Court of Appeal for Ontario

Date: 20210714 Docket: M52510 (C69405)

Before: Brown, Roberts and Zarnett JJ.A.

Between: The Ontario College of Teachers, Plaintiff (Respondent/Responding Party) And: Ahmed Bouragba, Defendant (Appellant/Moving Party)

Counsel: Ahmed Bouragba, acting in person Charlotte-Anne Malischewski, for the responding party

Heard: July 2, 2021 by video conference

Reasons for Decision

[1] By order dated June 14, 2021, Zarnett J.A. ordered that the motion by the appellant, Ahmed Bouragba, be heard by a panel.

[2] Mr. Bouragba has filed in this court an appeal from the order of Master Brott dated March 22, 2021 (the “Order”). He has also filed an appeal from the Order to the Divisional Court. Mr. Bouragba now moves to transfer his Divisional Court appeal to this court so that they can be heard together.

[3] To transfer his appeal from the Divisional Court to this court, Mr. Bouragba must demonstrate that his appeal already filed with this court “lies to” this court, as required by s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).

[4] The responding party, The Ontario College of Teachers (“College”), started a defamation action against Mr. Bouragba. He moved under CJA s. 137.1 to dismiss the action. His motion was dismissed. This court allowed his appeal and sent his s. 137.1 motion back to the Superior Court to be heard by a different judge: Ontario College of Teachers v. Bouragba, 2019 ONCA 1028, 51 C.P.C. (8th) 280, leave to appeal to S.C.C. refused, 39229 (October 29, 2020).

[5] The College then moved under r. 23.01 of the Rules of Civil Procedure seeking leave to discontinue its action, with prejudice to the College. Mr. Bouragba opposed the motion. Master Brott granted the motion. The first three paragraphs of her Order read as follows:

1. THIS COURT ORDERS that this action is discontinued.
2. THIS COURT ORDERS that the discontinuance of this action shall be deemed a bar to any subsequent action or actions brought by the Plaintiff arising from the same causes of action asserted within this action.
3. THIS COURT ORDERS that the discontinuance of this action shall be deemed to have ended the Defendant’s motion brought under section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

[6] Mr. Bouragba submits that an appeal of the Order lies to this court pursuant to CJA s. 6(1)(d), which states that “an appeal lies to the Court of Appeal from … (d) an order made under section 137.1.”

[7] We disagree. An order “made under section 137.1” within the meaning of CJA s. 6(1)(d) is an order made by a “judge” of the Superior Court of Justice. This is clear from the language of s. 137.1, which authorizes a “judge” to make orders that: (i) dismiss a proceeding (s. 137.1(3)); (ii) refuse to dismiss a proceeding (s. 137.1(4)); (iii) amend a pleading (s. 137.1(6)); (iv) award costs (s. 137.1(7) and (8); or award damages to the moving party (s. 137.1(9)).

[8] A case management master, such as Master Brott, is not a “judge”. Consequently, her Order was not an order made by a “judge”, within the meaning of CJA s. 137.1, and therefore not “an order made under section 137.1” within the meaning of CJA s. 6(1)(d). It follows that no appeal from the Order lies to this court. We would observe that the issue of this court’s jurisdiction to hear an appeal under CJA s. 6(1)(d) was not raised in the case of Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, 439 D.L.R. (4th) 193. However, in Bruyea, at para. 14, the court did point out the significance of s. 137.1’s use of the word “judge” instead of “court”, in respect of the authority of a master.

[9] Accordingly, Mr. Bouragba has not demonstrated that an appeal of the Order “lies to” this court for the purposes of the transfer provisions in CJA s. 6(2).

[10] Mr. Bouragba’s transfer motion is dismissed. The proper court to consider his appeal from the Order is the Divisional Court: CJA s. 19(1)(c).

[11] There shall be no order as to the costs of this motion.

“David Brown J.A.”

“L.B. Roberts J.A.”

“B. Zarnett J.A.”