Court File and Parties

Court File No.: CV-22-680749 Motion Heard: February 21, 2024 Superior Court of Justice - Ontario

Re: Jiang Ming Huang, Plaintiff -AND- 2556748 Ontario Inc., Pingyuan Geng a.k.a. Bill Geng, Ruijuan Wu a.k.a. Susan Wu, Century 21 Landunion Realty Inc., Defendants

Before: Associate Justice Abrams

Counsel: C. Zhang, counsel for the plaintiff C. Marino, counsel for defendant, 2556748 Ontario Inc. G. Tighe, K.C./D. Bikic, counsel for the remaining defendants (the “realtor defendants”)

Reasons for Decision

[1] The defendants move for an Order requiring the plaintiff to post security for the costs of the within action, on a pay-as-you-go basis. The defendants’ motion was brought with one set of motion materials, save that the draft bills of costs of 2556748 Ontario Inc. and the realtor defendants were different. The plaintiff made a preliminary objection as to all of the defendants being able to move, together, for this form of relief, given that the realtor defendants had not booked their own, separate, security for costs motion. Having regard to R. 1.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the need to mitigate delay, and wishing to avoid a multiplicity of motions and the possibility of inconsistent rulings, I chose to permit all of the defendants to argue their joint motion, rather than require of the realtor defendants that they move separately on a later date.

[2] This action arises out of a failed real estate deal. After signing an agreement of purchase and sale for a new home to be built and after the home was built, the plaintiff advised (by way of email from his son to the principal of the vendor corporation--the defendant, 2556748 Ontario Inc.) that he did not wish to proceed with the transaction. The evidence before me is that, in 2020, both the real estate broker for the sale at issue, the defendant Susan Wu, and the plaintiff’s son advised the principal of 2556748 Ontario Inc., Jack Zafrani, that the plaintiff had moved back to China and would not be returning to Canada. That being so, the defendants have brought this motion relying on RR. 56.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] R. 56.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the court may make such Order for security for costs as is just where it appears that the plaintiff is ordinarily resident outside of Ontario. The case law is clear that certainty is not required. Once the first part of the test is satisfied, “the onus is on the plaintiff to establish that an order for security would be unjust” (Coastline Corporation Ltd. v. Canaccord Capital Corporation, at para. 7).

[4] The plaintiff says that the defendants “have produced no evidence to indicate [he] is ordinarily resident outside of Ontario except for some [G]oogle searches and Teranet searches” (factum at para. 19). To this, the defendants respond that evidence as to where the plaintiff is ordinarily resident is evidence that is within the plaintiff’s own power and control [1]. The best that defendants can do, on a motion such as this, is to provide the court with support for their contention that “it appears” that the plaintiff is ordinarily resident outside of Ontario. This the defendants have done--persuasively. They searched property records, Canada411 listings and social media sites—which searches yielded no results for the plaintiff in Ontario. They conducted a driver’s license search—which search disclosed that the plaintiff has been unlicensed since 2020, with his status being “unrenewable”. And they considered the plaintiff’s OREA Individual Identification Information Record—which Record made no mention of a business or occupation for the plaintiff. They also adduced evidence from Mr. Zafrani who attested to both Ms. Wu and the plaintiff’s son having told him that the plaintiff had moved back to China and would not be returning to Canada. I note that Mr. Zafrani was not cross-examined on his affidavit.

[5] On the issue of “ordinary residence”, the defendants point to the definition referenced in Dukelow and Nuse’s The Dictionary of Canadian Law, 2nd ed. (as derived from Thomson v. Minister of National Revenue, [1946] SCR 209, at pp. 224-225). A person is said to be ‘ordinarily resident’ “…in the place where in the settled routine of his life, he regularly, normally or customarily lives”. The distinction is drawn with “occasional or casual residence”. In Tang v. Xpert Credit Control Solutions Inc., 2023 ONSC 3827, Richetti, J. opined that the words “ordinarily resident in Ontario” mean “currently resident [emphasis added] in Ontario at the time of the motion” (at para. 19).

[6] The only evidence now adduced by the plaintiff to rebut the suggestion that it appears that his ordinary residence is outside of Ontario is the affidavit of a legal assistant working in the offices of his lawyers of record, Ms. Li. She indicates having “communicated with [the plaintiff]” on January 4/24 and having been told by him that he is ordinarily resident in Ontario and that “he resides” in a property “registered under” his wife’s name [2]. She does not say how it is that she knew that the person with whom she communicated was the plaintiff (as opposed to his son, by way of example); for how long he has (or said he has) resided in the property registered under his wife’s name, and whether he resides there for part or all of the year; and, what he told her “ordinarily resident” means to him when he self-identified as being ordinarily resident in Ontario (save that she says she told him, without more, that his ‘ordinary residence’ is “the place he mostly connected to”: Q. 22, whatever the amorphous concept of “connected to” might mean). She confirms not having questioned him or asked him for details in respect to what appear to have been cursory responses on his part. And while she appends to her affidavit tax return documents that, she says, were filed by the plaintiff for tax years 2020-2022, those tax return documents are unsigned. Proof of filing and/or supporting documents that back up the information recorded have not been produced and, with little effort, could have been [3].

[7] The defendants say that the evidence of Ms. Li ought to be struck or given little-to-no weight in the circumstances. Not only is Ms. Li’s evidence weak in and of itself, but, as the defendants fairly posit: “[H]ow can the [p]laintiff put forward his evidence, through another, while refusing to give personal and direct evidence” (factum at para. 51)? In this latter regard, I note that the plaintiff failed to attend to give evidence pursuant to R. 39 and a Summons to Witness served on him and, instead, now seeks to quash the Summons. While he suggests that the Summons was served for a collateral purpose, i.e. so that the defendants might embark on a “fishing expedition”, I do not agree. Ms. Li’s evidence is skeletal and little more than hearsay--with significant reliability gaps identified by way of her cross-examination. I have considered it; but, in doing so, note that it has little evidentiary value.

[8] An examination of the plaintiff would have served to help fill the gaps. If he is, indeed, ordinarily resident in Ontario, as he posits, the plaintiff could have spoken to the issue directly. The defendants submit, and I accept, that the court should draw a negative inference from the plaintiff’s refusal to attend to be examined. There is no question but that an examination of the plaintiff, as sought, was in respect of issues relevant to this motion and that the plaintiff was in a position to provide relevant evidence. There is nothing before me to suggest that an examination of the plaintiff in respect of this motion constituted an abuse of process (see: Abou-Elmaati et al. v. The Attorney General of Canada, et al., 2013 ONSC 3176, at paras. 66 and 67).

[9] When I consider the significant lacunae in the plaintiff’s evidence as to the place of his ordinary residence, the plaintiff’s refusal to attend to be examined, the uncontroverted evidence of Mr. Zafrani as to what he was told by Ms. Wu and the plaintiff’s son in respect of the plaintiff’s place of residence, I am persuaded that it does indeed appear that the plaintiff is not ordinarily resident in Ontario.

[10] That notwithstanding, I must still “consider the justness of [my making a security for costs] Order, holistically, examining all of the circumstances of the case…guided by the overriding interest of justice” (Yaiguaje v. Chevron Corporation, 2017 ONCA 827, at para. 25).

[11] I agree with the defendants when they say that the plaintiff has not shown that he has sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any Order as to costs that might be made in the litigation (Coastline Corporation Ltd. v. Canaccord Capital Corporation, supra, at para. 7 (iv)(a)). That his lawyer’s assistant attests to having been told by someone who answered to the surname ‘Huang’ that the plaintiff’s wife has a home registered in her name in Ontario, if the evidence of Ms. Li is to be accepted, is indicative of little. The plaintiff does not say that the home is an asset that would be available to him to defray a costs award. Then too, and importantly, the plaintiff has filed no evidence to suggest that he cannot post security or that any Order made would negatively impact his ability to have his claims determined on their merits.

[12] On the question of merits, the plaintiff says that they favour him relying, in this regard, on the pleadings and on jurisprudence summarized in his factum. While he is critical of the defendants for having failed to adduce evidence as to merits (paragraph 30 of his factum), he himself has adduced no such evidence.

[13] The plaintiff has made claims of collusion, fraud, deceit and conspiracy, inter alia, as against the defendants. These are very serious allegations, particularly when made against licensed professionals. There is a high bar for proving claims of this nature. If the plaintiff does not succeed at trial, substantial indemnity costs could well be ordered against him. Further, while the plaintiff points to a partial deposit made by him (which deposit, he says, will more than cover the defendants’ costs), if the defendants are successful at trial the deposit will be forfeited. The deposit monies have not been earmarked for costs; and, if forfeited, the deposit monies will not be for the account of all of the defendants—indeed they will be for one of the defendants only: 2556748 Ontario Inc.

[14] For all of these reasons, and looking at this motion contextually and holistically, I am not persuaded that it would be unjust to order that the plaintiff (a litigant who does not appear to reside in Ontario) to post security for costs.

[15] On the issue of quantum, the plaintiff suggests that the defendants’ draft bills of costs ought to have been appended to an affidavit so that he could cross-examine the defendants or their counsel on them. While this might have been done, it did not need to be done. Draft bills of costs delivered on security for costs motions are, save as relate to costs already incurred, statements of best estimates/predictors of future steps and expenditures. There is nothing to stop the plaintiff and the court from reviewing draft bills of costs that are filed, simpliciter, with a critical eye and through a lens of proportionality. This I have done.

[16] I have reviewed the defendants’ respective draft bills of costs and have considered the criticisms levelled by plaintiff’s counsel, including that (in his opinion) the costs actually incurred by the realtor defendants for general file management are too high. They may be a little high but they are costs, actually incurred, for steps that needed to be taken. I do not know what costs the plaintiff incurred for like work by his lawyers.

[17] In all and given, inter alia, the nature and seriousness of the allegations made by the plaintiff and the fact that they could attract an award of substantial indemnity costs (if the plaintiff’s claims are dismissed in whole or in part), the cost-effective manner in which the litigation is being staffed by the respective defendants’ lawyers (with a senior lawyer, a more junior lawyer and a law clerk), the complexity of the litigation, the work done and to be done, I think that the posting of security for the defendants’ partial indemnity costs (incurred and projected), modestly reduced, is here appropriate.

[18] That being so, I am granting the defendants the relief sought by them and am ordering security for costs posted as follows:

(a) For 2556748 Ontario Inc.: $30,000.00, by May 13, 2024; a further $5,000.00 at least 30 days before this action is mediated; a further $5,000.00 at least 60 days before the pre-trial conference herein; and a further $60,000.00 at least 90 days before the trial herein.

(b) For the realtor defendants: $30,000.00 by May 13, 2024; a further $5,000.00 at least 30 days before this action is mediated; a further $5,000.00 at least 60 days before the pre-trial conference herein; and a further $60,000.00 at least 90 days before the trial herein.

[19] Security may be posted in whatever form is agreed to by the parties and approved by the Accountant of the Superior Court. I note that no security for the costs of this motion has been ordered posted as at now. That is because I am content to entertain costs submissions, failing agreement. In this regard, a request for an attendance before me may be made to my Assistant Trial Coordinator, Teanna Charlebois (Ms.): teanna.charlebois@ontario.ca.

March 27, 2024 Original Signed by Associate Justice Abrams

Footnotes:

[1] Among the types of documentary evidence that the plaintiff could have chosen to file to demonstrate that he is indeed ordinarily resident in Ontario (but did not) are proof of T4 or employment income, credit card statements for food and other essentials in Ontario, bank statements, cell phone records, an OHIP card, a passport and the like.

[2] In Wang v. Lin (2013 ONCA 33), at paras. 43 and 44, the Court of Appeal found that maintaining a home in Toronto is not sufficient to establish ordinary residence in Ontario. In that case, the parties’ customary mode of life was in China. They had more assets in China than in Ontario. China was not a special, occasional or casual residence. As such, their “real home” was said to be in China. Even if the unsubstantiated evidence of the plaintiff is accepted, there is little more before the court than a casual connection to Ontario, on the part of the plaintiff, through the stated ownership of his wife of a property in Ontario.

[3] When cross-examined on her affidavit, Ms. Li confirmed that she has never seen the plaintiff (Q. 6), that in communicating with him she simply called a telephone number (refusing to disclose the telephone number, such that the defendants might verify that it is his or his son’s telephone number) (QQ. 13 and 14), that she identified him simply by asking if he was “Mr. Huang”, though he has a son--who has been involved in the issues underlying this litigation--with the surname Huang (QQ. 18 and 19 and Exhibit “C”), that she did not ask him whether he maintained a residence in China (Q. 31), and that she did not ask whether he moved back to China in 2020 (as is stated in the affidavit of Mr. Zafrani, to which her affidavit is said to have been responsive): Q. 33.