COURT OF APPEAL FOR ONTARIO

CITATION: Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828

DATE: 20151130

DOCKET: M45641 M45765

Hourigan J.A. (In Chambers)

BETWEEN

Binh Thi Nguyen

Plaintiff

(Moving Party)

and

Economical Mutual Insurance Company,

and Dr. Monte Bail

Defendants

(Respondent Parties)

Binh Thi Nguyen, acting in person

Catherine Korte and Matthew W. Malcolm, for the respondent Economical Mutual Insurance Company

Jacqueline Cole and Elder C. Marques, for the respondent Dr. Monte Bail

Heard: November 27, 2015

ENDORSEMENT

Introduction

[1] The moving party, Binh Thi Nguyen, brings a motion for an extension of time to serve and file her notice of appeal. The putative respondents to the appeal, Economical Mutual Insurance Company (“Economical”) and Dr. Monte Bail, resist the motion. Dr. Bail brings a cross-motion seeking a stay of the appeal and/or security for costs, if the motion for an extension is granted.

[2] In considering Ms. Nguyen’s motion, I review below: the background facts of the case, the legal principles applicable to a motion to extend the time to serve and file a notice of appeal, and the application of those legal principles to the facts of this case.

Background Facts

[3] Ms. Nguyen commenced an action against Economical and Dr. Bail alleging that, in the context of a claim she made for statutory accident benefits, they prepared an Insurer’s Assessor report which libelled her. This claim is one of several legal proceedings she has commenced against Economical and related entities arising from the denial of her statutory accident benefits claim.

[4] The parties were unable to agree to a discovery plan and Ms. Nguyen brought a motion before Justice Stinson on November 21, 2014 to impose a discovery plan. She was unsuccessful on that motion. Justice Stinson accepted the discovery plan proposed by Dr. Bail, with two minor exceptions. Ms. Nguyen delivered a notice of appeal from that order, but the appeal was later abandoned.

[5] Ms. Nguyen did not comply with Justice Stinson’s order and counsel for Economical and Dr. Bail advised her that they would bring a motion to stay/dismiss her action for non-compliance with that order. Ms. Nguyen refused to provide her availability for such a motion, so a case conference was held in front of Master Pope on May 7, 2015 to set a timetable. Ms. Nguyen did not attend the case conference and a timetable was ordered by the master in her absence.

[6] On June 3, 2015, Ms. Nguyen brought an unsuccessful motion before Justice Perell to vary or set aside Justice Stinson’s order. The defendants were awarded costs of $2,000 each, in any event of the cause.

[7] On June 24, 2015 the defendants’ motion to stay/dismiss the action was heard before Justice Faieta. On the morning of the motion, Ms. Nguyen advised that she would not attend because she “she had been legally advised” not to do so. The motion proceeded in her absence and an order was made that Ms. Nguyen’s action would be dismissed unless she complied with Justice Stinson’s order and paid each defendant $2,000 costs by July 17, 2015. Pursuant to that order, the action would be dismissed if the defendants provided an affidavit after July 17, 2015 advising the court that Ms. Nguyen remained non-compliant with Justice Stinson’s order. Copies of the endorsement and Justice Faieta’s order were provided to Ms. Nguyen.

[8] Rather than comply with the order of Justice Faieta, Ms. Nguyen brought an emergency motion before Justice Corrick on July 15, 2015 to set aside Justice Stinson’s order. In support of that motion she swore an affidavit that included a claim that she was in financial hardship. A notice of examination was served upon Ms. Nguyen to cross-examine her on her affidavit. Ms. Nguyen failed to attend for cross-examination. Justice Corrick dismissed the motion, finding that it was an abuse of process, and ordered Ms. Nguyen to pay costs of $3,000 to each defendant.

[9] On July 21, 2015, Dr. Bail’s counsel filed an affidavit with the court, sworn July 20, 2015, confirming that Ms. Nguyen remained non-compliant with Justice Stinson’s order. Justice Faieta dismissed Ms. Nguyen’s action by order dated August 26, 2015, which was entered the next day. On August 28, 2015, counsel for Dr. Bail sent a copy of Justice Faieta’s issued and entered order to Ms. Nguyen by email.

[10] On September 3, 2015, Ms. Nguyen’s daughter wrote to opposing counsel to canvass dates for a motion to set aside Justice Faieta’s order of August 26, 2015. She was advised by counsel that the action was dismissed. A similar exchange of emails occurred on September 9, 2015 and September 29, 2015. In both cases, Ms. Nguyen’s daughter attempted to set a date for a motion to set aside Justice Faieta’s order and she was told by counsel that the action had been dismissed.

[11] On October 7, 2015, Ms. Nguyen wrote to counsel seeking their consent for the late filing of her notice of appeal of Justice Faieta’s order dated October 26, 2015. That consent was not forthcoming, necessitating this motion.

Legal Principles

[12] With that factual background in mind, I turn to the test for an extension of time for the service and filing of a notice of appeal. Pursuant to r. 3.02(1), the court may order an extension or abridgment of time on such terms as are just. The following five factors are relevant:

(1) whether the appellant formed an intention to appeal within the relevant period;

(2) the length of, and explanation for delay;

(3) the prejudice to respondent;

(4) the merits of the appeal; and

(5) whether the “justice of the case” requires it.

See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15, and Howard v. Martin, 2014 ONCA 309, at para. 26.

[13] When considering the merits of the appeal, it is 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: Issai v. Rosenzweig, 2011 ONCA 112, at para. 10, and Duca Community Credit Union Ltd. v. Giovannoli (2001), 2001 CanLII 24017 (ON CA), 142 O.A.C. 146 (C.A.), at para. 14. The merits of a proposed appeal can be decisive on a motion to extend the time for filing. Even if the other factors militate against extending time, the merits may be so significant as to justify extending time: Howard, at para. 36. Similarly, even if other factors militate in favour of granting an extension, where the appeal is clearly without merit the motion will be denied: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at para.7.

Application of Legal Principles

[14] There is no evidence that Ms. Nguyen intended to appeal Justice Faieta’s order of August 26, 2015 within 30 days of the making of that order. It is clear that she understood that an appeal was the appropriate course of action. She had previously delivered a notice of appeal from the order of Justice Stinson, which appeal she later abandoned. Moreover, at the hearing before Justice Corrick on July 13, 2015, Justice Corrick told Ms. Nguyen repeatedly that a motion to set aside an order was not the correct procedure and that if she disagreed with an order the proper course of action was to appeal. Despite her knowledge that an appeal was the appropriate remedy, Ms. Nguyen declined to pursue that remedy within the time period in which to do so. Instead, she sought to schedule a motion to set aside Justice Faieta’s order.

[15] With respect to length of the delay, it was relatively short. However, no explanation was offered to explain the delay. This is similar to the situation in Ontario Wealth Management v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, where the court dismissed a motion for a time extension to appeal where no explanation for the delay was provided.

[16] I am satisfied that there is prejudice to the respondents if the relief is granted. To date, there are four costs orders against her by four different Justices of the Superior Court. There is a real risk that the respondents will not recover the existing costs awards or any future costs awards. In addition, the respondents ought not to be required to continue in litigation in which Ms. Nguyen refuses to abide by the court process.

[17] With respect to the merits of the appeal, there is nothing in the material filed on this motion that discloses the grounds of the purported appeal. Justice Faieta made his order of June 24, 2015, exercising his discretion on a full record. On my view of the record, there is nothing to suggest that he made any error in the exercise of his discretion. To the contrary, his order appears to have been well justified given Ms. Nguyen’s refusal to comply with Justice Stinson’s order. The order of August 26, 2015, was simply the logical follow up from his earlier order. I note as well that Ms. Nguyen has not filed any material suggesting that her underlying appeal is meritorious. While the merits test on this motion is not a high threshold, it has not been met in this case.

[18] In summary, none of the first four factors militate in favour of granting an extension. The question becomes whether the justice of the case favours an extension? The answer to that question is no. Ms. Nguyen has engaged in a course of conduct throughout the litigation that demonstrates a lack of respect for court orders and the court process. Costs orders remain outstanding. To date, she is still not in compliance with the order of Justice Stinson, including the production of documents that the court identified as relevant in the discovery plan it imposed on the parties. She has failed to attend, without good reason, for cross-examination and on a case conference. She has repeatedly brought motions in the Superior Court that are clearly collateral attacks on orders that she has not appealed and ignored the warnings of the court that the motions are an abuse of process. This conduct is relevant to whether the justice of the case favours an extension: Howard at para. 54. In my view, nothing in Ms. Nguyen’s conduct supports the granting of an indulgence by this court and the justice of the case does not favour an extension.

Disposition

[19] The motion is dismissed. Given my ruling on the motion, it is unnecessary to consider the cross-motion, which is dismissed.

[20] The respondents, as the successful parties, are entitled to their costs of the motion. Ms. Nguyen submitted that she has no money to pay a costs award. However, given her refusal to attend on a cross-examination on this point, it is not possible for me to assess the accuracy of that statement. I fix costs at $1,500, for each of Economical and Dr. Bail, inclusive of fees, disbursements, and applicable taxes. These sums are entirely reasonable and well below the costs actually incurred by Economical and Dr. Bail. The costs are payable by Ms. Nguyen within 30 days. Ms. Nguyen’s approval of the form and content of the draft order is dispensed with.

“C. W. Hourigan J.A.”