Court File and Parties

CITATION: Tan v. Yu, 2024 ONSC 5271

OSHAWA DIVISIONAL COURT FILE NOS.: DC-21-1285 and DC-24-1516-00ML

DATE: 20240924

SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: DC-21-1285

RE: GENG TAN, Applicant/Respondent in Appeal

AND:

YING YU, Respondent/Appellant

COURT FILE NO.: DC-24-1516-00ML

AND RE: GENG TAN, Applicant/Respondent in Appeal

AND:

YING YU, Respondent/Appellant

BEFORE: The Hon. Mr. Justice R.E. Charney

COUNSEL: Ying Yu, Self-Represented

Heng (Pandora) Du, Counsel for the Applicant/Respondent in Appeal, Geng Tan

HEARD: In Writing

Endorsement

[1] On August 20, 2024, the Appellant, Ying Yu, brought a motion for a stay of the Registrar’s Order dismissing her appeal of the Order of Cameron J. dated November 30, 2021.

[2] In her November 30, 2021, decision, Cameron J. granted the Applicant’s, Geng Tan’s, motion for summary judgment and issued a declaration pursuant to s. 13 of the Childrens Law Reform Act, R.S.O. 1990, c. C.12, that the Applicant is not the parent of Ms. Yu’s daughter.

[3] The Appellant filed two Notices of Appeal on December 30, 2021. The first was filed by her lawyer, Segal Law Professional Corporation on December 30, 2021. This Notice of Appeal was assigned the Court File # DC-21-1285.

[4] The Appellant contends that she was not certain whether Ms. Segal would file a Notice of Appeal in time, so she also filed a Notice of Appeal on December 30, 2021, with her personal contact information on it.

[5] The Appellant also states that she signed a termination agreement with Ms. Segal in January 2022.

[6] On January 11, 2024, the Appellant filed in the Divisional Court a document incorrectly entitled “Notice of Appeal”, which sought an Order for temporary sole custody of her daughter, explaining that even though she was the sole parent of her daughter, she was not able to obtain a visa to visit China without a court order or the father’s consent.

[7] Because this document was incorrectly titled “Notice of Appeal”, the file was given a new Court File # DC-24-1516-00ML, even though it was not an appeal and should not have been filed in the Divisional Court.

[8] On February 12, 2024, the Appellant filed a document entitled “Notice of Motion – The Additional Grounds for the Motion”. This was the motion to extend the time for perfecting the appeal that was commenced in December, 2021 under Court File #DC-21-1285.

[9] On May 14, 2024, the Registrar of the Divisional Court wrote to the Appellant’s lawyer of record (Marcy Segal) to advise that that the appeal would be dismissed for delay for failure to perfect the appeal within one year after filing the notice of appeal unless she took steps to perfect her appeal within 10 days.

[10] The Notice is somewhat confusing, because it states that the appeal will be dismissed on January 22, 2023, even though the Notice is dated May 14, 2024, and gives the Appellant 10 days from the date of the notice to perfect the appeal. The reason for this incongruity is that all administrative dismissals were temporarily suspended during COVID, and, pursuant to the Court’s directive, local courts resumed re-issuing and serving notices of administrative dismissal on May 13, 2024.

[11] On May 24, 2024, the Registrar of the Divisional Court wrote to the Appellant’s lawyer of record to advise that an Order of the Registrar dismissing her appeal for delay had been issued.

[12] Both of these Notices were sent to Ms. Segal, who was still the Appellant’s lawyer of record. At no time did Ms. Segal advise the Court that she was no longer acting for the Appellant. Nor did the Appellant file a Notice of Intention to Act in Person. The Appellant contends that she had no knowledge of the Registrar’s Notices of May 14 and May 24, 2024, and she was unaware that her appeal had already been dismissed when she argued her motion on July 18, 2024 (see below).

[13] The Appellant’s motions for temporary sole custody and an extension of time to perfect her appeal were heard by Leibovich J. on July 4, 2024. Leibovich J. adjourned the motion for an extension of time to perfect the to July 18, 2024 to ensure that the Respondent in Appeal (who did not appear on the motion) had notice of the motion. He also directed that the Appellant’s motion for sole custody should be filed in the Family Court, since it was not a motion that could be brought in the Divisional Court.

[14] On July 18, 2024, the motion for an extension of time to perfect the appeal was heard by Di Luca J. His Endorsement dated July 23, 2024, states as follows:

In December 2021, Ms. Yu commenced an appeal of the decision of Cameron J. However, on May 10, 2024, Ms. Yu was put on Notice that her appeal would be dismissed unless she took steps to perfect the appeal within 10 days. On May 24, 2024, the appeal was dismissed with costs of $750 because Ms. Yu failed to perfect the appeal within the required timeline.

At this stage, Ms. Yu is essentially seeking to commence a fresh appeal of the decision of Cameron J. The difficulty with this approach is that the appeal of Cameron J.’s decision has already been dismissed. A motion to extend time to perfect the appeal is therefore moot.

In any event, Ms. Yu has filed no affidavit evidence providing a sufficient explanation relating to the delay in perfecting the appeal, even assuming the issue could be considered.

The motion is dismissed.

[15] The Appellant’s August 20, 2024 motion seeks to reargue the issue that was dealt with by Di Luca J. in his July 18, 2024 Endorsement. Her request for an extension of time to perfect the appeal was dismissed on that date. Justice Di Luca was aware of the May 24, 2024 dismissal order, and was not persuaded that the Appellant had provided a sufficient explanation for the very lengthy delay in this case.

[16] The Appellant argues that the motion before Di Luca J. was unfair because she did not know that her appeal had been dismissed for delay on May 24, 2024, and she did not know that she had to file an affidavit to explain the delay.

[17] The Respondent argues that the Appellant’s motion for an extension of time to perfect the appeal has already been heard and dismissed by the Court, and she cannot bring the same motion again and ask for a different result.

Analysis

[18] While the Respondent is technically correct – an unsuccessful party cannot bring the same motion again and ask for a “do-over” - there are unique circumstances that merit reconsideration of the Appellant’s motion. In particular, there seems to have been some miscommunication between the Registrar’s office and the Appellant because the Registrar’s office was never informed that the Appellant was now self-represented. Thus, she was not aware of the Registrar’s Notices of May 14 and May 24, 2024 when the motion was argued before Di Luca J. on July 18, 2024.

[19] Accordingly, I will treat the Appellant’s motion as a motion under Rule 37.14(1)(c) to set aside the order of the Registrar and seek an extension of time to perfect her appeal.

[20] That said, most appeals are perfected within a few months of the decision under appeal: Rule 61.09(1). In the present case, the Notice of Appeal was served 2.5 years before it was dismissed for delay.

[21] The Appellant has provided several explanations for the very lengthy delay in perfecting the appeal. These related to her difficulty in obtaining a new lawyer, her own health related issues and health related issues concerning her parents and daughter. She was not able to retain a new lawyer, and has had to prepare the appeal material on her own.

[22] Her notice of motion states:

The appellant has diligently undertaken extensive efforts in collecting fresh evidence, preparing additional information, and engaging in comprehensive communication with witnesses, including key individuals.

In an endeavor to foster a deeper understanding, the appellant has meticulously crafted over 300 pages of factum, explaining, categorizing and translating approximately 300 crucial pieces of evidence, and generating hundreds of new documents beyond those presented in court. This compilation serves to address the intricacies of political and human nature, providing the court with a comprehensive understanding of the case. These efforts form a vital component of the grounds for the notice of motion.

[23] This Court can extend time to appeal under Rule 3.02 of the Rules of Civil Procedure when it considers it just to do so. The onus is on the moving party to establish the grounds for an extension: Teitler v. Dale, 2021 ONCA 577, at para. 7. The governing principle is whether the justice of the case requires that an extension be given: Canadian Western Trust Co. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.

[24] On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:

(a) Whether the moving party formed an intention to appeal within the relevant period;

(b) The length of the delay and the explanation for it;

(c) The prejudice to the responding party; and

(d) The merits of the appeal.

See: Van de Kerckhove v. Wagner, 2022 ONSC 5780, at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554, at para 2; MacMillan v. Klug, 2024 ONSC 1125, at para. 7.

[25] In the present case, the Appellant clearly formed an intention to appeal within the relevant period. While she has several explanations for her delay, the length of delay – over two years – is very long and prejudicial to the responding party.

[26] The presence or absence of merits of an appeal may be dispositive on a motion to extend time: MacMillan, at para. 12.

[27] In the present case, it is clear that the Appellant is seeking a new trial with an enormous quantity of fresh evidence. None of this fresh evidence would be admissible in the Divisional Court unless the Appellant met the very strict test for the admission of fresh evidence in a civil appeal set out by the Supreme Court of Canada in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. A party seeking to adduce fresh evidence in a civil appeal must show that:

a. The proposed evidence is credible, in that it is reasonably capable of belief;

b. The proposed evidence is relevant to a decisive or potentially decisive issue in the trial;

c. The proposed evidence could not have been, through due diligence, adduced at trial; and,

d. If admitted and believed, the proposed evidence could have been expected to have affected the result at trial.

See also: Schram v. Thompson, 2022 ONSC 6922, at para. 19.

[28] An appeal to the Divisional Court is not a trial de novo hearing on the merits. It is not an opportunity to collect fresh evidence that could have been adduced at trial. Each party in a summary judgment motion “must put its best foot forward”, and “the court is entitled to assume that the record contains all the evidence the parties would present at trial”: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5.

[29] In the present case, it is apparent that the Appellant is attempting to turn the appeal into a trial de novo. She does not identify any legal question to be addressed by the Divisional Court on appeal. While she refers to “300 crucial pieces of evidence, and generating hundreds of new documents beyond those presented in court”, she does not identify a single piece of evidence that could not have been, through due diligence, adduced when the summary judgment motion was heard in 2021.

Conclusion

[30] Given the very long delay, the prejudice to the responding party occasioned by that delay, and the lack of merit in the Appellant’s proposed appeal, I conclude that the Appellant’s motion for an extension of time to perfect the appeal must be dismissed.

Justice R.E. Charney

Date: September 24, 2024