



COURT OF APPEAL FOR ONTARIO

CITATION: Howie, Sacks & Henry LLP v. Chen, 2016 ONCA 213

DATE: 20160316

DOCKET: C60462

LaForme, Pardu and Roberts JJ.A.

BETWEEN

Howie, Sacks & Henry LLP and Singer Kwinter

Applicants (Respondents)

and

Wei Chen

Respondent (Appellant)

Gary M. Caplan and Justin W. Anisman, for the appellant

David J. Levy, for the respondent, Howie, Sacks and
    Henry LLP.

Alfred M. Kwinter and Veronica S. Marson, for the
    respondent, Singer Kwinter

Heard: March 11, 2016

On appeal from the order of Justice G. R. Dow of the
    Superior Court of Justice, dated April 21, 2015, with reasons reported at 2015
    ONSC 2501.

ENDORSEMENT

Introduction

[1]

On April 18, 2015 an application brought by the respondent law firms to
    have Wei Chen  also known as Wayner Wei Chan  declared a vexatious litigant
    was heard. Mr. Chen did not file any responding material and was not present or
    represented by counsel on this occasion. Rather, he had an acquaintance  not a
    lawyer and
not completely fluent in English
 attend on the application to deliver an envelope requesting an adjournment
    due to illness. The acquaintance also delivered an April 14, 2015 printout of
    an email to the civil applications office advising that he was unable to attend
    this application due to illness.

[2]

The application judge declined Mr. Chens request for an adjournment and
    on April 21, 2015 the application was granted and Wei Chen was declared a
    vexatious litigant. He appeals that order.

Background in Brief

[3]

Mr. Chen was involved in a motor vehicle accident on May 24, 2001. A
    claim was issued against his own insurer for additional accident benefits to be
    paid, as well as an action against those responsible.

[4]

After first retaining at least two other firms,
in June 2005
Mr. Chen retained the respondent, Howie, Sacks to
    handle both the accident benefits and tort claims. Howie, Sacks were counsel in
    August 2007 when a settlement was achieved in the benefits claim for an
    additional $330,000,
from which Mr. Chen
    received a net amount of $233,000.

[5]

In December 2007 Mr. Chen switched counsel, retaining another law firm
    to represent him in the tort claim, and next retained the respondent, Singer
    Kwinter in March 2010. Singer Kwinter were counsel o
n November 30, 2011, when Mr. Chen's tort claim was settled for $450,000.
    From which Mr. Chen received a net amount $340,000.

[6]

Following the settlement of his tort claim, Mr. Chen began various
    proceedings against some of his previous lawyers including the respondents
    regarding how his accident claims were handled. To date, none of these
    proceedings have resulted in any adverse findings against the actions of his
    former lawyers.

[7]

The application judge, at para. 26 of his reasons, described Mr. Chens proceedings
    this way:

[Mr. Chen] has now engaged in years of litigation that has
    repeatedly been the subject of consideration and rejection by Law Society
    officials, Superior Court Assessment Officers, multiple Superior Court
    Justices, the Associate Chief Justice and one of the most senior members of the
    Court of Appeal. He has been ordered to pay costs on five occasions totaling
    $17,769.50. His efforts and conduct have variously been described as having no
    merit and as deceitful.

Grounds of Appeal

[8]

Mr. Chen
s

core submission is
that in exercising his discretion in this
    matter the application judge failed to balance the interests of each of the
    parties and the interests of the administration of justice in the orderly
    processing of civil trials on their merits as mandated by this court in
Khimji
    v. Dhanani
, (2004), 69 O.R. (3d) 790. Following on this, Mr. Chen asserts
    that the application judge committed two discrete errors:

1) That it is apparent that Mr. Chen was treated unfairly by
    the court when his adjournment was unreasonably denied and the application
    proceeded in his absence.

2) That the application judge failed to consider certain
    factors in applying the test of what constitutes a vexatious litigant under s.
    140 of the
Courts of Justice Act
, R.S.O. 1990, c C.43.

[9]

We disagree with Mr. Chen. When the application judges reasons are read
    as a whole there is no question that he conducted the correct balancing of the
    necessary interests. Further, as we explain, there is no merit to the two
particularized
grounds of appeal Mr. Chen
    advances. In sum, there is no reason for this court to exercise its limited
    authority to intervene in the application judges exercise of discretion in
    this case.

Analysis

(1)

Denial of Adjournment

[10]

The
application
judge was presented with documents from Mr. Chens associate that Mr. Chen
    could not attend the
application
because
    he was too ill. The associate handed the
application
judge
an envelope containing

copies of an
    email Mr. Chen sent to Howie, Sacks on May 7, 2014, emails he sent to court
    staff and the respondents the day before advising he was sick and had not
    received the application material. The envelope also contained a prescription
    Mr. Chen obtained the day before prescribing various over-the-counter
    medications for diarrhea, vomiting, nausea, coughing, and pain and fever.

[11]

After reviewing the material provided by the
    associate, the application judge denied the adjournment. His reasons for doing
    so are found in para. 2 of his reasons:

In the circumstances, being the nature of the application, the
    facts and history of the matter summarized below, the upcoming court hearings
    on April 23, 2015 involving Howie Sacks  and an attendance May 15, 2015,
    presumably in the Court of Appeal involving  Singer, Kwinter  I declined the request
    for an adjournment.

[12]

None
    of the material submitted stated that Mr. Chen was ill on the actual hearing
    date or that he was physically unable to attend the hearing. Mr. Chen, as is
    made clear by the record, is no stranger to court process and procedure and the
    necessity of placing before the court a proper record for the relief being
    sought.

[13]

Further,
    at the time of the application there were outstanding cost orders totaling
    $17,769.50 which Mr. Chen had not paid. Moreover, a period of adjournment would
    have allowed Mr. Chen to continue his other upcoming proceedings and driven up
    the costs of the litigation against the respondents even further, with little
    to no hope of them ever being able to recover costs against Mr. Chen: see,
Predie
    v. Barrie
(City), 2007 ONCA 291
.

[14]

There
    was nothing wrong with the application judge exercising his discretion as he
    did. His decision is wholly supported by the record that was before him and his
    decision is reasonable. This ground of appeal fails
.

(2)

Vexatious Litigant

[15]

The
    application judge applied the correct law in deciding whether to declare Mr.
    Chen a vexatious litigant; namely s. 140 of the
CJA
. He was aware of
    the purpose of this legislative provision as well as its limitations and the
    test to be applied when deciding its application. His conclusions are found at
    para. 31 of his reasons:

As summarized above from the record of this application, I am
    satisfied that Wei Chen, also known as Wayner Wei Chan, has become a vexatious
    litigant particularly with regard to his pursuit of both Applicant law firms
    including the members, associates and employees in those law firms. I am
    particularly persuaded by his failure to pay the legal costs awarded against
    him, which shows a particular lack of respect or regard for this Court and the
    administration of justice.

[16]

Mr.
    Chen submits that the application judge erred in law by failing to consider
    that Mr. Chen has been substantially self-represented throughout the history of
    his proceedings; that he speaks, reads, and writes English very poorly; and
    that he lives in poverty and had no means to obtain legal advice. In addition,
    he submits that most importantly the application judge erred further by failing
    to consider that he suffers from a serious brain injury.

[17]

There
    is nothing on the record that was before the application judge that was
    directed at Mr. Chens serious brain injury, nor does the record properly
    address Mr. Chens allegations of his deficiencies with the English language.
    We note again that Mr. Chen did not file any responding materials on the
    application.

[18]

Mr.
    Chen was represented by counsel when he approved of the settlements in both the
    benefits and tort claims referred to above. As we said, the record illustrates
    that Mr. Chen has participated in an array of court processes and proceedings,
    many with counsel, others without. He appears from the record to be a somewhat
    sophisticated self-represented litigant.

[19]

Mr.
    Chen has not satisfied us that the application judge made any errors in his
    decision to declare Mr. Chen a vexatious litigant. There is no basis upon which
    this court should interfere with the application judges disposition of the
    respondents applications on the merits. This ground of appeal has no merit.

Disposition

[20]

For
    these reasons, the appeal is dismissed. The respondents are awarded their costs
    of the appeal in the aggregate amount of $16,750 inclusive of disbursements and
    HST.

H.S. LaForme J.A.

"G. Pardu J.A."

"L.B. Roberts J.A."


