COURT OF APPEAL FOR ONTARIO

CITATION: Stephenson v. Gravenhurst (Town), 2014 ONCA 589

DATE: 20140815

DOCKET: C58431

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Deborah Stephenson and Stephen Woodrow

Appellants

and

The Corporation of the Town of Gravenhurst

Respondent

Deborah Stephenson and Stephen Woodrow, appearing in person

Michael Miller, for the respondent

Heard: August 15, 2014

On appeal from the judgment of Justice J.R. McCarthy of the Superior Court of Justice, dated January 27, 2014.

APPEAL BOOK ENDORSEMENT

[1] The appellants brought an application to lift a stay imposed in an earlier proceeding by Healey J. The respondents brought a “motion” for an order declaring the appellants vexatious litigants under s. 140 of the Courts of Justice Act. The judge dealt with the respondent’s “motion” first and declared the appellants vexatious litigants.

[2] The appellants argue that the respondent was required to proceed by application and not motion and that this error requires that the judgment be set aside. They also argue that the respondent’s misstep prejudiced them because the judge was obliged to hear this application first before the respondent’s “motion”.

[3] The respondent should have proceeded by application. However, the mis-description of the proceeding as a “motion” caused absolutely no prejudice to the appellants. They had full notice of the respondent’s position and the arguments advanced against them.

[4] The appellants are wrong in suggesting that the judge was obliged to hear their application first. He was entitled to proceed as he did. In any event, had he addressed the application first, the judge, given his reasons on the s. 140 application, would no doubt have dismissed the application.

[5] Apart from the technical argument brought by the appellants, which cannot succeed absent any demonstration of prejudice (see Rule 2.01), the finding that the appellants are vexatious litigants was fully warranted in the record.

[6] The appeal is dismissed. Costs to the respondent in the amount of $5,000, inclusive of disbursements and taxes.