Court of Appeal for Ontario

Date: February 28, 2017 Docket: M46946 (M46874) Judges: LaForme, Pepall and Pardu JJ.A.

Between

Sidney Chen Moving Party

and

Canadian Imperial Bank of Commerce Responding Party

Counsel

Sidney Chen, acting in person

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

Heard: February 24, 2017

Endorsement

Background

[1] Mr. Chen brought an action against CIBC for wrongful dismissal. Amongst other defences, CIBC said the applicable limitations period had expired more than 3 years prior to the issuance of a notice of action. Mr. Chen then sought to discontinue his action by providing CIBC with a Notice of Discontinuance. He had issued an earlier Statement of Claim also seeking damages for wrongful dismissal but discontinued those proceedings.

[2] After various procedural steps, CIBC stated it would consent to discontinuance only if discontinuance was with prejudice to Mr. Chen's ability to bring a further action on the same subject matter. Mr. Chen initially resisted, but consented to these terms at an appearance before a judge of the Superior Court of Justice on October 8, 2015. The hearing judge granted the consent order.

[3] Because Mr. Chen refused to approve the form of the consent order, on January 28, 2016 the parties returned before the hearing judge to settle the order. On this occasion Mr. Chen claimed he consented to the order because of mistake, mental health issues and misunderstanding. The hearing judge settled the order and advised Mr. Chen of his right to bring a motion to set the order aside.

[4] On January 29, 2016, Mr. Chen took issue with the fact that the hearing judge on October 8, 2015 asked him whether he understood the terms of the agreement and their consequences – while also explaining he was not his lawyer and could not give him legal advice. He brought a motion to set aside the consent order discontinuing his action before another judge of the Superior Court of Justice.

[5] On Mr. Chen's motion he argued that the previous consent hearing judge improperly gave him legal advice, which invalidated his consent to discontinuance. He also argued that the transcript of proceedings before the consent hearing judge was fabricated and alleged a conspiracy between that judge and others.

[6] Mr. Chen's motion to set aside the consent order was denied by order dated April 28, 2016. It is this order Mr. Chen seeks to appeal.

This Motion

[7] Mr. Chen did not file a notice of appeal in connection with the April 28th order within the required time. As a consequence he brought a motion to this court for an extension of time to appeal. On September 9, 2016, his motion was heard by a single judge of this court sitting in chambers. Mr. Chen did not file any affidavit evidence on the motion.

[8] Mr. Chen's submissions, however, to the chambers judge included a repeat of his claims that he consented to the October 8, 2015 order because of mistake, mental health issues and misunderstanding. He also asserted that the consent hearing judge improperly gave him legal advice, that the transcript of proceedings was fabricated, and repeated the allegation of a conspiracy between that judge and others. Finally, he alleged the motion judge on April 28, 2016 was unfair and biased.

[9] On September 9, 2016, the chambers judge refused to grant Mr. Chen's motion for an extension of time to appeal the order and refused to set aside the earlier consent order. She addressed his allegations of improper legal advice, fabricated transcripts, and unfairness and bias and correctly observed there was an absence of any evidence. She relied on the certified transcript of the October 8, 2015 proceedings and Mr. Chen's own actions to conclude there was no support for Mr. Chen's assertions.

[10] The chambers judge found that Mr. Chen formed an intention to appeal in the requisite time period and provided a reasonable explanation for the relatively short delay. However, she held that the justice of the case did not warrant an extension; the appeal, she concluded, "does not have any real chance of success".

[11] Mr. Chen's motion before this panel is to review the chambers judge's order. He again, without any evidence, repeats all the allegations he made before the motion judge on April 28, 2016 and the chambers judge on September 9, 2016.

Conclusion

[12] The motion must be dismissed. We agree with the chambers judge; the appeal, without any evidentiary basis, is meritless and there is no reason to grant an extension of time. Her exercise of discretion to refuse to extend the time to appeal is entitled to considerable deference. The circumstances in which a panel of this court will reconsider the decision of a single judge of this court to deny an application for an extension of time are narrow: R. v. Gatfield, 2016 ONCA 23, 345 O.A.C. 197, at para. 11. This case does not fit within them.

[13] Here, the chambers judge addressed all the relevant factors and properly applied those factors to the evidentiary record in connection with the issue of an extension of time. She was fair and accommodating in her consideration of the other allegations Mr. Chen raised without the benefit of evidence. We see no basis whatsoever to interfere with her discretionary decision to deny an extension of time to appeal. Indeed, as the chambers judge found, the justice of the case requires that no extension of time to appeal be granted.

[14] Mr. Chen's motion is dismissed. His outrageous allegations that judges, lawyers and a court reporter have conspired together to commit fraud, without any evidence at all to support those claims, is deserving of denunciation. This conduct merits an award of substantial indemnity costs. CIBC is, therefore, awarded its costs of the motion fixed in the amount of $11,791.96, inclusive of disbursements and HST.

"H.S. LaForme J.A."

"S.E. Pepall J.A."

"G. Pardu J.A."