Court of Appeal for Ontario

DATE: 20200429 DOCKET: M50951 and M51145 (M50815)

Gillese, Brown and Huscroft JJ.A.

BETWEEN

Lo-Ming Lum Plaintiff (Moving Party)

and

College of Physiotherapists of Ontario, College of Physical Therapists of British Columbia, Unity Health Toronto as successor to St. Joseph's Health Centre, St. Joseph's Health Centre (Toronto), Attorney General of Canada, The Honourable Harjit Singh Sajian Sajjan and The Honourable Judy Foote Defendants (Responding parties)

Lo-Ming Lum, acting in person Joanna Birenbaum, for the responding party College of Physiotherapists of Ontario Kate Deakon, for the responding party Unity Health Toronto Elizabeth Ackman and Sean McGarry, for the responding party College of Physical Therapists of British Columbia

Heard in writing

Reasons for Decision

[1] Ms. Lum brings two motions to this court. They arise within the context of an action that Ms. Lum brought against the defendants in April 2018 for harm she allegedly suffered as a result of “whistleblowing” (the “Action”).

Background in Brief

[2] The defendants brought motions asking that the Action be dismissed. Justice Dunphy heard the motions. He found that the statement of claim was frivolous and vexatious. By order dated August 13, 2019, Dunphy J. granted the motions and dismissed the Action, without leave to amend (“Justice Dunphy’s Order”). Justice Dunphy’s Order also ordered costs against Ms. Lum and barred her from bringing any further proceedings against the defendants without leave of a judge of the Superior Court of Justice.

[3] In the fall of 2019, Ms. Lum attempted to appeal Justice Dunphy’s Order to the Divisional Court. By endorsement dated September 11, 2019, Corbett J. ordered that Ms. Lum bring a motion, on notice to the parties, for leave of the court to commence an appeal.

[4] Instead, Ms. Lum filed a motion in the Divisional Court seeking to set aside Corbett J.’s order of September 11, 2019.

[5] By Notice of Motion dated September 16, 2019, Ms. Lum sought leave to appeal to this court from the order of Corbett J. dated September 11, 2019.

[6] On September 27, 2019, Ms. Lum wrote to the Divisional Court requesting that the September 11, 2019 order of Corbett J. be revised. Justice Corbett reviewed Ms. Lum’s submissions and signed the revised order, as she had requested. A copy of the order was issued and entered on September 30, 2019.

[7] On October 1, 2019, Ms. Lum wrote to the Divisional Court asking to appear before it and make oral submissions to amend the order of Corbett J. dated September 11, 2019. The court refused to book an appearance before Corbett J., and directed that she file her concerns in writing.

[8] By endorsement dated October 2, 2019, Corbett J. ruled that, as he had signed Ms. Lum’s draft order and it had been issued and entered by the Divisional Court (on September 30, 2019), the matter was settled. Accordingly, he refused to entertain the motion.

[9] On October 23, 2019, Ms. Lum brought a motion in this court asking for an order to set aside or vary the order of September 11, 2019. In an order dated October 23, 2019 (the “Order”), Tulloch J.A. dismissed the motion, as the proper forum for Ms. Lum’s motion was a panel of the Divisional Court.

[10] Ms. Lum then brought the two motions now before the court (the “Motions”). In the first of the two Motions, Ms. Lum asks that the Order be set aside. In the second, she asks for an order dispensing with the requirement to file a copy of an order made by Corbett J. dated September 11, 2019, in her materials seeking leave to appeal that order. Alternatively, she asks that the September 11, 2019 order be amended and she be granted an extension of time to file the materials seeking leave to appeal against it.

[11] The College of Physiotherapists of Ontario prepared and filed a single responding factum on the Motions, on behalf of the College of Physical Therapists of British Columbia, Unity Health Toronto, and itself (the “Respondents”). In the current pandemic, it had been unable to reach counsel for the Attorney General of Canada and so could not submit a joint response on behalf of all the defendants to the Action.

[12] The Respondents oppose the Motions and ask that they be dismissed with costs against Ms. Lum. They contend that the motions that Ms. Lum has brought in this court are yet another attempt by Ms. Lum to circumvent Justice Dunphy’s Order, which requires that she obtain leave of the Superior Court of Justice before she may take any further proceedings in that court in respect of the defendants. The Respondents further ask that this Court issue an order, pursuant to Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requiring Ms. Lum to obtain leave of a single judge of this Court before she may take any further proceedings in respect of the defendants in this Court.

[13] The Motions were scheduled to be heard on April 16, 2020. Due to the pandemic and the physical closure of the Court, the parties were offered the opportunity to have the Motions heard in writing. It was Ms. Lum’s strong preference that the Motions be heard in writing. The Respondents consented and the Motions were set down to be heard in writing on April 21, 2020.

[14] Shortly before the in-writing hearing of the Motions, Ms. Lum sent further correspondence to the hearing panel dated April 15, 2020. In the correspondence, Ms. Lum sets out details of her complaints of improper treatment by the Divisional Court and this court. We have reviewed that correspondence, as well as the documentation filed by the parties on the Motions.

Analysis

[15] The issue raised by the first of the two Motions is whether Tulloch J.A. erred in determining that the correct appeal route for Ms. Lum was to a panel of the Divisional Court and not to this court. Justice Tulloch made no error. The jurisprudence makes it clear that an appeal from, or review of, a single judge of the Divisional Court lies to a panel of the Divisional Court: see, for example, Bernard Property Maintenance v. Taylor, 2019 ONCA 830. As Tulloch J.A. explained in his reasons for decision, he was without jurisdiction to hear Ms. Lum’s motion. Accordingly, the first Motion is dismissed.

[16] In the second of the two Motions, Ms. Lum seeks to have this court hear an appeal of the order dated September 11, 2019. As an interlocutory order, an appeal from that order lies to the Divisional Court, not this court. For that reason, the second Motion is dismissed.

[17] In light of the history of this proceeding, Ms. Lum’s apparent disregard for Justice Dunphy’s Order, and the procedural motions wrongly brought to this court, we are of the view that an order pursuant to Rule 2.1 of the Rules of Civil Procedure is warranted.

Disposition

[18] Accordingly, the Motions are dismissed with costs to the College of Physiotherapists of Ontario, fixed at $1,000, all inclusive. Further, an order shall go, pursuant to Rules 2.1 and 37.16 of the Rules of Civil Procedure, requiring Ms. Lum to obtain leave of a single judge of the Court of Appeal before she may take any further steps or proceedings related to this action in this Court.

“E.E. Gillese J.A.”

“David Brown J.A.”

“Grant Huscroft J.A.”