DATE: 20010514

DOCKET: M25428 (C30038)

COURT OF APPEAL FOR ONTARIO

RE: L.K., J.H. and M.P. (Moving Party/Appellants) v. THE CHILDREN’S AIDS SOCIETY OF LANARK and THE TOWN OF SMITH FALLS and MS. DENISE UNHOLA, MS. SHEILA STANFIELD and MS. SUSANNE GEOFFRION personally, jointly and severally and AS EMPLOYEES OF THE CHILDREN’S AID SOCIETY OF LANARK and THE TOWN OF SMITH FALLS (Respondents) – AND – L.K., J.H. (Moving Party/Appellants) v. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE ATTORNEY GENERAL OF ONTARIO CROWN LAW OFFICE AT OTTAWA and THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLTON and MEL GILL personally, jointly and severally and as employee of THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLTON (Responding Party/Respondent) – AND – L.K., J.H. and M.P. (Moving Party/Appellants) v. THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON and HEIDI POLOWIN personally, jointly and severally and as an employee of THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON (Responding Party/Respondent) – AND – L.K., J.H. and JUDGE HEPWORTH and JUSTICE HEPWORTH (Moving Party/Appellants) v. THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON (Responding Party/Respondent) – AND – THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON, MEL GILL as an employee of THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON and OTHER EMPLOYEES, THE CHILDREN’S AID SOCIETY OF LANARK and THE TOWN OF SMITH FALLS, DENISE UNHOLA, SHEILA STANFIELD, and SUSAN GEOFFRION, as employees of THE CHILDREN’S AID SOCIETY OF LANARK and THE TOWN OF SMITHFALLS and OTHER EMPLOYEES (Appellants) v. L.K., J.H. and M.P. (Respondents)

BEFORE: MCMURTRY C.J.O., CATZMAN AND AUSTIN JJ.A.

COUNSEL: L.K. and J.H. in person Paul Muirhead for the respondents Children’s Aid Society of Ottawa-Carleton, Mel Gill and Heidi Polowin

HEARD: April 25, 2001

On appeal from the order of Justice Jean-Marc Labrosse dated February 8, 2000.

E N D O R S E M E N T

[1] L.K., J.H. and M.P. move pursuant to Rule 61.16(6) to review and vary the order of Labrosse J.A. made February 8, 2000, dismissing the appellants’ appeal from the order of the Registrar made April 12, 1999, dismissing the appellants’ appeal from an order of Binks J. made May 8, 1998. The facts are conveniently set out in the reasons of Labrosse J.A. as follows:

February 8, 2000

This is a motion seeking to set aside the Order of the Registrar, dismissing the Plaintiff’s appeal for delay. The motion was heard by way of teleconference.

On May 8, 1998, Binks J., dismissed the Plaintiff’s actions (4) as an abuse of process and further made an order pursuant to S. 140 of the Courts of Justice Act with respect to vexatious proceedings.

On May 11, 1998, the Plaintiffs appealed the decision.

Nothing was heard with respect to the appeal until February 23, 1999, when the Registrar forwarded a Notice of Intention to Dismiss Appeal for Delay, unless the appeal was perfected on or before March 15, 1999.

On March 1, 1999 the Plaintiffs brought a motion for an extension of time to perfect their appeal. Laskin J.A. extended the time to perfect the appeal to April 9, 1999. The plaintiffs did not comply with the order. They did not seek a further extension of time and on April 12, 1999, the Registrar dismissed the appeal for delay.

Nothing was heard from the Plaintiffs until November 15, 1999, when the Plaintiffs served a Notice of Motion seeking to extend the time to proceed with the appeal. (The motion also sought to extend the time to proceed with an appeal in a companion action.)

Between November 15, 1999 and January 10, 2000, the Plaintiffs attempted various proceedings which did not resolve the issue with respect to the Registrar’s order dismissing this appeal.

The present Notice of Motion seeking to set aside the order of the Registrar dismissing the Plaintiff’s appeal for delay was served on February 2, 2000, returnable February 7 and adjourned to to-day.

The Plaintiffs have filed material. The material does not contain any explanation for the delay before or after April 9, 1999 (the date of the extension of time granted by Laskin J.A.) to – at the very least – November 15, 1999, when the Plaintiffs attempted to take steps to proceed with this appeal. As the Plaintiffs are representing themselves, the subsequent delay to this date is more easily excused as they did take steps to proceed with their appeal. However, the delay of more than 7 months after the order of Laskin J.A. in failing to take any steps to further extend the time or set aside the Registrar’s order is unexplained.

In their oral argument, the Plaintiffs openly acknowledge that they wish to re-open proceedings relating to “kidnapped children”, proceedings that have been going on for years and that have gone all the way to the Supreme Court of Canada. They clearly refuse to accept the decisions that have been made, referring to them as “erroneous judgments”. The oral argument also referred to matters that are not relevant to the issue of delay.

The material filed and the oral argument never addressed the delay and failed to demonstrate merit in the appeal. The motion is therefore dismissed with costs.

[2] The appellants L.K. and J.H. appeared in person today. Mr. J.H. explained at some length how he and Ms. L.K. were occupied during the years 1998 to date. Ms. L.K. was said to be engaged in high-risk pregnancies and both were involved in litigation in Michigan and Ontario.

[3] In support of the instant motion Ms. L.K. filed an affidavit sworn February 10, 2000. This affidavit to some extent reviews various proceedings in which the moving parties have been involved since 1999.

[4] Our immediate concern is with the delay in proceeding with the appeal from Binks J. His decision was made May 8, 1998. It is entirely possible to engage in a pregnancy, even a high risk one, while perfecting an appeal. It is also possible to engage in more than one lawsuit at a time, a proposition amply supported by the record before us.

[5] This court undoubtedly has the power to vary the order of Labrosse J.A. made over a year ago and to set aside the order of the Registrar made over two years ago. Neither of these steps should be taken, however, without some persuasive explanation of the delay in proceeding with the appeal from Binks J. and without some indication of the merit of that appeal. We have been provided with neither and this motion is accordingly dismissed with costs.

“R. Roy McMurtry C.J.O.”

“M. A. Catzman J.A.”

“Austin J.A.”