Court of Appeal for Ontario

Date: 2025-05-16
Docket: M55955 (COA-25-CV-0147)
Judge: Benjamin Z. Dawe (Motion Judge)

Parties

Between:
College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and Mahadai Bahadur
Applicants (Responding Parties)

and

Nathalie Xian Yi Yan
Respondent (Moving Party)

Appearances:

• Nathalie Xian Yi Yan, appearing in person
• Celine Zhen, for the responding party, College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
• No one appearing for the responding party, Mahadai Bahadur
• Mary Paterson and Simone Livshits, appearing as amicus curiae, Pro Bono Ontario

Heard: 2025-05-14

Endorsement

[1] The moving party, Ms. Yan, is appealing an order made by a judge of the Superior Court of Justice on January 16, 2025 under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, finding her to be a vexatious litigant. The order includes a term that requires Ms. Yan to obtain “leave of a judge of the Superior Court of Justice pursuant to s. 140(3) of the CJA” before she may institute “further proceedings”.

[2] Ms. Yan brings a motion seeking to have the s. 140 order against her stayed pending her appeal of the order to this court. It is undisputed that she has not sought leave of a judge of the Superior Court of Justice to bring this motion.

[3] Persons subjected to s. 140 orders are entitled to appeal those orders to this court as of right, without first obtaining leave: Kallaba v. Bylykbashi, para 29. However, judges of this court have also held “that apart from the argument of the appeal of vexatious litigant order itself, any motions in that proceeding require leave of a Superior Court judge”: Son v. Khan, 2018 ONCA 984, para 6; see also Ontario (Attorney General) v. Reyes, 2017 ONCA 613.

[4] In her persuasive submissions, amicus curiae notes the administrative difficulties Ms. Yan has encountered when she has sought to obtain leave to continue several of her other proceedings in the Superior Court under s. 140(3). Amicus suggests that I could exercise my authority under s. 13(2) of the CJA, which makes me an ex officio judge of the Superior Court, to grant Ms. Yan leave to bring her stay motion, and then decide the stay motion on its merits.

[5] I have some sympathy for the difficulties Ms. Yan has apparently encountered having her leave applications in other cases accepted by the Superior Court. However, I am not persuaded that I can properly reconstitute myself as a judge of the Superior Court of Justice for the purpose of granting her leave under s. 140(4) of the CJA.

[6] I reach this conclusion for two main reasons.

[7] First, while s. 13(2) of the CJA gives me the power and authority of a judge of the Superior Court of Justice by virtue of my office as a judge of the Court of Appeal for Ontario, I have not been assigned by the Chief Justice of Ontario to perform the work of a judge of the Superior Court of Justice, pursuant to s. 13(1) of the CJA, nor has anyone sought the consent of the Chief Justice of the Superior Court, which s. 13(1) also requires. This may not entirely preclude me from exercising my jurisdiction under s. 13(2): see e.g., John v. Tonner, 2007 ONCA 321; Weenen v. Biadi, 2018 ONCA 288, para 12. However, I am not persuaded that it would be appropriate for me to do so in the circumstances here, where Ms. Yan did not attempt to follow the ordinary process for obtaining leave from a judge of the Superior Court.

[8] Second, and even more importantly, r. 38.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, has a number of important procedural requirements that must be complied with when an application is brought under s. 140(3) of the CJA. These include a requirement that the Attorney General be served with the application materials and given an opportunity to respond: rr. 38.13(6) and (10). This has not been done.

[9] Ms. Yan’s motion is accordingly dismissed on the basis that she has not applied for or obtained leave from a judge of the Superior Court to bring her motion.

[10] The College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “CTCMPAO”), one of the two responding parties in this motion, seeks its costs in the amount of $5,000, all inclusive. I am satisfied that this is a reasonable figure, particularly since Ms. Yan requested that she be awarded this same amount of costs if her motion had been successful.

[11] Costs to the CTCMPAO are accordingly fixed at $5,000 all inclusive, payable by Ms. Yan forthwith. No costs are awarded to the second responding party, Mahadai Bahadur, who filed no materials and whose counsel did not appear at the hearing.

[12] I thank amicus curiae, Ms. Paterson, for her very helpful submissions.

“J. Dawe J.A.”