Wong v. Leung, 2011 ABQB 159

Court of Queen ’ s Bench of Alberta Citation: Wong v. Leung, 2011 ABQB 159 Date: 20110310 Docket: 0903 03126 Registry: Edmonton Between: V. W. Wong (V.W.W.) Plaintiff - and - David Hung-Chee Leung, Paul M.K. Leung, Martin Hattersley, Brent W. Mielke, Shtabsky & Tussman LLP, C.H. William Cheung, Public Guardian and Trustee of Government of Alberta, Monica Leung Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Wong appeals the Master’s decision which adjourned David Leung’s application to set aside his noting in default until after Ms. Wong had had the opportunity of cross-examining Mr. Leung. [ 2 ] Ms. Wong’s appeal is denied; the Master’s decision is confirmed. [ 3 ] The decision appealed from respects Ms. Wong’s entitlement to notice and allows her time to exercise her legal rights. In every way, the Master’s decision is both correct and respectful of Ms. Wong.

Appendix A: Master Smart’s order, September 14, 2010 Appendix B: Justice Veit’s letter of November 19, 2010 1. Background [ 4 ] Ms. Wong sued a number of persons, including the defendant David Leung, for alleged misconduct in relation to the conduct of legal proceedings. When Mr. Leung failed to file and serve a statement of defence within the time limit prescribed by the Rules of Court, Ms. Wong caused him to be noted in default. Mr. Leung then applied to have the noting in default set aside so that he could file a statement of defence. Mr.

Leung’s motion was scheduled to be heard by the Master on September 14, 2010. Mr. Leung’s affidavit in support of his motion set out that he had hired and paid a lawyer and instructed the lawyer to file and serve a statement of defence, but the lawyer had failed to do so. [ 5 ] On September 14, the Master accepted Ms. Wong’s submission that she had not been properly served with Mr. Leung’s motion. However, Ms. Wong was physically present in the Master’s chambers because the court staff, being aware of both Mr. Leung’s application and Ms.

Wong’s interest in the application, had advised her to attend the chambers room. [ 6 ] The Master informed Ms. Wong about the nature of Mr. Leung’s application and correctly summarized the evidence filed in support of the application. The nature of Ms. Wong’s submissions to the Master establishes that Ms. Wong understood perfectly well both what Mr. Leung was requesting and the evidence on which he based his request. [ 7 ] The Master offered Ms. Wong an adjournment; indeed, he asked her to pick a date in December, 2010, convenient to her, for the hearing of Mr.

Leung’s motion. [ 8 ] There was then an issue about whether, as preparation for the return of the motion, Ms. Wong were entitled to an examination for discovery of Mr. Leung or only cross-examination of Mr. Leung on his affidavit. Obviously, the Master concluded that, at that stage of the proceedings, Ms. Wong could have only a cross-examination on affidavit. The Master then decided that it would be best in the circumstances to adjourn Mr. Leung’s motion sine die in order to allow for Ms. Wong’s cross-examination on affidavit. [ 9 ] There followed a discussion of whether Mr. Leung must serve Ms.

Wong by courier; Ms. Wong informed the Master that she did not want to be served by courier, but rather, she wanted to be served by ordinary mail. [ 10 ] The amended order incorporating Smart M.’s decision is reproduced as Appendix A.. [ 11 ] On September 24, 2010, Ms. Wong appealed Master Smart’s order. The grounds she set out in her notice of appeal included that Mr. Leung had failed to file a proper notice of motion, that the style of cause was wrong, and that she had not been properly served with his notice of motion. [ 12 ] Ms.

Wong’s appeal of the Master’s order came before me in morning chambers on November 18, 2010. Although Ms. Wong asserted that she had served Mr. Leung with notice of her appeal, Mr. Leung was not in attendance. The court reserved decision on Ms. Wong’s appeal in order to have the opportunity of reviewing the file. [ 13 ] On November 19, 2010, the court clerks received a message from one Meisum Leung purportedly acting on behalf of Mr. Leung and explaining why Mr. Leung had not appeared. I then forwarded the letter attached as Appendix B to Ms. Wong and to Mr. Leung. [ 14 ] On January 11, 2011, Mr.

Leung filed a letter addressed to the Clerk and to Ms. Wong stating that he had “carefully checked

all my correspondence and messages, notices and documentations [and advise that I] have not received any correspondence from V.W. Wong to arrange to proceed for cross examination for the above court order by December 31, 2010". [ 15 ] On January 11, 2011, Ms. Wong appeared in person and asked for an adjournment because she was not feeling well and provided a doctor’s note in support of her request. The court noted for the record that Mr. Leung had, on December 21, 2010 filed what purported to be a Statement of Defence in these proceedings; Mr.

Leung is an unrepresented litigant, and the document he filed was titled by him “Affadavit of facts and defence”. Within that document, Mr. Leung stated: “I write and respond point by point to the corresponding Statement of Claim as filed by the Plaintiff, Victoria Winnie Wong . . . “On its own motion, because it is clear that unless and until the court sets aside the noting in default, Mr. Leung cannot file a statement of defence, the court issued a Fiat declaring that the “defence” filed by Mr. Leung was set aside. Ms. Wong’s appeal was then adjourned to February 18, 2011, that date having been chosen by Ms.

Wong to ensure that the hearing did not conflict with celebrations surrounding Chinese New Year. [ 16 ] On January 27, 2011, Ms. Wong filed an application with the court to compel Mr. Leung to produce documents relating to the sale of property located at 9614 and 9616 - 106A Avenue, Edmonton. [ 17 ] In February, the court received affidavits from Mr. Leung in which he asked , among other things, for the court to transfer the proceedings to B.C. Among other comments, in an affidavit filed February 8, 2010, Mr.

Leung stated: In reference to your letter of Jan 11, 2011, I wish to explain my absence as it was my understanding that she said hearing was for only V.W. Wong’s to appear for appeal of the Sept 14, 2010 Order of the Court by Master L.A. Smart, as such I was not aware of the need for me to attend. Correct me if I am wrong as I do not have any legal training, but I remember Master L.A. Smart ordered that I was to be cross examined by V.W. Wong first. In that affidavit, Mr. Leung also made reference to previous proceedings and decisions of various courts in relation to the legal disputes between himself and Ms.

Wong. [ 18 ] In his affidavit filed on February 8, 2010, Mr. Leung also indicated that he required a Cantonese interpreter and set out dates on which he and the interpreter would be available for a re-scheduled hearing. [ 19 ] On February 17, 2011, the clerks received a fax from Mr.

Leung stating that he was unable to attend the hearing in Edmonton, because he is blind, and lives in Burnaby B.C., and for the other reasons set out in his previous affidavits, i.e. that he is 85, that he is legally blind - CNIB verified, that he has a heavy hearing impairment, diabetes, osteoporosis and mental problems. [ 20 ] The court informed Mr. Leung that the court would allow him to appear by telephone on February 18, 2011, and expected him to make himself available. [ 21 ] On February 18, 2011, Mr. Leung appeared by telephone and Ms. Wong appeared in person. Exchanges then occurred in relation to Mr.

Leung’s need for an interpreter. The court concluded that Mr. Leung had satisfied the court that, pursuant to the provisions of s. 14 of the Charter, he was entitled to an interpreter; however, the court ruled that in the circumstances here (civil matter, no witnesses would be called, no public interest issue arose out of the hearing) Mr. Leung had to pay for the interpreter himself. The court indicated that Mr. Leung could either find an interpreter with whom he was satisfied, or the court would arrange to have an interpreter available for him, but, in the latter case, Mr.

Leung would have to pay for the interpreter which the court estimated would be a minimum of $90.00, i.e. a minimum of 2 hours at $45.00 per hour. Over the strenuous objections of Ms. Wong, the Court granted Mr. Leung an adjournment to March 7 so that he could obtain an interpreter. The court required Mr. Leung to advise the court on February 22 if he wished the court to arrange for an interpreter for him; there was no communication from Mr.

Leung on February 22. [ 22 ] During the course of the February 18 hearing, there were references to documents filed by the parties which the court had not seen and the court indicated that it would ensure that it had all filed materials for the March 7 hearing. [ 23 ] On March 7, 2010, Ms. Wong attended in person and Mr. Leung attended by telephone; an interpreter was with Mr. Leung and Mr. Leung indicated to the court that he was satisfied with the interpreter.

[ 24 ] During the course of her oral submissions on March 7, 2011, Ms. Wong acknowledged not only that she had not arranged cross-examination of Mr. Leung on his affidavit, but that she no longer had any intention of carrying out any such cross-examination. [ 25 ] As a preliminary application, Ms. Wong asked me to disqualify myself, based mainly on my friendship with a colleague on this court. I declined to disqualify myself because, in my view, even if there is some issue between Ms.

Wong and another member of this court, the fact that I am also a member of the court would not, in the mind of a reasonable person knowing all the pertinent facts, lead to apprehension of bias. [ 26 ] As a further preliminary application, Ms. Wong asked for an end to the proceedings because the interpreter being used by Mr. Leung was not qualified by the court as an interpreter and the interpreter was, in Ms. Wong’s estimation, incompetent.

I declined that application as well, essentially for the reasons given on an earlier occasion, i.e. this was a civil matter, during which no viva voce evidence would be admitted, there were no issues of public interest raised in the proceedings, and Mr. Leung was satisfied with the interpreter. In my view, it was Mr. Leung’s decision, not that of Ms. Wong, as to whether he was satisfied with the interpreter he had provided because he was the litigant with a right to an interpreter. 2. Clearing up Mr. Leung’s misunderstanding of the Master’s order [ 27 ] Mr.

Leung has misunderstood Master Smart’s order: the Master did not require Ms. Wong to cross-examine Mr. Leung, but merely gave Ms. Wong the opportunity of cross-examining Mr. Leung. The Master stated that, if Mr. Leung had not heard from Ms. Wong about cross-examination by the end of December, 2010, then Mr. Leung should come back to the Masters in Edmonton for the hearing originally scheduled on September 14, 2010. I wish to emphasize that Master Smart is not seized of this matter: Mr. Leung can bring his application to set aside Ms. Wong’s noting in default before any Edmonton Master. If Mr.

Leung does not bring an application to set aside the noting in default, then, matters will remain as they are, which is: Mr. Leung has no defence to Ms. Wong’s claim. Assuming, therefore, that Mr. Leung will wish to bring his application to set aside the noting in default, I make these additional observations: when Mr. Leung obtains - from the clerks in Masters’ Chambers - a date for the hearing of his application, he must serve Ms. Wong with notice of the date. He can serve Ms. Wong by ordinary mail at the address in Edmonton which Ms. Wong has provided to the court. Therefore, Mr.

Leung must find a date for the hearing of his application which is sufficiently far in the future so that he can mail the notice required to Ms. Wong at a minimum 15 days prior to the hearing itself (7 days for the mail to get to Ms. Wong, 5 days’ notice to Ms. Wong after she is deemed to have received the mail, and 3 extra days to ensure that all has been done). Mr. Leung will also have to file an affidavit of service in which he swears to the date on which he mailed the notice of the hearing to Ms. Wong. [ 28 ] Although Mr.

Leung did not bring an application for a ruling on the issue of the location of the proceedings, I take this opportunity of advising Mr. Leung that these proceedings cannot, and will not, be moved to British Columbia. 3. Denying Ms. Wong’s appeal of the Master’s order [ 29 ] In denying Ms. Wong’s appeal of the Master’s order, I take the following into account: - Ms.

Wong’s argument in support of her position consisted mainly of intemperate remarks against individual members of the judiciary and of the bar and against the judiciary and the bar in general, based on what appear to be racial and religious characterizations, i.e., “he is a German Mennonite . . . white man”. These comments appear to be connected in Ms. Wong’s approach to her overall position that she is discriminated against by the justice system because she is a Chinese woman. However, an analysis of what the Master actually did proves that the Master did not discriminate against Ms.

Wong because she is a Chinese woman. On the contrary, the Master clearly took into account that Ms. Wong had received inadequate notice of Mr. Leung’s application, and therefore deferred consideration of Mr. Leung’s application until after Ms. Wong had had the opportunity of making further submissions and of obtaining pertinent evidence in relation to Mr. Leung’s application. Just as obviously, neither party was negatively affected nor improperly advantaged by the Master’s order; - Ms. Wong herself stated that her friends had told her that they could not understand why she was appealing the Master’s order

since it did not injure her. If even Ms. Wong’s friends take that position, it is easy to understand how an objective assessor could come to the same conclusion; - Although I had previously attempted to ensure that each of the parties would provide, in advance of the appeal hearing, any pertinent evidence, and although neither party provided such material by way of evidence, I am satisfied from Mr. Leung’s letter to the Clerks and from Ms. Wong’s submission during the appeal hearing both that Ms.

Wong did not, prior to December 31, 2010, take steps to implement the opportunity she had been given to cross-examine Mr. Leung on the affidavit he had filed with respect to the reason why he had not filed a timely statement of defence (his then lawyer had failed to do what had been requested of him) and that Ms. Wong has no intention of cross-examining Mr. Leung on his affidavit. [ 30 ] In

summary, Ms. Wong has failed to establish that the Master committed any error in his disposition of September 10, 2010. 4. Striking out Ms. Wong’s January 27, 2011 application for disclosure [ 31 ] Ms. Wong’s application filed on January 27, 2011 is struck out; Ms. Wong’s application is based on the assumption that she can proceed to

summary judgment. She is wrong. Mr. Leung’s application must be heard first. On the court’s own motion, therefore, Ms. Wong’s motion of January 27, 2011 is struck out as being vexatious and an abuse of process. [ 32 ] In coming to that conclusion, I note Ms. Wong’s repeated comments that she is unwell and that she has difficulty thinking about matters; indeed, Mr. Leung has made similar complaints.

Where two self-represented individuals are having difficulty coping on their own with the justice system, it is much better for them, and for the system, to deal with issues one at a time rather than in an illogical hodge-podge. 5. Costs [ 33 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 7 th day of March, 2011. Dated at the City of Edmonton, Alberta this 9 th day of March, 2011. J.B. Veit J.C.Q.B.A. Appearances: V.W. Wong, on her own behalf

David Hung-Chee Leung, on his own behalf Mark E. Alexander, Chomicki Baril Mah LLP for Martin Hattersley Sean M. Stepchuk, Fraser Milner Casgrain LLP for the defendants Mielke, Shtabsky & Tussman LLP, and C.H. William Cheung Appendix A IT IS HEREBY ORDERED THAT: 1. The applicant is adjourned sine die to allow the Respondent to arrange Cross Examinations of the Applicant on his Affidavit; 2. There shall be a stay of the action as against David Hung-Chee Leung only pending the Cross Examination; 3.

The Respondent is to serve proper notice and documentation to proceed with the Cross Examination including conduct money. Service of notice may be done by regular mail at #506, 7077 Beresford Street, Burnaby, BC V5E 4J5; 4. If the Applicant hasn’t heard anything from the Respondent by December 31, 2010, to have this application put back on the list and notice may be sent to the Respondent by regular mail at 11312 - 83 Street, Edmonton AB T5B 2Y1.

5. All further documents may be served on either party by regular mail at the addresses aforesaid. Appendix B November 19, 2010 Ms. Victoria Wong Mr. David Hung-Chee Leung 11312 - 83 Street, #506, 7077 Beresford Street, Edmonton, AB Burnaby, BC, V5E 4J5 T5B 2Y1 Dear Madam and Sir: Re: Wong v.Leung Action No: 0903 03126 I have been advised that the attached faxed message was received in the clerks' office on Friday, November 19, 2010. I note, first, that the clerk informs me that there is no one on the clerks' staff who is named Tanya. I note, second, that if Mr.

Leung wishes to put facts before the court he must do so by way of affidavit. I note, third, that Ms. Wong received an ex-parte order on May 26, 2010 in which she was apparently authorized to serve David Leung by serving Paul Leung; I assume that a copy of that order was eventually served on David Leung. I observe, however, that, in relation to the hearing of November 18, 2010, Ms. Wong did not rely on service to Paul Leung, but instead relied on paragraph 5 of Master Smart's amended order of September 14, 2010, which reads as follows: 5.

All further documents may be served on either party by regular mail at the addresses aforesaid.

- 2 - The address previously referred to in the order as being the address at which David Leung could be served was #506, 7077 Beresford Street, Burnaby, BC, V5E 4J5. Similarly, V.W. Wong could be served at 11312 83 Street, Edmonton, AB, T5B 2Y1. If Mr. Leung wishes to pursue the matter raised in the faxed message from Meisum Leung, he must file an affidavit relating to that matter by Friday, November 26, 2010; after being filed, the affidavit must be served on Ms. Wong in the manner set out by Master Smart and the posting of the regular mail must be done by November 30.

If any such affidavit is filed, and served, Ms. Wong will have until Monday, December 13, 2010 to file a responding affidavit. She will then be required to serve Mr. Leung by regular mail in the manner ordered by Master Smart and the posting of the regular mail must be done by December 17, 2010. Any party who files an affidavit must file an affidavit of service. If any affidavit is filed by Mr. Leung, whether or not there is a reply affidavit filed by Ms. Wong, I will hear a continuation of the matter originally heard on November 18, 2010 on Tuesday, January 11, 2011 , at 10:00 a.m.

Nothing in the procedure outline above in any way stays or suspends the order of Master Smart issued on September 14, 2010. Yours truly, Madam Justice J.B. Veit Encl. JBV/bn