



COURT OF APPEAL FOR ONTARIO

CITATION: Yim v. Song, 2016 ONCA 642

DATE: 20160824

DOCKET: M46733

M46813

(C61980)

Miller J.A. (In Chambers)

BETWEEN

Kyoung
    Ja Yim, Moonho Yim and

2251363 Ontario
    Inc. c.o.b. Song Cooks Korean Restaurant-Thornhill

Plaintiffs (Appellants)

and

Chang
    Bae Song, Koung Ok Lee, 221237 Ontario Inc. c.o.b. Song

Cooks
    Corean Chill and 2302632 Ontario Inc. c.o.b. Sharon Garden

Defendants (Respondents)

Charles C. Chang, for the respondents/moving parties/responding
    parties on cross-motion

Song Joon Bae, for the appellants/responding parties/moving
    parties on cross-motion

Heard: August 19, 2016

ENDORSEMENT

[1]

The ultimate dispute between these parties has not yet proceeded to trial.
    Nevertheless, the appellants have already attracted two substantial indemnity
    costs awards and their poor judgment and unreasonable conduct in this
    litigation has drawn sharp criticism from motions judges. No amount of judicial
    shaming seems to have had the least impact, however, and what is now unfolding
    in this court is more of the same.

[2]

The appellants brought an undertaking and refusals motion before Conlan
    J. They were largely unsuccessful.
[1]
They then sought leave to appeal the Conlan order to the Divisional Court,
    which is the correct path for an interlocutory order. They were once again
    unsuccessful, with leave being denied by Trimble J.
[2]

[3]

They then appealed the denial of leave by Trimble J. to this court.

[4]

That appeal is not before me. The general rule is that decisions
    refusing or granting leave to appeal are not appealable. The appellants
    argument, as I understand it, is that they come within an exception to the
    general rule because they sought leave to appeal from a final order; Conlan J.s
    decision on the undertaking and refusals motion is final and not interlocutory,
    because in effect it deprives them of a substantial part of their cause of
    action. They take this position notwithstanding that they treated the Conlan
    order as an interlocutory order when they sought leave to appeal to the
    Divisional Court.

[5]

The respondents have brought a motion to quash the appeal of the Trimble
    order. That motion is not before me either, and is scheduled for September 22,
    2016. If the respondents are successful on that motion, they will save themselves
    the expense of filing responding materials and arguing the appeal. Accordingly,
    they sought the appellants consent to extend the time to deliver their
    responding materials to 60 days following the disposition of their motion to
    quash the appeal.

[6]

The appellants will not agree to this.

[7]

The appellants have taken the position that the motion to quash the
    appeal should be heard together with the appeal, and they have brought a
    cross-motion seeking that relief. Their reasoning is that in order to defend
    the motion to quash, they will need to argue the entirety of the appeal in
    order to demonstrate that the Conlan order disposed a large part of their claim
    and is a final order. Unless the motion and the appeal are heard together, they
    say, they will have to argue their appeal twice.

[8]

The appellants are misguided and this motion was unnecessary. The
    procedure to be followed on a motion to quash on jurisdictional grounds is
    governed by this courts Practice Direction Concerning Civil Appeals (in force
    January 1, 2004; updated 2008):

5.2.2 Motions
    to Quash an Appeal

1. Motions to quash appeals are heard by a panel of
    the court. Where the basis for the motion to quash is that the court lacks
    jurisdiction to hear the appeal, the motion will be scheduled at an early date.

2. Motions to quash an appeal based on an argument
    that the appeal is devoid of merit will be heard together with the appeal,
    since the court will be obliged to consider the merits of the appeal, in any
    event, in determining the motion.

[9]

The basis for the respondents motion to quash is that the court lacks
    jurisdiction. On that basis, the motion is to be scheduled at an early date.
    That is the end of the matter. It is not relevant, for scheduling purposes,
    that the appellants intend to defend by arguing the merits. It is unreasonable
    for the appellants to have forced todays motion by not consenting to an
    extension of time to deliver responding materials as sought by the respondents,
    and by not consenting to schedule the hearing of the appeal until after the
    disposition of the motion to quash.

Disposition

[10]

The
    motion is granted. The cross-motion is dismissed. An order shall issue: (1) extending
    the time for the respondents to deliver responding materials to 60 days after
    the disposition of the motion to quash the appeal, and (2) providing that the
    hearing of the appeal shall not be scheduled until after the disposition of the
    motion to quash.

[11]

This
    motion was necessitated by the unreasonable position taken by the appellants.
    The respondents are entitled to their costs of the motion on a substantial
    indemnity basis in the amount of $3,250.00 inclusive of disbursements and HST.

B.W. Miller J.A.





[1]
I do not blame the Plaintiffs for bringing the Motion in the first place. That
    was not an unreasonable thing to do, albeit framed too broadly and ultimately
    unsuccessful in nearly every respect. But virtually everything that the
    Plaintiffs did after the Motion was served and filed was, indeed,
    unreasonable. Reasons for Decision on Costs, January 20, 2016, Conlan J., para
    17.



[2]

Their conduct again drew criticism, with Trimble J. remarking
    that they had learned nothing and forgotten nothing since they were before
    Conlan J. Their behaviour needs correcting: Costs endorsement, April 6, 2016, Trimble
    J., para.7.


