Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211209 DOCKET: M52874

Zarnett J.A. (Motion Judge)

BETWEEN

Melissa Hart Moving Party

and

Kevin Fullarton Responding Party

Counsel: Melissa Hart, acting in person Adam Zweig, for the responding party

Heard: December 6, 2021 by video conference

Reasons for Decision

[1] On November 5, 2020, Nakonechny J. (i) dismissed Ms. Hart’s application for the payment of support by Mr. Fullarton, on the basis that the parties were not spouses and therefore Ms. Hart had no claim for spousal support against him (the “support dismissal order”); and (ii) found Ms. Hart to be a vexatious litigant under s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and prohibited her from commencing any further proceeding against Mr. Fullarton in any court except with leave of a judge of the Ontario Superior Court of Justice (the “vexatious litigant order”): Hart v. Fullarton, 2020 ONSC 6804, 50 R.F.L. (8th) 131.

[2] Ms. Hart moves for an extension of time to appeal from the vexatious litigant order. For the reasons that follow, I dismiss the motion.

[3] Ms. Hart previously took various steps toward appealing the support dismissal order, culminating in a motion which she brought under s. 140(3) of the CJA for leave to appeal that order. Section 140(3) sets out the process by which a party who has been declared a vexatious litigant, and prohibited from bringing further proceedings without leave, may obtain that leave. Her motion [1] was dismissed by O’Brien J. on April 6, 2021, who found that Ms. Hart had not met her onus of showing reasonable grounds for her proposed appeal: Hart v. Fullarton, 2021 ONSC 2559.

[4] Ms. Hart then brought a motion in this court to extend the time to file a notice of appeal from the support dismissal order. On June 17, 2021, Brown J.A. dismissed that motion. He noted that Ms. Hart confirmed that she was not seeking to appeal the vexatious litigant order. He held that she was required to obtain leave of a Superior Court judge for an appeal of the support dismissal order, that Ms. Hart’s request for leave to appeal the support dismissal order had been dismissed by O’Brien J., and that, as s. 140(4)(e) states, there is no appeal from a refusal to grant leave to proceed: Hart v. Fullarton, 2021 ONCA 438.

[5] Ms. Hart now moves before this court, supported by an affidavit she swore on August 5, 2021, for an extension of time to appeal the vexatious litigant order.

[6] A person subject to a vexatious litigant order does not require leave under s. 140(3) of the CJA to appeal the vexatious litigant order itself: Kallaba v. Bylykbashi (2006), 207 O.A.C. 60 (C.A.), at paras. 23 and 29, leave to appeal refused, [2006] S.C.C.A. No. 144. However, Ms. Hart does need an extension of time to do so, as an appeal from the vexatious litigant order had to be commenced within 30 days of that order being made.

[7] On a motion to extend time, the overarching principle is whether the justice of the case requires an extension. Relevant considerations include: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[8] In my view, the justice of the case does not warrant an extension being granted. Three considerations combine to lead me to that conclusion.

[9] First, there is no basis to conclude that Ms. Hart formed and maintained an intention to appeal the vexatious litigant order within the relevant time period. The steps she took in the aftermath of November 5, 2020 were directed at the support dismissal order. She confirmed to Brown J.A., in June of 2021, that she was not seeking to appeal the vexatious litigant order.

[10] Second, there is nothing in the material that would allow me to conclude that there is merit to the proposed appeal. Ms. Hart has not included a proposed notice of appeal or other material disclosing the basis of the appeal, nor otherwise pointed to any errors in the findings of fact or principles of law applied by Nakonechny J. in making the vexatious litigant order.

[11] Third, to the extent that Ms. Hart seeks to appeal the vexatious litigant order to facilitate a further challenge of the dismissal of her support claim, the interests of justice do not require that she should be able to do so. Ms. Hart had and pursued an avenue to challenge the support dismissal order. However, O’Brien J. found that she did not have reasonable grounds for an appeal of the dismissal of her support claim.

[12] I therefore dismiss the motion. The responding party is entitled to costs of the motion fixed in the sum of $1,500, inclusive of disbursements and applicable taxes.

“B. Zarnett J.A.”

[1] Section 140(3) of the CJA required Ms. Hart to proceed by application, not motion; however, O’Brien J. decided the matter on its merits rather than terminating it on a procedural ground.