COURT FILE NO.: 88/08
DATE: 20080707
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, FERRIER AND SWINTON JJ.
B E T W E E N:
NASIM JIWANI and RAJABLI JIWANI
Plaintiffs
(Appellants)
- and -
DR. RAVI DEVGAN, HAROLD FRANKEL, C.K. LEONG TRUSTEES OF 3^RD^ BANKRUPTCY ESTATE, GARDINER ROBERTS LLP, COUNSELS,
L. HOULDEN, B. SKOLNIK, J. KRUSE, A. HUSA, OSB CANADA, OFFICERS, F. MCGUIRE, J-MARC MCCABE, F. QUANCE AND K. SMITH
Defendants
(Respondents)
Nasim Jiwani, In Person
Ellen Snow, for the Defendant, Chee-Kong Leong, Trustee in 3^rd^ Bankruptcy
Jason Wang, for the Defendants, Gardiner Roberts LLP, L. Houlden, B. Skolnik, J. Kruse and H. Husa
Amy Porteous, for the Respondents, OSB Canada, F. McGuire, J-Marc McCabe, F. Quance and K. Smith
HEARD at Toronto: July 7, 2008
CHAPNIK J.: (Orally)
[1] The appellants, Nasim Jiwani and Rajabli Jiwani, appeal from the judgment of Low J., dated January 16, 2008.
[2] The learned judge dismissed the plaintiffs’ motion brought under s.140(3) of the Courts of Justice Act, R.S.O. 1990, c.C.43 (the “Act”) for, among other things, leave to institute further proceedings against the respondents and she refused to set aside the order of Morawetz J., made May 9, 2006. That order declared the plaintiffs vexatious litigants and prohibited them from commencing further proceedings against the respondents without leave of the Court.
[3] In dismissing the plaintiffs’ motion, Low J. found that the motion was an abuse of process and a collateral attack on final decisions of the Superior Court and the Court of Appeal, and that the issues were res judicata.
[4] Section 140 of the Courts of Justice Act provides as follows:
140(1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,
(a) instituted vexatious proceedings in any court; or
(b) conducted a proceeding in any court in a vexatious manner,
the judge may order that,
(c) no further proceeding be instituted by the person in any court; or
(d) a proceeding previously instituted by the person in any court not be continued,
except by leave of a judge of the Superior Court of Justice.
[5] Section 140(3) provides:
(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.
[6] Section 140(4)(e) reads:
Where an application for leave is made under subsection (3),
(e) no appeal lies from a refusal to grant relief to the applicant.
[7] Accordingly, s.140(4)(e) precludes an appeal from a refusal to grant leave under s.140(3).
[8] No appeal therefore lies from the order of Low J. This Court has no jurisdiction to hear this appeal and the appeal is therefore quashed.
[9] It is noted that, at the outset of the appeal, Ms. Jiwani requested an adjournment for two hours, due to an eye problem. Because this appeal was clearly based on a jurisdictional issue, we heard Ms. Jiwani on the question of jurisdiction and have proceeded accordingly.
COSTS
[10] There is no reason to depart from the general rule “costs follow the event”, that is, when a party is successful they are entitled to their costs. The respondents have asked for reasonable costs and I will grant them as submitted. Order to go as requested, Gardiner Roberts et al. $500 in costs, the OSB et al. $800 and C.K. Leong Trustees $500.
___________________________
CHAPNIK J.
___________________________
FERRIER J.
___________________________
SWINTON J.
Date of Reasons for Judgment: July 7, 2008
Date of Release: July 11, 2008
COURT FILE NO.: 88/08
DATE: 20080707
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, FERRIER AND SWINTON JJ.
B E T W E E N:
NASIM JIWANI and RAJABLI JIWANI
Plaintiffs
(Appellants)
- and -
DR. RAVI DEVGAN, HAROLD FRANKEL, C.K. LEONG TRUSTEES OF 3^RD^ BANKRUPTCY ESTATE, GARDINER ROBERTS LLP, COUNSELS, L. HOULDEN, B. SKOLNIK, J. KRUSE, A. HUSA, OSB CANADA, OFFICERS, F. MCGUIRE, J-MARC MCCABE, F. QUANCE AND K. SMITH
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
CHAPNIK J.
Date of Reasons for Judgment: July 7, 2008
Date of Release: July 11, 2008