Court File and Parties

Court of Appeal for Ontario Date: 2022-01-26 Docket: M52935 (C68186)

Before: Tulloch J.A. (Motion Judge)

Between: K. Matthew Hoang, Plaintiff, Appellant (Moving Party)

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”), Defendants, Respondents (Responding Parties)

Counsel: K. Matthew Hoang, appearing in person Ted Flett, for the responding parties

Heard: November 23, 2021 by video conference

Reasons for Decision

[1] The moving party, Matthew Hoang, brings this motion for leave to file a motion to, in essence, reverse two prior decisions of this court in these proceedings. The moving party argues that the panel that heard the appeal from the November 4, 2019 summary judgment decision of Glustein J. misapprehended the evidence, as well as failed to provide proper reasons substantiating its finding that there was no merit to the moving party’s action. He further argues that the court erred in refusing to reconsider his appeal on the basis that it had no merit.

[2] The genesis of the underlying litigation started in June 2011 when Mr. Hoang’s employment was terminated. Mr. Hoang sued Mann Engineering for negligence arising from the termination of his employment.

[3] This single incident has resulted in two separate sets of actions by the moving party and over ten years of litigation at all levels of court, ultimately resulting in the dismissal of both actions and costs awards against Mr. Hoang, none of which have been paid.

[4] The first action was dismissed by virtue of a summary judgment motion in 2014, with costs awarded against Mr. Hoang. After this first dismissal, Mr. Hoang appealed various aspects of the decision to this court on four separate occasions, and then finally to the Supreme Court of Canada by way of motion for leave on two separate occasions, culminating in a dismissal on July 21, 2016, by the Registrar of the Supreme Court.

[5] On December 8, 2017, Mr. Hoang commenced the current underlying action against the same defendants for tortious conduct, breach of duty of care, and negligence based on allegations arising out of the same termination of employment.

[6] In the decision dated November 4, 2019, the motion judge, Glustein J. of the Superior Court of Justice allowed the responding parties’ motion for summary judgment and dismissed Mr. Hoang’s action on the basis that there was no genuine issue requiring a trial. He found that the responding parties did not owe a duty of care to Mr. Hoang while pursuing garnishment proceedings against him. And even if there was a duty of care, Mr. Hoang had not established causation between the breach of that duty and the loss of his employment. Mr. Hoang’s cross-motion for damages was dismissed. Costs were again awarded against Mr. Hoang.

[7] Mr. Hoang appealed Glustein J.’s order to this court and sought leave to appeal the costs order. In a decision dated December 16, 2020, this court dismissed the appeal. This court held that the motion judge correctly determined there was no triable issue on the question of whether the responding parties owed Mr. Hoang a duty of care, as the relationship of the parties as a judgment creditor and debtor does not hold the requisite proximity to recognize such a duty. The court further held that it would be antithetical to the litigation process to find that such a duty arises. The court also noted that it was not reasonably foreseeable that the responding party’s actions could lead to the termination of Mr. Hoang’s employment.

[8] Mr. Hoang then brought a motion to this court to set aside the December 16, 2020 decision and to allow him to amend his pleadings. This motion was dismissed by a panel of this court on October 21, 2021 pursuant to r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it was an abuse of the court’s process. The court ruled that while this court is empowered to set aside a prior decision under r. 61.16(6.1), the circumstances in which it would be appropriate to do so were not present. The court determined that Mr. Hoang sought simply to re-argue his appeal, which was without merit, and that this attempt formed part of a pattern of vexatious conduct. The court also ordered that Mr. Hoang be prohibited from filing any further motions without leave of the court.

[9] Mr. Hoang now brings a motion for leave to file a motion seeking one of two forms of relief. He seeks either leave to amend his amended statement of claim to add a claim of abuse of process against the responding parties and to have Glustein J.’s decision set aside and judgment granted in his favour; or, leave to amend his amended statement of claim, to set aside the decisions of this court, and to re-hear his appeal of Glustein J.’s decision.

[10] Where a court makes an order under r. 2.1.02(1) dismissing a motion as an abuse of process, it may also make an order under r. 37.16 prohibiting a party from filing further motions without first obtaining leave: Rules, r. 2.1.02(3). Justice Pepall in Huang v. Braga, 2020 ONCA 645 sets out helpful guidance for assessing whether to grant leave to file a motion to a party subject to a r. 37.16 order:

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.

[11] I am of the view that this is not one of those cases where leave should be granted. First, I find the proposed appeal lacks merit and does not put forth any reasonable grounds of appeal. It is essentially an attempt to re-argue issues that the moving party has already advanced and that were rejected at trial and on appeal in the first action.

[12] Second, the request for leave to file a motion is in fact a continuation of the abusive conduct that made the moving party subject to the order in the first place. With the present motion and proposed appeal, as in the October 21, 2021 motion, “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”: Hoang v. Mann Engineering Ltd., 2021 ONCA 742, at para. 9.

[13] In my view, it is not in the interests of justice to grant the motion. Mr. Hoang is unrelenting in his litigation efforts. He has exhausted all rights of appeal or revocation for each time he has received an adverse judgment. As further pointed out by the respondents, over a period of seven years, Mr. Hoang has appeared before this court in the first action, in writing or in person, on five separate occasions, and before the Supreme Court of Canada on four separate occasions. The second action has been active for an additional four years. The finality of this litigation must at some point be enforced.

[14] Accordingly, the moving party’s motion is denied.

“M. Tulloch J.A.”