



COURT OF APPEAL FOR ONTARIO

CITATION: Hoang v. Mann Engineering Ltd., 2015 ONCA 838

DATE: 20151202

DOCKET: M45306

C59356

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

K. Matthew Hoang

Moving Party (Appellant)

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)

Responding Parties (Respondents)

Karen J. Sanchez, for the moving party

Jeff C. Hopkins and Justin Tetreault, for the responding
    parties

Heard: In writing

ENDORSEMENT

Introduction

[1]

Mr. Hoang, for the second time, seeks an order to rehear an appeal heard
    by this court in the matter of
Hoang v. Mann Engineering Ltd.
, 2015
    ONCA 300. The motion was brought in writing, under rule 37.12.1(1) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 even though this provision seems
    to us to be inapplicable.
[1]
Mr. Hoang also relies on rule 59.06(2), which permits a party to bring a
    motion, among other things, for other relief than that initially awarded.

[2]

The respondents have not objected to the motion being brought in writing
    so, in an effort to bring an end to these protracted proceedings, we have
    chosen to treat the motion as properly brought and decide the matter. Our
    decision should not be interpreted as endorsing similar motions brought in a
    similar fashion.

Background

[3]

Mr. Hoang brought an action against the respondents for damages for
    wrongful dismissal, breach of contract, and withheld sales commissions. He
    claimed that the respondents terminated him without cause after 8 months of
    employment and wrongly denied him commissions to which he was entitled under a
    contract and an amended contract of employment. The trial judge dismissed his
    action, finding there was just cause for termination and no commission owing:
Hoang
    v. Mann
, 2014 ONSC 3762, 17 C.C.E.L. (4th) 15.

[4]

An appeal in this matter was heard on April 24, 2015, by a differently
    constituted panel. Mr. Hoang was self-represented on the appeal. In an appeal
    book endorsement dated May 1, 2015, the court allowed the appeal in part. In
    particular, the panel, at para. 4, found that Mr. Hoang had a valid point in
    respect of the amount of $6,250 being wrongly withheld pursuant to the
Employment
    Standards Act, 2000
, S.O. 2000, c. 41. The panel otherwise dismissed the
    appeal.

[5]

In June 2015, newly-retained counsel for Mr. Hoang received permission
    from the original panel in this appeal to file post-hearing submissions asking
    the panel to amend the courts endorsement. These submissions were not
    associated with a formal motion.

[6]

In the post-hearing submissions, Mr. Hoangs counsel submitted that Mr.
    Hoang was unable to effectively communicate the nature of the appeal. She
    argued that the appeal challenged not only the factual findings of the trial
    judge, but also the trial judges failure to apply any legal analysis to the
    issue of just cause and formation of contract. According to counsel, the latter
    errors were reviewable on a standard of correctness.

[7]

In an appeal book endorsement dated June 18, 2015, the panel treated Mr.
    Hoangs request as a motion and refused to amend the endorsement. The panel
    observed: Arguments to the effect that the panel hearing the appeal made
    errors in law are properly addressed to the Supreme Court of Canada and not to
    the panel that heard the appeal.

[8]

In July 2015, Mr. Hoangs counsel brought this motion, which was
    subsequently placed before us for consideration.

Submissions

[9]

As already noted, Mr. Hoang relies on rule 59.06(2), which permits a
    party to bring a motion for relief other than that initially awarded. His counsel
    takes the position that this court has jurisdiction to reconsider and vary its
    decision before the formal order is issued. This is based on the view that the
    panels decision overlooked or misapprehended evidence or overlooked a clear
    and compelling case on point, and there is the prospect of a very serious injustice
    absent reconsideration: see
First Elgin Mills Developments Inc. v.
    Romandale Farms Limited
, 2015 ONCA 54, 381 D.L.R. (4th) 114.

[10]

In
    response to Mr. Hoangs motion, the respondents submit that the relief sought
    is barred by rule 61.16(6.1), which provides:

Subject to rules 37.14 and 59.06, an order or decision of a
    panel of an appellate court may not be set aside or varied under these rules.

[11]

Alternatively,
    the respondents submit that Mr. Hoang has provided no compelling reason to
    re-open his appeal, but instead reiterates the same arguments made on two
    previous occasions. They request that, in these circumstances, this court should
    consider using its power under rule 2.1.02 to declare this motion frivolous,
    vexatious or otherwise an abuse of the process of this court and to prohibit
    Mr. Hoang from making any further motions in this proceeding without leave.

Analysis

[12]

We
    believe this is an appropriate case for the court to invoke its powers under
    rule 2.1.02(1). This rule provides:

The court may, on its own initiative, stay or dismiss a motion
    if the motion appears on its face to be frivolous or vexatious or otherwise an
    abuse of the process of the court.

In our view, there is a sound basis for invoking rule
    2.1.02(1) in the circumstances of this case.

[13]

On
    the motion, Mr. Hoang has not identified any circumstances that would justify
    ordering a re-hearing of an appeal by a differently constituted panel. He is
    merely attempting to re-argue what are in essence the same arguments advanced
    on the original appeal and in the post-hearing submissions. That is, that the
    trial judge erred in concluding that the offer letter of April 21, 2011 was not
    accepted and that Mr. Hoang was terminated for cause.

[14]

Mr.
    Hoang is arguing that the appeal panel erred in law and in fact by upholding
    the trial judges order and so the appeal should be re-heard. As indicated by
    the panel in its previous endorsement, these are arguments that should be made
    to the Supreme Court of Canada on an application for leave to appeal.

[15]

It
    needs to be emphasized that rule 59.06 provides for a very narrow jurisdiction
    to set aside or vary an order made by a panel. Any motions relying on this rule
    will be monitored by the court under rule 2.1.02 to ensure that the motion is
    not frivolous, vexatious or otherwise an abuse of the process of the court: see
    for example,
Gallos v. Toronto (City)
, 2014 ONCA 818. This case does
    not fit within the very narrow jurisdiction of rule 59.06, but is one that on
    its face fits within rule 2.1.02(1).

Disposition

[16]

For
    these reasons, Mr. Hoangs motion is dismissed under rule 2.1.02(1). Further, the
    court orders under rule 2.1.02(3) that he is prohibited from making any further
    motions in the proceeding without leave of the court.

[17]

The
    respondents are entitled to costs of the motion in the amount of $1,500
    inclusive of disbursements and HST.

G.R. Strathy C.J.O.

H.S.
    LaForme J.A.

"Grant
    Huscroft J.A."





[1]
Rule 37.12.1(1) states: Where a motion is on consent, unopposed or without
    notice under subrule 37.07(2), the motion may be heard in writing without the
    attendance of the parties, unless the court orders otherwise.


