Bang v. Kim

2022 BCSC 1893 Bang v. Kim

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bang v. Kim, 2022 BCSC 1893 Date: 20221028 Docket: S187014 Registry: Vancouver Between: Sung Oh Bang (a.k.a. Bang Sung Oh a.k.a. Bang Sungoh) Plaintiff And Mi Kyung Kim (a.k.a. Kim Mi Kyung a.k.a. Kim Mikyung) and Myungsook Lim Defendants And Sung Oh Bang (a.k.a. Bang Sung Oh a.k.a. Bang Sungoh), Younghoon Bang, Jiwon Bang, Jiyoon Bang and Jioh Bang Defendants by Counterclaim Before: The Honourable Justice Branch Reasons for Judgment Counsel for Plaintiff and Defendants by Counterclaim: M. Vesely T. Boyd Counsel for Defendants: D. J. Taylor T. Johnston (A/S) Place and Date of Hearing: Vancouver, B.C. August 15-19, 2022 Place and Date of Judgment: Vancouver, B.C. October 28, 2022 Table of Contents I. INTRODUCTION.. 4 II. BACKGROUND.. 4 A. The Claim.. 4 B. The Canadian Proceedings. 5 C. The Korean Proceedings. 7 D. Applications in British Columbia. 8 E. Additional Facts Relevant to Jurisdiction.. 9 III. ANALYSIS.. 9 A. Application to Strike. 9 1. Legal Framework. 9 2. Summary of the Pleadings Challenges. 11 3. Should the Plea of Ex Turpi based on the Alleged Abuse be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence?. 12 a. Introduction.. 12 b. The Ex Turpi Principle. 12 c. Application of the Principle to the Amended Response. 15 4. Should the Plea of Ex Turpi based on Illegal Purpose of be Struck under Rule

9-5(1)(a) as disclosing no reasonable defence?. 18 5. Should the Plea of Unclean Hands be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence?. 19 6. Should the Plea of Set-Off be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence?. 24 7. Should the Plea of Estoppel be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence?. 25 8. Should certain factual allegations pleaded in the Amended Response be struck under Rule 9-5(1)(b) and (c) as unnecessary, scandalous and embarrassing?. 26 9. Should the allegations already investigated and decided in the Korean judicial process be struck as an abuse of process under Rule 9-5(1)(d)?. 27 10. Conclusion on Application to Strike. 28 B. Jurisdiction.. 29 1. Issues. 29 2. Territorial competence. 29 a. Legal Framework. 29 b. Does the Counterclaim fall within sections 10(a) or (f) of the CJPTA?. 31 c. Does the Counterclaim fall within section 10(g)?. 32 (i) Tort of trespass. 33 (ii) Tort of Intimidation.. 33 (iii) Tort of Intentional Infliction of Mental Distress. 33 (iv) Tort of Conspiracy. 35 (v) Wrongful Death.. 36 (vi) Conclusion on Stage One. 36 d. Has the a presumption of a real and substantial connection under s. 10(g) been rebutted? 37 e. If the court lacks territorial competence, should it nevertheless take jurisdiction over the proceeding on the basis that commencement of a proceeding outside

British Columbia cannot reasonably be required under section 6 of the CJPTA?. 41 3. Forum Non Conveniens. 43 a. General Principles. 43 b. Comparative convenience for parties and witnesses. 45 c. Applicable law.. 48 d. Avoiding a multiplicity of proceedings. 49 e. Desirability of avoiding conflicting decisions in different courts. 49 f. Enforcement 49 g. Fair and efficient working of the Canadian legal system.. 49 h. Where each party resides/where each party carries on business. 50 i. Where the cause of action arose. 50 j. Where the loss or damage occurred. 50 k. Juridical advantage to the plaintiff in this jurisdiction.. 50 l. Juridical disadvantage to the defendant in this jurisdiction.. 51 m. Whether there are parallel proceedings in any other jurisdiction. 51 n. Conclusion on Forum Non Conveniens. 52 IV. CONCLUSION.. 52 I. INTRODUCTION [1] This hearing involved two preliminary applications that would normally be somewhat routine - the plaintiff sought to strike portions of the defendants' pleading, and the defendants by counterclaim sought to challenge the jurisdiction of the court. However, the applications required five days' consideration of complex allegations of kidnapping, home invasion, death threats, assassination plots, payoffs, and incitement to suicide, all involving the management of an alleged trust fund worth millions of dollars established by one of South

Korea's most prominent families. [2] All references to Korea in these reasons are intended to refer to South Korea, officially the Republic of Korea. II. BACKGROUND A. The Claim [3] The defendants in the plaintiff's breach of trust claim are the plaintiff's aunt and maternal grandmother. The defendants by counterclaim are the plaintiff, his father and his siblings. [4] The plaintiff alleges that his father, Younghoon, established a trust in his favour in 1999 (the "Alleged Trust"). The plaintiff claims that his aunt, the defendant Mi Kyung Kim ("Kim"), and his deceased mother, Miran Lee ("Miran"), were trustees of the USD $5,350,000 (the "Funds") settled into the Alleged Trust. [5] The plaintiff says that the terms of the Alleged Trust were communicated to the trustees by his father orally. The plaintiff alleges that he was to receive the Funds when he reached 20 years of age, or at such a later date when he requested payment. [6] The defendants do not dispute that the Funds were received by Miran and Kim from Younghoon. They say that the Funds were deposited into a Canadian account held with the Canadian Imperial Bank of Commerce ("CIBC"). However, the defendants assert that there were no trust terms controlling their use of the Funds. Alternatively, the defendants argue that any trust terms were satisfied. [7] The defendants allege that a substantial portion of the Funds were

used to fund the plaintiff's and his siblings' education expenses in the United States, and to make certain payments necessary to effectively cover up a series of indiscretions committed by the plaintiff and his siblings. [8] These indiscretions are of particular moment because the defendants also allege that the father Younghoon had previously made it clear that any poor behaviour on the part of his children would result in their disinheritance. As such, the siblings did not want the fact of their indiscretions made known to their father. [9] The plaintiff turned 20 in 2008. It is somewhat unclear why he did not request delivery of the Funds at that time. However, in 2016, he did start to make inquiries about the status of the Funds. He learned that the Funds had been dissipated. [10] The defendants allege that the plaintiff and his siblings then started a campaign of harassment against their mother, Miran, and the defendants in response to the dissipation of the Funds. They allege that Miran was subject to beatings and other misconduct. Although not plead with specificity, the defendants argue that the purpose of the harassment was to deter Miran from speaking to Younghoon about what had happened to the Funds, as that would require disclosure of the indiscretions. The defendants assert that such harassment was effectively targeting Kim, as she was the one person within her

mother's family unit who could potentially be pressured into putting her own money into the Alleged Trust in order to replenish it, and avoid the need for any disclosure of the reasons for the dissipation of the Funds. [11] Miran died by suicide on September 1, 2016 in Korea. The defendants say this unfortunate event was the inevitable result of her children's continual harassment. B. The Canadian Proceedings [12] The plaintiff filed his action against his aunt Kim alone on June 20, 2018. On August 30, 2018, Kim filed an application seeking to have the defendant Myungsook Lim ("Lim"), her mother and the plaintiff's maternal grandmother, added as a defendant. On September 30, 2018, Master Baker made that order and on November 13, 2018 the plaintiff filed an Amended Notice of Civil Claim naming Lim as an additional defendant. [13] On December 4, 2018, the defendants filed a Response, as well as a Counterclaim against the plaintiff, Younghoon, and the plaintiff's siblings Jiwon, Jiyoon, and Jioh (the Defendants by Counterclaim or "DCs"). The Counterclaim alleges, inter alia, that: a) In or around August 2016, the plaintiff and Jiwon contacted a private ambulance in Korea to take Miran away to an unknown location, against Miran's will. Miran resisted, but under instructions from the plaintiff and Jiwon, the paramedics, forced Miran into the ambulance. The ambulance took Miran away

without appropriate clothing, footwear or personal possessions, and dropped her off at Lim's apartment in Korea. Her cell phone was allegedly taken and broken by Jiwon because it contained recordings of abuse (the "August 2016 Incident"). b) On or about November 1, 2016, Younghoon and the plaintiff attended at the Kim's family complex in Korea and attempted to wrongfully gain access. c) One of the plaintiff's siblings or Younghoon hired assassins to kill Dr. Youngsoo Kim, Kim's husband. [14] The Counterclaim seeks the following relief on behalf of the defendant and material grandmother Lim: a. damages for the wrongful death of her daughter Miran; b. damages for conspiracy; c. damages for the intentional infliction of mental distress; d. punitive, aggravated or exemplary damages; e. costs; f. interest; and g. such further and other relief as to this Honourable Court seems just. [15] In the Counterclaim, Kim seeks similar relief, save for the wrongful death damages. [16] On July 29, 2020, the defendants filed an Amended Response to Civil Claim, adding the same allegations of harassment advanced in the Counterclaim. C. The Korean Proceedings [17] On February 2, 2017, the defendants filed a criminal complaint against the plaintiff and his sister and defendant by counterclaim, Jiwon, in Korea. Korean police authorities investigated the complaint. The charges considered included: a)

Joint Confinement on Lineal Ascendant under the Violation of Punishment of Violences, Etc. Act; b) Joint Infliction of Injury on Lineal Ascendant under the Violation of Punishment of Violences, Etc. Act; and c) Instigation of Suicide. [18] As against Jiwon, two further charges were considered (inflicting bodily injury and defamation). [19] The authorities in Korea interviewed 26 witnesses and gathered documents from multiple sources, including hospital records, phone records, CCTV footage, and credit card statements. [20] A written decision was issued by the Seoul Central District Prosecutor's Office (the "Prosecutor") on November 1, 2017. The Prosecutor determined that the plaintiff was "cleared of suspicion" for inflicting injury to Miran or instigating her suicide. The Prosecutor also cleared Jiwon of suspicion for the two additional charges. The Prosecutor proceeded with a charge in relation to the August 2016 Incident with the ambulance. The plaintiff and Jiwon were charged with the offence of "coercion"/"compulsion". A trial took place in 2018. The Korean Court found the plaintiff and Jiwon guilty and sentenced each to a suspended 8-month jail sentence, a fine, and 120 hours of community service. The plaintiff and Jiwon appealed the judgment. On August 27, 2019, the appeal court upheld the trial judge's ruling. [21] The defendants have sued the Korean government for

mishandling the police investigation and criminal prosecution. This civil claim is still ongoing. D. Applications in British Columbia [22] On December 19, 2018, and August 1, 2019, the DCs filed jurisdictional responses. On August 30, 2019, the DCs filed a Notice of Application challenging the BC court's jurisdiction to consider the Counterclaim. The application commenced before Justice Morellato on November 29, 2019, but was adjourned to August 4, 2020 due to lack of time. [23] On August 4, 2020, the parties agreed to a consent order providing that the Counterclaim would be stayed, pending agreement of the parties or further order of the court. [24] On May 18, 2022, the plaintiff filed an application seeking to strike various paragraphs of the Amended Response. The application asserts that the impugned paragraphs do not plead valid defences, are embarrassing, or are an abuse of process. [25] On June 15, 2022, the defendants filed a Notice of Application seeking an order lifting the stay of the Counterclaim. At the hearing before this Court however, the parties were able to agree to a consent order addressing how and when the Counterclaim would be advanced. As such, only the plaintiff's application to strike portions of the Amended Response and the DCs jurisdictional application are before me. E. Additional Facts Relevant to Jurisdiction [26] The plaintiff, his parents, his

siblings and his maternal grandmother are all Korean nationals. The aunt Kim is a Canadian resident, although she also resides in Korea for periods of time. [27] None of the DCs is, or has ever been, ordinarily a resident in British Columbia. Each is resident in Korea. Nor have the DCs ever held property in BC. [28] All of the direct interactions with Miran took place in Korea. There is an allegation of the DCs making one phone call relevant to their campaign of harassment directly to Kim in BC. [29] There is no dispute that the Funds were held in an account in British Columbia. III. ANALYSIS A. Application to Strike 1. Legal Framework [30] The relevant provisions of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]. are as follows: Rule 9-5 - Striking Pleadings Scandalous, frivolous or vexatious matters (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be, (b) it is unnecessary, scandalous, frivolous or vexatious, (c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be

paid as special costs. [31] The test for striking pleadings establishes a high bar for the plaintiff to clear. Under Rule 9-5(1)(a), a claim will only be struck if, assuming the truth of the facts pleaded, the applicant establishes that it is plain and obvious that the pleading discloses no reasonable cause of action or has no reasonable prospect of success: Vassilaki v Vassilakakis, 2022 BCSC 763, at paras. 45, 52. The pleading must be read generously. A pleading should not be struck if it is inadequate, but could be amended to disclose a cause of action: Vassilaki at paras. 65-66; R. v. Imperial Tobacco Canada Ltd, 2011 SCC 42 at para.

21. Permitting an amendment to the pleading is within the discretion of the court. This decision will involve the consideration of many factors, including, but not limited to: a) the degree to which the pleadings are deficient; b) the extent to which such deficiencies may be addressed by an obvious or straightforward amendment; c) the apparent merit of the claim that may be made out with an amendment; d) the prejudice that may be incurred by dismissing the claim; and e) the additional factors set out in Rule 1-3 of the Supreme Court Civil Rules: Kindylides v. Does, 2020 BCCA 330 at para. 23. [32] The mere fact that a claim is novel is not fatal: Imperial Tobacco, at para.

21. Issues that are novel, complex, and important should normally be decided on a full factual record after a trial. However, novel claims must at least be arguable, have some elements of a cause of action recognized at law, be a reasonable and arguable incremental extension of established law, and have a reasonable prospect of success: Lavery v. Community Living British Columbia, 2022 BCSC 739 at para. 80. [33] Beyond the pure pleadings challenge under Rule 9(5)(1)(a), evidence is admissible for the remaining bases set out in subrule 9-5(1): Huang v. Silvercorp Metals Inc., 2016 BCSC 278 at para. 20. [34] With respect to the application of Rule 9-5(1)(b), the relevant considerations as to whether a pleading is unnecessary, scandalous, or frivolous are: a) whether the plea goes to establishing the cause of action; b) whether it advances any claim known in law; c) whether it is obvious that the claim cannot succeed; or d) whether the claim would serve no useful purpose and would be a waste of the court's time and public resources. [35] In terms of Rule 9-5(1)(b), pleadings are "embarrassing" where they are so irrelevant that they will involve the parties in useless expense and will prejudice the trial of the action by involving them in a dispute apart from the issues: Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, 1999 CarswellBC 2111 (B.C.S.C.) at para.

47. A pleading is also embarrassing if it does not state the real issue in an intelligible form. Finally, is embarrassing if it is prolix, and includes irrelevant facts, argument or evidence: British Columbia (Attorney General) v. Malik, 2009 BCSC 595 at para 9. [36] Once again, the approach to these subrules is generous, with any error to be on the side of letting an action proceed: Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para.

65. An otherwise scandalous allegation will not be struck if it is relevant to the proceedings: Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, 1999 CanLII 5860 (B.C.S.C.) at para. 47.

2. Summary of the Pleadings Challenges [37] The plaintiff breaks down the issues arising pursuant to his application to strike as follows: (a) Should the defence ex turpi causa non oritur actio based on the alleged abuse of Miran by Sung Oh be struck under Rule 9-5(1)(a) as disclosing no reasonable defence? (b) Should the defence ex turpi causa non oritur actio based on the alleged illegal purpose of the trust be struck under Rule 9-5(1)(a) as disclosing no reasonable defence? (c) Should the defence of unclean hands be struck under Rule 9-5(1)(a) as disclosing no reasonable defence? (d) Should the defence of set-off be struck under Rule 9-5(1)(a) as disclosing no reasonable defence? (e) Should the defence of estoppel be struck under Rule 9-5(1)(a) as disclosing no reasonable defence? (f) Should extraneous factual allegations pleaded in the RTCC be struck under Rule 9-5(1)(b) and (c) as unnecessary, scandalous and embarrassing? (g) Should the allegations already investigated and decided in the Korean judicial process be struck as an abuse of process under Rule 9-5(1)(d)? [38] This summary provides a useful structure for the pleadings analysis, and I have largely adopted it below.

3. Should the Plea of Ex Turpi based on the Alleged Abuse be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence? a. Introduction [39] In the Amended Response, the defendants assert that the plaintiff should not be entitled to recover given his alleged abuse of the defendants. They argue that the maxim ex turpi causa non oritur actio should operate to prevent the plaintiff from asserting his trust claim. The plaintiff argues that this defence should be struck as it has no possibility of success. b. The Ex Turpi Principle [40] The legal maxim ex turpi causa non oritur actio has been translated as "no right of action arises from a base cause": British Columbia v. Zastowny, 2008 SCC 4 at para. 11 ["Zastowny"] [emphasis added]. [41] The genesis of the ex turpi principle was detailed by Savage J.A. in Zhang v. Cute-Go Novelty Inc., 2016 BCCA 451: [13] The doctrine of ex turpi causa was first set out by Lord Mansfield in Holman v. Johnson (1775), 1 Cowp 341-343, that "no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act". [Emphasis added] [42] In Zastowny, the Supreme Court of Canada applied the ex turpi principle to prevent recovery for past wage loss suffered during a period in which the plaintiff was incarcerated. The court provided more detailed guidance on the principles underlying this defence: [20] The question is, "under what circumstances should the immoral or criminal conduct of a plaintiff bar the plaintiff from recovering damages to which he or she would otherwise be entitled" (p. 169). The following principles and approach are established in Hall v. Hebert and are applicable in the present case.

1. Application of the ex turpi doctrine in the tort context invalidates otherwise valid and enforceable actions in tort (p. 169).

2. Therefore, its application must be based on a firm doctrinal foundation and be made subject to clear limits and should occur "in very limited circumstances" (p. 169).

3. The only justification for its application is the preservation of the integrity of the legal system. This concern is only in issue where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law (p. 169). It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which -- contract, tort, the criminal law -- must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to "create an intolerable fissure in the law's conceptually seamless web": Weinrib, supra, at p.

42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system. [p. 176] 4. The ex turpi doctrine generally does not preclude an award of damages in tort because such awards tend to compensate the plaintiff rather than amount to "profit": Such damages accomplish nothing more than to put the plaintiff in the position he or she would have been in had the tort not occurred. . . . [A plaintiff should get] only the value of, or a substitute for, the injuries he or she has suffered by the fault of another. He or she gets nothing for or by reason of the fact he or she was engaged in illegal conduct. [pp. 176-77] 5. The ex turpi doctrine is a defence in a tort action. The plaintiff's illegal conduct does not give rise to a judicial discretion to negate or refuse to consider the duty of care which goes to the relationship between a plaintiff and a defendant. It is independent of that relationship. The defendant may have caused harm by acting wrongly or negligently, but the "responsibility for this wrong is suspended only because concern for the integrity of the legal system trumps the concern that the defendant be responsible" (pp. 181-82).

6. Treating the ex turpi doctrine as a defence places the onus on the defendant to prove the illegal or immoral conduct that precludes the plaintiff's action. And as a defence, it allows for segregation between claims for personal injury and claims that would constitute profit from illegal or immoral conduct or the evasion of or a rebate of a penalty provided by the criminal law. [22] Zastowny's wage loss while incarcerated is occasioned by the illegal acts for which he was convicted and sentenced to serve time. In my view, therefore, the ex turpi doctrine bars Zastowny from recovering damages for time spent in prison because such an award would introduce an inconsistency in the fabric of law. This is because such an award would be, as McLachlin J. described in Hall v. Hebert, at p. 178, "giving with one hand what it takes away with the other" An award of damages for wages lost while incarcerated would constitute a rebate of the natural consequence of the penalty provided by the criminal law. [Emphasis added.] [43] In the more recent decision Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2020 BCCA 130, our Court of Appeal provided further guidance on the application of the principle: [44] The defence of illegality, sometimes referred to by the Latin maxim ex turpi causa non oritur actio, to the enforcement of contractual rights is generally associated with

this passage from the judgment of Lord Mansfield in Holman v. Johnson (1775), 98 E.R. 1120: The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act . [68] In Tinsley, Lord Browne-Wilkinson considered it a "rule" that a plaintiff is "entitled to recover if he is not forced to plead or rely on the illegality, even if it emerges that the title on which he relied was acquired in the course of carrying through an illegal transaction". [69] This theory has been referred to as the "reliance rule" in the United Kingdom, and has proved controversial. The United Kingdom Supreme Court recently held that the reliance rule as expressed in Tinsley should no longer be followed: Patel v. Mirza, [2016] UKSC 42, per Lord Toulson at para.

110. In my view, it is not consistent with the principled approach described in Hall to follow a "rule" that depends upon how narrowly a plaintiff can plead or argue its case. The question remains whether enforcement of an agreement that is tainted in some way with illegality will undermine the integrity of the legal system. This may occur when the remedy sought by the plaintiff would allow the plaintiff to profit from wrongful conduct, or would introduce inconsistency in the law, or would frustrate the policy underlying the illegality, or would in some other way driven by the facts of the particular case undermine the integrity of the judicial process [70] [The] modern approach to the illegality defence provides some discretion on a trial judge to decide whether to give effect to the defence [Emphasis added] [44] The need for a causal connection between the alleged illegality and the remedy sought was discussed in Giustini v. Workman, 2021 ABCA 65: [47] Dirom [v Perera, 2004 ABQB 657], paras 224-225, emphasizes the need for a causal link between the illegal activity and the damage for which complaint is made; the illegality must not be collateral to the transaction on which the claimant relies. Levy, paras 8 and 10, says the remedy may only be invoked to prevent wrongdoers from profiting as a direct pecuniary award for their wrongdoing, as opposed to merely recouping

compensatory damages. [Emphasis added] [45] There is no doubt that the defendants allege illegal conduct on the part of the plaintiff. However, the need for a causal connection between the conduct and the claim is the key argument advanced by the plaintiff in seeking to strike the defence. c. Application of the Principle to the Amended Response [46] As noted above, courts have used various formulations to describe the nature of the required causal link required between the cause of action plead and the alleged illegality: a) "arises from": Zastowny maxim translation; b) "founds his cause of action upon": Holman; c) "profit from": Hall, Zastowny; d) "not collateral to": Giustini; and e) "profiting as a direct pecuniary award for": Giustini. [47] Notwithstanding these various formulations, none of the courts appear to have intended to establish different legal tests. At this stage of the proceeding, the Court is not in a position to finally determine which formulation is preferable, or indeed whether they all effectively mean the same thing. For present purposes, I find that an approach based on any of the formulations is at least arguable, having never been the subject of negative commentary. [48] The defendants favoured formulation from the list above was "profits from". Unlike, for example, "founded upon", this particular formulation arguably does not require that the

illegality must necessarily come before or as part of the establishment of the elements underlying the original cause of action, rather than occurring after the fact. Under a "profits from" formulation of the test, one can see how a person could profit from improperly negating an opposing witness' ability to testify, even if that effort occurred well after the crystallization of the original cause of action. A plaintiff's ability to recover may be eased if there is no witness to contradict the plaintiff's story about the facts surrounding the initial cause of action. [49] Neither party was able to locate case law considering whether removal of a witness after crystallization of the cause of action does (or does not) allow for the invocation of the ex turpi defence. However, given the broad formulations of the causation requirement above, the lack of direct contrary authority suggests that the issue remains open. On an application to strike, the defendants are entitled to the benefit of the direction (1) to interpret the pleadings generously, and (2) that novel claims may be allowed to proceed. [50] Looking at the question more broadly, the modern approach to the ex turpi principle emphasizes that the fundamental basis for the defence is to ensure the preservation of the integrity of the legal system. Relevant factors in this modern approach include: a) the objectives of the

prohibition breached, b) whether the misconduct was serious in intent and result, c) the relative "fault" of the parties, d) the likely consequences of declaring the claim invalid, e) the possible unjust enrichment of one party as a result of the non‑enforcement, and f) the potential that letting the estate 'lie where it falls' may bring about an unfair or disproportionate result: Wang v. Jiang, 2021 BCCA 132 at para. 50. [51] Applying the most relevant of these factors here: a) the objective of the prohibition breached includes the deterrence of witness tampering specifically, but this case also engages a broader objective of protecting human life generally, b) the alleged misconduct was serious in intent and result, and c) accepting the allegations in the pleadings, a relative "fault" assessment weighs against the plaintiff. [52] The plaintiff argued that the policy objectives would not be undermined by striking the ex turpi defence, as there will remain an array of other tools that could be used to maintain the integrity of the legal system. For example, if the Court does conclude that the plaintiff incited the death of his mother, the Court could: a) draw an adverse inference against the plaintiff; b) set aside the plaintiff's proceeding in whole or in part under Rule 22-7(2); or c) make a finding of spoliation. [53] However, there are flaws with these suggestions. The application of an adverse inference is highly discretionary: The Cambie Malone's Corporation v. British Columbia (Liquor Control and Licensing Branch), 2016 BCCA 165 at para.

40. The consideration of whether to grant the "Draconian" remedy of striking a claim for breach of the Rules is also discretionary: Dhillon v. Parmar, 2014 BCSC 1115 at paras. 60, 62-63. The ability to rely on Rule 22-7(2) is also suspect given that the alleged wrongdoing occurred prior to the commencement of the litigation, before any Rules controlled the plaintiff's conduct. In terms of the spoliation defence, the timing is such that the defendants would need to establish that litigation was in reasonable contemplation: Panchal v. Wal-Mart Canada Corp., 2022 BCSC 1040 at para. 9. [54] In conclusion, I am unable to say that it is plain and obvious that the defendants cannot advance an ex turpi defence based on the allegation that the plaintiff's sought to remove Miran as a potential witness. It is not clear that the fact that the alleged wrongful conduct came after the cause of action crystallized is a bar to the use of the defence. It is also not clear that there are other tools that could properly address any concerns about the plaintiff's conduct. The ex turpi argument should be allowed to remain in the Amended Response.

4. Should the Plea of Ex Turpi based on Illegal Purpose of be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence? [55] The plaintiff also submits that the defendants' ex turpi plea relying on an allegation that the Alleged Trust was created for an illegal purpose should be struck. However, this alleged illegality has an even stronger causal connection to the trust claim, and hence must also be allowed to remain, subject to one direction. The current plea as to the illegal purpose of the Alleged Trust is found only in the Part 3: Legal Basis of the Amended Response. This plea should be tethered to material facts in the Part 1: Response to Notice of Civil Claim Facts. I grant the defendants leave to amend to plead such material facts in Part 1. If there is any dispute whether any proposed amendments plead adequate material facts to sustain the plea, the parties may return before me to resolve the dispute.

5. Should the Plea of Unclean Hands be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence? [56] The clean hands doctrine provides that anyone "who comes to equity must come with clean hands": Wang v. Wang, 2020 BCCA 15 at para.

46. The clean hands doctrine is narrowly applied, and does not entitle a court to canvass all aspects of the party's behaviour known to the court. Its use must be kept to the circle of behaviour that has "an immediate and necessary relation to the equity sued for", and is not offset by any mitigating factors: Wang, at para. 46 [57] In Mayer v. Mayer, 2012 BCCA 77, the Court of Appeal held that the clean hands doctrine applies where "the relationship between the relief sought and the misconduct [is] direct and necessary in the sense that the person seeking equitable relief rel[ied] on the misconduct in order to vindicate his claim": para.

86. The court also relied on the following excerpt from I.C.F. Spry, The Principles of Equitable Remedies, 8th ed. (London: Sweet & Maxwell Ltd., 2010 at 170): ... [T]hat general fraudulent conduct signifies nothing; that general dishonesty of purpose signifies nothing; that attempts to overreach go for nothing; that an intention and design to deceive may go for nothing, unless all this dishonesty of purpose, all this fraud, all this intention and design can be connected with the particular transaction, and not only connected with the particular transaction, but must be made to be the very ground upon which this transaction took place, and must have given rise to this contract. [Emphasis added.] [58] Finally, the court in Mayer provided as follows: [89] While it is true that Mhinder's misconduct as found by the judge relates to the same subject matter as the trust claims he brings in Action 716, the misconduct is not the foundation of his current claims. Mhinder relies on the Acknowledgements of Trust signed in December 2001, five years prior to the misconduct, as evidence of an express trust whereby Richard and Rita held the shares of their companies and certain properties in trust for Bhora and Mhinder (or alternatively, for Bhora, Mhinder, Richard, and Rita). Further, his claim for a resulting trust arises simply by virtue of the allegedly gratuitous transfer of certain

assets to Richard and Rita commencing in or about 1988 which, if gratuitous, would raise a rebuttable presumption of resulting trust: see Pecore v. Pecore, 2007 SCC 17 at paras. 24-25, [2007] 1 S.C.R. 795. [90] It follows that, although Mhinder's behaviour in the Bhagwan Mayer Action could constitute misconduct, depending on how the evidentiary conflicts in regard to this conduct might be resolved, the misconduct did not have an "immediate and necessary relation" to his trust claims and it would be possible for Mhinder to prove these claims without relying on the impugned conduct: Tinsley v. Milligan, [1994] 1 A.C. 340 at 367, 371, 375, [1993] 3 All E.R. 65 (H.L.). [Emphasis added.] [59] In First Majestic Silver Corp. v. Davila Santos, 2012 BCCA 5 ["First Majestic CA"], aff'g 2011 BCSC 362 ["First Majestic SC"], the Court of Appeal considered whether the chambers judge had erred in striking a portion of the defendants' pleadings. Mr. Davila Santos was a director and majority owner of the plaintiff, First Silver Reserve Inc. ("First Silver"), a BC company which owned a silver mine in Mexico. In 2006, Mr. Davila Santos sold his shares in First Silver to the plaintiff, First Majestic Silver Corp. ("First Majestic"). Several months later, First Majestic acquired the balance of the shares of First Silver from its remaining shareholders. First Silver then claimed that, in August

2007, Mr. Davila Santos breached his fiduciary duty owed to it by indirectly acquiring the silver mine through his company and a co-defendant. Among other defences, the defendants plead that the clean hands doctrine barred First Majestic from seeking equitable relief. In particular, they said that First Majestic failed to disclose certain information. However, the chambers judge found that the defence was bound to fail: [27] Applying that analysis, the purchase of Mr. Davila's shares had no direct relationship to First Majestic's prospectuses. The plaintiffs do not have to rely on the prospectuses to found their claim. The fact that the plaintiffs may have issued shares in order to fund the transaction has no direct nexus with the transaction with Mr. Davila and does not affect him; in fact, the prospectuses were issued after the share purchase transaction between him and First Majestic was concluded. [Emphasis added.] [60] The Court of Appeal affirmed the chambers judge's decision to strike the clean hands defence. The defendants argued that as a result of a plan of arrangement, First Silver and First Majestic should be considered a single business entity, and therefore any breaches of fiduciary duty should be ascribed to each, thereby creating the necessary causal link. In upholding the decision to strike the clean hands defence, the court stated: [39] In my view, there is

insufficient nexus between the approval of the plan of arrangement and this plea of the plaintiffs. While it is true that First Silver became a subsidiary of First Majestic as a result of the plan of arrangement, there is no direct relationship between the plan of arrangement and the allegation of breach of fiduciary duty. Although some of the activities of Mr. Davila Santos pre-date the plan of arrangement, the consummation of the alleged breach of fiduciary duty occurred when Minera Arroyo acquired the Bolaños property in August 2007, almost a year after the plan of arrangement was approved. Also, I am unable to see how improper non-disclosure in connection with First Silver becoming a wholly-owned subsidiary of First Majestic would have a bearing in deciding whether a breach of duty owed to First Silver should also be regarded as a breach in favour of First Majestic. [Emphasis added.] [61] In Bul River Mineral Corporation (Re), 2018 BCSC 39, one party argued that a finding of self-dealing against a corporation and its director, Mr. MacMillan, in a related action was sufficient grounds to declare that the corporation did not have the clean hands necessary to enforce a previously court-approved plan of arrangement. The court disagreed. The court found the relief sought was statutory in nature rather than equitable, and hence, the clean hands doctrine did not apply. In the

alternative, the court found that Mr. MacMillan's conduct did not have a sufficient nexus with the relief sought. The court noted the temporal gap between the alleged wrongs and the facts underlying the petition in that Mr. MacMillan's alleged misconduct occurred after the plan of arrangement had been approved. The court stated: [84] Even accepting that Mr. MacMillan/HPP is seeking equitable relief, there is another basis upon which to question the applicability of this doctrine; namely, whether the misconduct of Mr. MacMillan relates to the relief now sought. [85] In City of Toronto v. Polai, 1969 CanLII 339 (ON CA), [1970] 1 O.R. 483 (C.A.), aff'd 1972 CanLII 22 (SCC), [1973] S.C.R. 38 the "unclean hands" doctrine is discussed at 493-94. In particular, the court states: The misconduct charged against the plaintiff as a ground for invoking the maxim against him must relate directly to the very transaction concerning which the complaint is made, and not merely to the general morals or conduct of the person seeking relief [Emphasis added.] [62] In a case that bears some similarity to the present fact pattern, Whitford v. Whitford, 2020 BCSC 513, the plaintiffs sought a declaration of a one-half interest in a home allegedly purchased jointly with the defendants. The defendants were spouses. The plaintiffs were the defendant husband's parents. The plaintiffs alleged they were

"forced out" of the home by the defendants. The defendants resisted the claim, arguing the plaintiffs failed to come to court with clean hands. They submitted the plaintiffs had failed to pay for their half of the property expenses, harassed and intimated the defendants to force them to sell or buy out the plaintiffs' interest, defaulted on a loan, misrepresented their interest in the property to a creditor, and created conditions wherein a certificate of pending litigation was filed against the subject property: Whitford at para.

254. The court found that the plaintiff's alleged misconduct did not have the immediate and necessary relationship to the relief sought. In particular, the plaintiffs were simply seeking a resulting trust for a one-half interest in the property in relation to the transaction that took place in 2013. By contrast, the misconduct complained of took place at least two years after that transaction: Whitford at para. 256. [63] Based on these expressions of the legal principle, I find that it is plain and obvious on the basis of the pleadings alone that the plaintiff's conduct could not reach the clear and heightened causal standard applicable to the clean hands defence. Although there is a caution in Mayer, para. 93, about the need to have a "scrupulous examination of the circumstances", I do not find that this statement creates a bar against motions to strike pleas relating to the clean hands doctrine. Indeed, in Este v. Esteghamat-Ardakani, 2018 BCCA 290, the Court of Appeal subsequently called the persuasive value of this statement from Mayer into question: [103] In the context of the judgment as a whole, the discussion of Mhinder's Misconduct may well be obiter dicta. As Smith J.A. stated in para. 93, "allegations of bad faith, abuse of process, lack of clean hands and the like cannot be resolved without a consideration of their full factual circumstances, especially when there

are credibility issues", and "no scrupulous examination of the all the circumstances" had taken place. In any event, at most Mayer stands for the proposition that the clean hands doctrine will preclude a resulting trust claim on the basis of prior litigation misconduct when that conduct has "an immediate and necessary relation" to the claim. [64] Unlike the principles underlying the ex turpi defence, which: a) have been somewhat loosened to reflect a more explicit policy-based approach, and b) have been subject to a variety of different formulations relating to the necessary causal test, I find that the principles in relation to the clean hands doctrine have solidified, and are subject to a narrower, less variable, and less ambiguous statement of the causal test. As in Whitford, I find that the substantive and temporal gap between the formation of the Alleged Trust, and the alleged harassment on the part of the plaintiff is such that it is plain and obvious that the unclean hands allegation cannot succeed. In the present case, the subject transaction is the establishment of the Alleged Trust. The relief sought includes a declaration of constructive trust, unjust enrichment, and a tracing remedy for the allegedly misappropriated funds. However, the focus of the misconduct claim is the plaintiff's alleged abuse of Miran, which purportedly led to her suicide--both in intent and

result. The abuse of Miran, and associated pressure on Kim, took place after the Funds had been dissipated and the plaintiff's alleged loss had already crystallized. [65] As in Bul River and Whitford, the alleged misconduct occurred well after the subject transaction (i.e., the establishment of the Alleged Trust). Indeed, if the Alleged Trust was established in 1999, the alleged misconduct did not begin for nearly 15 years. The abuse of a trustee is also substantively discrete from the establishment of a trust--the trustee of a trust is a step removed from the settlor. [66] As noted, unlike the ex turpi defence, the clean hands doctrine is, according to the case law, more strictly limited with respect to substance and temporality. As is apparent from the above-noted decisions, courts have largely declined to allow a clean hands defence to proceed where the alleged misconduct does not have a direct nexus to the relief sought. While this is a borderline case, it is my view that the clean hands defence should be struck under Rule 9-5(1)(a).

6. Should the Plea of Set-Off be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence? [67] In Restore International Corp. v. KIP Kuester International Products Corp., [1999] B.C.J. No. 257 (S.C.), the court set out the principles applicable to equitable set-off: [26] The following principles apply to equitable set off: the party relying on a set off must show some equitable ground for being protected against his or her adversary's demands; the equitable ground must go to the very root of the plaintiff's claim before a set off will be allowed; a cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim; the plaintiff's claim and the cross-claim need not arise out of the same contract; and unliquidated claims are on the same footing as liquidated claims [27] It has since been held that the ultimate question is whether it would be manifestly unjust to allow the plaintiff to recover, without taking into consideration the defendant's cross claim. If that is the case, then, and particularly where the parties are the original parties, the court should be less concerned with such matters as exactly how closely connected the contracts, transactions or events giving rise to the defendant's cross claim are connected to the plaintiff's

claim. If there is some connection, and in all of the circumstances of the case it is fair or just that the defendant's cross claim be taken into consideration, then the equity is made out: [68] I find that the set-off issues raised in the Amended Response generally do not "go to the very root of the plaintiff's claim". The plaintiff's claim is a simple trust claim. On the other hand, the proposed set-off is based primarily on the effects of harassment that took place many years after the Trust was established, and well after the Funds had already been dissipated. The harassment claims include the mother's wrongful death claim, which is of such a disparate character from the Trust claim that I cannot find that it would be unfair to prevent advancement of such a set-off claim: Royal Bank of Canada v. Wilton, [1995] A.J. No. 247 (C.A.) at para. 32. [69] I note that the defendants have expressed concerns that while the plaintiff had conceded in this present application that he is not entitled to recover any portions of the alleged trust that were properly paid to him or on his behalf, he has not made this concession formally. To the extent that the defendants say that they also require a set-off plea to support an alternative position, i.e. that they deserve credit for their payout of sums pursuant to the terms of any trust, I find that this argument can (and should) be raised as a pure defence to the trust claim. It is not necessary that it be structured as a formal independent set-off claim.

7. Should the Plea of Estoppel be Struck under Rule 9-5(1)(a) as disclosing no reasonable defence? [70] The defendants' plea of estoppel form the Legal Basis of the Amended Response is as follows: 15. Further, or alternatively, having had access to, received, and had the benefit of the Alleged Trust Funds, the Plaintiff either assured, represented, or otherwise shared an understanding with the Defendants that the Defendants were permitted to use the Alleged Trust Funds for his use and benefit, or that the Defendants were the legal and beneficial owners of the Alleged Trust Funds, and the Plaintiff is now estopped from claiming any entitlement to the Alleged Trust Funds or breach of duties on the part of the Defendants.

16. Further, or alternatively, having used or received the Alleged Trust Funds to deal with the consequences of his own misconduct, including to avoid the consequence that he would be disinherited by Younghoon, the Plaintiff either assured, represented, or otherwise shared an understanding with the Defendants that he would not challenge the lawfulness of the use of the Alleged Trust Funds for such purposes, and the Plaintiff is now estopped from claiming any entitlement to the Alleged Trust Funds or breach of duties on the part of the Defendants.

17. Further, or alternatively, having made demands of Miran to either commit suicide or cause the Defendants to deliver a significant sum of money to him, the Plaintiff either assured, represented, or otherwise shared an understanding with the Defendants that he would make no further demands for money in the event of Miran's suicide, such that the Plaintiff is now estopped from claiming any entitlement to the Alleged Trust Funds or breach of duties on the part of the Defendants....

20. Further, or alternatively, any claims of the Plaintiff to any interest in the Alleged Trust Funds are all statute-barred due to the expiry of the relevant limitation periods. The Defendants plead and rely on the Limitation Act SBC 2012 c.

13. Further, or alternatively, the claims are barred by the doctrines of estoppel and laches. [71] The only Part 1 factual plea that arguably supports these legal pleas is as follows: 42. By reason of the Plaintiff's access to, and receipt of, the Alleged Trust Funds or portions thereof, and as shown by the subsequent treatment of Miran by the Plaintiff and his siblings, and the demands that they made of Miran and the Defendants, the Plaintiff was aware of how the Defendants had managed and expended the Alleged Trust Funds prior to him receiving CIBC statements in July 2017, as alleged. The Plaintiff first became fully aware of the facts necessary to support the causes of action alleged in his Claim more than two years before the date on which he filed his Claim. [72] I find that there are flaws in this plea. [73] First, the bulk of the factual support for the plea is contained in the Legal Basis. All supporting material facts should be moved to Part 1. [74] Second, the plea fails to expressly plead reliance on the part of the defendants. [75] Given that such failings are easily corrected, I am prepared to grant leave to amend the pleadings to address these failings on the same basis as my earlier grant of leave. In terms of the test for leave, I note that the defendants did seek leave at the Hearing to Amend to address any failing in this plea. As such, the estoppel claim is not struck, subject to the requirement that the defendants make the necessary amendments.

8. Should certain factual allegations pleaded in the Amended Response be struck under Rule 9-5(1)(b) and (c) as unnecessary, scandalous and embarrassing? [76] The plaintiff seeks to strike paragraphs 15 and 16 of Part 1, Division 3 of the Amended Response on the basis that they are "unnecessary" because it is legally irrelevant why payments are made on behalf of a beneficiary. The plaintiff further argues these paragraphs are "embarrassing" on the grounds that their sole purpose is to publish personal allegations about the plaintiff and his family. [77] I find that the referenced pleas are not unnecessary, scandalous or embarrassing. The existence of the Alleged Trust is hotly disputed between the parties. As noted above, the defendants raise an alternative plea that any monies received were properly disbursed according to the terms of the Trust. As such, I do not find anything improper about confirming the purposes for which such disbursements were in fact made, as those material facts may help establish compliance with any trust restrictions on the purposes for which the Funds could be used. [78] The plaintiff also seeks to strike paragraphs 16-42 of the Amended Response. This set of paragraphs largely relate to the abuse said to have been inflicted upon Miran. [79] Given that I have allowed the ex turpi plea to survive, it cannot be said that these allegations meet the test to strike generally, given that they may be material to establishing this defence. However, I agree that certain specific pleas are in the nature of evidential facts rather than material or ultimate facts: Gross v. Peak Products Manufacturing Inc., 2021 BCSC 2016 at paras. 10-11. These include paragraphs 24, 26, 27, 29, 31, and the second sentence of para.

32. These portions simply outline reports of abuse made to the defendants by Miran. But what is material is what happened to Miran, not what Miran told others about what happened. The communication of such information to others may be relevant at trial, but the evidence contained within these paragraphs is not "material" for the purpose of the pleading. These paragraphs should be struck.

9. Should the allegations already investigated and decided in the Korean judicial process be struck as an abuse of process under Rule 9-5(1)(d)? [80] This argument is largely based on the fact that a Korean prosecutor has already investigated the allegations and found that they were not worthy of criminal charges. [81] I find that the argument cannot succeed. [82] As there was no proper expert opinion on the law of Korea before me that directly addressed this point, I find that I should assume that the criminal law standard in Korea is the same as in Canada: Corlett v. Hoelker, 2012 BCSC 25 at para 68. Guilt in a criminal proceeding requires proof beyond a reasonable doubt. Civil claims require only proof on a balance of probabilities. As such, there is nothing abusive about the defendants seeking to establish civil liability for Miran's harassment even though a criminal proceeding was not pursued in Korea for a majority of the allegations: Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427 at para 24. Furthermore, a finding by a prosecutor that charges will not be pursued is not the equivalent of a finding of not guilty. Even if the Court retains the discretion to apply broader concerns about the integrity of the judicial process, I do not find that such integrity would be undermined on the facts of this case.

10. Conclusion on Application to Strike [83] A summary of the findings is listed below: a) The defence of ex turpi causa non oritur actio based on the alleged abuse of Miran by Sung Oh is not struck under Rule 9-5(1)(a). a) The defence ex turpi causa non oritur actio based on the alleged illegal purpose of the trust is not struck under Rule 9-5(1)(a). b) The defence of unclean hands is struck under Rule 9-5(1)(a) as disclosing no reasonable defence. c) The defence of set-off is struck under Rule 9-5(1)(a) as disclosing no reasonable defence. d) The estoppel claim is not struck at this time under Rule 9-5(1)(a), subject to the requirement that the defendants make certain amendments. e) The factual allegations pleaded in the RTCC are partially struck under Rule 9-5(1)(b) and (c). Paragraphs 24, 26, 27, 29, 31, and the second sentence of paragraph 32 must be struck as pleading unnecessary evidential facts. f) The allegations already investigated and decided in the Korean judicial process are not struck under Rule 9-5(1)(d). B. Jurisdiction 1. Issues [84] In the second application before me, the DCs assert that the Counterclaim should not be allowed to proceed against them in Canada. The specific jurisdictional issues this Court must assess are as follows: a) Does the Court have territorial competence over the Counterclaim against the DCs? b) Should the Court accept jurisdiction under the doctrine of necessity? c) If the Court has territorial competence, should it nonetheless decline to exercise jurisdiction on the basis that the courts of Korea are clearly the more appropriate forum?

2. Territorial competence a. Legal Framework [85] Territorial competence is determined exclusively by the application of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (the "CJPTA"). Section 3 of the CJPTA sets out the sole bases upon which a court can assume territorial competence: DropLo Management Group Ltd. v. Howard, 2015 BCSC 1102 at para.

17. The party asserting jurisdiction has the initial burden of establishing territorial competence. [86] The plaintiff concedes that this Court does have territorial competence over the plaintiff pursuant to section 3(a) of the CJPTA as he is a plaintiff in the underlying proceeding. However, the other DCs challenge the defendants' assertion that this Court has territorial competence in relation to the claims made against them in the Counterclaim. [87] In relation to the remaining DCs, the defendants rely on section 3(e) "that there is a real and substantial connection between BC and the facts on which the proceeding against that person is based". The defendants assert that there is a presumption of a real and substantial connection on the basis of sections 10(a), (f) and (g) of the CJPTA. Pursuant to these provisions, a real and substantial connection is presumed where the proceeding: (a) is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in property in British Columbia that is immovable or movable property, (...) (f) concerns restitutionary obligations that, to a substantial extent, arose in British Columbia, (...) (g) concerns a tort committed in British Columbia, (...) [88] The Court of Appeal in Ewert v. Höegh Autoliners AS, 2020 BCCA 181 explained the two stages of a section 10 analysis as follows: [16] At the first

stage of the analysis, the plaintiff must show that one of the connecting factors listed in s. 10 exists. The basic jurisdictional facts relied on by the plaintiff are taken to be true if pleaded (sometimes referred to as a presumption that the pleaded facts are true). The defendant challenging jurisdiction is entitled to contest the pleaded facts with evidence. If the defendant contests the pleaded facts with evidence, the plaintiff is required only to show that there is a good arguable case that the pleaded facts can be proven. The role of the chambers judge is not to prematurely decide the merits of the case or to determine whether the pleaded facts are proven on a balance of probabilities; the plaintiff's burden is low [17] At the second stage, if one of the connecting factors is established either on undisputed pleadings or on disputed pleadings but with a good arguable case, the "mandatory presumption" of a real and substantial connection (and, therefore, territorial competence) is triggered This is, of course, distinct from the "presumption" that pleaded facts are true. At this stage, because the connecting factor has already been established, it is presumed that a real and substantial connection exists, and therefore that the court has territorial competence. The defendant may now attempt to rebut the presumption of real and substantial connection by establishing "facts

which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them However, the presumption is strong and "likely to be determinative" ... The burden on the defendant to rebut the presumption is heavy... At this stage of the analysis, a connecting factor is already established: the defendant's task is to show why a real and substantial connection does not follow, despite the strong presumption that it does. [89] A presumptive connecting factor can be rebutted if the responding party is able to show that there is only a weak relationship between the subject matter of the litigation and the forum: Haaretz.com v. Goldhar, 2018 SCC 28, at paras. 42-43. [90] The defendants also invoke, in the alternative, section 6 of the CJPTA, which provides as follows: 6. A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that (a) there is no court outside British Columbia in which the plaintiff can commence the proceeding, or (b) the commencement of the proceeding in a court outside British Columbia cannot reasonably be required. [91] This statutory provision is a codification of the common law "doctrine of necessity". The defendants bear the burden of proof of establishing that the commencement of a proceeding outside BC cannot reasonably be required: Ovchinnikova v. Stevens, 2018 BCSC 951 at para.

74. Courts have set a high bar for its invocation. It is to be stringently interpreted and limited to exceptional cases: Danielson v. Janze, 2017 BCSC 413 at para.

62. In Ovchinnikova, the court cited with approval the following discussion by LaBel J.A., writing for the Quebec Court of Appeal, dealing with an equivalent statutory provision in Quebec: [93] According to its legislative history, this provision represents a narrow exception to the usual rules governing jurisdiction. It is not intended to allow a Quebec court to seize a power that it would not otherwise possess. It is intended to settle issues of access to justice for a litigant on Quebec territory when the foreign forum that would normally have jurisdiction is unavailable for exceptional reasons such as a nearly absolute legal or practical impossibility. This includes, for example, the breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court. [Emphasis added.] b. Does the Counterclaim fall within sections 10(a) or (f) of the CJPTA? [92] The defendants seek to rely on the fact that the plaintiff's claim seeks the return of trust monies. On that basis, they assert that the Counterclaim is brought to declare or determine proprietary or possessory rights in BC, or that it concerns restitutionary obligations in BC. [93] I agree with the DCs that this approach is misconceived. For the purposes of the DCs application, the

"proceeding" referred to in section 10 of the CJPTA is the Counterclaim, not the Notice of Civil Claim or the action as a whole. [94] The wording of section 3(a) makes it clear that, for the purposes of the CJPTA, a counterclaim is a separate "proceeding" from the original claim. [95] A parallel issue arose in Josephson v. Balfour Recreation Commission, 2010 BCSC 603. In that case, certain foreign third party defendants challenged jurisdiction. The defendant, relied on the fact that the underlying claim by the plaintiff concerned a tort committed in BC. The court held that this was not the proper approach: [34] By virtue of the definition of "proceeding" in ss. 1 and 3(e), the "proceeding" for the purposes of this application must be the third party proceeding and not the main or primary proceeding between the plaintiff and the defendants -- that is because the plaintiff has not brought a proceeding against any of the third party applicants. [96] As such, I find that the defendants cannot rely on s.10(a) or (f). c. Does the Counterclaim fall within section 10(g)? [97] Section 10(g) of the CJPTA provides that territorial competence is established if the Counterclaim concerns a tort committed in BC. [98] The torts alleged in the Counterclaim are as follows: a) trespass alleging damage to Kim's "family home" in Korea (Counterclaim, Part 3, para. 6; Part 1, paras. 44-45); b)

intimidation causing injury to Miran (Counterclaim, Part 3, para. 3); c) intentional infliction of mental distress alleging injury to each of Miran, Lim and Kim (Counterclaim, Part 3, paras. 4-5); and d) conspiracy alleging injury to each of Miran, Lim and Kim (Counterclaim, Part 3, paras. 1-2). [99] The jurisdictional underpinning of each of these torts is addressed below. (i) Tort of trespass [100] The Counterclaim pleads the tort of trespass in relation to real property located in Korea - namely, Kim's and her husband's residence in Korea. The tort of trespass necessarily occurs where the property at issue is located: Urbanczyk v. 1128 Enterprises Ltd., 2019 BCSC 117 at para 73. The trespass is not a tort committed in BC. (ii) Tort of Intimidation [101] The Counterclaim pleads the tort of intimidation in relation to the conduct directed as against Miran only. It is not alleged that any intimidation took place in BC nor that Miran suffered any harm outside of Korea. Once again, this is not a basis on which this Court can ground territorial competence. (iii) Tort of Intentional Infliction of Mental Distress [102] The Counterclaim pleads intentional infliction of mental distress as against each of Miran, Lim and Kim. [103] The elements of the tort of intentional infliction of mental harm were summarized by the Court of Appeal in Universe v. Fraser Health Authority, 2019 BCCA

234: [23] The elements of the tort of intentional infliction of harm are: (1) flagrant or outrageous conduct; (2) that is calculated to produce harm; and (3) results in a visible provable illness [104] As it relates to Miran and Lim, all material facts would have occurred in Korea. [105] Any damage to Kim would have largely occurred in BC. However, there remains a flaw in the jurisdictional underpinnings for this tort, as the defendants have failed to expressly plead that Kim suffered from a "visible and provable illness". In Johnson v. Smith, 2018 BCSC 836 at paras. 33-36, the court struck a claim for intentional infliction of mental distress because of the plaintiff's failure to plead such an illness. [106] Assuming there had been no other basis to either reject or decline jurisdiction, I would have given the defendants leave to amend to plead the existence of a qualifying illness for Kim in light of the following: a) there is affidavit material that indicates that there may well be an evidentiary basis for such a plea. In her affidavit material, Kim refers to the events being a "source of significant ongoing distress and anxiety to me", to herself being "distraught" and "devastated", and that the events had a "profoundly devastating effect on me and my family, every day". Referring to herself and Lim, Kim goes on to state that "we continue to mourn her death and struggle to

come to terms with the death of Miran and the circumstances that preceded it". Kim also declares that she and Lim "continue to suffer from the psychological effects of losing a close family member", and that her "feelings of loss with respect to the death of Miran are intensified by the tragic circumstances surrounding her death."; and b) the defendants expressly signalled a desire to be given an opportunity to amend at the hearing should the Court conclude there was a flaw in the pleading. [107] Any leave to amend would have been granted on the same basis as the leave rights granted in relation to the required amendments to the Amended Response. However, as I have found that this Court should not exercise jurisdiction, there is no basis or need to grant such a leave to amend. (iv) Tort of Conspiracy [108] As noted above: a) There was at least one phone call made from Korea to BC in furtherance of the alleged conspiracy. b) Any damage sustained by Kim can be presumed to have been suffered in BC given that Kim was a resident of this province. [109] When harm is suffered in BC as a result of a conspiracy, that can serve as the basis for a finding that the tort was committed in this Province. A conspiracy occurs in British Columbia if the harm is suffered here, regardless of where the "wrongful conduct" occurred: British Columbia v. Imperial Tobacco Canada Ltd., 2006 BCCA 398 at

para. 41. [110] The DCs argue that the predominant purpose of the alleged conspiracy as pleaded was to intimidate and injure Miran. However, it should be noted that there are elements of the Counterclaim that make it clear that conduct is also alleged to have been at least secondarily directed at Kim, and that independent damage is alleged to have been suffered by Kim. For example, paragraph 49 of the Counterclaim states The conduct of the Defendants by Counterclaim was unlawful, directed towards Miran and the Defendants, and the predominant purpose of the conduct was to cause injury to Miran and the Defendants [Emphasis added.] [111] The DCs also rely on CIC Capital Fund Ltd. v. Rawlinson, 2016 BCSC 516, where the plaintiff, a company continued in BC, sued a chartered accountant based in the United Kingdom. The accountant's actions were alleged to have led to the company being de-listed from the London Stock Exchange, leading to economic damage in BC. The plaintiff sued in BC alleging that a tort had been committed in BC. The court rejected this argument: [32] Assuming the situs of the alleged tort is where the injury occurred, the plaintiff has not established to the required standard that the injury occurred in British Columbia. On the contrary, it is clear that the injury occurred in England. The fact that the injury may have had some repercussions for the plaintiff in

other jurisdictions, including British Columbia, does not give rise to a real and substantial connection with those jurisdictions. [112] In this case, I am unable to conclude that the injuries suffered by Kim actually occurred in Korea, and that there have been mere "repercussions" in BC. Rather: a) Kim received a threatening call in BC while she was a resident of BC; b) Kim's sister was regularly communicating to her in BC about the threats she was receiving; c) the funds that Kim was being pressured to put into the Trust would likely have been sourced from BC given her residency here; and d) any illness as a result of the extraordinary circumstances alleged to have surrounded her sister's death would have been suffered by Kim in BC. [113] As such, I find that the first stage test for jurisdiction is met in relation to the conspiracy tort. (v) Wrongful Death [114] Lim, who resides in Korea, seeks to recover damages for the alleged wrongful death of her daughter, Miran, pursuant to the Family Compensation Act, R.S.B.C. 1996, c.

126. As that harm was suffered in Korea, it does not satisfy the requirements of s. 10(g). Moreover, this Court does not have jurisdiction over a claim under our local Family Compensation Act if the incident causing the alleged wrongful death occurred outside BC: Ell v. Con-Pro Industries Ltd., 1992 CanLII 2034 (B.C.C.A.). (vi) Conclusion on Stage One [115] I find that the defendants have met their initial jurisdictional burden in relation to the intentional infliction and conspiracy claims (subject to the need to amend to better plead the nature of the damages sustained by Kim), which leaves the DCs in a position where they must rebut the presumption. d. Has the a presumption of a real and substantial connection under s. 10(g) been rebutted? [116] In Club Resorts Ltd. v. Van Breda, 2012 SCC 17, the Supreme Court described how a presumption of a real and substantial connection could be rebutted: [95] The presumption of jurisdiction that arises where a recognized connecting factor - whether listed or new - applies is not irrebuttable. The burden of rebutting the presumption of jurisdiction rests, of course, on the party challenging the assumption of jurisdiction. That party must establish facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak

relationship between them. [96] Some examples drawn from the list of presumptive connecting factors applicable in tort matters can assist in illustrating how the presumption of jurisdiction can be rebutted. For instance, where the presumptive connecting factor is a contract made in the province, the presumption can be rebutted by showing that the contract has little or nothing to do with the subject matter of the litigation. And where the presumptive connecting factor is the fact that the defendant is carrying on business in the province, the presumption can be rebutted by showing that the subject matter of the litigation is unrelated to the defendant's business activities in the province. On the other hand, where the presumptive connecting factor is the commission of a tort in the province, rebutting the presumption of jurisdiction would appear to be difficult, although it may be possible to do so in a case involving a multi-jurisdictional tort where only a relatively minor element of the tort has occurred in the province. [97] In each of the above examples, it is arguable that the presumptive connecting factor points to a weak relationship between the forum and the subject matter of the litigation and that it would accordingly not be reasonable to expect that the defendant would be called to answer proceedings in that jurisdiction. In such circumstances, the real and

substantial connection test would not be satisfied and the court would lack jurisdiction to hear the dispute. [Emphasis added.] [117] In Aleong v. Aleong, 2013 BCSC 1428, the court recognized that, where harm is suffered in two jurisdictions but the harm is significantly greater in one of those jurisdictions, the harm can be a basis to rebut the presumption: [98] I have concluded that, although Ms. Aleong can bring herself within the presumption in s. 10(a) of the CJPTA, Mr. Aleong has rebutted the presumption of a real and substantial connection based on movable property in B.C. [99] The value of the property located in B.C. is dwarfed by the value of the assets (including immovables) located outside of B.C. In that light, I find that there is only a weak connection between B.C. and the whole of the property claims in issue between the parties. In my opinion, the B.C. Court does not have jurisdiction over claims without a real and substantial connection to B.C. merely because those claims are advanced together with claims where there is undoubtedly a real and substantial connection. This result is consistent with the approach taken in McLean v. Retail Solutions Inc., 1989 CanLII 2750, (1989), 37 B.C.L.R. (2d) 131 (B.C. S.C.), at paras. 18-19 and in Williams v. TST Porter. Having jurisdiction over some claims is not sufficient to give the court jurisdiction over all

claims. [Italicized emphasis added. Underlined emphasis in original] [118] The Court of Appeal in Ewert acknowledged that, in a context where the presumption of territorial competence is established by an allegation of a conspiracy abroad causing harm in BC, presumption could be rebutted where "only a minor element of the tort of conspiracy was committed in British Columbia, or that the tort committed in British Columbia in this case was otherwise of a kind not meaningfully connected to the province." (para. 92). [119] In Jacubovich v. Israel (State), 2021 ONSC 3558, the Ontario Superior Court of Justice concluded that the presumption had been rebutted stating: [95] However, as the defendants argued, this is a multi-jurisdictional tort that originated from transactions that occurred exclusively in jurisdictions outside of Ontario between Jaime and IBI, a different agent of Israel, with only a final and minor administrative task occurring in Ontario through CTCC. If the plaintiffs claim as asserted is true, at best only a minor aspect of the tort of negligence occurred in Ontario. The original tort occurred in either Panama or Israel, and it would not be reasonable to expect that Israel would be called to answer proceedings in Ontario as a result. [Emphasis added.] [120] I agree with the DCs that only a "minor element" of the claims advanced in the Counterclaim could be said to

have occurred in BC. All of the following core elements of the Counterclaim occurred in Korea (paragraph references are to Part 1 of the Counterclaim): a) the initial financial mismanagement by Miran (para. 6); b) the violence, threats and intimidation perpetrated by Younghoon and his sons against Miran (paras.7-9, 10-11, 14, 21, 27-28, 34-37, 47); c) the communication by Younghoon of the purpose for the Funds (para. 10); d) the communication by Miran of the use of the Funds (para. 12); e) the formation of the conspiracy by the DCs (para. 13); f) the infliction of mental distress on Lim (paras. 19, 42); g) the receipt by Lim of Miran's allegations of abuse (paras. 22, 25); h) Miran's confinement at the hands of the DCs (paras. 23, 31-32); i) Miran's drug overdose (para. 30); j) Miran's suicide (paras. 38-39, 48, 50, 52); k) Miran's funeral (para. 40); l) the plot to kill Dr. Youngsoo Kim (para. 41); m) the trespass into the Kim home in Korea (paras. 43-46); n) the tort damages sustained by Lim (paras. 49, 51); o) the wrongful death damages sustained by Lim (para. 53); and p) the police investigation into the plaintiff and Jiwon's activities, and their subsequent conviction and sentencing (para. 54). [121] The only elements of the Counterclaim that are alleged to have taken place in BC are: a) the deposit of the Funds into Canadian bank accounts (para. 14); b) Kim's receipt of

Miran's requests to mispresent the state of the Funds, and to refuse any of the DCs request for funds (paras. 14-16, 18, 20); c) the single phone call the plaintiff made to Kim (para. 17); d) Kim's receipt from Miran of the details of her abuse (paras. 22, 24-25, 29, 33); and e) any damages sustained by Kim (paras. 49, 51). [122] The heavy weight of the Korean elements of the Counterclaim is obvious. [123] I find that only "minor elements" or a "minor aspect" of the broader claims took place in BC. There is no "meaningful connection" to BC. The heart of the Counterclaim is the pressure applied to Miran and her subsequent suicide, all of which took place in Korea: Bier v. Continental Motors, Inc., 2016 BCSC 1393, at paras. 61-62. The events in Canada were generally passive, collateral or administrative. The core wrongs and the bulk of the alleged damage, took place in Korea. [124] The mere fact that the DCs may have hoped that any pressure placed on Miran in Korea would result in favourable financial decisions by Kim in BC is not enough to create a sufficiently meaningful connection. [125] Furthermore, it would not be reasonable for the DCs to have expected that their alleged wrongful conduct in Korea would be litigated in Canada. As for Kim, although she is resident in Canada, it is clear that she maintains a strong Korean presence, including a home that was the subject of the

alleged trespass. As such, given the source of the misconduct, it should not come as a surprise to Kim that litigation about such Korean misconduct would have to be litigated in Korea. [126] As such, I find that the presumption in favour of jurisdiction has been rebutted. e. If the court lacks territorial competence, should it nevertheless take jurisdiction over the proceeding on the basis that commencement of a proceeding outside British Columbia cannot reasonably be required under section 6 of the CJPTA? [127] Section 6 provides a residual discretion for the courts to assume territorial competence for "exceptional reasons such as a nearly absolute legal or practical impossibility": Ovchinnikova at para. 93. [128] The defendants allege that various threats have been made against them in Korea, that they remain fearful of the DCs, and that they are concerned that they cannot get a fair trial in Korea given the DCs' power and influence in Korea. [129] However, the defendants have provided no expert evidence, nor even any independent evidence, supporting their allegation of judicial corruption or the further threat of physical violence from the DCs in Korea. Although there was some material filed prepared by the defendants' Korean lawyer, it was not submitted in a manner that would allow the Court to accept it as proper expert opinion and it is not independent in any event. As

such, the only material evidence before the Court on this issue comes from certain bald allegations by Kim. It would be improper for this Court to draw conclusions on whether a foreign legal system is corrupt based on these bald allegations by Kim: Sidhu v. Kaur, 2022 ABQB 390 at para. 27. [130] On the other hand, the DCs have filed proper expert evidence from a lawyer, Sori Kim, describing the existence of a modern and constitutionally-based civil legal system in Korea. Although the defendants critique this report on the basis that Ms. Kim does not also have Canadian legal qualifications, I find that it is unnecessary to provide the Court with an analysis of the operation of a foreign legal system. Nor is such a requirement necessary to provide a basic level of comparative analysis as between the systems, where such analysis is based on material and instructions provided by Canadian counsel. To provide otherwise would make it very difficult for any party to find a suitable expert to speak to jurisdictional issues, as there will often be few lawyers qualified across both relevant jurisdictions. I am aware of no authority holding that such cross-qualification is a necessary requirement in order to provide the type of opinion expressed by Sori Kim. [131] I acknowledge that there appears to have been some suspect behaviour within the Korean policing system in this case. The police

officer in charge of the investigation has been convicted of fabricating and forging official documents. However, this is not indicative that the Korean judiciary has been compromised, which is the more important concern for the purposes of the present analysis. [132] Furthermore, the suggestion that the DCs have the ability to control the judicial system in Korea is contradicted, at least in part, by the fact that the plaintiff and Younghoon were charged and convicted of trespass, received a sentence, and their appeal was dismissed. This shows that the DCs are not able to ensure that they receive the outcome they desire in every case. [133] As such, I do not see any exceptional reasons requiring that British Columbia take jurisdiction notwithstanding that our standard regime for assuming conduct of such cases has not been satisfied. In particular, I cannot conclude that a Korean proceeding is a "nearly absolute legal or practical impossibility." [134] It is also important to note the principle of judicial comity and respect for other legal systems. Territorial competence under the CJPTA reflects the principle of comity--an attitude of respect for, and deference to, other states: Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd., 2021 BCCA 182 at para 18. I find that Korea is deserving of such comity in the present case. [135] Although there was a suggestion of possible

limitation concerns in Korea, the evidence on this point was not strong, nor was the legal basis of the concern well-established. Furthermore, I note that the defendants were able to advance a civil prosecutorial misconduct claim, presumably within the applicable limitation period. As such, it is difficult to fault the Korean legal system for any difficulties that may accrue as a result of any delay on the part of the defendants in advancing a more direct tort claim in Korea against the DCs. There is insufficient evidence to allow the Court to conclude that the defendants' legal rights were pursued diligently in Korea. The defendants should not be allowed to create the necessity to pursue a claim in Canada based on a decision to delay proceeding in a foreign jurisdiction.

3. Forum Non Conveniens a. General Principles [136] If I am wrong in concluding that territorial competence has not been established, the Court must continue on to consider whether BC is the appropriate forum. [137] Section 11 of the CJPTA provides that jurisdiction may be declined "on the ground that a court of another state is a more appropriate forum in which to hear the proceeding." The party opposing jurisdiction bears the burden of the analysis at this stage. As such, it is for the DCs to show that Korea is "clearly more appropriate": Haaretz at paras. 46-47. [138] Section 11(2) of the CJPTA sets out the following mandatory factors that a court must consider in determining whether it or a court outside of British Columbia is the more appropriate forum in which to hear a proceeding: a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; b) the law to be applied to the issues in the proceeding; c) the desirability of avoiding conflicting decisions in different courts; d) the enforcement of an eventual judgment; and e) the fair and efficient working of the Canadian legal system as a whole. [139] The test for forum non conveniens does not involve a "tallying up of the score" of the factors under s.11(2). Rather, the Court must consider all of the evidence and ask itself

whether an alternative forum emerges as clearly more appropriate: O'Melveny & Myers LLP v. Tilt Holdings Inc., 2021 BCSC 124 at para. 24. [140] The Court may also consider the recognized common law factors. As stated by the court in Borgstrom v. Korean Air Lines Co., Ltd., 2007 BCSC 947: [5] The legislation was considered by our Court of Appeal in Lloyd's Underwriters v. Cominco Ltd., 2007 BCCA 249 (CanLII), 2007 B.C.C.A. 249 aff'd (2006) 2006 BCSC 1276 (CanLII), 60 B.C.L.R. (4th) 261. At paragraph 55, Newbury J.A. writes that: It is apparent, then, that the CJPTA is not intended simply as a restatement or codification of existing law but does effect some substantive (albeit not dramatic) changes in the previous law. ... With respect to forum conveniens, on the other hand, the Act seems intended to codify, rather than effect substantive changes to, the previous law. The court is still required to consider "the circumstances relevant to the proceeding" and the list of six factors in s. 11(2) is obviously not exhaustive. The factors are broadly phrased and, as the Chambers judge has shown in this instance, can be generally equated to various factors considered at common law, as described in Stern, supra. [6] The reference to Stern is, of course, a reference to the decision of Low J., as he then was, in Stern v. Dove Audio Inc., [1994] B.C.J. No. 863 (QL) where, at para. 62, he

set forth, prior to the passage of this legislation, the following non-exhaustive list of unweighted factors to be considered: (1) Where each party resides. (2) Where each party carries on business. (3) Where the cause of action arose. (4) Where the loss or damage occurred. (5) Any juridical advantage to the plaintiff in this jurisdiction. (6) Any juridical disadvantage to the defendant in this jurisdiction. (7) Convenience or inconvenience to potential witness. (8) Cost of conducting the litigation in this jurisdiction. (9) Applicable substantive law. (10) Difficulty and cost of proving foreign law, if necessary. (11) Whether there are parallel proceedings in any other jurisdiction. ("Forum shopping" is to be discouraged.) [141] The most relevant factors in the present case are considered below. b. Comparative convenience for parties and witnesses [142] As noted, the vast majority of the parties are located in Korea. Kim is the only party with a connection to BC, and she splits her time between BC and Korea. Examinations for discovery of six of seven parties would need to be conducted in Korea or would involve travel from Korea to British Columbia. [143] In terms of the inconvenience to Kim in having to travel to Korea, there is evidence that Kim already frequently travels there. She and her husband own a "family home" in Korea and spend time there. Conversely, there is no

evidence that the other parties routinely spend material time in Canada. [144] The vast majority of the records relevant to the Counterclaim are likely to be located in Korea. [145] The records relevant to the Counterclaim are also likely written in Korean and would need to be translated into English if the Counterclaim were tried in British Columbia. [146] A Canadian proceeding would require a great deal of translation generally: Zhao v. Zhou, 2019 BCCA 12, at para.

2. Of the parties, each of Jiwon, Younghoon and Jiyoon would require an interpreter to give oral evidence. Lim also has limited knowledge of English and it is expected that she would need an interpreter. [147] Most of the other potential witnesses to the events that form the basis of the Counterclaim would also be Korean nationals and may require translation. The DCs identified the following potential witnesses they intend to call, all of whom reside in Korea and speak only Korean: a) Seung Han Yoon, a police officer called to the Bang house during the alleged kidnapping; b) Young Hwan Jeon, a private ambulance driver involved in the same incident; c) Hwa Sik Jang, Miran's financial manager, who the defendants allege received defamatory comments from Jiwon; d) Moon Hee Joo, a neuropsychiatrist who treated Miran; e) Sung Hee Lee, another neuropsychiatrist who treated Miran; f) Chang Gi Yeon, Miran's driver; g) Seung Chang Lee, Miran's hairdresser; h) Eun Yeol Lee, Miran's colleague at the Seoul Red Cross Branch; i) Guk Hwa Wang, Miran's Chinese teacher; j) Jin Gil Kim, a security guard at the Bang house; k) Jung Soo Kim, another security guard at the Bang house; l) Cho Hyun Ho, general manager of the Bang household; m) Song Kye Young, office secretary and general manager for the Bang household; and n) Park Ji Yun, office secretary and section manager for the Bang

household. [148] The potential difficulty in compelling these witnesses to testify at a trial in BC is also a factor. In Haaretz, one the factors that the SCC found "weigh[ed] heavily in favour of a trial in Israel" was that the courts below had never satisfied themselves that relevant witnesses could be compelled to testify if the action proceeded in Ontario (at para. 70). Justice Côté held that, "determining whether it is likely that Israel would actually enforce such a letter of request is crucial to ensuring the fairness of a potential trial in Ontario. It was not found in Bertuzzi that such letters of request will generally be enforced by foreign jurisdictions. This fact must be proven by expert evidence led by the party seeking to establish it ." (at para. 64). Justice Francis stated in O'Melveny & Myers LLP v Tilt Holdings Inc., 2021 BCSC 124, that "in considering whether California offers a more just and convenient forum for resolving this dispute, it is appropriate to consider what mechanisms are available should important witnesses be non-cooperative." (at para. 38). In staying that action, Francis J. found that the need for deposition evidence if the case was tried in BC was "a factor that weighs significantly in favour of California as the more appropriate forum." (at para. 50). [149] In the present case, while Kim has sworn that she would make efforts to compel

witnesses to come to BC if the Counterclaim were to proceed here, she has not tendered any evidence of how she would be able to do so. [150] In terms of the witnesses the DCs intend to call to defend the Counterclaim, while their family may have control over certain individuals given their status as employees, others are not subject to such control. [151] Although certain Korean witnesses may be amenable to electronic means in order to give their testimony, the concerns expressed by the court in Borgstrom should be considered: [13] In my view, it is clear that virtually all witnesses with evidence that relates to the issue of the plaintiff's employment reside in Korea and the far east and that the plaintiff himself has limited residency within British Columbia as a result of his present employment. [14] The issues will, in all likelihood, center around credibility issues and details of specific meetings and conversations. While evidence can be taken by electronic means, it seems likely that this will be unrealistic given the nature of the disputed evidence. [Emphasis added.] See also Shanghai Zhong Jia Xing Hua Chuang Ye Investment LLP v. Bai, 2022 BCSC 935, at paras. 31-35; Medicane Health Incorporated v. Bar Tal, 2021 BCSC 734, at para. 74, appeal dismissed 2022 BCCA 95. [152] While this discussion generally favours Korea, there is a factor reducing the weight of this factor

somewhat. I have allowed the allegations of improper conduct to remain in the Amended Response. As such, many of the harassment issues will be considered at trial of the main action in any event. However, the Counterclaim remains broader than the Amended Response. Through the Counterclaim, the defendants still have to establish the elements of the various causes of action plead. In particular, they will need to establish damages. For Lim, at a minimum, all of that evidence will need to be sourced from Korea. [153] That said, I find that this factor still favours Korea. c. Applicable law [154] I agree with the DCs that Korean law would generally apply to the claims advanced in the Counterclaim. [155] In tort, the law to be applied is the lex loci delicti, being the law of the place where the tortious activity took place: Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at para. 43. [156] The core of the alleged tortious activity in this case occurred in Korea. The Counterclaim alleges a conspiracy between several Koreans, the carrying out of which consisted of intimidation and abuse directed at another Korean, and trespass to land in Korea. [157] Even if the applicable law were based on the location of the harm suffered, the harm allegedly suffered in this case was predominantly suffered in Korea, including the trespass to land in Korea, and the harm caused to Lim in Korea. [158] As

such, Korean law would generally have to be applied to the Counterclaim. According to the admissible expert evidence received, Korea is a civil law jurisdiction that differs from the common law applied in British Columbia. Accordingly, a court in BC would require expert evidence to prove Korean law. It would be more efficient and effective for a court in Korea to apply Korean law. As the court concluded in Borgstrom: [19] The link to British Columbia and the significance of the plaintiff continuing to reside there through his time operating out of Korea, in my view, has limited impact on the determination of the applicable law. In all likelihood, the applicable law is that of Korea. Although it is, of course, open to this court to apply foreign law, its application and the cost of providing it once again weighs in favour of litigating this matter in Korea. [Emphasis added.] [159] In Shanghai Zhong, this factor was also found to favour the foreign court: [44] Furthermore, the Canadian courts have limited exposure to and understanding of the Chinese law that would have to be applied to address the plaintiffs' substantive claims. I do not consider that this would be a fair or efficient use of the BC Courts. d. Avoiding a multiplicity of proceedings [160] This factor does favour British Columbia given that the main claim by the plaintiff will be proceeding in BC in any event. e.

Desirability of avoiding conflicting decisions in different courts [161] Given the distinction between the bases for the main claim and the Counterclaim, I agree with the DCs that there would be little risk of reaching inconsistent verdicts if they were heard separately. However, this factor is somewhat mitigated by the fact that there may be findings of fact that will overlap given that the DCs conduct will still be at issue in BC through the ex turpi defence. f. Enforcement [162] There is no evidence that any of the DCs have assets in British Columbia. As such, litigating in British Columbia would likely require further action in Korea in any event in order to enforce any judgment. This factor favours Korea. g. Fair and efficient working of the Canadian legal system [163] The primary claim by the plaintiff is plead as a relatively simple action alleging a trust and seeking remedies for the dissipation of trust funds. The Counterclaim makes independent and broad claims that could significantly delay and impede the progress of the main claim. [164] I find that this factor favours Korea, although, again, in a mitigated fashion given that the Amended Response will call for many of the same facts to be assessed. [165] Below I review the common law factors identified in Stern in a summary fashion, given that these elements are now largely embedded in the statutory factors. I have

not reviewed the common law factors that are expressly included in the statutory factors. h. Where each party resides/where each party carries on business [166] As noted, all parties reside in Korea save for Kim. This factor favours Korea. i. Where the cause of action arose [167] The causes of action alleged in the Counterclaim arose in Korea, and so this factor favours Korea. j. Where the loss or damage occurred [168] Lim's damages occurred in Korea and Kim's in Canada. Given that Lim also has an additional wrongful death claim, I find that, to a marginal extent, this factor favours Korea. k. Juridical advantage to the plaintiff in this jurisdiction [169] The defendants suggest that there is an advantage to them in pursuing the Counterclaim here given the lack of control the DCs have over our courts, unlike the situation in Korea. A similar argument has already been reviewed (and rejected) above in the context of the necessity argument under s.6 of the CJTPA. [170] In Garcia v. Tahoe Resources Inc., 2017 BCCA 39, the Court of Appeal considered the approach that should be followed in considering allegations of judicial corruption as part of a forum non conveniens analysis: [124] Where a plaintiff presents evidence of corruption and injustice in the defendant's proposed alternate forum, the court must ask whether the evidence shows a real risk that the alternate forum will not

provide justice [125] Broad assertions of corruption should be given limited weight, whereas detailed and cogent evidence of corruption should attract significant weight. [171] The defendants' allegations here qualify only as "broad assertions of corruption". The DCs have offered their own expert evidence that Korea can provide appropriate justice, as discussed above. I find no "real risk" or an unfair process in Korea. [172] The defendants also assert that it will not be possible to advance their claim in Korea because of limitation periods. Again, I have considered a similar argument above in relation to s.

6. Unlike in Garcia, I am not able to declare that the defendants "actively sought remedies in dual jurisdictions" (para. 94). As I have mentioned above in my analysis of s. 6, the defendants have advanced a prosecutorial misconduct claim in Korea but did not offer any compelling reasons why a direct tort claim against the DCs was not commenced as well. As such, I do not give this factor substantial weight in favour of British Columbia. l. Juridical disadvantage to the defendant in this jurisdiction [173] The DCs suggest that proper consideration of the Counterclaim requires a nuanced understanding of Korean culture in order to assess credibility and to determine when an explanation from a particular witness seems plausible or an account of behaviour seems reasonable. The Court of Appeal in Zhao noted the benefit of local consideration when the dispute involved a foreign "corporate culture" (para. 26). [174] I accept that this factor favours Korea. m. Whether there are parallel proceedings in any other jurisdiction. [175] This factor is neutral given that there are no active overlapping proceedings in Korea. n. Conclusion on Forum Non Conveniens [176] The majority of the factors above favour Korea. As such, if I am wrong in my earlier conclusion on jurisdiction, I would have concluded that the DCs have met their burden of establishing that forum non conveniens principles favour

a stay of the Counterclaim. Based on all of the evidence, Korea is a clearly more appropriate forum. IV. CONCLUSION [177] In terms of the application to strike the Amended Response, paragraph 9 of the Amended Response raising a clean hands defence must be struck. The set-off defence should also be struck. [178] Paragraphs 24, 26, 27, 29, 31, and the second sentence of paragraph 32 must also be struck as pleading unnecessary evidential facts. [179] The defendants have leave to amend the pleadings to: a) outline the illegal purpose of the Alleged Trust in Part 1; b) plead the material facts necessary to sustain the estoppel claim in Part 1, particularly the presence of any reliance; and c) plead that Kim suffered from a visible and provable medical illness as a result of the negligent infliction of mental distress and/or conspiracy. [180] This Court will remain seized of any further applications in relation to the adequacy of these amendments. [181] The balance of the application to strike the Amended Response is dismissed. [182] In relation to jurisdiction, I find that the Court does not have jurisdiction over the Counterclaim and it should be stayed. If I am wrong in this conclusion, I would have concluded that the Court should decline jurisdiction on the grounds of forum non conveniens in any event. [183] If the parties are unable to agree on the costs implications of this judgment, they may make written submissions to the Court on the following schedule: i. Plaintiff and DCs: 30 days from this judgment; ii. Defendants: 30 days from receipt of the plaintiff/DC's submission; iii. Plaintiff/DCs Reply: 10 days from receipt of the defendants' submission. "The Honourable Mr. Justice Branch"