ONTARIO SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT

CITATION: Gates v. The Humane Society of Canada for The Protection of Animals and the Environment carrying on business as The Humane Society of Canada, 2016 ONSC 5345

DIVISIONAL COURT FILE NOS.: 18/16 and 510/14

DATE: 20160824

BETWEEN:

darcy gates Plaintiff/Respondent

– and –

The Humane society of canada for the proteCtion of animals and the environment carrying on business as the humane society of canada Defendant/Appellant

COUNSEL:

Elichai Shaffir, for the Plaintiff/Respondent

Michael O’Sullivan, CEO of the Defendant/Appellant

HEARD at Toronto: June 9, 2016

REASONS FOR JUDGMENT

c. horkins J.

introduction

[1] The plaintiff/respondent, Darcy Gates (“Mr. Gates”), was employed by the defendant/appellant, The Humane Society of Canada for the Protection of Animals and the Environment carrying on business as The Humane Society of Canada (“HSC”). In December 2009, HSC terminated Mr. Gates’ employment.

[2] Mr. Gates commenced an action against HSC in the Small Claims Court seeking damages for the wrongful termination of his employment. HSC counterclaimed seeking damages of $12,724.60 for expenses allegedly incurred arising from the termination.

[3] On July 21, 2011, after a two-day trial, Deputy Judge Kay found that HSC had wrongfully terminated Mr. Gates. The court awarded Mr. Gates damages in the amount of $12,189.38 plus costs of $4,150. The court dismissed HSC’s claim because no evidence was presented to support the claim. The court found that HSC’s claim was frivolous and vexatious and awarded Mr. Gates $1,000 in costs.

[4] Five years later, Mr. Gates has yet to receive payment of his judgment. Instead, there have been numerous court proceedings arising from the Small Claims Court judgment and cost orders made against HSC.

[5] This was a straight forward wrongful dismissal claim in Small Claims Court. It has spun out of control due to HSC’s actions. HSC has repeatedly engaged in conduct that is frivolous and vexatious and an abuse of the court’s process.

[6] In Small Claims Court and Divisional Court, HSC has not been represented by counsel. On October 24, 2012, Michael O’Sullivan, the CEO of HSC, obtained leave under rule 15.01(2) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 to represent HSC in the Divisional Court.

The motions before this court

[7] Mr. Gates brings two motions before this court. Each motion relates to HSC’s appeal of a Small Claims Court order.

[8] First, HSC has appealed the order of Deputy Judge McNeely dated October 31, 2014. In that order, Deputy Judge McNeely corrected a misnomer and amended the title of the proceeding in the Small Claims Court.

[9] Second, HSC has appealed the order of Deputy Judge Twohig dated December 9, 2015. In that order, Deputy Judge Twohig denied HSC’s request for return of the monies that Mr. Gates successfully garnished from HSC and denied HSC’s request to cross-examine Mr. Gates’ counsel.

Appeal from Deputy Judge McNeely’s Order

[10] In the notice of motion dated May 25, 2016 (Court File No. 510-14), Mr. Gates seeks an order quashing HSC’s appeal from the order of Deputy Judge McNeely dated October 31, 2014, because of HSC’s delay in proceeding with the appeal.

[11] The order of Deputy Judge McNeely amended the title of proceeding in the Small Claims Court, to reflect the correct name of HSC. HSC appealed this order to the Divisional Court. HSC perfected the appeal in late 2014 and Mr. Gates filed his materials in February 2015.

[12] In October 2015, Mr. Gates’ counsel wrote to HSC asking if the appeal had been abandoned and, if not, when it would be heard. At this point all that remained to be done was fix a date for the hearing of the appeal. HSC did not respond. As a result, Mr. Gates brought his motion for an order quashing the appeal for delay.

[13] HSC filed no responding material on this motion to explain why it has taken no steps to secure a date for the appeal.

[14] Given that all of the materials for the appeal have been filed with the court, I proposed to the parties (subject to their consent) that I would proceed and hear the appeal on the merits. This was a practical solution because the evidence filed for the two motions was relevant to the appeal and the appeal file was before the court. The parties consented to this proposal.

[15] The matter was adjourned to the afternoon to give the parties time to prepare for the appeal. The parties agreed that this gave them ample time to prepare.

Motion to Lift Stay of Mr. Gates’ Garnishment

[16] In the second notice of motion dated May 26, 2016 (court file no. 18-16), Mr. Gates seeks an order lifting the automatic stay of his garnishment that resulted when HSC appealed the December 9, 2015 order of Deputy Judge Twohig. As will be explained below, this was an order that denied HSC’s request for return of the monies that Mr. Gates successfully garnished from HSC and denied HSC’s request to cross-examine Mr. Gates’ counsel.

[17] When HSC appealed Deputy Judge Twohig’s order, Mr. O’Sullivan did not correctly name HSC in the Notice of Appeal. As a result, Mr. Gates also seeks an order amending the title of proceeding in HSC’s notice of appeal to reflect the correct name of HSC. HSC consents to this part of the motion. This order was granted on Friday, June 10, 2016.

The Factual background

[18] I start with a review of the factual background because it is relevant to the motions before this court.

The Small Claims Court Trial

[19] In July 2011, after a two-day trial, Deputy Judge Kay found that HSC had wrongfully terminated Mr. Gates from his employment. Detailed reasons were provided. The Deputy Judge stated that he “listened to each of the witnesses both for the plaintiff and defence and carefully assessed their content and their credibility”. I will briefly review the reasons.

[20] Mr. Gates had been employed by HSC since 2006. On December 10, 2009, Mr. Gates raised his voice at another employee (“the shouting incident”). On that day and previously, the other employee had berated Mr. Gates and was disrespectful. The office manager had previously asked this other employee to moderate her tone when speaking.

[21] Mr. Gates left the office after the shouting incident. The same day, the office manager asked him to return to work and he did so. On his return, Mr. Gates was asked to apologize in writing and he did so. Mr. O’Sullivan did not think the apology was acceptable. The Deputy Judge found that the apology, while short, was sincere. Mr. Gates worked for the next three work days and was then terminated.

[22] Mr. Gates’ employment file revealed no previous cautions or problems concerning his conduct and work performance. During his employment, he received raises. The Deputy Judge described the evidence of Mr. Gates as “straightforward, unembellished and candid”.

[23] At trial, Mr. O’Sullivan tried to portray the shouting incident as one that would probably precipitate violence. The Deputy Judge rejected this portrayal. The trial judge had the benefit of evidence from the employee involved in the shouting incident and other HSC employees who had observed the shouting incident. If Mr. Gates was such a “violent danger” to the staff, the Deputy Judge questioned why he would be asked to return to work with the employee and others in what was described as a small office.

[24] Since the trial, Mr. O’Sullivan has continued to characterize the shouting incident as “workplace violence”, even though the Deputy Judge made no findings of fact to support such a serious allegation and specifically rejected this characterization of the incident.

[25] The employee who was involved in the shouting incident testified at trial and advised the Deputy Judge that she was intimidated by Mr. Gates. The Deputy Judge found that this “was either an overreaction or a gross exaggeration for a single incident of this nature.” Furthermore, the Deputy Judge found that there was no evidence whatsoever that Mr. Gates presented a danger of violence to employees at HSC. He made these findings of fact based on the testimony of various witnesses to the shouting incident.

[26] HSC’s claim was dismissed with costs to Mr. Gates. HSC had claimed $12,724.60. About $10,000 related to Mr. O’Sullivan. He alleged that because he was dealing with matters relating to Mr. Gates’ termination, he lost the opportunity to bring donation monies into HSC. After the termination, Mr. O’Sullivan called the office no less than 91 times over five days to speak to the employees. The Deputy Judge found that this was not evidence of the seriousness of shouting incident, but rather evidence of Mr. O’Sullivan’s management style. The Deputy Judge found that there was “absolutely no evidence presented” to support HSC’s claim. As a result, the Deputy Judge found the claim to be “frivolous and vexatious”. HSC’s claim was dismissed.

HSC Appeals the Small Claims Court Judgment

[27] On August 22, 2011, HSC filed a Notice of Appeal in the Divisional Court seeking to appeal the Small Claims Court judgment of Deputy Judge Kay. HSC did not perfect its appeal despite receiving a notice of the default.

[28] On September 21, 2012, the Registrar of the Divisional Court dismissed the appeal for delay with costs to Mr. Gates.

[29] On October 24, 2012, HSC brought a motion to set aside the dismissal and obtain leave for Mr. O’Sullivan to represent HSC at the Divisional Court pursuant to rule 15.01(2) of the Rules of Civil Procedure. Lax J. granted the order with costs to Mr. Gates.

[30] HSC still did not perfect its appeal. As a result, on January 18, 2013, the Assistant Registrar dismissed the appeal for delay with costs to Mr. Gates.

[31] On March 18, 2013, HSC brought a motion to set aside the January 18, 2013 dismissal order. HSC had still not perfected its appeal. Aston J. dismissed the motion with costs to Mr. Gates. In an endorsement, Aston J. stated as follows:

This motion seeking another indulgence is unsupported by any evidence explaining the delay or demonstrating the merit of the appeal or even when HSC will be in a position to perfect an appeal that should have been perfected long ago.

[32] On April 17, 2013, HSC filed a motion to set aside the order of Aston J. It brought this motion about three and a half weeks after the expiry of the four-day period for bringing such a motion under rule 61.16(6) of the Rules of Civil Procedure. HSC did not bring a motion to extend the time.

[33] This motion was heard before a Divisional Court panel on September 25, 2013 and was dismissed that day with oral reasons (Gates v. Humane Society of Canada, 2013 ONSC 6041). If HSC had brought a motion to extend the time as required, the court stated at para. 4 that the relief requested would not have been granted for the following reasons:

(i) There is no evidence to explain the delay. The appellant makes the same oral allegations to us that he made before Aston J. without filing any affidavit material to support them, before us or before Aston J.

(ii) Without evidence, the appellant submits in his factum"The [appellant] is awaiting the results of investigations into allegations of perjury at the original trial and allegations that the trial transcript may have been altered which are being conducted by government agencies, the timing and substance over which the [appellant] has no control." It goes on to ask that a hearing date be set and the Society be allowed"to amend this appeal as information from the investigations by law enforcement and judicial bodies become available."

Essentially, the same proposal was made to Aston J. Setting aside Aston J.'s order would cause prejudice to the respondent who almost five years after being fired has yet to be in a position to collect the damages, costs and interest that were ordered and which do not exceed $20,000 in total. He should not be put to further expense and delay while the Court waits for the appellant to find evidence to support its allegations.

(iii) There is no merit to the motion to set aside the order of Aston J. Given the length of the delay, the absence of any valid explanation for it and the previous indulgence given to the appellant, Aston J.'s decision was inevitable.

(iv) There is no apparent merit to the appeal.

[Emphasis added.]

[34] This Divisional Court panel issued a separate costs endorsement dated September 25, 2013. The court ordered HSC to pay Mr. Gates costs on a substantial indemnity basis, fixed at $8,000. The reasons for the costs order highlight the ongoing failure of HSC to comply with the Rules of Civil Procedure and its “reprehensible and egregious behavior” that warranted elevated costs. In particular, the court noted that HSC filed no evidence to explain its delay on the motion before Aston J. Further, the court stated that HSC “has made allegations of criminal conduct [against Mr. Gates] which are not based upon the evidence”. The court noted that the HSC supervisor who testified at trial stated that Mr. Gates “did not put his hands on her at all.” Further, the court referred to the fact that HSC had filed a complaint with the Law Society about the conduct of Mr. Gates’ counsel and that “the complaint was summarily dismissed.”

[35] HSC’s conduct warranted an elevated costs award as the court explained in para. 4 as follows:

Allegations of criminal misconduct unsupported by any evidence, and the repeated failure to comply with the Rules of Civil Procedure amount in this case to reprehensible and egregious behaviour, which warrants an order for payment of elevated costs. [HSC] is not entitled to use its status as a charitable corporation to shield its misconduct to the prejudice of [Mr. Gates].

[Emphasis added.]

[36] Unfortunately, HSC’s reprehensible and egregious behaviour continues to this date, despite this warning from the Divisional Court. HSC continues to allege criminal misconduct and make other serious unfounded allegations against Mr. Gates and his counsel. Details of this continuing reprehensible and egregious behaviour are addressed later in these reasons.

[37] On November 21, 2013, HSC brought a motion in the Court of Appeal seeking leave under rule 15.01(2) for Mr. O’Sullivan to represent HSC in the Court of Appeal. The endorsement of the court states that HSC intended to seek leave to appeal the September 25, 2013 order of the Divisional Court. Noting that Mr. O’Sullivan had conducted the proceeding for HSC during the timeframe of the reprehensible and egregious behavior, Gillese J.A. denied the motion because it would not be in the interests of justice for Mr. O’Sullivan to represent HSC before the Court of Appeal. HSC was ordered to pay Mr. Gates costs of $2,000.

[38] HSC did not retain counsel and it did not perfect its motion for leave to appeal the September 25, 2013 order of the Divisional Court. As a result, Mr. O’Sullivan filed a motion seeking an extension of time.

[39] On January 7, 2014, Weiler J.A. extended the time to file the necessary materials to March 7, 2014. Her endorsement refers to HSC wanting to file an amended factum and not being able to agree on the form of the Divisional Court order. It also records that Mr. O’Sullivan would respect the court order that denied his request to represent the HSC pursuant to rule 15.01(2).

[40] If a disagreement exists about the form of an order, the party seeking to have the order issued (in this case HSC) must make an appointment to have the order settled pursuant to rule 59.04 of the Rules of Civil Procedure. This was not done. Instead, HSC blamed Mr. Gates’ counsel for the absence of an issued and entered order. The Divisional Court order of September 25, 2013 was issued on March 31, 2015.

[41] On March 3, 2014, HSC brought a motion before a panel of the Court of Appeal (MacFarland, Rouleau, Lauwers JJ.A.) seeking a review of the order of Gillese J.A. The motion was dismissed with costs to Mr. Gates of $3,000.

[42] The leave to appeal motion was not perfected. Notice of failure to perfect was given to HSC and even then it did not perfect the leave motion. On March 14, 2014, the Deputy Registrar of the Court of Appeal dismissed HSC’s motion for leave to appeal for delay.

[43] Almost three years after Mr. Gates received judgment against HSC for his wrongful dismissal, he was finally able to seek payment of the Small Claims Court judgment.

[44] During the hearing of the motion before this court, Mr. O’Sullivan stated that HSC intends to take steps to try and revive its appeal of Deputy Judge Kay’s trial judgment. This trial judgment was released more than five years ago. It has been more than two years since the Court of Appeal dismissed HSC’s motion for leave to appeal for delay. HSC has taken no steps to try and revive its appeal. In the circumstances of this case, there is no absolutely no basis for concluding that HSC’s intention has any chance of success.

Garnishment Efforts and Correcting the Misnomer

[45] On November 20, 2013, Mr. Gates filed garnishment materials in the Small Claims Court to enforce the Small Claims Court judgment and collect the multiple costs awards. On December 3, 2013, he received the Garnishee Statement from Royal Bank of Canada (“RBC”) stating that “[t]here are no accounts in the debtors name at the branch served”.

[46] After conducting a corporate search of HSC, Mr. Gates learned that he had inadvertently misnamed HSC in his Small Claims Court action. The same misnomer occurred in all of the proceedings in the Divisional Court and the Court of Appeal.

[47] On April 17, 2014, HSC brought a motion in Small Claims Court to terminate the garnishment proceedings. Deputy Judge Ashby dismissed the motion because there was no garnishment proceeding to terminate. In the reasons, the court stated that HSC had brought the motion “in ignorance of our rules”. The court reviewed the response from RBC, stating that there was no account in the debtor’s name. The court stated that Mr. Gates had 30 days to request a garnishee hearing. This was not done and so the garnishment proceeding was over.

[48] On October 14, 2014, Mr. Gates brought a motion in Small Claims Court before Deputy Judge McNeely to amend the title of proceeding to correctly name the defendant as “The Humane Society of Canada for the Protection of Animals and the Environment carrying on business as The Humane Society of Canada.” The court granted the order because the mistake was a misnomer. Mr. Gates also brought a motion in the Divisional Court and the Court of Appeal seeking the same relief.

[49] On January 6, 2015, Harvison Young J. issued an order amending the title of proceeding in the Divisional Court. She was satisfied that the error was a “simple misnomer”. Mr. Gates explained his delay in correcting the misnomer and the court found that he had proceeded “rationally and efficiently”. Further, the court stated that HSC was not misled by the mistake and suffered no prejudice as a result of the misnomer. HSC did not appeal this order. A reasonable party would, in such circumstances, consent to the correction of the misnomer in the Court of Appeal. HSC was not acting reasonably and did not consent.

[50] In an order dated February 3, 2015, the Court of Appeal issued an order correcting the title of proceeding in that court. Hoy A.C.J.O. stated that “like the Divisional Court I am of the view that this is a case of a simple misnomer and that [HSC] has not been misled in any way.” At this court appearance, Mr. O’Sullivan attended without a lawyer. The court reminded him again that he is not permitted to represent HSC. HSC was ordered to pay Mr. Gates $250 in costs.

[51] HSC brought a motion before a panel of the Court of Appeal seeking to review the order of Hoy A.C.J.O. The court dismissed this motion on June 24, 2015, and ordered HSC to pay Mr. Gates costs of $1,000.

[52] By this point, Mr. Gates had corrected the title of proceeding in the three courts and HSC had exhausted its attempts to appeal the orders. As a result, Mr. Gates was able to proceed with garnishment of the trial judgment and all of the costs orders that were made against HSC.

[53] Mr. Gates issued a Notice of Garnishment and successfully garnished the monies that HSC owed him pursuant to the Small Claims Court judgment and the numerous costs orders. The garnishee, RBC, paid the garnished monies into court with the Small Claims Court. This is where the monies remain today because of subsequent steps that HSC has taken.

[54] Before the monies were paid out of court to Mr. Gates, HSC brought a motion in Small Claims Court on December 9, 2015. HSC sought an order for return of the garnished monies, confirmation of the total amount of monies garnished, and an order seeking to compel Mr. Gates’ counsel to be cross-examined on form 20P (“the affidavit”) that he filed to support the garnishment request.

[55] On December 9, 2015, Deputy Judge Twohig dismissed HSC’s motion with costs to Mr. Gates of $100. The amount of the monies garnished was confirmed to be $33,675.37. In his reasons, Deputy Judge Twohig stated that there was no authority to compel cross-examination on the affidavit. He denied the request to return the garnished money because the garnishment was legally correct.

[56] HSC appealed the order of Deputy Judge Twohig to the Divisional Court. This resulted in an automatic stay of Mr. Gates’ garnishment and he has been unable to secure release of the monies.

[57] With the benefit of this review, I will now turn to consider the two motions that are before this court.

Appeal of Deputy Judge McNeely’s order

[58] On October 31, 2014, HSC filed a notice of appeal seeking to appeal the order of Deputy Judge McNeely to the Divisional Court. This is the order that corrected the misnomer in the Small Claims Court proceeding.

[59] An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action for the payment of money in excess of the “prescribed amount”, excluding costs, or for the recovery of possession of personal property exceeding the “prescribed amount” in value (see s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43). These appeals are heard by a single judge of the Divisional Court (Courts of Justice Act, s. 21(2)(b)).

[60] Mr. Gates accepts that this was a final order. There is no right to appeal an interim order of the Small Claims Court. In Catalyst Capital Group Inc. v. Moyse, 2015 ONCA 784, the court discussed the distinction between a final and interim order as follows:

[11] In fairness to the parties, this court’s decisions on the final/interlocutory distinction have not been models of clarity. Much ink has been spilled, and court and counsel time wasted in exploring the nuances. But the root principle that all can and do accept was expressed by Middleton J.A in Hendrickson v. Kallio… 1932 123 (ON CA), [1932] O.R. 675:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the applications, but it is interlocutory if the merits of the case remain to be determined.

[61] Mr. Gates has a final judgment from the Small Claims Court. The order of Deputy Judge McNeely is inextricably linked to this final order since it corrected the misnomer and allowed Mr. Gates to move forward and seek garnishment of the final judgment. As a result, I accept that this is a final order and HSC has a right of appeal to this court.

[62] The standard of review applicable on appeals from judges’ orders is correctness on questions of law. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error (see: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).

The Appeal has No Merit

[63] HSC admits that its correct name is The Humane Society of Canada for the Protection of Animals and the Environment carrying on business as The Humane Society of Canada.

[64] The Small Claims Court, the Divisional Court and the Court of Appeal each found that the mistake was a misnomer. Each court issued an order to correct the name of HSC.

[65] HSC did not appeal the order of Harvison Young J. that corrected the misnomer in the Divisional Court. HSC sought a review of the order of Hoy A.C.J.O. and this was denied. However, HSC appeals the Small Claims Court order that remedied the mistake.

[66] There is no rational basis for HSC’s appeal of Deputy Judge McNeely’s order. HSC has failed to raise a ground of appeal that makes any sense whatsoever.

[67] HSC raises a ground of appeal that highlights why its actions are frivolous and vexatious and an abuse of the court’s process. Specifically, HSC argues that Deputy Judge McNeely had no authority to hear the motion because of the order of Deputy Judge Ashby.

[68] As explained above, Deputy Judge Ashby dismissed HSC’s motion to terminate the garnishment proceedings. HSC now argues that Mr. Gates should have followed the direction of Deputy Judge Ashby and should have moved for a garnishment hearing within 30 days. HSC states that Deputy Judge McNeely had no jurisdiction to issue his order because Mr. Gates did not do what Deputy Judge Ashby directed him to do.

[69] HSC argues that Mr. Gates should have sought a correction to the title of proceeding through the garnishment process that it states Deputy Judge Ashby directed Mr. Gates to follow. HSC does not articulate how this would happen and offers no supporting authority.

[70] A garnishment process is intended to assist the party seeking money. It assumes that the party seeking garnishment has a valid order. In this case, the order contained a misnomer and could not be used to seek garnishment. There was no reason for Mr. Gates to seek a garnishment hearing since RBC was right in refusing to honour the judgment before the misnomer was corrected.

[71] As noted, HSC does not dispute the fact that the misnomer had to be corrected. Further proof of this fact occurred more recently when HSC appealed the order of Deputy Judge Twohig’s order. Mr. O’Sullivan filed a Notice of Appeal and incorrectly named the Society as The Humane Society of Canada. Counsel for Mr. Gates alerted him to the error, but Mr. O’Sullivan did not take steps to correct it. As a result, Mr. Gates requested an order correcting the name of the appellant in this Notice of Appeal. Before this court, Mr. O’Sullivan consented to an order correcting the title of proceeding on his notice of appeal.

[72] In summary, HSC has not identified any basis for allowing its appeal of Deputy Judge McNeely’s order. The appeal is frivolous and wholly without merit. The appeal is dismissed.

APPEAL OF DEPUTY JUDGE TWOHIG’S ORDER – motion to Lift Stay

[73] When HSC filed a Notice of Appeal from the order of Deputy Judge Twohig, this resulted in an automatic stay of the garnishment pursuant to rule 63.01(1) of the Courts of Justice Act. Mr. Gates seeks an order lifting the stay. The order of Deputy Judge Twohig was the order that denied HSC’s request for return of the monies that Mr. Gates successfully garnished from HSC and denied HSC’s request to cross-examine Mr. Gates’ counsel.

[74] Rule 63.01(5) gives an appellate court judge discretion to lift a stay imposed by rule 63.01(1) "on such terms as are just". In considering whether to lift a stay, the court must consider three factors: (i) financial hardship to the respondent if the stay is not lifted; (ii) the ability of the respondent to repay or provide security for the amount paid; and (iii) the merits of the appeal (see Siwick v. Dagmar Resort Ltd., 1996 407 (ON CA), [1996] O.J. No. 4047, 95 O.A.C. 188 (C.A.); SA Horeca Financial Services v. Light, 2014 ONCA 811; Antunes v. Limen Structures Ltd., 2016 ONCA 309). I will start with the merits of this appeal.

Factor (iii) – Merits of the Appeal

[75] As explained below, it is obvious that the appeal has no merit.

[76] In para. 1 of the notice of appeal, HSC states that the judge made three “reviewable errors”:

(i) He erred in refusing to return funds that were “improperly taken from our charity’s bank account”;

(ii) He erred in refusing to allow HSC to cross-examine Mr. Gates’ counsel on the Form 20P affidavit; and

(iii) He erred in finding that the garnishment proceeding was proper “despite ongoing matters left open in a higher court”. HSC refers to matters in the Court of Appeal and the Divisional Court.

[77] First, the funds were not taken improperly from HSC’s bank account. The funds were garnished pursuant to the final judgment of Deputy Judge Kay after a two-day trial and the multiple costs orders made against HSC. The title of proceeding was corrected by court orders and HSC failed in its attempt to appeal this trial judgment. The Deputy Judge correctly stated that the garnishment was legal and there was no basis to set it aside and return the monies to HSC.

[78] Second, there is no basis in law for stating that the judge erred in refusing HSC’s request to cross-examine on Form 20P. There is no authority or procedural rule that allows cross-examination, particularly in this situation, where the information on the form cannot be disputed and the garnishment is legal.

[79] Form 20P is a document that is completed to initiate the garnishment proceedings. It records facts that are part of the court record: name of the creditor and debtor, the certificate of judgment and the amount that the creditor seeks to garnish. The form requires the creditor to identify the name and address of the garnishee (in this case RBC) and the reason for garnishment (in this case the judgment and costs orders). As Deputy Judge Twohig stated, the information in Form 20P is “all a factual recitation of what’s happened in court”.

[80] Referring to Form 20P, HSC alleges in the notice of appeal that Mr. Gates’ counsel swore a “false affidavit,” but offers no particulars to explain what part of this basic information from the public record is false. Based on the record before this court, it is clear that this is yet another serious allegation without any foundation in the evidence. It is a continuation of the reprehensible and egregious behaviour that the Divisional Court identified in the September 25, 2013 costs endorsement.

[81] Third, there are no “ongoing matters left open in a higher court”. HSC’s attempt to try and appeal the trial judgment came to an end on March 14, 2014, when the Deputy Registrar of the Court of Appeal dismissed HSC’s motion for leave to appeal for delay. Contrary to what HSC alleges in its notice of appeal, there are no “matters currently underway” in the Court of Appeal. In the Divisional Court, I have dismissed HSC’s appeal of Deputy Judge McNeely’s order. This leaves HSC’s appeal of Deputy Judge Twohig’s order.

[82] The notice of appeal also includes allegations that are misleading, false and/or irrelevant to the matter on appeal, namely the order of Deputy Judge Twohig. A review of these allegations in the notice of appeal is important. It reinforces why this appeal has no merit. It also explains the basis for my decision to notify the parties that I am considering making an order staying or dismissing this appeal under rule 2.1.02(1) of the Rules of Civil Procedure that states:

The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[83] In paragraph 4 of the notice of appeal, HSC claims that Mr. Gates seeks to enforce orders “subject to appeal in Divisional Court and the Court of Appeal”. As explained in these reasons, this is misleading and clearly wrong.

[84] HSC’s notice of appeal is also filled with serious unjustified and unfounded accusations against Mr. Gates and his counsel.

[85] HSC states that counsel refused to sign and return the order of the Divisional Court panel (the decision was released September 25, 2013). HSC alleges that Mr. Gates’ counsel “worked to ensure that our Appeal is never heard”. As a result, HSC states it could not perfect its appeal on time. If true, HSC could have made an appointment to settle the order. The court file, which includes numerous court endorsements, shows that HSC and Mr. O’Sullivan are to blame for the appeal being dismissed. HSC frequently failed to comply with various time limits in the Rules of Civil Procedure for appealing and filing documents.

[86] HSC accuses Mr. Gates’ counsel of “contempt of the three different Orders issued by five Court of Appeal Justices” concerning costs. HSC falsely alleges that Mr. Gates and his counsel were told by the Court of Appeal that they could not collect the court ordered costs. There is nothing in the record to support this allegation.

[87] HSC states that an investigation of Mr. Gates’ counsel’s behaviour is underway at the Law Society of Upper Canada (“LSUC”). This is false and misleading because there was no investigation underway when HSC issued its notice of appeal on January 8, 2016. Documents that HSC included in its Appeal Record confirm that HSC’s allegation is false.

[88] Mr. O’Sullivan filed a complaint against Mr. Gates’ counsel with the LSUC in 2012. A summary of the complaint is set out in a letter from the LSUC dated November 27, 2013. This letter is part of HSC’s Appeal Book and Compendium. In summary, Mr. O’Sullivan complained that Mr. Gates committed perjury at the trial and the trial judge refused to admit documents to refute his testimony. The letter also notes that Mr. O’Sullivan complained to the Ontario Judicial Council about the trial judge and reported the perjury to the police.

[89] The LSUC investigated the complaint and closed its file because there was insufficient evidence of professional misconduct to warrant a request for an investigation. Mr. O’Sullivan was informed that the file was closed in the November 27, 2013 letter. This decision was found to be reasonable by the Complaints Resolution Commissioner. A letter from the LSUC dated December 17, 2015 confirms that the LSUC file remains closed.

[90] The appeal record includes an exhibit book. Included in this exhibit book is a letter that Mr. O’Sullivan, as CEO for HSC, sent to Chief Mark Saunders of the Toronto Police on October 2, 2015. In this letter, Mr. O’Sullivan makes a number of false statements as follows. He states that complaints made concerning Mr. Gates’ counsel are still under investigation at the LSUC, that Mr. Gates’ counsel swore a number of affidavits to “wrongly” take money from HSC’s bank account and that Mr. Gates was terminated for “violence against women in our workplace”. He describes this as a legal matter that is still “under appeal”.

[91] There is no evidence in the record of a police investigation or charges against anyone involved in this Small Claims Court matter.

[92] The notice of appeal repeatedly refers to Mr. Gates’ “violence against two women in the workplace”. The allegations at the Small Claims Court involved one female co-worker and the trial judgment specifically rejected the allegations of violence.

[93] The transcript of the attendance before Deputy Judge Twohig reveals that Mr. O’Sullivan told Deputy Judge Twohig that the Court of Appeal disagreed with the Divisional Court’s description of HSC’s conduct as reprehensible and egregious. This statement was false. There is nothing in the record to support this representation. The Court of Appeal never reviewed the Divisional Court’s finding that HSC’s conduct was reprehensible and egregious.

[94] HSC’s factum makes a series of false statements: that the garnishment proceedings “are subject to appeal in Divisional Court and the Court of Appeal”, that Mr. Gates’ counsel swore a false affidavit, and that Mr. Gates was fired “for unrepentant violence against two women in our workplace which is governed by … the Criminal Code”.

[95] HSC also baldly states in the factum that the garnishment proceedings are “improper and incomplete”. There is nothing in the record to support this allegation.

[96] In summary, it is absolutely clear that there is no merit to HSC’s appeal of Deputy Judge Twohig’s order dated December 9, 2015.

Factors (i) and (ii): Financial Hardship / Ability to Repay Security

[97] I now turn to the other two factors that should be addressed when considering whether to lift a stay order. As the court stated in Siwick v. Dagmar Resort Ltd., 1996 407 (ON CA), 95 O.A.C. 188 (C.A.), at para. 12 the party seeking to lift the stay must show some evidence of financial hardship:

The first factor obviously relates to the respondent's needs. Generally the motions judge has insisted that the respondent make out a case of "demonstrable and unusual hardship". I do not subscribe to a rigid linguistic formula, but I do agree that the respondent should show financial hardship to justify a departure from the ordinary rule of an automatic stay. Relevant to an assessment of hardship are the immediate financial needs of the respondent (bearing in mind that any order can provide for a further motion on changed circumstances) and the institutional delay before the appeal is heard (bearing in mind that the hearing of an appeal can be expedited in an appropriate case).

[98] The second factor is problematic assuming the party has provided evidence of financial hardship. The court explained this problem in Siwick v. Dagmar Resort Ltd, at paras. 14-15 as follows:

14 The other two factors - the respondent's ability to repay or provide security and the merits of the appeal - relate to the financial risk to the appellant if the stay is lifted. Undoubtedly, a motions court judge would feel more comfortable lifting a stay if satisfied that the appellant was reasonably protected against the possibility of a successful appeal. But in many cases a respondent faces great hardship if interim relief is denied and yet can offer little or no security to the appellant. To deny the respondent relief in such a situation may work an injustice. Thus, our court has rejected an inflexible rule that would deny a respondent relief unless the appellant was properly secured. As Carthy J.A. wrote in Stein v. Sandwich West (Township) (1994), 1994 10599 (ON CA), 16 O.R. (3d) 321 at 322-3:

There is no question that in all of the recent cases under rule 63.01(3) [now rule 63.01(5)] of the Rules of Civil Procedure the court has sought to assure that the appellants have security against success on the appeal. This is, of course, to avoid rendering the appeal moot. However, there is nothing in the wording of rule 63.01(3) to prevent the exercise of the court's discretion under any circumstances, including where risk is imposed on the appellants. I put it this way in Mortimer v. Cameron [January 13, 1993, unreported] at p. 6:

I have reviewed the recent cases in this court including Digiammatteo v. Leblanc (1989), 1989 4076 (ON CA), 71 O.R. (2d) 130 (C.A.); Bannon Estate v. Wisotzki (1990), 1990 6789 (ON CA), 1 O.R. (3d) 142 (C.A.); Peper v. Peper (1990), 1990 6951 (ON CA), 1 O.R. (3d) 145 (C.A.); and Oswell v. Oswell (1991), 1991 7084 (ON CA), 2 O.R. (3d) 145 (C.A.), together with the earlier case references referred to in each. The present case is very different from any of these, which gives meaning to the repeated statement that the court must be flexible and treat each case on its facts. This gives further force to my opening comments indicating that each case must be examined on its facts to see if the respondent presents unusual hardship and if risk to the appellants can be eliminated or, if existent, can be balanced against the hardship of the respondent. [Emphasis added.]

15 Motions judges must simply do their best to balance the strength of the respondent's hardship claim against the risk to the appellant if the stay is lifted. In doing so, motions judges will inevitably have to make a tentative assessment of the merits of the appeal. Relevant here are the grounds of appeal and whether the appeal is against liability and damages or damages only. For example, in the light of our court's jurisprudence, an appellant who seeks to overturn a trial judge's findings of fact or credibility or a jury's verdict on the ground that it is perverse has a difficult task. If the appeal is against damages only, frequently the respondent is almost certain to recover some amount regardless of the outcome of the appeal. In these situations an order lifting a stay is easier to justify. But even when an appeal apparently has more merit, an order lifting the stay may still be justified. The motions judge must weigh and balance the relevant factors to produce a just result.

[99] While I am satisfied that this appeal has no merit, I have no evidence of financial hardship to Mr. Gates if the stay is not lifted. Mr. Gates did not file an affidavit to support this motion. An affidavit was filed by a law clerk who works for the law firm that represents Mr. Gates. This affidavit does not discuss the financial hardship factor or Mr. Gates’ ability to repay or provide security for the amount paid.

[100] Based on the clear direction of the Court of Appeal, there must be some evidence of financial hardship. I accept that Mr. Gates has had to incur the time and expense of HSC’s seemingly endless motions. I accept that Mr. Gates has been deprived of the money that he is entitled to receive pursuant to the judgment and costs orders. In my view, this falls short of the evidence that the Court of Appeal accepted in Siwick. In that case, the financial hardship was proven with evidence about the party’s daily expenses and his inability to pay those expenses.

[101] Although this is an appeal without merit, Mr. Gates has offered no evidence of financial hardship. The court has no ability to lift the stay of garnishment given the binding direction of the Court of Appeal. For this reason the motion is dismissed.

Conclusion re motion/appeal

[102] In summary, I make the following orders:

(i) HSC’s appeal from the order of Deputy Judge McNeely dated October 31, 2014 is dismissed.

(ii) Mr. Gates’ motion to lift the stay of the order of Deputy Judge Twohig dated December 9, 2015 is dismissed.

(iii) If the parties cannot agree on costs relating to the above orders, they shall exchange brief written costs submissions and file them with the court no later than September 19, 2016.

(iv) Mr. Gates’ shall prepare the draft order and deliver it to Justice C. Horkins for signing. HSC’s approval of the draft order is waived.

rule 2.1.02 – Dismissal of HSC’s Appeal OF DEPUTY JUDGE TWOHIG’S ORDER

[103] While Mr. Gates’ motion to lift the stay of the order of Deputy Judge Twohig is dismissed, this Court retains the discretion to dismiss HSC’s appeal of Deputy Judge Twohig’s order, if the appeal is frivolous, vexatious, or an abuse of the court’s process.

[104] Upon review of the material filed on this appeal, I directed the Registrar of the Divisional Court to provide HSC with notice under rule 2.1.02 of the Rules of Civil Procedure that this court is considering staying or dismissing HSC’s appeal of the order of Deputy Judge Twohig dated December 9, 2015.

[105] HSC was directed to provide the court with a written submission within 15 days. HSC filed a submission. A copy was provided to Mr. Gates’ counsel and he was given an opportunity to reply. A responding submission was filed.

[106] Rule 2.1.02 provides as follows:

2.1.02 (1) The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

(2) Subrules 2.1.01 (2) to (7) apply, with necessary modifications, to the making of an order under subrule (1) and, for the purpose,

(a) a reference to the proceeding shall be read as a reference to the motion; and

(b) a reference to the plaintiff or applicant shall be read as a reference to the moving party.

(3) On making an order under subrule (1), the court may also make an order under rule 37.16 prohibiting the moving party from making further motions in a proceeding without leave

[107] Rule 2.1.01 (2) to (7) provides as follows:

2.1.01(1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.

(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:

1. The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.

2. The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.

3. If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.

4. If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.

5. A party who receives a copy of the plaintiff’s or applicant’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff’s or applicant’s submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party.

(4) A document required under subrule (3) to be given to a party shall be mailed in the manner described in subclause 16.01 (4) (b) (i), and is deemed to have been received on the fifth day after it is mailed.

(5) The registrar shall serve a copy of the order by mail on the plaintiff or applicant as soon as possible after the order is made.

(6) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).

(7) If the registrar becomes aware that a proceeding could be the subject of an order under subrule (1), the registrar shall notify the court.

[108] Since the introduction of rule 2.1 on July 1, 2014, a considerable body of jurisprudence has been developed that guides this court. In particular, this jurisprudence consists of several decisions of Justice Frederick L. Myers of the Ontario Superior Court of Justice.

[109] In Scaduto v The Law Society of Upper Canada, 2015 ONCA 733, leave to appeal refused, [2015] S.C.C.A. No. 488, the Ontario Court of Appeal upheld the decision of Myers J. I adopt and follow the court’s statement (at paras. 7-9) of the law and the approach that the court must take under rule 2.1 as follows:

7 Rule 2.1 is a relatively new rule that came into force on July 1, 2014. The motion judge has decided a number of cases which have helped to delineate both the procedure and the test to be applied under the rule: see Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, 37 C.L.R. (4th) 1 ("Gao No. 1"); Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 ("Gao No. 2"); Raji v. Border Ladner Gervais LLP, 2015 ONSC 801; and, Covenoho v. Ceridian Canada, 2015 ONSC 2468.

8 Under this line of authority, the court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.

9 We fully endorse that case law and the guidance that has been provided by the motion judge in the interpretation and operation of r. 2.1. This approach is summarized in Raji, at paras. 8-9, as follows:

[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion... [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1... This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case.

See also Gao (No. 2), at paras. 11-18; and Covenoho, at paras. 6-7. We also recognize that the case law will develop as the rule becomes more widely utilized.

[110] In Raji v. Border Ladner Gervais LLP, 2015 ONSC 801, Myers J explained at para. 11: “… it is common for these cases to consist, in whole or in part, of efforts by plaintiffs to re-litigate other proceedings. It is helpful and appropriate to see the previous decisions of the judicial officers in those cases. The decisions are not evidence and are part of the public record.”

[111] In this case the public record is extensive and dates back to the trial decision of Deputy Judge Kay.

[112] The common attributes of a vexatious litigant were listed by Myers J. in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, at paras. 14- 15:

14 The case law has identified a number of common attributes of a vexatious litigant under section 140 including, but not limited to, the following:

(a) Bringing multiple proceedings to try to re-determine an issue that has already been determined by a court of competent jurisdiction;

(b) Rolling forward grounds and issues from prior proceedings to repeat and supplement them in later proceedings including bringing proceedings against counsel who have acted for or against them in earlier proceedings;

(c) Persistent pursuit of unsuccessful appeals;

(d) Failure to pay costs awards of prior proceedings;

(e) Bringing proceedings for a purpose other than the assertion of legitimate rights, including to harass or oppress others;

(f) Bringing proceedings where no reasonable person would expect to obtain the relief sought.

15 In the context of rule 2.1 there is no need for persistence of any one or more factors. It is expected that most cases under rule 2.1 will not require much depth of analysis. Many of the cases that are of the type that I have been referring to herein will be obvious on their face.

Analysis

[113] HSC takes the position that rule 2.1.02 does not apply because it makes no reference to dismissing a perfected appeal. Therefore, HSC states that it would be an abuse of process to deny its right to “a fair appeal from a lower court”.

[114] There is no logic to this argument. First, rule 2.1.01(2) specifically states that the court may make a determination in a “summary manner”. This means that the court does not have to hear the appeal, but can follow the summary procedure that is set out in the rule. Second, if the rule was limited as HSC argues, it would allow the frivolous and vexatious appeal to go ahead. Such an interpretation of the rule would continue the very problem that the rule seeks to control and end: abuse of the court’s process. It would allow an abuse of process to continue, when the abuse is clear on the face of the extensive record. It is the obligation of the court to interpret and apply the rule in a “robust manner” so that the court can exercise its “gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process” (Scaduto, at para.8).

[115] As Myers J. stated in Raji, at para. 8, “[i]mposing a quick and limited written process that provides one opportunity to the plaintiff to show why the claim should not be dismissed is an important advance toward meeting the goals of efficiency, affordability, and proportionality in the civil justice system as discussed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.”

[116] In HSC’s rule 2.1.02 submission, it continues to misrepresent the facts and make false allegations. Some examples follow. HSC states that it is still awaiting the outcome of the LSUC and police investigations. As set out above, this is not accurate. HSC states that there is evidence that “7 Judges told [ Mr. Gates’ counsel] he could not collect his costs until the matter was settled which he chose to ignore instead by filing two garnishments”. HSC names Justices Gillese, Weiler, MacFarland, Rouleau, and Lauwers of the Court of Appeal and Deputy Judges Ashby, McNeely and Twohig of the Small Claims Court. There is no evidence that these judges limited Mr. Gates’ right to collect his costs awards. To the contrary, the record confirms that costs were ordered against HSC, without any limitation imposed on Mr. Gates’ right to collect the money.

[117] In the submission, HSC continues to make unfounded allegations (criminal and otherwise serious) against Mr. Gates and his counsel. The submission alleges that Mr. Gates improperly took funds from HSC’s bank account, that the garnishment was “illegal”, that there are still “ongoing matters in higher courts”, and that Mr. Gates’ counsel “deliberately engaged in conduct to obstruct [HSC’s] appeal from being heard”.

[118] In these reasons, I have reviewed the lengthy public record of the dispute between the parties and have decided to issue an order under rule 2.1.02(1). The frivolous, vexatious and abusive nature of HSC’s appeal of Deputy Judge Twohig’s order is clearly apparent on the record and resort to the attenuated process under rule 2.1.02 is necessary and justified.

[119] The record clearly proves that HSC is using this appeal as a vehicle to continue the same reprehensible and egregious behaviour that the Divisional Court identified in reasons released on September 25, 2013. Specifically, HSC continues to make allegations of criminal and otherwise serious misconduct against Mr. Gates that are unsupported by any evidence.

[120] Despite a stern warning from the Divisional Court in 2013, HSC’s reprehensible and egregious behaviour has not only continued but expanded to include false allegations of serious misconduct (some criminal in nature) against Mr. Gates’ counsel. After more than five years of litigation between the parties, there is nothing in the record to support these allegations.

[121] The record shows that HSC has demonstrated the attributes of a vexatious litigant:

(i) Despite the Divisional Court’s warning in 2013, HSC has continued to make unfounded allegations of criminal conduct against Mr. Gates and his counsel. The continuation of this reprehensible and egregious behaviour is a form of harassment against Mr. Gates and his counsel.

(ii) The appeal is being used as a vehicle to stop a legal garnishment. No reasonable person would bring such an appeal, based on the record that I have reviewed.

(iii) HSC forced Mr. Gates to bring a motion to correct the misnomer in all three courts.

(iv) HSC has repeatedly failed to comply with the Rules of Civil Procedure. It did not comply with time periods for filing court documents and often filed no documents.

(v) HSC has persistently engaged in unsuccessful motions and appeals.

(vi) HSC has made numerous false and misleading statements.

[122] In summary, this appeal on its face is frivolous, vexatious and an abuse of the process of the court. HSC’s reprehensible and egregious conduct must stop. The court must exercise its gate keeping function to bring an end to this conduct.

[123] This is a crystal clear case that justifies the court making an order dismissing the appeal under rule 2.1.02. HSC’s appeal of Deputy Judge Twohig’s order dated December 9, 2015 is dismissed. Since the appeal is dismissed, the stay of Mr. Gates’ garnishment is immediately lifted.

[124] Given the extensive record and the continuation of HSC’s reprehensible and egregious behaviour following the Divisional Court’s costs decision dated September 25, 2013, the following additional orders are justified.

[125] First, I order under rule 2.1.02(3) that HSC is prohibited from making further motions in these proceedings without leave of the Divisional Court. The court directs the Registrar to accept no further filings from HSC in these proceedings.

[126] Second, should HSC seek leave under rule 2.1.02(3), I order that HSC shall be represented by a lawyer unless leave is granted by the Divisional Court pursuant to rule 15.01(2) of the Rules of Civil Procedure.

conclusion- rule 2.1.02

[127] In summary, I make the following orders:

(i) Pursuant to rule 2.1.02(1) of the Rules of Civil Procedure, HSC’s appeal of Deputy Judge Twohig’s order dated December 9, 2015 is dismissed.

(ii) The stay of Mr. Gates’ garnishment is lifted.

(iii) Pursuant to rules 2.1.02 (3) and 37.16 of the Rules of Civil Procedure, HSC is prohibited from making any further motions in these proceedings, without first obtaining leave of the Divisional Court.

(iv) Aside from costs submissions, the Registrar shall accept no further filings from HSC in these proceedings without first obtaining leave of the Divisional Court.

(v) If HSC seeks leave under rule 2.1.02(3), HSC shall be represented by a lawyer unless leave is granted by the Divisional Court pursuant to rule 15.01(2) of the Rules of Civil Procedure.

(vi) If the parties cannot agree on costs relating to the above orders, they shall exchange brief written costs submissions and file them with the court no later than September 19, 2016.

(vii) Mr. Gates’ shall prepare the draft order and deliver it to Justice C. Horkins for signing. HSC’s approval of the draft order is waived.

C. Horkins J.

Date: August 24, 2016

Released: August 24, 2016