Court File and Parties

Court of Appeal for Ontario Date: 2021-10-21 Docket: M52133 (C68186) Doherty, Lauwers and Miller JJ.A.

Between: K. Matthew Hoang, Appellant

And: Mann Engineering Ltd., Aris Building Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar Ltd., and Gigajoule Research and Development Ltd. (carrying on business as the “Mann Group”), Respondents

Counsel: K. Matthew Hoang, acting in person Ted Flett, for the respondents

Heard: In writing

A motion to set aside a decision of this court, dated December 16, 2020, reported at Hoang v. Mann Engineering Ltd., 2020 ONCA 808.

Reasons for Decision

[1] Mr. Hoang and the respondents, herein referred to as “Mann Engineering”, have been involved in litigation for some 10 years. The litigation arises out of Mann Engineering’s dismissal of Mr. Hoang. In the first action, Mr. Hoang sued Mann Engineering for wrongful dismissal. In the second action, he sued Mann Engineering in respect of Mann Engineering’s allegedly improper efforts to enforce the judgment obtained in the first proceeding. With one small exception in the first action, Mr. Hoang has been unsuccessful in the proceedings. The litigation has been marked by Mr. Hoang’s repeated attempts to continue to litigate issues in this court, some decided against him and others brand new, after this court has dismissed Mr. Hoang’s appeals.

[2] Mr. Hoang’s appeal in the second action was dismissed by this panel in December 2020: Hoang v. Mann Engineering, 2020 ONCA 808. Mr. Hoang immediately brought a motion asking that this court withdraw its reasons, set aside its judgment, and allow Mr. Hoang to amend his pleadings. Mr. Hoang asked that the motion be placed before a different panel than this panel, which had heard the appeal. Following the usual practice, the motion was placed before this panel. Following the usual practice, this panel held that it would hear the motion brought by Mr. Hoang.

[3] After reviewing the motion, this panel invoked the court’s jurisdiction under Rule 2.1.02, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:

The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[4] The parties provided written submissions.

[5] A review of Mr. Hoang’s factum filed on his motion asking the court to withdraw its reasons and set aside the judgment demonstrates beyond any doubt that Mr. Hoang wants a different panel of this court to sit on appeal from the decision of this panel and correct various errors, which Mr. Hoang alleges this panel has made. There is no appeal to this court from a decision of this court. The dismissal of the Mr. Hoang’s appeal is a decision of this court. Nor does this court gain jurisdiction simply because a party styles the proceeding as a motion rather than as a second appeal.

[6] Rule 61.16(6.1) provides that this court can set aside a prior decision. The circumstances in which it will be appropriate to do so are rare: see Trillium Motor Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, leave to appeal refused, [2017] S.C.C.A. No. 366, at para. 6; Owen Cornelius Mullings v. Jacqueline Alice Dian Robertson, 2020 ONCA 369, leave to appeal refused, [2020] S.C.C.A. No. 393, at paras. 4-5.

[7] None of the circumstances identified in the authorities that could justify a reconsideration of a decided appeal arise here. Mr. Hoang simply seeks to argue before a different panel that the summary judgment motion judge got it wrong and this panel got it wrong when it upheld the summary judgment motion judge.

[8] It is not enough to conclude that Mr. Hoang’s motion has no merit. A motion that has no chance of success is not necessarily frivolous, vexatious or otherwise an abuse of process: Collins v. Ontario, 2017 ONCA 317, leave to appeal refused, [2017] S.C.C.A. No. 245, at paras. 19-20.

[9] Mr. Hoang’s motion is, however, not only without merit. The motion is part of a pattern of conduct by which Mr. Hoang has repeatedly challenged the correctness of decisions made by this court by way of meritless motions brought in this court after the appeal had been decided.

[10] The chronology of the proceedings in this court following the dismissal of Mr. Hoang’s appeal in the first action demonstrate the abusive manner in which Mr. Hoang has chosen to litigate his claims against Mann Engineering:

• Mr. Hoang’s appeal in the first action was dismissed on May 5, 2015;
• On June 18, 2015, the same panel dismissed Mr. Hoang’s motion for a reconsideration of the decision. Mr. Hoang claimed the panel had made various errors in law;
• On December 2, 2015, a different panel dismissed a second motion for a reconsideration of the appeal. That panel also imposed an order under Rule 2.1.02(1) prohibiting Mr. Hoang from making any further motions without leave of the court;
• On January 28, 2016, the panel which had made the order under Rule 2.1.02 dismissed Mr. Hoang’s third motion to rehear the appeal on the basis that the motion was vexatious and an abuse of process.

[11] The reasons given by a panel of this court for invoking Rule 2.1.02 in respect of motions brought by Mr. Hoang on his appeal in the first action apply with equal force to this motion: see Hoang v. Mann Engineering Ltd., 2015 ONCA 838. The court said, at para. 14:

Mr. Hoang is arguing that the appeal panel erred in law and in fact by upholding the trial judge’s order and so the appeal should be re-heard. As indicated by the panel in its previous endorsement, these are arguments that should be made to the Supreme Court of Canada on an application for leave to appeal.

[12] Mr. Hoang’s argument that because his chances of getting leave to appeal to the Supreme Court of Canada are slim, he should be allowed to challenge alleged errors made by this court by further proceedings in this court is without merit. The jurisdiction of the Supreme Court of Canada and how it chooses to control its docket have nothing to do with the jurisdiction of this court.

[13] Mr. Hoang’s attempts to continue to litigate issues decided by this court by way of meritless motions brought after the court has rendered its decision amounts to an abuse of the court’s process. Mann Engineering has been put to the time and energy of responding to these misconceived motions. Mr. Hoang’s efforts to continue the litigation in this court may also impact on Mann Engineering’s ability to enforce orders obtained in these proceedings, or to pursue other remedies. Finally, litigation conduct like Mr. Hoang’s places an added and unwarranted strain on the limited resources available within the judicial system.

[14] This is an appropriate case in which to make the same order that was made by this court in December 2015 in the appeal taken by Mr. Hoang in the first action. Mr. Hoang’s motion asking the court to withdraw its reasons and set aside its judgment is dismissed pursuant to Rule 2.1.02, dismissed as an abuse of the process of the court. Further, the court orders that Mr. Hoang is prohibited from filing any further motions in respect of this appeal (C68186) without first obtaining leave of a judge of this court.

[15] Mann Engineering is entitled to its costs. Those costs relate to written submissions in respect of the court’s initiation of proceedings under Rule 2.1.02. We fix those costs at $500.

“Doherty J.A.” “P. Lauwers J.A.” “B.W. Miller J.A.”