Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230920 DOCKET: M53918 (C69953)

Before: Tulloch C.J.O., Lauwers and Paciocco JJ.A.

BETWEEN:

Pomata Investment Corp. c.o.b. Treasure Hill Homes Plaintiff (Responding Party)

and

Fuxiang Yang and Xiye Zhao Defendants (Moving Parties)

Counsel: Fuxiang Yang and Xiye Zhao, acting in person Stephen Brunswick and Vanessa Ford, for the responding party

Heard: September 14, 2023

Reasons for Decision

[1] The moving parties, Fuxiang Yang and Xiye Zhao, move to re-open their appeal. For the reasons that follow, the motion is allowed.

[2] This matter was initially set for hearing on May 27, 2022. On the day of the hearing, neither the moving parties nor their counsel appeared to argue the appeal. Accordingly, the appeal was dismissed as abandoned for reasons reported at Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2022 ONCA 468.

[3] At the time of the hearing, Mr. Petar Lulic was the moving parties’ lawyer of record. Consistent with the Rules of Civil Procedure and the court’s standard practice, court correspondences were sent to Mr. Lulic. The moving parties were not copied on these correspondences.

[4] Mr. Lulic perfected the appeal in December 2021. On February 2, 2022, Mr. Lulic and the responding party’s counsel were sent a Notice of Hearing, setting out the date and time for the appeal. However, Mr. Lulic ceased communicating with the moving parties in early 2022 and never advised the moving parties that he received this correspondence. He also never advised the moving parties that he did not intend to appear or that he wished to be removed as their lawyer of record.

[5] The moving parties were unaware of the date and time of the hearing, and only learned that a hearing had been scheduled and that their case was dismissed as abandoned after the decision of this court was released in June of 2022.

[6] The court has now become aware that Mr. Lulic was suspended by the Law Society of Ontario on October 28, 2022. Mr. Lulic’s suspension related to a failure to communicate with the Law Society regarding five ongoing investigations: Law Society Tribunal File no. 22H-104. He remains suspended to date.

[7] The moving parties argue that it is in the interests of justice and fairness to allow a re-hearing. Although the court released its reasons for decision on June 14, 2022, no order has been taken out in respect of this matter.

[8] Based on the circumstances surrounding the proceedings of this matter, we agree with the moving parties that the appeal should be re-opened.

[9] In Meridian Credit Union Limited v. Baig, 2016 ONCA 942, at para. 7, this court confirmed its jurisdiction to re-open an appeal where it is clearly in the interests of justice to do so:

[G]enerally speaking, there is no jurisdictional impediment to this court reconsidering its decision when no order has been taken out and entered: Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at para. 5. However, a party seeking to re-open an appeal after the appeal decision has been rendered faces “a high hurdle”: Chuang v. Toyota Canada Inc., 2016 ONCA 852, at para. 7. The court will re-open an appeal prior to the entering of the order “sparingly and only where it is clearly in the interests of justice”: Mujagic, at para. 12.

[10] Although the bar to re-opening an appeal is high, it is clearly in the interests of justice to grant the moving parties the relief they seek. The moving parties had no intent to abandon their appeal, but through no fault of their own were not informed of their hearing date.

[11] Further, Mr. Lulic never brought a motion to this court to be removed as the counsel of record. Rule 15.05 of the Rules of Civil Procedure requires a lawyer to act unless the client removes the lawyer or a court order has been obtained to remove the lawyer from the record. Similarly, a lawyer’s professional obligations require reasonable notice to a client of a withdrawal of services. Public confidence in the administration of justice depends on the public being able to rely on their lawyer of record. The moving parties were entitled to rely on Mr. Lulic as their lawyer of record.

[12] Moreover, this appeal was not heard and decided on its substantive merits but dismissed as abandoned. It is unlike the case in Baig, where the arguments made on the motion to re-open the appeal had already been advanced and considered on appeal. As such, allowing the motion to re-open the appeal would not result in unfairness to the responding party.

[13] Additionally, at the hearing of this motion, counsel for the responding party consented to reopening the appeal, subject to the condition that the appeal proceed on the existing record and that no new materials are filed for the appeal hearing. The moving parties agreed to this condition.

[14] The moving parties are prepared to act in person at a re-hearing and have removed Mr. Lulic as their lawyer of record.

[15] Nothing in these reasons shall be interpreted as commentary on the merits of the appeal. However, the moving parties should have the opportunity for their appeal to be heard and decided on its merits.

[16] Accordingly, the motion is granted. Costs are reserved to the panel hearing the appeal.

“M. Tulloch C.J.O.”

“P. Lauwers J.A.” “David M. Paciocco J.A.”