Court of Appeal for Ontario

Date: 2017-07-07 Docket: C62801

Judges: Sharpe, Epstein and Miller JJ.A.

Between

R. Maxine Collins Plaintiff/Appellant

and

Her Majesty the Queen in the Right of Ontario Defendant/Respondent

Counsel

R. Maxine Collins, acting in person

Daniel Mayer, for the respondent

Heard and released orally: June 30, 2017

On appeal from: the order of Justice Mark L. Edwards of the Superior Court of Justice, dated September 25, 2016.

Reasons for Decision

[1] This is an appeal from an order granting the respondent's motion to set aside a notice of default and dismissing the appellant's action on the ground that it constitutes an abuse of process and fails to disclose a reasonable cause of action.

[2] The appellant's action against the Crown alleges that various Ministry of the Attorney General employees misconducted themselves in relation to proceedings that she had commenced before the Landlord Tenant Board, the Divisional Court and the Superior Court of Justice, after those proceedings were decided adversely against her.

[3] The facts relating to the noting in default are set out in the reasons of the motion judge and need not be repeated here. We agree with the motion judge that even on the appellant's version of events, which the respondent disputed, the respondent would be entitled to set aside the notice of default. There was no need to hear the appellant's motion to review the registrar's order, as the notice of default would have been set aside in any event.

[4] It is apparent that the action against the Crown, based upon alleged misconduct of court officials, represents an attempt to question the legitimacy of proceedings that have been decided unfavourably against the appellant.

[5] The motion judge did not err in characterizing this attempt as an abuse of process. Nor did he err in finding that the appellant had failed to plead the necessary elements of malice or intent to injure to make out the tort of misfeasance in public office.

[6] There was no denial of the appellant's right to be heard. The appellant's cross motion to strike the statement of defence became moot once her statement of claim was struck.

[7] Finally, we see no error regarding costs.

[8] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $2,000 inclusive of disbursements and taxes.

Robert J. Sharpe J.A. Gloria Epstein J.A. B.W. Miller J.A.