



COURT OF APPEAL FOR ONTARIO

CITATION:
Hoang v. Mann Engineering Ltd., 2022 ONCA 82

DATE: 20220126

DOCKET: M52935 (C68186)

Tulloch J.A. (Motion Judge)

BETWEEN

K.
    Matthew Hoang

Plaintiff

Appellant
    (Moving Party)

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

Respondents
    (Responding Parties)

K. Matthew Hoang, appearing in person

Ted Flett, for the responding parties

Heard: November 23, 2021 by video conference

REASONS
    FOR DECISION

[1]

The moving party, Matthew Hoang, brings this
    motion for leave to file a motion to, in essence, reverse two prior decisions
    of this court in these proceedings. The moving party argues that the panel that
    heard the appeal from the November 4, 2019 summary judgment decision of Glustein
    J. misapprehended the evidence, as well as failed to provide proper reasons
    substantiating its finding that there was no merit to the moving partys
    action. He further argues that the court erred in refusing to reconsider his
    appeal on the basis that it had no merit.

[2]

The genesis of the underlying litigation started
    in June 2011 when Mr. Hoangs employment was terminated. Mr. Hoang sued
    Mann Engineering for negligence arising from the termination of his employment.

[3]

This single incident has resulted in two
    separate sets of actions by the moving party and over ten years of litigation
    at all levels of court, ultimately resulting in the dismissal of both actions
    and costs awards against Mr. Hoang, none of which have been paid.

[4]

The first action was dismissed by virtue of a
    summary judgment motion in 2014, with costs awarded against Mr. Hoang. After
    this first dismissal, Mr. Hoang appealed various aspects of the decision to
    this court on four separate occasions, and then finally to the Supreme Court of
    Canada by way of motion for leave on two separate occasions, culminating in a
    dismissal on July 21, 2016, by the Registrar of the Supreme Court.

[5]

On December 8, 2017, Mr. Hoang commenced the
    current underlying action against the same defendants for tortious conduct,
    breach of duty of care, and negligence based on allegations arising out of the
    same termination of employment.

[6]

In the decision dated November 4, 2019, the
    motion judge, Glustein J. of the Superior Court of Justice allowed the responding
    parties motion for summary judgment and dismissed Mr. Hoangs action on the
    basis that there was no genuine issue requiring a trial. He found that the
    responding parties did not owe a duty of care to Mr. Hoang while pursuing
    garnishment proceedings against him. And even if there was a duty of care, Mr.
    Hoang had not established causation between the breach of that duty and the
    loss of his employment. Mr. Hoangs cross-motion for damages was dismissed.
    Costs were again awarded against Mr. Hoang.

[7]

Mr. Hoang appealed Glustein J.s order to this
    court and sought leave to appeal the costs order. In a decision dated December
    16, 2020, this court dismissed the appeal. This court held that the motion
    judge correctly determined there was no triable issue on the question of
    whether the responding parties owed Mr. Hoang a duty of care, as the
    relationship of the parties as a judgment creditor and debtor does not hold the
    requisite proximity to recognize such a duty. The court further held that it
    would be antithetical to the litigation process to find that such a duty
    arises. The court also noted that it was not reasonably foreseeable that the
    responding partys actions could lead to the termination of Mr. Hoangs
    employment.

[8]

Mr. Hoang then brought a motion to this court to
    set aside the December 16, 2020 decision and to allow him to amend
    his pleadings. This motion was dismissed by a panel of this court on October
    21, 2021 pursuant to r. 2.1.02 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, on the basis that it was an abuse of the courts process. The
    court ruled that while this court is empowered to set aside a prior decision
    under r. 61.16(6.1), the circumstances in which it would be appropriate to do
    so were not present. The court determined that Mr. Hoang sought simply to
    re-argue his appeal, which was without merit, and that this attempt formed part
    of a pattern of vexatious conduct. The court also ordered that Mr. Hoang
    be prohibited from filing any further motions without leave of the court.

[9]

Mr. Hoang now brings a motion for leave to file
    a motion seeking one of two forms of relief. He seeks either leave to amend his
    amended statement of claim to add a claim of abuse of process against the responding
    parties and to have Glustein J.s decision set aside and judgment granted in
    his favour; or, leave to amend his amended statement of claim, to set aside the
    decisions of this court, and to re-hear his appeal of Glustein J.s decision.

[10]

Where a court makes an order under r. 2.1.02(1)
    dismissing a motion as an abuse of process, it may also make an order under r.
    37.16 prohibiting a party from filing further motions without first obtaining
    leave:
Rules
, r. 2.1.02(3). Justice Pepall in
Huang v. Braga
,
    2020 ONCA 645 sets out helpful guidance for assessing whether to grant leave to
    file a motion to a party subject to a r. 37.16 order:

Consideration should first be given to the
    strength of the grounds advanced by the moving party. Put differently, are
    there reasonable grounds of appeal that merit granting the leave requested? Second,
    the context of the r. 37.16 order itself should be considered. Is the substance
    of the leave request a continuation of the frivolous and vexatious or abusive
    process that had generated the r. 37.16 order in the first place? The r. 37.16
    order is of course not a bar, but as stated in
Evans v. Snieg
, 2019 ONSC
    7270, at para. 30, such an order should not be lightly disregarded or blithely
    treated. Lastly, the overriding consideration is whether the granting or
    refusal of leave is in the interests of justice.

[11]

I am of the view that this is not one of those
    cases where leave should be granted. First, I find the proposed appeal lacks
    merit and does not put forth any reasonable gronds of appeal. It is essentially
    an attempt to re-argue issues that the moving party has already advanced and
    that were rejected at trial and on appeal in the first action.

[12]

Second, the request for leave to file a motion
    is in fact a continuation of the abusive conduct that made the moving party
    subject to the order in the first place. With the present motion and proposed appeal,
    as in the October 21, 2021 motion, the motion is part of a pattern of conduct
    by which Mr. Hoang has repeatedly challenged the correctness of decisions made
    by this court by way of meritless motions brought in this court after the
    appeal had been decided:
Hoang v. Mann Engineering Ltd
., 2021 ONCA
    742, at para. 9.

[13]

In my view, it is not in the interests of
    justice to grant the motion. Mr. Hoang is unrelenting in his litigation
    efforts. He has exhausted all rights of appeal or revocation for each time he
    has received an adverse judgment. As further pointed out by the respondents, over
    a period of seven years, Mr. Hoang has appeared before this court in the first
    action, in writing or in person, on five separate occasions, and before the
    Supreme Court of Canada on four separate occasions. The second action has been
    active for an additional four years. The finality of this litigation must at
    some point be enforced.

[14]

Accordingly, the moving partys motion is
    denied.

M.
    Tulloch J.A.


