Wang v. Unifund Assurance Company, 2019 ONSC 6485

CITATION: Wang v. Unifund Assurance Company, 2019 ONSC 6485

DIVISIONAL COURT FILE NO.: 196/18

DATE: 20191112

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N:

YONG WANG, Appellant

– and –

UNIFUND ASSURANCE COMPANY, Respondent

BEFORE: F.L. Myers J.

READ: November 12, 2019

Endorsement

This Proceeding

[1] This motion has been brought to my attention by the registrar under rule 2.1.01(7) of the Rules of Civil Procedure, RRO 1990, Reg 194, at the request of counsel for Unifund under Rule 2.1.01(6).

[2] Mr. Wang has brought a motion under s.21(5) of the Courts of Justice Act, RSO 1990, c C.43, to have a panel of three judges review the decision of Corbett J. dated October 31, 2019. Rule 2.1.02 provides that the court may dismiss a motion that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.

Background

[3] On June 19, 2017, an arbitrator denied Mr. Wang’s claim for attendant care and housekeeping benefits under the applicable Statutory Accident Benefits Schedule. On March 5, 2018, the Director’s Delegate upheld the arbitrator’s decision.

[4] Mr. Wang appealed the denial of benefits to this court. A year later, on April 5, 2019, the registrar gave notice to Mr. Wang that his appeal would be dismissed for delay unless he perfected the appeal within ten days. Mr. Wang did not perfect his appeal despite the registrar’s notice. Therefore, by order dated April 26, 2019, the registrar dismissed Mr. Wang’s appeal.

[5] By order dated July 11, 2019, reported at 2019 ONSC 4217, Sachs J. refused to set aside the registrar’s order dismissing Mr. Wang’s appeal for delay.

[6] Justice Sachs set out the proper test for a motion to set aside a registrar’s dismissal. She noted that in the year since filing his notice of appeal, Mr. Wang had not ordered the transcripts of the arbitration. Mr. Wang said that he could not afford the transcripts and asked Sachs J. to order the reporter to turn over the recording of the arbitration to another, allegedly cheaper transcription service. Justice Sachs questioned whether she could make that type of an order.

[7] Ultimately, Sachs J. considered the issue of whether Mr. Wang’s appeal from the arbitration and the first appeal to the Director’s Delegate had merit. She listed the eight grounds of appeal asserted by Mr. Wang and found that none of them has any merit. She concluded as follows:

If I had found that Mr. Wang’s appeal had merit I would have set aside the Registrar’s order and granted him more time to perfect his appeal. However, because I have found that his appeal has no merit, I am dismissing Mr. Wang’s motion to set aside the Registrar’s order.

[8] Mr. Wang wanted to have a panel of three judges review Justice Sachs’ order. However, he did not bring his motion for review in time. So, he brought a motion before Corbett J. to ask for an extension of time to bring the motion to review the order of Sachs J. that refused to set aside the order of the registrar dismissing his appeal for delay.

[9] Justice Corbett set out the proper test for a motion to extend time. He also explained to Mr. Wang that it was not a “lie” for the arbitrator to find that Mr. Wang’s application for a determination that he suffered catastrophic impairment was not before him. Mr. Wang said that he brought the application and the arbitrator lied saying that he did not do so. Corbett J. explained to Mr. Wang that the expression that the issue “was not before” the arbitrator meant only that the question of whether Mr. Wang had suffered catastrophic impairment was not properly on the list of items to be decided in the arbitration. Corbett J. told Mr. Wang that the issue of whether he is catastrophically impaired remains to be decided by the Licence Appeal Tribunal. Unifund agreed before Corbett J. that Mr. Wang can still claim that he suffered catastrophic impairment despite the outcome of the arbitration on attendant care and housekeeping benefits that is the subject of this appeal.

[10] In considering Mr. Wang’s motion to extend the time to review the decision of Sachs J., Corbett J. also found that Mr. Wang’s appeal lacked merit. Corbett J. wrote:

In the motion before me – I see no merit to the proposed appeal – Sachs J.’s assessment of the merits of the proposed appeal is correct, in my view. The other grounds raised by Mr. Wang are scandalous – and also, irrelevant – given the basis for Sachs J.’s decision.

[11] Mr. Wang has now brought this motion to a panel of three judges to review the decision of Corbett J. refusing to extend the time for the review of the decision of Sachs J. refusing to set aside the dismissal of his appeal for delay by the registrar.

[12] None of the grounds asserted by Mr. Wang in his notice of motion dated November 4, 2019, appear to state a basis to find that Corbett J. made a reviewable error of fact or law, or that he erred in the exercise of his discretion.

Rule 2.1

[13] Mr. Wang should be provided with an opportunity to explain why his motion for review of the order of Corbett J. should not be dismissed for being frivolous and vexatious. In this context, a “frivolous” motion is one that cannot succeed. A “vexatious” motion is one brought for an ulterior or wrongful purpose. Currie v. Halton Regional Police Services Board, 2003 ONCA 7815.

[14] Two judges of the court have already found that the appeal from the arbitration has no merit. I therefore question the utility of Mr. Wang trying to review the decision of Corbett J. to then try to review the decision of Sachs J. to then try to reinstate an appeal that has no chance of success. This is especially the case where Corbett J. explained to Mr. Wang that he can still bring his claim to be catastrophically impaired to the Licence Appeal Tribunal. Under rule 2.1 therefore, Mr. Wang should file submissions to explain why this motion should be allowed to proceed.

[15] On reviewing the material forwarded by the registrar, the court therefore makes the following order:

a. Pursuant to rule 2.1.01(3)(1), as incorporated by Rule 2.1.02(2), the registrar is directed to give notice to Mr. Wang in Form 2.1A that the court is considering making an order under rule 2.1.02 dismissing his motion to review the order of Corbett J. dated October 31, 2019;

b. Pending the outcome of the written hearing under rule 2.1 or further order of the court, the motion to the panel to review the order of Corbett J. is stayed pursuant to s.106 of the Courts of Justice Act;

c. The registrar shall accept no further filings in the motion to the panel excepting only Mr. Wang’s written submissions if delivered in accordance with rule 2.1.01(3);

d. In addition to the service by mail required by Rule 2.1.01(4), the registrar is to serve a copy of this endorsement and a Form 2.1A notice on Mr. Wang and counsel for the respondent by email if it has their email addresses.

Date: November 12, 2019