Court File and Parties
CITATION: Zhou v. Yao, 2024 ONSC 2571
DIVISIONAL COURT FILE NO.: DC-23-1366 (Oshawa)
DATE: 20240508
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: CONNIE ZHOU, Moving Party AND: JUN YAO, Responding Party
BEFORE: D.L. Corbett, McGee, Ryan Bell JJ.
COUNSEL: Connie Zhou, Unrepresented Moving Party Jun Yao, Unrepresented Responding Party
HEARD: In Writing
Endorsement
The court:
[1] This appeal was scheduled for hearing on January 26, 2024. The Appellant, Connie Zhou, did not appear. The court dismissed the appeal for oral reasons. Ms Zhou contacted the court by email to explain that she had mis-diarized the appeal date and asked that the appeal be rescheduled. The court then gave directions for Ms Zhou to move to set aside the appeal decision. The court’s oral reasons and directions respecting the motion to set aside the appeal decision are set out in the court’s written endorsement released February 7, 2024: 2024 ONSC 821.
[2] In her motion materials, Ms Zhou states that she made an error in noting the appeal date, that the error was inadvertent, and that she always intended to pursue her appeal. She states that the motion judge failed to decide several issues raised by her on the motion, and then refused to rectify this failure when asked to do so on her subsequent 14B motion.
[3] In response, Mr Yao notes the history of delays by Ms Zhou, including previous adjournment requests, one of which involved Ms Zhou providing a false explanation for her request for an adjournment. Mr Yao also notes that Ms Zhou does not address the merits of the appeal, aside from a bald assertion that the motion judge neglected dealing with some of her issues.
[4] Ms Zhou provided reply materials purporting to raise constitutional issues and making arguments about the consideration that she should be given as a self-represented party.
[5] We dismiss the request to reschedule the appeal hearing for the following reasons.
[6] First, we do not accept that Ms Zhou mis-diarized the appeal and that her failure to attend the appeal was inadvertent. Her explanation is supported only by her bald claim to have made a mistake. Anyone can make a mistake, of course, and the court strives to dispose of matters on the merits, rather than for procedural errors. However, Ms Zhou’s past conduct is such that we are not prepared to credit her unsupported claim that she made a mistake about the date. The date was scheduled by court staff in October 2023, and Ms Zhou confirmed the date back to the court by email. The date of the hearing was included in case information in CaseLines, available to the parties since the date was set. Ms Zhou’s claim that she made a diarizing error is unworthy of credit in light of her past dishonesty to the court in seeking an adjournment. Thus, there is no evidence before the court that we accept to explain Ms Zhou’s failure to attend the hearing, and clear evidence that the appeal date was set months in advance and agreed to by the parties.
[7] Second, there is no apparent merit to the appeal. As explained by this court in its reasons on January 26th, the court dismissed the appeal both as abandoned and on the merits. The court explained its assessment of the merits in paras. 6 – 9, and in particular concluded that the motion judge did address all the issues before him, a finding made by the motion judge in his 14B motion decision. Ms Zhou failed to address this analysis in her motion to set aside the appeal decision, and instead simply repeated her assertion that her issues were not addressed.
[8] Third, Ms Zhou was technically out of time to appeal the motion judge’s original decision. Deadlines to appeal are not extended by a party bringing a 14B motion. This court may exercise its discretion to forgive delay on the basis of a party pursuing an alternative route for redress – especially if there is no prejudice in the delay. Had this been the sole problem, we would have been inclined to excuse it. However, in this case it is part of a pattern of misadventure and delay for which the moving party is responsible.
[9] Fourth, judicial resources are scarce. In the Divisional Court, when a party defaults such that a court date before a panel is lost, the time reserved for the matter is lost to the court and thus is lost to the public. Panel hearings are usually scheduled months in advance, and the court does not grant late adjournments as a matter of course. This does not mean that inadvertent errors will never be excused. It does mean that where the court is not convinced that an error is inadvertent, or where the court is persuaded that there is a history of wasted court resources by a party, the court will be less inclined to reschedule a hearing.
[10] Fifth, Ms Zhou is not entitled to a rescheduled appeal just because she is self-represented, and this case presents no constitutional issues. The circumstances of this motion have little to do with Ms Zhou’s status as a self-represented party. Indeed, in the court’s experience, it is far more likely that busy counsel, with multiple court obligations, may make an innocent scheduling error than is a self-represented party for whom a lawsuit is a singular experience, and for whom the matters in issue are of especial importance personally. The court is, of course, required to assist self-represented parties to access the justice system – but that does not include granting adjournments and rescheduling hearings for no good reason.
[11] Finally, we find that the issues raised by Ms Zhou in the appeal are relatively minor, both in the overall context of the case, and in terms of their monetary value. On a proportional basis, we conclude that, given Ms Zhou’s failure to attend the scheduled appeal hearing, it is not unfair to Ms Zhou that the merits of her appeal have been determined on the basis of her written materials and that the parties and the justice system should not be put to extra expense and delay to reschedule the oral hearing of this appeal.
[12] The motion is dismissed, with costs payable by Ms Zhou to Mr Yao fixed at $500, inclusive, payable within thirty days. These costs are in addition to the costs of the appeal and to the costs awarded below by the motion judge.
“D.L. Corbett J.”
“McGee J.”
“Ryan Bell J.”
Date of Release: May 8, 2024