A Peanut Butter Sandwich Is Not Grounds for an Appeal

With all the advertising around personal injury services proliferating, it’s tempting to some plaintiffs to think they can go it alone. The contingency fee alone in such arrangements might provide some financial or monetary incentive to explore such options.

As with most legal proceedings though, this is rarely advisable. This was clearly highlighted in a recent Ontario Court of Appeal decision in Jex v. Jiang.

The parties conducted a 10 day jury trial, based on a motor vehicle collision on August 29, 2007. The self-represented plaintiff was successful in providing causation, but was unsuccessful in proving damages. Consequently, the action was dismissed on June 13, 2019.

The plaintiff then brought 8 successive motions for an extension of time to perfect his appeal of the dismissal, starting with his first motion in August 2019. The court rightly concluded that granting this most recent motion was not in the interest of justice, and constituted an abuse of process.

Part of this determination can include an examination of the appellant’s conduct, including a lack of respect for court orders and court process, the payment of costs, production of documents, attendance at cross-examinations and case conferences, and the history of motions on the file. The court concluded here that the plaintiff had engaged in conduct that was clearly frivolous, vexatious, and an abuse of process, in failing to take the appropriate steps to perfect the appeal.

Even the court reporter indicated to the plaintiff that they were having difficulty, stating in an email on Oct. 1, 2020,

You have been harassing me and threatening me for at least a year now. Your original order form to me was for an appeal. I told you that you would need three hard certified copies for your appeal. You didn’t want to order that from me. You went away several times and then another threatening email pops up from you. If you want to proceed with your original order, I am prepared to prepare your hard copies for appeal. I have provided that estimate of cost to you on several occasions. In my mind you are trying to bully me into providing these transcripts to you for free. As I told you before, you are welcome to get someone else to transcribe the matter for you. Otherwise, go back to my original estimate of costs I provided to you and send me the deposit and I will prepare your transcripts for appeal. You must also provide your appeal file number as that has to be inserted on the transcripts. [Emphasis added by the court]

As any lawyer will tell their client, staying on the good side of court staff is essential to effective advocacy. The plaintiff in this case did not have the benefit of that advice.

What is even more interesting is the purported merits of the appeal, which states 61 different grounds. In a letter sent to opposing counsel on Nov. 10, 2020, he stated,

Mr. Wong I’ll make you a deal you have 24 hours to respond to the deal on the table. It shouldn’t be too hard for you. For you clear my name of any criminal conviction and get me back my gun license or pay me £ 150.000 and I’ll walk away from this accident claim. They’ll be no pardons. And if I was a lawyer with a degree you would’ve paid me to walk away I might have one. Maybe we can get back in front of Judge Chalmers again for a new trial. He’s also one of my other favourite judges haven’t seen him in a while. He still owes me a peanut butter and jelly sandwich with the homemade strawberry jam.

If you choose not to we will just have a lot more many motions in court again since it’s my new playground and I’m having fun seeing you and Judge Zarnett [not] to mention Judge Fairburn. She’s like my dynamite in court in action this could go on forever. He’s one of my favourite judges never ending. [Emphasis added by the court]

Yes, the reference to the peanut butter and jelly sandwich was actually stated as a grounds for an appeal, as in the trial judge erred in failing to make said sandwich for the plaintiff.

Such a flippant regard to court process and unnecessary motions would itself bode against a successful appeal, but the relief sought in the appeal also included a request that opposing counsel submit to medical procedures and drug testing. The court rightly concluded this to be frivolous, vexatious and an abuse of process.

In reviewing the entirety of the record, the court concluded there was no basis to grant the plaintiff an eighth extension of time to perfect this appeal, as doing so would bring the administration of justice into disrepute,

[16] …His actions constitute an abuse of process. At a certain point, enough is enough. That point has been reached here.

In Issai v. Rosenzweig, the Court of Appeal emphasized that the important right to an appeal should only be interfered with where there is so little merit that the court could reasonably deny it.

One would think that point would be reached at the peanut butter sandwich. The jelly on the other hand, might have given the court something to chew on.

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