CITATION: Nithiananthan v. Quash, 2017 ONSC 1359
DIVISIONAL COURT FILE NO.: 457/16
DATE: 20170228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C.
BETWEEN:
YAMUNAKUMARI NITHIANANTHAN
Applicant
– and –
JAMES QUASH
Respondent
Todd Robinson, for the Appellant
Not Present
HEARD: IN WRITING
RULE 2.1.01 ENDORSEMENT
[1] The plaintiff unsuccessfully appealed a Master’s interlocutory decision dismissing a motion for the continuance of a certificate of pending litigation against the defendants/respondents. In dismissing the appeal, the motion judge found that the Master’s decision was within her discretion and that there was no misapprehension of the evidence or palpable and overriding error: see Nithiananthan v. Quash, 2016 ONSC 5161, at para. 17.
[2] The plaintiff then unsuccessfully applied for leave to appeal the motion judge’s interlocutory order dismissing the appeal. This motion for leave to appeal was heard in writing and dismissed by Justice Nordheimer on December 5, 2016. His Honour ruled that there were no conflicting decisions involved in the proposed appeal, that there was no reason to doubt the correctness of the motion judge’s order and that the issues raised were not of such importance that leave should be granted. See Re: Yamunakumari
Nithiananthan and James Quash and others [2016] O.J.No. 6222. (“First Leave Decision)
[3] Although the First Leave Decision is styled as a decision by the Ontario Superior Court of Justice Divisional Court, it is in fact a decision of the Superior Court of Justice because Rule 62.02(1.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that a judge hearing a motion for leave to appeal an interlocutory decision to the Divisional Court must be sitting as a Superior Court judge. All judges of the Divisional Court are judges of the Superior Court of Justice.
[4] The plaintiff then unsuccessfully made a motion to the Local Administrative Judge of the Divisional Court for leave to appeal the First Leave Decision: see Nithiananthan v. Quash, 2017 ONSC 155. Coincidentally Justice Nordheimer was the Local Administrative Judge of the Divisional Court. This motion was dismissed pursuant to Rule 2.1.01 of the Rules of Civil Procedure (the “Rule 2.1.01 Decision”) on the basis that the Divisional Court had no jurisdiction to entertain it.
[5] The plaintiff is now attempting to move before a full panel of the Divisional Court to vary the Rule 2.1.01 Decision pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[6] Where a statute grants a right of appeal conditional upon leave to appeal being granted, there is no appeal from the decision to refuse leave provided the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application: see Canadian Utilities Ltd. v. Deputy Minister of National Revenue, 1963 88 (SCC), [1964] S.C.R. 57, at p. 63.
[7] As indicated Justice Nordheimer rendered the First Leave Decision on the merits. Justice Nordheimer did not decline his jurisdiction. Therefore, pursuant to Canadian Utilities Limited, no appeal from the First Leave Decision was possible.
[8] Accordingly, the plaintiff’s motion for leave to appeal the First Leave Decision had no chance of success. Thus, the plaintiff’s motion to vary the Rule 2.1.01 Decision also has no chance of success and will also be dismissed pursuant to Rule 2.1.01.
[9] When making the Rule 2.1.01 Decision Justice Nordheimer was carrying out one of the responsibilities of the Local Administrative Judge of the Divisional Court. His Honour was not sitting on appeal from his own decision. His Honour was deciding, pursuant to Rule 2.1.01, that the Divisional Court lacked the jurisdiction to give the plaintiff the remedy he was seeking.
[10] Finally, contrary to the applicant’s submissions on this motion, the applicant did have the opportunity to make submissions to Justice Nordheimer prior to His Honour making the Rule 2.1.01 Decision. Specifically, Justice Nordheimer recites the following at paragraphs 1-4 of the Rule 2.1.01 decision (Nithiananthan v. Quash 2017 ONSC 155):
On December 5, 2016, I dismissed the plaintiff’s motion for leave to appeal from the order of Dow J., dated September 6, 2016, that dismissed an appeal from the order of Master Mills, dated June 6, 2016. The Master’s order had dismissed the plaintiff’s motion for leave to issue a certificate of pending litigation.
On December 20, 2016, the plaintiff filed with the Divisional Court office, a motion for leave to appeal from my order dismissing the plaintiff’s motion for leave to appeal. The Divisional Court office communicated with counsel for the plaintiff, expressing the view that the Divisional Court did not have jurisdiction to entertain this form of motion. The Divisional Court office advised counsel for the plaintiff that he should write to me, in my capacity as the administrative judge for the Divisional Court, to seek approval to file his motion for leave to appeal.
On December 30, 2016, counsel for the plaintiff sent me a letter outlining his position as to why there was jurisdiction for the Divisional Court to hear this motion for leave to appeal. Counsel for the plaintiff included, with his submissions, the decision in Mignacca v. Merck Frosst Canada Ltd., 2009 ONCA 393 which he said supported his position.
Upon receipt of counsel’s submissions, I asked the Divisional Court office to inquire whether the defendants would be filing any submissions on this matter. I was subsequently advised that the defendants would not be filing any submissions.
[11] Accordingly, the applicant’s motion to vary the Rule 2.1.01 Decision is also dismissed pursuant to Rule 2.1.01. It cannot succeed because the Divisional Court does not have the jurisdiction to give the applicant the remedy that he is seeking: see Kohar v. Dufferin-Peel Catholic District School Board, [1999] O.J. No. 3644, at para. 2.
MARROCCO A.C.J.S.C.
Released: 20170228
CITATION: Nithiananthan v. Quash, 2017 ONSC 1359
DIVISIONAL COURT FILE NO.: 457/16
DATE: 20170228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C.
BETWEEN:
YAMUNAKUMARI NITHIANANTHAN
Applicant
– and –
JAMES QUASH
Respondent
REASONS FOR JUDGMENT
Released: 20170228