Court File and Parties

Court File No.: CV-16-566299 Motion Heard: 2020-08-18

Junyi Yang v. Jiajun Xu, et al. Court File No.: CV-16-566299

Motion: In Writing, as agreed to by the parties

For the plaintiff: N. Wan/L. Gilbert For the defendants: Jiajun Xu, defendant (assisted by his daughter, Sherry Xu)

Reasons for Decision

[1] On November 28/19, I made a last-chance Order. I ordered the defendants to pay amounts that they had earlier been ordered to pay by other judicial officers, totalling $2,927.25 [1] --this by January 16/20. I ordered the corporate defendant to have a lawyer go on the record for it or to book a motion to have someone other than a lawyer represent it--also by January 16/20. And, I ordered that further costs, being costs of the November/19 motion, be paid by February 28/20--in the amount of $1,800.00.

[2] No motion (or request) for an extension of time was made by either defendant before the deadlines elapsed. The January 16/20 deadline came and went, with no costs paid, no motion (of any kind) booked and no change in the corporate defendant’s representation status. The February 28/20 deadline, too, came and went, with no steps having been taken by the defendants to comply with my November 28/19 Order or with the Orders earlier made by others.

[3] The defendants addressed this motion (the plaintiff’s motion to strike the defendants’ statement of defence) in writing [2]. In his response (on behalf of the defendants), Mr. Xu says that he “does not have [a] stable income due to [a] language barrier in Canada” (I note that he speaks Mandarin); that he earns between $300.00 and $800.00 from a part-time job (he does not say whether this is weekly/monthly or otherwise); and, that he relies on his son and daughter for financial assistance. He also says that he used his savings for (unspecified) legal expenses.

[4] Mr. Xu’s response to the plaintiff’s motion is not sufficient to defeat it. His bald and unsubstantiated statements do not assist the court. He admits to being able to earn some income. He admits to having had savings on which to draw. And he admits to having a son and daughter to whom he can turn for financial assistance. He has not provided the court with any specific/detailed evidence as to the defendants’ financial circumstances. He has filed no tax returns/financial statements/bank statements/lists of expenses, for the court’s consideration; and he has made no comment on efforts to borrow money, including from financial institutions and family members (just by way of example of what he hasn’t but could have done).

[5] Further, Mr. Xu does not address, at all, the requirement imposed on the corporation to book a motion for an Order permitting someone other than a lawyer to represent it, if it cannot afford to retain counsel.

[6] Then too, and even if I were to accept--without more--the defendants’ statement that they are not able to pay the costs ordered paid by them, the defendants have offered the court no alternatives. No payment plan or extension of time to pay has been suggested. And no good faith payment of even a nominal amount, on account, has been made.

[7] I could have struck the defendants’ statement of defence on November 28/19 (with the defendants having failed to deliver responding motion materials); but, I didn’t. With a Mandarin-English interpreter in court, assisting Mr. Xu, I gave the defendants one final chance to cure their defaults (after an indulgence had already been provided to them by Master Graham, in March of 2019), failing which I made clear that their statement of defence could be struck.

[8] Nothing has been done by either of the defendants in compliance with my November 28/19 Order; and, importantly, no remedial steps have been proposed (even if Mr. Xu says that he does not decline to pay what the defendants have been ordered to pay). Failing to fulfill the terms of a last-chance court Order (identified clearly as being a last-chance Order)--with no proposal as to when/how the Order might be fulfilled (even in part or over a period of time)--is, in my view, no different than refusing to comply with the Order.

[9] All this being so, and having regard to the relief now sought, I am ordering the following. Unless, by 4:00 p.m. on August 21/20, (a) the sum of $4,727.25 is remitted to plaintiff’s counsel (in trust) by way of e-transfer, certified cheque, money order or such other guaranteed form of payment as plaintiff’s counsel may permit, and (b) a date (no later than September 30/20) by which counsel will go on the record for the corporate defendant is proposed (which date will form part of a court Order binding the corporate defendant), the plaintiff’s motion will be granted, without more--in accordance with R. 57.03(2) and R. 15.04(7)(a) (see too: the March 14/19 Order of Master McGraw).

[10] Mr. Wan or Ms. Gilbert is to notify me as to the status of this matter by email sent to my ATC, Ms. Mahase (copied to the defendants, c/o Ms. Sherry Xu)—this by August 24/20. If the two steps provided for in paragraph 9, above, are taken, I will timetable next steps (in consultation with the parties) and entertain costs submissions. If they are not taken, a formal Order striking the defendants’ defences will issue.

August 18/20 ORIGINAL SIGNED BY: Master Abrams

The Order endorsed above is effective without further formality.

Footnotes

[1] The first costs award made against the defendants (making up $1,200.00 of the $2,927.25) was the August 15/18 Order of Master Muir. No amounts have been paid, on account.

[2] This motion was first scheduled to be heard on March 31/20 but was adjourned because of the suspension of in-court hearings due to COVID-19. I offered the parties a hearing by way of videoconference, but was asked (by them) to proceed by way of an in-writing hearing, instead.