Court File and Parties

COURT FILE NO.: CV-19-622952 MOTION HEARD: 20221123 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jane Doe 622952, Plaintiff AND: Boyuan Zhang, Defendant

BEFORE: Associate Justice Jolley COUNSEL: Gregory Ko, counsel for the moving party plaintiff Boyuan Zhang, in person HEARD: 23 November 2022

Reasons for Decision

[1] The plaintiff brings this motion for an order striking the defendant’s statement of defence as a result of his failure to comply with a court order made 1 April 2021 and, when he did not comply with that order, a second chance court order made 1 June 2022.

[2] To date, the defendant has refused to answer numerous ordered undertakings and refusals, now outstanding since April 2021. He has also failed to pay $7,500 in costs. While he stated that he does not have funds, he filed no affidavit evidence to support that position.

[3] The plaintiff sought an order striking the statement of defence when she appeared before Associate Justice Abrams in June 2022. Her Honour did not strike the defence at that time but stated in her endorsement, “Mr. Zhang should know that if he fails to comply with the Order now made by me, he risks having his defence struck, with costs. While he may disagree with the rulings of Master Short, no appeal was taken from them and they remain rulings of the court with which he must comply.”

[4] The defendant did not file responding materials on this motion and did not seek an adjournment to do so. He indicated that he was out of the country and could not file materials. I note that the defendant’s location is no impediment to him filing responding materials in this electronic age when materials are filed by email to the court portal and uploaded electronically. The plaintiff argued that this is yet another attempt by the defendant to delay this proceeding.

[5] The evidence before me is that the undertakings and refusals all remain outstanding. The defendant advised in the course of his argument that he did not comply with many of the ordered undertakings because he felt a number of them were overly broad and, therefore, not relevant. While he had the option to appeal if he disagreed with the scope of the order, it is not open to him to disobey a court order on the basis that he does not think the information sought is relevant.

[6] He also argued that the orders were intrusive. With respect to the numerous photos he was ordered to deliver, he refused to provide them, stating that he was concerned that the plaintiff’s family would disseminate them. He indicated that he would not turn over his phone, even though ordered, as the plaintiff could access his bank accounts with it and also contact all the individuals listed in his phone. Again, these are not arguments available to the defendant once a court order is made.

[7] He also argued that the plaintiff did not need these photos and emails as they had enough information from non-parties, such as twitter, to go to trial.

[8] All of these arguments simply demonstrate that the defendant is unwilling to comply with the court orders that he thinks are unfair to him. He did not indicate even today that he would comply with the prior orders if given the further opportunity to do so.

[9] The defendant has shown he is unwilling to comply with court orders that do not suit him. He has attempted to put conditions on his compliance with clear court orders, up to and including his arguments today that he would provide the photos provided the court made guarantees to him about their access. His conduct has caused the plaintiff to bring, at her expense, a multiplicity of motions for the same relief, none of which has had any effect. The defendant has confirmed that costs orders have no impact on his behaviour as he is “fine to become a judgment debtor on the motion”.

[10] This is an appropriate case for the defence to be struck and I so order with costs fixed at the all inclusive amount of $5,000.

Associate Justice Jolley

Date: 23 November 2022