Court of Appeal for Ontario

Date: 2022-05-10 Docket: C68942

Before: Huscroft, Thorburn and George JJ.A.

Between:

London District Catholic School Board Applicant/Responding Party (Respondent)

and

Myriam Michail Respondent/Moving Party (Appellant)

Counsel: Myriam Michail, acting in person Liam Ledgerwood, for the respondent Ryan Cookson, for the intervener Attorney General of Ontario

Heard: May 6, 2022

On appeal from the order of Justice Alissa K. Mitchell of the Superior Court of Justice, dated November 27, 2020, with reasons reported at 2020 ONSC 7331.

Reasons for Decision

[1] The appellant was employed by the respondent London District Catholic School Board (“Board”) from 1990 to 2014, when she was terminated. Litigation, addressing various issues and in several different forums, has been ongoing between these parties since that time.

[2] The Board has commenced an application to have the appellant declared a vexatious litigant, pursuant to s. 140 of the Courts of Justice Act (“CJA”), R.S.O. 1990, c. C.43. The appellant responded by bringing a motion under s. 137.1 of the CJA, taking the view that the Board’s application was a strategic lawsuit against public participation (“SLAPP”), intended to silence her. The s. 140 application, which has been stayed pending resolution of the appellant’s motion, has not yet been heard.

[3] The motion judge found that the appellant had not established, on a balance of probabilities, that the expression giving rise to the application (i.e., vexatious litigation) related to a matter of public interest. Thus, the motion judge found that the appellant had not met the threshold burden under s. 137.1(3) and dismissed the motion. The motion judge awarded costs to the respondent of $7,500.

[4] The appellant now appeals that decision, and seeks leave to appeal the motion judge’s award of costs. She also, for the first time on appeal, asks this court to find that ss. 136(1) and (4) of the CJA – which provide a presumption that judicial proceedings cannot be recorded and disseminated, and that every person who contravenes this section is guilty of an offence – violate ss. 2(b), 7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms.

[5] We see no reason to interfere with the motion judge’s decision. Her reasons reveal a thorough understanding of the applicable principles, which were applied correctly. The motion judge did not err in identifying the impugned expression as vexatious, or in finding that vexatious proceedings do not relate to a matter of public interest. We observe, as the motion judge did, that the LDCSB is not seeking to prevent the appellant’s access to the justice system and suppress her ability to express herself through litigation, but rather asks the court to ensure that only legitimate proceedings are permitted to proceed. The LDCSB does not seek to prevent the appellant from continuing to speak about matters of public interest or her legal disputes, which she does routinely, including online, to the media, and to others who choose to give her an audience. Put simply, the relief sought by the Board will not, if granted, prevent the appellant from expressing herself on matters of public interest. It would only prevent her from instituting or continuing vexatious proceedings. We also note that the motion judge’s decision does not prevent the appellant from responding to and putting her best foot forward on the Board’s application to have her declared a vexatious litigant.

[6] Further, we see no reason to interfere with the motion judge’s decision to award the Board costs. While the appellant correctly points out that s. 137.1 of the CJA has a unique costs regime – which presumes no award when a request to dismiss is denied – a motion judge may order costs when they determine it is “appropriate in the circumstances”: s. 137.1(8). Here, the motion judge determined that it would be appropriate, relying on this court’s decision in Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352. In light of the motion judge’s finding that the underlying action did not have the characteristics of a SLAPP and that the impugned expression did not relate to the public interest, it was open to her to order costs, and the amount awarded was reasonable in the circumstances.

[7] Lastly, there is no basis for the court to consider the constitutional questions raised by the appellant. They were not raised as an issue or addressed by the motion judge below, which is unsurprising given they have nothing to do with the merits of the motion. The general rule is that appellate courts will not permit an issue to be raised for the first time on appeal, including constitutional challenges: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-41, leave to appeal refused, [2016] S.C.C.A. No. 432. The appellant has not established any reason for departing from the general rule in this case.

[8] In summary, we decline to address the constitutional questions raised by the appellant. The appeal is dismissed. The request for leave to appeal costs is dismissed.

[9] Costs to the Board in the amount of $6,000 inclusive of HST and disbursements.

“Grant Huscroft J.A.”

“J.A. Thorburn J.A.”

“J. George J.A.”