Howie, Sacks & Henry LLP et al. v. Wei Chen, 2015 ONSC 2501

CITATION: Howie, Sacks & Henry LLP et al. v. Wei Chen, 2015 ONSC 2501

COURT FILE NO.: CV-15-523454

DATE: 20150421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HOWIE, SACKS & HENRY LLP and SINGER KWINTER

Applicants

– and –

WEI CHEN

Respondent

David Levy for the Applicant Howie, Sacks & Henry LLP,

Alfred Kwinter and Veronica Marson for the Applicant Singer Kwinter

Wei Chen not appearing

HEARD: April 18, 2015

REASONS

DOW, J.

1The applicants are requesting an order declaring Wei Chen (who has also used the name Wayner Wei Chan – see Superior Court of Justice Toronto Statement of Claim CV-13-490948) a vexatious litigant. The respondent did not attend but had Ms. Wendy Shaw, an acquaintance, not completely fluent in English, attend to deliver an envelope addressed to the Superior Court of Justice bearing this proceeding file number and requesting an adjournment due to illness. The envelope contains a sheet identifying three prescriptions from Dr. Ray Tsang, a printed copy of an email from May 7, 2014 to Mr. David Levy of Howie Sacks & Henry LLP and an April 14, 2015 printout of an email to the civil motions office of the Superior Court advising he was unable to attend this application due to illness.

2In the circumstances, being the nature of the application, the facts and history of the matter summarized below, the upcoming court hearings on April 23, 2015 involving Howie Sacks & Henry LLP (see Exhibit K to the affidavit of Kaitlyn V. MacDonell sworn April 6, 2015) and an attendance May 15, 2015, presumably in the Court of Appeal involving Alfred Kwinter and his firm, Singer Kwinter arising from court file CV-13-490948 (see Exhibit FF to the affidavit of Marie Hornak sworn March 30, 2015), I declined the request for an adjournment.

3I would summarize the situation as follows.

4Wei Chen was involved in a motor vehicle accident on May 24, 2001 resulting in injuries and damages. A claim was issued against his own insurer for additional accident benefits to be paid as well as an action against those responsible. After retaining at least two other firms and apparently proceeding with examinations for discovery, Wei Chen retained Howie Sacks & Henry LLP to handle both claims. The accident benefit claim was contentious, with the insurer alleging Wei Chen fabricated a job offer in order to qualify for income replacement benefits. After proceeding with an arbitration before the Financial Services Commission which included rulings excluding documents, settlement discussions proceeded and a settlement was achieved in accordance with Wei Chen’s instructions in August, 2007 for an agreed upon payment of an additional $330,000, all inclusive, to Wei Chen.

5In April 2012, almost four years later, Wei Chen disputed the quality of legal services performed by Howie Sacks & Henry LLP and filed a complaint about the legal services he received with the Law Society of Upper Canada. During that complaint, Wei Chen, for the first time, indicated he had an audio recording, which has never been produced although he was ordered to do so. Further, following dismissal of the complaint by Rob Thibodeau, Complaints Resolution Counsel for the Law Society of Upper Canada, Wei Chen complained about Rob Thibodeau’s conduct, seeking a review which proceeded and was dismissed.

6Wei Chen also began proceedings to assess the account of Howie Sacks & Henry LLP for the legal services they performed with regard to the tort claim in or about January 11, 2012. He then attempted to add the legal work done on the accident benefit claim when the matter was reviewed before an Assessment Officer November 30, 2012.

7The issue of whether to add assessment of the accident benefit legal account was heard on February 4, 2014 by Justice Matheson and adjourned to April 11, 2014 with reference made to the audio recordings and with Wei Chen required to have such recordings transcribed and produced.

8In April 11, 2014, Justice O’Marra allowed the accident benefit legal account to be added. However, that order does not appear to have ever been drafted, signed or entered.

9Wei Chen booked the assessment of costs for January 22, 2015 but did not apparently serve same on Howie Sacks & Henry LLP who were contacted by the Assessment Officer upon the commencement of the hearing on that date. Kaitlyn MacDonell, an associate at the firm, attended before the Assessment Officer requesting an adjournment which Wei Chen contested. The adjournment was granted, peremptory on Howie Sacks & Henry LLP to February 8, 2016. A five-day hearing was scheduled. Wei Chen became visibly angry which may have required the presence of law enforcement. He stated that he intended to report Assessment Officer Ittleman to the Judicial Council.

10Wei Chen has appealed the order adjourning the matter to February 8, 2016 and has served a motion returnable April 23, 2015 in court file CV-12-00443810.

11As indicated, Wei Chen switched counsel again, retaining Salvatore Shaw of McLeish Orlando LLP before retaining Alfred Kwinter of Singer Kwinter on or about March 5, 2010 which was confirmed in a letter from Mr. Kwinter to Wei Chen March 23, 2010. That letter also detailed the terms of a contingency agreement. Of note is a Statement of Claim issued by Wei Chen against Dale Orlando, Salvatore Shaw and McLeish Orlando LLP for the negligent provision of legal services between November 23, 2007 and March 2010 (see Exhibit II to the affidavit of Marie Hornak).

12The tort action (court file number 03-CV-023883) settled at a pre-trial conference for $450,000 of which Wei Chen was to receive $340,000 in accordance with signed Instructions to Counsel dated November 30, 2011 (Exhibit C to the affidavit of Marie Hornak).

13As part of achieving a settlement satisfactory to Wei Chen, Alfred Kwinter agreed to reduce his fees from that available through the contingency agreement (which would have been about $141,000) to $70,000 for fees and $40,000 for disbursements of which $25,534.53 was being paid to the previous firm that had acted for Wei Chen, McLeish Orlando LLP (that firm had agreed to waive any claim for legal fees). It should also be noted that prior to this settlement, the highest offer made to Wei Chen was $175,000 plus partial indemnity costs.

14Importantly, Wei Chen emailed his awareness of the settlement and his agreement to receive the $340,000 in an email to Alfred Kwinter December 4, 2011 (Exhibit D to the affidavit of Marie Hornak).

15Further, Wei Chen attended at Alfred Kwinter’s office to receive the funds and execute the necessary full and final release (Exhibit F to the affidavit of Marie Hornak).

16On January 11, 2012 or just over one month later, Wei Chen attended at the Superior Court to request assessment of Singer Kwinter’s account, which included a sworn or affirmed request to waive the usual filing fee on the basis of impecuniosity (Exhibit H to the affidavit of Marie Hornak).

17On June 3 and 4, 2013, Wei Chen, represented by counsel, assessed the account of Singer Kwinter introducing material not previously produced. Assessment Officer R. Ittleman allowed the entirety of Singer Kwinter’s account, noting Wei Chen’s evidence was “beyond reasonable belief” and not accepting other portions of his evidence. This endorsement also awarded costs payable by Wei Chen to Singer Kwinter in the amount of $6,500.

18Wei Chen opposed the confirmation of the Certificate of Assessment and served a motion dated June 18, 2013 which was heard October 25, 2013 (reasons dated October 28, 2013 by Justice Frank). Justice Frank refused Wei Chen’s request to admit or listen to the audio tapes. Wei Chen’s application challenging the assessment was dismissed. Costs were awarded in the amount of $1,819.50 payable by Wei Chen to Singer Kwinter within 30 days (Exhibit L to the affidavit of Marie Hornak).

19Wei Chen appealed the decision of Justice Frank dated November 30, 2013 but failed to perfect same. Singer Kwinter provided assistance in drafting the judgment necessary to have the appeal perfected. Wei Chen sought to extend the time for perfecting the appeal before Associate Chief Justice Hoy on March 27, 2014.

20The motion by Wei Chen was dismissed. Associate Chief Justice Hoy noted in her reasons Wei Chen “has endeavoured to mislead the Court on this motion”. Costs were awarded payable by Wei Chen to Singer Kwinter in the amount of $1,450 all inclusive (Exhibit U to the affidavit of Marie Hornak).

21Wei Chen attempted to appeal the decision of Associate Chief Justice Hoy and the April 2, 2014 dismissal of his appeal for delay. On December 19, 2014, Wei Chen served a motion returnable March 9, 2015 to set aside the dismissal of the appeal which proceeded before Justice Laskin. The endorsement includes Justice Laskin’s evaluation, “I see no merit in Wei Chen’s appeal” (Exhibit Z to the affidavit of Marie Hornak). Costs were awarded in the amount of $500 payable by Wei Chen to Singer Kwinter.

22On March 18, 2015 Wei Chen served a motion dated the previous day seeking to set aside the decision of Justice Laskin returnable on a date to be fixed by the Registrar (Exhibit AA to the affidavit of Marie Hornak).

23In addition to the above proceedings, on February 27, 2012, Wei Chen issued an action against Singer Kwinter for solicitor’s negligence (CV-12-447284) arising from legal services provided relating to the motor vehicle accident May 24, 2001 and the efforts of Singer Kwinter on Wei Chen’s behalf between March 2010 and November 2011. This claim was not served and was dismissed as abandoned October 23, 2012 (Exhibit BB to the affidavit of Marie Hornak).

24A second solicitor’s negligence action against Singer Kwinter arising from the same retainer and services performed March 2010 until November 2011 was issued October 17, 2013 (CV-13-490948) using the name Wayner Wei Chan. This action was defended and was the subject of a summary judgment motion heard May 14, 2014 by Justice Pollak. In her oral reasons, which have been transcribed, the action is dismissed with costs ordered payable by Wei Chen (or Wayner Wei Chan) to Singer Kwinter in the amount of $7,500.

25By Notice of Motion dated November 10, 2014, Wayner Wei Chan seeks to extend the time to permit filing of a Notice of Appeal from the decision of Justice Pollak. This motion is returnable, presumably before the Court of Appeal, May 15, 2015 (Exhibit FF to the affidavit of Marie Hornak).

Relevant Legal Principles

26Wei Chen, also known as Wayner Wei Chan, has now engaged in years of litigation that has repeatedly been the subject of consideration and rejection by Law Society officials, Superior Court Assessment Officers, multiple Superior Court Justices, the Associate Chief Justice and one of the most senior members of the Court of Appeal. He has been ordered to pay costs on five occasions totalling $17,769.50. His efforts and conduct have variously been described as having no merit and as deceitful.

27The Court’s power to declare an individual a vexatious litigant, as stated by Justice Kenneth L. Campbell in Dobson v. Green, 2012 ONSC 4432 (paragraphs 6-9) is extraordinary and must be exercised sparingly and with the greatest of care. However, vexatious litigants often share common characteristics, which includes advancing claims that are manifestly without merit, ignoring adverse rulings including where costs are ordered payable, and engaging in multiple, repetitive proceedings. These individuals are typically self-represented.

28The purpose of s. 140 of the Courts of Justice Act is to protect honest citizens, including those who serve the administration of justice as counsel, and maintain the overall integrity of the justice system against those who abuse the court process. It is important to note that an order made under s. 140 of the Courts of Justice Act does not prohibit an individual from proceeding with access to our Courts but places a burden on the litigant to establish, to the satisfaction of the Court, that there is a reasonable basis for the proposed proceedings.

29The factors which have emerged in establishing that an individual should be declared a vexatious litigant are as follows:

(a) one or more actions are brought to determine an issue which has already been determined by a Court of competent jurisdiction;

(b) actions are commenced that obviously will not succeed or that no reasonable person can reasonably expect will result in the relief sought;

(c) actions are brought for an improper purpose including harassment of other parties by multifarious proceedings, or brought for purposes other than the assertion of legitimate rights;

(d) the grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the person instituting the proceeding fails to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether the proceedings are vexatious;

(g) the litigant persists with unsuccessful appeals from judicial decisions.

30While the seven principles are not exhaustive and the applicants need not establish the existence of all of them, these principles have consistently been approved by appellate courts and applied by trial courts across the country. The manner in which a litigant has conducted himself or herself in proceedings, including any acts of dishonesty or deceit with the Court, is to be judged on an objective standard. Dobson v. Green, 2012 ONSC 4432 (paragraph 10).

31As summarized above from the record of this application, I am satisfied that Wei Chen, also known as Wayner Wei Chan, has become a “vexatious litigant” particularly with regard to his pursuit of both Applicant law firms including the members, associates and employees in those law firms. I am particularly persuaded by his failure to pay the legal costs awarded against him, which shows a particular lack of respect or regard for this Court and the administration of justice.

Terms of the Court Order

32I conclude the appropriate order to be made will indicate the following:

(a) no action, originating process, proceeding, motion or appeal of any kind may be instituted by Wei Chen, also known as Wayner Wei Chan, in any Court governed by the Courts of Justice Act, without first obtaining leave of a Judge of the Superior Court of Justice;

(b) the matters scheduled to proceed April 23, 2015 in the Superior Court of Justice at Toronto court file number CV-12-00443810 and the appeal matter emanating from the Superior Court of Justice at Toronto file number CV-13-490948 returnable May 15, 2015 are stayed;

(c) should Wei Chen, also known as Wayner Wei Chan, seek to commence or continue a proceeding or appeal in any Court governed by the Courts of Justice Act without first filing an entered order permitting him to do so, that proceeding shall immediately be stayed upon any person filing a copy of this order;

(d) on any application by Wei Chen, also known as Wayner Wei Chan, for leave to initiate or continue any proceeding in any Court governed by the Courts of Justice Act in Ontario, he shall provide written notice of such application to the Attorney General of Ontario at least 10 days before the application is brought;

(e) should Wei Chen, also known as Wayner Wei Chan, obtain leave to initiate or continue any proceeding in any Court governed by the Courts of Justice Act, he must first satisfy all outstanding awards of costs against him referenced in these reasons;

(f) this order does not restrict Wei Chen, also known as Wayner Wei Chan, from an appeal of this order on this application;

(g) Wei Chen, also known as Wayner Wei Chan, shall pay costs of this application to Howie, Sacks & Henry LLP and Singer Kwinter in the amount of $1,500 inclusive of fees, HST and disbursements forthwith to each applicant for a total costs award against Wei Chen of $3,000.

33Given the impending court appearance on April 23, 2015, and Wei Chen’s absence from Court on April 15, 2015, the draft order shall be submitted to me for approval as to its form and content and to be signed by me.