opportunity for the Defendant to dispose of or encumber his assets. While that concern cannot be established with certainty, there is evidence in the record indicating that the Defendant purchases properties on a rapid, speculative basis, and has some experience with fast-paced property ‘flips’. Plaintiff’s counsel submit that the Defendant’s silence in the face of this claim and in the face of the timetable set by the court, followed by the sudden appearance of evidence that needs to be responded to the night before the hearing, suggests that the Defendant is trying to buy time for some kind of financial maneuvering.

[8] Given the state of the record, it is obvious that the Defendant will owe something to the Plaintiff; the only question is how much. Plaintiff’s counsel advises that the Defendant’s liability appears to be somewhere in the range of $260,000, while Defendant’s counsel says that it is considerably lower than that. Obviously, a determination of the precise amount will take a more thorough review of the evidence than I have conducted in this hearing, which has focused on the adjournment request.

[9] The Plaintiff’s position is that given the inexplicable lateness and lack of communication by the Defendant all along, there should be an adjournment on rather strict terms. Plaintiff’s counsel seek some mechanism which will forestall any attempt by the Defendant to put assets out of reach in the meantime, and suggest that the Defendant post security for the claim as well as security for costs.

[10] While I am sympathetic to the Plaintiff’s request given the history of this matter and the evidence in the record, requiring the Defendant to post security for the claim and security for any further costs would put the Plaintiff in a better position following the adjournment than it would have been in had the motion proceeded in a timely way. I agree that there need to be some terms of adjournment that prevent the Plaintiff from being disadvantaged by the Defendant’s extreme tardiness, but those terms ought not be so stringent as to give the Plaintiff an extra added advantage.

[11] I make no order of security for costs and no order that security be posted in respect of the Defendant’s liability for the claim. Instead, pending the return of the motion or until further order of the court, the Defendant is ordered not to dispose of or encumber any of his assets in Ontario, or to incur any further indebtedness, except for expenses that need to be paid by him in the ordinary course of his daily life. That will ensure that the Defendant is in the same overall financial position on the new return date of the motion as he is today.

[12] The Plaintiff shall serve a Reply record, if any, by July 29, 2020, and shall complete any cross-examination of the Defendant’s appraiser by July 31, 2020. The Defendant is to bear the cost of an expedited transcript of any cross-examination.

[13] Pursuant to Justice Faieta’s Direction and timetable, the Defendant had many months to conduct cross-examinations of the Plaintiff’s affiant and did not do so. He is therefore foreclosed from doing so now. The Defendant shall not submit any further evidence or conduct any cross-examinations prior to the return of the motion.

[14] Both parties are at liberty to serve and file memos or supplementary factums up until the day before the return date of the motion dealing with the damages issue and their view of how damages are to be calculated.

[15] The Defendant did not advise Plaintiff’s counsel until last night that it was conceding liability. Plaintiff’s counsel was thus compelled to prepare for argument of a summary judgment motion on all of the issues. Much of that preparation turns out to have been unnecessary. The Defendant shall pay the Plaintiff a total of $4,500 in costs for today’s appearance and for costs thrown away for today.

[16] The motion is adjourned to August 5, 2020, peremptory on the Defendant. I am not seized.

Morgan J. Date: July 23, 2020

Addendum

Notwithstanding Rule 59.05, this Order is effective from the date it is made and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Order need be entered and filed unless appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Order may nonetheless submit a formal Order for original signing, entry and filing when the Court returns to regular operations.