Sabijan v. Sabijan, 2022 ONSC 91
DIVISIONAL COURT FILE NO.: 811/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: DEVORRA SABIJAN, Applicant / Responding Party
AND:
KRESO SABIJAN, Respondent / Moving Party
BEFORE: Favreau J.
COUNSEL: Kreso Sabijan – the Moving Party, representing himself
Heather R. Caron – for the Responding Party
RULE 2.1.01 RULING
Introduction
1Kreso Sabijan seeks to bring a motion for leave to appeal an order made by Breithaupt Smith J. on September 1, 2021. In her order, the motion judge adjourned an uncontested trial sine die pending the determination of an appeal that was scheduled before this Court at the time.
2By notice dated October 6, 2021, the Divisional Court gave Mr. Sabijan notice that the Court was considering dismissing his motion for leave to appeal on the basis that the motion appeared to be frivolous, vexatious and an abuse of process appeal pursuant to Rule 2.1.02 of the Rules of Civil Procedure.
3Mr. Sabijan filed an affidavit in response to the Court’s Rule 2.1.02 notice which essentially sets out his argument about why the motion for leave to appeal should not be dismissed as frivolous, vexatious and an abuse of process.
4I have reviewed Mr. Sabijan’s materials and I am satisfied that the motion for leave to appeal should be dismissed pursuant to Rule 2.1.02.
Background
5At the time of the October 6, 2021 notice, Mr. Sabijan had an appeal pending before this Court from previous orders of the Superior Court requiring him to pay security for costs in the underlying family law proceedings and striking his answer on the basis of his failure to pay security for costs. In a decision dated November 12, 2021, this Court allowed the appeal. This means that Mr. Sabijan’s answer is no longer struck and the trial will not proceed on an uncontested basis on the basis of the Superior Court’s previous orders.
6The motion for leave to appeal addressed in this ruling seeks to challenge an order made by the Superior Court adjourning the trial sine die pending determination of the appeal referred to above.
7The Rule 2.1 Notice the Court sent to Mr. Sabijan identified the following concerns with the proposed motion for leave to appeal:
a. Mr. Sabijan has a pending appeal before this Court from a previous order of the Superior Court striking his answer in the family law matter adjourned sine die by the motion judge. The order of September 1, 2021 from which he now seeks leave to appeal appears to be nothing more than an order deferring the hearing of the substance of this family law dispute to a later date after this Court decides whether Mr. Sabijan’s answer should have been struck. The order appears to have been made for Mr. Sabijan’s benefit, in the event he is successful on the appeal pending before this Court.
b. The notice of motion for leave to appeal does not appear to state any coherent grounds in support of granting leave to appeal. For example, in his notice, Mr. Sabijan states that he is “at the mercy of the Honorable Court and respectfully pleads your Honorable Court to provide the doctrine of Amicus Curiae”. He also states: “Kreso, is required to plead for a motion of leave to appeal on a new matter of an order that has been made in the lower court of Kitchener Superior Court of Justice, Family Division on Sep 1, 2021, that is partly dependant on two undetermined decisions currently pending in the Divisional court under File No. 515-21. Therefore, Kreso must respond to this order and its potential wounds that may prejudice appellants position.”
c. The notice of motion for leave to appeal appears to seek relief that would not be available on a motion for leave to appeal and that is irrelevant to the issue of whether the motion judge should have granted the adjournment sine die. For example, he seeks costs of various other proceedings and an order that the judge who made the original order striking his answer not hear the case on the merits.
d. There is no indication in the notice of motion for leave to appeal of the grounds on which Mr. Sabijan claims the motion judge erred in making the order or how this motion for leave to appeal meets the test for leave under Rule 62.02(4) of the Rules of Civil Procedure.
8The affidavit Mr. Sabijan filed in response to the Rule 2.1 notice contains a lengthy description of the history of these proceedings. In that context, Mr. Sabijan appears to be arguing that the basis on which he brings the motion for leave to appeal is his concern that the motion judge who made the order adjourning the trial cannot hear the trial because of her prior involvement in the proceedings, including comments she made in the course of case managing the matter.
Principles applicable to Rule 2.1
9Rule 2.1.01 of the Rules of Civil Procedure provides for a summary procedure that allows the court to dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.
10In Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, the Court of Appeal for Ontario indicated that one of the principles to be applied by the courts in considering whether to dismiss a proceeding pursuant to Rule 2.1 is as follows:
Rule 2.1 must 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”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may be used only in “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”: Scaduto, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.
11In addition, in Visic, at para. 8, the Court of Appeal emphasized that a Rule 2.1 motion “focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion…”
Analysis
11I am satisfied that the proposed motion for leave to appeal is frivolous, vexatious and an abuse of process.
12It is evident that the motion judge’s order was made for Mr. Sabijan’s benefit, to ensure that he could participate in the trial in the event his appeal to this Court was successful. His appeal was successful and he can now participate in the trial. On its face, there is no utility to the proposed appeal and no basis for Mr. Sabijan to challenge the motion judge’s decision.
13As noted above, in his submissions in response to the Rule 2.1 notice, Mr. Sabijan suggests that the purpose of the proposed appeal is to ensure that the motion judge does not conduct the trial. However, the terms of the order do not state that the motion judge is seized of the matter or that she will hear the trial. In fact, the order makes clear that any issues relating to the trial proceeding are to be raised at a later date once the trial is scheduled to proceed. The specific terms of the order are as follows:
The Applicant, Devorra Demetriou’s Form 14B Motion Form, dated July 9, 2021, is adjourned sine die, to be returnable following receipt of the decision of the Divisional Court ultimately dispensing with the Respondent, Kreso Sabijan’s Appeal of the Temporary Order dated June 29, 2021.
The Applicant (via counsel) may return her Form 14B Motion Form for judicial consideration by delivering a Confirmation attaching a copy of this Endorsement and the Divisional Court Order (or Endorsement) to the Trial Co-ordination office by email…
This Order is without prejudice either to the resumption of the Uncontested Trial procedure or to any alternate procedure for moving this matter toward trial (e.g. rescheduling of the Trial Management Conference) as may be agreed to by the parties or determined by further order of the Court.
14Mr. Sabijan seems to be asking this Court to make an advance ruling that the motion judge cannot hear the trial. This is not the role of the Divisional Court on a motion for leave to appeal or even on an appeal. If the trial is scheduled to proceed before the motion judge, Mr. Sabijan can raise his concerns about her prior involvement at that time. There is currently no ruling on this issue in the court below and it would not be appropriate for this Court to weigh in on the issue at this time.
Conclusion
15Accordingly, the motion for leave to appeal is dismissed as frivolous, vexatious and an abuse of process.
16Given that the respondent was not required to make any submissions in response to the Court’s Rule 2.1 notice, no costs are ordered.
Favreau J.
Date: January 5, 2022