Court of Appeal for Ontario

Date: 2018-01-30

Docket: M48368 (C64239)

Motion Judge: Feldman J.A.

Between

AMT Finance Inc. Plaintiff (Respondent/Moving Party)

and

Sonia LaFontaine, 2186704 Ontario Inc., and 1843284 Ontario Inc. Defendants (Appellants/Responding Parties)

Counsel

Edward D'Agostino, for the moving party

Jamie Spotswood, amicus curiae

Sonia LaFontaine, acting in person

Arthur Froom, acting in person, appearing by video conference, for the responding parties 2186704 Ontario Inc. and 1843284 Ontario Inc.

Heard: January 25, 2018

Reasons for Decision

[1] By Notice of Appeal dated August 27, 2017, the appellants appealed the order of Braid J. dated July 27, 2017 granting summary judgment to the respondent. The Notice of Appeal also purports to appeal earlier orders in the proceeding, including the earlier order of Braid J. dated March 22, 2017, which found the appellant LaFontaine in contempt. The Notice of Appeal asks that all other "prior, interlocutory and other related orders or endorsements which preceded the final order and are part of the final summary judgment motion and intertwined with the final order above, be set aside, quashed."

[2] The respondent seeks an order under Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, striking a number of paragraphs of the Notice of Appeal as vexatious and an abuse of process of the court, as they purport to appeal orders that were either not appealable to this court, or where no timely appeal was taken, or where an appeal was taken and dismissed for failure to perfect.

[3] Rule 25.11 allows the court to strike a "pleading or other document" that is "scandalous, frivolous or vexatious", or "an abuse of the process of the court." While it could be argued that a notice of appeal falls within the scope of "other document", in my view, this motion is, in effect, a motion to quash part of the appeal, and therefore properly lies to a panel of this court in accordance with ss. 7(2) - (3) of the Courts of Justice Act, R.S.O. 1990, c. C.43; Rule 61.16(2.2) of the Rules of Civil Procedure; and the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, at s. 7.2.1.

[4] What the respondent is seeking to do is to have portions of the Notice of Appeal quashed as vexatious or an abuse of process on the basis that they seek to appeal out of time orders that were not appealed, were appealed but dismissed, or orders that were not appealable to this court.

[5] In Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, this court considered the difference between Rule 2.1 and motions to quash, stating at para. 43:

Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process. However, the rule is not intended or designed to supplant the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or for want of merit. [Emphasis added.]

[6] Similarly, this motion under Rule 25.11 is, in effect, a motion to quash part of the appeal. Where that is the effect of the order being sought, the motion should be brought before a panel of this court, using the procedure prescribed in s. 7.2 of the Practice Direction. This motion is therefore dismissed with costs fixed at $1000 inclusive of disbursements and HST.

K. Feldman J.A.