Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210819 DOCKET: M52684
van Rensburg J.A. (Motion Judge)
BETWEEN
Elise Teitler Applicant (Responding Party)
and
Lawrence Dale Respondent (Moving Party)
Counsel: Lawrence M. Dale, acting in person Martha McCarthy, for the responding party
Heard: August 5, 2021 by videoconference
Reasons for Decision
1The moving party, Lawrence Dale, seeks an extension of time to appeal the vexatious litigant order of Diamond J. dated July 5, 2019.
2The application judge’s order was made in two proceedings: FS-15-400682, a family law proceeding commenced by Ms. Teitler in 2015 [1], and CV-19-00618979-0000, a proceeding commenced by Ms. Teitler by application pursuant to s.140 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
3Diamond J.’s order found Mr. Dale to be in contempt of certain provisions of eight orders of the Superior Court in the family law proceedings, struck out his Answer in those proceedings, and permitted Ms. Teitler to schedule a date for an uncontested trial. The order, at paras. 4 and 5, also declared Mr. Dale to be a vexatious litigant and precluded Mr. Dale from continuing in the family law proceeding and from continuing or instituting other proceedings without leave of a judge of the Superior Court of Justice, with the exception of CV-09-374829, which is an action between Mr. Dale and the Toronto Real Estate Board.
4The uncontested trial in the family law proceedings took place on September 27, 2020 before Kiteley J., and resulted in a final order respecting child and spousal support and parenting of the parties’ children, and a restraining order, each dated December 17, 2020.
5Until recently, Mr. Dale did not appeal or seek leave to appeal any part of Diamond J.’s order.
6If he is granted an extension of time to appeal, Mr. Dale seeks a stay. Among other things, he contends that he wants to bring proceedings involving the children and to appeal the order of Kiteley J.
Extension of Time
7This court can extend time to appeal under r. 3.02 of the Rules of Civil Procedure when it considers it just to do so. The onus is on the moving party to establish the grounds for an extension. While each case depends on its own circumstances, the following factors are relevant: (1) whether the moving party formed an intention to appeal within the relevant period (i.e. 30 days from the date of the order); (2) the length of, and explanation for, the delay in appealing; (3) prejudice to the responding party; and (4) the merits of the proposed appeal. The overarching principle is whether the “justice of the case” requires the extension of time: Howard v. Martin, 2014 ONCA 309, at para. 26. Where, as here, the order affects children, the justice of the case is reflected in the best interests of the children: Denomme v. McArthur, 2013 ONCA 694, at para. 7.
8Mr. Dale contends that the fact that court staff would not accept what he attempted to file with this court, which he says was a mistake, should be determinative of this motion. In the alternative, he asserts that he has met each element of the test set out above, and that the overall justice of the case strongly favours an extension of time.
9I have concluded that it is not in the interests of justice to grant the requested extension of time.
10I begin by observing that Mr. Dale did not put proper evidence before this court. His affidavits dated July 26, 2021 and August 3, 2021 are not sworn or affirmed before a commissioner of oaths, which Mr. Dale explains is because of the “COVID situation”. There is nothing in the “Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic” or the Rules of Civil Procedure that would exempt Mr. Dale from the requirement of providing a properly sworn or affirmed affidavit. Although Mr. Dale is self-represented in these proceedings, he was qualified as a lawyer and he is an experienced litigant. I do not accept his explanation for failing to provide evidence in the proper form. Although I could have dismissed his motion on this basis alone, I am dismissing the motion after considering the relevant factors in light of the record before me, including the unsworn affidavits.
11The first factor is whether Mr. Dale had a bona fide intention to appeal within the relevant time. The 30 days to appeal ran from the date of the order (July 5, 2019). Contrary to Mr. Dale’s submission, the time did not run from the date the order was issued and entered (October 1, 2019): Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.), at para. 31.
12I do not believe Mr. Dale’s assertion that he had the intention to appeal the order of Diamond J. within 30 days of the date the order was made, or even, allowing for some delay in the order coming to his attention, within 30 days of when he knew about the order (which he says was in August 2019, although the responding party has provided evidence that the endorsement of Diamond J. was sent to one of the email addresses he had provided to the court on July 8, 2019). If he had the intention to appeal at the time, I would have expected Mr. Dale to have served a notice of appeal or to have had some other contemporaneous communication with Ms. Teitler’s counsel to advise that he was seeking to appeal the vexatious litigant order. The absence of this kind of evidence is telling. It is more likely, as I will explain, that Mr. Dale only formed the intention to appeal the vexatious litigant order after he attempted to appeal Kiteley J.’s order and was informed by the court that he required leave of a Superior Court judge to do so. This was more than a year after Mr. Dale had been declared a vexatious litigant.
13I turn to the next factor: the length of and explanation for Mr. Dale’s delay in seeking an extension of time.
14This motion was brought some two years after the order Mr. Dale is seeking to appeal. Mr. Dale claims that he is not responsible for any of the delay; rather, he blames the Court of Appeal staff for the delay. Without indicating precisely when, Mr. Dale asserts that he “immediately” contacted the Court of Appeal intake office to bring his motion to extend the time for filing the notice of appeal, but that court staff told him they would not accept any filing of his notice of motion because he is a vexatious litigant. He says that court staff maintained this position until recently. Mr. Dale also states that he was prevented from bringing his motion because only urgent matters could be brought to this court as a result of the COVID-19 pandemic.
15I do not accept Mr. Dale’s explanation for the lengthy delay of more than two years between the order he seeks to appeal and his motion to extend time to appeal: essentially that court staff and the pandemic prevented him from proceeding with his motion.
16First, there is nothing to substantiate Mr. Dale’s assertion that court staff prevented him from bringing a motion to extend time to appeal the vexatious litigant order from the time the order was made, and for the following 20 months. In oral argument Mr. Dale explained the absence of any emails or other written evidence during this period by asserting that all of his communications with the court were verbal. I simply do not believe Mr. Dale on this point.
17Mr. Dale has reproduced portions of an email exchange with court staff on January 21 and 22, 2021. The emails make it clear that he had tried to file a notice of appeal from the final order of Kiteley J., and was prevented from doing so without an order of a Superior Court judge due to the vexatious litigant order. He took the position that he was entitled to appeal the order notwithstanding the vexatious litigant order, which is wrong at law. While a vexatious litigant is entitled to appeal the order declaring him vexatious without leave, he is not permitted to appeal any other decision or order without leave of a Superior Court judge: Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (ON CA), at paras 29-33, leave to appeal refused, [2006] S.C.C.A. No. 144. It appears that when the court refused to accept his notice of appeal for filing, Mr. Dale realized that he would need to successfully appeal the order of Diamond J., if he were to appeal the order of Kiteley J. without an order of a Superior Court judge. This occurred in January 2021.
18Mr. Dale relied on an email exchange with court staff on July 27, 2021. On that occasion a staff member refused his filing because he was a vexatious litigant. Mr. Dale sorted out the misunderstanding with the Deputy Registrar, and an hour later he received an email confirming he could file his motion. As Mr. Dale emphasized in his oral argument, he is a “persistent” litigant. If, as he claims, he had been prevented by the court from filing a motion to extend time to appeal the vexatious litigant order since the fall of 2019, no doubt he would have sorted out the issue, as he quickly did in July of this year.
19Mr. Dale also relies on the COVID-19 pandemic to explain his delay in moving for an extension of time. Contrary to Mr. Dale’s claim that he was told that he could not bring his motion because the court was accepting only urgent matters, this court continued to sit on appeals and motions in 2021, including motions to extend time to appeal. The timelines for serving and filing documents in this court were extended between March 16, 2020 and July 15, 2020, and regular timelines were reinstated effective July 16, 2020. There is nothing in the court’s COVID Practice Directions that would have prevented Mr. Dale from pursuing a motion to extend time to appeal the vexatious litigant order.
20Mr. Dale has not provided a reasonable explanation for his lengthy delay in seeking an extension of time to appeal the vexatious litigant order.
21I turn to consider the merits of the appeal. Compelling merits may tip the balance in cases where, as here, other factors militate against an extension of time: see Howard, at para. 36.
22Mr. Dale’s principal ground of appeal is that he was denied a fair hearing, due process and natural justice when the vexatious litigant order was granted in the context of a combined motion and application hearing. He also asserts that the application judge erred in law and fact because the underlying facts do not support the vexatious litigant finding. I will consider each ground in turn.
23With respect to the procedure on a vexatious litigant application Mr. Dale relies on two cases: Lukezic v. Royal Bank of Canada, 2012 ONCA 350 and Kallaba. In Lukezic this court agreed with the dissenting reasons of Lang J.A. in Kallaba that a vexatious litigant order shall only be made on application. Mr. Dale says that, although an application was issued, in substance what was heard was not an “application”. Essentially, I understand his argument to be one of procedural fairness. He points to para. 16 of Lukezic where the court stated:
…an application provides the procedure best suited to the determination of whether a litigant is vexatious. In large measure this is because of the due process protections which that procedure accords to the person targeted, such as personal service, adjudication by a judge, a directed trial of an issue if necessary, and the right of appeal without the need for leave.
24Mr. Dale was afforded all of the “due process” protections referred to in this passage. While a “due process” argument might be made in another case on a different record, I cannot see any prospect of it succeeding in this case. Mr. Dale had notice that a vexatious litigant order was sought, and it was pursued by application. Although he had arranged the court attendance and knew its purpose, Mr. Dale did not attend when Akbarali J. provided directions for the hearing of the application together with Ms. Teitler’s motion for contempt and to strike his Answer. As the case management judge, Akbarali J. was familiar with the proceedings and the parties and she made an order that was entirely within her discretion. She set a timetable for the delivery of the materials and for the hearing by Diamond J., who had been appointed as the judge to hear motions in the family law proceedings. Mr. Dale complied with the timetable when he delivered his responding materials on time. He attended court on the appointed date, however he left the hearing after his request for an adjournment was denied. As Diamond J. explained, Mr. Dale sought an adjournment in order to bring a motion that was based on a conspiracy theory and that he had threatened to bring for months, if not arguably, years.
25Mr. Dale’s draft notice of appeal also asserts that Diamond J. erred in law and fact in making the vexatious litigant order. However, Mr. Dale did not press this argument in the motion before me, except to suggest that Diamond J. was wrong to rely on previous orders of Faieta J. and Akbarali J. Mr. Dale in fact made numerous attempts to appeal or set aside various orders in the family law proceedings, including the orders of Faieta J. as the previous case management judge: Dale v. Teitler, 2018 ONSC 6861 (Div. Ct.). Diamond J. made it clear that, although he had no reason to doubt the correctness or appropriateness of Akbarali J.’s findings of fact, he had reviewed the Continuing Record, and had reached the same conclusions. Diamond J. referred to Mr. Dale’s avoidance of his court-ordered obligations, his pursuit of unattainable remedies based on a conspiracy theory that stretch[ed] the boundaries of reality, his commencement of civil and criminal proceedings against Ms. Teitler, her lawyers, judges and other professionals, the motions he had brought and abandoned, his attempts to re-litigate issues that had been decided against him, and ultimately his “total disregard for the Court and its resources”: at paras. 43, 44. Diamond J.’s reasons, which are detailed and comprehensive, reveal no reversible error.
26Since I have concluded that the proposed appeal has no arguable merit, this factor weighs against granting an extension of time.
27Finally, I turn to consider prejudice to Ms. Teitler and the children, which informs my consideration of the justice of the case. Mr. Dale contends that there will be little prejudice to Ms. Teitler because he is willing not to deal with property and support issues. His willingness not to deal with such issues is a hollow offer: Mr. Dale is in default of the outstanding orders for support and equalization. He has paid very little child support in the last five years. The child support arrears are significant.
28I accept Ms. Teitler’s submission that to permit Mr. Dale to proceed at this stage with his appeal would severely prejudice her interests and those of the children. In addition to the outstanding support and equalization payment obligations, Mr. Dale is in default of numerous costs awards. If Mr. Dale’s appeal proceeds, she will have to incur further legal costs, without hope of recovering such costs from Mr. Dale. As for the children, although Mr. Dale has not complied with many of the orders in the family law proceeding, Ms. Teitler describes the current situation as relatively stable, and not disregulated. And, as Ms. Teitler’s counsel pointed out, there is a path forward that is available to Mr. Dale in relation to the children – he could comply with the provisions of the orders of Faieta J. dated August 31, 2018 and Kiteley J. dated December 17, 2020 respecting the children.
29For these reasons the extension of time is refused.
Stay Pending Appeal
30Having refused the extension of time for Mr. Dale to appeal the vexatious litigant order, it is unnecessary to address the question of a stay. I will briefly explain why I would have dismissed the motion for a stay if I had granted the extension.
31A stay of proceedings is a discretionary order made when the court is persuaded that (1) the appeal has arguable merit; (2) there would be irreparable harm to the moving party if the stay were refused; and (3) the balance of convenience favours a stay. Again, the overarching consideration is whether the interests of justice call for a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at para. 16.
32I have already determined that the proposed appeal is without merit. Mr. Dale has put forward no evidence that would persuade me that there would be irreparable harm if the stay were refused. I accept the evidence that a stay would be harmful to the children and to Ms. Teitler. The balance of convenience in any event weighs heavily against a stay. The record confirms that Mr. Dale has engaged in meritless and vexatious litigation, while at the same time disregarding the procedures of the court. He has ignored court orders respecting parenting and support issues, including orders restricting his contact with the children. To stay the vexatious litigant order pending appeal would only permit and encourage Mr. Dale to continue such harmful conduct while an appeal is pursued.
Disposition
33For these reasons the motion is dismissed. Ms. Teitler is entitled to her costs. She has asked for the opportunity to make written submissions. The court will receive costs submissions as follows: from the responding party on or before August 27, 2021, and from the moving party on or before September 3, 2021, with no right of reply. Costs submissions shall be limited to three pages per side, exclusive of the moving party’s bill of costs.
“K. van Rensburg J.A.”
1FS-15-400682 is subject to a sealing order in the Superior Court made December 17, 2020 by Kiteley J.
