



COURT OF APPEAL FOR ONTARIO

CITATION: Hoang v. Mann Engineering Ltd., 2021 ONCA 742

DATE: 20211021

DOCKET: M52133 (C68186)

Doherty, Lauwers and Miller JJ.A.

BETWEEN

K. Matthew Hoang

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)

Respondents

K. Matthew Hoang, acting in person

Ted Flett and Daniel Hassell, for the respondents

Heard: in writing

A motion to set aside a decision of this court, dated
    December 16, 2020, reported at
Hoang v. Mann Engineering Ltd.
, 2020
    ONCA 808.

REASONS
    FOR DECISION

[1]

Mr. Hoang and the respondents, herein
    referred to as Mann Engineering, have been involved in litigation for some 10
    years. The litigation arises out of Mann Engineerings dismissal of Mr. Hoang.
    In the first action, Mr. Hoang sued Mann Engineering for wrongful dismissal. In
    the second action, he sued Mann Engineering in respect of Mann Engineerings
    allegedly improper efforts to enforce the judgment obtained in the first
    proceeding. With one small exception in the first action, Mr. Hoang has been
    unsuccessful in the proceedings. The litigation has been marked by Mr. Hoangs
    repeated attempts to continue to litigate issues in this court, some decided
    against him and others brand new, after this court has dismissed Mr. Hoangs
    appeals.

[2]

Mr. Hoangs appeal in the second action
    was dismissed by this panel in December 2020:
Hoang v. Mann
    Engineering
,
2020 ONCA 808. Mr. Hoang immediately brought a motion
    asking that this court withdraw its reasons, set aside its judgment, and allow
    Mr. Hoang to amend his pleadings. Mr. Hoang asked that the motion be placed
    before a different panel than this panel, which had heard the appeal. Following
    the usual practice, the motion was placed before this panel. Following the
    usual practice, this panel held that it would hear the motion brought by Mr.
    Hoang.

[3]

After reviewing the motion, this panel
    invoked the courts jurisdiction under Rule 2.1.02, of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194,
which provides:

The court may, on its own initiative,
    stay or dismiss a motion if the motion appears on its face to be frivolous or
    vexatious or otherwise an abuse of the process of the court.

[4]

The parties provided written submissions.

[5]

A review of Mr. Hoangs factum filed on his motion asking the court to
    withdraw its reasons and set aside the judgment demonstrates beyond any doubt
    that Mr. Hoang wants a different panel of this court to sit on appeal from the
    decision of this panel and correct various errors, which Mr. Hoang alleges this
    panel has made. There is no appeal to this court from a decision of this court.
    The dismissal of the Mr. Hoangs appeal is a decision of this court. Nor does
    this court gain jurisdiction simply because a party styles the proceeding as a
    motion rather than as a second appeal.

[6]

Rule 61.16(6.1) provides that this court can set aside a prior decision.
    The circumstances in which it will be appropriate to do so are rare: see
Trillium
    Motor Ltd. v. Cassels Brock & Blackwell LLP
, 2017 ONCA 840, leave to
    appeal refused, [2017] S.C.C.A. No. 366, at para. 6;
Owen Cornelius
    Mullings v. Jacqueline Alice Dian Robertson
, 2020 ONCA 369, leave to
    appeal refused, [2020] S.C.C.A. No. 393, at paras. 4-5.

[7]

None of the circumstances identified in the authorities that could
    justify a reconsideration of a decided appeal arise here. Mr. Hoang simply seeks
    to argue before a different panel that the summary judgment motion judge got it
    wrong and this panel got it wrong when it upheld the summary judgment motion judge.

[8]

It is not enough to conclude that Mr. Hoangs motion has no merit. A
    motion that has no chance of success is not necessarily frivolous, vexatious or
    otherwise an abuse of process:
Collins v. Ontario
, 2017 ONCA 317, leave
    to appeal refused, [2017] S.C.C.A. No. 245, at paras. 19-20.

[9]

Mr. Hoangs motion is, however, not only without merit. The motion is
    part of a pattern of conduct by which Mr. Hoang has repeatedly challenged the
    correctness of decisions made by this court by way of meritless motions brought
    in this court after the appeal had been decided.

[10]

The
    chronology of the proceedings in this court following the dismissal of Mr.
    Hoangs appeal in the first action demonstrate the abusive manner in which Mr.
    Hoang has chosen to litigate his claims against Mann Engineering:

·

Mr. Hoangs appeal in the first action was dismissed on May 5, 2015;

·

On June 18, 2015, the same panel dismissed Mr. Hoangs motion for
    a reconsideration of the decision. Mr. Hoang claimed the panel had made various
    errors in law;

·

On December 2, 2015, a different panel dismissed a second motion
    for a reconsideration of the appeal. That panel also imposed an order under Rule
    2.1.02(1) prohibiting Mr. Hoang from making any further motions without leave
    of the court;

·

On January 28, 2016, the panel which had made the order under Rule
    2.1.02 dismissed Mr. Hoangs third motion to rehear the appeal on the basis
    that the motion was vexatious and an abuse of process.

[11]

The
    reasons given by a panel of this court for invoking Rule 2.1.02 in respect of
    motions brought by Mr. Hoang on his appeal in the first action apply with equal
    force to this motion: see
Hoang v. Mann Engineering Ltd.
, 2015 ONCA
    838. The court said, at para. 14:

Mr. Hoang is arguing that the appeal panel erred in law and in
    fact by upholding the trial judges order and so the appeal should be re-heard.
    As indicated by the panel in its previous endorsement, these are arguments that
    should be made to the Supreme Court of Canada on an application for leave to
    appeal.

[12]

Mr.
    Hoangs argument that because his chances of getting leave to appeal to the
    Supreme Court of Canada are slim, he should be allowed to challenge alleged
    errors made by this court by further proceedings in this court is without
    merit. The jurisdiction of the Supreme Court of Canada and how it chooses to
    control its docket have nothing to do with the jurisdiction of this court.

[13]

Mr.
    Hoangs attempts to continue to litigate issues decided by this court by way of
    meritless motions brought after the court has rendered its decision amounts to
    an abuse of the courts process. Mann Engineering has been put to the time and
    energy of responding to these misconceived motions. Mr. Hoangs efforts to
    continue the litigation in this court may also impact on Mann Engineerings
    ability to enforce orders obtained in these proceedings, or to pursue other remedies.
    Finally, litigation conduct like Mr. Hoangs places an added and unwarranted strain
    on the limited resources available within the judicial system.

[14]

This
    is an appropriate case in which to make the same order that was made by this
    court in December 2015 in the appeal taken by Mr. Hoang in the first action. Mr.
    Hoangs motion asking the court to withdraw its reasons and set aside its
    judgment is dismissed pursuant to Rule 2.1.02, dismissed as an abuse of the
    process of the court. Further, the court orders that Mr. Hoang is prohibited
    from filing any further motions in respect of this appeal (C68186) without
    first obtaining leave of a judge of this court.

[15]

Mann
    Engineering is entitled to its costs. Those costs relate to written submissions
    in respect of the courts initiation of proceedings under Rule 2.1.02. We fix
    those costs at $500.

Doherty J.A.

P. Lauwers J.A.

B.W. Miller J.A.


