CITATION: Nithiananthan v. Quash 2017 ONSC 0155

DIVISIONAL COURT FILE NO.: 457/16

DATE: 20170109

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: YAMUNAKUMARI NITHIANANTHAN v. JAMES QUASH and others

BEFORE: NORDHEIMER J.

COUNSEL: T. Robinson, for the moving party/plaintiff

HEARD at Toronto: written submissions by the plaintiff

E N D O R S E M E N T

[1] 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.[^1] The Master’s order had dismissed the plaintiff’s motion for leave to issue a certificate of pending litigation.

[2] 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.

[3] 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.

[4] 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.

[5] I start from the general rule that there is no right of appeal from an order refusing leave to appeal. That general rule is referred to in a number of cases. In particular, I refer to the decision in Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.) where Finlayson J. A. said, at p. 618:

The function of the General Division as a check on unnecessary or frivolous appeals is defeated if the Court of Appeal may hear an appeal from the General Division’s refusal to grant leave. The Court of Appeal could then hear every case.

[6] In reaching that conclusion, Finlayson J.A. referred to the decision of the House of Lords in Lane v. Esdaile, [1891] A.C. 210 where Lord Halsbury stated at pp. 211-12:

But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal -- that there should not be an appeal unless some particular body pointed out by the statute . . . should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself.

[7] As Lord Halsbury makes clear, the reason why leave to appeal is required by a statute, such as the Courts of Justice Act, R.S.O. 1990, c. C.43 does with respect to appeals from interlocutory orders of a Superior Court judge, is to ensure that there is good reason to permit an appeal. It operates as a check on the steps taken in a proceeding, prior to a trial, to ensure that they are meritorious and necessary. Otherwise, as experience amply demonstrates, proceedings can become lost or mired in unending pre-trial steps.

[8] That said, there is some authority that the general rule, that an appeal cannot be taken from a refusal to grant leave to appeal, is not absolute. Indeed, in Hillmond, Finlayson J.A. said, at p. 624:

It is argued that there must be an avenue of redress in exceptional cases. I agree. If a General Division judge mistakenly declines jurisdiction on a leave motion by acting upon a wrong principle, redress should be had to an appellate court.

[9] This exception is also referred to in Denison Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181 where Morden J.A. quoted with approval from the Supreme Court of Canada’s decision in Canadian Utilities Ltd. v. Deputy Minister of National Revenue, [1964] S.C.R. 57 where Cartwright J. said, at p. 63:

It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.

[10] The plaintiff, apparently alert to this very narrow exception to the general rule, has included in his grounds for leave to appeal that “the learned judge declined jurisdiction”. No particulars are provided in support of the assertion that jurisdiction was declined.

[11] As any review of my reasons, on the original motion for leave to appeal, will reveal, I did not decline jurisdiction to hear the motion for leave to appeal. Rather, I heard the motion and determined it on the merits. The plaintiff therefore has failed to show, on the face of his motion, that he can fall within the exception to the general rule that no appeal lies from a refusal to grant leave to appeal. I would note on that point that, if all a party had to do to avoid the general rule was to make a bald allegation that jurisdiction have been declined, there would be no utility to the general rule in the first place. Not only would the principle underlying the requirement for leave to appeal be rendered illusory, it would expose the opposing party to further expense and the parties, collectively, to unending interlocutory proceedings.

[12] I should also point out that the decision in Mignacca does not assist the plaintiff. That decision refers to, and applies, the principles I have set out above.

[13] Consequently, there is no jurisdiction for this court to entertain a further motion for leave to appeal. The motion thus constitutes a proceeding that is frivolous, vexatious or an abuse of the court’s process. Accordingly, pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the plaintiff’s motion seeking leave to appeal is dismissed. There will be no order as to costs.

NORDHEIMER J.

DATE: January 9, 2017

[^1]: Nithiananthan v. Quash, [2016] O.J. No. 6222