Court of Appeal for Ontario

Date: September 4, 2018

Docket: M49391 (C64926)

Judges: Lauwers, Miller and Nordheimer JJ.A.

Parties

Between

Stewart Wilson Appellant

and

Sara Fatahi-Ghandehari Respondent / Moving Party

Counsel

The appellant, in person

Amar Mohammed, for the respondent, moving party

Hearing

Heard: August 29, 2018

On appeal from: The orders of Justice Price of the Superior Court of Justice, dated January 11, 2018, and January 26, 2018 fixing costs, with reasons reported at 2018 ONSC 669.

Reasons for Decision

[1] The respondent, Sara Fatahi-Ghandehari, moves to quash the appeal or, in the alternative, moves for security for costs. The appellant asked for an adjournment to a date when his previous counsel, Paul Robson, would be available after serving his suspension from practice.

[2] At the conclusion of the oral hearing we refused the adjournment request and quashed the appeal, with reasons to follow. These are the reasons for our decision.

[3] The appellant, Stewart Wilson, has served four notices of appeal. The first, dated November 10, 2017, was in respect of Price J.'s decision on October 10, 2017, with reasons reported at 2017 ONSC 6034, in which he found the appellant in contempt. According to r. 61.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the appellant was obliged to appeal the October 10, 2017 decision within 30 days. Arguably, had he filed this notice of appeal, the appeal would have been timely, but it was not filed with the court.

[4] The second notice of appeal, dated January 26, 2018, appealed the October 10, 2017 contempt finding. It was out of time and the appellant did not seek an extension of time to appeal under r. 3.02(1) of the Rules of Civil Procedure and the well-known principles in Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401. This is also true of the third notice, which was the amended notice of appeal dated January 31, 2018.

[5] The appellant then served and filed a fourth notice of appeal, which is the operative notice for our purposes. This is the second amended notice of appeal dated January 31, 2018, which was filed with a certificate respecting evidence dated February 7, 2018. This notice was amended from the earlier version to delete the appeal of the October 10, 2017 contempt finding. No explanation has been provided for this change. However, the second paragraph of the amended notice "ASKS that the said Orders of Price J., finding the Appellant in contempt … be set aside". This paragraph refers to the orders of January 11, 2018, and January 26, 2018, neither of which makes a contempt finding.

[6] The respondent's motion to quash the appeal is brought on the basis that the January 11, 2018 order is interlocutory, because it deals not with the actual finding of contempt but with the procedural consequences of that finding and the appellant's ongoing unpurged contempt. This court has no jurisdiction over interlocutory orders, which must be appealed to the Divisional Court under s. 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court's Chief Legal Officer wrote to Mr. Robson to advise him of this issue, as is the court's practice, but she was rudely rebuffed.

[7] We agree with the respondent that the operative amended notice of appeal is expressly limited to the January 11, 2018 order, which is interlocutory. This court has no jurisdiction over the January 11, 2018 order. We therefore quashed the appeal.

[8] The respondent also sought to quash the costs appeal. In order to appeal the costs order of January 26, 2018, the appellant is obliged to seek leave to appeal costs but did not do so. We quashed the costs appeal on the basis that the appellant did not seek leave to appeal costs.

[9] As for the argument that the appellant's real appeal is of the contempt order of October 10, 2017, which is a final order, we observe again that the appellant is well out of time for that appeal and has not brought a motion for an extension of time to appeal. The appellant has taken no steps to settle the terms of the October 10, 2017 contempt order, or to perfect his appeals of the January 11, 2018 order, and the January 26, 2018 costs order. In our view the appellant's failure to attend to these appeals after such a long passage of time is procedurally abusive.

[10] The record amply shows that the appellant has made a procedural morass of this case. The record of non-compliance with customary practice and the rules is so egregious that there is no explanation that the appellant or Mr. Robson could provide that would excuse it. On this basis we refused the adjournment.

[11] Given the history of this proceeding, we would quash the appeal even if the order under appeal were final, in the exercise of our inherent jurisdiction to control the process of the court and to prevent its abuse: see Oelbaum v. Oelbaum, 2011 ONCA 300, 94 R.F.L. (6th) 251. This jurisdiction is also recognized in s. 140(5) of the Courts of Justice Act.

[12] The appeal is quashed. We fix the costs of this motion at $1,000 payable forthwith by the appellant to the respondent.

"P. Lauwers J.A."

"B.W. Miller J.A."

"I.V.B. Nordheimer J.A."