Court of Appeal for Ontario

Date: 2017-12-05 Docket: M48522

Pardu J.A. (In Chambers)

Between

Jian Su Appellant (Moving Party)

and

Sec-yong Lam, in his personal capacity and as Executor and Trustee of the Estate of Gab Yi Lam (also known as Gaby Yi Lam or Gab Yi Chu), Deceased Respondent (Responding Party)

Counsel

Jian Su, self-represented

David M. Goodman, for the respondent

Heard: In writing, December 4, 2017

Motion

On a motion for an extension of time to appeal from the judgment of Justice David G. Stinson dated April 19, 2017, dismissing the moving party's motion to set aside a consent order.

Endorsement

[1] Jian Su moves for an extension of time to appeal from an April 19, 2017 decision that dismissed his motion to set aside a consent order.

[2] The underlying consent order was made in 2009. It dismissed Mr. Su's action against the respondent. Before the consent order was made, Mr. Su had been ordered to pay the outstanding costs award against him and a further $25,000 for security for costs. The respondent brought a motion to dismiss the action because of these outstanding orders. Mr. Su was represented by counsel at the time and his counsel consented to the dismissal of this action and the property claims in another related proceeding. As the motion judge pointed out, "by agreeing to forego his claims to an interest in the estate assets, Mr. Su avoided the dismissal of his support claim and he also avoided the need to post security for costs and payment of the outstanding costs award".

[3] Mr. Su moved to set aside this consent order, some seven or eight years after it was made, alleging fraud and subsequently discovered facts as justification. He argued that the estate trustee falsely represented there were estate assets remaining to satisfy Mr. Su's potential Succession Law Reform Act, R.S.O. 1990, c. S.26 claim. The motion judge found that the documentary production made to Mr. Su before the consent order was made, had it been carefully and properly examined, would have already revealed the fact that no estate assets remained. The motion judge found as a fact that Mr. Su was not provided with any incorrect or misleading information about the assets of the estate at the time he agreed to the consent order. He concluded that Mr. Su failed to prove that he was induced by fraud to agree to the consent order, and failed to demonstrate that there were any after-acquired facts or information that would warrant setting aside the consent order.

[4] The test for determining whether to extend time to appeal has been summarized many times. Justice Epstein described the test in Reid v. College of Chiropractors, 2016 ONCA 779, at para. 14 as follows:

The governing principle is whether the "justice of the case" requires that an extension be given: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 17; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. Each case depends on its own circumstances. The relevant considerations include:

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

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

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

d) the merits of the proposed appeal.

[5] I am not satisfied that the time to appeal should be extended in this case.

[6] There is no evidence that Mr. Su formed the intention to appeal within the relevant time period.

[7] There is no real explanation for the delay in filing the notice of appeal. The subject matter of the proposed appeal relates to litigation about the estate of Ms. Lam, who died in April 2004. Mr. Su and the respondent (the executor of Ms. Lam's estate) have now been engaged in litigation for nearly 13 years, which includes a previous appeal by Mr. Su to this court that was dismissed on the merits: Su v. Lam, 2013 ONCA 464.

[8] I am not persuaded there is any merit to the instant appeal. Mr. Su attempts to set aside a consent order made in February 2009, at a time when he was represented by counsel and when the consent order brought real advantages to him. As a result of the consent order, the respondent did not pursue its motion for security for costs or its motion to dismiss the action for non-payment of a costs order. The motion judge's findings of fact about the absence of misrepresentation at the time of the consent order are not undermined by the material Mr. Su filed in support of his motion for leave to extend time to appeal. In large part, the filed materials cover many of the same grounds dealt with by this court in Mr. Su's previous appeal.

[9] I am not persuaded that the justice of this case requires an extension of time to appeal. The motion is dismissed with costs fixed to the respondent in the sum of $1,500.00, all inclusive.