CITATION: Kim v. McIntosh, 2025 ONSC 5373
DIVISIONAL COURT FILE NOS.: 56/20 and 390/21
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Anita Kim, Responding Party
AND
Adan McIntosh, Moving Party
BEFORE: Justice S. Corthorn
COUNSEL: Mr. McIntosh, Self-represented Moving Party
HEARD: In writing, in Chambers
ENDORSEMENT
Introduction
1Mr. McIntosh brings a motion in two matters before this court for an order (a) setting aside the decision of Audet J. dated April 22, 2022; and (b) requiring that a named Registrar (“the Registrar”) be precluded from involvement in, and six named judges be precluded from hearing, the motion now before the court. Justice Audet and I are two of those six judges.
2In support of the request for Audet J.’s decision to be set aside, Mr. McIntosh relies on r. 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). Pursuant to that subrule, “[a] party who seeks to have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made […] may make a motion in the proceeding for the relief claimed.”
3As “facts arising” after the date on which the April 2022 decision was made, Mr. McIntosh relies on the outcome of a matter determined by the Court of Appeal for Ontario in May 2022. In his notice of motion before this court, Mr. McIntosh asserts that in Court File No. C70026, “a panel of the Court of Appeal found that these matters were dismissed on a procedural issue, not on their merits, contrary to the purpose of Rule 2.1.” From the grounds, as they appear in the notice of motion, I infer that, by “these matters”, Mr. McIntosh means the April 2022 dismissal, pursuant to r. 2.1.01, of his motions in Court File Nos. 56/20 and 391/21.
4Mr. McIntosh asserts that allowing Audet J.’s decisions in File Nos. 56/20 and 391/21 to stand will (a) “corrupt future determinations under Rule 2.1”; (b) “undermine the purpose of the rule”; and (c) “undermine the Charter rights of future litigants.”
5Regarding the request for an order for the recusal of the Registrar and six named judges, Mr. McIntosh alleges that (a) the Registrar discriminated against him, and (b) one of the named judges acted without jurisdiction and denied Mr. McIntosh due process. Mr. McIntosh does not provide particulars of the judicial conduct upon which he relies in support of his request for an order precluding the five other named judges from hearing the motion.
6Mr. McIntosh’s notice of motion is before me for consideration under r. 2.1.02 of the Rules. Rule 2.1.02(1) provides that “The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous, or vexatious or otherwise an abuse of the process of the court.” The procedure followed when dealing with a motion under r. 2.1.02 is the same as that followed when the court deals with a proceeding: rr. 2.1.01(2)-(7) and 2.1.02(2).
7I will review the history of the litigation; review the law related to rr. 2.1.01 and 2.1.02; and address the relief sought by Mr. McIntosh.
8As of January 2022, Corbett J. was the case management judge for all matters in this court involving Ms. Kim and Mr. McIntosh. In that month, Corbett J. released an endorsement addressing four matters the parties then had before the court: Kim v. McIntosh, 2022 ONSC 685 (Div. Ct.) (“the January 2022 Endorsement”). The four matters consisted of three existing proceedings (File Nos. 56/20, 71/20, and 390/21) and a motion Mr. McIntosh intended to bring for leave to appeal from a decision made by Hood J., in December 2021. Mr. McIntosh had not yet filed a notice of motion for leave to appeal from that decision; Corbett J. described the fourth proceeding as “TBA”.
9For the two proceedings that are the subject of the motion now before this court (File Nos. 56/20 and 390/21), Corbett J. directed that a Registrar issue a notice to Mr. McIntosh, pursuant to r. 2.1, informing him that the court was considering dismissing the proceedings: January 2022 Endorsement, at paras. 6 and 11. As a result, Mr. McIntosh had an opportunity to deliver written submissions addressing why each proceeding should not be dismissed pursuant to r. 2.1.
10Mr. McIntosh delivered separate written submissions for each proceeding.
11Between the date of the January 2022 Endorsement and April 5, 2022, Audet J. was appointed as the case management judge for all matters in this court involving Ms. Kim and Mr. McIntosh – taking over in that role from Corbett J. In her new role, Audet J. convened a case conference. That event was held on April 5, 2022. For that event, Mr. McIntosh was self-represented; Ms. Kim was represented by counsel.
12Justice Audet picked up where Corbett J. left off, reviewed Mr. McIntosh’s written submissions, and addressed the status of the four proceedings described in paragraph 8, above. In her April 22, 2022 endorsement (“the April 2022 Endorsement”), Audet J. dismissed, pursuant to r. 2.1, Mr. McIntosh’s proceedings in File Nos. 56/20 and 391/21. Justice Audet gave Mr. McIntosh additional time to file or upload to Caselines materials for File No. 71/20 and the file known as TBA.1
13I restrict my review of the April 2022 Endorsement to the reasons for the dismissal of the proceedings in File Nos. 56/20 and 391/21.
a) File No. 56/20
14In this proceeding, Mr. McIntosh brought a motion requesting a review by a three-member panel of this court of the March 2020 order of Favreau J. (as she then was). In her order, Favreau J. quashed Mr. McIntosh’s appeal from interim orders made by Paisley J. in the context of family litigation.
15By January 2022, when Corbett J. considered Mr. McIntosh’s request for such a review, Steele J. had made a final order in the family litigation (“the Final Order”). Justice Steele made that order in October 2021, following an undefended trial in the family litigation in September 2021.
16In the January 2022 Endorsement, Corbett J. makes it clear that the Final Order rendered moot any appeal from the interim orders of Paisley J. Justice Corbett therefore intended to consider whether the outcome of a panel review of Favreau J.’s decision quashing the appeal was also rendered moot: at paras. 5 and 6. Justice Corbett gave Mr. McIntosh an opportunity to file submissions to address the latter point: at para. 6.
17At paras. 9 and 10 of the April 2022 Endorsement, Audet J. summarizes the written submissions received from Mr. McIntosh. Justice Audet concludes that (a) the Final Order “is a significant change” from February 2021, when the subject of the interim orders was previously before the court; and (b) the interim orders have no force and effect. Justice Audet relies on r. 2.1 and dismisses the proceeding.
18At para. 11 of the April 2022 Endorsement, Audet J. refers to Mr. McIntosh’s “appeal” in File No. 56/20. It is clear from that endorsement and from the January 2022 Endorsement that the proceeding in File 56/20 was a motion for a panel review. Justice Audet’s decision was to dismiss the motion for a panel review; the use of the term “appeal” was an unintended misnomer. That misnomer does not in any way impact either the significance of Audet J.’s decision or the outcome on the motion now before the court.
b) File No. 391/21
19In this proceeding, Mr. McIntosh sought leave to appeal from interlocutory orders made by Shore J. At para. 10 of the January 2022 Endorsement, Corbett J. says, “[t]hose orders have now apparently merged in the trial judgment of Steele J. [i.e., the Final Order]. Mr. McIntosh’s recourse, now, appears to be to the Court of Appeal by way of an appeal from the judgment of Steele J.”
20In summary, Corbett J.’s concern about this proceeding was the same as his concern about the proceeding in File No. 56/20 – that the proceeding was rendered moot because of the issuance of the Final Order. Once again, Corbett J. gave Mr. McIntosh an opportunity to file written submissions: January 2022 Endorsement, at para. 11.
21At para. 23 of the April 2022 Endorsement, Audet J. identifies that the substance of Mr. McIntosh’s written submissions for this proceeding is the same as that for File No. 56/20 (summarized above). Relying on r. 2.1, Audet J. dismisses the motion for leave to appeal from the interlocutory orders of Shore J. Justice Audet does so for the same reasons she dismissed the motion for a panel review of the order of Favreau J.
22I turn next to the law under rr. 2.1.01 and 2.1.02
The Substantive Test Under rr. 2.1.01 and 2.1.02
23Rule 2.1 establishes streamlined procedures that permit the court to fairly, and in a just manner, resolve a particular category of disputes in a timely, proportionate, and affordable way. The law with respect to r. 2.1 has developed primarily in relation to proceedings (r. 2.1.01) rather than motions (r. 2.1.02). For this review of the applicable law, the references to a “proceeding” or an “action” are, for the purpose of this endorsement, replaced with “motion”.
24In at least three decisions, the Court of Appeal for Ontario highlights that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases: 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; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581; and Khan v. Law Society of Ontario, 2020 ONCA 320, 446 D.L.R. (4th) 575, leave to appeal to S.C.C. refused, [2020] S.C.C.A. No. 288.
25At para. 15 of Khan v. Law Society, the Court of Appeal for Ontario cautions judges regarding reliance on r. 2.1.01:
We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.
26In a decision released in early 2025, the Court of Appeal for Ontario again emphasizes that r. 2.1 applies in limited circumstances: Kokic v. Johnson, 2025 ONCA 4, at para. 6. In the same paragraph, the Court highlights that r. 2.1 “serves an important role in screening out meritless claims that drain the limited resources of the justice system.”
27The principles to be applied by a judge determining matters under rr. 2.1.01 and 2.1.02 include the following principles:
- “[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 9; and
- The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3.
28By applying the above principles, the court fulfils its role as a gatekeeper of the justice system. In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 21, Pepall J.A. says, “Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts.”
29To determine whether an action may be characterized as “vexatious, frivolous or an abuse of the court” under r. 2.1.01, the court may consider the criteria developed for applications pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
30At para. 9, in Gao v. Ontario WSIB, 2014 ONSC 6497, Myers J. refers to the definition in Black’s Law Dictionary of “frivolous”: "Lacking a legal basis or legal merit; not serious; not reasonably purposeful", quoting from Currie v. Halton Regional Police Services Board (2003) 7815 (ON CA), 233 D.L.R. (4th) 657, 127 A.C.W.S. (3d) 573 (Ont. C.A.), at para. 14.
31In Scaduto, Khan v. Krylov, and Khan v. Law Society, the Court of Appeal for Ontario endorses the approach taken pursuant to r. 2.1.01 in such lower court cases as Gao and Raji, referenced above.
The Procedure Under r. 2.1.02
32A judge considering dismissing a motion under r. 2.1.02(1) may seek written submissions from the parties. When doing so, the procedure set out in r. 2.1.01(3) is followed. Where further submissions would serve no purpose, the judge may waive the requirement for them. Waiving the requirement for further submissions is the exception, rather than the general rule.
33I move on to my analysis of the merits of Mr. McIntosh’s motion before this court.
Analysis
34Mr. McIntosh’s notice of motion is dated May 6, 2023. The matter came before me on August 7, 2025. There is no information before me as to when Mr. McIntosh filed the notice of motion with the court – in 2023, 2024, or 2025. Regardless of when the notice of motion was filed, it is dated more than one year after the date of the April 2022 Endorsement; more than three years after the date of Justice Favreau’s order in File No. 56/20; and between two and three years after the dates of the two interlocutory orders of Justice Shore that are the subject of the proceeding in File No. 390/21.
35Last, I note that on May 18, 2023, the Court of Appeal for Ontario released its decision on Mr. McIntosh’s appeal from the Final Order. In Kim v. McIntosh, 2023 ONCA 356, the Court dismisses the appeal (“the Decision on Appeal”). The Court also dismisses an omnibus motion by Mr. McIntosh related to matters other than the Final Order. The Court File Nos. in the citation for the Decision on Appeal include Court File No. C70026 – the file number cited by Mr. McIntosh in the notice of motion before this court.
36Mr. McIntosh’s May 6, 2023 notice of motion pre-dates, by twelve days, the date on which the Decision on Appeal was rendered by the Court of Appeal for Ontario. There is nothing before me to suggest that after the release of that decision, Mr. McIntosh delivered a notice of abandonment of the proceeding now before this court.
a) Written Submissions are not Required
37Whether the party whose proceeding is under consideration pursuant to r. 2.1 is given an opportunity to deliver written submissions is entirely within the discretion of the court: see Goble v. Onyx Community Services, 2023 ONSC 1052 (Div. Ct.), at paras. 3 and 4, citing Kim v. McIntosh, 2022 ONSC 6452 (Div. Ct.) (“Ruling No. 4”), at para. 30 and Kovacevic v. Kovacevic, 2022 ONSC 2389 (Div. Ct.).
38I am satisfied that written submissions would serve no purpose in the matter before this court. My reasons for reaching that conclusion are the same as those set out below on the substantive issues pursuant to r. 2.1.
b) Mr. McIntosh’s Motion is Vexatious and an Abuse of the Process of the Court
i) The April 2022 Decisions of Justice Audet
39In January 2022, Corbett J.’s concern that the proceedings in File Nos. 56/20 and 391/21 were rendered moot by the Final Order was validly held. In April 2022, after considering Mr. McIntosh’s submissions on that issue, Audet J. concluded that the proceedings were rendered moot by the Final Order.
40The release on May 18, 2023 of the Decision on Appeal does nothing to detract from the extent to which the proceedings in File Nos. 56/20 and 391/21 were rendered moot as of April 2022.
41As of the date on which Audet J. rendered her decision, the proceedings in File Nos. 56/20 and 391/21 were not reasonably purposeful. Nothing in Mr. McIntosh’s May 6, 2023 notice of motion supports a conclusion that any facts have arisen since the date of the April 2022 Endorsement to support setting aside Audet J.’s decision. There was no purpose to be served by the proceedings in April 2022; there continues to be no purpose to be served by them.
42Last, I highlight that the May 6, 2023 notice of motion is at least Mr. McIntosh’s third attempt to seek relief regarding decisions made in the April 2022 Endorsement. For example, in July 2022, Ryan Bell J. dismissed Mr. McIntosh’s request for an order staying Audet J.’s order pending an appeal of the decisions made in that endorsement: see Kim v. McIntosh, 2022 ONSC 4176 (Div. Ct.) (“Ruling No. 3”).
43At para. 23 of her decision, Ryan Bell J. says the following regarding the merits of Mr. McIntosh’s impending appeal from the April 2022 Endorsement: “Although the threshold for demonstrating a serious question for determination on the appeal is low, in my view, there is no merit to Mr. McIntosh’s proposed appeal.”
44As another example of Mr. McIntosh’s efforts to seek relief regarding decisions made in the April 2022 Endorsement, I point to Ruling No. 4, for which I was the presiding judge. I dismissed Mr. McIntosh’s motion for an order setting aside (a) the decision of Ryan Bell J. in Ruling No. 3, and (b) the decision of a three-member panel of this court dismissing Mr. McIntosh’s request for leave to appeal from a January 2019 costs award made by Nakonechy J.
45At para. 31 of Ruling No. 4, I made the following observations about Mr. McIntosh’s pattern of behaviour as a litigant:
[T]he July 2022 notice of motion is the second in a series of several occasions on which Mr. McIntosh, unhappy with an outcome, seeks to have the subject order set aside and the decision-maker(s) recused. The motion is exemplary of Mr. McIntosh’s pattern of behaviour as a litigant. That factor alone does not support the exercise of the court’s discretion to dismiss the motion under r. 2.1.02. That factor is, however, relevant to consideration of the vexatious and abusive nature of the motion.
46Mr. McIntosh has been unhappy with Audet J.’s decisions ever since they were made in April 2022. He sought to have the decision set aside in 2022, pursued an appeal from the decision, and as of 2023 or later, seeks once again to have the decision set aside. The May 6, 2023 notice of motion is another example of Mr. McIntosh’s pattern of behaviour as a litigant. That pattern of behaviour continues to be relevant to the consideration of nature of the proceeding now before the court.
ii) The Requests for Recusal of the Registrar and Six Judges
47Mr. McIntosh’s pattern of behaviour as a litigant includes numerous requests for orders requiring that one or more judges be recused from hearing his matters over time. Mr. McIntosh has repeatedly been told by the court that his requests for relief in that regard are not properly before the court. For example, see Ruling No. 3, at para. 2 and Ruling No. 4, at paras. 23 and 27.
48Not only was Mr. McIntosh informed that his requests for orders requiring that one or more judges be recused are not properly before the court, but he was also informed on the subject and directed to the decision of this court in Kivisto v. Law Society of Ontario, 2021 ONSC 6394 and the authorities cited in that decision. Mr. McIntosh was provided with that information and given that direction, by Corbett J., in the January 2022 Endorsement, at paras. 15 and 16.
49Once again, Mr. McIntosh’s requests for the recusal of the Registrar and six judges of this court are not properly before the court. The request for relief in that form provides further support for my conclusion that the motion is both vexatious and an abuse of the process of the court.
Summary
50In summary, Mr. McIntosh’s motion is dismissed pursuant to r. 2.1.02 because the motion (a) stands no prospect of success on the substantive issue that is properly before the court (r. 59.06(2)(a)) – the motion is meritless; (b) is not reasonably purposeful; and (c) is vexatious and an abuse of the process of the court. Mr. McIntosh’s motion falls within the scope of the clearest of cases and warrants the application of the summary procedure pursuant to rr. 2.1.01 and 2.1.02.
51There shall be no costs of the motion.
Madam Justice Sylvia Corthorn
Date: September 22, 2025
CITATION: Kim v. McIntosh, 2025 ONSC 5373
DIVISIONAL COURT FILE NOS.: 56/20 and 390/21
DATE: 2025/09/22
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Anita Kim, Responding Party
AND
Adan McIntosh, Moving Party
COUNSEL: Mr. McIntosh, Self-represented Moving Party
ENDORSEMENT
Madam Justice S. Corthorn
Released: September 22, 2025