



COURT OF APPEAL FOR ONTARIO

CITATION: Chen v. Canadian Imperial Bank of Commerce, 2017
    ONCA 166

DATE: 20170228

DOCKET: M46946 (M46874)

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Sidney Chen

Moving Party

and

Canadian Imperial Bank of Commerce

Responding Party

Sidney Chen, acting in person

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

Heard: February 24, 2017

ENDORSEMENT

Background

[1]

Mr. Chen brought an action against CIBC for wrongful dismissal. Amongst
    other defences, CIBC said the applicable limitations period had expired more
    than 3 years prior to the issuance of a notice of action. Mr. Chen then sought
    to discontinue his action by providing CIBC with a Notice of Discontinuance. He
    had issued an earlier Statement of Claim also seeking damages for wrongful
    dismissal but discontinued those proceedings.

[2]

After various procedural steps, CIBC stated it would consent to
    discontinuance only if discontinuance was with prejudice to Mr. Chens ability
    to bring a further action on the same subject matter. Mr. Chen initially
    resisted, but consented to these terms at an appearance before a judge of the
    Superior Court of Justice on October 8, 2015. The hearing judge granted the
    consent order.

[3]

Because Mr. Chen refused to approve the form of the consent order, on
    January 28, 2016 the parties returned before the hearing judge to settle the
    order. On this occasion Mr. Chen claimed he consented to the order because of
    mistake, mental health issues and misunderstanding. The hearing judge settled
    the order and advised Mr. Chen of his right to bring a motion to set the order
    aside.

[4]

On January 29, 2016, Mr. Chen took issue with the fact that the hearing
    judge on October 8, 2015 asked him whether he understood the terms of the
    agreement and their consequences  while also explaining he was not his lawyer
    and could not give him legal advice. He brought a motion to set aside the
    consent order discontinuing his action before another judge of the Superior
    Court of Justice.

[5]

On Mr. Chens motion he argued that the previous consent hearing judge
    improperly gave him legal advice, which invalidated his consent to
    discontinuance. He also argued that the transcript of proceedings before the
    consent hearing judge was fabricated and alleged a conspiracy between that
    judge and others.

[6]

Mr. Chens motion to set aside the consent order was denied by order
    dated April 28, 2016. It is this order Mr. Chen seeks to appeal.

This Motion

[7]

Mr. Chen did not file a notice of appeal in
    connection with the April 28
th
order within the required time. As a
    consequence he brought a motion to this court for an extension of time to
    appeal. On September 9, 2016, his motion was heard by a single judge of this
    court sitting in chambers. Mr. Chen did not file any affidavit evidence on the
    motion.

[8]

Mr. Chens submissions, however, to the chambers
    judge included a repeat of his
claims that he consented to the October
    8, 2015 order because of mistake, mental health issues and misunderstanding. He
    also asserted that the consent hearing judge improperly gave him legal advice,
    that the transcript of proceedings was fabricated, and repeated the allegation
    of a conspiracy between that judge and others. Finally, he alleged the motion
    judge on April 28, 2016 was unfair and biased.

[9]

On September 9, 2016, the chambers judge refused
    to grant Mr. Chens motion for an extension of time to appeal the order and
    refused to set aside the earlier consent order. She addressed his allegations
    of improper legal advice, fabricated transcripts, and unfairness and bias and
    correctly observed there was an absence of any evidence. She relied on the
    certified transcript of the October 8, 2015 proceedings and Mr. Chens own
    actions to conclude there was no support for Mr. Chens assertions.

[10]

The chambers judge found that Mr. Chen formed an
    intention to appeal in the requisite time period and provided a reasonable
    explanation for the relatively short delay. However, she held that the justice
    of the case did not warrant an extension; the appeal, she concluded, does not
    have any real chance of success.

[11]

Mr. Chens motion before this panel is to review
    the chambers judges order. He again, without any evidence, repeats all the
    allegations he made before the motion judge on April 28, 2016 and the chambers
    judge on September 9, 2016.

Conclusion

[12]

The motion must be dismissed. We agree with the
    chambers judge; the appeal, without any evidentiary basis, is meritless and
    there is no reason to grant an extension of time. Her exercise of discretion to
    refuse to extend the time to appeal is entitled to considerable deference. The
    circumstances in which a panel of this court will reconsider the decision of a
    single judge of this court to deny an application for an extension of time are
    narrow:
R. v. Gatfield
, 2016 ONCA 23, 345
    O.A.C. 197, at para. 11. This case does not fit within them.

[13]

Here, the chambers judge addressed all the
    relevant factors and properly applied those factors to the evidentiary record
    in connection with the issue of an extension of time. She was fair and
    accommodating in her consideration of the other allegations Mr. Chen raised
    without the benefit of evidence. We see no basis whatsoever to interfere with
    her discretionary decision to deny an extension of time to appeal. Indeed, as
    the chambers judge found, the justice of the case requires that no extension of
    time to appeal be granted.

[14]

Mr. Chens motion is dismissed. His outrageous
    allegations that judges, lawyers and a court reporter have conspired together
    to commit fraud, without any evidence at all to support those claims, is
    deserving of denunciation.  This conduct merits an award of substantial
    indemnity costs. CIBC is, therefore, awarded its costs of the motion fixed in
    the amount of $11,791.96, inclusive of disbursements and HST.

H.S.
    LaForme J.A.

"S.E. Pepall
    J.A."

G. Pardu J.A.


