Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211224 DOCKET: M52945

Tulloch J.A. (Motion Judge)

BETWEEN

Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. Moving Parties

and

Joy Overtveld, Todd Overtveld, Gary Katz, Charles Rotenberg, Logan Katz LLP, MBC Law PC, Roger Ramonat, Leonard Burnstein, Francine Sarazin, Borden Ladner Gervais LLP, Kathleen McDormand, James Law, David Sheriff-Scott, Norton Rose Fulbright LLP, Jamie MacDonald, Cavanaugh LLP, Susanne Sviergula, Blaney McMurtry LLP, Teri MacDonald, Michael Rappaport, Merovitz Potechin LLP, Yasmin Vinograd, KMH Lawyers, Miriam Vale Peters, Chuck Merovitz, Maureen MacGillvray and Tina Johanson Responding Parties

Counsel: G.F. Windsor, for the moving parties Gavin J. Tighe, for the responding parties Blaney McMurtry LLP and Teri MacDonald Scarlett Trazo, for the responding parties Joy Overtveld, Todd Overtveld and Gary Katz Jessica Warwick, for the responding party Logan Katz LLP

Heard: November 23, 2021 by video conference

Reasons for Decision

[1] This is a motion brought by the moving parties, Gilles Overtveld and Gi-Las Management and Maintenance Ltd., seeking an order extending the time to file a notice of appeal of an endorsement of Labrosse J. of the Superior Court of Justice dated September 27, 2021, striking out the statement of claim in the within action against all defendants.

The Facts

[2] The moving party, Giles Overtveld (“Mr. Overtveld”) is 93 years old, and the founder of the co-moving party, Gi-Las Management and Maintenance Ltd., a real estate management company with assets valued at more than $25 million.

[3] Mr. Overtveld is the father of two of the responding parties: his son, Todd Overtveld, and his daughter, Joy Overtveld. In 2011, Mr. Overtveld appointed his children as his powers of attorney. After his marriage to a young woman a few years later, the Overtveld children raised concerns about Mr. Overtveld’s mental state and capacity.

[4] In recent years, Mr. Overtveld has resisted his children’s interference into his personal affairs and has initiated a claim against them in the Ottawa Superior Court of Justice. These claims have devolved into scandalous innuendos and spurious claims against several people, including opposing lawyers and judges tangentially involved in the case. In an attempt to circumvent the Superior Court of Justice in Ottawa, Mr. Overtveld initiated another action in the Brampton Superior Court of Justice, repeating essentially the same allegations as those in the Ottawa action, but also alleging bias against a number of Superior Court judges who preside in Ottawa.

[5] The statement of claim in the within action was issued in the Superior Court of Justice at Brampton on May 26, 2021. The within action is related to a series of at least seven prior proceedings involving Mr. Overtveld and various combinations of the responding parties, all of which proceedings were issued or originated in the Superior Court of Justice at Ottawa (“the Prior Proceedings”). At the time of the issuance of the within statement of claim, all of the Prior Proceedings were being case managed together in Ottawa by the Honourable Justice Labrosse, pursuant to the direction of Regional Senior Justice MacLeod.

[6] As against the respondent lawyers, almost all of whom acted or continue to act for parties opposite in litigation to the plaintiffs, the statement of claim alleges that they conspired with each other, their respective clients, expert witnesses, court staff and sitting judges of the Superior Court of Justice to obtain various of the orders and endorsements that were made in the Prior Proceedings.

[7] The sole issue on this motion is whether the moving parties should be granted an extension of time to file the notice of appeal with respect to their proposed appeal of the September 27, 2021 endorsement of Labrosse J. striking out the statement of claim in the within action. For the reasons below, I am not satisfied that the moving parties’ request should be granted.

Test for an Extension of Time

[8] The test on a motion to extend time is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. As this court stated in Enbridge, at para. 15, each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

A. whether the moving party formed a bona fide intention to appeal within the relevant time period; B. the length of, and explanation for, the delay in filing; C. any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and D. the merits of the proposed appeal.

[9] After considering all the circumstances of this case, and the relevant claim which was the subject of the September 27, 2021 decision to strike, I am satisfied that the proposed appeal has no merit and that the justice of the case does not require granting an extension.

[10] The primary allegations in the within action against Joy and Todd Overtveld are that they obtained the 2011 powers of attorney by improper means and have used the 2011 powers of attorney for improper purposes. As pointed out by the responding parties, these are the same allegations and claims that have been made on behalf of Mr. Overtveld in a prior proceeding. This proceeding remains extant before the Superior Court of Justice at Ottawa and has yet to be determined. It is being case managed by Labrosse J. along with all of the various prior related proceedings involving Mr. Overtveld.

[11] Furthermore, in addition to naming Joy and Todd as defendants, the within action also named as defendants:

A. all of the lawyers who acted or currently act for the parties opposite in litigation to the plaintiffs in the related Prior Proceedings; B. the expert witnesses engaged by the parties opposite in litigation to the plaintiffs in the related Prior Proceedings; C. various court staff of the Superior Court of Justice at Ottawa; and D. the plaintiffs’ current and former lawyers in the related proceedings.

[12] After reviewing the pleadings, which are the subject of the within motion, I agree with the observations of the responding parties that the notice of appeal:

A. does not identify any alleged errors whatsoever on the part of Labrosse J. in the September 27, 2021 endorsement; B. does not disclose any discernible legal basis for the appeal; C. does not disclose any discernible legal grounds for the appeal; D. simply repeats the various scandalous allegations and conspiracy theories that were made by the plaintiffs in the statement of claim in the within action; and E. is replete with scandalous allegations of wrongdoing against various judges of the Superior Court of Justice.

[13] I am guided by the comments of my colleague, Pardu J.A., in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at para. 7:

Here, the delay is short, an explanation has been provided for the delay, and there is no prejudice to Pet Valu. However, I am unable to find any scintilla suggesting that the appeal has merit. The affidavit filed in support of the motion to extend time is silent on the issue of the merits. The notice of appeal is so general that I am unable to construct any basis for an arguable appeal from the motion judge’s factual findings. Very little would be required to show that there is some basis for an appeal in these circumstances, but I can find nothing.

[14] I find the above comments of Pardu J.A. in the Pet Valu case applicable to the proposed notice of appeal in the instant case. The notice of appeal in the instant case does not identify any alleged error made by Labrosse J. in the September 27, 2021 endorsement or provide any way for this court to discern or construct any basis for an arguable appeal.

[15] I agree with the submissions of the responding parties that the notice of appeal in the instant case does not assist this court in highlighting any meritorious legal basis for the proposed appeal, but only repeats the scandalous and vexatious allegations and conspiracy theories contained in the statement of claim that the defendants conspired with each other, with their clients, with expert witnesses, with the court staff, and with various sitting judges of the Superior Court of Justice of the East Region in order to obtain various allegedly “improper and corrupt” orders and endorsements in the various Prior Proceedings.

[16] I also agree that if the moving parties were of the view that any of the prior orders or endorsements contained errors or were somehow improperly obtained, their recourse would have been to appeal, or to seek leave to appeal, any such prior orders and endorsements. They have not done so.

[17] Instead, the moving parties rolled their existing claims in the Prior Proceedings forward, naming an expanded group of defendants that includes the lawyers for the opposite litigation parties in the Prior Proceedings, expert witnesses for the opposite litigation parties in the Prior Proceedings, and court staff of the Superior Court of Justice. As correctly pointed out by the responding parties, this is one of the hallmarks of vexatious litigation.

[18] In the Pet Valu case, Pardu J.A. noted that the affidavit filed in support of the motion to extend time was silent on the issue of the merits. Similarly, in the instant case, no affidavit has been filed at all. This further supports the conclusion that the proposed appeal has no merit.

[19] Additionally, while the responding parties do not dispute that the moving parties formed an intention to appeal within the applicable time period, they assert that if the extension motion were to be granted, they will suffer real prejudice, as their professional reputations as lawyers and as officers of the court will continue to be tarnished by the scandalous allegations of conspiracy and deceit contained in the notice of appeal, as well as in the manner in which the moving parties have chosen to conduct the litigation. I agree.

[20] As pointed out by the responding parties, the instant case is similar to that of Beard Winter LLP v. Shekhdar, 2016 ONCA 493, in which the moving party sought an order to extend the time to file a motion for leave to appeal a decision of the Divisional Court. Within the motion materials, the moving party alleged bias on the part of Doherty J.A., as well as other scandalous allegations against the respondent lawyers in that case.

[21] In dismissing the motion, Doherty J.A. observed, at para. 19, that the manner in which the moving party had conducted the litigation amounted to prejudice against the respondents:

Although the absence of any basis upon which leave could be granted is sufficient to determine the motion for an extension, I make one further point. An extension of time is a discretionary order. The respondent claims, correctly in my view, that it has suffered significant and ongoing prejudice because of the manner in which the moving party has conducted this litigation. The respondents have faced what they describe as “a never-ending stream of vexatious motions and appeals”. The moving party’s tactics have no doubt extracted a significant personal and economic toll on those targeted by those tactics. This court should be very reluctant to allow the moving party to pursue yet a further motion in the “never-ending stream” of motions launched by the moving party. For the reasons set out above, the motion for an extension of time is dismissed.

[22] I have arrived at a similar conclusion as Doherty J.A. did in the Shekhdar case. In this case, the moving parties’ personal attacks on the character and professional integrity of the lawyers and judges who have had prior involvement in this case has caused and continues to cause ongoing prejudice. This, in my view, is another factor that militates against granting the motion for an extension of time.

[23] In all the circumstances, I have concluded that the motion for an extension of time has no merit, and the justice of the case does not warrant granting an extension. I am also of the view that even if there were some merit to the proposed appeal, if the requested extension were to be granted, the responding parties would continue to suffer significant ongoing prejudice.

[24] Accordingly, the motion for extension of time is denied.

“M. Tulloch J.A.”