



COURT OF APPEAL FOR ONTARIO

CITATION: Hoang v. Mann Engineering Ltd.,
    2020 ONCA 808

DATE: 20201216

DOCKET: C68186

Doherty, Lauwers and Miller
    JJ.A.

BETWEEN

K. Matthew Hoang

Plaintiff (Appellant)

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)

K. Matthew Hoang, appearing in person

Ted Flett and Daniel Hassell, for the
    respondents

Heard: December 3, 2020 by
    video conference

On appeal from the order of Justice B.
    Glustein of the Superior Court of Justice, dated November 4, 2019, reported at
Hoang
    v. Mann Engineering Ltd.
, 2019 ONSC 6383.

By the Court:


I



[1]

The appellant sued the respondents (Mann
    Engineering) in negligence. Mann Engineering moved for summary judgment. The appellant
    brought a cross-motion for summary judgment. The motion judge allowed the
    motion and dismissed the appellants action. He dismissed the cross-motion.

[2]

The appellant appeals from that order asking
    that the judgment dismissing his claim be set aside and that he be granted
    summary judgment. The appellant also seeks leave to appeal the costs order made
    by the motion judge. We dismiss the appeal, grant leave to appeal the costs
    order and dismiss that appeal.


II



[3]

The appellant used to work for Mann Engineering.
    He sued Mann Engineering for wrongful dismissal in 2011. The claim was
    dismissed in 2014 and Mann Engineering was awarded costs in the amount of
    $76,866.19. The long chronology of the appellants attempts to appeal from the judgment
    dismissing his action is summarized in the reasons of the motion judge:
Hoang
    v. Mann Engineering Ltd.
, at para. 11.

[4]

Mann Engineering commenced garnishment
    proceedings in March 2016. They issued a requisition of garnishment to the
    appellants employer pursuant to r. 60.08(4) and sought to examine the
    appellant in aid of execution. The garnishment proceedings stalled as the
    appellant made various efforts to appeal the dismissal of his action. Those
    efforts came to their ultimate end in January 2017.

[5]

In December 2016, Mann Engineering brought a
    motion in the garnishment proceedings seeking three things:

·

an order requiring the appellants employer (the
    employer) to garnish his wages (the garnishment order);

·

an order requiring the employer to pay in full
    the appellants debt pursuant to r. 60.08(17) (the enforcement order); and

·

an order requiring the appellant to attend for
    examination in aid of execution.

[6]

Mann Engineering had not previously sought an
    enforcement order against the employer. An enforcement order could only be made
    if the employer had not served and filed its garnishee statement. Mann
    Engineering had been served with a garnishee statement, but the employer had
    apparently not filed that statement with the court.

[7]

To this stage in the garnishee proceedings, the
    employer had not been separately represented. The appellant appeared and spoke for
    himself and his employer. Mann Engineerings request for an enforcement order
    against the employer potentially, significantly altered the focus of those
    proceedings. Under the enforcement order, the employer could be required to pay
    the entire debt.

[8]

Mann Engineerings motion was heard in late
    December 2016. Once again, the employer was not separately represented. The
    appellant appeared and made submissions referable to both his and the
    employers position. In her brief endorsement, dated January 11, 2017, the
    master made no reference to any enforcement order against the employer. She
    indicated the employer was prepared to garnish the appellants wages and that,
    as the appeal process was now concluded, the garnishment could proceed. In the
    endorsement, the master indicated order to go as asked.

[9]

Counsel for Mann Engineering prepared a draft
    order. At counsels request, the master dispensed with the requirement that the
    appellant approve the content of the order. The order issued as drafted by counsel
    for Mann Engineering. It included an enforcement order requiring the employer
    to pay to Mann Engineering the entire amount of the judgment debt owed by the
    appellant.

[10]

The motion judge, after reviewing the transcripts
    of the proceedings before the master, and the terms of the endorsement, was satisfied
    the order should not have contained a term requiring the employer to pay the
    debt (the enforcement order):
Hoang v. Mann Engineering Ltd.
, at para.
    41. We see no reason to interfere with that finding. Not only was the
    endorsement silent about the enforcement order, counsel for Mann Engineering, during
    his submissions before the master on the motion, appeared to abandon the request
    for an enforcement order, focussing instead on the garnishee order. In his
    submissions, counsel argued the garnishee order would work no financial
    hardship on the employer.

[11]

The employer became aware of the enforcement
    order in May 2017, when Mann Engineering brought a motion to vary the
    enforcement order to add other related corporate entities. On the return of
    that motion, Josef Ger, the president of the employer, filed an affidavit
    indicating the appellant had assumed responsibility for the garnishment
    proceedings. Mr. Ger alleged he had been misled by the appellant on many
    matters relating to the garnishment and certain information had been kept from
    him by the appellant. There was no evidence before the master challenging Mr.
    Gers assertions.

[12]

Mr. Ger indicated the employer was prepared to
    comply with the garnishment order, but asked the master to set aside the
    enforcement order as a nullity. The master accepted the position put forward by
    the employer and set aside the enforcement order on the basis of mistake. She
    ordered the employer to garnish the appellants wages and she ordered costs in
    favour of Mann Engineering in the amount of $6,000, payable by the appellant
    and the employer on a joint and several basis.

[13]

In her endorsement setting aside her previous
    order, the master was not critical of Mann Engineering for taking out the
    enforcement order, although when considering the quantum of costs, she did
    refer to the defendants [Mann Engineering] own errors. It is crystal clear the
    master set aside the enforcement order because she accepted Mr. Gers assertions
    that the employer had been kept in the dark and misled by the appellant.

[14]

The masters endorsement setting aside the
    enforcement order was made on September 12, 2017. The employer terminated the
    appellants employment about a month later.

[15]

The appellant did not sue his employer for
    wrongful dismissal, but instead sued Mann Engineering in negligence for damages
    arising out of his dismissal.

[16]

In his negligence claim, the appellant alleged,
    but for the improper obtaining of the enforcement order by Mann Engineering,
    his employer would not have come to the opinion the appellant had misled and
    lied to the employer throughout the garnishment proceedings and would not have
    fired him. Consequently, according to the appellant, Mann Engineering caused
    his dismissal.

[17]

The appellant also alleged, that since his job
    was the source of his potential payment of the debt he owed to Mann Engineering,
    his employment was an asset to Mann Engineering. This, said the appellant, established
    the requisite relationship between the appellant and Mann Engineering necessary
    to impose a duty of care in the garnishment proceedings on Mann Engineering in
    respect of the appellants ongoing employment. Finally, the appellant alleged his
    termination was a reasonably foreseeable consequence of Mann Engineerings
    obtaining of the enforcement order against the employer.


III



[18]

Before addressing the arguments, it is important
    that to emphasize the appellants statement of claim advanced only a negligence
    claim. The motion judge treated the appellants claim as if it included a claim
    based on the tort of abuse of process. The motion judge found no triable issue
    in respect of either the negligence claim or the abuse of process claim.

[19]

On appeal, the appellant stressed that he never
    pleaded the tort of abuse of process, did not intend to do so, and was not
    relying on any such claim. The appellant acknowledged he advanced only a negligence
    claim.

[20]

In granting summary judgment on the negligence
    claim, the motion judge said, at para. 77:

I accept the submissions of the defendants
    that the duty of care upon which Hoang relies is not established on the
    evidence, and that even if a duty of care should be found to exist, the
    plaintiff has failed to establish causation between the breach and the loss of
    Hoangs employment with RLCC.

[21]

We are satisfied the appellants negligence
    action was properly dismissed on the basis the evidence did not give rise to a
    triable issue on the question of whether Mann Engineering, in the course of pursuing
    the garnishment proceedings, owed a duty of care to the appellant. Before we
    turn to that issue, we will briefly address three other arguments advanced by
    the appellant in his factum and in oral argument.


IV



[22]

The appellant contends the motion judge misapprehended
    the evidence when the motion judge said, at para. 85:

Consequently, any error in the Enforcement Order,
by granting relief that the defendants abandoned in the
    course of the hearing
, cannot be seen as an intentional, overt act for
    an improper purpose. The enforcement term was consistent with the notice of
    motion, consistent with the submissions that no garnishee statement was filed
    by RLC, and consistent with Rule 60.08(17). [Emphasis added.]

[23]

The appellant submits Mann Engineering did not
    abandon the enforcement order, but actively pursued it, going so far as to obtain
    a writ of seizure against the employer.

[24]

The appellant misunderstands the reference in
    para. 85 of the motion judges reasons. The motion judge referred to Mann
    Engineering abandoning the claim for an enforcement order in the course of the
    hearing. The motion judge was referring to the submissions made by counsel for
    Mann Engineering, in which he appeared to abandon any request for an
    enforcement order, focussing instead on the garnishment order and the order
    requiring the appellant to attend for examination. We do not read the comment
    by the motion judge, at para. 85, as speaking to Mann Engineerings actions after
    the enforcement order was obtained.

[25]

In addition, even if there is a misapprehension
    of the evidence in para. 85, that misapprehension does not assist the
    appellant. At para. 85, the motion judge is analyzing the abuse of process
    claim which he took as implicit in the appellants statement of claim. In
    particular, the motion judge was addressing the requirement of an overt act
    designed to further some improper purpose. The appellant has made it clear he
    does not advance a claim based on the tort of abuse of process. Any
    misapprehension of the evidence by the motion judge in the context of his abuse
    of process analysis has no effect on the motion judges dismissal of the
    negligence claim.

[26]

The appellant next argues the motion judge erred
    in speculating as to the cause of the appellants termination. He contends
    there is no evidence to support the motion judges finding the appellant was
    fired for surreptitious conduct. The appellant further contends Mann
    Engineering never made that assertion, indicating instead it had no evidence as
    to the cause of the appellants termination.

[27]

Mann Engineerings statement of defence puts in
    issue the cause of the appellants termination. The statement of defence alleges
    the appellants actions caused his own termination. There was evidence before
    the motion judge from which it could be inferred the employers belief the
    appellant had acted dishonestly throughout the garnishment proceedings was the
    reason for his dismissal.

[28]

Judges on summary judgment motions are permitted
    to draw reasonable inferences: r. 20.04(2.1). Not all reasonable inferences are,
    however, appropriately drawn in any given summary judgment motion. It depends
    on the record and the issues. As we are disposing of the appeal on the duty of
    care issue, we need not decide whether an inference as to the cause of the
    appellants dismissal by his employer was appropriately made on this evidentiary
    record.

[29]

In his third argument, the appellant submits the
    motion judge wrongly indicated the tort of abuse of process applied only if the
    appellant showed Mann Engineering owed a duty of care to the appellant.

[30]

The tort of abuse of process is premised on an
    improper use of the civil justice process. The concept of a duty of care has no
    role to play in the abuse of process analysis. Although the motion judge accurately
    identified the elements of the tort, at para. 72, later in his reasons he
    wrongly indicated a duty of care was also an element of an abuse of process
    claim (e.g. see para. 81).

[31]

Assuming the motion judge erred in law in
    describing the elements of the tort of abuse of process, that error cannot advance
    the appellants appeal. As indicated above, the appellant does not advance a claim
    based on the tort of abuse of process. Any misstatement of the elements of that
    tort by the motion judge could not prejudice the appellant.


V



[32]

We now come to the duty of care issue. To succeed
    on the negligence claim, the appellant had to show Mann Engineering owed him a
    duty of care while pursuing their garnishment remedies. For the purpose of determining
    whether the existence of a duty of care raised a triable issue on this record,
    we will assume:

·

Mann Engineering should not have included an
    enforcement order in the draft order produced to, and eventually signed by, the
    master in January 2017; and

·

the enforcement order was at least one of the
    reasons the employer fired the appellant.

[33]

The appellant submits, because his job was an
    asset to Mann Engineering, in that it was a potential source of the payment of
    the appellants debt, Mann Engineering owed the appellant a duty of care in
    respect of that asset. In effect, the appellant contends, a judgment creditor,
    who is seeking to realize on a judgment through garnishment proceedings, owes a
    duty of care to the debtor to take all reasonable steps to avoid causing harm
    to the debtors ongoing employment. The appellant acknowledges the duty of care
    he describes is an entirely novel one. Neither the specific duty, nor any
    analogous one has ever been recognized in the Canadian law of negligence.

[34]

When a plaintiff advances a negligence claim
    based on a novel duty of care, the courts determine whether that duty exists using
    a two-step process. The first step looks to the nature of the relationship
    between the plaintiff and the defendant and the foreseeability of the harm
    caused. These two factors, both of which address proximity, taken together
    determine whether a
prima facie
duty of care is established:
168872
    Ont. Inc. v. Maple Leaf Foods Inc.
, 2020 SCC 36, at paras. 30-31;
Cooper
    v. Hobart
, 2001 SCC 79, at paras. 22, 30-32.

[35]

At the second step, the court looks to residual policy
    considerations existing outside of the relationship between the defendant and plaintiff,
    which warrant negativing the
prima facie
duty of care established at
    the first step:
Cooper v. Hobart
, at paras. 37-39.

[36]

We are satisfied there is no
prima facie
duty of care. The evidence does not establish the requisite proximity between
    the appellant and Mann Engineering. There is no relationship between them other
    than the relationship of a judgment creditor using the garnishment proceeding
    in an effort to realize on the debt owed by a judgment debtor. That
    relationship has played out in the context of ongoing litigation initiated by
    Mann Engineering in an effort to recover the debt owed to it by the appellant.
    The adversarial relationship inherent in the litigation process is antithetical
    to the kind of relationship that gives rise to a duty on one party to take
    reasonable care not to interfere with the legitimate interests of the other
    party. There is nothing in the relationship that could justify placing an
    obligation on Mann Engineering to take reasonable steps to protect the
    appellants ongoing employment from any possible negative consequences flowing
    from Mann Engineerings conduct of the garnishment proceedings.

[37]

The appellants description of his ongoing employment
    as an asset to which Mann Engineering looked for recovery of its debt does
    not advance the proximity analysis. However one chooses to describe the
    appellants employment, the nature of the relationship engaged on this evidence
    remains exactly the same. Mann Engineering, the judgment creditor, is trying to
    collect its debt from the appellant, the judgment debtor, through garnishment
    proceedings. Nor does the fact Mann Engineering improperly obtained an
    enforcement order against the employer alter the nature of the relationship
    between Mann Engineering and the appellant. Mann Engineerings misstep in the
    course of the garnishment proceedings cannot create a duty of care owed to the
    appellant. Mann Engineerings error would be significant in determining whether
    Mann Engineering fell below the standard of care, if in fact a duty of care had
    existed.

[38]

While we are satisfied the nature of the
    relationship between Mann Engineering and the appellant in the context of the garnishment
    proceedings precludes the existence of any duty of care, we also see no basis
    in the evidence for a finding the type of harm allegedly caused to the
    appellant was reasonably foreseeable to someone in the position of Mann
    Engineering:
Rankin v. J.J.
, 2018 SCC 19, at paras. 24, 26, 53. On the
    evidence, there was no basis upon which Mann Engineering knew, or ought to have
    known, its actions would cause the employer to believe the appellant had misled
    the employer throughout the garnishment proceedings. Without that knowledge, it
    was not reasonably foreseeable the employer would fire the appellant after Mann
    Engineering obtained the enforcement order. Consequently, the kind of damage
    alleged by the appellant was not a reasonably foreseeable consequence of
    obtaining the enforcement order.

[39]

We add one additional comment. Although we do
    not reach the second step of the duty of care analysis, policy considerations
    point strongly away from recognizing the duty of care advanced by the
    appellant. Access to the civil courts to assert claims and enforce judgments is
    fundamental to the operation of our justice system. Potential liability in
    negligence, based on a duty of care owed by a plaintiff to a defendant, must
    surely discourage plaintiffs from using the court process to advance claims and
    enforce judgments. Tort law, and specifically the tort of abuse of process,
    protects against the improper use of the civil justice process. Policy considerations
    do not favour extending that protection to negligence-based claims.

[40]

We hold the motion judge correctly determined
    there was no triable issue on the question of whether Mann Engineering owed a
    duty of care to the appellant in the circumstances revealed by the evidence.
    The action was properly dismissed.

[41]

The appeal is dismissed.


VI



[42]

The appellant also seeks leave to appeal the
    costs order made by the motion judge. He relied on his written submissions. We
    have considered those arguments. None warrant intervention by this court. Leave
    to appeal costs is granted, but the appeal is dismissed.


VII



[43]

Mann Engineering shall file submissions as
    to costs on the appeal within 10 days of the release of these reasons. The
    submissions shall not exceed 5 pages. The appellant shall file his submissions
    within 10 days of receipt of the respondents submissions. The appellants
    submissions shall not exceed 5 pages.


Released:
DD
DEC 16 2020

Doherty J.A.

P. Lauwers J.A.

B.W. Miller J.A.


