Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240919 DOCKET: COA-24-OM-0240

Trotter J.A. (Motion Judge)

BETWEEN

Songfu Liu Plaintiff (Moving Party)

and

Jonathan Chan Defendant (Responding Party)

Counsel: Songfu Liu, acting in person Adam Patenaude, for the responding party

Heard: September 5, 2024 by video conference

Endorsement

A. Overview

[1] Songfu Liu brings a motion for an extension of time to file an appeal from the dismissal of his action against his urologic surgeon, Dr. Jonathan Chan. The following reasons explain why I dismiss the motion.

[2] Mr. Liu was diagnosed with prostate cancer. On August 7, 2015, Dr. Chan performed an operation to remove Mr. Liu’s prostate. Mr. Liu subsequently came to believe that he never had cancer in the first place, and that Dr. Chan manipulated the results of blood tests measuring his PSA levels to make it appear that they were on an upward trend, when they were not. Mr. Liu also believed that Dr. Chan manipulated the results of a prostate biopsy, again, to make it appear that Mr. Liu had cancer, when he did not.

[3] Mr. Liu sued Dr. Chan, alleging fraud, fraudulent misrepresentation, battery, infliction of mental suffering, breach of fiduciary duty, negligence, and breach of contract. His main focus was on fraud and fraudulent misrepresentation.

[4] Mr. Liu and Dr. Chan brought dueling summary judgment motions. On June 7, 2024, the motion judge dismissed Mr. Liu’s motion and allowed Dr. Chan’s motion, dismissing the claim against Dr. Chan in its entirety: see Liu v. Chan, 2024 ONSC 3221.

[5] On June 21, 2024, the motion judge released a Costs Endorsement. He ordered that Mr. Liu pay Dr. Chan’s costs of the action, and both motions (his successful summary judgment motion and the dismissal of Mr. Liu’s motion). The motion judge characterized Mr. Liu’s summary judgment motion as “baseless” and considered that Mr. Liu unnecessarily lengthened and complicated the proceedings: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 57.01. The total amount was $73,754.

B. The Reasons of the Motion Judge

[6] The motion judge provided thorough reasons for judgment. He captured the essence of Mr. Liu’s action in paras. 1-2 of his reasons:

The plaintiff, Mr. Liu, had prostate surgery (a radical prostatectomy) on August 7, 2015 at Scarborough Hospital. His surgeon was the defendant Dr. Chan. The plaintiff is suing Dr. Chan on the basis that he did not need the surgery because he did not have prostate cancer. Mr. Liu says Dr. Chan fraudulently induced him to have the surgery by manipulating his blood test results to falsely show unduly elevated PSA levels which were the basis on which three biopsies were recommended. He claims that Dr. Chan then manipulated the biopsy results which were the basis on which surgery was fraudulently recommended.

Mr. Liu says this fraud by Dr. Chan vitiates the consent he gave for the surgery and that he has suffered damages for which Dr. Chan should be found liable. In oral argument he made it clear that his claim is based on fraud rather than negligence, although negligence and other causes of action have been pleaded.

[7] The motion judge concluded, at para. 4, that it was “indisputable” that Mr. Liu had prostate cancer at the relevant time and that “[t]here is no evidence of fraud other than Mr. Liu’s unsubstantiated speculation that Dr. Chan manipulated the biopsy and lied to him when he recommended treatment.”

[8] The motion judge found no evidence of fraud in relation to Mr. Liu’s PSA levels. He found that, even if Dr. Chan had misreported one or more of the PSA results (which he did not), it was irrelevant because the treatment recommendation of surgery was the result of a biopsy, not the PSA numbers.

[9] Mr. Liu had three biopsies. The third one indicated that treatment was warranted. The biopsy report was signed by the pathologist who evaluated Mr. Liu’s tissue samples. The motion judge said, at para. 8:

Dr. Chan had no role in interpreting the biopsy and nothing suggests that he could have interfered with the report or the samples. It is this biopsy and pathology report that Mr. Liu says was fraudulently manipulated by Dr. Chan. When asked at the hearing how Dr. Chan might have done this, he said it was Dr. Chan’s secret. [Emphasis added.]

[10] The motion judge also rejected Mr. Liu’s claim that he was pressured into an early surgery date due to another patient’s cancellation. The motion judge said, at para. 19: “The fact that surgery was immediately available would have been a positive fact to many people in Mr. Liu’s situation because they would be concerned about the cancer spreading while awaiting surgery. It is certainly not a badge of fraud.”

[11] Mr. Liu relied on an expert report written by Dr. Joseph Chin, a professor of urology and oncology. The report was not properly tendered in evidence and, strictly speaking, was inadmissible. Nonetheless, out respect for Mr. Liu as a self-represented litigant, the motion judge afforded him “leeway” and considered the report. However, the report was not helpful to Mr. Liu. Dr. Chin wrote, “Dr. Chan was not wrong in recommending surgery.” This was also the opinion of Dr. Brian Blew, Dr. Chan’s expert, who prepared two reports and swore an affidavit.

C. The Extension of Time Application

[12] Mr. Liu attempted to serve Dr. Chan’s counsel with a Notice of Appeal on July 12, 2024. However, Mr. Liu did not realize that the 30-day limitation period to appeal commenced on the day of the judgment, June 7, 2024, not the day of Costs Endorsement, June 21, 2024. He was out of time to file a Notice of Appeal.

[13] In his draft Notice of Appeal, Mr. Liu lists 14 grounds of appeal, many of which contain sub-grounds. He alleges no errors of law. Instead, he re-argues factual issues raised before the motion judge, who he claims was “partial”. Mr. Liu also alleges that Dr. Chin, his expert, was “biased with prejudice”. These claims are repeated in Mr. Liu’s Notice of Motion for an Extension of Time, in his affidavits filed in support of the motion, and in his factum.

D. Analysis and Discussion

(1) The Test for Granting an Extension of Time

[14] A right of appeal is a creature of statute: Deokaran v. Law Society of Ontario, 2023 ONCA 602, at para. 2. Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, establishes a right of appeal to the Court of Appeal from a final order of a judge of the Superior Court of Justice. The time within which an appeal must be launched is prescribed by r. 61.04(1) of the Rules of Civil Procedure:

61.04(1) An appeal to an appellate court shall be commenced by serving a notice of appeal (Form 61A or 61A.1) together with the certificate required by subrule 61.05 (1), within 30 days after the making of the order appealed from, unless a statute or these rules provide otherwise. [Emphasis added.]

[15] This temporal limit is meant to vindicate the principle of finality in litigation. However, deadlines are sometimes missed. Depending on the circumstances, a missed deadline for filing a Notice of Appeal may be forgiven and remedied by an extension of time. How is this determined?

[16] In Bratti v. Wabco Standard Trane Inc. (1994), 25 C.B.R. (3d) 1 (Ont. C.A.), Laskin J.A. said, at p. 3: “While appellate courts have considered a number of different factors in determining whether to grant leave to extend the time for appealing, the governing principle is simply whether the ‘justice of the case’ requires that an extension be given.” In Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636 (“Enbridge Gas”), at para. 15, Gillese J.A. articulated the following test for granting an extension of time, a test that has been applied countless times:

The test on a motion to extend time is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.

See also 1250264 Ontario Inc. v. Pet Value Canada Inc., 2015 ONCA 5, at para. 6 (“Pet Value Canada Inc.”); Collins v. Tiveron, 2024 ONCA 447, 2 R.F.L. (9th) 257, at para. 13; and Ash v. Ontario (Chief Medical Officer), 2024 ONCA 398, at para. 15.

[17] Each of the factors in Enbridge Gas takes on varying degrees of significance, depending on the nature of the case. In this case, the most contentious issue I must resolve is the merits of the proposed appeal. Nonetheless, I consider each of these factors in turn.

(a) Intention to Appeal

[18] Mr. Liu submits that he is entitled to an extension of time because he missed the deadline by only a few days due to a mistake about the commencement of the appeal period. Mr. Liu contends that he intended to appeal within 30 days.

[19] There is little in Mr. Liu’s materials that addresses this issue. In his factum, Mr. Liu wrote that he “disapproved” of the motion judge’s decision “but had been hesitant to appeal” because of his fear that he might receive “another unfair and partial decision.” He said that, “finally”, and with confidence in the legal system, “I took the action” and delivered his Notice of Appeal to Dr. Chan’s law firm on July 12, 2024.

[20] Counsel for Dr. Chan submits that Mr. Liu has not established that he formed the intention to appeal within the time period. Counsel for Dr. Chan had numerous discussions with Mr. Liu after the release of the motion judge’s reasons and during the costs proceedings. He did not signal an intention to appeal. He did so only after the release of the Costs Endorsement. Counsel submits that Mr. Liu decided to appeal because of the substantial costs award that was made against him.

[21] The record is less than clear on this issue. Nonetheless, I accept Mr. Liu’s claim that he intended to appeal within 30 days of the release of the motion judge’s decision on the merits.

(b) Length of Time and Explanation for the Delay

[22] The deadline to file the Notice of Appeal was July 8, 2024. Mr. Liu served the Notice of Appeal on July 12, 2024. The delay was short.

[23] Mr. Liu moved with dispatch after he realized that he had missed the deadline. Counsel for Dr. Chan accepts this is the case. However, he submits that Mr. Liu’s explanation for this short delay is inadequate and that, as an experienced self-represented litigant, it was incumbent upon Mr. Liu to familiarize himself with the rules of court.

[24] In Beazley v. Johnston, 2024 ONCA 430 (“Beazley”), Simmons J.A. faced a similar situation in the context of a failed medical malpractice action. As she said at para. 70:

I do not find the moving party’s explanation for failing to file a notice of appeal within the appeal period unreasonable. No doubt he should have familiarized himself with the relevant practice direction. But it is not uncommon for self-represented litigants to make the mistake of thinking that the appeal period commences only once a decision on costs has been made. [Emphasis added.]

[25] Simmons J.A. found this factor was “either neutral or slightly favours granting an extension”: Beazley, at para. 71. I take the same approach.

(c) Prejudice to the Respondent

[26] Counsel for Dr. Chan submits that an order granting Mr. Liu an extension of time will facilitate the perpetuation of Mr. Liu’s baseless, yet serious, allegations of incompetence and dishonesty, dating back many years. He submits that he is also prejudiced by Mr. Liu’s litigation style, which “includes serving multiple versions of his Notice of Appeal and Notice of Motion, with different hearing dates and no explanation as to why and how the documents were amended." This is said to be “prejudicial to Dr. Chan’s rights as a litigant.”

[27] In my view, Dr. Chan has not identified any prejudice that arises from the delay in filing a Notice of Appeal. However, I accept that giving further life to Mr. Liu’s persistent and unfounded allegations against Dr. Chan will cause further distress. This factor is relevant to a consideration of “the justice of the case”, discussed below.

[28] I accept that I may take into account the litigation behaviour of an applicant seeking an extension of time to appeal: see, for example, Beard, Winter LLP v. Shekhdar, 2016 ONCA 493, at para. 19; and Overtveld v. Overtveld, 2021 ONCA 930, at paras. 19-22. However, Mr. Liu’s approach, as a self-represented litigant, does not rise to this level. Although Mr. Liu’s repetitive style of pleading may be frustrating to his opponent, Dr. Chan is represented by experienced litigation counsel who are capable of handling this approach. In appropriate cases, this is a matter better dealt with through costs consequences.

(d) The Merits of the Proposed Appeal

[29] The merit of a proposed appeal is the most important consideration in deciding whether an extension of time should be granted: see Deokaran v. Law Society of Ontario, 2023 ONCA 602, at para. 16; Robson v. Law Society of Ontario, 2023 ONCA 709, at para. 5; and Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2.

[30] The “merit” of an appeal has a precise meaning in this context. In Beazley, Simmons J.A. said, at para. 73:

The issue of the merits of the appeal must be assessed not with a view to determining whether the appeal will succeed, but only with a view to determining whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 10; Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 142 O.A.C. 146 (C.A.), at paras. 14-15.

[31] When an appeal would appear to have little merit, absent prejudice to the opposing party, and in light of the other factors that must be balanced, an extension of time may still be warranted: see Auciello v. Mahadeo, 2016 ONCA 414, at paras. 14, 16; and Correct Building Corporation v. Lehman, 2022 ONCA 723, at para. 11.

[32] What about appeals that are completely devoid of merit? In Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208 (“Sabatino”), Pepall J.A. addressed this issue. As she said at para. 21:

[T]here are occasions when the lack of merit in an appeal is so clear-cut that, on its own or in combination with a consideration of the other factors, a motion judge determines that leave should not be granted: see for example Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at para. 15; Wardlaw v. Wardlaw, 2020 ONCA 286, at para. 4; Sutherland Lofts Inc. v. Peck, 2017 ONCA 803, at para. 12. Courts must be mindful of the cost of litigation and unnecessary expenditures of time but all the while preserving the need to ensure that the dictates of the justice of the case are met.

See also Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 328, at para. 4; Pet Value Canada Inc., at para. 7; Pantoja v. Belilla, 2023 ONCA 757, at para. 4; and Opara v. Ciamarra, 2023 ONCA 731, at para. 7.

[33] In my view, Mr. Liu’s proposed appeal is completely devoid of merit; it is doomed to fail. Mr. Liu does not identify any legal errors on the part of the motion judge; instead, he seeks to re-argue factual matters decided against him. Appeals based on overturning a trial or motion judge’s factual findings have virtually no chance of success on appeal: Leybourne v. Powell, 2023 ONCA 421, at para. 7. See also Javid Estate v. Watson, 2023 ONCA 665, at para. 15.

[34] Looking at the bigger picture, Mr. Liu’s multi-pronged medical malpractice case was not supported by any expert evidence, admissible or otherwise. Indeed, Mr. Liu’s own expert, who he now claims is biased against him, was supportive of the medical care provided by Dr. Chan. As the motion judge said, at para. 43:

After all his efforts over many years Mr. Liu has nothing to support his claims, other than an unrealistic belief that Dr. Chan manipulated the biopsy reports and his self-serving allegations of coercion and misrepresentation which are inconsistent with the contemporaneous documents. I also find support for my conclusion that that these allegations do not warrant a trial in the fact that Mr. Liu’s other concerns about medical malpractice are belied by the expert evidence, including the report from the expert (Dr. Chin) retained by Mr. Liu to provide an opinion based on a narrative selected by Mr. Liu. As noted, that report by itself would be a death knell to Mr. Liu’s claims, as is the only admissible expert evidence (that of Dr. Blew). [Emphasis added.]

[35] I see no basis upon which these conclusions could be challenged successfully on appeal: see Suserski v. Nurse, 2008 ONCA 416, at paras. 4-6.

(e) The “Justice of the Case”

[36] Returning to the overarching question on an application for an extension of time – “the justice of the case” – I acknowledge that Mr. Liu did not miss the 30-day deadline by much. He made a common mistake about when the time period starts to run. Mr. Liu attempted to correct this situation quite promptly. However, these factors are overwhelmed by the complete lack of merit in his proposed appeal. In the circumstances, “the justice of the case” requires that the completely unfounded allegations against Dr. Chan’s competence and integrity come to an end: Sabatino, at para. 19; and Opara, at para. 9.

E. Disposition

[37] The motion for an extension of time is dismissed. Dr. Chan, although entitled to costs, is not seeking costs. No costs are awarded.

“Gary Trotter J.A.”