Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220622 DOCKET: M53466 (C69956)

George J.A. (Motion Judge)

BETWEEN

Elizabeth Philbert Appellant (Moving Party)

and

Heather Graham Respondent (Responding Party)

Counsel: Elizabeth Philbert, acting in person Kelsey Gordon, for the responding party

Heard: June 17, 2022 by video conference

Reasons for Decision

[1] The appellant and respondent were once neighbours. The respondent is a lawyer employed by the Department of Justice. The appellant alleges, amongst other things, that the respondent has harassed, defamed, surveilled, and attempted to kidnap her.

[2] The appellant has commenced four actions against the respondent. She brought an action in the Small Claims Court, which was dismissed as abandoned in September 2017 when she failed to attend the trial. She was ordered to pay the respondent’s costs in the amount of $628.56. In July 2017, before the September action was even disposed of, she commenced another in the Superior Court, which was dismissed in December 2017 pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as being frivolous, vexatious or an abuse of process. She filed another Superior Court claim, which was also dismissed pursuant to r. 2.1.01, in March 2021. The motion judge found that it was frivolous, vexatious or an abuse of process, and that it was merely an attempt to relitigate the facts of her first Superior Court claim. In May 2021 she filed yet another claim in the Superior Court, which was again dismissed pursuant to r. 2.1.01, by Steele J.

[3] The appellant has brought three motions in this court. She, first, sought to extend the time to perfect her appeal of Steele J.’s order, which was dismissed by Thorburn J.A. on February 9, 2022. The appellant then brought a motion to have Thorburn J.A.’s decision reviewed by a panel of this court, which was dismissed by the Registrar for failing to perfect it in time. The appellant now moves to set aside the Registrar’s dismissal, which is the issue before me.

[4] The appellant argues that she did file her motion in time; did so according to the Rules; and that, therefore, the Registrar should not have dismissed it.

[5] The appellant filed her notice of motion to review Thorburn J.A.’s order on February 17, 2022. It appears as though the respondent was not served with this document. On February 24, 2022 the appellant attempted to file the motion record, but it was rejected by the Registrar. On March 3, 2022 the respondent consented to the draft order of Thorburn J.A., which was necessary for the appellant to perfect her motion to review. The initial statutory deadline for the appellant to do so was March 17, 2022: r. 61.16(4)(a)(ii). While the appellant states that she submitted her materials to this court on March 17, 2022, there is no evidence to support her claim that she did. On March 21, 2022 the Registrar issued a notice of intent to dismiss the action for delay pursuant to r. 61.16(7). The appellant was advised that if she did not file her motion record and factum by April 5, 2022 her motion would be dismissed. The Registrar’s order dismissing for delay was issued on April 6, 2022.

[6] On April 5, 2022, at 10:53 p.m., the appellant did email her motion record to this court. While there appears to be a dispute on this point, I accept that the respondent was not served with these materials, as required pursuant to r. 61.16(4)(a). The respondent was not copied on the appellant’s April 5, 2020 email to this court. This is, admittedly, complicated by the fact that the appellant was blocked from sending messages to the respondent’s work email address, but the appellant knew her emails were blocked, and knew the respondent’s physical work address and work fax number which she had been told could be used to effect service. In the April 5, 2022 motion record, the appellant included two affidavits of service. In the first, the appellant affirmed that she served the respondent by mail on February 17, 2022 with the notice of appeal and the evidence upon which she relied. In the second, the appellant affirmed that she served the respondent by mail on March 23, 2022 with a USB key with the motion materials, including the appeal book, factum, compendium and exhibit book. However, the respondent deposed that she was not served with the appellant’s materials on either February 17, 2022 or March 23, 2022. The respondent deposed that on March 23, 2022, she received an envelope at her work address by registered mail from the appellant, but the envelope contained two blank pages, and nothing else. I accept that the respondent was not served with the appellant’s motion materials, and therefore failed to perfect her appeal by April 5, 2022.

[7] A judge’s decision to set aside or vary a decision of the Registrar is discretionary. I am not confined to determining whether the Registrar’s decision was correctly made or not. When determining whether to set aside a Registrar’s decision to dismiss for delay, the following factors should be considered:

i) whether the appellant had an intention to appeal within the time for bringing an appeal; ii) the length of the delay and any explanation for the delay; iii) any prejudice to the respondent caused by the delay; and iv) the justice of the case.

See Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2. The overriding consideration on a motion to set aside a dismissal order is the justice of the case, which should involve an assessment of the appeal’s merits: Kudrocova v. Kronberger, 2021 ONCA 563, at para. 6.

[8] There can be no question that the appellant had an intention to seek a review of Thorburn J.A.’s order before the deadline. In fact, I suspect she instantly formed that intention upon receipt of the decision. Further, in my view, there was no prejudice to the respondent caused by the delay.

[9] The length of the delay was minimal. The appellant delivered a motion record to the court late in the evening on April 5, 2022, which was the extended deadline to perfect the motion, although this is at best a neutral factor, given that the motion record was not served on the respondent and did not contain an affidavit in support of her motion, as required by rr. 61.16(4)(a) and 37.10(2)(c).

[10] The appellant’s explanation appears to be that this court and the respondent were causing the delay, including by blocking her emails. I am not satisfied with her explanation for failing to perfect, as the Registrar of this court was communicating with her, and the appellant was aware of alternative means for effecting service on the respondent other than by email, and had before delivered materials to the respondent by registered mail.

[11] Regardless, the reason I must dismiss this motion is that to grant it would not be in the interests of justice, as there is no merit to the appeal. An assessment of the appeal’s merits requires consideration of whether it has any real chance of success: Paulsson, at para. 5. In that respect, both Steele J. of the Superior Court, and Thorburn J.A., have determined that the appellant’s claims are frivolous and vexatious. Thorburn J.A. put it this way, at paras. 17-18 of her reasons for decision:

[T]he appellant’s conduct in this proceeding fits squarely within the indicia of vexatious litigation articulated by Pepall J.A. in Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 20, citing Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15 which include:

i) bringing multiple proceedings to try to re-determine issues that have already been decided; ii) advancing grounds and issues raised in prior proceedings; iii) persistent pursuit of unsuccessful appeals; iv) bringing proceedings for a purpose other than the assertion of legitimate rights; v) bringing proceedings where a reasonable person would understand that they would not expect to obtain the relief sought; vi) failing to pay costs awards; and vii) inappropriate submissions in form and content.

The appellant appears to be attempting to re-litigate the same allegations which have been dismissed by the Superior Court in early proceedings. I see no merit to the appeal.

[12] I could not agree more. Enough is enough. As this claim is devoid of merit and has no chance of success, the justice of this case requires dismissing the motion.

[13] The appellant’s request to set aside the Registrar’s dismissal is denied.

[14] The appellant is to pay the respondent her costs of this motion in the all-inclusive amount of $2,500.

“J. George J.A.” Released: June 22, 2022