Segura Mosquera v. Peña, 2019 ONSC 7117

CITATION: Segura Mosquera v. Peña, 2019 ONSC 7117

DIVISIONAL COURT FILE NO.: 19-2568

DATE: 20191209

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Gladys M. Segura Mosquera Applicant

– and –

Jairo E Carrillo Peña Respondent

Gladys M. Segura Mosquera, self-represented

READ at Toronto: December 9, 2019

F.L. Myers J.

Reasons for Decision

[1] By endorsement dated November 20, 2019, Corbett J. directed the registrar to deliver a notice to the applicant in Form 2.1A to advise her that under Rule 2.1.01(1) of the Rules of Civil Procedure, RRO 1990. Reg. 194, her application is under consideration for dismissal for being frivolous, vexatious, or an abuse of the processes of the court. The applicant has delivered submissions in writing as provided for under Rule 2.1.

[2] On April 16, 2019, O’Bonsawin J. ruled on a motion that had been brought by the applicant in a family law proceeding. The applicant delivered a draft order to the court for signature by the judge. O’Bonsawin J. declined to sign the order in the form presented by the applicant. Rather, she signed the order that she viewed as the proper outcome of the motion that she had heard. The applicant asserts that the judge left out matters that ought to have been included in the order and that she altered her endorsement to that end.

[3] The applicant made efforts to have the judge change the order that she signed. She also sought leave to appeal to the Divisional Court from the outcome of the motion. In her leave to appeal proceeding, she did not wish to be limited to the matters contained in the signed and entered order. She wanted to appeal the matters that the judge had deleted from the draft order.

[4] The applicant declined to bring a motion to O’Bonsawin J. to submit her concerns. The applicant was convinced that the rules relating to settling the form of orders do not in this circumstance.

[5] O’Bonsawin J. scheduled a hearing on October 18, 2019 to afford all parties an opportunity to make submissions on whether there ought to be changes to the form of order that she had signed. The applicant submits that this hearing was improper. I am not certain from her submissions, but it appears that she did not attend. No changes were made to the order that day.

[6] The applicant then sought to schedule a motion in the Divisional Court for an order allowing her to perfect her application for leave to appeal without including in her application record a copy of the signed and entered order under appeal.

[7] By endorsement dated November 4, 2019, Corbett J. declined to schedule the proposed motion for an oral hearing. However, Corbett J. allowed the applicant to file a motion in writing explaining her concerns about the signed and entered order. The motion would be read by the panel that read the written leave to appeal application.

[8] Instead of taking up the process afforded by Corbett J., the applicant has commenced this application for judicial review of the decision of O’Bonaswin J. on October 18, 2019 to leave the order in the form that she had already signed and entered.

[9] By order dated December 4, 2019, the Divisional Court dismissed the application for leave to appeal from the order of O’Bonsawin J. as signed and entered.

[10] The applicant argues in her submissions under Rule 2.1 that this application is not re-litigating the leave to appeal application. Rather, she seeks to challenge the propriety of the proceeding on October 18, 2019 and what she refers to as Justice O’Bonsawin’s “unlawful attempts to alter her April 16, 2019 endorsement.” She asks the court to set aside the order signed by O’Bonsawin J. and in its place substitute the form of order that she submitted originally.

[11] An application for judicial review under the Judicial Review Procedure Act, RSO 1990, c J.1, and the prerogative writs at common law provide for judicial supervision of administrative tribunals or government decision-makers. They are not available to review the decision of a judge of the Superior Court of Justice. On this basis alone, the application cannot succeed and must be dismissed.

[12] In any event, the applicant’s mechanism to review the decision of O’Bonsawin J. was to seek leave to appeal to the Divisional Court. All of her concerns about the order signed (or not signed) by the judge were available to her to raise for appeal. That process has now ended. It is not open to the applicant to take a second proceeding to undermine the same order.

[13] The hearing on October 18, 2019 did not result in any change to the order as signed and appealed already. There is no substantive order from that day to appeal.

[14] This application is therefore dismissed.

[15] The respondent may take out the formal order dismissing this application without obtaining the approval of the applicant as to the form or content of the order.

___________________________ F.L. Myers J.

Released: December 9, 2019