Court of Appeal for Ontario

Date: 2026-02-18 Docket: M56528 (C68734)

Roberts, Paciocco and Favreau JJ.A.

Parties

Between:

2257573 Ontario Inc. — Plaintiff/Defendant by Counterclaim (Respondent/Responding Party)

and

Alex Aiden Fitzgerald Furney also known as Alex Furney*, Maryam Furney* and Hassan Hashemi — Defendants/Plaintiffs by Counterclaim (Appellants*/Moving Parties*)

Counsel

Alex Aiden Fitzgerald Furney and Maryam Furney, acting in person

Howard W. Reininger, for the respondent/responding party [^1]

Heard

In writing

Determination pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with respect to the motion to re-open the appeal from the judgment of Justice James R. H. Turnbull of the Superior Court of Justice, dated October 14, 2020, with reasons reported at 2020 ONSC 6002.

Reasons for Decision

[1] On June 30, 2022, this court dismissed the moving parties' appeal: 2257573 Ontario Inc. v. Furney, 2022 ONCA 505, leave to appeal dismissed, [2022] S.C.C.A. No. 320. They appealed the motion judge's order granting summary judgment against them under four mortgages held by the responding party.

[2] By notice of motion dated December 5, 2025, the moving parties sought to re-open the dismissal of their appeal by this court. The Registrar advised the parties by notice dated December 16, 2025, that this court was considering making an order staying or dismissing their motion to re-open, under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and asked the parties to make written submissions as to why the motion should not be dismissed. Submissions have been received in accordance with the notice.

[3] Under r. 2.1.02(1) of the Rules, this court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. The governing principles that guide this court's consideration of whether to stay or dismiss a proceeding under r. 2.1 are well-established. While the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process, it is not for close calls, with the use of the rule being limited to the clearest of cases: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 8, leave to appeal refused, [2015] S.C.C.A No. 488; Robson v. Law Society of Ontario, 2023 ONCA 860, at para. 3. A proceeding that has no chance of success and seeks to re-litigate matters previously determined is frivolous, vexatious, and an abuse of process: Damallie v. Ping, 2017 ONCA 146, at paras. 10-12.

[4] The present case is not a close call. The motion to re-open is frivolous, vexatious, and an abuse of process. The moving parties have no chance of meeting the high hurdle necessary to re-open an appeal after the appeal decision. The court will re-open an appeal only in the rare circumstances where it is in the interests of justice to do so: McGrath v. Joy, 2023 ONCA 46, 166 O.R. (3d) 302, at para. 15.

[5] In addition to the lengthy, inadequately explained delay in bringing this motion, the moving parties have not raised the kind of rare circumstances to warrant re-opening the appeal but seek rather to re-litigate their finally determined liability under the mortgages by raising clearly unsustainable allegations of fraud and other serious misconduct against the mortgagees and counsel. Moreover, many of these allegations, as spurious as they appear, were or could have been previously raised before the motion judge or this court.

[6] It was not disputed before the motion judge or this court on appeal that advances had been made under those mortgages and that the moving parties had not attempted to repay even the amounts that they agreed were owing under them.

[7] The principal issue before this court was whether the responding parties were entitled to any interest on the mortgages given their concession that the interest, fees, penalties and other amounts charged under the mortgages amounted to a criminal rate of interest, contrary to s. 347 of the Criminal Code, R.S.C. 1985, c. C-46. The moving parties alleged that the motion judge erred by granting interest to the responding party, as their "misconduct" precluded any interest. This court disagreed and upheld the motion judge's decision to award interest at the rates agreed upon by the parties.

[8] This is one of those clearest of cases where the court should exercise its gatekeeping function under r. 2.1 to dismiss this motion.

[9] Accordingly, the motion to re-open is dismissed.

"L.B. Roberts J.A."

"David M. Paciocco J.A."

"L. Favreau J.A."

[^1]: The responding party did not deliver submissions.