Court of Appeal for Ontario

Date: 2019-10-03 Docket: M50814

Motion Judge: Nordheimer J.A.

Between

Steve Aljawhiri Moving Party

and

Pharmacy Examining Board of Canada Responding Party

Counsel

David Matas, for the moving party (by teleconference)

Kate Byers, for the responding party

Heard

October 3, 2019

Reasons for Decision

[1] Mr. Aljawhiri brings this motion to extend the time to appeal the order of Myers J., dated August 23, 2018, sitting as a single judge of the Divisional Court, dismissing his application for judicial review on the grounds that it was frivolous and vexatious. As a preliminary matter, I must consider whether this court has jurisdiction to entertain Mr. Aljawhiri's proposed appeal. I conclude that it does not. As a result, I see no purpose in extending the time to file the proposed appeal and would dismiss the motion.

[2] Mr. Aljawhiri brought an application for judicial review through which he sought an order in the nature of mandamus requiring the Pharmacy Examining Board of Canada to produce its decision which limits "the number of qualifying exams each candidate is allowed".

[3] The Pharmacy Examining Board of Canada brought a motion to dismiss the application for judicial review on the basis that it was an abuse of process or, alternatively, on the basis of delay. The motion judge dismissed the application for judicial review on the basis that it was frivolous and vexatious. There is authority for the proposition that a single judge of the Divisional Court may quash an application for judicial review: Keewatin v. Ontario (Ministry of Natural Resources), 66 O.R. (3d) 370 (Div. Ct.).

[4] The fact that the motion below was decided by a single judge of the Divisional Court directly affects the proper route of appeal. The Courts of Justice Act, R.S.O. 1990, c. C.43, expressly provides, at s. 21(5), that a panel of the Divisional Court may "set aside or vary the decision of a judge who hears and determines a motion."

[5] Section 6(1)(a) of the Courts of Justice Act provides that an appeal lies to this court, with leave, from "an order of the Divisional Court". I am not satisfied that an order of a single judge of the Divisional Court, on an interlocutory motion, constitutes such an order. I note that this court expressed the same concern in Overseas Missionary Fellowship v. 578369 Ontario Ltd., 73 O.R. (2d) 73 (C.A.). The result would be different if the single judge had been acting in place of the panel, under s. 21(2), but that is not the situation here.

[6] Even if I am incorrect in that conclusion, the result is the same. As determined in Overseas, the specific review provided by s. 21(5) of decisions of single judges of the Divisional Court on motion would "take precedence over and exclude" the general appeal route provided by s. 6(1)(a). Consequently, any appeal from the order of the motion judge here must be taken to a panel of the Divisional Court and not to this court. This conclusion is consistent with other decisions of this court including Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change), 2018 ONCA 576, 17 C.E.L.R. (4th) 167, and Predie v. Ontario (Ministry of the Environment), leave to appeal refused, [2006] S.C.C.A. No. 127.

[7] Given that I am satisfied that this court lacks jurisdiction to entertain the proposed appeal, I am equally satisfied that the justice of the case does not require an extension of time for bringing that appeal. This court can extend time on such terms as are just: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 3.02(1). The overarching principle in exercising this discretion is whether the justice of the case requires an extension: Sennek v. Carleton Condominium Corporation No. 116, 2017 ONCA 154, at para. 17. Given that this court lacks jurisdiction, I see no purpose in providing more time to file an appeal which is not properly before this court. I note that this court has come to similar conclusions where an extension of time is sought on an appeal that this court lacks jurisdiction to hear: see Henderson v. Henderson, 2014 ONCA 571, 324 O.A.C. 138, at para. 8; Sennek, at para. 18.

[8] The motion is dismissed. The Pharmacy Examining Board of Canada is entitled to its costs fixed in the agreed amount of $3,500 inclusive of disbursements and HST.

I.V.B. Nordheimer J.A.