Court File and Parties

CITATION: Bernard v. Fuhgeh, 2020 ONSC 235 DIVISIONAL COURT FILE NO.: 417/19 DATE: 20200113

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Marie Marielle Edith Bernard, Applicant (Responding Party) -and- William Ndze Fuhgeh, Respondent (Moving Party)

BEFORE: F.L. Myers J. READ at Toronto: January 13, 2020

Endorsement

This Proceeding

[1] By Endorsement dated December 18, 2019, Corbett J. directed the registrar to provide notice to Mr. Fuhgeh that the court was considering dismissing his appeal proceedings for being frivolous, vexatious, or an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure, RRO 1990, Reg 194.

[2] Mr. Fuhgeh, who is a lawyer, has delivered written submissions in response to the two notices that were sent to him.

Background

[3] Mr. Fuhgeh is or was party to two family law proceedings each involving a different child and mother. In the proceeding with Ms. Bernard, Mr. Fuhgeh withdrew his answer. As a result, on December 18, 2017, the court made a final order at an uncontested trial. The order provides Mr. Fuhgeh with supervised access to the parties’ child whom I refer to as WB.

[4] Then, in the proceeding involving the other child and mother, Mr. Fuhgeh brought a motion seeking relief involving both mothers. Among the relief sought by Mr. Fuhgeh was an order for temporary “without prejudice” unsupervised access to his child WB.

[5] By Endorsement dated July 2, 2019, J. Mackinnon J. held that Mr. Fuhgeh was not entitled to bring a motion in a different proceeding to challenge the final trial order dated December 18, 2017 concerning Ms. Bernard and WB. J. Mackinnon J. noted that the proper process to change a final order is for Mr. Fuhgeh to issue an originating process in a Motion to Change proceeding.

[6] The order made by J. Mackinnon J. ended Mr. Fuhgeh’s effort in the other proceeding to change the final order of supervised access regarding WB. Although, at that stage, all that Mr. Fuhgeh sought was an interim order, the order made by J. Mackinnon J. was a final order as it ended the substantive issue of whether Mr. Fuhgeh could change the final order and obtain an unsupervised access order in relation to WB in the proceeding involving the other child and mother.

[7] Mr. Fuhgeh sought leave to appeal to this court from the order made by J. Mackinnon J. dated July 2, 2019. A disagreement arose in drafting the formal order to reflect the endorsement of J. Mackinnon J. Mr. Fuhgeh brought the matter back on before J. Mackinnon J. in writing for clarification of whether her order was an interlocutory or a final order. By endorsement dated December 9, 2019, J. Mackinnon J. held that her order was a final order for the reason set out above (i.e. it finally disposed of the substantive matter before the court).

[8] By a 20-page notice of motion dated December 13, 2019, Mr. Fuhgeh asks a panel of this court to determine whether the order of J. Mackinnon J. dated July 2, 2019 was final or interlocutory. He seeks leave to appeal from both the July 2, 2019 and the December 9, 2019 orders if they are interlocutory. If the orders are final, he seeks an order transferring his motions for leave to appeal to the Court of Appeal.

[9] In his Endorsement dated December 18, 2019 directing that these matters be reviewed under Rule 2.1, Corbett J. wrote:

Ms. Bernard asks that the motion for leave to appeal be dismissed because the underlying motion is final. This appears to be correct. The Registrar shall give notice that the court is considering dismissing the motion pursuant to R. 2.1 as frivolous, vexatious, and an abuse of process because it is in the wrong court.

Mackinnon J. has recently settled the impugned order and issued an endorsement finding that the order is final and shall be signed as a final order. Mr. Fuhgeh wishes to move for leave to appeal this recent decision. The Registrar shall likewise issue a notice pursuant to R. 2.1 on the basis that (1) Mackinnon J’s recent endorsement merges into the first order and may not be appealed separately; (2) the proposed appeal cannot possibly meet the test for leave to appeal, and so is frivolous and vexatious and an abuse of process.

Mr. Fuhgeh’s Submissions under Rule 2.1

[10] Mr. Fuhgeh’s written submissions in response to the notices sent to him under Rule 2.1 commence with a request that the court transfer his proceedings to the Court of Appeal.

[11] In his submissions, Mr. Fuhgeh objects to the final order that allows him supervised access to WB. Mr. Fuhgeh likens the supervised access order to psychological imprisonment in a “cage-like structure of a supervised access room to be observed with his sons exercising access to him as if Mr. Fuhgeh, a practicing lawyer in good standing, has become some out-of-control gorilla”. He argues that the order for supervised access, like “[c]hains and cage-like structures, physical or virtual, are not positive conceptual reminders for a black male who is conscious of the history of black persons of slavery and colonialism.”

[12] Mr. Fuhgeh is so opposed to the manner of access ordered by the court that he declined to exercise access at all and did not see his son WB for the 19 months from the time the final order was made until the matter was heard by J. Mackinnon J. in July of last year. (I do not know whether he has exercised any access since that time.)

[13] At para. 10 of his submissions, Ms. Fuhgeh accepts the view expressed by Corbett J. that the order of J. Mackinnon J. dated July 2, 2019 was a final order. He suggests that Corbett J. perhaps was unaware of his request to have the matter transferred to the Court of Appeal and instead directed the issuance of the Rule 2.1 notice in error. This is not likely since Corbett J. referred to the motion expressly. Perhaps he was of the view that since the order date July 2, 2019 was a final order (as now acknowledged by Mr. Fuhgeh) there is no basis to challenge that holding as made by J. Mackinnon J. on December 9, 2019.

[14] Mr. Fuhgeh’s submissions then discuss his upset at having his mental health questioned in the Family Court. He spends several pages discussing his need to appeal from the dehumanization that he believes his sons and he have suffered as a result of the allegations made against him in these proceedings. He concludes with the following submission:

23. Fairness, equality and multiculturalism are basic Canadian values. It would be unfair to stigmatize Mr. Fuhgeh as bringing a frivolous, vexatious and abuse of process motion just because he moved in the wrong court, something many litigants do everyday as we try to understand the complexity of what is a final or interlocutory Decision, and Mr. Fuhgeh indeed sought Direction from the Divisional Court in face of this uncertainty, which appellate courts encourage litigants to do to have clarifications.

24. In line with His Honour’s December 18, 2019 Endorsement that the December 9, 2019 Decision of MacKinnon J. merges with the July 5, 2019 Decision, I respectfully request that both proceedings be accordingly transferred to the Court of Appeal, safeguarding my right of appeal as I already seized the appellate court for review, albeit the wrong court.

Analysis

[15] The concepts of frivolous and vexatious proceedings were described by the Court of Appeal in Currie v. Halton Regional Police Services Board, 2003 ONCA 7815:

[14] Black’s Law Dictionary defines “frivolous” as: “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”.

[15] In Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220 at 226, Howland, C.J.O. considered the meaning of “vexatious” under the Vexatious Proceedings Act, R.S.O. 1970, c. 481:

The word “vexatious” has not been clearly defined. Under the Act, the legal proceedings must be vexatious and must also have been instituted without reasonable ground. In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground. As a result the proceedings were found to constitute an abuse of the process of the Court. An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction: Stevenson v. Garnett, [1898] 1 Q.B. 677 at pp. 680-1; Re Langton, [1966] 3 All. E.R.

[16] At para. 17, the court concluded, “What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process”.

[17] Mr. Fuhgeh conceded that his motion for leave to appeal from the July 2, 2019 order has been brought in the wrong court. Therefore, as currently conceived in this court, the motion for leave to appeal clearly has no merit. I wish to be equally clear that this finding is solely based on the merits and involves no finding of fault or other stigmatization of Mr. Fuhgeh. As he noted, the question of whether an order may be interlocutory or final for the purposes of appeal can be complex.

[18] Mr. Fuhgeh also acknowledges that Corbett J. found that the December 9, 2019 decision of J. Mackinnon J. finding that her July 2, 2019 order was a final order is not a separate order but merges with the July 2, 2019 order. Yet he asks to keep alive his effort to appeal from the December 9, 2019 finding. That too strikes me as a frivolous proceeding for the reasons given by Corbett J. and because Mr. Fuhgeh now acknowledges that Mackinnon J. was correct.

[19] I also find that Mr. Fuhgeh’s motion materials and the written submissions he delivered display the hallmarks of vexatious proceedings and provide the basis for use of the attenuated process of Rule 2.1. See: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. It would be abusive to subject Ms. Bernard and the court to a motion to quash the appeal in light of the scatter-gun and scandalous allegations made by Mr. Fuhgeh in face of his admission that he is in the wrong court.

[20] Mr. Fuhgeh asks the court to exercise its discretion to transfer his motions for leave to appeal to the Court of Appeal under s.110 of the Courts of Justice Act, RSO 1990 c C.43. In light of my findings that both elements of the Scaduto test are made out, I am not prepared to exercise the court’s discretion to make an order under s. 110 in this case.

[21] I take Mr. Fuhgeh’s submissions that he has “seized the appellate court for review” as more accurately stating an argument that he displayed an intention to appeal and acted on that intention on a timely basis. Those may be submissions for him to make at the Court of Appeal if he requires a motion to extend the time to appeal to that court. However, I leave the question of whether he will move before the Court of Appeal and the format of any proposed appeal for Mr. Fuhgeh’s consideration.

[22] Mr. Fuhgeh’s motion for leave to appeal from the order of J. Mackinnon J. dated July 2, 2019 and his motion for directions or alternatively leave to appeal from the order of J. Mackinnon J. dated December 9, 2019 are therefore dismissed.

[23] If Ms. Bernard seeks any order for costs as a result of this order, she may serve Mr. Fuhgeh and file with the office of the Registrar of the Divisional Court no more than three pages of costs submissions by the close of business on January 24, 2020. Mr. Fuhgeh may respond by no more than three pages of submissions served on Ms. Bernard and filed with the office of the Registrar of the Divisional Court by the close of business on February 5, 2020. In addition to her three pages of written submissions, Ms. Bernard shall provide copies of all invoices or other proof of payment of any amounts for which she seeks reimbursement by way of a costs order.

F.L. Myers J.

Date: January 13, 2020