Court File and Parties

CITATION: Cerqueira v. H.M.Q. 2016 ONSC 7961

DIVISIONAL COURT FILE NO.: 644/15

DATE: 20161219

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ANTONIO CERQUEIRA BY HIS ESTATE TRUSTEE, DELFINA CERQUEIRA and others v. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and others

BEFORE: NORDHEIMER J.

HEARD at Toronto: written submissions

E N D O R S E M E N T

[1] On November 16, 2016, the Registrar gave notice to Ms. Cerqueira, pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the court was considering dismissing her motion to set aside an earlier order of this court. On December 13, 2016, Ms. Cerqueira filed written submissions in response to the notice.

[2] The underlying proceeding in the Superior Court of Justice was dismissed by Wilson J. on November 10, 2015 on the basis that it essentially duplicated an earlier proceeding that had been dismissed on the basis that it was statute-barred.[^1] The plaintiffs appealed that dismissal to this court.

[3] That appeal prompted an earlier notice, under r. 2.1.01, that the court was considering dismissing the appeal on the basis that it was frivolous, vexatious or an abuse of the court’s process. On August 18, 2016, Sachs J. dismissed the appeal on that basis.[^2]

[4] Ms. Cerqueira then brought the motion that is the subject of the current notice under r. 2.1.01. That motion seeks to set aside the order of Sachs J. The motion is brought under r. 37.14 on the basis that Ms. Cerqueira failed to respond to the notice because of insufficient notice.

[5] Accepting for the purposes of this matter that Ms. Cerquiera did not receive adequate notice of the earlier r. 2.1.01 issue, Ms. Cerquiera has failed to demonstrate any basis upon which the order made by Sachs J. could be set aside. In particular, Ms. Cerquiera has failed to provide any evidence that would establish that there is any flaw in the conclusion reached by Sachs J. or that, if the matter was reheard, the result would be any different: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983. The current proceeding is clearly an attempt to relitigate the earlier action that was decided adversely to Ms. Cerquiera.

[6] I conclude, therefore, that Ms. Cerquiera’s motion is without merit and thus constitutes a proceeding that is frivolous, vexatious or an abuse of the court’s process. The applicant’s motion is therefore dismissed. There will be no order as to costs.

NORDHEIMER J.

DATE: December 19, 2016

[^1]: [2015] O.J. No. 5938 (S.C.J.) [^2]: [2016] O.J. No. 4353 (Div. Ct.)