Court File and Parties

COURT FILE NO.: CV-18-611091 DATE: 20230308 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wendy Wang and W. Li, Plaintiff/Responding Parties AND: Mattamy Corporation et al, Defendants/Moving Parties

BEFORE: Associate Justice J. Josefo

COUNSEL: Wendy Wang, self-represented for the Plaintiffs/Responding Parties T. Macintosh Zheng, for the Defendants/Moving Parties

HEARD: March 8, 2023

Endorsement

Issues to be Decided

[1] Pursuant to Rule 60.18(2) of the Rules of Civil Procedure, may defendants Mattamy examine plaintiffs in aid of execution to, inter alia, obtain information “pertinent to the enforcement of the (costs) order(s)” made against plaintiffs, per Rule 60.18(2)(g)? The costs orders total $22,282.84 plus interest. Mattamy seeks a court Order to compel plaintiffs to attend an examination in aid of execution, often called a “judgment-debtor examination”.

Overview of the Action

[2] This litigation arises out of a failed real estate transaction, with a February 11, 2017 Agreement of Purchase and Sale (“APS”) between these parties. The transaction did not close. Mattamy kept the plaintiffs’ deposit of $154,000. Plaintiffs sued for the return of the deposit, and for other damages. The APS had an arbitration clause for all disputes arising between the parties. Mattamy thus brought a motion seeking to stay the action in favour of arbitration, and to lift the default as plaintiffs had noted defendants in default.

[3] Mattamy was successful on its motion. The November 12, 2019 decision of Master Muir lifted the default and stayed the action (2019 ONSC 6675). His January 30, 2020 disposition awarded costs to Mattamy (2020 ONSC 678). On November 17, 2020, Justice Penny denied, with costs against them, the plaintiffs an extension of time to file their appeal of the original and subsequent (costs) decisions of Master Muir (2020 ONSC 7012). The April 9, 2021 decision of a Divisional Court panel declined to vary or set aside the Order of Justice Penny, finding that there were no errors of law, nor palpable and overriding errors of fact. The Divisional Court concurred with Justice Penny that “the proposed appeal (of Master Muir’s decision sought to be brought by the plaintiffs) is devoid of any merit”. Costs were again awarded against the plaintiffs (2021 ONSC 2635). On September 13, 2021, the Court of Appeal denied leave to appeal of the Divisional Court decision with costs against the plaintiffs (Court Number M52447). Finally, the Supreme Court of Canada on April 28, 2022 dismissed with costs the plaintiffs’ application for leave to appeal from the Court of Appeal Judgment ().

[4] Thus, plaintiffs indisputably came to the end of the litigation process, with their action having been stayed since later 2019.

The Enforcement Proceedings/Proceedings at the Motion

[5] Mattamy seeks to collect the costs quantum awarded to it through the six awards of costs. Again, the total sought is $22,282.84 plus interest, plus costs (if applicable) from the motion today. The record shows that Mattamy, who issued writs of seizure and sale, served Notices of Examination for the judgment-debtor exams. Neither of the plaintiffs attended those examinations. Indeed, the plaintiffs have categorically stated in correspondence that they will not attend; they are also adamant that they will not pay the costs owed pursuant to the various court Orders.

[6] During her submissions, Ms. Wang confirmed again, in response to my questions, that she would not pay the costs. She noted that she already had lost her deposit, which she believes should be returned. In some detail, Ms. Wang attempted to re-argue the plaintiff’s position, including her view that Master Muir’s original decision was an “unconstitutional Endorsement”.

[7] Ms. Wang also took great exception to the defendants, when filing the motion Confirmation Form for today, completing Part B of the Form. Ms. Wang asserted that she had not authorized this. I took notice that the plaintiffs had not authorized defendants to complete Part B of the Form. Counsel for defendants submitted that his doing so was an inadvertent error.

[8] Ms. Wang also opposed the addition, in part “F” of the Case-Lines bundle (“Jointly submitted and/or Consent Documents”), the “Participant Information Form” which identifies both parties appearing at this motion. She asserted that the failure of the defendants to upload this item to the proper location in Case-lines means that defendants’ motion should be dismissed.

[9] In my view, neither of these “form” or “process” issues could possibly justify the dismissal of the motion. Such would represent an unacceptable triumph of form over substance, from which approach the law has long ago and rightly departed. These clerical issues I find are fully inconsequential to my considering and addressing the merits of the motion.

[10] Counsel for defendants and I engaged in a discussion of the issue of proportionality on the one hand with, on the other hand, the understood proviso that court Orders must be obeyed and enforced. Overall, it seems somewhat disproportionate that Mattamy is still pursuing this action which is, for all intents and purposes, concluded. After all, the objective of Mattamy was to have the action stayed. It succeeded in this objective, despite the efforts of the plaintiffs, whose position did not prevail despite multiple attempts and appeals.

[11] I am informed that, despite Mattamy serving a notice of arbitration, as described at paragraph five of the first decision of Master Muir, arbitration was never pursued by the plaintiffs. While the APS apparently has no time limit stating by when arbitration must be pursued, defendants take the position, not unreasonably, that the plaintiffs would by now be well out of time given applicable time-limits. In that regard, I note that plaintiffs have had notice of the arbitration clause, if not since signing the APS, then at least since counsel for defendants wrote their former counsel on December 19, 2018 to remind plaintiffs of the arbitration clause in the APS (see paragraph four of the first decision of Master Muir).

[12] Yet despite all this notice, passage of time, and opportunity, plaintiffs never pursued the arbitration of this dispute. Ms. Wang confirmed to me today that, indeed, it was plaintiffs’ preference and choice to pursue the matter in the public courts, rather than in private arbitration. Accordingly, given the final disposition of the action by the prior decisions, and by the failure to arbitrate on the part of the plaintiffs, it seems to me that the case is well and truly over. The result is that Mattamy retains the plaintiffs’ deposit.

[13] Returning to proportionality and Mattamy’s pursuit of its costs, I remain puzzled why defendants are trying to resurrect this matter. Again, but for this motion, and the desire to collect a quantum which is under the Small Claims Court limit, the action was quite dead. Yet if I grant defendants the Order sought, as “past performance often predicts future outcome”, I should not be surprised if plaintiffs seek to appeal my decision, continuing to do so as often as they can until they again reach the end of the road. The defendants will have thus accomplished what Monty Python was unable to do: make a dead parrot sing.

[14] Similarly, I doubt that, as plaintiffs have not complied with the costs Orders made, they will now willingly attend a judgment-debtor examination should I order them to do so. Defendants will thus have to bring another motion to a Justice, seeking stronger enforcement measures. All this comes at a cost for defendants, who will unlikely recover all the costs that they expend even if they are awarded some, or even substantial indemnity, costs. There are also systemic costs. Access to justice is important for all, including large companies. Yet large companies, with knowledgeable and sophisticated counsel, know well of the backlog at court. This issue today, which defendants counsel admitted involves a small amount for defendants, consumed court time arguably better used for more pressing matters.

[15] It is not that large and successful companies such as are defendants should always give way. I certainly agree with counsel for defendants that all litigants, rich or poor, desire and should have the same equal justice. Yet, in my view, a consideration of proportionality and a “costs-benefits analysis” could have led defendants to decide, given the facts of this particular case, to simply accept victory and not pursue this motion, absent other circumstances.

[16] What ultimately persuades me to grant the Order in this case are two other specific circumstances, in addition to the “as of right” argument made by counsel for defendants:

• Plaintiffs’ defiance in the face of court Orders and their adamant refusal to be bound by them. Having started the litigation process and having pursued it vigorously, plaintiffs must appreciate that litigation can go in any direction, favourably or otherwise, and they are bound equally by unfavourable and favourable court decisions, including costs Orders which must be paid;
• As submitted by counsel for defendants, plaintiffs continue to pursue, in other forums, the same issue against the defendants. Plaintiffs clearly have not accepted, despite going as far as the Supreme Court of Canada, that they have lost. Plaintiffs are pursuing the defendants, it was submitted, at Tarion and the Home Construction Regulatory Authority. Doing so is a failure to recognize that the matter is over, and fairly exposes plaintiffs to enforcement consequences.

[17] I also recognize that creditors have a right to conduct a judgment-debtor examination simply by serving a notice of examination, with the debtor obliged to then attend. It is also clear that courts will, when defendants fail to attend, grant an Order compelling such attendance. See, in that regard, for just one example, Zavahir v. Goncalo, 2021 ONSC 8159. Whether it is wise in the circumstances of a particular case for a defendant to pursue such a matter by way of motion, I have addressed above in the context of this case. The right to do so is, however, acknowledged. Ultimately, I concur with counsel for defendants that defendants have the right to proceed this way, if they wish.

[18] I thus have signed the Order directing the plaintiffs to attend, albeit with some amendments to it.

Costs

[19] Defendants seek their costs of preparing for and appearing at the motion today.

[20] Pursuant to the December 5, 2022 Endorsement of Associate Justice Abrams, this matter was originally on her November 24, 2022 list. Yet for reasons set out in her Endorsement (including the lack of a Reporter), the matter could not proceed that day. The defendants had uploaded to Case-lines their costs outline that day, in anticipation of the motion then being heard. Defendants’ counsel acknowledged, however, that the costs outline was never served upon plaintiffs, either on or before November 24th or subsequently.

[21] Yet Rule 57.01(6), dealing with “costs outlines”, provides that a party who seeks costs for a step in a proceeding, “shall give to every other party involved in the same step, and bring to the hearing, a costs outline”. The defendants, by uploading the document, brought their costs outline to the hearing. It was not, however, given, even by email, to the plaintiffs.

[22] On that basis alone, it would not be just to award costs of today to defendants, against plaintiffs.

[23] Also, costs are discretionary. In the circumstances of defendants resurrecting this dead matter, for all the reasons discussed above, including using court resources on a matter below the monetary limit of the small claims court (even though this matter could not, I recognize, have been heard by that court), I would have to be persuaded to award costs to defendants. Given the failure to serve the costs outline on plaintiffs, I need not consider if, in all the circumstances, defendants would be able to persuade me that they are entitled to any costs.

Associate Justice J. Josefo Date: March 8, 2023