Court of Appeal for Ontario

Date: 2017-04-19

Docket: C62801; C62802

Judges: LaForme, Pepall and Pardu JJ.A.

Docket C62801

Between

R. Maxine Collins Responding Party (Appellant)

and

Her Majesty the Queen in Right of Ontario Moving Party (Respondent)

Docket C62802

And Between

R. Maxine Collins Responding Party (Appellant)

and

The Attorney General of Ontario The Attorney General of Canada Moving Parties (Respondents)

Counsel

Daniel Mayer, for the moving party, The Attorney General of Ontario

Ayesha Laldin, for the moving party, The Attorney General of Canada

Maxine Collins, in person

Heard: In Writing

Endorsement

The Requests

[1] By two separate letters — the first dated January 5, 2017 regarding C62801; the second dated January 25, 2017 regarding C62802 — the Queen in Right of Ontario (Ontario) asks the Registrar of this court for orders under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 dismissing Maxine Collins' appeals in C62801 and C62802. Ontario submits that each appeal, on its face, or the grounds of appeal "at first glance", have no merit.

[2] By letter dated November 30, 2016 the Attorney General of Canada (Canada) wrote a similar letter of request to the Registrar, the Superior Court of Justice – Civil, in connection with C62802. Canada in its letter simply paraphrases r. 2.1 and asserts; "the application appears on its face to be frivolous, vexatious and an abuse of the court's process."

[3] Both Ontario and Canada rely on this court's direction in Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806 as authority for engaging this process. Essentially the request for submissions pursuant to r. 2.1 is to inquire into whether this court should stay or dismiss Maxine Collins' appeals because they each appear on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[4] The requests were considered by Roberts J.A. on January 3, 2017. After a review of the court files and the requests for review under r. 2.1, Roberts J.A. directed the Registrar of this court to "issue notices to the parties under rule 2.1.01(3) [in connection with appeals C62801 and C62802] and commence the process of collecting submissions from the appellant and respondents."

[5] In regards to both appeals, Ontario and Ms. Collins have each filed submissions, only Ontario, however, has also filed a request record pursuant to this court's direction in Simpson, at paras. 42-47. Canada has not filed any submissions or request record for either but specifically relies on Ontario's documents filed.

[6] To explain the appeals that Ontario and Canada seek to have dismissed, it will be helpful to provide a brief summary of the proceedings that give rise to the requests for dismissal.

Background

(1) C62801

[7] On September 26, 2016 Edwards J. of the Superior Court of Justice, "for oral reasons given" allowed Her Majesty the Queen in Right of Ontario's (Ontario) motion and struck Ms. Collins' statement of claim without leave to amend and ordered Ms. Collins to pay costs fixed in the amount of $10,260.

[8] By Notice of Appeal dated October 20, 2016 Ms. Collins seeks to appeal the order to this court.

[9] The oral reasons are not part of the record on this request by Ontario. No order appears to have been signed, issued or entered.

[10] We would not grant the respondents' requests under r. 2.1. In our view, the record before this court is inadequate and does not meet the requirements for a dismissal or stay under r. 2.1. This court is unable to properly assess the requests advanced.

(2) C62802

[11] On November 9, 2015, Turnbull J. of the Superior Court of Justice granted Canada's motion to strike Ms. Collins statement of claim in this matter without leave to amend. She filed a Notice of Appeal in connection with this order in which she asserted that the motion judge was unfair and biased towards her and denied her access to justice. She unsuccessfully attempted to have the Registrar of the Court of Appeal issue a Notice of Application addressing her alleged right to accurate and complete transcripts.

[12] Ms. Collins then challenged the Registrar's denial of this request by bringing an application to this court seeking an order that before she is required to pay for transcripts of court proceedings, she be assured they are accurate and complete. She did not want the transcriptionist to follow the Superior Court's normal procedure of providing the draft to the affected judge for editing as to accuracy prior to release. By order dated January 20, 2016 Lauwers J.A. (in chambers) dismissed her motion based on lack of jurisdiction to issue an originating process such as a Notice of Application. He also directed the Local Registrar to provide Ms. Collins with a compact disc with the live recording of the relevant proceeding when she paid for and received the transcript.

[13] On January 25, 2017, the Chief Justice agreed with Lauwers J.A.'s decision and granted Ms. Collins an extension of time to April 8, 2017 to perfect her appeal.

[14] On July 5, 2016 Ms. Collins' appeal of the decision of Lauwers J.A. was dismissed by a panel of this court as was her appeal of the decision of the Chief Justice. The panel also noted that Ms. Collins had taken no steps to perfect her appeal.

[15] On October 6, 2016 Walters J. of the Superior Court of Justice dismissed Ms. Collins' application for a declaration that she be guaranteed accurate and complete transcripts of the court proceedings. Justice Walters noted that Ms. Collins had brought similar proceedings in this court and this court had provided directions on how to proceed to her and to the local Superior Court office to produce the compact disc once she had paid for the transcript. Walters J. concluded that Ms. Collins' application was premature. Her fears may never arise as once she pays for the transcript, she can compare it with the compact disc.

[16] By Notice of Appeal dated October 20, 2016 Ms. Collins seeks to appeal Walters J.'s order to this court.

Analysis

[17] Rule 2.1 has typically been invoked to dismiss proceedings where the opposite party has engaged in abusive litigation conduct. The rule "is not for close calls" and its availability "is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves": Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at paras. 7–9, endorsing Raji v. Myers, 2015 ONSC 4066, [2015] O.J. No. 3436, at paras. 8–9.

[18] For example, in Raji the pleadings made unfounded allegations of misconduct against a judicial officer and counsel. Likewise, in Simpson, the appeal came from an order declaring the appellant a vexatious litigant who was "clearly using the court system as a way to inflict damage on people with whom he is upset": para. 22.

[19] Ontario and Canada clearly take the view that Ms. Collins' appeals lack merit. Absence of merit on its own, even assuming such absence, is not sufficient to justify dismissal under r. 2.1. Simpson, at para. 43, makes it clear that a r. 2.1 request is not a substitute for a motion to quash and filing the appropriate materials. The rule does not replace the bringing of a motion to quash an appeal for want of jurisdiction or for lack of merit. However, it does allow for a speedy process for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.

[20] Here, Ms. Collins' appeal is clearly without merit. However, it is also abusive. She has been provided with guidance on how to proceed but has neglected to pay for the transcript so she can compare it with the compact disc to address any concerns she has. As a result, she has not perfected her appeal in spite of having been given an extension of time to do so.

[21] Our system of justice is designed to provide fair, just and timely decisions. Abuse of the process of the courts detracts from the ability of the system to achieve those objectives. This is unfair to the opposing parties, others in the system who wish to have their cases adjudicated and to the administration.

[22] The r. 2.1 request in matter C62802 is granted.

H.S. LaForme J.A.

S.E. Pepall J.A.

G. Pardu J.A.