Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210311 DOCKET: M52154 (C67137)

Roberts J.A. (Motions Judge)

BETWEEN

Kevin Jex Plaintiff (Appellant/Moving Party)

and

Jiang Jiang and Dian Chang Jiang Defendants (Respondents/Responding Parties)

Counsel: Kevin Jex, acting in person David T.S. Wong, for the respondents

Heard: February 11, 2021 by video conference

Reasons for Decision

[1] The moving party, Kevin Jex, seeks leave to bring a motion to extend the time to perfect his appeal [1]. Mr. Jex is required by the April 30, 2020 order of Fairburn J.A. (as she then was) to obtain leave of this court before bringing any further motion for an extension of time to perfect his appeal.

[2] Mr. Jex appeals the June 13, 2019 dismissal of his action against the respondents following a ten-day jury trial before Chalmers J. Mr. Jex acted on his own behalf. In his statement of claim, he sought damages arising from an August 29, 2007 motor vehicle accident involving the respondents. The respondents were found to have caused the accident; however, Mr. Jex’s action was dismissed on the basis that he had failed to prove that the accident caused any damages.

[3] Mr. Jex commenced his appeal on June 26, 2019. He has failed to perfect it. He has sought and obtained multiple and lengthy extensions of time to perfect his appeal. Starting with his first motion in August 2019, the present motion is the eighth in the series of motions seeking extensions.

[4] Is it in the interests of justice to grant Mr. Jex leave to bring his motion for an extension of time to perfect his appeal? It is not. As I shall explain, Mr. Jex’s eighth motion is without any merit and constitutes an abuse of process.

[5] In determining whether to grant an extension, the overarching consideration is whether the justice of the case requires the extension. The well‑established criteria that inform this consideration include: a continuing intention to appeal; the length and reason for the delay; the prejudice to the respondents; and the merits of the appeal: Issasi v. Rosenzweig, 2011 ONCA 112, at paras. 4-5. While the right of appeal is an important one, a request to extend the timeline for perfection is fundamentally a request for the court’s indulgence: Howard v. Martin, 2014 ONCA 309, at paras. 53-54. Consequently, the justice of the case may also require an examination of the appellant’s conduct, including the appellant’s willingness to comply with established processes and prior court orders: Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, at para. 18.

[6] While Mr. Jex commenced his appeal in a timely manner, he has not demonstrated a continuing intention to proceed. He has unreasonably refused to take the appropriate steps to perfect the appeal, and he has engaged in conduct that is clearly frivolous, vexatious and an abuse of process.

[7] As his main excuse for his long-standing failure to perfect the appeal, Mr. Jex claims that he cannot obtain the requisite transcripts of evidence listed in his and the respondents’ certificates of evidence. The record does not support his claim. Mr. Jex has obtained numerous and repeated indulgences to obtain the transcripts, including relief from the requirement to pay for the transcripts requested by the respondents in their certificate. Mr. Jex also received the early assistance of duty counsel and subsequent guidance from the respondents’ counsel and the court reporter.

[8] There is no question that Mr. Jex understands what is required to obtain the transcripts. This court set out clear directions in seven prior endorsements. He simply refuses to do it. Despite court orders to the contrary, Mr. Jex persists in his unreasonable attempts to obtain fragments or isolated sentences of transcripts without making the required payment. He has repeatedly and inappropriately sought to obtain discounts and free transcripts from the court reporter, or he has asked that the respondents or the court provide the transcripts.

[9] It was twice suggested by Zarnett J.A., in his reasons dated September 8 and November 9, 2020, that Mr. Jex should provide the court with updates on the status of the transcripts if he sought any further extensions. Mr. Jex did not provide an update but instead argues for the first time that he does not have the court reporter’s address and does not know where to send payment for the transcripts. This statement is unsupported by the record. The respondents produced exchanges between Mr. Jex and the court reporter showing that Mr. Jex has repeatedly harangued and harassed the court reporter. In one of her last emails to Mr. Jex, dated October 1, 2020, the court reporter accurately summarized this unfortunate state of affairs:

You have been harassing me and threatening me for at least a year now. Your original order form to me was for an appeal. I told you that you would need three hard certified copies for your appeal. You didn’t want to order that from me. You went away several times and then another threatening email pops up from you. If you want to proceed with your original order, I am prepared to prepare your hard copies for appeal. I have provided that estimate of cost to you on several occasions. In my mind you are trying to bully me into providing these transcripts to you for free. As I told you before, you are welcome to get someone else to transcribe the matter for you. Otherwise, go back to my original estimate of costs I provided to you and send me the deposit and I will prepare your transcripts for appeal. You must also provide your appeal file number as that has to be inserted on the transcripts. [Emphasis added.]

[10] Mr. Jex has not complied with the court reporter’s very reasonable and necessary requests. He is the author of almost two years’ inexcusable delay in the perfection of his appeal.

[11] I turn next to the question of prejudice. Although the respondents have not pointed to discrete prejudice, such as the death of a party or a material witness, there is no question that the excessive delay in this case causes them prejudice. Mr. Jex was entitled to commence an appeal; however, the respondents are entitled to have the appeal heard and disposed of in a timely manner. Until that occurs, they are deprived of the benefit of a final judgment relating to a motor vehicle accident that occurred in 2007: Chandra v. Canadian Broadcasting Corporation, 2016 ONCA 448, at para. 84.

[12] With respect to the merits of Mr. Jex’s appeal, his materials filed to date present no arguable issues for adjudication. The vast majority of his approximately 61 stated grounds of appeal are frivolous or vexatious, dealing with issues such as whether the trial judge erred in failing to make a peanut butter and jelly sandwich for Mr. Jex during the trial. Others relate solely to questions of liability on which Mr. Jex prevailed at trial, and with which he should take no issue on appeal, for example: the colour of his car, the fact that his car was rear-ended by the respondents’ vehicle, and the location of the accident. Still others stand as mere conclusory statements without indicating any error, such as the statement that Mr. Jex has been suffering injuries caused by the accident in 2007.

[13] Similarly, there is no support for Mr. Jex’s allegation that the trial judge erred in continuing the trial when Mr. Jex appeared to lack capacity because “the appellant had a different personality that unfolded during trial … of a 6 year old capacity”. Mr. Jex never raised this issue in this court, nor was there any suggestion in any of this court’s endorsements that Mr. Jex lacked capacity to bring his motions or perfect his appeal.

[14] Many of Mr. Jex’s claims for relief appear to be deliberately provocative. He seeks, for example, in his notice of appeal, to require respondents’ counsel to submit to medical procedures and drug testing. Mr. Jex has acknowledged that these requests are not serious but serve as a metaphor for a blockage in communication. As such, they are frivolous, vexatious and an abuse of process.

[15] I have also had the benefit of reviewing a complete record that was not entirely before my colleagues on the previous attendances, and which demonstrates that Mr. Jex has misled this court and deliberately and inexcusably delayed perfecting an appeal that has no chance of success. His improper use of the appeal process is plainly displayed in his letter received by respondents’ counsel on November 10, 2020, which was not before the court on the prior adjudications:

Mr. Wong I’ll make you a deal you have 24 hours to respond to the deal on the table. It shouldn’t be too hard for you. For you clear my name of any criminal conviction and get me back my gun license or pay me £ 150.000 and I’ll walk away from this accident claim. They’ll be no pardons. And if I was a lawyer with a degree you would’ve paid me to walk away I might have one. Maybe we can get back in front of Judge Chalmers again for a new trial. He’s also one of my other favourite judges haven’t seen him in a while. He still owes me a peanut butter and jelly sandwich with the homemade strawberry jam.

If you choose not to we will just have a lot more many motions in court again since it’s my new playground and I’m having fun seeing you and Judge Zarnett [not] to mention Judge Fairburn. She’s like my dynamite in court in action this could go on forever . He’s one of my favourite judges never ending . [Emphasis added.]

[16] There is no basis to grant Mr. Jex leave or an eighth extension of time for the perfection of his appeal. To do so would bring the administration of justice into disrepute. His actions constitute an abuse of process. At a certain point, enough is enough. That point has been reached here.

Disposition

[17] Mr. Jex’s motion is dismissed.

[18] The respondents do not seek costs. I make no order as to costs.

“L.B. Roberts J.A.”

Footnote:

[1] Given the disposition of this motion, it is unnecessary for me to consider the other relief listed in Mr. Jex’s notice of motion.