Court of Appeal for Ontario

Date: 2017-07-20 Docket: M48054 (C63925) Judge: B.W. Miller J.A. (In Chambers)

Between

Attorney General of Ontario Plaintiff (Respondent/Responding Party)

and

Althea Reyes Defendant (Appellant/Moving Party)

Counsel

Althea Reyes, in person

Domenic Polla, for the respondent, Attorney General of Ontario

Kiran Arora, for the respondent, The Office of the Children's Lawyer

Heard: July 19, 2017

Endorsement

[1] The moving party, Ms. Reyes, is subject to a vexatious litigant order made by Perell J. and dated May 31, 2017. The terms of that order put constraints on her ability to commence or continue legal proceedings. Specifically, she cannot commence or continue any proceedings in Ontario without first obtaining leave from a judge of the Superior Court of Justice pursuant to s. 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2] The process for obtaining leave is expressly provided in rule 38.13 of the Rules of Civil Procedure. That rule provides that an application under s. 140(3) is to be heard in writing without the attendance of the parties, unless the Court orders otherwise. That means that the application will be decided by a judge, in chambers, based on the written materials that the applicant, and any responding party, files with the Court. The rule is intended to eliminate the need for counsel and parties to appear on the motion.

[3] Ms. Reyes is concerned that the effect of the order of Perell J. is to prevent her from continuing two proceedings that require her immediate attention.

[4] She appealed the vexatious litigant order to this Court by right: Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (ON CA). That appeal has not yet been heard, and in the interim she wishes to obtain a stay of the order. It is at this point that she has run into difficulties. She filed motion materials with this Court seeking a stay of the order. The Court Registry advised her that although it would hold the materials in abeyance, she would be required to obtain leave from a judge of the Superior Court before the motion could be heard in this Court.

[5] Ms. Reyes ought to have brought that application for leave to the Superior Court in writing under rule 38.13. She did not do so, and instead brought a motion in the ordinary course both for leave and for the stay itself. The motion was heard by Lederer J. on July 18, 2017. He denied the motion, and concluded that it was itself an abuse of process for Ms. Reyes to have sought a stay from both the Superior Court of Justice and the Court of Appeal. For her part, Ms. Reyes argued before me that she was simply following the directions that had been given to her by the registry of the Court of Appeal, and that Lederer J. erred in concluding that she was thereby committing an abuse of process.

[6] Regardless, and as Lederer J. noted, the leave motion ought to have been brought in writing pursuant to rule 38.13(2). As Lederer J. stated, the failure to follow rule 38.13 is more than a failure to comply with a formality. It circumvents a process designed to protect other litigants, putting them to the time and expense of an oral hearing. Failure to observe the prescribed process is not an irregularity which ought to be cured by the application of rule 2.01.

[7] Decisively, s. 140(4)I of the Courts of Justice Act provides that "no appeal lies from a refusal to grant relief to the applicant" from a refusal by a judge of the Superior Court of Justice to grant leave to institute or continue a proceeding in any Court. Section 140(4)I is determinative of that aspect of the motion before me. Leave to bring a motion in this Court for a stay of the order of Perell J. pending appeal has been refused by Lederer J. No appeal from that decision is available, and that is the end of the matter in this Court.

[8] Ms. Reyes argues, however, that this Court can nevertheless hear her motion for a stay under s. 106 of the Courts of Justice Act. The reasoning is this. If leave is not required to appeal a vexatious litigant order – because of the risk of fundamental unfairness if the order was granted in error: Kallaba – than neither should leave be necessary to seek an interim stay of that order pending the appeal: the same risk of unfairness from an order made in error hovers over them both.

[9] I do not agree with this argument.

[10] It must be remembered that the vexatious litigant order is presumptively correct and it strikes a balance between safeguards for the vexatious litigant and protection for other litigants. And although there is some risk of unfairness to the applicant should it later be determined that the order was made in error, such that the applicant should never have been put to the additional burden of having to seek leave, the risk of unfairness is nevertheless temporarily contained to the period of time up until the decision of the appeal. The risk of unfairness is further limited by the opportunity to seek leave in the Superior Court to bring the motion for a stay.

[11] Were it to be otherwise, and a motion for a stay was available as of right, a vexatious litigant would be able to command two additional oral hearings: one for the stay motion and another for an appeal if the stay motion were unsuccessful. This would put opposing parties to further expense, contrary to the purpose of s. 140.

[12] Accordingly, the motion must be dismissed.

[13] That does not mean that Ms. Reyes has no further option open to her. She is at liberty, as counsel for the Attorney General of Ontario stressed in oral argument, to bring a proper application in writing under rule 38.13 for leave to continue in both proceedings that she has ongoing. Such an application would be decided based on the written materials filed, and Ms. Reyes would need to persuade the judge hearing the application that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding. She would need to file an application record, including an affidavit, supporting the relief sought.

[14] The Registry Office of the Court of Appeal is not to accept any notice of motion or notice of appeal from Ms. Reyes while the May 31, 2017 order of Perell J. remains in effect, unless she has first obtained leave from a judge of the Superior Court of Justice.

Disposition

[15] The motion is dismissed. There is no order as to costs.

"B.W. Miller J.A."