COURT OF APPEAL FOR ONTARIO
CITATION: Howie, Sacks & Henry LLP v. Chen, 2016 ONCA 213
DATE: 20160316
DOCKET: C60462
LaForme, Pardu and Roberts JJ.A.
BETWEEN
Howie, Sacks & Henry LLP and Singer Kwinter
Applicants (Respondents)
and
Wei Chen
Respondent (Appellant)
Gary M. Caplan and Justin W. Anisman, for the appellant
David J. Levy, for the respondent, Howie, Sacks and Henry LLP.
Alfred M. Kwinter and Veronica S. Marson, for the respondent, Singer Kwinter
Heard: March 11, 2016
On appeal from the order of Justice G. R. Dow of the Superior Court of Justice, dated April 21, 2015, with reasons reported at 2015 ONSC 2501.
ENDORSEMENT
Introduction
[1] On April 18, 2015 an application brought by the respondent law firms to have Wei Chen — also known as Wayner Wei Chan — declared a vexatious litigant was heard. Mr. Chen did not file any responding material and was not present or represented by counsel on this occasion. Rather, he had an acquaintance — not a lawyer and not completely fluent in English — attend on the application to deliver an envelope requesting an adjournment due to illness. The acquaintance also delivered an April 14, 2015 printout of an email to the civil applications office advising that he was unable to attend this application due to illness.
[2] The application judge declined Mr. Chen’s request for an adjournment and on April 21, 2015 the application was granted and Wei Chen was declared a vexatious litigant. He appeals that order.
Background in Brief
[3] Mr. Chen was involved in a motor vehicle accident on May 24, 2001. A claim was issued against his own insurer for additional accident benefits to be paid, as well as an action against those responsible.
[4] After first retaining at least two other firms, in June 2005 Mr. Chen retained the respondent, Howie, Sacks to handle both the accident benefits and tort claims. Howie, Sacks were counsel in August 2007 when a settlement was achieved in the benefits claim for an additional $330,000, from which Mr. Chen received a net amount of $233,000.
[5] In December 2007 Mr. Chen switched counsel, retaining another law firm to represent him in the tort claim, and next retained the respondent, Singer Kwinter in March 2010. Singer Kwinter were counsel on November 30, 2011, when Mr. Chen's tort claim was settled for $450,000. From which Mr. Chen received a net amount $340,000.
[6] Following the settlement of his tort claim, Mr. Chen began various proceedings against some of his previous lawyers including the respondents regarding how his accident claims were handled. To date, none of these proceedings have resulted in any adverse findings against the actions of his former lawyers.
[7] The application judge, at para. 26 of his reasons, described Mr. Chen’s proceedings this way:
[Mr. Chen] has now engaged in years of litigation that has repeatedly been the subject of consideration and rejection by Law Society officials, Superior Court Assessment Officers, multiple Superior Court Justices, the Associate Chief Justice and one of the most senior members of the Court of Appeal. He has been ordered to pay costs on five occasions totaling $17,769.50. His efforts and conduct have variously been described as having no merit and as deceitful.
Grounds of Appeal
[8] Mr. Chen’s core submission is that in exercising his discretion in this matter the application judge failed to balance the interests of each of the parties and “the interests of the administration of justice in the orderly processing of civil trials on their merits” as mandated by this court in Khimji v. Dhanani, (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790. Following on this, Mr. Chen asserts that the application judge committed two discrete errors:
That “it is apparent that Mr. Chen was treated unfairly by the court” when his adjournment was unreasonably denied and the application proceeded in his absence.
That the application judge failed to consider certain factors in applying the test of what constitutes a vexatious litigant under s. 140 of the Court’s of Justice Act, R.S.O. 1990, c C.43.
[9] We disagree with Mr. Chen. When the application judge’s reasons are read as a whole there is no question that he conducted the correct balancing of the necessary interests. Further, as we explain, there is no merit to the two particularized grounds of appeal Mr. Chen advances. In sum, there is no reason for this court to exercise its limited authority to intervene in the application judge’s exercise of discretion in this case.
Analysis
(1) Denial of Adjournment
[10] The application judge was presented with documents from Mr. Chen’s associate that Mr. Chen could not attend the application because he was too ill. The associate handed the application judge an envelope containing copies of an email Mr. Chen sent to Howie, Sacks on May 7, 2014, emails he sent to court staff and the respondents the day before advising he was sick and had not received the application material. The envelope also contained a prescription Mr. Chen obtained the day before prescribing various over-the-counter medications for diarrhea, vomiting, nausea, coughing, and pain and fever.
[11] After reviewing the material provided by the associate, the application judge denied the adjournment. His reasons for doing so are found in para. 2 of his reasons:
In the circumstances, being the nature of the application, the facts and history of the matter summarized below, the upcoming court hearings on April 23, 2015 involving Howie Sacks … and an attendance May 15, 2015, presumably in the Court of Appeal involving … Singer, Kwinter … I declined the request for an adjournment.
[12] None of the material submitted stated that Mr. Chen was ill on the actual hearing date or that he was physically unable to attend the hearing. Mr. Chen, as is made clear by the record, is no stranger to court process and procedure and the necessity of placing before the court a proper record for the relief being sought.
[13] Further, at the time of the application there were outstanding cost orders totaling $17,769.50 which Mr. Chen had not paid. Moreover, a period of adjournment would have allowed Mr. Chen to continue his other upcoming proceedings and driven up the costs of the litigation against the respondents even further, with little to no hope of them ever being able to recover costs against Mr. Chen: see, Predie v. Barrie (City), 2007 ONCA 291.
[14] There was nothing wrong with the application judge exercising his discretion as he did. His decision is wholly supported by the record that was before him and his decision is reasonable. This ground of appeal fails.
(2) Vexatious Litigant
[15] The application judge applied the correct law in deciding whether to declare Mr. Chen a vexatious litigant; namely s. 140 of the CJA. He was aware of the purpose of this legislative provision as well as its limitations and the test to be applied when deciding its application. His conclusions are found at para. 31 of his reasons:
As summarized above from the record of this application, I am satisfied that Wei Chen, also known as Wayner Wei Chan, has become a “vexatious litigant” particularly with regard to his pursuit of both Applicant law firms including the members, associates and employees in those law firms. I am particularly persuaded by his failure to pay the legal costs awarded against him, which shows a particular lack of respect or regard for this Court and the administration of justice.
[16] Mr. Chen submits that the application judge erred in law by failing to consider that Mr. Chen has been substantially self-represented throughout the history of his proceedings; that he speaks, reads, and writes English very poorly; and that he lives in poverty and had no means to obtain legal advice. In addition, he submits that most importantly the application judge erred further by failing to consider that he suffers from a serious brain injury.
[17] There is nothing on the record that was before the application judge that was directed at Mr. Chen’s “serious brain injury”, nor does the record properly address Mr. Chen’s allegations of his deficiencies with the English language. We note again that Mr. Chen did not file any responding materials on the application.
[18] Mr. Chen was represented by counsel when he approved of the settlements in both the benefits and tort claims referred to above. As we said, the record illustrates that Mr. Chen has participated in an array of court processes and proceedings, many with counsel, others without. He appears from the record to be a somewhat sophisticated self-represented litigant.
[19] Mr. Chen has not satisfied us that the application judge made any errors in his decision to declare Mr. Chen a vexatious litigant. There is no basis upon which this court should interfere with the application judge’s disposition of the respondents’ applications on the merits. This ground of appeal has no merit.
Disposition
[20] For these reasons, the appeal is dismissed. The respondents are awarded their costs of the appeal in the aggregate amount of $16,750 inclusive of disbursements and HST.
“H.S. LaForme J.A.”
"G. Pardu J.A."
"L.B. Roberts J.A."