Court of Appeal for Ontario

Date: 2018-12-06 Docket: M49778 Judge: Lauwers J.A. (In Chambers)

Between

Ancieto M. Braga Respondent

and

Shu He Huang by Her Litigation Guardian, the Public Guardian and Trustee Applicant

Counsel

Shu He Huang, in person

Michael Ditkofsky, for the respondent

Heard: November 28, 2018

Reasons for Decision

[1] Ms. Huang seeks an extension of time to file a motion for leave to appeal from the order of Swinton J., dated July 24, 2018.

[2] By way of background, Ms. Huang's case is about a motor vehicle accident that occurred in 2004. It has been languishing for years. She believes that she was catastrophically injured and is entitled to concomitant compensation, without which she fears that she will not be able to live a decent life.

[3] Archibald J. appointed the Public Guardian and Trustee (the "PGT") to act as litigation guardian for Ms. Huang because he found her to be a person under a disability within the meaning of r. 1.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. In his view, having observed her on several occasions, and having reviewed an expert report, she is "unable to appreciate the reasonably foreseeable consequences of her actions" and is therefore "mentally incapable of representing herself in this case and requires legal representation appointed by the Court". Reasons are reported at 2016 ONSC 6306, leave to appeal to Divisional Court refused, 2017 ONSC 3826, appeal quashed 2017 ONCA 268.

[4] Ms. Huang sought leave to appeal Archibald J.'s order. Kurke J. denied Ms. Huang's application for leave to appeal with reasons reported at 2017 ONSC 3826.

[5] Sitting in her capacity as a judge of the Divisional Court, Swinton J. dismissed Ms. Huang's application for judicial review of Kurke J.'s order. She said:

The applicant seeks judicial review of the order of Kurke J. refusing leave to appeal an interlocutory order. No appeal lies from such an order. Judicial review is not available to challenge the refusal of leave by a Superior Court judge. The application is frivolous, vexatious and an abuse of process. Accordingly, it is dismissed pursuant to Rule 2.1.01.

[6] The factors related to the extension of time are that the applicant must show that she had an intention to appeal within the relevant period, an explanation for the delay in failing to seek leave to appeal, any prejudice to the respondent, and the merits of the proposed appeal.

[7] There is a real prejudice to the respondent in the undue delay in resolving this case. Further, the appeal has no merit. Although her reasons are sparse, Swinton J. was correct in her decision that judicial review does not lie against the decision of a Superior Court judge, and that the order of Kurke J. is not appealable: see Denison Mines Ltd. v. Ontario Hydro, 56 O.R. (3d) 181 (C.A.), at para. 6. For the same reason, no appeal lies to this court.

[8] Accordingly the motion for an extension of time to file a motion for leave to appeal is dismissed.

[9] I understand Ms. Huang's deep concern about the merits of her case and what she sees as the failure of successive counsel over the years to agree with her self-assessment. She has the strong conviction that the order appointing the PGT as her litigation guardian against her wishes denies her human rights. However, the process has been fair, and the PGT was validly appointed. She must now work with counsel appointed by the PGT to resolve her case.

[10] The responding party seeks costs in the amount of about $3,800 all-inclusive on a partial indemnity basis. I award costs in the amount of $1,000.

P. Lauwers J.A.