Court of Appeal for Ontario

Citation: Vermette v. Nassr, 2016 ONCA 658 Date: 2016-09-06 Docket: M46599 (C59706)

Before: Feldman, Simmons and Lauwers JJ.A.

Between

Laurie Ann Vermette Moving Party (Respondent)

and

Jason Donald Nassr Responding Party (Appellant)

Counsel: Allan Dare Pearce, for the moving party Jason Donald Nassr, acting in person

Heard: August 25, 2016

On a motion to dismiss the responding party’s appeal from the judgment of Justice Steven Rogin of the Superior Court of Justice dated October 29, 2014.

Endorsement

[1] The moving party seeks an order dismissing the responding party’s appeal of the judgment of Rogin J. dated October 29, 2014 dealing with custody, access and child support.

[2] The responding party was declared a vexatious litigant by an order of Carey J. dated June 3, 2011.

[3] By order dated May 12, 2015, Patterson J. dismissed the responding party’s application to set aside the order of Carey J. and made a further order declaring the respondent a vexatious litigant. Paragraph 2 of Patterson J.’s order reads as follows:

This court orders that no further proceeding may be instituted by [the responding party] in any court and any proceeding previously instituted by him may not be continued except by leave of a Judge of the Superior Court.

[4] After delivering his notice of appeal from the judgment of Rogin J., the responding party sought, but was denied, leave under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.-43 (the “Act”), to continue the appeal. In an endorsement dated January 11, 2016, Thomas J. found the responding party had not met the test for granting leave set out in s. 140(4) of the Act. Although he concluded that the appeal was not an abuse of process, he found no merit in the appeal.

[5] The responding party concedes there is authority of this court confirming that he requires leave under s. 140 of the Act to proceed with an appeal of any order other than an order declaring him to be a vexatious litigant. We agree. See Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320, [2006] O.J. No. 545 (C.A.), at paras. 25-26, 29-34.

[6] The responding party applied for, but was denied, leave to proceed with his appeal. Section 140 of the Act makes it clear that, in those circumstances, he had no right to institute or continue an appeal in this court:

• s. 140(1) of the Act permits a judge of the Superior Court of Justice to order that no further proceeding be instituted by a vexatious litigant in any court or that a proceeding previously instituted not be continued;

• s. 140(3) of the Act requires that where a vexatious litigant seeks leave to institute or continue a proceeding, “the person shall do so by way of an application in the Superior Court of Justice”;

• s.140(4)(a) of the Act sets out the test for leave; and

• s. 140(4)(e) provides that “no appeal lies from a refusal to grant relief to the applicant.”

[7] However, the responding party argues that, under rule 2.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, this court may, and should, dispense with compliance with the requirement that he obtain leave.

[8] We do not accept this submission. Rule 2.03 provides that a court “may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time” (emphasis added). Rule 2.03 permits a court to dispense with compliance with the Rules of Civil Procedure. It does not authorize a court to dispense with compliance with the statutory leave requirement set out in s. 140 of the Act.

[9] The responding party’s appeal is therefore quashed. Costs of this motion are to the moving party on a partial indemnity scale fixed in the amount of $1,000 inclusive of disbursements and applicable taxes.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“P. Lauwers”