Court File and Parties

COURT OF APPEAL FOR ONTARIO

CITATION: Huang v. Braga, 2020 ONCA 645

DATE: 20201027

DOCKET: M51687 (M49778)

BEFORE: Pepall J.A. (Motion Judge)

BETWEEN

Shu He Huang, by her Litigation Guardian, the Public Guardian and Trustee and Jie Wei Pan

Plaintiff (Appellant) / Moving Party

and

Ancieto M. Braga

Defendant (Respondent) / Responding Party

COUNSEL:

Shu He Huang, acting in person

Olivia Holzapfel, for the responding party, the Public Guardian and Trustee

Alan L. Rachlin, for the responding party, Ancieto M. Braga

Robert H. Rogers, for the responding party, Aviva Insurance Company of Canada

Tony Antoniou, for the responding party, Lawrence Fine and Jewell Law

HEARD: August 21, 2020 by video conference

REASONS FOR DECISION

Introduction

[1] On April 2, 2019, Rouleau J.A. made an order pursuant to r.37.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 prohibiting the moving party, Shu He Huang, from bringing any further motions or appeals in this court in actions 02-CV-223298CM3, 06-CV-316408PD1, and CV-13-483972 without leave of a judge of this court, save for any review of his order. The moving party is a party under disability.

[2] Before me, the moving party seeks leave to appeal orders made by Chalmers J. under r. 7.08 of the Rules of Civil Procedure. Justice Chalmers approved the settlement of these three actions for $1 million to be paid by the respondents in the moving party’s favour and granted judgment in accordance with Minutes of Settlement.

[3] The moving party’s litigation guardian, the Public Guardian and Trustee (“PGT”), who was appointed on October 11, 2016, does not support her requested relief.

Background Facts

[4] The moving party was in a motor vehicle accident that occurred on January 24, 2000, and as a result, she commenced three actions in 2002, 2006, and 2013 respectively.[^1] The conduct of the litigation spanned many years, and the moving party was represented by at least five different lawyers. The three actions were ordered to be tried together. Numerous proceedings, pre-trial conferences, and trial management conferences took place. A trial date of October 3, 2016 was set peremptory to the moving party. The trial was to proceed before a judge and a jury and was scheduled to take four weeks.

[5] On September 23, 2016, a Certified Capacity Assessor concluded that the moving party lacked capacity to act for herself in the litigation. On October 11, 2016, Archibald J. appointed the PGT as her litigation guardian pursuant to r. 7.04(1)(b) of the Rules of Civil Procedure.

[6] The moving party brought six proceedings aimed at overturning the appointment of the PGT, including three in this court, but was consistently unsuccessful. The respondent, Ancieto M. Braga, eventually brought a motion under r. 37.16 seeking an order that the moving party be prohibited from bringing further motions or appeals without leave of this court. On April 2, 2019, Rouleau J.A. ordered that the moving party be prohibited from bringing further motions or appeals in this court, absent leave. He observed that courts have stated that the moving party’s multiple motions and appeals were frivolous, yet she continued to bring motions and appeals that could not possibly succeed. In addition, there were numerous unpaid cost awards. He concluded that the requirements of r. 37.16 had been met. Her numerous motions and appeals were abusive of the court's process and were unnecessarily adding to the costs of the proceedings.

Approval of the Settlement

[7] Once appointed as the moving party’s litigation guardian in the three actions, the PGT proceeded to retain outside counsel, Jasmine Daya, to act on its behalf as litigation guardian.

[8] Based on Ms. Daya’s advice, the PGT settled the three actions for $1 million, subject to court approval. It was the PGT’s view that the settlement was in the best interests of the moving party, a view supported by the presiding judge at the pre-trial and case conferences attended by the parties. The responding parties and the moving party, represented by the PGT, entered into Minutes of Settlement in June and July of 2019.

[9] On February 11, 2020, Chalmers J. approved the proposed settlement pursuant to r. 7.08 of the Rules of Civil Procedure. In his endorsement, he noted that in the course of two days of case management, the defendants to the actions, with the assistance of Archibald J., put together a joint settlement offer that exceeded all previous offers to settle. He referred to Ms. Daya’s sworn affidavit recommending the settlement and that of the PGT, both of which explained the basis for the settlement. He stated that the settlement reached was fair and reasonable, and given the various issues in the case, the recovery at trial would likely fall short of the proposed settlement. The settlement was approved, and judgments in accordance with the Minutes of Settlement granted on February 11, March 27, and May 28, 2020.

Moving Party’s Leave Request

[10] The moving party now seeks leave of this court so that she may seek to appeal the judgments of Chalmers J. that approved the settlement. The PGT objects as do the other respondents.

Analysis

[11] There is no established test to be applied to motions for leave when the party seeking leave is subject to an order under r. 37.16. Rule 37.16 provides:

37.16 On motion by any party, a judge or master may by order prohibit another party from making further motions in the proceeding without leave, where the judge or master on the hearing of the motion is satisfied that the other party is attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions.

[12] Accordingly, r. 37.16 enables a judge to order that for the purposes of a particular proceeding, a party may only make further motions with leave.

[13] Guidance on an appropriate test may be sought from analogous, though not identical, provisions, such as r. 2.1.02(1) and, s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Rule 2.1.02(1) permits a court, on its own initiative, to stay or dismiss a proceeding if it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. Rule 2.03 permits a court to dispense with compliance with a rule in the interest of justice. However, no leave requirement is incorporated into the Rule and as such, no assistance may be found in its language.

[14] Section 140(1) of the Courts of Justice Act provides that where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner, the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

[15] Section 140(3) states that leave may be provided to a vexatious litigant so declared if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and there are reasonable grounds for the proceeding.

[16] This provision helps inform an appropriate test for leave required under an order granted under r. 37.16. Consideration should first be given to the strength of the grounds advanced by the moving party. Put differently, are there reasonable grounds of appeal that merit granting the leave requested? Second, the context of the r. 37.16 order itself should be considered. Is the substance of the leave request a continuation of the frivolous and vexatious or abusive process that had generated the r. 37.16 order in the first place? The r. 37.16 order is of course not a bar, but as stated in Evans v. Snieg, 2019 ONSC 7270, at para. 30, “such an order should not be lightly disregarded or blithely treated”. Lastly, the overriding consideration is whether the granting or refusal of leave is in the interests of justice.

[17] It may be that sometimes these three prongs overlap. Indeed, the motion before me is such a case. For the following reasons, I conclude that leave should not be granted in this case.

[18] Under r. 7.01(1), unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued, or defended on behalf of a party under disability by a litigation guardian.

[19] In Ki Ho Kim v. 260 Wellesley Residences Inc., 2017 ONSC 2985, Firestone J. (as he then was) held, at para. 16, that the party who was under disability in that case had no standing independent of his litigation guardian, the PGT, to continue the proceeding in issue. This included the bringing of any motions independent of the litigation guardian. This decision was upheld on appeal to the Divisional Court: Kim v. Esplanade 75 Inc., 2017 ONSC 4759 (Div. Ct.).

[20] The litigation guardian is the decision-maker for the party under disability for the purposes of the litigation: Kavuru (Litigation Guardian of) v. Heselden, 2014 ONSC 6718, 328 O.A.C. 399 (Div. Ct.), at para. 11. In Kavuru, Nordheimer J. (as he then was) wrote that while it was within the discretion of the motion judge hearing the settlement approval motion to consider the position of the party under disability, such party no longer had the right, that he would otherwise have had, to dictate the course of the litigation: at para. 15. This is consistent with the position adopted by the PGT before me.

[21] Applying these principles to this case, the PGT continues to be the litigation guardian of the moving party for the purposes of the three actions. As such, the moving party is unable to manage the actions and their settlement. That is the responsibility of the PGT in its capacity as the litigation guardian of a party under disability. As mentioned, the PGT does not wish to appeal or challenge the approval judgments. Authority to settle the actions lay with the PGT, not the moving party. The same is true with respect to the moving party’s wish to appeal the judgments approving the settlement.

[22] Quite apart from that reality, the grounds advanced by the moving party in support of her motion lack substance. The moving party complains that Ms. Daya made factual errors that were accepted by Chalmers J. Evidence of any alleged errors is lacking in the materials filed by the moving party.

[23] The moving party also asserts that “Ms. Daya does not belong to the PGT Counsel list [and] she was not the plaintiff counsel either.” However, Ms. Daya did not have to be on any PGT counsel list; it was open to the PGT to retain Ms. Daya to act as counsel for the PGT in its capacity as litigation guardian of the moving party. Sections 2(4), 3, and 10.1(3) of the Public Guardian and Trustee Act, R.S.O. 1990, c. P.51 relied upon by the moving party are inapplicable.

[24] The settlement was the product of the recommendation of counsel hired by the PGT, reflected a resolution that was facilitated by Archibald J., and was considered and approved by Chalmers J. as required by the provisions of r. 7 of the Rules of Civil Procedure. The moving party does not have reasonable grounds that merit granting leave and any continuation of these proceedings would be abusive in nature. Rouleau J.A. considered that in the past, the moving party’s motions and appeals were abusive and frivolous. The actions arose from an accident that occurred more than 20 years ago, the settlement was finalized by the PGT on the moving party’s behalf, and the parties are entitled to finality.

[25] The absence of reasonable grounds, the context, and the interests of justice all dictate that these proceedings must draw to a close. For these reasons, the motion is dismissed. I decline to make any order as to costs.

“S.E. Pepall J.A.”

[^1]: The other plaintiff is the moving party’s mother, who died in 2011.