



COURT OF APPEAL FOR ONTARIO

CITATION: Braga v. Huang, 2018 ONCA 1000

DATE: 20181206

DOCKET: M49778

Lauwers J.A. (In Chambers)

BETWEEN

Ancieto M. Braga

Respondent

and

Shu He Huang by Her Litigation Guardian, the Public
    Guardian and Trustee

Applicant

Shu He Huang, in person

Michael Ditkofsky, for the respondent

Heard: November 28, 2018

REASONS FOR DECISION

[1]

Ms. Huang seeks an extension of time to file a motion for leave to
    appeal from the order of Swinton J., dated July 24, 2018.

[2]

By way of background, Ms. Huangs case is about a motor vehicle accident
    that occurred in 2004. It has been languishing for years. She believes that she
    was catastrophically injured and is entitled to concomitant compensation,
    without which she fears that she will not be able to live a decent life.

[3]

Archibald J. appointed the Public Guardian and Trustee (the PGT) to
    act as litigation guardian for Ms. Huang because he found her to be a person
    under a disability within the meaning of r. 1.03(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, and s. 6 of the
Substitute Decisions
    Act
, 1992
, S.O. 1992, c. 30. In his view, having observed her on
    several occasions, and having reviewed an expert report, she is unable to
    appreciate the reasonably foreseeable consequences of her actions and is
    therefore mentally incapable of representing herself in this case and requires
    legal representation appointed by the Court. Reasons are reported at 2016 ONSC
    6306, leave to appeal to Divisional Court refused, 2017 ONSC 3826, appeal
    quashed 2017 ONCA 268,

[4]

Ms. Huang sought leave to appeal Archibald J.s order. Kurke J. denied
    Ms. Huangs application for leave to appeal with reasons reported at 2017 ONSC
    3826.

[5]

Sitting in her capacity as a judge of the Divisional Court, Swinton J.
    dismissed Ms. Huangs application for judicial review of Kurke J.s order. She
    said:

The applicant seeks judicial
    review of the order of Kurke J. refusing leave to appeal an interlocutory
    order. No appeal lies from such an order. Judicial review is not available to
    challenge the refusal of leave by a Superior Court judge. The application is
    frivolous, vexatious and an abuse of process. Accordingly, it is dismissed
    pursuant to Rule 2.1.01.

[6]

The factors related to the extension of time are that the applicant must
    show that she had an intention to appeal within the relevant period, an explanation
    for the delay in failing to seek leave to appeal, any prejudice to the
    respondent, and the merits of the proposed appeal.

[7]

There is a real prejudice to the respondent in the undue delay in
    resolving this case. Further, the appeal has no merit. Although her reasons are
    sparse, Swinton J. was correct in her decision that judicial review does not
    lie against the decision of a Superior Court judge, and that the order of Kurke
    J. is not appealable: see
Denison Mines Ltd. v. Ontario Hydro
, (2001)
    56 O.R. (3d) 181 (C.A.), at para. 6. For the same reason, no appeal lies to
    this court.

[8]

Accordingly the motion for an extension of time to file a motion for
    leave to appeal is dismissed.

[9]

I understand Ms. Huangs deep concern about the merits of her case and
    what she sees as the failure of successive counsel over the years to agree with
    her self-assessment. She has the strong conviction that the order appointing
    the PGT as her litigation guardian against her wishes denies her human rights.
    However, the process has been fair, and the PGT was validly appointed. She must
    now work with counsel appointed by the PGT to resolve her case.

[10]

The
    responding party seeks costs in the amount of about $3,800 all-inclusive on a
    partial indemnity basis. I award costs in the amount of $1,000.

P. Lauwers J.A.


