Court File and Parties

COURT FILE NO.: CV-21-00659829-0000

DATE: 20211116

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HUANYU SHI Plaintiff

AND:

JUNXU CHEN and ZHIWEI SUN Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: P. Neufeld, for the Plaintiff

J. Wang, for the Defendants

HEARD: November 16, 2021, by teleconference

ENDORSEMENT

[1] By endorsement dated June 22, 2021, I granted the Plaintiff’s motion for a Mareva Injunction. The Defendant owned the property located at 35 Pheasant Dr., Richmond Hill. The property was sold for $1,888,000. The sale closed on July 2, 2021. The Defendant was enjoined from disposing of the net proceeds of the sale of the property. After payment of the expenses relating to the sale, and the discharge of the first, second and third mortgages, approximately $210,000 was paid into court.

[2] The Defendant brought a motion to vary the Mareva Injunction to allow him to pay his reasonable living expenses and to pay his legal costs incurred in defending this action. On November 8, 2021, counsel for the Defendant, Ms. Wang wrote to counsel for the Plaintiff and advised that she will be bringing a motion to be removed as solicitor of record. She also advised that she will not be pursuing the motion to vary the terms of the Mareva Injunction.

[3] On the return date of the motion, Ms. Wang attended. She advised that the motion to be removed as counsel of record is returnable February 3, 2022. She also advised that the Defendant intends to continue the motion to vary once he retains new counsel.

[4] Plaintiff’s counsel argues that his client is entitled to its costs thrown away of the motion to vary. The costs include the preparation of motion material and the cross-examination of the Defendant. In addition, counsel had begun drafting his factum before being advised by Ms. Wang that the motion to vary would not be going ahead. He seeks his costs on a full indemnity basis in the amount of $8,152.39, inclusive of counsel fee, H.S.T. and disbursements.

[5] Ms. Wang argued that the costs claimed by the Plaintiff may not be “thrown away” if the Defendant renews the motion to vary.

[6] I am of the view that the Plaintiff is entitled to his costs thrown away. The amount of costs is discretionary under section 131 of the Courts of Justice Act. The discretion is to be exercised in accordance with the factors set out in R. 57.01 of the Rules of Civil Procedure. One of the factors to be considered is the conduct of a party that has tended to lengthen the proceeding unnecessarily.

[7] The Defendant’s decision to bring the motion and proceed to cross-examinations, only to abandon the motion a week before the hearing is conduct that unnecessarily lengthened the proceedings and resulted in additional costs being incurred by the Plaintiff.

[8] In the exercise of my discretion, I fix the Plaintiff’s costs of the motion to vary the Mareva Injunction in the amount of $7,500 inclusive of counsel fee, H.S.T. and disbursements. In the event the Defendant later pursues the motion to vary the Mareva Injunction, I direct that if an award of costs is made in favour of the Plaintiff, it shall not include any amount for the preparation for the motion to vary, that was returnable today.

[9] The costs are payable by the Defendants within 30 days of the date of this endorsement.

[10] The Plaintiff brought a cross-motion for an order pursuant to R. 30.10 for the production of documents from non-parties, and R. 31.10 for an examination of non-parties. The Plaintiff argues that after the Defendant received notice of the Plaintiff’s motion for a Mareva Injunction, he encumbered his property to defeat the Plaintiff’s claim. The Defendant failed to provide the documents related to the mortgages which are in his possession and therefore it is necessary to obtain the documents from the non-parties.

[11] The relief claimed is within the jurisdiction of an associate judge. I directed counsel for the Plaintiff to bring the R. 30.10 and 31.10 motion to an associate judge. I also directed counsel to ensure that the motion record is served personally on the non-parties pursuant to R. 30.10(2)(b).

[12] I am no longer seized of this matter.

DATE: November 16, 2021