Court of Appeal for Ontario

Date: 2018-10-25

Docket: M49592 (C65674)

Panel: Feldman, Pardu and Roberts, JJ.A.

Parties

Between

Myriam Michail Appellant/Responding Party

and

Ontario English Catholic Teachers' Association, Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone, and Sheila Brescia, London District Catholic School Board and Ontario Labour Relations Board

Respondents/Moving Party

Counsel

Elizabeth Traynor and Liam Ledgerwood, for the moving party

Audra Ranalli, for Attorney General of Ontario

Aaron Hart, for Ontario Labour Relations Board

Christopher Perri, for Ontario English Catholic Teachers' Association, Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone and Sheila Brescia

Myriam Michail, in person

David Campbell, duty counsel

Heard: October 18, 2018

Background

On appeal from the order of Justice Lynne Leitch dated March 21, 2017 of the Superior Court of Justice and from the order of Justice A. Duncan Grace of the Superior Court of Justice, dated June 26, 2017 and costs order dated August 9, 2017.

Reasons for Decision

Jurisdiction

[1] The respondents move for an order quashing the appeal on the basis that the appellant seeks to appeal three interlocutory orders made by the Superior Court, where the right of appeal is under s. 19(1)(b) of the Courts of Justice Act to the Divisional Court with leave.

[2] The procedural history was helpfully set out in detail by Paciocco J.A. in his endorsement dated September 4, 2018. In brief, the appellant wished to have two decisions judicially reviewed, an arbitration decision, and a decision of the OLRB. Instead of bringing the application for judicial review directly to the Divisional Court, the appellant sought leave to have it heard by a single judge of the Superior Court on an urgent basis in London. Initially, Leitch J. set a timetable for the hearing of the appellant's leave motion, which was eventually held before Grace J. He dismissed the motion, and ordered that the application for judicial review be transferred to the Divisional Court in London, or in Toronto where it could be heard sooner. He also ordered the appellant to pay $10,000 costs to the respondent.

[3] The appellant seeks to appeal the order of Leitch J. and the orders of Grace J. to this court. In her written materials, she seeks to have this court hear the application for judicial review and various constitutional issues, none of which was determined below. In oral argument, the appellant conceded that the order of Leitch J. is interlocutory, but that she is seeking to appeal the orders of Grace J., which she submits are final orders. The appellant also explained that there have been a number of administrative problems at the court office since the order of Grace J., resulting in problems with the Divisional Court file for her judicial review application in both the London office, and in the Hamilton office where another file was commenced.

Nature of the Orders

[4] Dealing first with the jurisdiction of this court to hear the appeals, it is clear that the order transferring the application for judicial review to the Divisional Court, which was made by Grace J., is an interlocutory order of a procedural nature. It does not address the merits of the proposed judicial review application.

[5] The appellant sought a procedure for the hearing of her judicial review application before a single judge rather than by a panel of the Divisional Court, which procedural request was refused. The appellant may seek leave from the Divisional Court to appeal that refusal, under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides:

19 (1) An appeal lies to the Divisional Court from,

(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court.

Proper Forum for Judicial Review

[6] Alternatively, the appellant may proceed with her judicial review application before the Divisional Court. In accordance with the provisions of s. 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, her application for judicial review is within the jurisdiction of the Divisional Court. No aspect of the merits of her judicial review has been adjudicated, including any constitutional issues she wishes to raise in respect of the Labour Board. No final order has been made that disposes of any matter in issue in the litigation. As a result, there is no appeal to this court.

Costs Order

[7] Similarly, in accordance with s. 19(1.2) of the Courts of Justice Act, the appellant's proposed appeal from the $10,000 costs order of Grace J. is to the Divisional Court, with leave, because it is within that court's monetary jurisdiction.

Role of the Divisional Court

[8] As the appeal to this court must be quashed, it is for the Divisional Court and its administration to assist the appellant, a self-represented litigant, to bring forward her judicial review application.

Costs of This Appeal

[9] The respondent seeks $17,000 in costs of this appeal on the partial indemnity scale. While the respondent was correct that no appeal lies to this court and the appeal must be quashed, we may also take into account when assessing the costs issue the fact that the appellant is self-represented and the underlying issues involve the termination of her employment. In the result, the motion is granted with a nominal award of costs in the amount of $2,000, inclusive of disbursements and HST.

K. Feldman J.A.

G. Pardu J.A.

L.B. Roberts J.A.