COURT OF APPEAL FOR ONTARIO

CITATION: Bernard v. Fuhgeh, 2020 ONCA 529

DATE: 20200821

DOCKET: M51686 (M51272)

Paciocco J.A. (Motion Judge)

BETWEEN

Marie Marielle Edith Bernard

Applicant (Responding Party)

and

William Ndze Fuhgeh

Respondent (Moving Party)

William Ndze Fuhgeh, acting in person

Marie Marielle Edith Bernard, acting in person

Heard: in writing

REASONS FOR DECISION

OVERVIEW

[1] The moving party, William N. Fuhgeh, filed a Notice of Motion for Leave to Appeal in this court that should have been filed in the Divisional Court. He now seeks an order pursuant to s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C-43, transferring the Court of Appeal file to that court. The respondent, Edith Bernard, opposes the requested transfer order.

[2] In her responding materials, Ms. Bernard requested either an order finding Mr. Fuhgeh to be a vexatious litigant, or that his motion be dismissed as frivolous, vexatious and an abuse of process.

[3] For the reasons that follow, Mr. Fuhgeh’s motion is dismissed. This disposition renders Ms. Bernard’s request to declare Mr. Fuhgeh’s motion frivolous, vexatious and an abuse of process moot.

MATERIAL FACTS

[4] On February 22, 2017, Edith Bernard commenced Family Division litigation against William N. Fuhgeh that included custody and access issues related to their son, W.B. Mr. Fuhgeh subsequently withdrew from the litigation. On December 18, 2017, after an uncontested trial, an order was made granting Ms. Bernard sole custody of W.B. and limiting Mr. Fuhgeh to supervised access, on conditions.

[5] Mr. Fuhgeh did not appeal that decision but a year later, on December 3, 2018, he brought a motion to set aside that order.

[6] On May 3, 2019, he filed a simple notice of motion seeking temporary unsupervised access to their son. On July 2, 2019, J. Mackinnon J. dismissed Mr. Fuhgeh’s motion for temporary unsupervised access because the relief Mr. Fuhgeh was requesting is not available pursuant to a simple notice of motion. J. Mackinnon J. ruled that according to the Family Law Rules, O. Reg 114/99, since there is a final order in force addressing access to W.B., the relief Mr. Fuhgeh sought is only available through a Motion to Change, which is an originating process that must be accompanied by evidence of a material change in circumstances affecting the best interests of the child.

[7] The parties ultimately fell into dispute over the form and content of the formal order that should issue because of disagreement over whether J. Mackinnon J.’s order was final or interlocutory. On December 9, 2019, J. Mackinnon J. released an endorsement affirming that her July 2, 2019 order was final.

[8] On December 13, 2019, Mr. Fuhgeh filed a notice of motion before the Divisional Court asking for directions regarding whether J. Mackinnon J.’s decision of July 2, 2019 is interlocutory or final. He sought leave of the Divisional Court to appeal from both the July 2, 2019 and December 9, 2019 rulings, if the orders were determined to be interlocutory. In the alternative, he asked that his motion file be transferred to the Court of Appeal if it was determined that the orders are final.

[9] In response to that motion Ms. Bernard asked the Divisional Court to make an order pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing the leave to appeal motion to the Divisional Court as frivolous or vexatious or otherwise an abuse of the process of the court. On December 18, 2019, Corbett J. directed the Registrar to issue a r. 2.1 notice on the basis that:

(1) Mackinnon J’s recent endorsement merges into the first order and may not be appealed separately; (2) the proposed appeal cannot possibly meet the test for leave to appeal, and so is frivolous and vexatious and an abuse of process.

[10] Mr. Fuhgeh was given an opportunity to respond to the r. 2.1 notice. In that response he conceded that the orders were final, and that J. Mackinnon J.’s December 18, 2019 endorsement merged with her July 2, 2019 decision.

[11] On January 13, 2020, Myers J. conducted a r. 2.1 review. He dismissed Mr. Fuhgeh’s motions for leave to appeal the July 2, 2019 and December 9, 2019 decisions to the Divisional Court, as well as his motion for directions. Myers J. explained:

• The motion for leave to appeal the July 2, 2019 order has no merit, having been brought in the wrong court;
• The motion for leave to appeal the December 9, 2019 order is frivolous because Mr. Fuhgeh acknowledges that this endorsement merged with the order of July 2, 2019. A merged order cannot be the subject of a separate appeal; and
• The materials filed by Mr. Fuhgeh bear “the hallmarks of vexatious proceedings” identified in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, and that “[it] would be abusive to subject Ms. Bernard and the court to a motion to quash the appeal in light of the scatter-gun and scandalous allegations made by Mr. Fuhgeh in [the] face of his admission that he is in the wrong court.”

[12] Myers J. also dismissed Mr. Fuhgeh’s motion to transfer the matter to this court in light of his finding that the materials satisfied the Scaduto test.

[13] The Court of Appeal file that is the subject of the current motions does not relate to an appeal of the substantive orders of J. Mackinnon J. Instead, it relates to Mr. Fuhgeh’s motion for leave to appeal Myers J.’s r. 2.1 order.

ANALYSIS

A. THE TRANSFER REQUEST

[14] Section 110(1) of the Courts of Justice Act provides: “[w]here a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer.”

[15] I am authorized under this section to transfer Mr. Fuhgeh’s leave to appeal application file to the Divisional Court for the purpose of permitting Mr. Fuhgeh to bring a leave to appeal application before that court: Cheung v. Samra, 2018 ONCA 923; Suresh v. R. (1982), 1998 CanLII 2843 (ON CA), 42 O.R. (3d) 793 (C.A.). Whether I do so is a matter of discretion: White v. Garrow, [2011] O.J. No. 6482 (C.A.), at para. 3. In Dunnington v. 656956 Ontario Ltd. (1992), 1991 CanLII 7107 (ON SC), 9 O.R. (3d) 124 (Div. Ct.), Rosenberg J. (as he then was) helpfully identified relevant factors for consideration, including:

• The merits of the proposed appeal or application;
• Whether the respondent will suffer undue prejudice as a result of further delay while the appeal or application is waiting to be heard; and
• Whether the appellant moved expeditiously after becoming aware that jurisdiction was in dispute.

[16] On the basis of the relevant factors, I will not grant the transfer order requested, as doing so is not in the interests of justice.

[17] I appreciate that Mr. Fuhgeh was prompt in bringing this motion when he realized that he was in the wrong court, and that he would like an opportunity to challenge Myers J.’s determination that his Divisional Court materials bore the hallmarks of a vexatious application identified in the Scaduto decision. However, there is no realistic chance that the Divisional Court will grant leave to appeal given that Mr. Fuhgeh now concedes that he was in the wrong court and that J. Mackinnon J.’s endorsement of December 9, 2019 merged with the decision of July 2, 2019. These concessions, appropriately taken, constitute an admission that the orders made by Myers J. are correct. It is inconceivable that the Divisional Court will grant leave.

[18] There is also the question of prejudice to Ms. Bernard. I agree with her submission that Myers J.’s conclusion that the motions he was addressing satisfied the Scaduto test have nothing to do with Ms. Bernard. She should not have to incur the expense involved in responding to a meritless appeal so that Mr. Fuhgeh can seek to challenge a finding by Myers J. that would not affect the correctness of the orders Myers J. ultimately made.

[19] Nor should Ms. Bernard have to bear the delay that will occur if the file is transferred while the leave to appeal application is pending. I am not persuaded that her recognition that COVID-19 has delayed court proceedings constitutes an acknowledgement by her that any delay that may occur is without prejudice.

[20] In White, at para. 4, Sharpe J.A. (in Chambers) said of the application for transfer before him, “I refuse to exercise my discretion in favour of the moving parties on the ground that their proposed application for leave to appeal has no hope of success”. I am of the same mind in this case.

[21] The motion for transfer is dismissed.

B. THE VEXATIOUS LITIGANT REQUEST

[22] In her responding materials, Ms. Bernard asked for “[a]n order finding Mr. Fuhgeh a vexatious litigant or, at the very least, that his motion be dismissed as frivolous, vexatious and an abuse of process.”

[23] Even if Ms. Bernard was formally seeking a vexatious litigant declaration against Mr. Fuhgeh, no such order could be made. Such orders are issued pursuant to s. 140 of the Courts of Justice Act by Judges of the Superior Court. They must also be sought by way of originating applications, not by way of motions: Lukezic v. Royal Bank of Canada, 2012 ONCA 350.

[24] However, having reviewed her materials, I interpret Ms. Bernard’s request for such declaration not to be a formal, serious request for a ruling, but rather a rhetorical flourish. Ms. Bernard’s materials include extensive grounds for her request that Mr. Fuhgeh’s transfer motion be dismissed, under the heading, “The Grounds for Dismissing the Motion Are”. Her materials contain no submissions on why Mr. Fuhgeh should be declared to be a vexatious litigant. Since I do not interpret this request as being formally before me, I need issue no ruling.

[25] As for Ms. Bernard’s request that Mr. Fuhgeh’s transfer motion be dismissed as “frivolous, vexatious and an abuse of process”, that request is now moot, given the decision I have just rendered. On this basis alone, the request is dismissed.

COSTS

[26] Both self-represented parties are seeking costs, but no bills of costs have been filed. If either party wishes to pursue costs, they must file written argument, not to exceed 2 pages, by September 11, 2020, accompanied by a bill of costs confined to the legal costs, disbursements and HST being sought, as well as an itemization for the claims being made.

“David M. Paciocco J.A.”