CITATION: Persaud v. Estate of Rita Persaud, 2022 ONSC 2503
DIVISIONAL COURT FILE NO.: 129/22
DATE: 20220524
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: mohini persaud, Moving Party
AND:
THE ESTATE OF RITA PERSAUD, Respondent
BEFORE: Matheson J.
Mohini Persaud, self-represented
HEARD at Toronto: In writing.
ENDORSEMENT
[1] The moving party has sent the court three versions of a notice of motion seeking to challenge the decision of Corbett J. dated April 4, 2022, dismissing her motion for leave to appeal the decisions of Gilmore, Kimmel, and McEwen JJ. as abandoned (the “Decision”). The first two versions were provided as follows:
(1) a notice of motion seeking an order for leave to appeal from the Decision, a stay and other requests sent to the court on April 11, 2022; and,
(2) a revised notice of motion sent the court on April 13, 2022.
[2] In response to these steps, the court gave the moving party notice on April 13, 2022, as follows:
The Registrar is directed to send out a notice to Ms. Persaud under Rule 2.1.01 of the Rules of Civil Procedure that the court is considering dismissing this motion pursuant to Rule 2.1.01 as frivolous, vexatious and an abuse of process because of the following:
the notice of motion that was submitted is a notice of motion to “grant leave to appeal from the April 4, 2022, endorsement of Corbett J.” The Divisional Court has no leave to appeal jurisdiction arising from that endorsement.
The notice of motion also seeks relief pending the appeal for which leave is sought, despite the lack of jurisdiction referred to above.
The notice of motion appears to seek relief in other court proceedings, beyond this court file (129/22) and beyond this Court’s jurisdiction.
Accordingly as directed, please find attached notice issued by the Registrar pursuant to rule 2.1.
[3] The attached notice gave the moving party an opportunity to provide written submissions in response to the r. 2.1 notice, within 15 days.
[4] The moving party sent several emails afterward, including an email of April 18, 2022, attaching a further revised notice of motion and indicating that she was also taking steps at the Court of Appeal.
[5] On April 19, 2022, the moving party was sent an email reminder about submissions in response to the r. 2.1 notice. In an email reply that day, the moving party said as follows:
I've been sick and I'm just getting this now.
It says that the Divisional court has no jurisdiction and that Justice Matheson would like to dismiss it as "vexatious", do you have any information as to how to go about abandoning it myself if the court has no jurisdiction?
Please advise.
Thanks
[6] In reply the same day, the court office said as follows:
You are required to serve and file a Notice of Abandonment (form 61k).
[7] In reply the same day, the moving party said as follows:
Can u tell me what form I file to deter costs of the appeal since no motion materials were filed in this matter, please?
Can I send the Abandonment form to you?
Please advise.
Thanks,
[8] On April 21, 2022, the court office received an anonymous email from a different email address, copied to the moving party, which stated as follows:
To whom it may concern,
Not sure if this is the correct email to reply to - please advise.
Mohini is sick per her doctors' letters (attached) and will need an adjournment for all hearings and an extension of time to prepare court documents.
She intends on filing the correct paperwork pertaining to Justice Matheson's Notice. Please confirm the correct form to do so and rule/law.
She also intends on filing the correct paperwork pertaining to costs of Justice Corbett's appeal file to object and deter due to her appeal of Justice Corbett's order. Please confirm the correct form to do so and rule/law.
Please extend any timelines necessary.
Your cooperation is much appreciated.
Thanks,
[9] Attached were two documents. The first document, showing as signed by Dr. Murtuza H. Khoja MD CCFP, said “Mohini Persaud is unable to attend court hearings at this time due to medical reasons.” The second document, showing as signed by Dr. Zia Siai, said “Mohinin Persaud is/was unable to attend school/work from MM/DD/YYYY to MM/DD/YYYY due to medical illness”.
[10] On April 26, 2022, the court gave the following directions in response:
Justice Matheson directs as follows:
The moving party has sent the court versions of a notice of motion seeking to challenge the decision of Corbett J. Dated April 4, 2022. That decision dismissed her motion for leave to appeal the decisions of Gilmore, Kimmel and McEwen JJ. as abandoned.
In response to the notice of motion seeking to challenge the April 4 decision, the court gave the moving party notice under Rule 2.1.01 of the Rules of Civil Procedure that the court is considering dismissing the motion as frivolous, vexatious and an abuse of process. She was given an opportunity to provide written submissions in response.
There have since been several emails from the moving party, then an email where no name was given by the sender seeking an adjournment for the moving party for health reasons. Two documents were attached.
The first document, signed by a Dr. Zia Sial, said "Mohini Persaud is/was unable to attend school/work from MM/DD/YYYY to MM/DD/YYYY due to medical illness. Please allow the above name patient additional time to prepare court documents."
The second document, signed by a Dr. Murtuza H. Khoja, said Mohini Persaud "is unable to attend court hearings at this time due to medical reasons."
The above information is insufficient to grant an adjournment or an extension of time. Given the history of this matter, and the level of activity shown by the moving party on a regular basis, a detailed medical letter and opinion is required. In order for the court to adjudicate such a request, a doctor’s letter must give the doctor’s opinion together with particulars about the underlying health condition of the person, the impact on their ability to take each of the steps in question and the length of time that each health impairment is expected to continue. Further, a request to the court must come from either the moving party or an appropriate representative, not anonymously.
The moving party shall have until May 12, 2022, to provide an appropriate medical opinion for the court's consideration. Alternatively, her submissions in response to the Rule 2.1 notice shall be provided by that date.
[11] No response was received from the moving party by May 12, 2022, although the moving party was emailing with the court office on other files on at least May 2, 4 and 6, 2022. As of this endorsement, the moving party has not provided further and better medical information or her reply to the r. 2.1 notice. This decision under r. 2.1 is therefore made without any submissions from her.
Rule 2.1
[12] This court may stay or dismiss the proposed motion under r. 2.1.01(1) if it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
[13] Rule 2.1 “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”: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, quoting Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, leave to appeal refused, [2015] S.C.C.A. No. 488, at paras. 7-9.
[14] However, r. 2.1 should only be used for the clearest of cases. The abusive nature of this notice of motion must be apparent on the face of the notice of motion and there must be a basis to support the resort to the attenuated process under r. 2.1: Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 8, citing Scaduto.
Proposed Motion
[15] The moving party’s motion has changed over the course of the three versions of the notice of motion that she has provided to the court, listed above. This decision focuses on the third version, which is the relevant notice of motion at this time.
[16] The notice of motion seeks an order granting leave to appeal from the Decision. There is no right to seek leave to appeal to the Divisional Court from the Decision. The Divisional Court does not have jurisdiction to either grant leave to appeal or hear an appeal from a single judge of this court.
[17] The request for leave to appeal the Decision also references costs and references an application for judicial review “and/or” application under the Human Rights Code. The Decision did not order costs or dismiss such an application.
[18] The notice of motion went on to say that the moving party was filing the notice of motion to preserve her rights but wished to hold it in abeyance and seeks “directions” on how to proceed, mentioning r. 59, r. 37.14 and whether she should go to the Court of Appeal. The notice of motion speaks in some detail about the underlying estates proceedings. The notice of motion also seeks a stay of the Decision and any related costs orders, as well a stay of the underlying actions and case management orders of McEwen J. and a stay of a motion to declare the moving party a vexatious litigant. Various other orders are sought, including for damages. Given that the Divisional Court has no jurisdiction as set out above, these other orders do not have the necessary foundation for relief in the Divisional Court.
[19] As it stands, the notice of motion should be dismissed as an abuse of process. There is, however, another issue that arises from s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[20] The notice of motion does not seek a review of the Decision by a panel of the Divisional Court, which is a route available under s. 21(5) of the Courts of Justice Act. Subsection 21(5) provides that a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.
[21] However, there is a mention of “Rule 21(5)” in the “Grounds” section of the notice of motion. An earlier version, under the grounds, said that the moving party learned of her possible procedural route on April 11, 2022, referenced “Rule 21(5) of the Courts of Justice Act” and stated that it appeared to have been repealed. That notice of motion went on to state the moving party’s intention to find out what that means. The third version of the notice of motion, which is the focus here, still includes the reference to “Rule 21(5)” under grounds.
[22] In all the circumstances, for the purposes of r. 2.1, I proceed on the basis that the moving party may have intended to seek a review under s. 21(5) of the Courts of Justice Act, a matter that is within the jurisdiction of the Divisional Court. Should that be the case, there is also an issue that the motion was late. Rule 61.16(6) requires such a motion to be brought within four days after the order is made.
[23] I therefore order as follows:
(i) this motion is dismissed as an abuse of process under r. 2.1;
(ii) the moving party may commence a new motion in the Divisional Court seeking only a review of the Decision under s. 21(5) of the Courts of Justice Act and related orders;
(iii) the new motion under para. (ii) above must be served and submitted to the court within seven days of today; and,
(iv) this order is without prejudice to any issue that the respondent may raise about the timeliness of the new motion, if brought.
Matheson J.
Date: May 24, 2022