



COURT OF APPEAL FOR ONTARIO

CITATION: Su v. Lam, 2017 ONCA 952

DATE: 20171205

DOCKET: M48522

Pardu J.A. (In Chambers)

BETWEEN

Jian Su

Appellant (Moving Party)

and

Sec-yong Lam, in his personal capacity and as
    Executor and Trustee of the Estate of Gab Yi Lam (also known as Gaby Yi Lam or
    Gab Yi Chu), Deceased

Respondent (Responding Party)

Jian Su, self-represented

David M. Goodman, for the respondent

Heard: In writing, December 4, 2017

On a motion for an
    extension of time to appeal from the judgment of Justice David G. Stinson dated
    April 19, 2017, dismissing the moving partys motion to set aside a consent
    order.

ENDORSEMENT

[1]

Jian Su moves for an extension of time to appeal
    from an April 19, 2017 decision that dismissed his motion to set aside a
    consent order.

[2]

The underlying consent order was made in 2009. It
    dismissed Mr. Sus action against the respondent. Before the consent order was made,
    Mr. Su had been ordered to pay the outstanding costs award against him and a
    further $25,000 for security for costs. The respondent brought a motion to
    dismiss the action because of these outstanding orders. Mr. Su was represented
    by counsel at the time and his counsel consented to the dismissal of this
    action and the property claims in another related proceeding. As the motion
    judge pointed out, by agreeing to forego his claims to an interest in the
    estate assets, Mr. Su avoided the dismissal of his support claim and he also
    avoided the need to post security for costs and payment of the outstanding
    costs award.

[3]

Mr. Su moved to set aside this consent order,
    some seven or eight years after it was made, alleging fraud and subsequently
    discovered facts as justification. He argued that the estate trustee falsely
    represented there were estate assets remaining to satisfy Mr. Sus potential
Succession
    Law Reform Act
, R.S.O. 1990, c. S.26
claim. The motion judge found that the documentary production made
    to Mr. Su before the consent order was made, had it been carefully and properly
    examined, would have already revealed the fact that no estate assets remained.
    The motion judge found as a fact that Mr. Su was not provided with any
    incorrect or misleading information about the assets of the estate at the time
    he agreed to the consent order. He concluded that Mr. Su failed to prove that
    he was induced by fraud to agree to the consent order, and failed to
    demonstrate that there were any after acquired facts or information that would
    warrant setting aside the consent order.

[4]

The test for determining whether to extend time
    to appeal has been summarized many times. Justice Epstein described the test in
    Reid v. College of Chiropractors, 2016 ONCA 779, at para. 14 as follows:

The governing
    principle is whether the justice of the case requires that an extension be
    given:
Rizzi v. Mavros
, 2007 ONCA 350
, 85 O.R. (3d) 401, at para. 17;
Enbridge Gas Distribution
    Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para.
    15. Each case depends on its own circumstances. The relevant considerations
    include:

a)

whether
    the moving party formed a
bona fide
intention to seek leave to appeal
    within the relevant time period;

b)

the
    length of, and explanation for, the delay in filing;

c)

any
    prejudice to the responding party, caused, perpetuated or exacerbated by the
    delay; and

d)

the
    merits of the proposed appeal.

[5]

I am not satisfied that the time to appeal should
    be extended in this case.

[6]

There is no evidence that Mr. Su formed the
    intention to appeal within the relevant time period.

[7]

There is no real explanation for the delay in
    filing the notice of appeal. The subject matter of the proposed appeal relates
    to litigation about the estate of Ms. Lam, who died in April 2004. Mr. Su and
    the respondent (the executor of Ms. Lams estate) have now been engaged in
    litigation for nearly 13 years, which includes a previous appeal by Mr. Su to
    this court that was dismissed on the merits:
Su v. Lam
, 2013 ONCA 464.

[8]

I am not persuaded there is any merit to the instant
    appeal. Mr. Su attempts to set aside a consent order made in February 2009, at
    a time when he was represented by counsel and when the consent order brought
    real advantages to him. As a result of the consent order, the respondent did
    not pursue its motion for security for costs or its motion to dismiss the
    action for non-payment of a costs order. The motion judges findings of fact
    about the absence of misrepresentation at the time of the consent order are not
    undermined by the material Mr. Su filed in support of his motion for leave to
    extend time to appeal. In large part, the filed materials cover many of the
    same grounds dealt with by this court in Mr. Sus previous appeal.

[9]

I am not persuaded that the justice of this case
    require an extension of time to appeal. The motion is dismissed with costs
    fixed to the respondent in the sum of $1,500.00, all inclusive.


