Court File and Parties
COURT FILE NO.: CV-17-588085
DATE: 20191104
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: K. Matthew Hoang, Plaintiff
AND:
Mann Engineering Ltd., Aris Building Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar Ltd. and Gigajoule Research and Development Ltd. (carrying on business as the “Mann Group”), Defendants
BEFORE: Justice Glustein
COUNSEL: K. Matthew Hoang (in person) Ted Flett, for the Defendants
HEARD: October 2, 2019
REASONS FOR DECISION
Nature of motions and overview
[1] The defendants bring a motion for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), to dismiss the claim brought by the plaintiff, K. Matthew Hoang (“Hoang”).
[2] Hoang brings a cross-motion seeking summary judgment for his claim for damages of $549,233.[^1]
[3] The present action arises out of garnishment efforts by the defendants to enforce the amount owed of $76,866.19 pursuant to (i) a costs order by C. Brown, J. in the amount of $72,532.44 after she dismissed Hoang’s wrongful dismissal action against the defendants in Court File No. CV-11-437556 (the “Wrongful Dismissal Action”), and (ii) other ancillary costs orders in appeals, motions, and leave applications brought by Hoang following the trial decision in the Wrongful Dismissal Action.
[4] Hoang submits that there is no genuine issue requiring a trial with respect to the defence raised by the defendants. He submits that (i) the defendants breached a duty of care to him by obtaining an enforcement order dated January 11, 2017 from Master Abrams under Rule 60.08(17) against Retirement Life Communities (“RLC”), requiring RLC to pay the full amount of the debt owed by Hoang to the defendants (the “Enforcement Order”)[^2] and (ii) such negligence was the “but/for” cause in his termination by Retirement Life Communities Consulting Inc. (“RLCC”).
[5] The defendants submit that there is no genuine issue requiring trial with respect to all of Hoang’s claim. The defendants submit that (i) they owed no duty of care for obtaining the Enforcement Order; (ii) if such a duty of care was owed, it was not breached; and (iii) if any duty of care was breached, it was not the “but/for” cause in Hoang’s termination by RLCC.
[6] The defendants further submit that the present action by Hoang is (i) an abuse of process as it seeks to relitigate the garnishment issues, and (ii) a vexatious proceeding under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”).
[7] For the reasons that follow, I agree with the defendants that there is no genuine issue requiring trial with respect to the claim and, therefore, I dismiss the action. I find that the defendants owed no duty of care to Hoang in negligence for bringing garnishment proceedings. Any liability related to the use of court proceedings requires a finding of an abuse of process,[^3] and there is no evidence before the court to establish any improper purpose, overt act, nor any invocation of the judicial process actuated by malice.
[8] While not necessary for this conclusion, I also find that, even if there was an abuse of process by the defendants, Hoang has not established a genuine issue requiring trial (let alone the higher threshold for the conclusion he seeks by way of summary judgment) that the Enforcement Order was the “but/for” cause of his dismissal.
[9] Further, while again not necessary to these reasons, I find that the present action is not an abuse of process by Hoang nor a vexatious proceeding.
Facts
a) Hoang’s employment with Mann Engineering Ltd. and the litigation with the defendants arising from his dismissal
[10] The defendants’ garnishment efforts arose out of costs orders made against Hoang in the Wrongful Dismissal Action (including costs orders in ancillary appellate court proceedings).
[11] The uncontested facts relevant to the Wrongful Dismissal Action are as follows:
i) Hoang is a former employee of the defendant Mann Engineering Ltd. (“Mann Engineering”);
ii) Hoang’s employment was terminated by Mann Engineering on or about June 27, 2011;
iii) On October 19, 2011, Hoang brought an action against all of the defendants seeking damages for wrongful dismissal (previously defined as the “Wrongful Dismissal Action”);
iv) On August 22, 2014, C. Brown J. dismissed the Wrongful Dismissal Action. She held that Mann Engineering was justified in terminating Hoang and ordered Hoang to pay costs in the action of $72,532.44 with post-judgment interest;
v) In her reasons, C. Brown J. held that Hoang (a) displayed “unprofessional”, “uncollegial”, and “insolent” behaviour, (b) demonstrated “insubordination”, (c) was “rude” in his treatment of co-workers, sales staff, clients and his superiors, and (d) acted in an “inappropriate” manner;
vi) Hoang appealed the trial decision to the Court of Appeal for Ontario;
vii) By decision dated May 1, 2015, the Court of Appeal dismissed the appeal except for a small adjustment of $6,250 in Hoang’s favour. The court ordered further costs against Hoang of $5,000 with post judgment interest;
viii) Hoang then brought a motion to amend the appeal judgment, which was dismissed by the Court of Appeal on June 18, 2015 with a further costs award of $1,000 to the defendants;
ix) On December 2, 2015, the Court of Appeal (a) dismissed a further motion by Hoang to have the appeal reheard and (b) prohibited Hoang from bringing any further motions without leave of the court;
x) Hoang moved before the Court of Appeal for leave to bring a motion for the rehearing of his appeal. The court found (by endorsement dated January 28, 2016) that Hoang’s motion was a third attempt for a rehearing and held that Hoang’s conduct was vexatious and an abuse of process;
xi) On April 7, 2016, almost ten months after the Court of Appeal decision dismissing his appeal, Hoang filed an application for leave with the Supreme Court of Canada (“SCC”);
xii) On June 16, 2016, the SCC dismissed Hoang’s motion to extend the time to serve and file his leave application;
xiii) On July 8, 2016, Hoang filed further materials with the SCC seeking a rehearing of his application. On July 21, 2016, the Registrar of the SCC determined that (a) the original decision of the SCC on June 16, 2016 was final and (b) there would be no reconsideration or rehearing of the motion;
xiv) On August 25, 2016, the Senior Registry Officer of the SCC served a Notice of Request – Vexatious Proceedings to prevent Hoang from filing further materials;
xv) On October 18, 2016, Côté J. of the SCC denied the Registrar’s Notice of Request but dismissed Hoang’s motion to extend time to serve and file his application for leave to appeal;
xvi) On November 3, 2016, Hoang delivered a further motion record to the SCC again seeking an order to extend the time for his application to leave to appeal to the SCC;
xvii) On January 9, 2017, Côté J. dismissed Hoang’s motion to extend time; and
xviii) On June 23, 2017, the Senior Legal Officer of the Court of Appeal wrote to Hoang to advise him that (a) the court would not accept any further post-hearing submissions from him and (b) Hoang would receive no response to any further attempts on his part to communicate with the court in relation to the appeal.
b) Garnishment proceedings by the defendants arising from the Wrongful Dismissal Action
[12] Following the decision of the Court of Appeal on January 28, 2016 denying leave to bring a motion to rehear the appeal, the defendants began enforcement proceedings. By that date, seven months had passed since the Court of Appeal had dismissed the appeal, well beyond the 60 days required to file a notice of application to the SCC under s. 58(1)(a) of the Supreme Court Act, R.S.C. 1985, c. S-26.
[13] On March 14, 2016,[^4] the defendants took the first enforcement step and issued a Notice of Garnishment naming Retirement Life Communities (previously defined as “RLC”) as Garnishee. The evidence is uncontested that, “to the best of the knowledge of the defendants at that time, [Hoang] was employed by RLC”.
[14] The defendants served a Notice of Examination dated March 16, 2016 scheduling an examination in aid of execution of Hoang to be conducted on April 7, 2016.
[15] Hoang did not attend the examination in aid of execution scheduled for April 7, 2016.
[16] The defendants received a Garnishee’s Statement, purportedly from RLC, dated March 23, 2016.
[17] In his affidavit filed in support of RLC’s cross-motion to set aside the Enforcement Order (the “Ger Affidavit”), which I review in more detail at paragraph 53 below, Josef Ger (“Ger”), the president of RLC, stated that:
i) the Garnishee’s Statement was “purportedly filed by RLC in response to the Garnishment”;
ii) “I did not prepare nor was I aware of the Statement”;
iii) “It is my belief that the Statement was prepared by Hoang or by an employee of RLC under Hoang’s instruction as RLC’s director of finance and controller”; and
iv) “I first learned of the Statement on or about May 24, 2017”.
[18] There is no evidence that the defendants had any knowledge of Hoang’s purported unilateral action.
[19] In the Garnishee’s Statement, RLC (or Hoang acting purportedly for RLC without Ger’s knowledge) did not take the position that RLC was not Hoang’s employer. Instead, RLC, as garnishee, stated that it refused to garnish Hoang’s wages because (i) “it appears that the legal proceedings … are continuing at the Supreme Court of Canada” and (ii) “[a]ccordingly, we do not acknowledge any debt owing to the creditor while the litigation is in progress”.
[20] At that time, the defendants were not aware of any appeal to the SCC. In any event, the SCC docket indicates that the leave application was not filed until April 7, 2016, after the date of the purported Garnishee’s Statement.
[21] Hoang then served a notice of motion dated March 29, 2016 for a garnishment hearing under Rule 60.08(16), which permits a garnishee to seek a hearing to determine the rights and liabilities of the garnishee. The only ground for the motion was that “the legal issues in this case have not been resolved by the Supreme Court of Canada”.
[22] The notice of motion provided that the hearing was to take place on May 12, 2016. Hoang’s motion was cancelled on the day of the motion.
[23] The defendants then scheduled a motion for a garnishment hearing and an order compelling Hoang to attend at an examination aid of execution, to be heard on May 24, 2016.
[24] Prior to that hearing, a letter dated May 13, 2016, purportedly from Ger on behalf of “Retirement Life Communities” (i.e. RLC), was sent to the court and copied to Mann Engineering.
[25] Ger states in his affidavit that this letter dated May 13, 2016 (as well as similar letters sent to the court on October 5, 2016 and November 21, 2016), were “prepared by Hoang and presented to me by him for signature”. Ger further states in his affidavit that:
Prior to signing [the letters], I was advised and reassured by Hoang that:
i) the motions were premature in light of his appeals;
ii) that the arguments he made in respect of the appeal were accepted by the Court and he anticipated the appeal to be successful;
iii) the Garnishment remained stayed pending appeal and was of no force and effect; and
iv) RLC did not need to take any steps in respect of the Garnishment, including payment of same.
[26] Again, there is no evidence that the defendants were aware of any issues related to the drafting of the letters.
[27] In the “overview” section of the May 13, 2016 letter, Ger (or Hoang speaking on behalf of Ger) stated that “Retirement Life Communities Consulting Inc.” (i.e. RLCC) was the “Garnishee” as “the employer of [Hoang]”.
[28] However, in the section of the May 13, 2016 letter entitled “Garnishee’s Position”, the only objection raised to the garnishment was that it was premature pending the decision of the SCC. Further, Ger stated, as president of RLC, that “[i]f the Supreme Court denies the Debtor’s application or request for a stay, we would be prepared to garnish the Debtor’s salary upon learning of the Supreme Court’s decision”. The use of the word “we” appears to refer to RLC, as Ger was writing as President of RLC.
[29] The motion initially scheduled by the defendants for May 24, 2016 was adjourned that day to be heard by a master.
[30] On July 15, 2016, Master Abrams heard the defendants’ motion for a garnishment hearing. The Master noted that “much of what” she ordered “was accomplished with the Consent of Mr. Hoang”. No one appeared for RLC or RLCC.
[31] Master Abrams held that if the SCC denied leave, (i) Hoang would be required to attend examination in aid of execution and “Retirement Life Communities [i.e. RLC] will garnish Mr. Hoang’s wages to satisfy Mr. Hoang’s indebtedness of $76.866.19”. Again, Hoang made no suggestion at the hearing that RLC was not the proper garnishee.
[32] Master Abrams also ordered that Hoang be “refrained from encumbering or disposing of any significant assets or from leaving Canada (save on vacation), without notice to/agreement from the Defendants”. The Master also held that “[Hoang] also says, and I confirm, that no further motion to the Supreme Court of Canada will be brought by him”.[^5]
[33] On October 5, 2016, the court received a letter purportedly from Ger at RLC taking the same position as set out in the May 13, 2016 letter, i.e. that any garnishment was premature, but that “[i]f a judge of the Supreme Court dismissed the Debtor’s Motion, we[^6] would be prepared to garnish the Debtor’s salary”.
[34] On November 2, 2016, two weeks after Côté J. dismissed Hoang’s motion for an extension of time to serve and file an application for leave to appeal to the SCC, the defendants served a notice of motion to be heard on December 5, 2016.
[35] In their notice of motion, the defendants named RLC as the garnishee. They sought:
(i) “[a]n order against the Garnishee to garnish [Hoang’s] wages and to pay all debts in accordance to the notice of garnishment dated March 14, 2016 pursuant to subrule 60.08(17) of the Rules of Civil Procedure (Ontario)”; and
(ii) an order for Hoang to attend at examination in aid of execution.
[36] This was the first time the defendants sought an enforcement order against RLC as part of the garnishment efforts. In the grounds of the motion, the defendants acknowledged that they “received the garnishee’s statement dated March 23, 2016 indicating that the Garnishee would not make the required payments to the Sheriff”. However, the basis for the relief sought was set out by defendants’ counsel at the hearing before the Master, since RLC allegedly had not filed its statement with the court and was “now responsible for that debt in its entirety”.
[37] RLC did not attend the hearing.[^7] Hoang attended the hearing and submitted that an enforcement order would cause severe financial hardship to RLC since it would be required to pay the full amount of the debt. Counsel for the defendants advised the court that, despite his earlier submission that the garnishment order should be enforced against RLC since it had not filed the Garnishee’s Statement with the court, he was not pursuing the enforcement order. He submitted that:
(i) “What we’re here for today, … is an order that the … the garnishee be ordered to proceed with the garnishment and start paying us”; and
(ii) “There is no financial hardship to the garnishee. The garnishee will be taking 20 per cent of his wages. They’re still going to pay him the same amount, 80 per cent to him, 20 per cent to us, pursuant to the garnishment. There’s absolutely no financial hardship to … Retirement Life Communities”.
[38] At the hearing, Hoang raised no objection to the name of the garnishee being RLC. He only submitted that RLC should not be required to garnish his wages until the SCC decided whether he could appeal. In fact, he summarized RLC’s position before Master Abrams as “once the proceedings of the Supreme Court are all over, they will, more – not happily, but they will garnish my salary”.
[39] The Master heard the motion on December 5, 2016. In her endorsement dated January 11, 2017, the Master referred as well to “the letter of Nov. 21/16 from Mr. Ger”[^8], and “the January 9/17 Order of Côté, J.S.S.C”.[^9] The Master held that Hoang would now have to attend examination in aid of execution, and that “the time has come for me to grant the defendants the relief that they have been seeking for some time”.
[40] With respect to the garnishment issue, the Master held that garnishment of RLC was appropriate, noting Ger’s statement in his November 21, 2016 letter that RLC was willing to garnish Hoang’s wages once the litigation was completed. The Master held:
Then too, in his Nov. 21/16 letter, Mr. Ger said that: “If a Judge of the Supreme Court dismissed the debtor’s [ie. Mr. Hoang’s] motion, he would be prepared to garnish [Mr. Hoang’s] salary …”. This has now happened. The Supreme Court of Canada proceedings are at an end.
[41] Consequently, it is clear from the Master’s endorsement that the relief she ordered was (i) Hoang was to attend at an examination for execution and (ii) RLC was to garnish Hoang’s wages.
[42] The Master made no comment in her endorsement about the enforcement order sought under Rule 60.08(17). While an order may have been appropriate if the evidence supported that the Garnishee Statement had not been filed with the court, it appears, as I discuss above, that the defendants advised the court by the end of the hearing before the Master that they were not seeking such relief.
[43] In her endorsement, the Master indicated that “Order to go as asked”.
[44] By letter dated February 3, 2017, counsel for the defendants sought a dispensation to obtain Hoang’s consent to the terms of the order, based on Hoang’s purported “previous refusals to agree to the form and content of various orders made by this court”.
[45] Counsel for the defendants relied on correspondence from Hoang in relation to the proposed order arising from the December 5, 2016 hearing in which Hoang did not approve the order because “we will be returning to court in March/April”.
[46] It then appears that the Master signed a draft order without obtaining approval as to form and content from Hoang, based on the February 3, 2017 letter and the representations made therein.
[47] In that order dated January 11, 2017 (previously defined as the “Enforcement Order”), the Master made the enforcement order under Rule 60.08(17) sought in the notice of motion, i.e., an order that RLC pay the full amount of the Hoang debt.
[48] Paragraph 1 of the Enforcement Order required “that the Garnishee [RLC] pays to the Defendants the balance of the debt owing in the amount of $76,866.19 as set out in the Notice of Garnishment dated March 14, 2016 pursuant to Rule 60.18(17) [sic] of the Rules of Civil Procedure”.
[49] Paragraph 2 of the order required Hoang to attend for examination in aid of execution on 10 days’ written notice.
[50] After obtaining the Enforcement Order, the defendants brought a further motion by notice dated May 18, 2017, seeking to vary the Enforcement Order by adding various corporate identities of RLC, including RLCC, as named parties to the order. In its grounds for the motion, the defendants submitted that by that date, RLC still had not garnished Hoang’s wages or paid any of his debts.
[51] In their notice of motion, the defendants also referred to a letter dated March 30, 2017 that they “wrote to the Garnishee to discuss payment of the debt and costs, enclosing copies of the Order by the Supreme Court of Canada dated March 30, 2017, the Order by this Court dated January 11, 2017 and the Defendants’ lawyers’ bill of costs and statement of account”. A further ground was that “Retirement Life Communities confirmed receipt of the Defendants’ letter by email on March 30, 2017”.[^10]
[52] Upon receipt of the May 2017 motion record, which included the Enforcement Order, RLC and the proposed added parties retained their own counsel (Hoang had appeared at all prior hearings) and brought a motion to set aside the Enforcement Order.[^11] This was the first time that RLC was aware of the Enforcement Order, and in particular that they were required to pay the full amount of Hoang’s debt.
[53] In addition to the evidence from Ger in his affidavit with respect to his lack of knowledge of Hoang’s conduct as described at paragraphs 17 and 25 above, Ger also stated, in his affidavit:
i) “In or about May, 2016, Hoang advised me that he was involved in litigation with the Mann Group. Hoang further advised me that there was a garnishment issued of his wages in the proceeding, but that RLC did not need to take any steps in respect of same as the garnishment was stayed pending appeal and of no force and effect. I trusted Hoang and his expertise as RLC’s director of finance and controller. I relied upon his representations and accordingly did not instruct for any steps to be taken in respect of the Garnishment, including remittance of payment to the Sheriff pursuant to the Garnishment”;
ii) “I first learned of the [Garnishee] Statement on or about May 24, 2017 as the statement is attached to the Mann Group’s motion record”;
iii) He “trusted Hoang and relied upon his advice as RLC’s director of finance and controller at all times” and “RLC accordingly did not remit payment to the Sheriff of the City of Toronto pursuant to the Garnishment”;
iv) When Ger learned that Enforcement Order required RLC to pay the full amount of $76,866.19, “I confronted Hoang and requested that he immediately provide me with all relevant documentation”;
v) After reviewing the file, Ger’s “belief [was] that Hoang directed that any e-mails in respect of this matter delivered to the general mailbox be forwarded to him” and that “Hoang intercepted service of the motion records and correspondence”; and
vi) “I further understand that Hoang’s representations to me [and RLC’s human resources manager] concerning the effect of the Garnishment and the Order were misleading and inaccurate”.
[54] In the affidavit, Ger stated that “Hoang is employed by RLCC only”, and, as such, the other companies “are not proper garnishees” since “[t]he other corporations that the Mann Group [sic] seeks to add by amending the Order are not responsible for remitting payment to Hoang and there are accordingly no debts owing by them to Hoang”.
[55] RLC’s role as an employer was intermingled by Ger’s statement that Hoang “is employed by [RLCC] as RLC’s director of finance and controller”, and that Hoang’s “duties at RLC include oversight and management of all financial matters with respect to RLC”.
[56] Ger also acknowledged that “RLC is prepared to comply with the Garnishment by remitting payment as required pursuant to the Garnishment to the Sheriff of the City of Toronto”, and “[b]ut for Hoang’s representations described herein, RLC would have remitted payment to the Sheriff in accordance with [the garnishment]”.
[57] The motions were heard by Master Abrams on June 15 and 16, 2017.
[58] By reasons dated September 12, 2017, the Master (i) set aside her order that RLC pay the full amount owed by Hoang, (ii) changed the name of the garnishee to RLCC, and (iii) limited the relief against RLCC to garnishment.
[59] The Master ordered costs of $6,000 against Hoang, RLC, and RLCC jointly and severally. She held:
As for the defendants, I do think that they were put to unnecessary expense in dealing with this matter, its errors notwithstanding, and were made to suffer undue delay, at least since January 2017. The error in naming Mr. Hoang’s employer is understandable, even if it is now to be corrected given, inter alia¸ the manner in which the group of companies present, their shared address, Mr. Hoang’s acknowledged involvement with all of the companies … and the fact that the March 23/16 garnishee’s statement was signed by “Retirement Life Communities” and disputed the issue of timing and not the manner in which the garnishee was named.
[60] With respect to Hoang’s conduct towards his employer, the Master stated:
As for Mr. Hoang, serious allegations are made against him by Mr. Ger. Even if Mr. Ger ought to have been more careful, there is no question but that Mr. Hoang’s representations to his employer have been called into question and have been characterized by Mr. Ger as being ‘misleading and inaccurate’ … There is no evidence before me to refute that this is so.
[61] Hoang brought a further motion before the court on November 22, 2017 seeking, inter alia, leave to file a motion to vary the costs order of the Master. That motion was heard by Cavanagh J. on November 22, 2017 and dismissed, with further costs against Hoang of $1,500.
c) The present action
[62] On or about October 4, 2017, RLCC terminated Hoang’s employment.
[63] On December 8, 2017, Hoang commenced the present action against the defendants, seeking damages of more than $500,000 based on allegations of tortious conduct, breach of a duty of care, and negligence. Hoang has not commenced a wrongful termination action against RLCC.
[64] Hoang pleads that after the Enforcement Order, RLC became “apoplectic” when Hoang’s debt was “assign[ed]” to RLC. Hoang pleads that RLC then retained counsel and after the order of costs of $6,000 was made against Hoang and RLC jointly and severally, “RLC was unhappy with the legal problems and costs related to the Assignment Order” and “[t]hus, on October 4, 2017 RLC terminated [Hoang’s] employment”.
[65] Hoang pleads a duty of care “to ensure that the Defendants’ conduct did not result in the termination of the Plaintiff’s employment”. Hoang pleads that “[t]he Defendants breached its [sic] duty of care to the Plaintiff by recklessly and negligently acting to obtain and enforce the Assignment Order”, with “a relationship of proximity such that it is reasonably foreseeable that a lack of care on the part of the Defendants would likely cause harm to the Plaintiff”. Hoang pleads that “[p]roximity of the relationship arose by virtue of the Plaintiff, his job and salary, being assets of the Defendants”.
[66] Consequently, Hoang pleads “that the reasonable standard of care in the circumstances required the Defendants not to take any action that would endanger the Plaintiff’s employment”, and that “as a result of the Defendants’ negligence, he suffered damages for the loss of earnings and the permanent impairment of his earning capacity”.
Analysis
[67] I first review the applicable law and then apply the law to the facts before the court.
[68] The relevant legal principles at issue on this motion address summary judgment, abuse of process in bringing civil proceedings, abuse of process by seeking to relitigate an issue, and the nature of a vexatious proceeding under s. 140 of the CJA.
[69] I find that there is no genuine issue requiring trial of the action. The evidence does not support a duty of care owed, or breached, for abuse of process by the defendants in obtaining the Enforcement Order. Nevertheless, I address the other legal issues briefly, both with respect to the relevant law and the application of that law to the facts of the present case.
1. Applicable law
a) Summary judgment
[70] In Mayers v. Khan, 2017 ONSC 200 (“Mayers”), aff’d 2017 ONCA 524, I summarized the applicable legal principles on a motion for summary judgment based on the leading cases of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”) and Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, aff’d 2014 ONCA 878. I rely on that summary as set out below (Mayers, at paras. 18-21):
Both parties rely on Hryniak. I summarize the Hryniak principles below:
i) Summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It is no longer merely a means to weed out unmeritorious claims but rather a “legitimate alternative means for adjudicating and resolving legal disputes” (Hryniak, at paras. 5 and 36);
ii) An issue should be resolved on a motion for summary judgment if the motion affords a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial (Hryniak, at paras. 4 and 49);
iii) On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the judge and without using the judge’s fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2) (Hryniak, at para. 66); and
iv) The standard for determining whether summary judgment will provide a fair and just adjudication is not whether the procedure is as exhaustive as a trial, but rather “whether it gives the judge confidence that [the judge] can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak, at para. 50). A judge must be confident that he or she can fairly resolve the dispute (Hryniak, at para. 57).
In Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (“Sweda Farms”), affirmed 2014 ONCA 878, Corbett J. reviewed the process by which the court considers whether summary judgment is appropriate. He stated (Sweda Farms, at para. 33):
The court on a motion for summary judgment should undertake the following analysis:
The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
If the court cannot grant judgment on the motion, the court should:
a. Decide those issues that can be decided in accordance with the principles described in 2) above;
b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
The moving party bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial. Only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue requiring trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success (Sanzone v. Schechter, 2016 ONCA 566, at para. 30).
A court should (i) be cautious to ensure that affidavit evidence does not “obscure the affiant’s authentic voice” and (ii) take “great care” “to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all” (Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at para. 44 (“Baywood”)).
b) Abuse of process in bringing civil proceedings
[71] A plaintiff does not owe a duty of care for damages caused by bringing civil proceedings unless the plaintiff’s conduct constitutes an abuse of process.
[72] In The Law of Torts, Fifth Edition (Toronto: Irwin Law, 2015), at pp. 278-79, Philip H. Osborne summarizes the key principles of the tort of abuse of process as follows:
i) The tort of abuse of process is applicable in respect of the improper use of the civil litigation process. The tort is easier to establish than malicious prosecution because the plaintiff does not have to establish either that the proceedings terminated in the plaintiff’s favour or that the plaintiff lacked reasonable and probable cause to bring the action;
ii) There are four elements of the tort. First, the defendant must have brought the civil action or process. Second, the proceedings must be brought for a collateral or improper purpose. Third, there must be evidence of some overt act or threat, independent of the litigation, designed to secure the defendant’s improper purpose. Fourth, the plaintiff must prove damage; and
iii) [T]he malicious use of the litigation process is not, in itself, actionable. There must in addition be proof of some overt act, independent of the litigation, that is designed to advance the defendant’s wrongful purpose. [Italics in original.]
c) Abuse of process by relitigation
[73] This doctrine is different from liability against a party who initiates civil proceedings. Instead, it addresses the prohibition against relitigation.
[74] I summarize the applicable principles as follows:
i) The doctrine of abuse of process has its roots in a judge’s “inherent and residual discretion to prevent abuse of the court’s process” (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (“C.U.P.E.”), at paras 35-36);
ii) “Circumventing a court order or circumventing the operation of a Rule by initiating a further proceeding has been determined to be an abuse of process. … The doctrine of abuse of process seeks to promote judicial economy and to prevent a multiplicity of proceedings” (Carbone v. DeGroote, 2018 ONSC 109, at para. 43); and
iii) The doctrine can be used to prevent the relitigation of an issue in circumstances in which the requirements for issue estoppel are not met (C.U.P.E. at paras. 42-43; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 41).
d) Vexatious litigation under [s. 140](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html) of the [CJA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html)
[75] In Dobson v. Green, 2012 ONSC 4432 (“Dobson”), K. Campbell J. reviewed the law and summarized the following principles applicable to vexatious proceedings (at para. 9):
i) The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
i) Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
ii) Vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
iii) It is a general characteristic of vexatious proceedings that 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;
iv) 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;
v) The failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
vii) The respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
[76] I summarize the principles as follows:
i) The power of the court to declare that a litigant is “vexatious” under s. 140 of the CJA is an “extraordinary power” which must be “exercised sparingly and with the greatest of care”. It must be reserved for those rare cases where the normal rules of court seem unable to reasonably control a litigant (Dobson, at para. 6; Avis Industrial Corp. v. Gravelle, 2018 ONSC 4317, at para. 5); and
ii) Vexatious litigants often share common characteristics. They advance claims that are often manifestly without merit. They tend to ignore adverse rulings and procedural setbacks, such as costs orders against them. They may resort to multiple, repetitive proceedings, often against the same adversary. They will sometimes similarly engage others who present themselves as an obstacle in their path. They often launch court proceedings as if unconcerned about the financial resources invariably consumed by such actions. They tend to be litigants who, with persistence, abuse the court process for their own selfish and single-minded goals. They are typically self-represented litigants who seem intent, through a series of persistent and fruitless proceedings, on wearing down their opponents through an ongoing battle of attrition (Dobson, at para. 7).
2. Application of the law to the evidence in the present case
[77] For the reasons I discuss below, I grant the defendants’ motion for summary judgment and dismiss the Hoang’s action. I accept the submissions of the defendants that the duty of care upon which Hoang relies is not established on the evidence, and that even if a duty of care could be found to exist, the plaintiff has failed to establish causation between the breach and the loss of Hoang’s employment with RLCC.
[78] I do not accept the submissions of the defendants that the present action is an abuse of process or that the court should declare the action vexatious.
[79] I address each of these issues below.
a) Abuse of process in bringing civil litigation
[80] Hoang frames his claim in negligence. He pleads that “[t]he defendants breached its [sic] duty of care to the Plaintiff by recklessly and negligently acting to obtain and enforce the Assignment Order”, with “a relationship of proximity such that it is reasonably foreseeable that a lack of care on the part of the Defendants would likely cause harm to the Plaintiff”.
[81] However, as I set out in the legal analysis above, a plaintiff cannot be found negligent for pursuing legal rights in litigation. The defendants can only be found to owe a duty of care if Hoang can establish that the defendants acted with malice, or with an improper or collateral purpose through an overt act. There is no such evidence in this case.
[82] To the contrary, there is no evidence that the defendants sought any relief other than to enforce their costs awards through garnishment proceedings. The notice of motion seeking the Enforcement Order was based on Rule 60.08(17). There was no evidence before the court that RLC had filed a Garnishee’s Statement with the court, let alone the higher threshold required that the defendants knew that to be the case and maliciously sought the order.
[83] Further, the defendants did not even pursue the enforcement relief at the end of the hearing, advising the Master that the only relief they sought was garnishment.
[84] Hoang led no evidence as to any overt act or improper purpose on the part of the defendants. To the contrary, the defendants always understood that RLC was the employer, and the numerous letters sent by RLC (whether or not with the approval or knowledge of Ger) stated that “RLC currently has 5 employees, including Hoang” and that “RLC is prepared to comply with the Garnishment by remitting payment as required pursuant to the Garnishment to the Sheriff of the City of Toronto”.
[85] Consequently, any error in the Enforcement Order, by granting relief that the defendants abandoned in the course of the hearing, cannot be seen as an intentional, overt act for an improper purpose. The enforcement term was consistent with the notice of motion, consistent with the submissions that no garnishee statement was filed by RLC, and consistent with Rule 60.08(17).
[86] Further, the enforcement term was later removed because RLC brought its motion and advised the court of Hoang’s purported surreptitious conduct.
[87] There is no general duty of care, as pleaded by Hoang, “not to take any action that would endanger the plaintiff’s employment”. The defendants are entitled to enforce their costs orders through garnishment. Unless any improper purpose is established (which was not in the present case), garnishment proceedings that might affect a person’s subsequent employment do not generate a cause of action against the judgment creditor.
[88] As I note above, the court on a motion for summary judgment is entitled to assume that all of the evidence is before the court. A party is required to put its best foot forward. Without any evidence of malice or improper conduct (or of causation, as I discuss below), the claim cannot succeed.
[89] For the above reasons, I find no duty of care in this case against the defendants for exercising garnishment rights, and the evidence does not establish the required intent for a claim of abuse of process in civil proceedings.
[90] I further note that even if a duty of care could be established (which I do not accept), the evidence does not support a genuine issue requiring trial as to causation. Ger’s uncontested evidence is that it was the service of the motion record by the defendants seeking to add related parties that put RLC on notice of the Enforcement Order. Ger’s evidence set out above demonstrates that Hoang’s termination arose due to his alleged surreptitious and deceptive conduct while employed at RLC, not because of the existence of the garnishment proceedings.
[91] Consequently, there is no causal connection between the notice and the reasons for Hoang’s termination, which relate to his dealings with Ger.
b) Abuse of process in relitigating the enforcement issue
[92] I do not find that the present action seeks to relitigate the garnishment issue. Rather, Hoang seeks to claim that the enforcement procedure arising from the Wrongful Dismissal Action was exercised in a manner that damaged his financial interests by causing his termination. While I do not accept that such a claim is supported on the evidence (as I discuss above), the present claim is not an attempt to relitigate whether enforcement ought to have been granted.
c) Vexatious conduct under [s. 140](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html) [CJA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html)
[93] Applying the tests discussed above, I do not find that the present action demonstrates the characteristics of a vexatious proceeding. While Hoang vigorously opposed execution efforts by the defendants pending his numerous proceedings before the Court of Appeal and the SCC, this does not lead to the conclusion that improper enforcement proceedings (which did not occur in this case) cannot be the subject of a second action, if an abuse of process had been established (which I did not find).
[94] In such circumstances, I find that the claim is not “vexatious”.
d) Hoang’s conduct after the present hearing
[95] Hoang contacted the court after the hearing first by e-mail letter dated October 2, 2019 seeking an adjournment to file new evidence, and then by a letter hand-delivered on October 7, 2019, seeking to make further oral submissions on standard of care and causation issues. For the reasons below, I reject Hoang’s requests to file new evidence and for additional oral submissions.
1. The October 2, 2019 e-mail letter
[96] After the present motions were heard on October 2, 2019, Hoang sent an e-mail letter that same day to the court seeking to file an additional affidavit from Ger for the summary judgment motion. Hoang requested that the court reserve its decision until Ger decided whether to provide a new affidavit.
[97] Hoang purported to give evidence in his letter as to Ger’s reasons for Hoang’s termination, and submitted that an additional Ger affidavit would support Hoang’s claim of causation. Hoang stated that “I have no idea if [Ger] is willing to incur even more costs to set the record straight”.
[98] Counsel for the defendants opposed the filing of any new evidence after the hearing concluded. I agree with the position of the defendants.
[99] Nordheimer J. (as he then was) held in Walsh v. 1124660 Ontario Ltd., [2004] O.J. 2246 (S.C.), that a party cannot seek to file new evidence when the court does not accept the existing evidence at the hearing (at paras. 13-14):
When I put this point to counsel for the plaintiffs, he responded by asking for an adjournment of the motion in order to file affidavits from the plaintiffs while at the same time asserting that the existing affidavit was adequate to respond to the motion. Counsel reconciled these apparently inconsistent positions by saying that while he felt that the existing affidavit established a genuine issue for trial, if the court felt otherwise then an adjournment should be granted to file further evidence.
In the normal case, I would grant the adjournment request but I have concluded that it is not appropriate to do so in this case for a number of reasons. First, this is not a case of inadvertence or of the sudden appearance of a new fact or other change in circumstances. Rather, the request is made solely as a consequence of an unfavourable response from the court. Courts should not encourage or permit litigation to be undertaken on a trial and error basis.
[100] I rely on the above principles. Hoang cannot file additional evidence “solely as a consequence of an unfavourable response from the court”. Consequently, I would not permit Hoang to file a new affidavit (if it could have been obtained).
2. The October 7, 2019 hand-delivered letter
[101] On October 7, 2019, Hoang hand-delivered a letter to the court, seeking “four hours” or possibly “five hours” for a hearing to “hear my cross-motion for summary judgment”, claiming that “I have not had the opportunity to present my case in court”. Hoang claimed that he did not have the opportunity at the hearing to “prove” that (i) “the defendants owed him a duty of care”; (ii) “the defendants’ behaviour breached the standard of care”; and (iii) “I sustained damage”.
[102] In his letter, Hoang also advised the court that Ger “has unfortunately declined to provide affidavit evidence of the reason for my termination”.
[103] I find that Hoang raised all of the above submissions in his factum in support for his cross-motion for summary judgment. No additional submissions are required or appropriate.
[104] He summarized his position at paragraph 31 of his factum as follows:
A successful action in negligence requires the plaintiff to demonstrate that, on the balance of probabilities,
(i) the defendant owed him a duty of care;
(ii) the defendant’s behaviour breached the standard of care;
(iii) the plaintiff sustained damage; and
(iv) that the damage was caused by the defendant.
[105] Hoang then reviewed each of those issues in his factum, for almost 20 pages of his written submissions.
[106] Further, at the hearing, Hoang was provided with the opportunity to make any additional submissions he wished in support of his cross-motion for summary judgment.
[107] Consequently, I reject Hoang’s request for additional hearing time to return to court after the hearing was concluded.
e) Conclusion
[108] For the above reasons, I am satisfied that the issue of liability can be fairly and justly decided on this motion. I find that the defendants have satisfied their onus to establish that there is no genuine issue requiring trial. I conclude that given all of the evidence which would be before the court, the defendants are not liable for their conduct in relation to the garnishment proceedings and the present action should be dismissed.
Order and costs
[109] I order summary judgment in favour of the defendants and dismiss the action, with costs. I dismiss the cross-motion brought by Hoang.
[110] The defendants sought costs of $25,618.86 on a partial indemnity scale for all costs related to the action.
[111] Hoang submitted that if the defendants were successful, they should be entitled to no costs since his claim was “novel”.
[112] Hoang relied on my decision in Benedetto v. 2453912 Ontario Inc., 2019 ONSC 4309 (“Benedetto”), aff’d 2019 ONCA 149, 86 B.L.R. (5th) 1, in which I reviewed the law on costs for “novel” proceedings. I summarized the law as follows (at paras. 8-9):
Under the test set out in Baldwin v. Daubney, 2006 CanLII 33317 (ON SC), [2006] O.J. No. 3919 (S.C.) ("Baldwin"), relied upon by Benedetto, Spence J. set out the following requirements for the court to find a "novel" issue such that an order of no costs is appropriate (at para. 19):
For an issue to be novel in a way that is legally significant, it might be argued that the issue should not only be one which has not been decided in the factual context in which it now arises in the instant case, but is also one on which the law in the decided cases does [not] provide adequate guidance as to its resolution (whether that is so because of conflicts among the cases or a limitation on the appropriate scope of their application or some other factor). Such an issue could properly be regarded as "open".
Similarly, in Haufler v. Hotel Riu Palace Cabo San Lucas, 2014 ONSC 2686 ("Haufler"), also relied upon by Benedetto, M.G.J. Quigley J. held (at para. 30):
The novelty must be such that the issue is "open" in the sense that existing case law is inadequate to resolve the issue such that the parties would not be warned from raising it.
[113] In the present case, as in Benedetto, the claim is not novel. There is “law in the decided cases [to] provide guidance as to its resolution”, with no “conflicts among the cases or a limitation on the appropriate scope of their application or some other factor” (using the language in Baldwin). The law as to abuse of process for bringing a proceeding is well-known, and in these reasons, I applied that law to the evidence before the court (see also Benadetto, at para. 12).
[114] Similarly, under the Haufler test, it cannot be said that the “existing case law is inadequate to resolve the issue such that the parties would not be warned from raising it”. While I was required to apply principles of liability for abuse of process to the facts of the present case, there were no “open” legal principles not known by the parties which required a new approach to the law (see Benedetto, at para. 13).
[115] In the present case, the parties were required to incur significant costs for the motion, through affidavits, cross-examination, and thorough factums with appropriate briefs of authorities. The motion was of some complexity in that the plaintiff raised several legal issues which required research and submissions to the court.
[116] For the above reasons, I apply the principles in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 24-26. I find that the amount sought by the defendants is consistent with “an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding”, and order Hoang to pay costs to the defendants of $25,618.66 (inclusive of fees, disbursements, and HST), within 30 days of this order.
GLUSTEIN J.
Date: 20191104
[^1]: Hoang also brings a motion to amend the damages by adding a claim for the $6,000 costs award of the Master set out at paragraph 59 below. That relief was not opposed by the defendants but has no effect on the summary judgment motions before the court. [^2]: Hoang refers to this order throughout his pleadings and submissions as the “Assignment Order”, but there is no assignment of the debt under Rule 60.08(17). The amount owed by the debtor may be enforced against the garnishee if the conditions under Rule 60.08(17) are met. [^3]: The use of the term “abuse of process” as applied to the defendants refers to Hoang’s cause of action based on alleged improper use by the defendants of court proceedings. The use of the term “abuse of process” as applied to Hoang relates to the prohibition against relitigation of a matter already decided, as relied upon by the defendants. [^4]: This was almost nine months after the Court of Appeal decision and six weeks after the Court of Appeal held that Hoang’s conduct to seek a rehearing was vexatious and an abuse of process. [^5]: Hoang did not comply with that part of the order as he delivered a further motion record to the SCC on November 3, 2016, as I set out at paragraph 11(xvi) above. [^6]: (again apparently referring to RLC) [^7]: The lack of attendance is consistent with Ger’s assertion that Hoang intercepted court and other documents intended for RLC. [^8]: (a letter to the court which reiterated the position in the May 13, 2016 and October 5, 2016 letters described above) [^9]: That order dismissed Hoang’s motion for an extension of time, as I discuss above. [^10]: Neither of those documents were before the court on the present motion. I note, however, that Ger states in his affidavit that he believes that “Hoang similarly intercepted delivery of this correspondence”, since Ger was not aware of any of the previous endorsements of Master Abrams or the Enforcement Order until service of the notice of motion by the defendants on May 23, 2017, in which the defendants sought to vary the Enforcement Order by adding the other RLC entities. [^11]: It is not clear whether the relief was sought by motion or cross-motion. The September 12, 2017 order of the Master refers to a “motion”, while the defendants’ uncontested evidence refers to a “cross-motion” by RLC. The distinction is not relevant to these reasons.