Court File and Parties

COURT FILE NO.: CV-22-1873 DATE: 20230825 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Xiao Qing Zhou and Chiu Kwong Chan, Plaintiffs AND: Po Yuk Chan a.k.a Peggy Chan a.k.a. Po Yuk Peggy Chan a.k.a Po Yuk Pc Chan, Northwood Mortgage Ltd., Anant Jain, Anant Jain Law Professional Corporation, Virgin Venture Capital Corporation, Ying Wang, and the Director of Land Titles for Ontario, Defendants

BEFORE: The Honourable Justice S.E. Fraser

COUNSEL: Ken MacDonald, Counsel for the Plaintiffs David Myers, Counsel for the Defendant, Po Yuk Chan No one appearing for the Defendant, Northwood Mortgage Ltd. Demetrios Yiokaris and Niki Manwani, Counsel for the Defendants, Anant Jain and Anant Jain Law Professional Corporation No one appearing for the Defendant, Virgin Venture Capital Corporation Perry Benipal, Counsel for the Defendant, Ying Wang No one appearing for the Defendant, Director of Land Titles for Ontario

HEARD: August 23, 2023

Endorsement

[1] At the end of a two-hour argument on a contested adjournment of the Plaintiffs’ motion for a Mareva injunction and a Norwich order relating to the Defendant Jain, for reasons discussed orally, I adjourned the motion sine die.

[2] I directed the parties to attend a Triage Court at 9:00 a.m. on September 12, 2023. I explained that the purpose of Triage Court is to discuss the scheduling of a long motion. Counsel are required to submit a maximum 2-page memo outlining the history of the file and what it is they are seeking. If they cannot agree, they may provide separate memos. Timetables are encouraged. This endorsement should be brought to the attention of the Triage Court.

[3] This endorsement supplements those reasons given on the record and addresses other issues including urgency and costs. Consideration of these questions that I assess the procedural steps taken by the Plaintiffs in bringing this motion which is discussed further below.

Plaintiffs’ Missteps in Bringing the Motion

[4] The primary issue of why the motion was not heard is that it should have been scheduled as a long motion. Because no long motion dates were available on a short term basis, Plaintiffs’ counsel took the first date available (which was for a short motion) from the Trial Coordinator’s office, without canvassing dates with other counsel, and filed materials, hoping to shoehorn a long motion in to a short motion date, hoping that it could be heard, but knowing that it would take longer than an hour. He said he took the slot available from the court (there was a similar short motion slot on August 30, 2023 but it was only a 30 minute slot, rather than a one hour slot).

[5] In addition to arbitrarily choosing a date on which the matter clearly could not be dealt with, Plaintiffs’ counsel did not serve all the parties to the action, taking the position that their interests were not affected and that he was not required to relying on Rule 37.07(1) of the Rules of Civil Procedure. Rule 37.07(1) provides that the notice of motion shall be served on any party or other person who will be affected by the order sought, unless the rules provide otherwise. That is at odds with this Court’s interpretation of the Rule in Canada (Attorney General) v. Cardinal Insurance Co, [1991] OJ No 2128, 7 CPC (3d) 167, 30 ACWS (3d) 363. Moreover, in my view, it does not lie with Plaintiffs’ counsel to assess whether another party is interested in a motion. When a motion is brought, all the parties to the action should be served.

[6] For those parties that he served, they were not provided with adequate notice, serving them late on a Friday, such that service was effective Monday, for a complicated motion to be heard on a Wednesday.

[7] The Plaintiffs’ motion record is in two volumes and was not hyperlinked. A three-page compendium was filed but not hyperlinked.

[8] The Defendant Jain filed responding materials including a factum. The Responding record is in five volumes and the Supplementary Responding Record is in 13 volumes.

[9] I determined that even if I could overlook the unfairness caused by these missteps, I could not fairly proceed with this matter in the time available as we would not complete argument in the time available and I would become seized of this matter which would complicate the full hearing of the matter.

Nature of the Action & Request for Injunction

[10] The plaintiff, Xiao Qing Zhou (Zhou), and her common-law spouse commenced this action against Po Yuk Chan (aka Peggy Chan) alleging that she placed fraudulent mortgages on Zhou’s home without her knowledge.

[11] The Defendant Ms. Chan is involved in multiple proceedings, facing similar allegations, her counsel estimates that there are 10 such proceedings in different jurisdictions in Ontario. Justice Smith is case managing one of those actions Yan Mi Eunice Chan v. Po Yuk Chan aka Peggy Chan et al, Court File No. CV 23-00000168-0000, (referred to as the Eunice Action). On September 8, 2023, the issue of whether a Mareva injunction issued against the Defendant Jain in that action should be lifted will come before him.

[12] The Plaintiffs sought a Mareva injunction against Ms. Chan which was granted. It is alleged that in their dealings with each other, the Plaintiff Ms. Zhou and the Defendant Peggy Chan met with the Defendant Mr. Jain who had Ms. Zhou sign papers which she alleges, turned out to be mortgages, unbeknownst to her.

[13] The Plaintiffs claim their motion is urgent because, while there is an existing Mareva injunction in the Eunice Action, the Defendant Jain is moving to set that aside. That motion will be heard by Justice Smith on September 8, 2023. The Plaintiffs assert that there is a risk of dissipation of assets should the injunction against Jain be listed.

[14] The Defendant Jain cites several reasons why this matter is not urgent and that this matter should be timetabled: a Mareva injunction should not be used as a substitute for discoveries. In support of their argument, the Defendant Jain identified the process issues above and made the following arguments:

a. The Plaintiffs have had knowledge of the concerning financial transactions since February 2023 and taken no steps;

b. The Plaintiffs have known since February 2023 that the Defendant was challenging the Mareva injunction in the Eunice Action;

c. There are procedural fairness issues and he needs to cross-examine the Plaintiffs;

d. There are no assets and no prejudice. He points to the Asset Affidavit filed in the Eunice Action which reveals no material assets. Plaintiffs’ counsel was counsel to Eunice in that action (and is no longer) and had access to the affidavit and failed to cross-examine.

e. The case against Mr. Jain is one of professional negligence and there is no expert evidence on the standard of care.

[15] I accept that the Plaintiffs have had since February 2023 to bring this motion. That the matter is now pressing, is of their own making. The Plaintiffs made a judgment call that they would be protected by the Eunice Action injunction. They do not have standing in the proceeding and counsel is of the view that there is some risk that it will be lifted after the hearing before Justice Smith on September 8, 2023.

Orders

[16] I decline to make an interim order at this time as I am of the view that even an interim order requires a proper hearing and time for the judge to properly consider this matter.

[17] The Plaintiffs shall pay the Defendant Jain’s costs of today on a partial indemnity basis in the amount of $5,000.00 inclusive of HST and disbursements. This is the amount sought today by the Defendant Jain and I consider it to be fair and reasonable. Ying Wang and Peggy Chan filed no materials. They shall have their costs of today payable by the Plaintiffs on a partial indemnity basis fixed at $750.00 each inclusive of HST and disbursements.

[18] The parties shall attend a Triage Court at 9:00 a.m. on September 12, 2023 to discuss the scheduling of a long motion. Counsel are required to submit a maximum 2-page memo outlining the history of the file and what it is they are seeking. If they cannot agree, they may provide separate memos. Timetables are encouraged. This endorsement should be brought to the attention of the Triage Court.

[19] The parties shall consider whether steps should be taken under Rule 37.15 and/or to apply to the Regional Senior Judge for civil case management of this matter.

[20] The Plaintiffs shall ensure that all Defendants are served with their motion materials.

Justice S.E. Fraser Date: August 25, 2023