COURT OF APPEAL FOR ONTARIO

CITATION: Hoang v. Mann Engineering Ltd., 2015 ONCA 838

DATE: 20151202

DOCKET: M45306

C59356

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

K. Matthew Hoang

Moving Party (Appellant)

and

Mann Engineering Ltd., Aris Building Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar Ltd. And Gigajoule Research and Development Ltd. (carrying on business as the “Mann Group”)

Responding Parties (Respondents)

Karen J. Sanchez, for the moving party

Jeff C. Hopkins and Justin Tetreault, for the responding parties

Heard: In writing

ENDORSEMENT

Introduction

[1] Mr. Hoang, for the second time, seeks an order to rehear an appeal heard by this court in the matter of Hoang v. Mann Engineering Ltd., 2015 ONCA 300. The motion was brought in writing, under rule 37.12.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 even though this provision seems to us to be inapplicable.[^1] Mr. Hoang also relies on rule 59.06(2), which permits a party to bring a motion, among other things, for other relief than that initially awarded.

[2] The respondents have not objected to the motion being brought in writing so, in an effort to bring an end to these protracted proceedings, we have chosen to treat the motion as properly brought and decide the matter. Our decision should not be interpreted as endorsing similar motions brought in a similar fashion.

Background

[3] Mr. Hoang brought an action against the respondents for damages for wrongful dismissal, breach of contract, and withheld sales commissions. He claimed that the respondents terminated him without cause after 8 months of employment and wrongly denied him commissions to which he was entitled under a contract and an amended contract of employment. The trial judge dismissed his action, finding there was just cause for termination and no commission owing: Hoang v. Mann, 2014 ONSC 3762, 17 C.C.E.L. (4th) 15.

[4] An appeal in this matter was heard on April 24, 2015, by a differently constituted panel. Mr. Hoang was self-represented on the appeal. In an appeal book endorsement dated May 1, 2015, the court allowed the appeal in part. In particular, the panel, at para. 4, found that Mr. Hoang had a valid point in respect of the amount of $6,250 being wrongly withheld pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41. The panel otherwise dismissed the appeal.

[5] In June 2015, newly-retained counsel for Mr. Hoang received permission from the original panel in this appeal to file post-hearing submissions asking the panel to amend the court’s endorsement. These submissions were not associated with a formal motion.

[6] In the post-hearing submissions, Mr. Hoang’s counsel submitted that Mr. Hoang was unable to effectively communicate the nature of the appeal. She argued that the appeal challenged not only the factual findings of the trial judge, but also the trial judge’s failure to apply any legal analysis to the issue of just cause and formation of contract. According to counsel, the latter errors were reviewable on a standard of correctness.

[7] In an appeal book endorsement dated June 18, 2015, the panel treated Mr. Hoang’s request as a motion and refused to amend the endorsement. The panel observed: “Arguments to the effect that the panel hearing the appeal made errors in law are properly addressed to the Supreme Court of Canada and not to the panel that heard the appeal.”

[8] In July 2015, Mr. Hoang’s counsel brought this motion, which was subsequently placed before us for consideration.

Submissions

[9] As already noted, Mr. Hoang relies on rule 59.06(2), which permits a party to bring a motion for relief other than that initially awarded. His counsel takes the position that this court has jurisdiction to reconsider and vary its decision before the formal order is issued. This is based on the view that the panel’s decision overlooked or misapprehended evidence or overlooked a clear and compelling case on point, and there is the prospect of a very serious injustice absent reconsideration: see First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, 381 D.L.R. (4th) 114.

[10] In response to Mr. Hoang’s motion, the respondents submit that the relief sought is barred by rule 61.16(6.1), which provides:

Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules.

[11] Alternatively, the respondents submit that Mr. Hoang has provided no compelling reason to re-open his appeal, but instead reiterates the same arguments made on two previous occasions. They request that, in these circumstances, this court should consider using its power under rule 2.1.02 to declare this motion frivolous, vexatious or otherwise an abuse of the process of this court and to prohibit Mr. Hoang from making any further motions in this proceeding without leave.

Analysis

[12] We believe this is an appropriate case for the court to invoke its powers under rule 2.1.02(1). This rule provides:

The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

In our view, there is a sound basis for invoking rule 2.1.02(1) in the circumstances of this case.

[13] On the motion, Mr. Hoang has not identified any circumstances that would justify ordering a re-hearing of an appeal by a differently constituted panel. He is merely attempting to re-argue what are in essence the same arguments advanced on the original appeal and in the post-hearing submissions. That is, that the trial judge erred in concluding that the offer letter of April 21, 2011 was not accepted and that Mr. Hoang was terminated for cause.

[14] Mr. Hoang is arguing that the appeal panel erred in law and in fact by upholding the trial judge’s order and so the appeal should be re-heard. As indicated by the panel in its previous endorsement, these are arguments that should be made to the Supreme Court of Canada on an application for leave to appeal.

[15] It needs to be emphasized that rule 59.06 provides for a very narrow jurisdiction to set aside or vary an order made by a panel. Any motions relying on this rule will be monitored by the court under rule 2.1.02 to ensure that the motion is not frivolous, vexatious or otherwise an abuse of the process of the court: see for example, Gallos v. Toronto (City), 2014 ONCA 818. This case does not fit within the very narrow jurisdiction of rule 59.06, but is one that on its face fits within rule 2.1.02(1).

Disposition

[16] For these reasons, Mr. Hoang’s motion is dismissed under rule 2.1.02(1). Further, the court orders under rule 2.1.02(3) that he is prohibited from making any further motions in the proceeding without leave of the court.

[17] The respondents are entitled to costs of the motion in the amount of $1,500 inclusive of disbursements and HST.

“G.R. Strathy C.J.O.”

“H.S. LaForme J.A.”

"Grant Huscroft J.A."

[^1]: Rule 37.12.1(1) states: “Where a motion is on consent, unopposed or without notice under subrule 37.07(2), the motion may be heard in writing without the attendance of the parties, unless the court orders otherwise.”