Court of Appeal for Ontario
Date: 2025-07-08
Docket: M55910, M55974 & M55975 (COA-24-CV-1301)
Judge: Sylvia Gomery
Heard: In writing
Between:
Basseth McLean (Applicant/Respondent)
and
Sonia Connell (Respondent/Appellant)
Sonia Connell, acting in person
Basseth McLean, acting in person
Endorsement
Overview
1The appellant and the respondent each seek to have the other party declared a vexatious litigant under r. 2.2.02(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Further to r. 2.2.06(1), I have conducted an initial review of each party’s motion along with further materials they have filed.
2The respondent, Basseth McLean, also seeks an extension of time to file his responding materials on the appeal pending determination of his r. 2.2.02 motion. Finally, the Registrar has asked for directions with respect to a Supplementary Notice of Appeal submitted by Ms. Connell, who is seeking to add an appeal of Hughes J.’s May 21, 2025 costs order to her perfected appeal.
3For the reasons that follow, both motions for vexatious litigant orders are dismissed. Mr. McLean’s motion for an extension is granted. I direct that Ms. Connell’s Supplementary Notice of Appeal shall be accepted for filing and that her costs appeal shall be heard with the main appeal. I am otherwise exercising my powers under rr. 1.05 and 2.2.06(2) to make orders to ensure that this appeal proceeds to a hearing in an efficient manner, notably by prohibiting either party from bringing any more motions unless they obtain leave from me to do so.
Background
4The appeal (COA-24-CV-1301) has a long and convoluted history. This is the third appeal that Ms. Connell has filed in respect of orders by Hughes J. requiring her to make an equalization payment to Mr. McLean and for the parties to sell their former matrimonial home. Ms. Connell’s first and second appeals (COA-24-CV-0149 and COA-24-CV-1019) were each dismissed for delay after she failed to perfect them, despite extensions of time granted to her to do so. The proceedings relevant to the first two appeals can be summarized as follows:
- The parties met in 2011, were married on June 16, 2012, and separated in January 2019. There are no children of the marriage. Mr. McLean filed an application in July 2020 seeking a divorce, spousal support and an equalization payment. At the trial, Mr. McLean confirmed he was no longer pursuing a claim for spousal support. Hughes J. accordingly dismissed that claim.
- Following a trial, Hughes J. made a final order on December 14, 2023. The order requires Ms. Connell to pay $163,332.65 to Mr. McLean as an equalization payment, plus pre- and post-judgment interest. The trial judge also ordered the parties to sell the matrimonial home and detailed the process for them to retain a mutually acceptable real estate agent, who would recommend a list price, method of marketing, choice of real estate lawyer, and acceptance of a reasonable offer. Hughes J. directed that either party could bring an urgent motion in respect of issues arising in connection with the sale of the home. The only outstanding issue was determining costs.
- On December 29, 2023, Hughes J. amended her order to add two new paragraphs setting a timetable for costs submissions and fixing the post-judgment interest rate.
- Ms. Connell appealed the December 14, 2023 order (COA-24-CV-0149). When she failed to perfect it within the required time, Mr. McLean brought a motion to dismiss. Ms. Connell then moved successfully before Wilson J.A. for an extension of time on July 24, 2024. The appeal was dismissed by the Registrar on August 13, 2024 after Ms. Connell failed to perfect it by the extended deadline.
- On August 30, 2024, after hearing submissions from the parties, Hughes J. determined that no further amendments to her December 29, 2023 order were necessary.
- On September 16, 2024, Ms. Connell attempted to file a new notice of appeal. It was framed as an appeal of the amended order dated December 29, 2023, but in it she again sought to challenge Hughes J.’s order requiring her to pay equalization to Mr. McLean and to sell the matrimonial home. The court refused to accept the notice of appeal given that Ms. Connell was well past the appeal period. She was permitted to file a revised notice of appeal that was framed solely as appealing from Hughes J.’s August 30, 2024 endorsement (COA-24-CV-1019).
- On September 18, 2024, Mr. McLean brought an urgent motion for an order allowing him to proceed with the sale of the matrimonial home without Ms. Connell’s cooperation. Ms. Connell in turn brought an urgent motion seeking to vary Hughes J.’s order to sell the property. On October 18, 2024, Hughes J. granted Mr. McLean’s motion, finding that Ms. Connell had not complied with her final order. She dismissed Ms. Connell’s motion but gave her a further 30 days to comply with the order to take steps to sell the home, failing which Mr. McLean could bring a further urgent motion for enforcement.
- On November 12, 2024, Ms. Connell filed a “secondary amended, amended, amended notice of appeal” in which she purported to appeal Hughes J.’s October 18, 2024 order as part of the COA-24-CV-1019 appeal.
- On November 27, 2024, the Deputy Registrar granted Mr. McLean’s motion to dismiss the COA-24-CV-1019 appeal for delay.
- On December 16, 2024, Dawe J.A. dismissed Ms. Connell’s motion to set aside the November 27 dismissal. Ms. Connell sought to review the decision of Dawe J.A. before a three-judge panel but missed the deadline to do so. She then brought a motion before a single judge to extend the time, which was dismissed on January 10, 2025 by Trotter J.A. This brought an end to the second appeal.
5This brings us to the current appeal. In late October 2024, both parties again brought urgent motions before Hughes J. On November 22, 2024, she dismissed Ms. Connell’s motions and granted Mr. McLean’s motion. On November 28, Hughes J. issued an order to evict Ms. Connell from the matrimonial home, along with her possessions, so that Mr. McLean could take exclusive possession of the house, list it with the realtor of his choosing, and sell both it and its remaining contents without Ms. Connell’s cooperation. The equalization payment owed by Ms. Connell, along with accrued interest and costs incurred to sell the house, would be disbursed to Mr. McLean from Ms. Connell’s share of the net proceeds of sale.
6According to Ms. Connell, Mr. McLean attended at the matrimonial home with police officers on December 10, 2024. Ms. Connell was evicted, and Mr. McLean took possession of the home.
7On December 18, 2024, Ms. Connell commenced this new appeal (COA-24-CV-1301) in which she seeks to set aside Hughes J.’s November 28, 2024 order allowing Mr. McLean to sell the house.
8On January 16, 2025, Ms. Connell brought a motion to stay the November 28 order, pending the outcome of this appeal. This motion was dismissed by Lauwers J.A. In his endorsement dated January 28, 2025, he stated that:
I could have dismissed the motion under r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as frivolous and vexatious and directed the Registrar to undertake the process set out in r. 2.1.01(2)-(7), since I am the fourth judge on this court to have addressed Ms. Connell’s barrage of ill conceived and executed motions. Should Ms. Connell bring another motion relating to this matter, thought should be given to taking that route.
9On February 14, 2025, Ms. Connell attempted to file a new “Urgent Notice of Appeal” seeking again to halt or reverse the sale of the matrimonial home (which had taken place a few days earlier) and to challenge the underlying order for its sale on the basis that Mr. McLean had made fraudulent misrepresentations in court, and that Ms. Connell had been denied procedural fairness. This filing was rejected because Ms. Connell had already filed a notice of appeal with respect to Hughes J.’s November 28, 2024 order.
10On February 19, 2025, Ms. Connell submitted for filing a further urgent notice of motion to strike Mr. McLean’s pleadings, on the basis that he had engaged in “bad faith litigation”. She also sought, among other relief, damages for psychological and emotional harm, a reversal of the order that she pay an equalization payment, unspecified penalties against Mr. McLean for his alleged failure to make full financial disclosure, and a vexatious litigant order against him. The court refused to accept this filing. Ms. Connell was advised that she could seek a panel review of Lauwers J.A.’s decision but that, since she had missed the deadline to do so, she would first have to file a motion seeking more time. Despite this response, Ms. Connell again attempted to file an amended motion to strike Mr. McLean’s pleadings on March 28, 2025.
11On February 25, 2025, Ms. Connell filed yet another urgent notice of motion, this time seeking to obtain an extension of time to appeal Hughes J.’s December 29, 2023 order, and for disclosure by Mr. McLean of all documents relevant to the sale of the matrimonial home. This filing was refused on the basis that Ms. Connell had already appealed Hughes J.’s order (in COA-24-CV-0149) and that appeal had been dismissed for delay.
12The current appeal was perfected on March 7, 2025. It has now been listed for hearing on September 4, 2025.
13On May 21, 2025, Hughes J. released her costs ruling. She concluded that Mr. McLean was entitled to partial indemnity costs of $30,500 for the trial and $5,500 for motions and attendances before her since the trial. These amounts were to be subtracted from Ms. Connell’s share of the net proceeds of sale of the matrimonial home.
14On June 4, 2025, Ms. Connell submitted a Supplementary Notice of Appeal, seeking to add an appeal of the May 21, 2025 costs order to the present appeal.
The Issues Now Before Me
15I must determine the following issues:
- Based on my initial review, what directions or orders should be made in respect of the vexatious litigant motion brought by Mr. McLean?
- Based on my initial review, what directions or orders should be made in respect of the vexatious litigant motion brought by Ms. Connell?
- Should Mr. McLean be granted an extension of time to file his factum and compendium on this appeal until after a decision is rendered on his r. 2.2.02 motion?
- Should Ms. Connell be granted leave to add an appeal of Hughes J.’s May 2025 costs award to her appeal?
- Should I make any other directions in respect of this appeal?
(1) What directions or orders should be made in respect of Mr. McLean’s motion to have Ms. Connell declared a vexatious litigant?
General Principles
16Under s. 140(1) of the Courts of Justice Act, where a judge of the Superior Court or this court is satisfied that a person has “persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner”, the judge may order that the person may not, without leave, institute any further proceeding in any court or continue a proceeding previously instituted, as well as any other term that is just.
17A purpose of s. 140 is to prevent an abuse of the court’s process: Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 230 (Ont. C.A.), at paras. 30, 40, leave to appeal refused, [2006] S.C.C.A. No. 144. Vexatious litigant orders prevent litigants from harassing others and forcing them to incur unnecessary legal costs, and protect the interests of society as a whole by limiting the needless diversion of finite court resources to private vendettas that do not give rise to any genuine cause of action. As held by this court in Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 21: “It is important for the courts to be gatekeepers of our system of justice. Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts.”
18The recognition of the need for this gate-keeping function must be tempered with the acknowledgement that not every self-represented litigant is vexatious, and “even a vexatious litigant may raise a legitimate issue that justifies consideration by a court”: Lochner, at para. 22. Because it affects the party’s access to the justice system, a vexatious litigant order is an extraordinary remedy: Lukezic v. Royal Bank of Canada, 2012 ONCA 350, para. 12.
19As observed in Lochner, at para. 20 and Leblanc v. Alghamdi, 2022 ONCA 687, para. 11, leave to appeal refused, [2022] S.C.C.A. No. 474, a vexatious litigant will typically:
a) bring one or more legal proceedings that obviously cannot succeed and claim relief that no reasonable person would expect to obtain;
b) seek to relitigate issues that have already been determined, for example by persistently pursuing unsuccessful appeals;
c) advance proceedings for an improper purpose, including the harassment and oppression of other parties;
d) roll over, repeat, and supplement grounds and issues raised from one proceeding to another; and
e) fail to pay costs awards.
20Hallmarks of vexatious proceedings include, but are not limited to, submissions that are inappropriate in both form and content, and which contain much that is not legally relevant; “unsustainable allegations and gratuitous complaints against members of the legal profession”; and cessation of proceedings only when the party is unable to pay legal fees and costs: Lochner, at para. 19.
21A litigant’s behaviour both in and out of court may be relevant, where out-of-court conduct is evidence from which the court could infer that the litigant’s motivations for instituting court proceedings are the product of an unreasonable obsession with a cause: Bishop v. Bishop, 2011 ONCA 211, paras. 8-9.
22Rule 2.2 sets out the procedure for obtaining a vexatious litigant order, which may now be initiated by a party or by a judge: see also Courts of Justice Act, s. 140(2). Enacted in the fall of 2024 as part of the new framework for vexatious litigant proceedings under s. 140 of the Courts of Justice Act, r. 2.2 streamlines the process to address litigants who have demonstrated a pattern of vexatious behaviour.
23Under r. 2.2.06(1), after notice of a potential vexatious litigant order has been given to the subject of the potential order and the deadlines for any response or reply have passed, a judge shall conduct an initial review of the notice and submissions, following which the judge shall make an order in Form 2.2F,
a) directing that a hearing of the matter be held under r. 2.2.07; or
b) dismissing the matter, with reasons.
24The judge may also include any other terms and directions “as are just”: rr. 2.2.06(2) and 1.05.
The Parties’ Submissions
25As grounds for his motion for a vexatious litigant order against Ms. Connell, Mr. McLean alleges that:
- Ms. Connell has failed to pay costs awards totaling $6,500 ordered by this court in her three appeals from August 2024 to January 2025;
- She has persistently pursued unsuccessful proceedings in this court;
- She has attempted to relitigate matters already determined;
- In a February 10, 2025 affidavit in support of a motion to adjourn the costs hearing before Hughes J., Ms. Connell stated that “This matter is currently set aside with the Court of Appeal for Ontario, effective January 6, 2025, file no COA-24-CV-1301; therefore, a costs submission hearing is improper at this time.” According to Mr. McLean, this was an intentional misrepresentation since it implied that Hughes J.’s order had been set aside and is at odds with Lauwers J.A.’s dismissal of Ms. Connell’s motion for a stay.
- On January 9, 2025, and again on March 22, 2025, Ms. Connell called the police and attempted to have Mr. McLean arrested on charges of fraud in relation to his possession and sale of the matrimonial home. She filed a written complaint with police on March 26, 2025. Mr. McLean’s real estate agent and his former lawyer each advised the police that the sale was not in any way fraudulent and that the Court of Appeal had refused a stay of the order for the sale. None of the complaints resulted in any charges being laid against Mr. McLean.
- On March 25, 2025, Ms. Connell notified Scotiabank not to release a discharge statement requested in connection with the sale of the home; and
- On March 26, 2025, Ms. Connell falsely reported to the Real Estate Council of Ontario that Mr. McLean had committed fraud in selling the matrimonial home.
26In her response to the notice of Mr. McLean’s r. 2.2.02 motion, Ms. Connell states among other things that:
- She has failed to pay costs orders because she is in financial difficulty, having been forced to pay for new accommodations after being evicted from the matrimonial home while remaining responsible for various carrying costs, including mortgage payments and utilities, associated with the house prior to its sale;
- She has a right to pursue appellate review;
- She has missed filing deadlines due to circumstances beyond her control, including medical issues, computer problems, and the eviction;
- Mr. McLean’s sale of the matrimonial home without notice to her provides a basis for this court to question the validity of the November 28, 2024 order;
- She has filed motions since the sale not to harass Mr. McLean, but “to obtain access to key evidence and prevent further prejudice”;
- Any misleading statement in her February 10, 2025 affidavit was unintentional;
- She does not deny making police complaints in January and March 2025, but contends that the court should not give any weight to Mr. McLean’s allegations on this issue because he has not produced any corresponding written complaints dated January 9 or March 22, “making it impossible to verify the nature, content, and outcome of the alleged police interactions”;
- Her direction to Scotiabank was required to preserve her rights pending her appeal; and
- Her complaint to the Real Estate Council of Ontario was made in good faith and in the public interest, given her concern that Mr. McLean sold the matrimonial home notwithstanding her pending appeal of the November 28 order.
27Ms. Connell asserts that:
This is not a case of delay for tactical advantage or due to indifference; it is a case of a self-represented litigant overwhelmed by ongoing injustice, procedural complexity, financial ruin, and mental exhaustion. The procedural delay should be viewed in the broader context of systemic disadvantage and repeated obstruction by the opposing party and his legal representatives.
Analysis
28The record of proceedings corroborates Mr. McLean’s allegations about Ms. Connell’s actions. This record provides an ample basis on which I could direct a hearing of the motion under r. 2.2.07. On its face, it shows Ms. Connell’s refusal to accept the finality of court orders no longer subject to appeal – notably, Hughes J.’s final order in December 2023 that the matrimonial home must be sold – and her consistent failure to comply with the directions, orders or procedure. Her repeated attempts to relitigate issues that have already been determined has consumed significant judicial and court resources. They have compelled Mr. McLean and others to spend time, energy and resources responding to duplicative notices of appeal, motions, and complaints to third parties, including the police.
29Ms. Connell asserts that her conduct does not reflect a vexatious purpose. A litigant may abuse the court process without recognizing that they are doing so. It is telling that Ms. Connell expresses the view that no motion judge has found her proceedings to be without merit. As already mentioned, in his January 28, 2025 endorsement, Lauwers J.A. found Ms. Connell’s motion for a stay to be frivolous and suggested that, given her history of “ill conceived and executed motions”, she could be the subject of a r. 2.1.01 proceeding. In her May 21, 2025 costs endorsement, Hughes J. found that Ms. Connell had acted unreasonably and that her conduct following trial, while not reaching the level of bad faith, was “self-entitled and displayed poor judgment”.
30There are, however, other considerations in determining how I should exercise my discretion under r. 2.2. The appeal is set to be heard in just over two months. The scope of the current appeal is limited to challenging Hughes J.’s November 28, 2024 enforcement order. If I direct a r. 2.2.07 hearing, Ms. Connell could seek to appeal my ruling or seek to adjourn the hearing date for her appeal to focus on the vexatious litigant proceeding. This would imperil a prompt and final resolution of the parties’ dispute. This would be particularly unfortunate because, despite the lengthy history of proceedings, the merits of Ms. Connell’s submissions have never been considered by a panel of this court.
31Weighing these competing factors, I have concluded that Mr. McLean’s r. 2.2.02 motion should be dismissed rather than referred to a hearing. The interests of justice and the parties will be better served by working to move this matter efficiently to the September 4 hearing date. To ensure it does, I am ordering that, absent leave, neither party may file any further motions or amendments to the notice of appeal. The process for obtaining leave is set at the end of this endorsement.
(2) What directions or orders should be made in respect of Ms. Connell’s motion to have Mr. McLean declared a vexatious litigant?
32In her factum in support of her motion to have Mr. McLean declared a vexatious litigant, Ms. Connell alleges that, among other things, Mr. McLean has:
- Intentionally misrepresented his financial disclosures including under oath;
- Repeatedly advanced baseless claims for spousal support, unequal division of property, and constructive trust before abandoning them shortly after the commencement of trial; and
- Deliberately filed late motions on multiple occasions, failed to file required written materials, and improperly brought a motion dated September 17, 2024, without sufficient evidence or procedural justification (which was nonetheless granted).
33Ms. Connell asserts that Mr. McLean’s actions, “taken together, demonstrate a calculated and persistent effort to harass the Appellant, strip her of her dignity, cause her financial ruin, force her into homelessness, and inflict severe emotional distress” and that his “continued misuse of the Court’s processes form a clear and compelling pattern of bad-faith and vexatious litigation.”
34Mr. McLean denies that he has engaged in much of the behaviour alleged by Ms. Connell.
35On my review of the materials and argument filed by the parties, I conclude that there is no basis to direct a hearing of Ms. Connell’s r. 2.2.02 motion. There is no evidence of a persistent pattern of misconduct or abuse of court processes by Mr. McLean on the record before me. Ms. Connell’s r. 2.2.02 motion is accordingly dismissed.
(3) Should Mr. McLean be granted an extension of time to file his factum and compendium on this appeal until after a decision is rendered on his r. 2.2.02 motion?
36In consideration of the time that the parties have devoted to the issues now before me, I am granting Mr. McLean a short extension. He must deliver his responding materials on the appeal by August 20, 2025. Further directions about the parties’ filings are set out at the end of this endorsement.
(4) Should Ms. Connell be granted leave to add an appeal of Hughes J.’s May 2025 costs award to her appeal?
37Because Ms. Connell’s appeal has been perfected, she requires leave to amend her notice of appeal: see r. 61.08(3). In deciding whether to grant leave under r. 61.08(3), the court must consider the same factors relevant to a motion for an extension of time: T.O. Estate v. D.O., 2024 ONCA 73, paras. 7-8. The test for granting an extension requires the appellant to show that the “justice of the case” requires it. Important considerations include whether the appellant formed an intention to appeal within the relevant time period; the length of the delay in filing and any explanation for it; prejudice to the respondent; and the merits of the appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, para. 15; Rizzi v. Marvos, 2007 ONCA 350, paras. 16-17.
38I find that the justice of the case supports granting leave. The merits of the proposed costs appeal are debatable, owing to the broad discretion given to judges to fix costs and the absence of any obvious error of principle in Hughes J.’s costs endorsement. However, Ms. Connell’s filing of her Supplementary Notice of Appeal on June 4, 2025 shows that she clearly formed an intention to appeal the May 21, 2025 costs order within the relevant period; she could not have sought to amend before the appeal was perfected because the costs decision was released after perfection; she moved promptly to amend her notice of appeal; and I do not find that granting leave to amend will prejudice Mr. McLean, so long as the costs appeal is heard together with the main appeal on September 4, 2025.
39I am therefore directing that Ms. Connell’s Supplementary Notice of Appeal of the May 21, 2025 costs decision be accepted for filing. I am also directing that the appeal of that order shall be heard together with the appeal in COA-24-CV-1301 on September 4, 2025.
40I should note that, if Ms. Connell’s appeal on the merits of Hughes J.’s November 28, 2024 order is dismissed, she will require leave to appeal the May 21, 2025 costs order from the panel hearing the appeal: see Courts of Justice Act, s. 133(b); Hobbs v. Hobbs, 2008 ONCA 598, para. 30.
(5) Should I make any other directions in respect of this appeal?
41I am setting a schedule for the exchange of materials and the length of the factums that the parties have yet to file, in addition to the orders already referred to above.
Disposition
42Mr. McLean and Ms. Connell’s respective r. 2.2.02(a) motions are both dismissed pursuant to r. 2.2.06(1)(b). Mr. McLean’s motion to extend time is granted and the deadline to file his responding materials is set out below. Ms. Connell’s motion for leave to file her Supplementary Notice of Appeal of Hughes J.’s costs decision is granted. I am making additional orders under rr. 1.05 and 2.2.06(2) to ensure that this appeal proceeds efficiently toward the September 4, 2025 hearing, as follows:
Neither party may bring any further motions in the context of this appeal, nor shall Ms. Connell seek to further amend her notice of appeal, without first obtaining leave from me. Leave may be sought by submitting no more than two double-spaced pages explaining the proposed motion and the basis upon which the party seeking leave asserts that the motion must be heard in advance of the appeal. The submissions should be sent by email to coa.e-file@ontario.ca, addressed to my attention. I will consider the request in writing and provide written directions.
Ms. Connell’s Supplementary Notice of Appeal of the May 21, 2025 costs decision, submitted on June 4, 2025, may be filed. The appeal of that order will be heard together with the appeal of Hughes J.’s November 28, 2024 order in COA-24-CV-1301 on September 4, 2025.
Ms. Connell may file a supplementary factum of no longer than 10 pages addressing her costs appeal by July 26, 2025, along with a supplementary book of authorities containing the authorities referred to in her supplementary factum.
Mr. McLean shall deliver his responding materials on the appeal by August 20, 2025. The materials should respond to both the appeal of the November 28, 2024 order of Hughes J., as well as the appeal of the May 21, 2025 costs order. Mr. McLean is to submit a single factum dealing with the appeal of both orders, which should be no longer than 40 pages, and a book of authorities containing the authorities referred to in his factum.
Neither party may file any reply materials or any other further materials on this appeal except those permitted in paragraphs 3 and 4. Court staff are directed to reject any further material filed by either party other than the materials mentioned in paragraphs 3 and 4. In particular, they shall reject the filing of any material listed in Ms. Connell’s Certificate Respecting Evidence filed with her Notice of Appeal of the May 21, 2025 costs order, unless such material has already been accepted for filing.
The appeal will be heard on September 4, 2025.
“S. Gomery J.A.”
[1] M55974 (Sonia Connell moving party); M55910 (Basseth McLean moving party).
[2] M55975.
[3] At the trial, Mr. McLean confirmed he was no longer pursuing a claim for spousal support. Hughes J. accordingly dismissed that claim.