Reasons for Decision

Court File No.: CV-21-00659829
Date: 2025-06-20
Ontario Superior Court of Justice

Between:
Huanyu Shi, Plaintiff/Moving Party
– and –
Junxu Chen and Zhiwei Sun, Defendants

Appearances:
Peter Neufeld and Muktra Batra, for the Plaintiff
No one appearing for the Defendants

Heard: February 26 and March 7, 2025

Released: June 20, 2025

Judge: Wendy A. Nishikawa

Overview

[1] The plaintiff, Huanyu Shi, seeks an order granting summary judgment in the amount of $2,384,940 against the defendant, Junxu Chen. Mr. Shi also seeks $300,000 in punitive damages.

[2] The plaintiff alleges that the defendant defaulted on a loan agreement pursuant to which the plaintiff paid sums into the defendant’s bank account in China, and the defendant was to reimburse the plaintiff in Canada. The plaintiff is not seeking summary judgment against the co-defendant, Zhiwei Sun, who has not been served with the Statement of Claim in this proceeding because the plaintiff has not been able to locate him.

[3] The defendant, Mr. Chen, who had participated at earlier stages of this proceeding, did not appear at the hearing of this motion despite proper service. The motion was scheduled in June 2024. At the hearing, I determined that it was in the interest of justice that the motion proceed.

Procedural Background

[4] On June 22, 2021, Chalmers J. granted Mr. Shi’s motion for a Mareva injunction, freezing assets belonging to Mr. Chen, including the proceeds of the sale of a real property located in Richmond Hill. The net proceeds, $209,138.69, have been paid into court.

[5] In granting the Mareva order, Chalmers J. found that the plaintiff had a strong prima facie case. Justice Chalmers found that the defendant’s testimony on cross-examination that he repaid the funds fully by the end of May 2025 was not supported by any credible evidence.

[6] Mr. Chen brought a motion to vary the Mareva injunction, which he eventually abandoned. The defendant failed to pay $5,000 on an outstanding costs order of $7,500.

[7] On April 20, 2022, Mr. Chen’s lawyer brought a motion to remove herself from the record, which was granted. To date, Mr. Chen has not appointed a lawyer or served a notice of intention to act in person, despite being required to do so within 30 days of that order.

Issues

[8] The issues to be determined on this motion are as follows:

(a) Is there a genuine issue requiring a trial as to whether the defendant defaulted on the parties’ agreement?
(b) Alternatively, is there a genuine issue requiring a trial as to whether the defendant has been unjustly enriched?
(c) If there is no genuine issue requiring a trial, to what damages is the plaintiff entitled?
(d) Is the plaintiff entitled to punitive damages?
(e) Should a tracing order or constructive trust be imposed?

Factual Background

The Agreement

[9] The plaintiff, Mr. Shi, resides in Richmond Hill, Ontario. The defendant, Mr. Chen, also resides in Ontario. In early 2020, Mr. Chen’s brother, Haiwei Sun, approached Mr. Shi to inquire if he was interested in loaning funds to Mr. Chen. Haiwei Sun (no relation to the defendant, Zhiwei Sun) was a friend of Mr. Shi. The proposed arrangement was for Mr. Shi to deposit substantial sums in Chinese currency to Mr. Chen and Zhiwei Sun’s bank accounts in China. In return, Mr. Chen was to transfer the same amount of funds in Canadian currency to Mr. Shi in Ontario.

[10] Mr. Shi and the defendant, Mr. Chen, agreed to the terms of their arrangement in messages sent through WeChat (an application that they used to communicate). The terms were as follows:

(a) Mr. Shi would transfer funds in Chinese Renminbi to bank accounts in the names of Mr. Chen and Zhiwei Sun at the Bank of China and the Industrial and Commercial Bank of China respectively; and
(b) In return, Mr. Chen would repay Mr. Shi by transferring the same amounts to him from Mr. Chen’s bank account at the Canadian Imperial Bank of Commerce (“CIBC”) in Canada.

[11] Mr. Shi characterizes the arrangement as a loan agreement. The agreement appears to be an agreement to exchange currency in a manner that would benefit both parties.

The Alleged Breach

[12] As agreed to under the agreement, Mr. Shi made wire transfers to Mr. Chen’s bank account on April 10, 15, 16, 17, 21, 23 (twice), 26, and 27, and May 3 and 8, 2020. The total transferred to Mr. Chen’s Bank of China account was 8,674,700 Renminbi. Mr. Shi deposited funds into Zhiwei Sun’s bank account on May 5, 7, 8, 9 (twice), and 12, 2020. The total transferred to Zhiwei Sun’s bank account at the Industrial and Commercial Bank of China was 3,250,000 Renminbi. Mr. Shi transferred a total amount of 11,924,700 Renminbi.

[13] Applying the exchange rate from Chinese Renminbi to Canadian dollars of 5.056460 on May 12, 2020, the total amount transferred by Mr. Shi in Canadian dollars as of that date was approximately $2,358,309.96.

[14] Mr. Chen had provided Mr. Shi with post-dated cheques from his CIBC account in Canada for part of the value of the funds that were transferred. Mr. Chen also provided Mr. Shi with other cheques, all of which totalled approximately $1,000,000. The parties understood that Mr. Shi would deposit those cheques on the dates stated on them. However, when Mr. Shi went to deposit the first cheque, the CIBC representative advised him that there were insufficient funds in the account to honour the cheque.

[15] On May 24, 2020, Mr. Chen advised Mr. Shi that he had unsuccessfully attempted to make a bank transfer of $120,000 to Mr. Shi and assured him that further bank transfers would follow. However, Mr. Shi received no bank transfers and no alternate repayment.

[16] Mr. Shi attempted numerous times to contact Mr. Chen about the status of the repayment, but Mr. Chen did not respond to his inquiries. Mr. Shi did not have contact information for Zhiwei Sun and was unable to contact him.

[17] After failing to repay Mr. Shi, Mr. Chen took out a significant amount in private mortgages using his property in Richmond Hill as security. Mr. Chen then sold the property on April 5, 2021 for $1,888,000. Further to the Mareva order of Chalmers J., the net sale proceeds of $209,138.69 were paid into court.

Analysis

The Principles Applicable to Summary Judgment

[18] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[19] The Supreme Court of Canada has held that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”: Hryniak v. Mauldin, 2014 SCC 7, at para. 5 (“Hryniak”). An issue should be resolved on a motion for summary judgment if the motion affords a process that: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to those facts; and (iii) is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial: Hryniak, at para. 49.

[20] On a motion for summary judgment, the judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before them, without using the fact-finding powers under rr. 20.04(2.1) and (2.2). If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the following powers under r. 20.04(2.1): (i) weighing the evidence; (ii) evaluating the credibility of a deponent; and (iii) drawing any reasonable inference from the evidence: Hryniak, at para. 66.

[21] The court is entitled to assume that the record on a summary judgment motion contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff’d 2014 ONCA 878. See also: Crescent Hotels and Resorts Canada Company v. 2465855 Ontario Inc., 2018 ONSC 5508, at para. 23; aff’d 2019 ONCA 268. It is a “well-established rule that both parties on a summary judgment motion have an obligation to put their best foot forward”: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9.

Did the Defendant Default on the Agreement?

[22] Despite participating at earlier stages of this proceeding and being served with the plaintiff’s motion for summary judgment and supporting materials, Mr. Chen did not respond to the motion. Mr. Shi has included in his motion materials that were before the court on his motion for a Mareva injunction and Mr. Chen’s motion to vary the Mareva order, which was subsequently abandoned.

[23] Based on the totality of the evidence before the court, there is no genuine issue requiring a trial as to whether Mr. Chen defaulted on the agreement.

[24] First, I find that the parties entered into an agreement and that they agreed to its terms.

[25] In his statement of defence, Mr. Chen did not deny that there was an agreement between Mr. Shi and him, nor did he allege that the terms differed from what Mr. Shi pleaded. Rather, Mr. Chen claimed that he had repaid the amounts in cash.

[26] Moreover, in his affidavit on Mr. Shi’s motion for a Mareva order, Mr. Chen admitted that he entered into an agreement with Mr. Shi and affirmed the essential terms of the agreement. He deposed that he and Mr. Shi engaged in “a series of transactions whereby Shi would transfer funds to [Mr. Chen’s] bank account and [Mr. Chen] would in turn give him funds of equal or similar value in Canadian dollars in Canada”. Mr. Chen further deposed that the parties were to communicate acceptance and receipt of the funds through WeChat messaging. In cross-examination on the Mareva motion,[1] Mr. Chen confirmed the terms of the agreement as follows: “We exchanged money. He give me RMB, I give him Canadian dollars, two-way street.” The existence of the agreement is further supported by Mr. Chen’s acceptance of the funds transferred by Mr. Shi.

[27] Mr. Shi’s position is that the parties agreed that he would loan the equivalent of CAD $2,384,940 in Chinese Renminbi to Mr. Chen and that Mr. Chen would repay that amount in Canadian dollars. However, there is an absence of evidence in the record to support that they had agreed in advance to a specific amount. Based on the evidence before me, I can find only that the parties agreed to exchange an equivalent amount. In other words, they agreed that Mr. Chen would repay in Canadian dollars the amount that Mr. Shi transferred in Chinese Renminbi.

[28] Second, there is no dispute that Mr. Shi transferred funds to Mr. Chen or that Mr. Chen received the funds that Mr. Shi transferred. The evidence is that between April 10, 2020 and May 12, 2020, Mr. Shi transferred 11,924,700 Renminbi to the specified accounts in the names of Mr. Chen and Zhiwei Sun in China. The transfers are supported by the bank statements from Mr. Shi’s bank account in China, showing that the funds were wired to the defendants’ accounts in China, and the spreadsheet created by Mr. Shi’s accountant.

[29] In addition, on cross-examination, Mr. Chen admitted that he received $2.22 million. This would include funds transferred to his bank account and to the bank account in the name of Zhiwei Sun. Mr. Chen had no explanation as to where any of the funds went.

[30] Third, at various times, Mr. Chen admitted that repayment of the amounts advanced by Mr. Shi remained outstanding. In WeChat messages dated May 25, 2020, Mr. Shi asked Mr. Chen to confirm that he still owed him $2.22 million. In response, Mr. Chen stated: “Still need [sic] to give you CAD 2.22 million dollars”. Similarly, Mr. Chen admitted on cross-examination that, as of May 25, 2020, he owed Mr. Shi $2.22 million.

[31] Fourth, there is an absence of evidence that Mr. Chen repaid the amounts advanced by Mr. Shi. In his affidavit in response to the plaintiff’s Mareva motion, Mr. Chen stated that he repaid the entire amount to Mr. Shi. However, the following evidence contradicts his claim.

[32] On cross-examination, Mr. Chen admitted that the funds were to be available on the dates stated on the post-dated cheques that he provided to Mr. Shi. Mr. Shi’s evidence is that when he went to deposit the first cheque, he was told by the CIBC representative that there were insufficient funds in the account to cash the cheque. In response to an undertaking, Mr. Shi produced a bank statement showing that the cheque he tried to deposit into his bank account was returned for insufficient funds. Although Mr. Chen maintained on cross-examination that there were sufficient funds in the account to honour the cheques, he failed to fulfill his undertaking to produce the supporting documents.

[33] In his affidavit on the Mareva motion, Mr. Chen stated that he personally dropped off paper bags with $700,000 in cash on Mr. Shi’s doorstep in May or June 2020 and that the balance was paid on unspecified dates, mainly in cash. When asked how he got the $700,000 that he claimed to have given Mr. Shi, Mr. Chen testified on cross-examination that it was given to him by others when he exchanged money and that he kept the cash in his car. Mr. Chen deposed that at one point he had one million dollars in his car. On the Mareva motion, Chalmers J. found that “it defies belief that Mr. Chen would leave $700,000” in brown paper bags on the plaintiff’s doorstep. For the purposes of this motion, I find that there is an absence of evidence that Mr. Chen repaid Mr. Shi $700,000 in cash.

[34] In addition, in WeChat messages between Mr. Chen and Mr. Shi on May 24, 2020, Mr. Chen advised Mr. Shi that his attempted payment of $120,000 to Mr. Shi was not successful. While Mr. Chen promised to make other bank transfers, he did not do so. In further WeChat messages on May 25, 2020, Mr. Chen lashed out at Mr. Shi and refused to repay him any further amounts, aside from $4,000.

[35] On cross-examination on the Mareva motion, Mr. Chen claimed that between May 25, 2020 and May 30, 2020, he paid Mr. Shi $2.2 million. However, he was vague about how repayment was made, responding: “Anyways, there were transfers as well. Anyways, if I could make transfer I did. Anyways, I’m not sure. The majority of the payment was in cash.”

[36] Mr. Chen also provided a statutory declaration of an individual named Kaidong Wong, who states that they caused $100,000 to be transferred from a “friend’s company, 7295278 Canada”, to the chequing account of Zhaohong Liu, whom Mr. Shi identified on cross-examination as his mother. However, there is no record demonstrating the transfer of the funds from the unnamed friend’s company to Ms. Liu.

[37] On cross-examination, Mr. Shi admitted that in May 2020, Mr. Chen delivered $430,000 in cash to him. However, Mr. Shi testified that he did not accept the cash because he did not know what to do with such a large amount of cash. Within a few days, Mr. Shi returned the cash to Mr. Chen through a friend named Bill Zhou. Mr. Chen admitted on cross-examination that Mr. Shi did not want cash and that he returned cash to him. He disputed the amount that Mr. Shi returned. Mr. Chen then assured Mr. Shi that bank transfers would follow, however, none were made.

[38] Further, Mr. Shi admitted on cross-examination that Mr. Chen transferred $50,000 to him. In the record, there is a CIBC bank draft dated May 11, 2020 for $50,000 from Ruyun Chen made to the name of Zhaohong Liu. Mr. Shi admitted on cross-examination that he asked for funds to be transferred to his mother’s account. He also confirmed that Mr. Chen sent him “small amounts” by e-transfer. However, he did not recall the amounts.

[39] Accordingly, based only on the evidence before me, which includes Mr. Chen’s admissions on the Mareva motion, I find there is no genuine issue requiring a trial that Mr. Chen defaulted on the agreement. Given this finding, it is unnecessary to consider whether Mr. Chen was unjustly enriched by the transfers from Mr. Shi. In any event, the contract between Mr. Shi and Mr. Chen was the juristic reason for the enrichment to Mr. Chen and the corresponding deprivation of Mr. Shi.

To What Damages is the Plaintiff Entitled?

[40] The evidence is that between April 10, 2020 and May 12, 2020, Mr. Shi transferred 11,924,700 Renminbi to the specified accounts in China. Based on Mr. Shi’s evidence, the exchange rate for Chinese Renminbi to Canadian dollars on May 12, 2020 was 5.056460. Accordingly, the funds owing in Canadian dollars amount to $2,358,309 (11,924,700 Renminbi / 5.056460 = $2,358,309).

[41] Mr. Shi calculated the total amount owing from Mr. Chen as CAD$2,384,940. Mr. Shi deposed on cross-examination that he arrived at this amount by using the exchange rate on the day that the funds were exchanged, which I understand to mean the date on which Mr. Shi advanced the funds. While Mr. Shi deposed that he and Mr. Chen never disagreed about this method of calculating, there is no evidence in the record that the parties agreed to this method for calculating the applicable exchange rate. To the contrary, on cross-examination, Mr. Shi stated that Mr. Chen would give him an exchange rate and if he believed it was reasonable, he would go ahead with it.

[42] In the absence of an agreed upon exchange rate or manner for calculating the exchange rate, I apply the exchange rate that is in evidence, that is the rate on May 12, 2020, for a total of $2,358,309.

[43] As noted above, Mr. Shi admitted that he received a transfer for $50,000 from Mr. Chen. Mr. Shi testified on cross-examination that he applied the $50,000 to the amount that Mr. Chen owed. Mr. Shi provided a spreadsheet prepared by his accountant adding up the transfers made by him to Mr. Chen and Zhiwei Sun. The total is 11,924,700 Renminbi, or $2,358,309. There is no indication that this amount takes into account the $50,000 that Mr. Shi admitted was paid to his mother’s account. That amount should be subtracted from the total owing by Mr. Chen.

[44] Accordingly, Mr. Shi is entitled to the amount owing, which I quantify at $2,308,309 in damages.

Is the Plaintiff Entitled to Punitive Damages?

[45] Mr. Shi seeks $300,000 in punitive damages.

[46] In Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 111 (“Whiten”), the Supreme Court held that retribution, denunciation and deterrence are recognized justifications for punitive damages.

[47] For a breach of contract to attract punitive damages, the impugned conduct must depart markedly from ordinary standards of decency, in other words, the conduct must be malicious, oppressive or high-handed and offend the court’s sense of decency: Whiten, at para. 36. In addition, the conduct in question must be independently actionable. A breach of the contractual duty of good faith can qualify as an independent wrong: Whiten, at paras. 79, 82.

[48] Punitive damages are intended to punish the wrongful actor, not to compensate the complainant. That said, courts are sensitive to the possibility of double recovery and must satisfy themselves that punitive damages remain necessary to achieve the goals of denunciation, deterrence and retribution once compensatory damages have been awarded: Honda Canada Inc. v. Keays, 2008 SCC 39, at para. 69. Moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient: Whiten, at para. 94.

[49] An award of punitive damages should be proportionate to:

(a) The blameworthiness of the defendant’s conduct;
(b) The vulnerability of the plaintiff;
(c) The harm or potential harm directed specifically at the plaintiff;
(d) The need for deterrence; and
(e) The advantage wrongfully gained by the defendant from the misconduct.

Whiten, at paras. 112-126.

[50] Punitive damages must also be proportionate, even after taking into account the other penalties, both civil and criminal, which have been or are likely to be inflicted on the defendant for the same misconduct: Whiten, at para. 123.

[51] The facts underlying an award of punitive damages vary from case to case, as do the amounts of the awards. In this case, the plaintiff highlights Mr. Chen’s conduct in denying the repayment owed and in claiming to have delivered $700,000 in cash in paper bags to Mr. Shi’s residence. In addition, Mr. Chen significantly encumbered his property when he knew Mr. Shi’s motion for a Mareva injunction was to be heard. Finally, Mr. Shi points to Mr. Chen’s failure to pay the outstanding amount on the costs order; his failure to appoint counsel, as required by court order; and his failure to answer undertakings, which required Mr. Shi to bring a motion for documents relating to the private mortgages.

[52] Based on the evidentiary record before me, it is not clear to me that there is an independent actionable wrong that would attract an award of punitive damages. I cannot find that Mr. Chen entered into the agreement with Mr. Shi with an intent to defraud him or that he induced Mr. Shi to continue to advance funds to him. Mr. Chen’s attempt to reimburse Mr. Shi with $430,000 in cash undermines the plaintiff’s argument that Mr. Chen had no intent to abide by the agreement from the outset. There is also an absence of evidence as to the parties’ respective bargaining power. In fact, the evidence is that both parties entered into the agreement because they saw it as advantageous to them. In addition, Mr. Shi deposed that he continued to advance funds to Mr. Chen despite not being repaid for the initial amounts, not because of any assurances or conduct on the part of Mr. Chen, but because he trusted Mr. Chen’s brother.

[53] In the circumstances of this case, I am not satisfied that punitive damages remain necessary to achieve the goals of denunciation, deterrence and retribution once compensatory damages have been awarded.

[54] In my view, Mr. Shi bears some responsibility for his current predicament. Despite Mr. Chen’s failure to repay the initial amounts Mr. Shi advanced, Mr. Shi continued to advance funds to Mr. Chen’s bank account and to a bank account belonging to Zhiwei Sun, an individual whom he did not know and had never met. On cross-examination, Mr. Shi offered no explanation for continuing to do so other than the reassurances of Mr. Chen’s brother. Moreover, when Mr. Chen delivered $430,000 in cash to Mr. Shi, which would have resulted in a significant repayment, Mr. Shi returned it through a friend. Both parties dealt with large sums of money in a casual manner and without a minimum level of due diligence. While I have found that the parties entered into an agreement on the basic terms, Mr. Shi made no attempt to memorialize or formalize the terms and continued to forward large sums of money in a manner that defies comprehension.

[55] Having regard to all the circumstances, I decline to award punitive damages in this case.

Should a Tracing Order or Constructive Trust be Imposed?

[56] The plaintiff seeks orders for tracing and a constructive trust over Mr. Chen’s bank accounts in China.

[57] The requirements for a tracing order are as follows: (i) the property must be traceable; (ii) there must be an equity to trace; and (iii) tracing must not produce an inequitable result: Drucker Inc. v. Hong, 2011 BCSC 905, at para. 38. See also: Li v. Li, 2017 BCSC 1312, at para. 249, aff’d 2021 BCCA 39. Tracing at common law and in equity fails where identification of trust property is not possible: B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, at para. 85.

[58] In this case, there is no identifiable “property” over which a tracing order could be made. The parties agreed to exchange money. It is the plaintiff who has characterized the agreement as a “loan agreement”. The money that Mr. Shi deposited into Mr. Chen’s and Zhiwei Sun’s accounts in China is not property that is traceable, in the sense that it remained identifiable. Once the funds were deposited, in 2020, they were commingled with any money in the bank accounts. Mr. Chen was not holding the money deposited into the bank accounts in China in trust for Mr. Shi and Mr. Shi retained no equitable or legal interest in those funds. Pursuant to the parties’ agreement, Mr. Chen was not obligated to hold those funds for Mr. Shi, rather, he was to repay the funds in Canadian dollars in Canada.

[59] The plaintiff has not provided any authority for his position that a tracing order or constructive trust can be imposed to enforce an award of damages for breach of contract. In the cases relied upon by the plaintiff, a tracing remedy or constructive trust was imposed for causes of action for unjust enrichment, fraudulent conversion, or breach of fiduciary duty: see Mak (Estate) v. Mak, 2021 ONSC 4415; Toronto-Dominion Bank v. Storr, 2014 ONSC 4278; Citadel General Assurance Co. v. Lloyds Bank Canada; and Two-Tyme Recycling Inc. v. Woods, 2010 ONSC 5672.

[60] As a result, I decline to make a tracing order or to impose a constructive trust on Mr. Chen and Zhiwei Sun’s bank accounts in China.

Conclusion

[61] Based on the foregoing analysis, the motion for summary judgment is granted. Mr. Shi is entitled to damages in the amount of $2,308,309.

Prejudgment Interest

[62] Mr. Shi seeks $453,826.30 in prejudgment interest. However, the amount of interest was calculated based on damages of $2,384,940.

[63] The plaintiff is entitled to prejudgment interest on the amount of $2,308,309 from May 25, 2020, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.

Costs

[64] The plaintiff seeks substantial indemnity costs in the amount of $89,586.26, including disbursements and HST, in this proceeding. The plaintiff’s costs on a partial indemnity basis total $62,304.82, including disbursements and HST.

[65] Where a party has engaged in conduct that is reprehensible, scandalous, or outrageous, a court may sanction this conduct through an award of elevated costs: Davies v. Clarington (Municipality), 2009 ONCA 722, at paras. 28-29. Costs on an elevated scale should not be used to compensate parties twice for the same wrongdoing if damages have already been awarded for the same conduct: Hunt v. TD Securities Inc., at para. 130.

[66] Mr. Chen’s conduct of the litigation, such as encumbering his real property on the eve of the Mareva injunction and failing to comply with court orders for costs and the appointment of counsel, has been detailed earlier in these reasons. In the circumstances of this case, I find that an award of costs on a substantial indemnity basis is appropriate. Mr. Chen encumbered his only asset of value in Ontario when he knew that Mr. Shi’s motion for a Mareva order was outstanding. He then sought to vary the Mareva order, resulting in significant costs to Mr. Shi, only to abandon that motion on the eve of the hearing. He has since failed to participate in the proceeding, including to pay an outstanding costs order.

[67] Pursuant to s. 131(1) of the Courts of Justice Act, the Court has broad discretion when determining the issue of costs. The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario, at para. 24. The court must also consider the principle of proportionality in r. 1.04(1.1) of the Rules of Civil Procedure, while keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[68] I have reviewed the rates and time charged which I find fair and reasonable. I also find that such costs were within the reasonable contemplation of the defendant. The plaintiff is therefore entitled to costs on a substantial indemnity basis in the amount of $89,586.26.

[69] Accordingly, I grant summary judgment to Mr. Shi in the amount of $2,308,309, plus pre- and post-judgment interest, and costs in the amount of $89,586.26.

“Wendy A. Nishikawa”
Released: June 20, 2025

[1] All references to cross-examinations are to the parties’ cross-examinations on the plaintiff’s motion for a Mareva injunction.