COURT OF APPEAL FOR ONTARIO DATE: 20220209 DOCKET: M53115 (C69956)

Thorburn J.A. (Motions Judge)

BETWEEN

Elizabeth Philbert Plaintiff (Appellant/Moving Party)

and

Heather Graham Defendant (Respondent/Responding Party)

Elizabeth Philbert, acting in person Heather Graham, acting in person

Heard: February 7, 2022 in writing

ENDORSEMENT

I. OVERVIEW

[1] The appellant and moving party, Elizabeth Philbert, brings a motion in writing for an extension of time to perfect her appeal.

[2] The appellant claims the respondent is abusing her role as Senior Counsel at the Department of Justice to bring about the dismissal of the appellant’s claims, and harassing her.

II. HISTORY OF PROCEEDINGS

[3] The appellant filed claim SC-16-00013293 in Small Claims Court against the respondent (“the Small Claims Court action”). The trial was set down to proceed on September 29, 2017. The appellant failed to attend the hearing and the court dismissed the claim as abandoned. The court awarded costs to the respondent in the amount of $628.56.

[4] On July 17, 2017, prior to the dismissal of the Small Claims Court action, the appellant filed claim CV-17-578993 in the Superior Court of Justice against the respondent. On December 14, 2017, the court dismissed this claim pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as frivolous, vexatious, or an abuse of process.

[5] On May 31, 2018, the Ontario Court of Justice issued a Recognizance to Keep the Peace against the appellant, ordering the appellant to have no contact with the respondent or her children, and not to attend anywhere the respondent and her children are known to reside, work, or attend school.

[6] The appellant filed a second Superior Court claim, CV-19-00633675, against the respondent. On March 15, 2021, the court dismissed this claim pursuant to r. 2.1.01 as frivolous, vexatious, or an abuse of process, stating that the claim “dredg[ed] up the same facts as set out in” the first Superior Court claim.

[7] On May 25, 2021, the appellant filed this third Superior Court claim (“this claim”). On September 28, 2021, Steele J. issued her endorsement. She reviewed the previous claims and found that this claim was another attempt to relitigate allegations of “harassment, slander and defamation [that go] back to 2013.” She noted that those allegations had been dismissed. She noted that, “Where a claim has been dismissed, the same claim based on the same factual underpinning cannot be readvanced. This is an abuse of the court’s processes.”

[8] Steele J. therefore dismissed this claim as frivolous, vexatious or an abuse of process pursuant to r. 2.1.01. The court noted that the statement of claim for this claim contained new allegations regarding damage to the appellant’s property. The court dismissed the action without prejudice to the appellant filing in Small Claims Court her claim regarding alleged property damage.

III. STEPS TAKEN TO PERFECT THIS APPEAL

[9] The appellant filed this Notice of Appeal on November 1, 2021. She failed to perfect the appeal by the statutory deadline of December 1, 2021.

[10] The Registrar of this court therefore issued a Notice of Intention to Dismiss Appeal for Delay on December 6, 2021, granting an extension to the appellant to December 28, 2021. The appellant failed to perfect the appeal by December 28, 2021.

[11] The appellant sent several emails to the respondent in late December 2021. Given the history of this litigation, the appellant’s emails to the respondent were intercepted and screened by Security Operations at the Department of Justice before they were provided in part to the respondent.

[12] When it became apparent to the respondent that the appellant might be seeking the respondent’s consent to an order pursuant to the Superior Court of Justice’s September 28, 2021 endorsement in this claim, the respondent wrote to the appellant on December 24, 2021 and proposed language for a draft order. The respondent provided a draft order on December 31, 2021. On January 7, 2022, the appellant wrote to the respondent indicating that she accepted the wording in the draft order and requesting her signature on it. On January 7, 2022, the respondent wrote to the appellant stating that her signature was not required and providing a signed approval of the draft order.

[13] It appears that on January 10, 2022, the appellant wrote to request the respondent’s consent to extend the time to perfect the appeal.

[14] On January 12, the respondent asked that the appellant send the motion record to her along with a consent form. There is no record of a reply from the appellant.

IV. ANALYSIS AND CONCLUSION

[15] On a motion to extend time, an extension should be granted if the “justice of the case” requires it: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 17; Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at para. 14. Relevant considerations include:

i. whether the moving party formed an intention to seek leave within the relevant period; ii. the length of, and explanation for the delay; iii. prejudice to the respondent; iv. merits of the appeal; and v. whether the “justice of the case” requires it.

Rizzi, at para. 16; Reid, at para. 14.

[16] This court has held that lack of merit alone can be a sufficient basis on which to deny an extension of time: Reid, at para. 15; Friedrich v. Metropolitan Toronto Condominium Corporation No. 1018, 2019 ONCA 216, at paras. 5-9.

[17] I agree with Steele J. of the Superior Court that the appellant’s conduct is frivolous, vexatious, or an abuse of proceedings. The appellant’s conduct in this proceeding fits squarely within the indicia of vexatious litigation articulated by Pepall J.A. in Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 20, citing Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15 which include:

i. bringing multiple proceedings to try to re-determine issues that have already been decided; ii. advancing grounds and issues raised in prior proceedings; iii. persistent pursuit of unsuccessful appeals; iv. bringing proceedings for a purpose other than the assertion of legitimate rights; v. bringing proceedings where a reasonable person would understand that they would not expect to obtain the relief sought; vi. failing to pay costs awards; and vii. inappropriate submissions in form and content.

[18] The appellant appears to be attempting to re-litigate the same allegations which have been dismissed by the Superior Court in early proceedings. I see no merit to the appeal. Moreover, the appellant has failed to offer any reasonable explanation for failing to meet the statutory deadline for the filing of her appeal.

[19] For these reasons, the request to extend the time for perfecting this appeal is denied.

“J.A. Thorburn J.A.”