Citation and Court Information
CITATION: Han v. Deng, 2024 ONSC 7395
DIVISIONAL COURT FILE NO.: 126/24
DATE: 20240828
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DANJING HAN
Moving Party
– and –
PING DENG
Responding Party
– and –
CANAMEX FIRE PROTECTION INTERNATIONAL INC.
Not appearing on Motion
COUNSEL:
Thomas Benstead, for the Moving Party
Shaun Greaves, for the Responding Party
HEARD at Toronto (by videoconference): August 22, 2024
Reasons for Decision
MATHESON, J. (Orally):
[1] There are two motions before this Court.
[2] I have granted the motion to appoint a litigation guardian and the title of the proceedings for this matter is therefore amended to describe the Moving Party as follows: Danjing Han by her Litigation Guardian, Baoer Chen. My reasons for decision on this first motion are as follows.
[3] The motion to appointment a litigation guardian came before me in writing and, by directions dated May 6, 2024, I identified certain outstanding issues and requirements for such an order. At that time, I adjourned the motion to permit the requirements of r. 7 of the Rules of Civil Procedure to be met, including the appointment of counsel. Since then, counsel has been appointed, supplementary evidence has been filed, and I am satisfied that the requirements have been met. Mr. Baoer Chen, the common law spouse of the Moving Party, is appointed as the litigation guardian in connection with this court proceeding.
[4] The second motion seeks an extension of time to appeal the decision of Koehnen J. dated May 18, 2023, which was followed by a costs decision dated July 7, 2023, both of which were included in the formal order dated July 11, 2023. That motion is granted on terms. The terms and my reasons for decision are as follows.
[5] The Moving Party served a notice of appeal on May 22, 2023, but did so in the Court of Appeal, in error. The Moving Party was then self-represented and continued to be self-represented until about a week ago. The jurisdictional issue was addressed by the Court of Appeal in its decision dated December 18, 2023. This motion to extend the time to appeal in the Divisional Court was brought in this Court on January 16, 2024.
[6] There is no issue about the test for an extension of time to appeal. Very briefly, I must consider the overall justice of the case, having regard for the evidence about the Moving Party’s intention to appeal, the length of and explanation for the delay, any prejudice to the Responding Party and the merits of the proposed appeal.
[7] Although there was some delay in this case, it is largely explained by the incorrect choice of proceeding in the Court of Appeal. There was also a delay of a few weeks before an amended notice of appeal was delivered in that Court, that comprehensively challenged the orders of Justice Koehnen. The Responding Party also relies on delays in relation to the certificate regarding the evidence and the need to confirm that the transcripts from the trial before Koehnen J. had been ordered. The Responding Party further submits that while there is evidence of an intention to appeal at the beginning, that intention did not continue. The Responding Party again relies mainly on the issue of the trial transcripts in this regard. The Responding Party accepts that it has not suffered prejudice other than delay and costs but submits that prejudice is only one relevant factor.
[8] The Responding Party further relies on the merits of the proposed appeal. The Responding Party notes that the notice of appeal and the amended notice of appeal in the Court of Appeal, lack any specific grounds for appeal and that continued to be the case in the factum on this motion filed by the self-represented Moving Party.
[9] Newly appointed counsel to the Moving Party has made an effort in court today to assist the court in understanding that there are specific grounds for the proposed appeal. I recognize that the Responding Party’s counsel has had no advance notice of those proposed grounds, although he has done his best to respond to them today. I therefore have factored in the lack of advance notice. However, I conclude that the following principle applies in this case as set out in paragraph 20 of the decision of the Court of Appeal in Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208: “When assessing the merits of an appeal, [the court] is to determine whether the appeal has so little merit that the court could reasonably deny the important right of appeal. Even where it is difficult to see the merits of a proposed appeal, a party should not be deprived of the right to appeal where there is no real prejudice to the other side.” [citations omitted].
[10] Having considered all of the relevant factors and most importantly the overall justice of the case, I conclude that the extension of time should be granted on terms. Those terms are as follows:
The notice of appeal shall be delivered within 30 days of today and include specific grounds of appeal. I am not limiting the Appellant to grounds that are the same as expressed today, but they shall be specific grounds of appeal.
The related certificate regarding the evidence must also be delivered during that time period, as must be a certificate that the transcripts of the trial have been ordered.
Once the trial transcripts are received, the appeal timetable for court materials shall be no longer than the times set out in the Rules of Civil Procedure, subject to any timetables that may be ordered by a judge in the case management process.
Costs shall be fixed at $1,500 all-inclusive and shall be paid in the cause of the appeal.
My decision on these motions shall be appended to the appellant’s Intake Form when the notice of appeal is submitted to this Court in accordance with this Court’s Consolidated Practice Direction.
Matheson J.
Date of Oral decision: August 22, 2024
Date of Release: August 28, 2024