



COURT OF APPEAL FOR ONTARIO

CITATION: Huang v. Braga, 2020 ONCA 645

DATE: 20201027

DOCKET: M51687 (M49778)

Pepall J.A. (Motion Judge)

BETWEEN

Shu He Huang,
by her Litigation Guardian, the Public Guardian and Trustee and Jie
    Wei Pan

Plaintiff (Appellant)

Moving Party

and

Ancieto M. Braga

Defendant (Respondent)

Responding Party

Shu He Huang, acting in person

Olivia Holzapfel, for the responding
    party, the Public Guardian and Trustee

Alan L. Rachlin, for the responding
    party, Ancieto M. Braga

Robert H. Rogers, for the responding
    party, Aviva Insurance Company of Canada

Tony Antoniou, for the responding party,
    Lawrence Fine and Jewell Law

Heard: August 21, 2020 by video conference

REASONS FOR DECISION


Introduction

[1]

On April 2, 2019, Rouleau J.A. made an order pursuant to r.37.16 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 prohibiting
    the moving party, Shu He Huang, from bringing any further motions or appeals in
    this court in actions 02-CV-223298CM3, 06-CV-316408PD1, and CV-13-483972 without
    leave of a judge of this court, save for any review of his order. The moving
    party is a party under disability.

[2]

Before me, the moving party seeks leave to appeal orders made by
    Chalmers J. under r. 7.08 of the
Rules of Civil Procedure
.
    Justice Chalmers approved the settlement of these three actions for $1 million to
    be paid by the respondents in the moving partys favour and granted judgment in
    accordance with Minutes of Settlement.

[3]

The moving partys litigation guardian, the Public Guardian and Trustee
    (PGT), who was appointed on October 11, 2016, does not support her requested
    relief.

Background Facts

[4]

The moving party was in a motor vehicle accident that occurred on
    January 24, 2000, and as a result, she commenced three actions in 2002, 2006,
    and 2013 respectively.
[1]
The conduct of the litigation spanned many years, and the moving party was
    represented by at least five different lawyers. The three actions were ordered
    to be tried together. Numerous proceedings, pre-trial conferences, and trial
    management conferences took place. A trial date of October 3, 2016 was set peremptory
    to the moving party. The trial was to proceed before a judge and a jury and was
    scheduled to take four weeks.

[5]

On September 23, 2016, a Certified Capacity Assessor concluded that the
    moving party lacked capacity to act for herself in the litigation. On October
    11, 2016, Archibald J. appointed the PGT as her litigation guardian pursuant to
    r. 7.04(1)(b) of the
Rules of Civil Procedure
.

[6]

The moving party brought six proceedings aimed at overturning the
    appointment of the PGT, including three in this court, but was consistently
    unsuccessful. The respondent, Ancieto M. Braga, eventually brought a motion
    under r. 37.16 seeking an order that the moving party be prohibited from
    bringing further motions or appeals without leave of this court. On April 2,
    2019, Rouleau J.A. ordered that the moving party be prohibited from bringing
    further motions or appeals in this court, absent leave. He observed that courts
    have stated that the moving partys multiple motions and appeals were
    frivolous, yet she continued to bring motions and appeals that could not
    possibly succeed. In addition, there were numerous unpaid cost awards. He
    concluded that the requirements of r. 37.16 had been met. Her numerous motions
    and appeals were abusive of the court's process and were unnecessarily adding
    to the costs of the proceedings.

Approval of the
    Settlement

[7]

Once appointed as the moving partys litigation guardian in the three
    actions, the PGT proceeded to retain outside counsel, Jasmine Daya, to act on
    its behalf as litigation guardian.

[8]

Based on Ms. Dayas advice, the PGT settled the three actions for $1
    million, subject to court approval. It was the PGTs view that the settlement
    was in the best interests of the moving party, a view supported by the presiding
    judge at the pre-trial and case conferences attended by the parties. The responding
    parties and the moving party, represented by the PGT, entered into Minutes of
    Settlement in June and July of 2019.

[9]

On February 11, 2020, Chalmers J. approved the proposed settlement
    pursuant to r. 7.08 of the
Rules of Civil Procedure
. In his endorsement,
    he noted that in the course of two days of case management, the defendants to
    the actions, with the assistance of Archibald J., put together a joint
    settlement offer that exceeded all previous offers to settle. He referred to
    Ms. Dayas sworn affidavit recommending the settlement and that of the PGT,
    both of which explained the basis for the settlement. He stated that the
    settlement reached was fair and reasonable, and given the various issues in the
    case, the recovery at trial would likely fall short of the proposed settlement.
    The settlement was approved, and judgments in accordance with the Minutes of
    Settlement granted on February 11, March 27, and May 28, 2020.

Moving Partys Leave Request

[10]

The
    moving party now seeks leave of this court so that she may seek to appeal the judgments
    of Chalmers J. that approved the settlement. The PGT objects as do the other
    respondents.

Analysis

[11]

There
    is no established test to be applied to motions for leave when the party
    seeking leave is subject to an order under r. 37.16. Rule 37.16 provides:

37.16
On motion by any party, a judge or
    master may by order prohibit another party from making further motions in the
    proceeding without leave, where the judge or master on the hearing of the
    motion is satisfied that the other party is attempting to delay or add to the
    costs of the proceeding or otherwise abuse the process of the court by a
    multiplicity of frivolous or vexatious motions.

[12]

Accordingly,
    r. 37.16 enables a judge to order that for the purposes of a particular
    proceeding, a party may only make further motions with leave.

[13]

Guidance
    on an appropriate test may be sought from analogous, though not identical, provisions,
    such as r. 2.1.02(1) and, s. 140 of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43.  Rule 2.1.02(1) permits a court, on its
    own initiative, to stay or dismiss a proceeding if it appears on its face to be
    frivolous or vexatious or otherwise an abuse of the process of the court. Rule 2.03
    permits a court to dispense with compliance with a rule in the interest of
    justice. However, no leave requirement is incorporated into the Rule and as
    such, no assistance may be found in its language.

[14]

Section 140(1) of the

Courts of
    Justice Act
provides that where a judge of the Superior Court of
    Justice is satisfied, on application, that a person has persistently and
    without reasonable grounds,

(a)  instituted
    vexatious proceedings in any court; or

(b)  conducted
    a proceeding in any court in a vexatious manner, the judge may order that,

(c)  no
    further proceeding be instituted by the person in any court; or

(d)  a
    proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the
    Superior Court of Justice.

[15]

Section
    140(3) states that leave may be provided to a vexatious litigant so declared if
    the court is satisfied that the proceeding sought to be instituted or continued
    is not an abuse of process and there are reasonable grounds for the proceeding.

[16]

This
    provision helps inform an appropriate test for leave required under an order
    granted under r. 37.16. 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.

[17]

It
    may be that sometimes these three prongs overlap. Indeed, the motion before me
    is such a case. For the following reasons, I conclude that leave should not be
    granted in this case.

[18]

Under
    r. 7.01(1), unless the court orders or a statute provides otherwise, a
    proceeding shall be commenced, continued, or defended on behalf of a party
    under disability by a litigation guardian.

[19]

In
Ki Ho Kim v. 260 Wellesley Residences Inc.
, 2017 ONSC
    2985, Firestone J. (as he then was) held, at para. 16, that the party who was under
    disability in that case had no standing independent of his litigation guardian,
    the PGT, to continue the proceeding in issue. This included the bringing of any
    motions independent of the litigation guardian. This decision was upheld on
    appeal to the Divisional Court:
Kim v. Esplanade 75 Inc.
,
    2017 ONSC 4759 (Div. Ct.).

[20]

The litigation guardian is the decision-maker for the party under
    disability for the purposes of the litigation:
Kavuru
    (Litigation Guardian of) v. Heselden
, 2014 ONSC 6718, 328 O.A.C.
    399 (Div. Ct.), at para. 11. In
Kavuru
, Nordheimer
    J. (as he then was) wrote that while it was within the discretion of the motion
    judge hearing the settlement approval motion to consider the position of the
    party under disability, such party no longer had the right, that he would otherwise
    have had, to dictate the course of the litigation: at para. 15. This is
    consistent with the position adopted by the PGT before me.

[21]

Applying
    these principles to this case, the PGT continues to be the litigation guardian
    of the moving party for the purposes of the three actions. As such, the moving
    party is unable to manage the actions and their settlement. That is the
    responsibility of the PGT in its capacity as the litigation guardian of a party
    under disability. As mentioned, the PGT does not wish to appeal or challenge
    the approval judgments. Authority to settle the actions lay with the PGT, not
    the moving party. The same is true with respect to the moving partys wish to
    appeal the judgments approving the settlement.

[22]

Quite
    apart from that reality, the grounds advanced by the moving party in support of
    her motion lack substance. The moving party complains that Ms. Daya made
    factual errors that were accepted by Chalmers J.
Evidence of
    any alleged errors is lacking in the materials filed by the moving party.

[23]

The moving party also asserts that Ms. Daya does not belong to
    the PGT Counsel list [and] she was not the plaintiff counsel either. However, Ms.
    Daya did not have to be on any PGT counsel list; it was open to the PGT to
    retain Ms. Daya to act as counsel for the PGT in its capacity as litigation
    guardian of the moving party.
Sections 2(4), 3, and 10.1(3) of
    the
Public Guardian and Trustee Act
, R.S.O. 1990, c. P.51 relied upon
    by the moving party are inapplicable.

[24]

The
    settlement was the product of the recommendation of counsel hired by the PGT,
    reflected a resolution that was facilitated by Archibald J., and was considered
    and approved by Chalmers J. as required by the provisions of r. 7 of the
Rules of Civil Procedure
. The moving party does not have
    reasonable grounds that merit granting leave and any continuation of these
    proceedings would be abusive in nature.  Rouleau J.A. considered that in the
    past, the moving partys motions and appeals were abusive and frivolous. The
    actions arose from an accident that occurred more than 20 years ago, the
    settlement was finalized by the PGT on the moving partys behalf, and the
    parties are entitled to finality.

[25]

The absence of reasonable grounds, the context, and the interests
    of justice all dictate that these proceedings must draw to a close. For these
    reasons, the motion is dismissed. I decline to make any order as to costs.

S.E. Pepall
    J.A.





[1]

The other plaintiff is the moving partys mother, who died
    in 2011.


