Court of Appeal for Ontario

Date: 2021-06-17 Docket: M52515

Before: Brown J.A. (Motions Judge)

Between: Melissa Hart, Applicant (Moving Party) and Kevin Fullarton, Respondent (Responding Party)

Counsel: Melissa Hart, acting in person Steve Benmor, for the responding party

Heard: June 15, 2021 by video conference

Endorsement

Overview

[1] The applicant, Melissa Hart, who is self-represented, seeks an order extending the time to file a notice of appeal from that part of the November 5, 2020 order of Nakonechny J. (the “Final Order”) which dismissed her application for spousal support. Ms. Hart does not seek to appeal that part of the Final Order which, in essence, declared her to be a vexatious litigant under s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).

Background

[2] By application issued October 15, 2019, Ms. Hart applied in the Superior Court of Justice for retroactive and ongoing spousal support from the respondent, Kevin Fullarton. A one-day trial was held before Nakonechny J. on October 29, 2020. In paras. 1-3 of her reasons, the trial judge identified the issues for her determination:

The Applicant, Melissa Hart, seeks retroactive and ongoing spousal support from the Respondent, Kevin Fullarton, under Part III of the Family Law Act.

The Applicant’s Application issued October 15, 2019, also contained a claim for an interest in the property known municipally as Unit 502-245 Dalesford Road, Toronto, owned solely by the Respondent. The Applicant withdrew this claim at the commencement of trial.

The Respondent asks that the Applicant’s claim for spousal support be dismissed, for a finding that the Applicant is a vexatious litigant and an order that the Applicant shall not bring any further proceedings against the Respondent.

[3] In the Final Order, the trial judge dismissed the application in its entirety and, pursuant to CJA s. 140(1), ordered that Ms. Hart “shall not commence any further proceeding against [Mr. Fullarton] in any court except with leave of a judge of the Ontario Superior Court of Justice.” [Emphasis added.]

[4] In response to subsequent motions by Ms. Hart to re-open the trial, the trial judge released an endorsement dated December 16, 2020 in which she wrote:

The Applicant has been advised by the Family Trial Office that if she wishes to appeal the Judgment, the proper procedure is to file an appeal with the appropriate court. Despite receiving this information, the Applicant continues to file motions for leave with the Ontario Superior Court of Justice.

Paragraph 83 (2) of the Reasons for Judgment states that the Applicant shall not commence a further “proceeding” against the Respondent without leave of a judge of the Ontario Superior Court of Justice. Rule 1.03 of the Rules of Civil Procedure defines a proceeding as an action or an application, not an appeal.

This Endorsement is to clarify that, in accordance with the Judgment, the Applicant does not require leave from a judge of the Ontario Superior Court of Justice to commence an appeal of the trial decision.

[5] While it is true that r. 1.03 does not include an appeal within its definition of “proceeding”, this court has held that the language “proceeding … in any court” in s. 140(1)(c) of the CJA includes a proceeding in the Court of Appeal and “proceeding” includes an appeal: Varma v. Rozenberg, [1998] O.J. No. 4183 (C.A.), at para. 5.

[6] Ms. Hart did not receive the December 16 endorsement until March 11, 2021. The record is not clear on why she did not.

[7] In any event, Ms. Hart next filed a notice of appeal from the Final Order in the Divisional Court. That resulted in a January 12, 2021 endorsement by Corbett J., sitting as a single judge of the Divisional Court, informing the applicant that: (i) any appeal from the order declaring her to be a vexatious litigant lies to the Court of Appeal; and (ii) an appeal of any other part of the Judgment first required leave under CJA s. 140(3) from a Superior Court judge.

[8] As disclosed by the reasons of O’Brien J. dated April 6, 2021, Ms. Hart moved for “leave under s. 140(3) of the CJA to appeal the judgment of the trial judge dismissing her claim for spousal support”: at para. 1. O’Brien J. dismissed the motion. While she did not find the proposed appeal to be an abuse of process, O’Brien J. concluded that Ms. Hart had not shown reasonable grounds for bringing the appeal.

[9] In the course of her reasons, O’Brien J. considered the effect of the trial judge’s December 16, 2020 endorsement, reproduced in para. 4 above. She held, at para. 23:

Finally, I have considered whether the Applicant should be permitted to proceed with the appeal on the basis of the December 16, 2020 endorsement of Nakonechny J. indicating that she was entitled to do so in spite of the s. 140(1) order. The subsequent endorsement of Corbett J. clarified that the Applicant could not appeal as of right and was required to first seek leave from a judge of this court. There is a long line of authority providing that, as stated by Corbett J., s. 140 of the CJA prevents appeals without leave: see, for example, Kalaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.), at para. 26; Varma v. Rozenberg, at para. 5; and Vermette v. Nassr, 2016 ONCA 658, at para. 5. It appears these authorities were not before Nakonechny J. when she issued her endorsement. I read Nakonechny J.’s endorsement as setting out her understanding of the meaning of “proceeding” under the Rules of Civil Procedure. I do not read it as intending to provide the Applicant with a right of appeal that she did not otherwise have.

[10] On April 26, 2021 Ms. Hart attempted to file with this court a notice of appeal from the Final Order. The Registrar refused to accept the notice as it was beyond the 30-day appeal period for the Final Order. Consequently, Ms. Hart now moves for an order extending the time to file her notice of appeal.

Analysis

[11] Sections 140(1) and (3) of the CJA state:

140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or (b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or (d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice. [Emphasis added.]

[12] The jurisprudence of this court regarding CJA s. 140 has established the following principles regarding the section’s applicability to appeals to this court:

(i) The language “proceeding … in any court” in s. 140(1)(c) includes a proceeding in the Court of Appeal and “proceeding” includes an appeal: Varma v. Rozenberg, at para. 5;

(ii) This court generally will require leave to appeal where a litigant seeks to initiate or continue litigation after a vexatious litigant order has been made against the litigant: Kallaba v. Bylykbashi (2006), 207 O.A.C. 60, (C.A.), at para. 33, leave to appeal refused, [2006] S.C.C.A. No. 144;

(iii) However, leave to appeal a vexatious litigant order itself is not required. Such an order is final in nature and appealable as of right to the Court of Appeal pursuant to s. 6(1)(b) of the CJA. The effect of a s. 140(1) order does not extend so far as to require leave to appeal from the very order that declares a person to be a vexatious litigant and restricts her right to access the courts: Kallaba, at paras. 23 and 29.

[13] During the hearing of this motion, in response to my inquiries, Ms. Hart confirmed that she is not seeking to appeal the vexatious litigant portion of the Final Order but the portion that dismissed her claim for spousal support. Consequently, CJA s. 140(3), as interpreted by the decisions of this court, requires Ms. Hart to obtain leave from a Superior Court judge to do so.

[14] I agree with O’Brien J.’s reading of the December 16, 2020 endorsement that the trial judge did not intend to provide Ms. Hart with a right of appeal that she did not otherwise have.

[15] Ms. Hart sought leave to proceed with an appeal of the spousal support aspect of the Final Order from O’Brien J. [1] Her request for leave was denied. CJA s. 140(4)(e) clearly states that no appeal lies from a refusal to grant leave to proceed: Chavali v. The Law Society of Upper Canada, 2007 ONCA 482, at paras. 4-5. Consequently, there is no merit to the appeal that Ms. Hart now seeks to bring before this court in respect of the dismissal of her application for spousal support and the justice of the case requires dismissing her motion for an extension of time.

[16] For these reasons, I dismiss Ms. Hart’s motion.

[17] Mr. Fullarton seeks his partial indemnity costs of this motion, including costs caused by its adjournment last week, in the amount of $2,000. I am not prepared to award costs for the adjourned motion; communication glitches between the court and Ms. Hart seem to have been the cause of the adjournment. However, Ms. Hart shall pay Mr. Fullarton his partial indemnity costs of the motion fixed in the amount of $1,500, inclusive of disbursements and applicable taxes, within 30 days of the release of these reasons.

“David Brown J.A.”

[1] Neither party raised the issue of whether an appeal of the dismissal of the spousal support aspect of the Final Order would lie to the Divisional Court under CJA s. 19(1)(a) or to this court under CJA s. 6(1)(b). However, Ms. Hart is self-represented. Consequently, during the hearing of the motion, at my request, respondent’s counsel provided a copy of Ms. Hart’s October 15, 2019 Form 8 Application. Her claim did not specify the amount of monetary relief that she was seeking. The absence of any quantification of the relief claimed, coupled with Ms. Hart’s filing of a notice of appeal to the Divisional Court, have satisfied me that she was proceeding on the basis that the Divisional Court was the appropriate court to proceed with an appeal of the dismissal of her spousal support claim. In any event, even if her claim had exceeded $50,000, the jurisprudence on CJA s. 140(3) would require her to move before a judge of the Superior Court for leave to proceed with an appeal to this court. She did, and O’Brien J. dismissed her request for leave to proceed with an appeal.