



COURT OF APPEAL FOR ONTARIO

CITATION: Nguyen v. Economical Mutual Insurance Company, 2015
    ONCA 828

DATE: 20151130

DOCKET: M45641 M45765

Hourigan J.A. (In Chambers)

BETWEEN

Binh Thi Nguyen

Plaintiff

(Moving Party)

and

Economical Mutual Insurance Company,

and Dr. Monte Bail

Defendants

(Respondent Parties)

Binh Thi Nguyen, acting in person

Catherine Korte and Matthew W. Malcolm, for the
    respondent Economical Mutual Insurance Company

Jacqueline Cole and Elder C. Marques, for the respondent
    Dr. Monte Bail

Heard:Â  November 27, 2015

ENDORSEMENT

Introduction

[1]

The moving party, Binh Thi Nguyen, brings a motion for an extension of
    time to serve and file her notice of appeal. The putative respondents to the
    appeal, Economical Mutual Insurance Company (âEconomicalâ) and Dr. Monte Bail,
    resist the motion. Dr. Bail brings a cross-motion seeking a stay of the appeal
    and/or security for costs, if the motion for an extension is granted.

[2]

In considering Ms. Nguyenâs motion, I review below: the background facts
    of the case, the legal principles applicable to a motion to extend the time to
    serve and file a notice of appeal, and the application of those legal
    principles to the facts of this case.

Background Facts

[3]

Ms. Nguyen commenced an action against Economical and Dr. Bail alleging
    that, in the context of a claim she made for statutory accident benefits, they
    prepared an Insurerâs Assessor report which libelled her. This claim is one of
    several legal proceedings she has commenced against Economical and related
    entities arising from the denial of her statutory accident benefits claim.

[4]

The parties were unable to agree to a discovery plan and Ms. Nguyen
    brought a motion before Justice Stinson on November 21, 2014 to impose a
    discovery plan. She was unsuccessful on that motion. Justice Stinson accepted
    the discovery plan proposed by Dr. Bail, with two minor exceptions. Ms. Nguyen
    delivered a notice of appeal from that order, but the appeal was later abandoned.

[5]

Ms. Nguyen did not comply with Justice Stinsonâs order and counsel for Economical
    and Dr. Bail advised her that they would bring a motion to stay/dismiss her
    action for non-compliance with that order. Ms. Nguyen refused to provide her
    availability for such a motion, so a case conference was held in front of
    Master Pope on May 7, 2015 to set a timetable. Ms. Nguyen did not attend the
    case conference and a timetable was ordered by the master in her absence.

[6]

On June 3, 2015, Ms. Nguyen brought an unsuccessful motion before
    Justice Perell to vary or set aside Justice Stinsonâs order. The defendants
    were awarded costs of $2,000 each, in any event of the cause.

[7]

On June 24, 2015 the defendantsâ motion to stay/dismiss the action was
    heard before Justice Faieta. On the morning of the motion, Ms. Nguyen advised
    that she would not attend because she âshe had been legally advisedâ not to do
    so. The motion proceeded in her absence and an order was made that Ms. Nguyenâs
    action would be dismissed unless she complied with Justice Stinsonâs order and
    paid each defendant $2,000 costs by July 17, 2015. Pursuant to that order, the
    action would be dismissed if the defendants provided an affidavit after July
    17, 2015 advising the court that Ms. Nguyen remained non-compliant with Justice
    Stinsonâs order. Copies of the endorsement and Justice Faietaâs order were
    provided to Ms. Nguyen.

[8]

Rather than comply with the order of Justice Faieta, Ms. Nguyen brought
    an emergency motion before Justice Corrick on July 15, 2015 to set aside
    Justice Stinsonâs order. In support of that motion she swore an affidavit that
    included a claim that she was in financial hardship. A notice of examination
    was served upon Ms. Nguyen to cross-examine her on her affidavit. Ms. Nguyen
    failed to attend for cross-examination. Justice Corrick dismissed the motion,
    finding that it was an abuse of process, and ordered Ms. Nguyen to pay costs of
    $3,000 to each defendant.

[9]

On July 21, 2015, Dr. Bailâs counsel filed an affidavit with the court,
    sworn July 20, 2015, confirming that Ms. Nguyen remained non-compliant with
    Justice Stinsonâs order. Justice Faieta dismissed Ms. Nguyenâs action by order
    dated August 26, 2015, which was entered the next day. On August 28, 2015,
    counsel for Dr. Bail sent a copy of Justice Faietaâs issued and entered order
    to Ms. Nguyen by email.

[10]

On
    September 3, 2015, Ms. Nguyenâs daughter wrote to opposing counsel to canvass
    dates for a motion to set aside Justice Faietaâs order of August 26, 2015. She
    was advised by counsel that the action was dismissed.Â  A similar exchange of
    emails occurred on September 9, 2015 and September 29, 2015. In both cases, Ms. Nguyenâs
    daughter attempted to set a date for a motion to set aside Justice Faietaâs
    order and she was told by counsel that the action had been dismissed.

[11]

On
    October 7, 2015, Ms. Nguyen wrote to counsel seeking their consent for the late
    filing of her notice of appeal of Justice Faietaâs order dated October 26,
    2015. That consent was not forthcoming, necessitating this motion.

Legal Principles

[12]

With
    that factual background in mind, I turn to the test for an extension of time
    for the service and filing of a notice of appeal. Pursuant to r. 3.02(1), the
    court may order an extension or abridgment of time on such terms as are just.
    The following five factors are relevant
:

(1) whether the appellant formed an intention to
    appeal within the relevant period;

(2) the length of, and explanation for delay;

(3) the prejudice to respondent;

(4) the merits of the appeal; and

(5) whether the âjustice of the caseâ requires it.

See
Enbridge Gas Distribution Inc. v. Froese
,
    2013 ONCA 131
, at para. 15
, and
Howard v. Martin
,
2014 ONCA 309
, at
    para. 26.

[13]

When
    considering the merits of the appeal, it is not with a view to determining
    whether the appeal will succeed, but only with a view to determining whether
    the appeal has so little merit that the court could reasonably deny the
    important right of appeal:
Issai v. Rosenzweig
,
2011 ONCA 112
, at
    para. 10, and
Duca Community Credit Union Ltd. v. Giovannoli

(2001), 142 O.A.C. 146 (C.A.)
,
    at para. 14. The merits of a proposed appeal can be decisive on a motion to
    extend the time for filing. Even if the other factors militate against
    extending time, the merits may be so significant as to justify extending time:
Howard
,
    at para. 36.Â  Similarly, even if other factors militate in favour of granting
    an extension, where the appeal is clearly without merit the motion will be denied:
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5
, at para.7.

Application of Legal Principles

[14]

There
    is no evidence that Ms. Nguyen intended to appeal Justice Faietaâs order of
    August 26, 2015 within 30 days of the making of that order. It is clear that
    she understood that an appeal was the appropriate course of action. She had
    previously delivered a notice of appeal from the order of Justice Stinson,
    which appeal she later abandoned. Moreover, at the hearing before Justice
    Corrick on July 13, 2015, Justice Corrick told Ms. Nguyen repeatedly that a
    motion to set aside an order was not the correct procedure and that if she
    disagreed with an order the proper course of action was to appeal. Despite her
    knowledge that an appeal was the appropriate remedy, Ms. Nguyen declined to
    pursue that remedy within the time period in which to do so. Â Instead, she
    sought to schedule a motion to set aside Justice Faietaâs order.

[15]

Â With
    respect to length of the delay, it was relatively short. However, no explanation
    was offered to explain the delay. This is similar to the situation in
Ontario
    Wealth Management v. Sica Masonry and General Contracting Ltd.
, 2014 ONCA
    500, where the court dismissed a motion for a time extension to appeal where no
    explanation for the delay was provided.

[16]

I
    am satisfied that there is prejudice to the respondents if the relief is
    granted. To date, there are four costs orders against her by four different
    Justices of the Superior Court. There is a real risk that the respondents will
    not recover the existing costs awards or any future costs awards. In addition,
    the respondents ought not to be required to continue in litigation in which Ms. Nguyen
    refuses to abide by the court process.

[17]

With
    respect to the merits of the appeal, there is nothing in the material filed on
    this motion that discloses the grounds of the purported appeal. Justice Faieta
    made his order of June 24, 2015, exercising his discretion on a full record. On
    my view of the record, there is nothing to suggest that he made any error in
    the exercise of his discretion. To the contrary, his order appears to have been
    well justified given Ms. Nguyenâs refusal to comply with Justice Stinsonâs
    order. The order of August 26, 2015, was simply the logical follow up from his
    earlier order. I note as well that Ms. Nguyen has not filed any material
    suggesting that her underlying appeal is meritorious. While the merits test on
    this motion is not a high threshold, it has not been met in this case.

[18]

In
    summary, none of the first four factors militate in favour of granting an
    extension. The question becomes whether the justice of the case favours an
    extension? The answer to that question is no. Ms. Nguyen has engaged in a
    course of conduct throughout the litigation that demonstrates a lack of respect
    for court orders and the court process. Costs orders remain outstanding. To
    date, she is still not in compliance with the order of Justice Stinson,
    including the production of documents that the court identified as relevant in
    the discovery plan it imposed on the parties.Â  She has failed to attend,
    without good reason, for cross-examination and on a case conference. She has repeatedly
    brought motions in the Superior Court that are clearly collateral attacks on
    orders that she has not appealed and ignored the warnings of the court that the
    motions are an abuse of process. This conduct is relevant to whether the
    justice of the case favours an extension:
Howard
at para. 54. In my
    view, nothing in Ms. Nguyenâs conduct supports the granting of an indulgence by
    this court and the justice of the case does not favour an extension.

Disposition

[19]

The
    motion is dismissed. Given my ruling on the motion, it is unnecessary to
    consider the cross-motion, which is dismissed.

[20]

The
    respondents, as the successful parties, are entitled to their costs of the
    motion.Â  Ms. Nguyen submitted that she has no money to pay a costs award.
    However, given her refusal to attend on a cross-examination on this point, it
    is not possible for me to assess the accuracy of that statement.Â  I fix costs at
    $1,500, for each of Economical and Dr. Bail, inclusive of fees, disbursements,
    and applicable taxes.Â  These sums are entirely reasonable and well below the
    costs actually incurred by Economical and Dr. Bail. The costs are payable by
    Ms. Nguyen within 30 days. Ms. Nguyenâs approval of the form and content of
    the draft order is dispensed with.

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    W. Hourigan J.A.â


