Executive Summary: Key Legal and Evidentiary Issues

• Jurisdictional issue over whether an appeal of an interlocutory order from an associate judge should be heard in Divisional Court or Superior Court

• Whether the motion judge erred by refusing to order disclosure of the interpreter’s emergency contact details

• Allegations of breach of a prior court order regarding disclosure obligations

• Challenge to the reinstatement of the action to the trial list following an administrative dismissal

• Dispute over admissibility and content of affidavit evidence filed by the Respondent

• Claims of improper service, alleged forged documents, and accusations of fraud and perjury by opposing counsel

Facts and procedural background

The case arose from a motor vehicle accident that occurred on March 5, 2010. Yong Wang, the plaintiff, commenced an action on February 29, 2012. A defence medical assessment took place on February 7, 2022, during which a Mandarin interpreter assisted Wang. Wang later sought disclosure of the interpreter’s name, emergency contact information, and qualifications.

In March 2019, the matter was administratively dismissed (struck from the trial list), and both parties were advised in January 2023 that a court order was needed to reinstate the case. The Respondent, Christopher Banton, moved to reinstate the matter and concurrently sought to dismiss the action for delay. Wang filed his own motion seeking disclosure and requesting that the defence be dismissed for alleged non-compliance with a prior court order.

The motions were heard together in March 2024. On March 28, 2024, Associate Justice McAfee dismissed Wang’s motion for disclosure and granted Banton’s alternate request to reinstate the matter to the trial list. Wang appealed this decision.

Appeal and court’s reasoning

Wang appealed to the Divisional Court, arguing several grounds including the refusal to order disclosure, the fairness of the reinstatement, alleged errors in affidavit evidence, improper service of motion materials, and serious accusations of fraud, perjury, and dishonesty against opposing counsel and the motion judge.

A preliminary issue was whether the Divisional Court had jurisdiction over the appeal. The court noted that interlocutory orders from associate judges are properly appealed to the Superior Court of Justice. However, because judges of the Divisional Court are also judges of the Superior Court, the court reconstituted itself to address the appeal.

On the disclosure issue, the court found no error in the motion judge’s conclusion that the emergency contact information of the interpreter was not required to be disclosed. The court emphasized that Justice Koehnen’s prior order did not mandate such disclosure and that Rule 30.10 could not be relied on since the interpreter was not a party to the proceeding and had not been served.

Wang's argument that reinstating the matter to the trial list was “unfair” was rejected. The court affirmed the motion judge’s authority to restore an administratively dismissed case and agreed that it was neither reasonable nor just to keep the matter off the trial list indefinitely.

The court also dismissed Wang’s objections regarding the admissibility of the affidavit of Mr. Marston, finding no legal error. Concerns about improper service and missing or forged commissioner stamps were similarly dismissed, with the court affirming that any issues appeared to be minor typographical errors already addressed at the motion stage.

The court was critical of Wang’s conduct, particularly his unfounded and serious accusations of fraud and dishonesty against opposing counsel and the judge. It noted that this scorched earth litigation strategy contributed to the decision on costs.

Outcome

The court dismissed the appeal and awarded costs of $4,000 against Wang, payable to Banton immediately. The court upheld the lower court’s decisions on all contested issues and found no errors in law or fact that would justify overturning the original ruling.