COURT OF APPEAL FOR ONTARIO

CITATION: Stewart v. Fuhgeh, 2021 ONCA 824

DATE: 20211119

DOCKET: M52651 (M52516)

Gillese, Trotter and Nordheimer JJ.A.

BETWEEN

Kimberley Melissa Stewart

Applicant (Responding Party)

and

William Ndze Fuhgeh

Respondent (Moving Party)

AND BETWEEN

Marie Marielle Edith Bernard

Applicant (Responding Party)

and

William Ndze Fuhgeh

Respondent (Moving Party)

and

Marc Coderre and Marie-Hélène Godbout

Interveners

Counsel:

William Ndze Fuhgeh, acting in person

No one appearing for the responding parties

Susan Sack, for the interveners

Heard: in writing

REASONS FOR DECISION

[1] On April 26, 2021, the motion judge dismissed Mr. Fuhgeh’s appeal proceedings in the Divisional Court pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Fuhgeh v. Stewart, 2021 ONSC 3053.[^1] Mr. Fuhgeh filed a Notice of Motion for leave to appeal in this court from the motion judge’s order. The interveners now seek an order under r. 2.1 to dismiss the motion for leave to appeal.

[2] The underlying proceedings involve an effort by Mr. Fuhgeh to alter custody, access and child support orders, made with respect to Mr. Fuhgeh’s children, some years ago. Mr. Fuhgeh had a child with each of the responding parties. The interveners are the former lawyers for each of the responding parties, who were granted intervener status as parties in the underlying proceedings. Those proceedings are being case managed by Shelston J. The case management judge made an order restricting the scope of Mr. Fuhgeh’s proceedings, including the evidence that he could file. Mr. Fuhgeh sought to appeal that order, as well as the subsequent costs order, to the Divisional Court. Ms. Bernard and the interveners sought to have the appeal proceedings dismissed under r. 2.1.

[3] The motion judge gave detailed reasons for granting the r. 2.1 order. She reviewed the law respecting, and the principles applicable to, such motions. The motion judge concluded that there was no merit to Mr. Fuhgeh’s appeal and also that it was abusive as it attempted to relitigate matters decided some years earlier. She gave a number of examples of the orders that Mr. Fuhgeh was attempting to relitigate. The motion judge also found that Mr. Fuhgeh’s appeal displayed “the hallmarks of vexatious proceedings”.

[4] In his Notice of Motion for leave to appeal, Mr. Fuhgeh does not raise any arguable ground of appeal with respect to the motion judge’s analysis and conclusion. His belated attempt to invoke five different sections of the Canadian Charter of Rights and Freedoms does not assist in that regard. Rather, his efforts to take further steps in a proceeding, that has been determined to be abusive in nature, must itself be seen as abusive. As this court said in Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, at para. 41:

Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided.

[5] Mr. Fuhgeh’s motion for leave to appeal, in these circumstances, constitutes a proceeding that “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court” as defined in r. 2.1.

[6] Consequently, the motion for leave to appeal is dismissed. We make no order as to costs.

“E.E. Gillese J.A.”

“Gary Trotter J.A.”

“I.V.B. Nordheimer J.A.”

[^1]: Motions under r. 2.1 are heard in the Divisional Court by a single judge, rather than a panel, pursuant to a directive from the Associate Chief Justice.