Wong v Grant Mitchell Law Corporation Date:, 2017 MBCA 118

Citation: Wong v Grant Mitchell Law Corporation Date: 20171204 et al, 2017 MBCA 118 Docket: AI17-30-08848 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : LEO KAI YEN WONG ) ) L. K. Y. Wong (Plaintiff) (Applicant) Appellant ) on his own behalf ) - and - ) D. M.

Cordingley ) for the Respondents GRANT MITCHELL LAW ) CORPORATION, CYNTHIA LAZAR ) Appeal heard and and TAYLOR M c CAFFREY LLP, ) Decision pronounced: BARRISTERS & SOLICITORS ) December 4, 2017 ) (Defendants) (Respondents) Respondents ) On appeal from 2017 MBCA 49 HAMILTON JA (for the Court): [ 1 ] The applicant appealed the dismissal of his motion to extend the time to appeal the judgment of a trial judge delivered in June 2015. We dismissed the appeal after hearing submissions and advised that brief reasons would follow.

These are our reasons. [ 2 ] The trial judge found that the defendants were negligent as a result of allowing the limitation period to expire in a medical malpractice suit against a psychologist. The applicant’s employer had referred the applicant to the psychologist as a result of ongoing workplace issues. The trial judge held that the applicant had not proven causation for his alleged damages and awarded nominal damages of $100.

See 2015 MBQB 88 . [ 3 ] Rather than file a notice of appeal of the judgment, the applicant chose to pursue a motion under r 59.06 of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 to amend or set aside the judgment. His appeal of the dismissal of the motion by the trial judge to this Court was dismissed, as was his application for leave to appeal to the Supreme Court of Canada in February 2017.

See 2015 MBQB 146 ; 2016 MBCA 65 ; and 2017 CarswellMan 53 (SCC) . [ 4 ] The applicant filed a motion in this Court to extend the time to file an appeal of the judgment on February 21, 2017. [ 5 ] The motion judge dismissed the motion on the basis that the applicant had not established any of the three criteria required for the motion to succeed. The criteria are: 1. that the applicant had a continuous intention to appeal; 2. the applicant has a reasonable explanation for the delay; and 3. the applicant has demonstrated that there are arguable grounds of appeal.

See Bohemier v Bohemier , 2001 MBCA 161 . [ 6 ] The motion judge’s decision is entitled to deference unless the applicant can demonstrate that he erred in principle or that the decision is so clearly wrong as to amount to an injustice. See Lenko v The Government of Manitoba et al , 2016 MBCA 52 .

[ 7 ] The applicant has not demonstrated an error in principle or that the decision is unjust. He chose not to appeal the judgment even though he was aware of his right to appeal and had been advised several times by the trial judge, and opposing counsel, of the 30-day time limit and the fact that the r 59.06 motion does not suspend the time requirement for filing the appeal. As correctly found by the motion judge, this choice demonstrates that the applicant did not have a continuous intention to appeal nor does it provide a reasonable explanation for the delay.

This alone is reason to dismiss the appeal. [ 8 ] We also agree with the motion judge that the applicant has not presented an arguable ground of appeal. Numerous grounds of appeal are not related to the judgment he seeks to appeal and there is no arguable merit to the issue of causation. [ 9 ] One final word. The applicant has suffered anxiety as a result of this extended process, and incurred great expense, including the cost of transcripts for the trial. He argued that the court rules should not apply to him in the same way because he is a self- represented litigant. The rules of court apply to all litigants.

Certainly fairness calls for some accommodation for self-represented litigants, but that accommodation cannot prejudice the rights of the other litigants (see Child and Family Services of Winnipeg v JA et al , 2004 MBCA 184 at paras 27-40 ; and Director of Child and Family Services (Man) v JA , 2006 MBCA 44 at para 20 ). Here, the right to a final judgment, and the resulting certainty that goes with that, would be lost if this Court does not apply the rules of the court, and the related jurisprudence, to the applicant.

Furthermore, the record demonstrates that fair accommodation was made by both the trial judge and opposing counsel to alert the applicant to the need to file a notice of appeal within the 30-day appeal period required by the court rules. [ 10 ] Accordingly, the appeal was dismissed, with costs in the amount of $2,000 based on Tariff B of the Manitoba, Court of Appeal Rules , Man Reg 555/88R. JA JA JA