COURT FILE NO.: CV-23-703216 DATE: 2023 09 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KATHERINE LEE, Plaintiff - and - YUNCHANG LI, YAHONG LI and GARRY ERWIN SHAPIRO, Defendants
BEFORE: Associate Justice Todd Robinson
COUNSEL: R. Finkel and I. Ferreira, for the plaintiff, Katherine Lee A. Chang and H. Shao, for the defendants, Yunchang Li and Yahong Li M. Kestenberg, for the defendant, Garry Erwin Shapiro
HEARD: September 14, 2023 (by videoconference)
SUPPLEMENTARY REASONS FOR DECISION (Leave for certificate of pending litigation)
[1] Following release of my reasons for decision on the plaintiff’s motion for a certificate of pending litigation (2023 ONSC 5310), the lawyer for Yunchang Li and Yahong Li (the “Li Defendants”) has written to my Assistant Trial Coordinator questioning the evidentiary basis for comments at para. 24 of my reasons. Specifically, I referred to a mortgage on the subject property in favour of The Bank of Montreal and the lack of evidence on any pending renewal or refinancing. The Li Defendants’ lawyer asserts that the mortgage is not mentioned in the motion materials and that there is no mortgage on the property.
[2] I am issuing these supplementary reasons for two purposes:
(a) to address what is becoming a far too common practice of lawyers in the civil litigation bar improperly writing to the court; and
(b) since a specific concern with the evidentiary basis for part of my decision has been raised by the unsuccessful parties, to clarify my reasons on that point.
[3] Since the onset of remote court operations during the pandemic, there has been a notable increase in the frequency with which lawyers in the civil litigation bar now write directly to the court without any prior consent of opposing counsel. Opposing counsel will be copied on the email or letter, as was done here, presumably under the mistaken belief that doing so is enough to make the communication appropriate. It is not.
[4] Rule 1.09 of the Rules of Civil Procedure, RRO 1990, Reg 194, which is mandatory, states as follows:
Communications out of Court
1.09 When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge or associate judge out of court, directly or indirectly, unless,
(a) all the parties consent, in advance, to the out-of-court communication; or
(b) the court directs otherwise.
[5] Accordingly, there are only two circumstances in which a lawyer is authorized to write directly to the court: (i) when the prior consent of all affected parties has been obtained, or (ii) when directed to do so by the court. Neither applies here.
[6] To the extent that a party disagrees with a decision of the court or feels that the court erred in its assessment of the evidence, then the proper avenue for raising a challenge is by way of appeal or, if the presiding judge or associate judge is not functus officio, by seeking a case conference to make submissions on the matter. An email or letter discussing the concern is only appropriate if all affected parties have consented to the communication in advance.
[7] With respect to the specific concern raised, I am mindful that the Li Defendants were unsuccessful on the motion and appear to believe that my decision was, at least in part, founded on a misunderstanding of the evidence. If not the case, I fail to see why the communication was sent at all. In the circumstances, and without condoning the breach of rule 1.09, I feel it is appropriate to provide clarification.
[8] The comment at para. 24 of my reasons was drawn from a title abstract for the subject property at exhibit 10 to the affidavit of Katherine Lee sworn July 26, 2023. The exhibit is described in Ms. Lee’s affidavit as being the plaintiff’s registered caution, but it is actually the title abstract. That abstract, which was obtained on June 24, 2023, shows a mortgage in favour of the Bank of Montreal for $500,000 registered on May 10, 2023. That is approximately one month prior to the disputed transfer. Although neither the title abstract nor that mortgage was specifically addressed in the affidavits, facta, or oral submissions of the parties, the title abstract is nevertheless part of the evidentiary record before me.
[9] In reaching a decision on a motion, a judge or associate judge is entitled to consider the entire evidentiary record before them. It is not necessary for a party to specifically make submissions on part of that evidence for it to be properly considered.
[10] Based on the title abstract, a mortgage remained registered on title as of June 24, 2023. There is no evidence supporting if, how and when it was discharged. Ultimately, whether or not there is still a registered mortgage has no impact on my decision. As indicated at para. 24 of my reasons, the Li Defendants tendered no evidence of any pending need to deal with the property. Their evidence is that they have no intention of selling the property or leaving the country. If the property is, in fact, unencumbered, that does not assist the Li Defendants. My assessment of the equities remains the same. No amendment or modification to my reasons is required.
[11] The Li Defendants shall not be entitled to claim costs of anything to do with their improper communication to the court or these supplementary reasons. Ms. Lee’s costs, if any, shall be claimable as costs of the action in the ordinary course.
ASSOCIATE JUSTICE TODD ROBINSON DATE: September 27, 2023