CITATION: Tran v. AMC Environmental, 2021 ONSC 5902
DIVISIONAL COURT FILE NOS.: 133/21 and 252/21
DATE: 20210903
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: TRAN v. AMC ENVIRONMENTAL CORP.;
AND RE: TRAN V. Durham condominium corporation no. 86
BEFORE: D.L. Corbett J.
HEARD: In Writing, In Chambers
ENDORSEMENT
[1] In this endorsement I give directions for this case, Tran v. AMC Environmental (DC 133/21), and another case involving Ms Tran, Tran v. DCC 86 (DC 252/21, DC 717/21 and a purported appeal that does not have a Divisional Court file number because it has not yet been accepted for filing).
(a) Tran v. DCC 86 (252/21)
[2] By email in March 2021, Ms Tran initiated a motion for leave to appeal an order of Speyer J. in which the court dismissed a motion brought by Ms Tran to appoint amicus curiae on the basis that Ms Tran is “mentally incapable” of representing herself in court.
[3] By email dated April 1, 2021, Ms Tran sought to bring a motion for a stay pending appeal of an order of Speyer J. on the basis that the proceedings below were continuing and Ms Tran was unable to represent herself in those proceedings.
(b) Tran v. AMC Environmental Corp. (131/21)
[4] By email dated February 12, 2021, Ms Tran sought to commence a motion for leave to appeal in this court from the order of Dunphy J. dated February 1, 2021. In her Notice, Ms Tran described the order of Justice Dunphy as follows:
… an interlocutory order granted the Defendants’ Rule 7 motion unapplied Notice to Profession requirement for Court Hearings during COVID-19 Pandemic against the Plaintiff and amongst other various issues related his motion. Especially, she strange Justice Dunphy was not allowed her submission either her Motions and her respondent’s motion at the hearing.
[5] Although it is not clear from the balance of the Notice of Motion, it appears that Justice Dunphy found Ms Tran to be legally incapable within the meaning of Rule 7 and appointed the Public Guardian and Trustee as her litigation guardian in this proceeding. It is clear that Ms Tran took the position that, although she is not capable of representing herself in court proceedings, she is capable of instructing counsel. As was the case in the action against DCC 89, Ms Tran sought an order that amicus curiae be appointed on her behalf, and not a litigation guardian.
[6] Staff asked Ms Tran to provide the court with a copy of the decision of Justice Dunphy. She refused to do so. Eventually staff gave up trying to obtain the document and forwarded the file to me, as the administrative judge conducting triage for the case.
[7] I reviewed the file and then directed Ms Tran as follows:
Justice Corbett directs me to advise you as follows:
Ms Tran, the moving party, is directed to provide the court with a copy of the decision of Justice Dunphy by email by March 5, 2021. This motion for leave to appeal is stayed pending compliance with this direction.
Staff conveyed this direction to Ms Tran by email on February 24, 2021.
[8] Ms Tran refused to provide a copy of the decision of Dunphy J.; her motion for leave to appeal has been stayed in Divisional Court as a result.
Notice Pursuant to R.2.1.01
[9] By notice from the Registrar dated April 1, 2021, at the direction of this court, Ms Tran was given notice that this court is considering dismissing her two motions for leave to appeal on the following bases:
The Registrar is directed to give Ms Tran notice pursuant to R.2.1.01 that the court is considering dismissing her motions for leave to appeal in files 133/21 and 252/21 as frivolous, vexatious and an abuse of process, for the following reasons:
In respect to the proposed motion for leave to appeal from the decision of Dunphy J., Ms Tran refused to provide a copy of the impugned decision when directed to do so by court staff, and has failed to provide a copy of the decision when directed to do so by an administrative judge of the Divisional Court. Failure to comply with the court's most basic procedural directions at the outset of this matter has caused delay in intake of the motion for leave to appeal and demonstrates an intention on the part of Ms Tran to flout the court's process.
In respect to the proposed motion for leave to appeal from the decision of Speyer J., there is no basis on which the court may appoint "amicus curiae" because the applicant suffers from a psychiatric disability. If Ms Tran is under a legal disability, then she requires a litigation guardian. If she seeks appointment of a litigation guardian, she may arrange for a guardian of her choice and then seek directions from the court. If she is unable to appoint a litigation guardian herself, and none steps forward voluntarily, she may seek appointment of the Public Guardian and Trustee to be her litigation guardian. Ms Tran should understand that if a litigation guardian is appointed to represent her, that guardian will control the litigation and have the authority to make all decisions respecting the litigation, even if Ms Tran disagrees with those decisions. If Ms Tran seeks publicly funded counsel to represent her, and if she is not eligible for legal aid (as would appear to be the case given the nature of the claims in issue), and if no legal aid clinic will agree to represent her, then Ms Tran may move for an order that counsel be appointed for her at public expense. Such a motion must be brought on notice to the Attorney General of Ontario. Given the overall circumstances of the case, and the nature of the issues, it does not appear to be a case in which appointment of publicly funded counsel would be ordered, however, in the absence of a proper motion, on notice to the Attorney General, showing that Ms Tran has tried to obtain counsel and been unsuccessful and that she lacks the financial means to pay for counsel, it is not possible to be certain that such a motion would be doomed to failure.
Given the observations in para. 3, it is plain and obvious that Speyer J. was correct in dismissing a motion to appoint "amicus curiae" for Ms Tran, the motion for leave to appeal is doomed to fail, and is frivolous, vexatious and an abuse of process.
In her answer to the Registrar's notice pursuant to R.2.1.01, Ms Tran is directed to advise if she is the same "Jenny Tran" who was involved in legal proceedings reported in the following decisions:
(a) R. v. Tran, 2019 ONCA 919
(b) Tran v. Ontario (Community Safety and Correctional Services), 2017 HRTO 1641
(c) R. v. Tran, 2017 ONCA 482
(d) R. v. Tran, 2016 ONCA 638
(e) Tran v. Aviva, 2016 ONSC 549
(f) R. v. Tran, 2015 ONSC 534
(g) Tran v. Kerbel, 2015 ONSC 5233
Ms Tran is advised that the court is considering making an order restricting her ability to initiate and pursue proceedings in Divisional Court without first obtaining permission from an administrative judge in light of the apparent frivolous nature of her two pending appeals and her litigation history reflected in the decisions set out above.
[10] Ms Tran responded to the court’s notice on April 2, 2021.
[11] On April 6, 2021, Ms Tran sent two emails to the court. In one, she asked the court to confirm that proceedings are stayed in AMC Environmental v. Tran. In the other she attached a notice of motion for a motion to a panel of the Divisional Court for an order staying the proceedings in DCC 86 v. Tran. By direction from me sent to Ms Tran on April 6, 2021, the court advised Ms Tran as follows:
The orders of Dunphy J. and Speyer J. are not stayed pending Ms Tran's motions for leave to appeal those orders in the Divisional Court.
[12] Ms Tran responded to the court as follows on April 7, 2021:
As Justice Corbett stated so, I need my motion moving forward for return motion this week what is the early available motion date for this motion?
Because I have a return motion to Superior Court by early next week and as motioned above, I need early motion this week to avoid screw up my motion was scheduled with Superior Court early next week.
At least I need a case conference this week for this matter.
I also need duty counsel to assist me and the court with this motion and case conference this matter.
[13] At my direction the Registrar responded to Ms Tran on April 7, 2021 as follows:
Justice Corbett directs me to advise you as follows:
This court will not be intervening in this case this week. The order below is not stayed and Ms Tran is required to continue with the action below on the basis of the orders made by the courts below.
There is no duty counsel in Divisional Court. There will be no case conference pending decision by this court on the R.2.1.01 notices. This court will then give directions on how these motions for leave to appeal may proceed.
Ms Tran is reminded that she has been directed twice to provide the court with a copy of the decision of Dunphy J., and has been directed to advise the court if she is the same "Jenny Tran" as the party in the proceedings listed in the court's previous direction. Ms Tran should not expect that this court will schedule further steps in her matters in this court so long as Ms Tran fails to follow directions made by this court.
By email from counsel for the plaintiff in AMC Environmental v. Tran, counsel provided the court with a copy of the endorsement and order of Dunphy J. in that case. The operative part of the reasons of Dunphy J. read as follows (unreported decision dated February 1, 2021, paras. 2-5):
The evidentiary record establishes that Ms Tran is not capable of conducting this litigation on her own. Her physician has provided detailed evidence establishing that Mr Tran lacks capacity a conclusion that Ms Tran herself has repeated to the court on numerous occasions. I am thoroughly satisfied based on the record that Ms Tran lacks the capacity necessary to conduct this litigation without the assistance of a litigation guardian
At today’s hearing I asked Ms Tran directly with the assistance of a Cantonese interpreter whether there has been any change in her condition since the most recent medical evidence regarding her capacity. She responded that if her doctor said she is not capable then it must be so. The evidence satisfies me that she lacked capacity as of the times of the various assessments referenced therein by Ms Tran herself and by her own doctor. There is nothing in the evidence to suggest that her very serious condition including diagnosed schizophrenia has improved in any material way recently to call into question the current validity of the opinions expressed then. I am not persuaded to a further assessment process will be of any assistance to me in deciding on this motion.
The Public Guardian and Trustee did not urge me to have a fresh assessment conducted nor did that official suggest that it would not be appropriate to appoint the PGT as litigation guardian today. Ms Chiang informed me that the PGT would take no position on either question.
The moving party has correctly summarized the test to be met on this motion in his factum and I am persuaded by the evidence summarized therein and filed before me that the relief requested ought to be granted. Accordingly I have reviewed and signed the draft order presented to me by the moving party which I understand has been prepared in consultation with the PGT.
[14] On April 7, 2021, I directed a case management conference be held in both proceedings by videoconference, and that a Cantonese interpreter be available at the conference to assist Ms Tran. I issued an endorsement explaining this direction which, after summarizing the history of these matters briefly, stated as follows (unreported decision dated April 7, 2021, paras. 5-11):
There is an apparent substantive conflict in the decisions of Dunphy J. in AMC Environmental and Speyer J. in Durham Condominium Corp. No. 86. Dunphy J. found that Ms Tran is a person under a disability within the meaning of R.7 and he appointed the Public Guardian and Trustee as Ms Tran’s litigation guardian. Speyer J. found that Ms Tran is not under a disability within the meaning of R.7 and declined to appoint amicus curiae to represent Ms Tran in the proceedings, finding that the court would be able to accommodate Ms Tran’s disability during the course of the proceedings. The decisions were made within six weeks of each other.
I appreciate that the evidentiary records before Dunphy and Speyer JJ. may well have been different. However, we are dealing here with a substantive issue about whether Ms Tran is required to be represented by the Public Guardian and Trustee, against her wishes, and if she is not, whether Ms Tran can be accommodated as a person with a disability who is self-represented before the courts.
The Registrar is directed to schedule a case management teleconference with the court in respect to both motions for leave to appeal, to be held together. The parties are asked to provide the court with the pleadings in both proceedings, together with copies of any endorsements and orders that have been made in both proceedings, so that the court will have some understanding of the litigation history and the nature of the claims in both actions.
The parties in the AMC Environmental case are asked to provide the court, prior to the case management videoconference, with their position on whether the order of Dunphy J. is a final order or an interlocutory order, and to provide the court with any authority that they have for their position on this issue.
Ms Tran is directed to provide the court with the information described in para. 4 of the court’s direction respecting the R.2.1.01 issue, by April 16, 2021. Ms Tran should understand that this is not a “request” or a “suggestion”. It is an order and she is required to obey it.
In my view the issue of Ms Tran’s capacity to manage her own legal proceedings must be settled before the underlying proceedings continue. The parties are asked to provide their position on whether the underlying proceedings should be stayed by this court pending (a) the case management videoconference; and (b) subject to further direction of this court at the case management videoconference.
The court notes that Ms Tran used a Cantonese interpreter during the motion before Dunphy J. She is directed to advise the court if she needs a Cantonese interpreter for the purposes of the case management videoconference.
[15] At the same time that this court was releasing its direction for a videoconference, Ms Tran tried to write directly to me about the case. The letter was returned to her by staff with the following explanation:
Your letter sent to Justice Corbett directly is being returned to you unread. It is improper to write directly to a judge of the court in this manner. All communications respecting your case must be made through the court office and copied to all parties.
As you will see from an endorsement that has been or will be released to you and the other parties today, Justice Corbett has directed that there be a case conference held by videoconference respecting your two motions for leave to appeal. You may raise any concerns you have with the process to date with Justice Corbett during the course of that case conference.
[16] Meanwhile, in DCC 86 v. Tran, Ms Tran moved before Justice Speyer pursuant to R.37, asking Justice Speyer to vary or set aside her own order. Speyer J. dismissed that motion on March 30, 2021. On April 7, 2021, Ms Tran contacted this court to appeal the decision of Speyer J. dated March 30, 2021. Ms Tran also provided to the court a requisition for a stay of the order of Speyer J. pursuant to R.63.01(1).
[17] On April 8, 2021, at my direction, court staff advised the parties as follows:
It appears that Ms Tran has asked Justice Speyer to set aside her own order refusing to appoint amicus curiae for Ms Tran, and now Ms Tran seeks to appeal this second order of Justice Speyer.
This court has already directed a case management videoconference in these matters and has asked the parties for their position on whether the two actions should be stayed pending the case management videoconference.
Ms Tran is to cease taking further steps respecting her representation in these proceedings until the case management videoconference. The court understands that she is upset. These matters will be addressed at the case management videoconference, but not before. Court staff have been directed not to accept any further new proceedings from Ms Tran without first obtaining a direction from an administrative judge.
[18] On April 9, 2021, staff advised the parties that the case management videoconference was scheduled for April 26, 2021.
[19] Ms Tran responded to the notice of the videoconference by email dated April 9, 2021, as follows:
(1) As we mention before it is 2 separate materials why you put them together into a matter to confuse the other side party or the Defendants.
(2) Same as “Jamie Chiang” is not a party to this appeal matter, why you always add her name on it we you communicate with us?
(3) The parties did not request a case conference why you schedule a case conference for it? And what info you would like to know at the case conference?
(4) Especially, the Appellant was addressed these issues in her correspondences to you and administration judge and she is waiting for for both of you to respond to her every correspondence.
(5) Otherwise, if you are unable to reply above questions to us. It is an inappropriate procedure for either case matter.
(6) Also, the Appellant is not available on April 26, 2021.
[20] Staff responded to Ms Tran by email to the parties as follows on April 9, 2021:
Justice Corbett directs me to advise you as follows:
The case management videoconference shall proceed as scheduled on April 26, 2021, as scheduled. If Ms Tran does not attend, orders affecting her interests may be made at the conference without further notice to her.
Ms Tran says that she is "unavailable" for this videoconference but provides no basis for this statement and no corroborating documents to support it. Court directed attendances take precedence over almost all other matters, and Ms Tran is required to make herself available for the videoconference. If Ms Tran has some reason that could possibly justify changing this schedule, then she will have to provide the court with a full explanation and copies of documents supporting that explanation, together with detailed information stating when she will be available.
[21] On April 12, 2021, Ms Tran wrote to the court again, pursuing her prior requests for a stay of the proceedings in DCC 86 v. Tran, complaining that her prior requests had been ignored, and requesting an immediate stay so that the proceedings below would not continue as scheduled. Staff responded by email on April 12, 2021, as follows:
Justice Corbett directs me to advise you that the court will not be granting any orders prior to the case management videoconference scheduled for April 26, 2021.
[22] By letter sent by email from counsel for the plaintiff in AMC Environmental v. Tran on April 12, 2021, counsel provided the court with various documents filed in that proceeding and stated that his client consents to a stay of proceedings pending further order in this court.
[23] Also on April 12, 2021, Ms Tran advised that her schedule conflict was an appearance before Speyer J. on April 26, 2021. She asked that proceedings in DCC 86 v. Tran be stayed so that she would be able to appear at the videoconference scheduled in Divisional Court.
[24] Staff responded to Ms Tran by email to the parties on April 12, 2021 as follows:
(1) Ms Tran's proceedings before Justice Speyer are scheduled for 9:30 am on April 26, 2021. This court has not and will not stay those proceedings, which shall proceed as ordered by Speyer J.
(2) The case management videoconference in this court is scheduled for April 26, 2021 at 3:00 pm. It shall proceed as scheduled by this court.
(3) There is no conflict in the schedule - Ms Tran may attend before Speyer J. at 9:30 am, and before this court by videoconference at 3:00 pm.
(4) Ms Tran is to stop emailing the court repeatedly on this topic. Any concerns she has may be raised by the presiding judge at the case management videoconference on April 26, 2021.
[25] Ms Tran emailed the court again on April 13, 2021, seeking a stay of DCC 86 v. Tran and complaining that her many requests for relief had not been answered by the court. She stated that the court’s handling of her case was making her ill and making her disabling conditions worse. At my direction, staff responded to Ms Tran as follows:
(1) The court's directions are not open to debate or discussion.
(2) You have been directed to stop emailing the judge directly. Do not do it again.
(3) Both hearings shall proceed on April 26th as Justice Speyer and Justice Corbett have directed.
(4) No stay order will be issued by the Divisional Court before the case management conference on April 26, 2021.
(5) Do not email the court further on these issues.
These directions are mandatory; you are required to follow them.
[26] Ms Tran responded by email on April 13, 2021, reiterating her requests, complaining that her communications to the court had gone without response, and raising a concern that the court was confusing the two different pieces of litigation in which she is involved.
[27] By letter dated April 13, 2021, the court received a letter from the Public Guardian and Trustee (“PGT”) taking the position that the underlying proceedings in AMC Environmental v. Tran should be stayed pending further disposition in this court, and agreeing that a case management conference would be desirable. In tis letter the PGT also confirmed that it takes the position that the order of Dunphy J. is interlocutory and that any appeal lies to Divisional Court with leave.
[28] Ms Tran continued to send emails to the court about her concerns. Staff responded to these communications by email as follows: “The court will not respond to any further emails from Ms Tran prior to the case management videoconference schedule for April 26, 2021. Ms Tran is ordered to stop sending emails to the court prior to the case management videoconference on April 26, 2021.”
[29] Ms Tran responded by writing to the court again asking for a stay of DCC 86 v. Tran. Staff responded as follows at my direction:
Your letter to Justice Corbett is being returned to you, unread by His Honour.
This office will not respond to any further communications from you prior to the case management videoconference on April 26, 2021.
[30] Ms Tran wrote back on April 15, 2021, threatening to make a report to the judicial council and stating that her doctor was asking that her case be stayed because it was making her health deteriorate.
[31] On April 19, 2021, Ms Tran wrote again requesting a stay, attaching a note purportedly from her doctor, which states as follows:
I am Ms Tran’s family MD.
This letter is to certify that she suffers from severe major depression and severe anxiety. Her illness has become much more severe since the current court proceedings.
Her PHQ-9 score is 20 (severe) and her GAD-7 score is 21 (severe).
I do not feel that she is capable of self-representation.
As a result I strongly ask the court to adjourn her matter stay pending appeal for the appellant court to review the motion judge’s order for her to appoint a lawyer to assist her in the court proceedings.
[32] The following day Ms Tran wrote to the court again, asking why a stay had not been issued in light of her doctor’s letter and Ms Tran’s prior requests.
[33] Ms Tran wrote a further email in respect to these issues on April 23, 2021, asking why she had not received a response.
[34] On April 23, 2021, at my direction, staff advised Ms Tran as follows:
Justice Corbett directs me to advise you as follows:
As you have been told repeatedly, the court will not respond further to your inquiries prior to the case management videoconference on Monday at 3 pm. You may address any of your concerns with the court at that time.
[35] On April 23, 2021, Ms Tran wrote to the court advising that she would try to participate in the videoconference on April 26th, that if she had difficulty with her technology the conference would have to be rescheduled, and that she needed duty counsel for the conference and asked the court to arrange for that.
[36] At my direction, court staff provided Ms Tran with information to connect to the videoconference if she had difficulty connecting by video on April 26th.
[37] At 10:50 am on April 26, 2021, Ms Tran emailed the court as follows:
As I mentioned in last Friday (23/4/21) email to you, I aware it is a case management video conference at 3:00 pm today, I try to access it at that time, if I cannot access it at that time which I have trouble access in because I am disabled and I am not a familiar online system.
Same as telephone management case conference I don't know how to access it too, if I cannot access either or both or if you don't see I can participate at that time case management conference which I have problem access in online line system of your management case conference and then I try to call your general telephone line if no one answer my telephone call at that time, and then you need to adjourn this case management conference, so we arrange another way or another method for this case management conference,
I don't mean am not complying with your order because I am disabled, this reason I need to appoint an amicus to assist me and the court on these matters. Before I bring a motion to appointing amicus. I request duty counsel assist this case management conference. Did you arrange a duty counsel to assist me and the court with this case management conference today?
I have reiterated to you PGT role is only to assist who is patient unable to instruct counsel or who is patient have a serious health issue, etc, and/or as PGT role is an ineffective assist who is patient capable instruct counsel, like me that is the reason make another of my case matter need to appeal in this court.
I was inquired about your April 7, 2021, is real order or draft order on multiple occasions, I did not receive your response to me. Same as my correspondence dated April 7, 2021, was address to you, I also without receiving your response to me too. If this is real order, I would bring an application for judicial review of your April 7, 2021, order and/or appeal your this order.
[38] The case management teleconference took place on April 26, 2021. The court’s endorsement from that conference reflects what took place, as follows:
The court confirms the case management teleconference held in these matters on April 26, 2021.
(1) By her own account, Ms Tran has a psychiatric disability.
(2) In proceedings in Oshawa, Speyer J. refused a motion from Ms Tran to appoint amicus curiae. Ms Tran sought this order so that she would have access to a lawyer to help her with her case. Speyer J. found that Ms Tran can be accommodated in the litigation process as a self-represented litigant. Ms Tran seeks leave to appeal this decision and asks this court to stay the proceedings in Oshawa until her motion for leave to appeal, and, if leave is granted, until the appeal is decided.
(3) In proceedings in Toronto, as a result of orders made by Myers J. and Dunphy J., Ms Tran was declared legally incapable and the Public Guardian and Trustee was appointed as her litigation guardian. Ms Tran seeks leave to appeal this decision. She also seeks a stay of proceedings in the Toronto action pending her motion for leave to appeal and, if leave is granted, pending the appeal itself. The defendant in the Toronto proceedings and the Public Guardian and Trustee consent to an order staying the Toronto proceedings on the basis requested by Ms Tran. I previously so directed on an interim basis and now, on consent, order a stay of the Toronto proceedings pending disposition of these proceedings in this court.
(4) Ms Tran has asked for amicus curiae and to speak to Duty Counsel in this court. This court will consider appointing amicus curiae for any appeal that is brought if leave to appeal is granted. The court will not appoint amicus curiae for the purposes of the motions for leave to appeal. Duty counsel is not available in Divisional Court. Pro bono counsel is available for some matters in Divisional Court, but the court understands that Pro Bono Ontario has declined to get involved in this case.
(5) These two cases reflect a current difficulty in the law and practice that relates to some psychiatrically disabled persons. In the opinion of her treating physician, Ms Tran is capable of understanding her litigation and making decisions about it, but she is not capable of presenting her own case. Thus she is not legally incapable, but she needs assistance to be accommodated in the court process. On the other hand, the difficulties Ms Tran has in representing herself seem to result in a suite of behaviours that are unacceptable in a litigant and fall within the general category of "vexatious". Although I make no finding on this issue, which may be contested in this court on the merits, there is a basis for concern that Ms Tran's disability does affect her judgment and self-control to such an extent that there is a danger that any valid claim she may have will be swept away in the court's response to her approach to litigation, or occluded by adverse costs orders for unreasonable litigation conduct. The defendant in the Toronto action presents as an example of the collateral damage that can be done to others if the court's processes do not effectively accommodate the situation of persons with certain kinds of psychiatric disabilities.
(6) The defendant in the Oshawa proceeding did not receive notice of the case management conference as a result of an oversight by court staff and the absence of any interested party noting the problem in advance. This court is unaware of the current status of the proceedings in Oshawa, which are not currently stayed. A copy of this endorsement shall be provided to the defendant in the Oshawa proceedings, and that defendant is asked to advise the court of the status of the Oshawa proceedings and its position on whether further steps in those proceedings ought to be stayed pending resolution of the appellate proceedings in this court. The defendant is asked to provide its position to this court by May 21, 2021.
(7) It is for Ms Tran to prepare her motion materials for her motion for leave to appeal in the two actions. She fears that she will not be able to do this effectively without legal assistance. However, no such assistance is available to her in this court, at this stage. She should prepare her motion materials, as best she can, and advise the court by email when she has done so. She should not send her materials to the court by email. Instead, she shall upload her motion materials to CaseLines. Court staff will provide her with information on how to do this. Ms Tran is asked to provide this court with her best estimate of how long it will take her to complete her motion materials and upload them to CaseLines.
(8) On a preliminary basis, this court has concluded that Ms Tran's disability makes it difficult for her to accept decisions or directions with which she disagrees. For example, she has been emailing this court on an almost daily basis asking for this endorsement, even though she has been told to stop doing this. She has purported to deliver a Notice of Intention to Act in person, removing the Public Guardian and Trustee as her litigation guardian in the Toronto proceedings, when she is not entitled to do that. She has started or tried to start numerous collateral attacks on the decision to appoint the Public Guardian and Trustee against her wishes. Ms Tran is ordered not to take any further steps respecting this issue, in any court, other than the motion for leave to appeal that decision in this court, without obtaining prior permission by written direction of this court.
(9) Ms Tran's difficulty with decisions with which she disagrees extends to the most basic case management issues in this court. She emailed the court almost daily in respect to this court's refusal to stay the proceedings in Oshawa summarily, on the basis that she feels that the order in Oshawa is a final order (which it is not), and that a stay automatically flows from an appeal from a final order (it does not). Ms Tran is subject to case management in this court, and this court will not permit her to waste court resources and the time and resources of adverse parties through meritless challenges to procedural directions. Her immediate task is to prepare her materials for the motions for leave to appeal. The faster she can complete these tasks, the faster her request for appeals will move forward.
(10) The Public Guardian and Trustee notes that Ms Tran may not take steps in the Toronto proceedings - other than seeking leave to appeal its appointment as her litigation guardian - because the Public Guardian and Trustee is the only authorized person to conduct those proceedings on behalf of Ms Tran. This observation is true. The Public Guardian and Trustee notes that it is appointed for a specific piece of litigation (in this case the Toronto action), and that the appointment does not apply generally to all litigation in which Ms Tran is involved.
Ms Tran is asked to advise the court by email by May 21, 2021 of when she thinks she will complete her motion materials for the motions for leave to appeal.
[39] I make several observations about the case management teleconference. First, although a Cantonese interpreter was arranged for the conference by the court, it was not necessary. Ms Tran was able to and did communicate with the court in English and clearly was able to understand what the court and others said to her in English. It was Ms Tran’s choice to forego use of a translator. Second, Ms Tran was difficult to deal with. She had difficulty accepting directions with which she did not agree and difficulty accepting the court’s directions during the conference. I was persuaded that she was trying, and that her difficulties with these aspects of a court proceeding may have reflected her mental health challenges. On the other hand, I found her intelligent and she understood the legal concepts discussed (although at times she had difficulty with legal conclusions that ran contrary to her views). By the end of the conference I had persuaded her, I thought, that the motions for leave to appeal two of the decisions below could proceed (the appointment of the PGT and the refusal of an amicus curiae) but that she would have to follow the court’s directions in order to proceed. Third, Ms Tran was “stuck” on what she perceived to be her rights to have legal representation, and in particular, the application of the applicable principles in the proceedings in this court. These principles had been explained to her previously in the court’s directions, and I explained them to her again during the conference. Amicus curiae are not appointed in this court in the same way and for the same purpose as an amicus curiae might be appointed in criminal proceedings. An amicus curiae is appointed, not to help a particular party, but to help the court. These are civil proceedings. Parties are entitled to be represented by counsel, but not for free. As was clear from Ms Tran’s many communications with the court in writing, and at the conference, she did not accept this proposition. I note that in her criminal fraud trial, after she discharged her lawyer, an amicus curiae was appointed by the trial judge, and that amicus curiae did perform services that would have been helpful to Ms Tran in her defence of the charges against her. It appears that Ms Tran’s experience during the criminal trial may have coloured her expectations in these civil proceedings, and I was not able to explain to her to the point that she accepted the explanation that amicus curiae is not available in the same way and for the same purposes in civil proceedings.
[40] The court received two emails from Ms Tran following the case management teleconference, but it is not clear whether she had seen the court’s case management endorsement at the time she sent the first of those emails. Court staff’s first response was to direct Ms Tran to the court’s case management endorsement. In the court’s second response, it stated as follows:
Justice Corbett directs me to direct you as follows:
(1) It is improper for you to send an email directly to Justice Corbett. Do not do it again.
(2) Justice Corbett's endorsement from the case management teleconference was transmitted to you yesterday at around noon. It contains directions for you to follow. Follow them.
(3) Do not send any further emails to this court until you have followed Justice Corbett's directions sent to you yesterday. This office will not respond to further emails from you until you have done what you have been directed to do.
[41] On May 17, 2021, the court received a further email from Ms Tran, seeking to bring a motion for leave to appeal from a further decision of Speyer J., dated May 3, 2021. It is not possible to determine from Ms Tran’s notice of motion for leave to appeal the nature of the order made by Speyer J. on May 3, 2021. Court staff asked Ms Tran to provide the court with a copy of the decision of Speyer J., but Ms Tran refused to do so.
[42] By email to Ms Tran dated May 17, 2021, staff advised as follows:
Justice Corbett directs me to advise you as follows:
Ms Tran is directed to provide the court with a copy of the endorsement of Justice Speyer forthwith.
[43] Ms Tran responded to this request as follows on May 17, 2021:
This issue was replied to you on a previous email and I don’t need reiterated again.
[44] I directed staff not to respond to Ms Tran’s refusal to provide a copy of the endorsement of Speyer J.
[45] By letter from counsel for the plaintiff in DCC 86 v. Tran dated May 21, 2021, counsel advised the court of the following:
(a) Ms Tran has a third piece of litigation against Intact Insurance Co., commenced in 2017.
(b) Counsel acts for the defendant in both the DCC 86 and the Intact litigation.
(c) The defendants in the Intact litigation and the DCC 86 litigation do not oppose appointment of the PGT to represent Tran in both pieces of litigation. They also do not oppose appointment of amicus curiae in those two actions. They do oppose a stay of those actions since both have been delayed considerably already.
(d) Ms Tran’s mental health has been considered recently by the Court of Appeal in her unsuccessful appeal of fraud convictions in that court: R. v. Tran, 2019 ONCA 919, and the references in that case to the manner in which that issue was handled by the trial judge.
[46] In response to a request from the court, counsel provided this court with a copy of the decision of Speyer J. dated May 3, 2021 (2021 ONSC 3218). In it, Speyer J. discharged a Certificate of Pending Litigation registered against title to a commercial condominium by Ms Tran. Speyer J. so ordered because Ms Tran is the registered owner of the condominium. She claims no unregistered interest in the condominium, and on the basis of title documents is the only registered owner of the condominium. In the balance of her reasons, Speyer J. dismissed a motion by the defendant for a declaration.
[47] By email to the court dated August 31, 2021, Ms Tran initiated another motion for leave to appeal a decision of Speyer J. dated August 27, 2021, this time an order dismissing a motion by Ms Tran to halt a sale of her condominium unit by power of sale by the condominium corporation. This motion for leave to appeal has been assigned DC File No. 717/21.
[48] This time, Ms Tran has attached a copy of the impugned decision of Speyer J. (2021 ONSC 5789). Salient portions of the endorsement state as follows:
Jenny Tran, the plaintiff in an action against [DCC 86]… has made an urgent motion that was heard on August 24, 2021.
The motion was heard as an urgent motion because DCC 86 has entered into an agreement of purchase and sale with a third party to sell a commercial condominium owned by Ms Tran and that sale is to close on August 30, 2021. DCC 86 has exercised… its power of sale to enforce its lien registered against title to the condominium.
Ms Tran seeks the following relief: … [a]n injunction or certificate of pending litigation to stay the sale of her commercial condominium unit…. [17 other grounds of relief are also listed].
An order abridging time to serve and file her notice of motion, and to file a lengthy factum is granted. Ms Tran filed a 78-page factum.
The parties need to know my decision, so that they can govern their affairs on August 30, 2021. The motion is dismissed. My reasons will follow.
[49] No information has been provided as to whether the sale of the commercial condominium closed as scheduled on August 30, 2021, and, if it did not, when it is now scheduled to close. Thus this court cannot yet assess whether there is urgency to Ms Tran’s most recent motion for leave to appeal.
Current Status and Directions
(a) Orders Appointing the PGT and Denying Appointment of Amicus Curiae
[50] Following the case management teleconference, the court gave Ms Tran clear directions that she should prepare and serve her motion materials for her two motions for leave to appeal the order of Dunphy J. appointing the PGT and the order of Speyer J. refusing to appoint amicus curiae. Ms Tran was not given a firm deadline to serve these materials but was directed to advise the court by May 21, 2021 of the date by which she would serve these materials.
[51] Ms Tran did not follow the court’s direction to provide a deadline by May 21, 2021, and still has not done so. She has not served and uploaded the motion materials for the two motions for leave to appeal.
[52] The Registrar is directed to give Ms Tran notice that the court is considering dismissing her motions for leave to appeal as abandoned for failure to comply with court directions and timetables.
(b) Appeal of the Order of Speyer J. dated March 30, 2021 (No DC File Number)
[53] The order of Speyer J. dated March 30, 2021 dismissed Ms Tran’s motion to vary or set aside Speyer J.’s earlier order refusing to appoint amicus curiae for Ms Tran. It is, on its face, an interlocutory order and may not be appealed to this court without first obtaining leave to appeal.
[54] The Registrar is directed to give Ms Tran notice that the court is considering dismissing her motion for leave to appeal the March 30, 2021 order pursuant to R.2.1.01 on the basis that leave to appeal is required and has not been obtained.
(c) Motion for Leave to Appeal the Order of Speyer J. dated May 3, 2021 (No DC File Number)
[55] The Registrar is directed to give Ms Tran notice that the court is considering dismissing her motion for leave to appeal the order of Speyer J. dated May 3, 2021 on the basis (a) that Ms Tran has failed to comply with the court’s direction to provide the court with a copy of the decision from which she seeks to appeal, thus demonstrating, in the context of Ms Tran’s response and her conduct throughout in this court, that Ms Tran is ungovernable; (b) the conclusion of Speyer J. that a holder of a registered interest in land may not obtain a certificate of pending litigation claiming the same interest in the land; (c) there is no basis upon which Ms Tran could seek leave to appeal any other aspect of Justice Speyer’s order; (d) the Notice of Motion is so lacking in particularity that it is not possible to identify a potentially meritorious ground of appeal; and (e) thus in all the circumstances the motion for leave to appeal is frivolous, vexatious and an abuse of process.
[56] Ms Tran is also to respond to a concern that her conduct in this court and in the litigation which is the subject matter of these proceedings has been such that she should be precluded from commencing or continuing any proceedings in the Superior Court of Justice (including the Small Claims Court) without prior leave from a Superior Court Justice.
(c) Motion for Leave to Appeal the Order of Speyer J. dated August 27, 2021
[57] The brief reasons of Speyer J. state that the closing of the sale of the condominium was scheduled for August 30, 2021. If the sale closed, then any appeal of the refusal of an order preventing the sale would be moot. The court directs the parties to advise the court of the status of the sale of the property forthwith, and to provide this court with a copy of Justice Speyer’s reasons once they are released. The court will then give further directions respecting Ms Tran’s motion for leave to appeal the decision of August 27, 2021. This direction will be repeated in the covering email sent to the parties to highlight the need for a prompt response from any party with knowledge to this query.
Deadline
[58] In light of the scope of the issues raised with Ms Tran in this endorsement, she shall have thirty days to respond to the court’s notices. Ms Tran shall be limited to one response to each of the three notices sent to her, and each of those three responses will be limited to 15 pages in length, including any attachments.
[59] Responding parties are not to submit substantive responses to Ms Tran’s R.2.1.01 submissions unless this court subsequently directs otherwise.
Inquiries From Counsel for Other Parties
[60] Counsel has written the court requesting a further case management teleconference. The court will not schedule such a conference at present. Once the court has Ms Tran’s response to the court’s notices, the court will issue a further endorsement. If a case management teleconference is warranted after that happens, counsel may make a further request.
___________________________ D.L. Corbett J.
Released: September 3, 2021