



COURT OF APPEAL FOR ONTARIO

CITATION: Li v. Li, 2017 ONCA 942

DATE: 20171204

DOCKET: C63610

Pardu, Trotter and Paciocco JJ.A.

BETWEEN

Yao Wei Li, William Li also known as Fee Liann
    Li, Charles Li also known as Fee Sang Li, Lily Li also known as Fee Lee Chen
    and Linda Li also known as Fee Thao Linda Li

Plaintiffs (Respondents)

and

Yao Chao Li also known as Yao Chao Lee

Defendant (Appellant)

Shawna Sosnovich and Christopher Statham, for the
    appellant

H. David Marks, Q.C. and Corey Bergstein, for the
    respondents

Heard: November 15, 2017

On appeal from the order of Justice Frederick Myers of
    the Superior Court of Justice, dated March 10, 2017.

REASONS FOR DECISION

[1]

This is an appeal from the dismissal of a motion for summary judgment
    brought by the appellants, as defendants in the action. The appellant had
    sought to end an action on the basis of a previously dismissed lawsuit brought
    by the respondent against the appellant in India relating to the same cause of
    action.

[2]

The appellant invoked the doctrines of
res judicata
and abuse
    of process in aid of the summary judgment motion, but relied primarily on a
    provision of the Indian
Civil Procedure Code
, Order 23, Rule 1(4),
    that provides a substantive right to prevent attempts at relitigating claims
    that are dismissed as abandoned, without the leave of an Indian court. The
    parties agreed that this Indian law applied, and that leave had not been obtained
    in this case.

[3]

The motion judge denied the motion, disposing finally of the res
    judicata and abuse of process defences and ordering that the matter be relisted
    for trial. The key factor in each of the motion judges rulings was that the
    respondent had never been served in the Indian action, and no disposition had
    ever been made on the merits of the respondents claim. These facts drove each
    of the motion judges rulings.

[4]

We dismiss the appeal. The appellant has not demonstrated that the
    motion judge erred in his treatment of Order 23, Rule 1(4). The onus was on the
    appellant to establish the foreign rule of law it sought to rely upon. The
    motion judge was not satisfied on the expert evidence presented by the
    appellant that Indian Order 23, Rule 1(4) applied. He preferred and accepted
    the view of the respondents experts interpretation of an Indian decision,
Dalmia
    Cement (Bharat) v Uthandi alias Peria Uthandi

AIR 2005 MAD 457,
    holding that Order 23, Rule 1(4) does not operate where a suit is dismissed as
    not pressed before the opposing party has been served. In the absence of
    evidence establishing the meaning of the term dismissed as not pressed, the
    motion judge was not persuaded that the respondents suit would be caught by
    the rule, given that the appellant had never been served. On the basis of the
    evidence before the motion judge, we find no error in that determination.

[5]

Nor is there any basis for finding that the motion judge erred in not
    applying the doctrines of res judicata or abuse of process. As indicated, the
    Indian lawsuit terminated without the appellant ever having been served with
    the action. The motion judge made no error in finding that the Ontario suit
    would not involve relitigation, or an abuse of Ontarios civil processes.

[6]

The appeal is dismissed with costs to the respondent in the amount of
    15,601.46, inclusive of disbursements and HST.

G. Pardu J.A.

G. Trotter J.A.

David M. Paciocco J.A.


