Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240206 DOCKET: M54678 & M54771 (COA-23-CV-0964)
Lauwers, van Rensburg and Thorburn JJ.A.
BETWEEN
Student A, by his Litigation Guardian, Rupali Bhatia Applicant (Appellant/Moving Party/Responding Party)
and
Toronto French School, Norman Gaudet, Jean-Bastien Urfels, Julie Rouette and Aurelie Lossuarn, Student B by her Litigation Guardian, Student C by her Litigation Guardian, Student D by his Litigation Guardian, Rob W. Weir (a.k.a. Robert Weir), Borden Ladner Gervais LLP Respondents (Respondents/Responding Parties/Moving Parties*)
Counsel: Dheeraj Bhatia, for the moving party (M54678)/responding party (M54771) Ren Bucholz and Emma Wall, for the responding parties (M54678)/moving parties (M54771), Toronto French School, Norman Gaudet, Jean-Bastien Urfels, Julie Rouette and Aurelie Lossuarn Sam Hargreaves, for Student C by her Litigation Guardian and Student D by his Litigation Guardian
Heard: January 29, 2024
Reasons for Decision
Relief Sought
[1] The appellant, Student A, seeks a review of the order of Sossin J.A., a single judge of this court, refusing to stay the order of Dineen J., case management judge, pending appeal, and refusing to stay all other proceedings before the case management judge.
[2] The respondents, the Toronto French School, Norman Gaudet, Jean-Bastien Urfels, Julie Rouette and Aurelie Lossuarn (together, the “TFS Respondents”), bring their own motion to quash the appeal on the basis that this court has no jurisdiction to hear the appeal.
The Claim
[3] The appellant issued a statement of claim for damages and other relief resulting from his expulsion from the Toronto French School.
[4] At a case conference, counsel for the appellant brought a motion seeking a declaration that certain of the TFS Respondents and their counsel were guilty of various crimes under the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code motion”). More specifically, he alleged that, “certain of the TFS Respondents, and their counsel, were “guilty of,” should be “convicted,” and are “liable to be punished for” perjury and public mischief. The case management judge invited the appellant to make submissions as to why his motion should not be dismissed pursuant to r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] The appellant failed to do so. Instead, he submitted “written objections” which stated that “[t]hese are not the written submissions by Student A as to why the motion should not be dismissed pursuant to Rule 2.1.01”, alleged bias and prejudice on the part of the case management judge, and asked that the matters be transferred to another judge. Counsel for the TFS Respondents took the position that the case management judge should dismiss the appellant’s Criminal Code motion.
[6] There are two other outstanding motions scheduled before the case management judge: (i) the appellant’s motion for interlocutory injunctive relief relating to his expulsion; and (ii) the respondents’ motion to remove counsel for the appellant on the basis that he is an essential witness to the events underlying the proceeding (the “Removal Motion”).
The Case Management Judge’s Order Dismissing the Criminal Code Motion
[7] After a case conference on July 20, 2023, the case management judge issued an endorsement, stating that he had jurisdiction to dismiss the Criminal Code motion and finding that “to litigate [the issues in the Criminal Code motion] in the form of an interlocutory motion would serve no purpose except to cause further unnecessary delay and expense in this proceeding which has already been regrettably protracted.” He rejected the appellant’s submission that his conduct gave rise to a reasonable apprehension of bias.
[8] The case management judge held that, while the appellant might want to impugn the conduct of the respondents and their credibility by initiating criminal proceedings, “the way in which criminal proceedings are initiated is not by an interlocutory motion in the course of [a] civil motion… if you want to lay a private Information for perjury and public mischief, the, you know, you can go do that in front of a justice of the peace”. Indeed, it still remains open to the appellant to do so.
[9] On August 22, 2023, after a further case conference dealing with the scheduling of the Removal Motion, the case management judge issued a formal order dismissing the Criminal Code motion pursuant to r. 2.1.02, without prejudice to Student A’s ability to seek to initiate criminal proceedings in any other forum.
The Court’s Denial of a Stay Pending Appeal
[10] The appellant has appealed the case management judge’s order to this court, seeking an order (i) setting aside the case management judge’s order on the Criminal Code motion and (ii) granting the Criminal Code motion.
[11] The appellant brought a motion before this court to stay the case management judge’s order and any other proceedings before this judge pending the appeal, and to transfer the outstanding matters before the case management judge to another judge.
[12] The motion judge dismissed the motion for a stay pending appeal and the request to transfer other matters to another case management judge.
Analysis
(1) Did this Court’s Motion Judge Err in Refusing a Stay of Proceedings Pending Appeal?
[13] On a review motion under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a panel of this court may interfere with the order under review if the motion judge “failed to identify the applicable principles, erred in principle, or reached an unreasonable result”: Weidenfeld v. Weidenfeld, 2022 ONCA 860, at para. 11.
[14] The motion judge correctly identified the applicable principles, applied them, and reached a reasonable conclusion.
[15] He considered whether there was a serious issue to be tried, whether the appellant would suffer irreparable harm if the stay were not granted, and where the balance of convenience lay: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334.
[16] The motion judge noted that, while he could not make a final determination on the jurisdiction of this court in the underlying appeal, it was likely that this court does not have jurisdiction to hear this appeal because the case management judge’s order was interlocutory, not final. This finding was properly taken into account in deciding whether the appeal raises a serious issue: Ncube v. Hassen, 2022 ONCA 840, at para. 16.
[17] Moreover, the motion judge was correct that the case management judge did not have jurisdiction to grant the order requested in the Criminal Code motion. Civil courts have no authority to make binding declarations of illegality or criminal guilt, and there is no provision in the Criminal Code or the Courts of Justice Act that empowers them to do so on a civil motion: Bunker v. Veall, 2023 ONCA 501, 168 O.R. (3d) 356, at para. 14; London Health Science Centre v. R.K. (1997), 152 D.L.R. (4th) 724 (Ont. S.C.), at para. 18. Although superior court judges are ex officio justices of the peace, an applicant should not be permitted to “highjack” a civil action by forcing the judge to take jurisdiction over a criminal prosecution.
[18] In any event, a finding of criminal guilt in this context would be based only on the evidentiary record put forward by the parties, rather than based on more complete evidence that may be available to a prosecutor: Bunker, at paras. 18, 21 and 23. The availability of a more appropriate procedure, in this case before a justice of the peace, is an accepted reason to deny declaratory relief: Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, at para. 64.
[19] As such, the motion judge did not err in considering the case management judge’s lack of jurisdiction in his determination that there was no serious issue to be tried on the appeal.
[20] The motion judge also held that there was no irreparable harm in refusing the stay, as the case management judge’s order does not require the appellant to take or refrain from any action, or affect his rights. Furthermore, he found that the balance of convenience favours the respondents as granting the stay would frustrate the case management judge’s ability to ensure that the litigation stays on track. We see no error in this determination.
[21] For these reasons, the request to review the motion judge’s order refusing to stay the order of the case management judge pending appeal, is dismissed.
(2) Should This Court Quash the Appeal?
[22] Motions to quash are heard by a panel of this court: Courts of Justice Act, ss. 7(3) and 134(3). Section 134(3) specifically provides that, “[o]n motion, a court to which an appeal is taken may, in a proper case, quash the appeal.”
[23] Section 19(1) of the Courts of Justice Act provides that, “[a]n appeal lies to the Divisional Court from, … an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court.”
[24] Therefore, where the action as a whole has not been resolved and the order resolves one issue in the litigation but not all, the appeal should be brought before the Divisional Court not the Court of Appeal: Courts of Justice Act, s. 19(1)(b); 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, at paras. 7 and 9.
[25] The case management judge’s order does not finally resolve all of the issues in the litigation and the action, in some form, will proceed. The order is entirely procedural.
[26] As noted by the case management judge, the appellant has not been prevented from laying an information and thereby causing a criminal investigation. It just cannot be done the way the appellant has attempted to do it: as a motion for declaratory relief in a civil action. We see no error in the case management judge’s conclusion that the proper route, should the appellant decide to pursue this relief, was before a justice of the peace, and not in the civil proceedings.
[27] For these reasons, we find that the case management judge’s order is an interlocutory order and, as a result, this court has no jurisdiction to hear this appeal.
[28] The motion to quash is granted and the appeal is therefore dismissed.
Disposition
[29] For the above reasons, the appeal and the request to review the motion judge’s decision to stay the order pending appeal, are dismissed.
[30] The respondents are entitled to their partial indemnity costs in the amount of $26,935.00.