Court of Appeal for Ontario

Date: 20210108 Docket: M51998 (C68742) & M52018 (C68742)

Before: Doherty, Zarnett and Coroza JJ.A.

Between:

The Ontario College of Teachers Plaintiff (Respondent)

And

Ahmed Bouragba Defendant (Appellant)

Counsel:

Ahmed Bouragba, appearing in person Christine L. Lonsdale and Charlotte-Anne Malischewski, for the respondent

Heard: January 4, 2021 by video conference

Reasons for Decision

[1] There are two motions before the court. The respondent, The Ontario College of Teachers (the “College”), seeks to quash the appeal brought by Mr. Bouragba on the basis that the order of O’Brien J., dated September 4, 2020, is interlocutory and appealable only to the Divisional Court with leave. The appellant seeks an order staying the order of O’Brien J. until his appeal from that order has been heard and decided by this court. Mr. Bouragba’s motion to stay need only be addressed on the merits if the appeal is properly brought in this court.

[2] The appellant appeals the order which fixes January 12, 2021 for the hearing of the College’s motion to discontinue its action against the appellant. The order also directs that Mr. Bouragba, assuming the College’s action has not been finally disposed of on the College’s motion to discontinue, may schedule his motion under s. 137.1 of the Courts of Justice Act after the Supreme Court has determined whether to grant him leave to appeal on a related appeal.

[3] The order under appeal is a scheduling order. It sets a date for the hearing of the College’s motion, and fixes the timing for the scheduling of Mr. Bouragba’s s. 137.1 motion. The order does not determine the merits of either the College’s motion to discontinue, or Mr. Bouragba’s s. 137.1 motion.

[4] In her endorsement, O’Brien J. does express a view concerning the effect of s. 137.1(5) of the Courts of Justice Act on the College’s right to bring a motion to discontinue its action. The appeal, however, lies from the order not from the reasons. As indicated above, the order speaks only to scheduling matters.

[5] In oral argument, counsel for the College conceded the views of O’Brien J. with respect to s. 137.1(5) are not binding on the court that will hear the College’s motion to discontinue its action on January 12, 2021. We agree with that concession. On the College’s motion to discontinue its action, Mr. Bouragba is free to argue s. 137.1(5) precludes the College from bringing a motion to discontinue its action after Mr. Bouragba had commenced his motion under s. 137.1 and before the s. 137.1 motion was finally disposed of. If Mr. Bouragba chooses to advance that argument, it will be for the master hearing the motion to discontinue to decide the merits of that and any other argument advanced by him.

[6] The scheduling order made by O’Brien J. is interlocutory. This court has no jurisdiction to entertain an appeal. The appeal is quashed. As there is no appeal properly before this court, the motion to stay the order of O’Brien J. is also quashed.

[7] The College is entitled to costs fixed at $1,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”