COURT OF APPEAL FOR ONTARIO

CITATION: Damallie v. Ping, 2016 ONCA 603

DATE: 20160728

DOCKET: M46381 & M46729

Gillese J.A. (In Chambers)

BETWEEN

Clifton Damallie

Plaintiff (Moving Party/ Responding Party by way of cross motion)

and

Dr. Peony Ping

Defendant (Responding Party/ Moving Party by way of cross-motion)

Clifton Damallie, acting in person

Jeremy Opolsky, appearing as amicus

Julia Lauwers, for the responding party/moving party by way of cross motion

Heard: July 27, 2016

ENDORSEMENT

[1] Mr. Damallie moves for an order dismissing the orders of the Registrar dated August 12, 2015, and December 4, 2015.

[2] Dr. Peony Ping is the responding party to the motion. She brings a cross-motion asking that this proceeding be referred to a panel of the Court of Appeal (the “Panel”) for a determination under rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the proceeding is, on its face, frivolous, vexatious and an abuse of process. Dr. Ping also asks for an order staying Mr. Damallie’s motion and any other motions in this proceeding pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, pending the outcome of the Panel’s determination under rule 2.1.

[3] For the reasons that follow, the cross-motion is granted and Mr. Damallie’s motion is stayed pending the outcome of the Panel’s determination.

BACKGROUND IN BRIEF

[4] Dr. Ping is a dentist in good standing with the Royal College of Dental Surgeons of Ontario. Mr. Damallie was a patient of Dr. Ping from June 9, 2011, to March 22, 2012.

[5] On September 17, 2012, Mr. Damallie began an action against Dr. Ping in the Small Claims Court in Toronto. On July 4, 2013, Deputy Judge Shapiro dismissed Mr. Damallie’s claim (the “Dismissal”).

[6] A very abbreviated version of what transpired after the Dismissal follows.

[7] On January 8, 2014, Mr. Damallie brought a motion in the Divisional Court, in which he sought an extension of time to file a notice of appeal against the Dismissal. By order dated January 8, 2014, a single judge of the Divisional Court dismissed the motion (the “First Divisional Court order”). In thoughtful and thorough reasons, the court explained that the proposed appeal had no merit.

[8] Mr. Damallie moved to set aside the First Divisional Court order. By order dated September 24, 2014, a three-judge panel of the Divisional Court dismissed the motion and upheld the First Divisional Court order (the “Second Divisional Court order”). Again, the court gave thorough and sound reasons for why the proposed appeal should not be permitted to proceed and why there was no error in the First Divisional Court order.

[9] By notice of motion dated September 29, 2014, Mr. Damallie indicated that he would make a motion in this court seeking leave to appeal the Second Divisional Court order (the “Originating CA Motion”).

[10] On December 15, 2014, the Registrar notified Mr. Damallie that she would dismiss the Originating CA Motion for delay unless he filed his motion record and factum in accordance with the Rules by December 30, 2014.

[11] Mr. Damallie did not file the requisite materials.

[12] Instead, in March of 2015, Mr. Damallie brought a motion for an extension of time to file the requisite materials. That motion was dismissed by court order dated April 8, 2015 (the “April 2015 order”).

[13] Mr. Damallie then filed a notice of motion asking that a panel of this court review the April 2015 order. However, he failed to file the necessary documents in support of that motion. Again, the Registrar advised that his motion would be dismissed for delay if he did not file the documents by a specified date. Again, instead of meeting that requirement, he filed another motion in which he sought an extension of time to file the documents. That motion was dismissed. Again, he brought a motion seeking a review of the dismissal. But he did not file the requisite materials so the Registrar notified him of her intention to dismiss for delay. So Mr. Damallie brought another motion.

[14] And so the pattern has continued for the past eighteen months, with Mr. Damallie filing notice of motion after notice of motion, each one challenging a decision this court has rendered in this matter but failing to provide the requisite documentation.

[15] By order dated April 14, 2016, the Registrar dismissed the Originating CA Motion for delay (the “Order”). This had the effect of dismissing the underlying motion for leave to appeal to this court.

[16] Nonetheless, Mr. Damallie continues to bring motions in this proceeding. He frequently fails to serve Dr. Ping with the motion materials and fails to inform her of the dates on which the motions are scheduled to be heard.

ANALYSIS

[17] Through her cross-motion, Dr. Ping asks for this court’s help in ending this cycle. She asks that this matter be referred to a panel of the court (the “Panel”) for a determination under rule 2.1 of the Rules. Rule 2.1.01(1) gives the court the power to “stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”.

[18] Mr. Damallie voiced two concerns in respect of the cross-motion. First, he asked whether the Panel would address his concerns relating to the costs orders made against him in the administrative dismissals made by the Registrar.[^1] He wants those costs orders to be “waived”. Second, Mr. Damallie asked whether he would be given a “fair chance” to express his reasons for believing that the Court of Appeal should hear his proposed appeal.

[19] Amicus submitted that this court should not entertain the cross-motion. He points out that in a letter dated January 12, 2016, counsel for Dr. Ping wrote to the Registrar asking for an order from the court pursuant to rule 2.1.01(6). He suggests that Dr. Ping should continue to wait and see what might transpire as a result of that request.

[20] I see no reason why the cross-motion should not be entertained by this court. There are very few reported decisions in which this court has stayed or dismissed a proceeding under rule 2.1: see e.g. Hoang v. Mann Engineering Ltd., 2015 ONCA 838; and Gallos v. Toronto (City), 2014 ONCA 818. I see nothing in those decisions to suggest that the matter cannot be brought to the court’s attention by means of a motion such as that brought today by Dr. Ping.

[21] Amicus correctly points out that rule 2.1.01(6) contemplates that a party to a proceeding may file with the registrar a written request for an order under subrule (1). However, this provision uses the word “may”, indicating that it is permissive. Thus, I do not see it as precluding a party from bringing a motion such as that which Dr. Ping brings today.

[22] It has been many months since counsel for Dr. Ping sent a written request to the Registrar and there have been countless motions since that time, many of which, in my view, were moot. The Order had the effect of dismissing the underlying motion for leave to appeal to this court. As all of the outstanding motions brought by Mr. Damallie relate to the underlying motion, in my view, the Order rendered those motions moot. And yet, the motions continue to be brought and heard. There must be some method by which a responding party can enlist the court’s aid in coming to grips with the situation. A motion of this sort provides such an avenue.

[23] I turn now to the merits of the cross-motion.

[24] I have reviewed many of the notices of motion that Mr. Damallie has filed in this proceeding in this court. Apart from the fact that most now appear to be moot, for the reasons already given, the notices of motion also appear to be simply repeated attempts to re-argue issues that the court has already determined. They consist of bald assertions that the decision he seeks to challenge is incorrect. On the face of the notices of motion, they appear to be frivolous, vexatious and an abuse of process.

[25] Further, the Divisional Court has twice considered the proposed appeal and found there was no merit to it. In many of the decisions rendered by this court on Mr. Damallie’s motions, the court has also referred to the absence of merit to the proposed appeal. See, for example, the reasons for decision dated February 17, 2016, of Hourigan J.A (M45889).

[26] I have considered Mr. Damallie’s concerns and am satisfied that he will be given the opportunity to be fairly heard, including on the matter of the costs orders against him, if I refer this proceeding to a Panel.

[27] Rule 2.1.01(3) sets out a procedure that the court is required to follow when it is considering making an order under subrule (1), unless it orders otherwise. It provides that the plaintiff or applicant (in this case, Mr. Damallie) is to be given the opportunity to file with the court a written submission. Thus, Mr. Damallie should have the opportunity to put forward the matters that he wishes the Panel to take into consideration, including, if he wishes, the matter of the costs orders made against him in this proceeding.

[28] For the convenience of all, rule 2.1 of the Rules is set out in full in Schedule A to these reasons.

DISPOSITION

[29] For these reasons, the cross-motion is granted. An order shall go in accordance with the draft order located at tab 27 of the Motion Record for the cross-motion, with the exception of para. 4. Mr. Damallie’s present and other motions in this proceeding are stayed pending the Panel’s determination under rule 2.1. Costs of today’s motion and cross-motion are reserved to the Panel.

“E.E. Gillese J.A.

SCHEDULE A

[30] Rule 2.1 of the Rules of Civil Procedure provides:

2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.

(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:

1. The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.

2. The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.

3. If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.

4. If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.

5. A party who receives a copy of the plaintiff’s or applicant’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff’s or applicant’s submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party.

(4) A document required under subrule (3) to be given to a party shall be mailed in the manner described in subclause 16.01 (4) (b) (i), and is deemed to have been received on the fifth day after it is mailed.

(5) The registrar shall serve a copy of the order by mail on the plaintiff or applicant as soon as possible after the order is made.

(6) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).

(7) If the registrar becomes aware that a proceeding could be the subject of an order under subrule (1), the registrar shall notify the court.

2.1.02 (1) 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. O. Reg. 43/14, s. 1.

(2) Subrules 2.1.01 (2) to (7) apply, with necessary modifications, to the making of an order under subrule (1) and, for the purpose,

(a) a reference to the proceeding shall be read as a reference to the motion; and

(b) a reference to the plaintiff or applicant shall be read as a reference to the moving party.

(3) On making an order under subrule (1), the court may also make an order under rule 37.16 prohibiting the moving party from making further motions in a proceeding without leave.

2.1.03 (1) If the court determines that a person who is subject to an order under subsection 140 (1) of the Courts of Justice Act has instituted or continued a proceeding without the order having been rescinded or leave granted for the proceeding to be instituted or continued, the court shall make an order staying or dismissing the proceeding.

(2) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).

(3) An order under subrule (1) may be made without notice, but the registrar shall serve a copy of the order by mail on every party to the proceeding for whom an address is provided in the originating process as soon as possible after the order is made.

[^1]: Mr. Damallie’s notice of motion before the court today refers to the administrative dismissal orders as being dated August 12, 2015, and December 4, 2015. Apart from a brief affidavit, he did not file supporting materials for the motion. In the materials filed by the responding party in support of its cross-motion, I located the Registrar’s dismissal order dated December 4, 2015. It dismissed one of Mr. Damallie’s motions (not the Originating CA Motion) for delay with costs fixed at $750. I could not locate an administrative dismissal order dated August 12, 2015. However, the Order - which dismissed the Originating CA Motion – did dismiss for delay with costs fixed at $750.