Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220413 DOCKET: C69883

Roberts, Miller and Zarnett JJ.A.

BETWEEN

R. Maxine Collins Plaintiff (Appellant)

and

Canada Post Corporation and Norton Rose Fulbright Canada Defendants (Respondents)

Counsel: R. Maxine Collins, acting in person Michael R. Kestenberg and David S. Lipkus, for the respondent, Norton Rose Fulbright Canada Ted Brook, for the respondent, Canada Post Corporation

Heard: in writing

Determination pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 with respect to the appeal from the order of Justice Marc E. Smith of the Superior Court of Justice, dated September 9, 2021, with reasons at 2021 ONSC 5987.

Reasons for Decision

[1] The appellant brought an action against the respondents in the Superior Court of Justice seeking damages for conduct in, and concerning an action in, the Federal Court. The appellant’s Federal Court action is against the respondent Canada Post. The respondent Norton Rose acts as counsel for Canada Post in the Federal Court action.

[2] Proceeding under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motion judge found that the appellant’s Superior Court action as against each respondent was frivolous, vexatious, and otherwise an abuse of the court’s processes. He dismissed her Superior Court action. The appellant has appealed that dismissal.

The Parties’ Positions

[3] The respondents each made a request to this court that the appeal be dismissed under r. 2.1.01, on the basis that the appeal appears, on its face, to be frivolous, vexatious, and/or an abuse of process.

[4] After the respondents’ requests were received, the registrar asked the parties to make written submissions.

[5] On March 9 and 11, 2022, both of the respondents, by counsel, filed written submissions in support of their requests. The respondents essentially submit that the appellant’s Superior Court action, complaining about events in a Federal Court action, was correctly determined by the motion judge to be frivolous, vexatious, and an abuse of process based on the doctrine of absolute privilege and the prohibition against collateral attack, and that the appellant has no viable ground of appeal from that determination.

[6] The appellant filed a letter dated March 14, 2022, acknowledging receipt of the respondents’ written submissions in support of their r. 2.1 requests. In her letter, she asserts that each respondent should be considered self-represented due to defects in their respective appointments of the lawyers who filed the submissions. She also refers to certain case law relating to r. 2.1.01, and highlights the propositions that: (1) the rule is a streamlined procedure for proceedings that are on their face frivolous, vexatious, or otherwise an abuse of process; (2) the rule is not intended to supplant the established procedure for a motion to quash an appeal for want of jurisdiction or merit; and (3) a court must consider whether a motion to quash may be the more appropriate procedural vehicle to address a respondent’s merit or jurisdiction complaints. After asserting that the registrar had not called for submissions in the manner or sequence contemplated by r. 2.1, the appellant’s letter declines to “take a position on [the respondents’ submissions] as “the Court has the requisite knowledge and experience to determine on the face of any Rule 2.1 Request whether or not it is an attempt to avoid a proper motion”.

Analysis

[7] We see no merit to the appellant’s concern about the respondents’ representation by counsel, nor about the manner and sequence in which written submissions were requested. The appellant had the opportunity to consider and respond to the respondents’ submissions. We agree with the appellant that in considering the respondents’ requests in light of the decision below and the points she intends to raise on her appeal as explained and amplified in her factum, we must consider, among other things, whether a motion to quash would be the more appropriate procedural vehicle.

[8] One of the appellant’s grounds of appeal is that the motion judge should have recused himself. After the respondents made requests that the Superior Court action be dismissed under r. 2.1.01, the motion judge directed that the appellant be given notice that he was considering making that order, gave her the opportunity to file submissions and, in the interim, stayed the action. The appellant made submissions, which included a request that the motion judge recuse himself from ruling on the r. 2.1.01 requests because he had stayed her action pending receipt of her submissions.

[9] The appellant’s ground of appeal that the motion judge was disqualified from dealing with whether the action should be finally dismissed because he granted an interim stay of her action is without substance. The motion judge made it clear that he was staying the action pending receipt and consideration of any submissions the appellant made on whether a r. 2.1 dismissal was appropriate. This did not constitute a prejudgment of the issues in a manner that would foreclose his further involvement.

[10] The motion judge found that the claims against Norton Rose in the Superior Court action relate entirely to their participation as counsel in the Federal Court proceedings and include allegations that Norton Rose commissioned a misleading affidavit and omitted to advise the Federal Court of material facts. He held that the claims against Norton Rose were barred by the doctrine of absolute privilege, which provides that no action can be brought against (among others) counsel for statements made in the ordinary course of a judicial proceeding: Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35.

[11] As concerned the claims against Canada Post in the action, the motion judge interpreted them to include the same accusations as were made against Norton Rose, which were not actionable on the basis of absolute privilege, and complaints about decisions and rulings made in the Federal Court proceeding and other proceedings, which were barred by the doctrine against collateral attack articulated by the Supreme Court in Wilson v. The Queen, [1983] 2 S.C.R. 594, at p. 599. Although some of the claims were alleged to be for defamation or conspiracy to defame, they were not tenable because all the statements alleged to be defamatory were made by Canada Post’s counsel in the Federal Court proceedings.

[12] There is no arguable merit to the grounds of appeal that assert that the motion judge was wrong to come to these conclusions and to employ r. 2.1.01 in these circumstances. The appellant herself describes her Superior Court action as alleging the respondents abused the process of the Federal Court by improperly filing a motion record in the Federal Court proceedings and making statements in those proceedings that she considers defamatory. The motion judge made no arguable error in applying the doctrines of absolute privilege and collateral attack to conclude that such claims were not actionable in the Superior Court and that her action was therefore frivolous, vexatious, or an abuse of process.

[13] The appeal appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court within the meaning of r. 2.1.01. This is a case where resort to the streamlined process in that rule is appropriate, rather than requiring a motion to quash.

Conclusion

[14] The appeal is therefore dismissed.

“L.B. Roberts J.A.”

“B.W. Miller J.A.”

“B. Zarnett J.A.”