Court of Appeal for Ontario

Date: 2018-11-23 Docket: M49750 (C65674) Motion Judge: Brown J.A. (In Chambers)

Between

Myriam Michail Plaintiff (Moving Party)

and

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

Counsel

Myriam Michail, acting in person

Christopher Perri, for the responding parties, the Ontario English Catholic Teachers' Association et al.

Audra Ranalli, for the responding party, the Attorney General of Ontario

Jacob Pollice, for the responding party, the Department of Justice Canada

Heard: In writing

Reasons for Decision

[1] Myriam Michail brings a motion in writing seeking several orders: (i) dispensing with the requirement that she sign a standard undertaking in order to obtain the release of audio recordings of the hearings of earlier motions heard by this court on August 30, 2018 and October 18, 2018; (ii) permitting her to transcribe those proceedings; (iii) directing the publication on the court's website of the reasons of Paciocco J.A. released September 4, 2018; and (iv) permitting her to challenge the constitutional validity and applicability of portions of s. 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43, specifically ss. 136(1)(a)(i), (b), (c), and 136(4).

[2] The respondents take no position on her motion. The Attorney General of Ontario and Department of Justice Canada take the position that Ms. Michail's motion is not properly before the court and that her Notice of Constitutional Question in respect of s. 136 of the Courts of Justice Act is a nullity.

[3] The procedural history of this appeal is set out in the October 25, 2018 reasons of the panel reported at 2018 ONCA 857, available on the court's website.

[4] Ms. Michail initiated judicial review proceedings in the Divisional Court. Certain interlocutory orders were made by single judges in those proceedings in 2017. In July 2018, Ms. Michail filed a notice of appeal from those orders in this court.

[5] She then brought a motion seeking certain procedural directions in regard to her appeal: (i) the ability to file a factum of more than 30 pages; (ii) the transfer of the files in her Divisional Court judicial review proceedings in Hamilton and London to this court to be used as part of the record on appeal; and (iii) an extension of the time to perfect her appeal.

[6] Paciocco J.A. heard the motion on August 30, 2018. By reasons released September 4, 2018, Paciocco J.A. granted Ms. Michail an extension of time to perfect her appeal. However, he dismissed the balance of her motion, giving a detailed explanation of why he was doing so at paras. 14 to 19 of his reasons:

In my view, I must dismiss the appellant's motion for relief from compliance with the page limit as being contrary to the interests of justice.

First, the 30 page limit for facta is imposed to keep appeals manageable, efficient and cost-effective for the litigants and the court. I agree with counsel for the OECTA that it is burdensome and expensive for responding parties to have to cope with lengthy pleadings. Permitting the appellant to file an overlong factum would work unfairness to the respondents.

Second, I have reviewed the 95 page notice of appeal filed in this matter, with care. It is repetitive and includes extensive material not contemplated by the Rules. For example, the notice of appeal raises issues that have not yet been the subject of adjudication below, including information about the treatment of the Divisional Court files, and the constitutionality of provisions of the Courts of Justice Act.

Third, the appellant bases her request, in part, on her personal organizational preferences. She wishes to include, in the body of her factum, documents that should be in her appeal book and compendium, exhibit book, and book of authorities. She says that doing so helps her organize her thoughts, and, in her view, makes for easier argument. I see no basis for permitting the appellant to redesign the manner of pleading and argument, developed by this court over many years, a process faithfully followed by many self-represented litigants. In my view, the appellant must pay heed to and comply with the Rules.

In short, I am persuaded that if the appellant restricts herself to appropriate content for court documents as described in the Rules, removes immaterial information, and takes a disciplined approach to setting out appropriate bases for proper grounds of appeal, she can comply with the page limits. The motion for relief from the page limit imposed by the Rules is dismissed.

I also dismiss the appellant's request to have the Divisional Court files transferred, en masse, to this court. Those files cannot be used as the court record in this court, and the appellant has not satisfied me of the need for all of the documents contained in those files to be before this court.

[7] Ms. Michail then brought a motion asking a panel of this court to review the order of Paciocco J.A.

[8] The respondents brought a motion to quash Ms. Michail's appeal.

[9] At the direction of the President of the panel, the court advised Ms. Michail by letter dated October 15, 2018 that it would first consider the motion to quash.

[10] The panel did so at the hearing on October 18, 2018. In its October 25, 2018 reasons, the panel explained why this court did not have jurisdiction to consider Ms. Michail's appeal. The panel quashed Ms. Michail's appeal.

[11] Since the appeal has been quashed, I do not have the jurisdiction to consider Ms. Michail's new motion. There no longer is an appeal before this court in which a constitutional question can be raised, nor is there an appeal in which I could make the procedural orders sought by Ms. Michail. Consequently, I must dismiss her motion for lack of jurisdiction.

[12] It remains open to Ms. Michail to obtain the audio recordings of both hearings by completing the standard Request Form/Undertaking to the Court for Access to Digital Recordings.

[13] Finally, by way of explanation to Ms. Michail, this court does not require motion judges to post on the court's website the reasons for each motion they decide. It is left to the individual motion judge to decide whether or not to publish on the court's website his or her reasons on a motion.

David Brown J.A.