Dec 11, 2017

Ontario Court of Appeal Summaries (December 4-December 8, 2017)

Su v. Lam, 2017 ONCA 952 (CanLII)

Su v. Lam, 2017 ONCA 952

[Pardu J.A. (In Chambers)]

Counsel:
Jian Su, self-represented
David M. Goodman, for the respondent

Keywords: Civil Procedure, Appeals, Extension of Time, Consent Orders, Setting Aside, Reid v. College of Chiropractors, 2016 ONCA 779

Facts:
The appellant, Mr. Su, moves for an extension of time to appeal from an April 19, 2017 decision that dismissed his motion to set aside a consent order. The underlying consent order was made in 2009. It dismissed Mr. Su’s action against the respondent. Before the consent order was made, Mr. Su had been ordered to pay an outstanding costs award against him and a further $25,000 for security for costs. The respondent brought a motion to dismiss the action because of these outstanding orders. Mr. Su was represented by counsel at the time and his counsel consented to the dismissal of this action and the property claims in another related proceeding. By foregoing his claims to an interest in the estate assets, Mr. Su avoided the dismissal of his support claim, and he avoided the need to post security for costs and payment of the outstanding costs award.

Mr. Su moved to set aside this consent order seven or eight years after it was made, alleging fraud and subsequently discovered facts as justification. He argued that the estate trustee falsely represented there were estate assets remaining to satisfy Mr. Su’s potential claim. The motion judge found that the documentary production made to Mr. Su before the consent order was made, had it been carefully and properly examined, would have already revealed the fact that no estate assets remained. The motion judge found as a fact that Mr. Su was not provided with any incorrect or misleading information about the assets of the estate at the time he agreed to the consent order. He concluded that Mr. Su failed to prove that he was induced by fraud to agree to the consent order, and failed to demonstrate that there were any after-acquired facts or information that would warrant setting aside the consent order

Issues:

(1) Should an extension of time to appeal the motion be granted?

Holding: Motion dismissed.

Reasoning:

(1) No. The test for determining whether to extend time to appeal is set out in Reid v. College of Chiropractors. The test was not met in this case. There was no evidence that Mr. Su formed the intention to appeal within the relevant time period. There was insufficient explanation for the delay in filing the notice of appeal. The subject matter of the proposed appeal related to litigation about the estate of Ms. Lam, who died in April 2004. Mr. Su and the respondent (the executor of Ms. Lam’s estate) have now been engaged in litigation for nearly 13 years.

Mr. Su attempts to set aside a consent order made in February 2009, at a time when he was represented by counsel and when the consent order brought real advantages to him. As a result of the consent order, the respondent did not pursue its motion for security for costs or its motion to dismiss the action for non-payment of a costs order. The motion judge’s findings of fact about the absence of misrepresentation at the time of the consent order were not undermined by the material Mr. Su filed in support of his motion for leave to extend time to appeal. In large part, the filed materials cover many of the same grounds dealt with by the court in Mr. Su’s previous appeal. The justice of the case did not require an extension of time to appeal. The motion was dismissed with costs.

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