Court File and Parties
Citation: Dawson v. Troup, 2020 ONSC 393 Divisional Court (Brampton) File No.: DC-19-41-00 Date: 2020-01-20
Superior Court of Justice – Ontario Divisional Court
Re: Clifford Chadwick James Dawson aka Chad, Applicant (Respondent) -and- Crystal Kimberly Troup, Respondent (Appellant)
Before: F.L. Myers J.
Counsel: Akbar Mohamed and Mohamed El Rashidy, for the Appellant
Read at Toronto: January 17, 2019
Endorsement
[1] The appellant seeks leave to appeal from the decision of Starr J. dated April 17, 2019 of the Ontario Court of Justice denying her costs of a motion due to her "unreasonable behaviour" despite her apparent success on the motion.
[2] The appellant initially moved for leave to appeal before Miller J. in Brampton sitting as a single judge of this court. Miller J. dismissed the motion for leave to appeal without prejudice to the appellant's right to bring the motion for leave to appeal in writing to a panel of the court in accordance with the current Practice Direction.
[3] The appellant has now moved for leave to appeal in writing before a panel as was left open by Miller J.
[4] At the direction of a judge the registrar delivered a notice to the appellant to advise her that the court is considering dismissing the motion for leave to appeal to a panel for being frivolous, vexatious or an abuse of process under Rule 2.1.02(1) of the Rules of Civil Procedure, RRO 1990, Reg 194.
[5] The judge referred to s. 48 of the Family Law Act which provides that an appeal lies from the Ontario Court of Justice to the Superior Court of Justice under Part III of the Family Law Act. The judge wrote that "I know of no basis for the Divisional Court to have jurisdiction over family law appeals."
[6] The appellant is represented by counsel who filed submissions under Rule 2.1. Counsel argues first that appeals from costs awards require leave to appeal under s. 133(b) of the Courts of Justice Act, RSO 1990 c C.43. They argue that s. 19(1.2)(a) of the Courts of Justice Act grants jurisdiction to the Divisional Court to hear an appeal from any order where the quantum under appeal is less than $50,000 as is the case here. Moreover, counsel refers to s. 21.9.1 of the Courts of Justice Act that deems appeals listed in a specific schedule as being made to the Divisional Court despite an indication in another statute that the appeal is to the Superior Court of Justice. They say that the relevant schedule lists appeals under the Family Law Act (except Part V of that statute) as being among those that are to be heard by the Divisional Court rather than the Superior Court of Justice.
[7] However, as I read the statutory provisions relied upon by the appellant, they appear to refer to appeals from decisions of a judge of the Superior Court of Justice rather than the Ontario Court of Justice as is the case here. I am very doubtful that the Divisional Court has jurisdiction to hear the proposed appeal.
[8] Counsel also relies upon case law that discusses the confusing state of the appeal routes in family law cases. Should the court find that it lacks jurisdiction, counsel requests that the court resolve the motion for leave to appeal efficiently, with the judges relying on their capacities as judges of the Superior Court of Justice if necessary, rather than ping-ponging them back to the Superior Court. They rely on Godard v Godard, 2015 ONSC 3114 at para. 2, in which a panel of this court resolved a motion for leave to appeal that ought to have been brought to a single judge under prevailing practice at that time.
[9] For me to reach that conclusion on the question of jurisdiction in light of the submissions of the appellant, I would require further submissions from her counsel and the respondent. The matter would then start to look like a motion in writing. The question arises as to why this motion is being dealt with using the attenuated process of Rule 2.1 rather than a motion to quash in the ordinary course.
[10] In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal set out the parameters for access to Rule 2.1 as follows:
Under this line of authority, the court has recognized that 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. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.
… This approach is summarized in Raji, at paras. 8-9, as follows:
[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion…. [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1…. This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case. [Emphasis added.]
[11] In this motion, counsel advance a legal argument in a confusing subject area. They were sent here by a judge of the court. There is no indication on the face of the appeal materials that the appellant is being abusive, vexatious, querulent, dilatory, or would otherwise present a systemic problem if a motion to quash the appeal were required. I can see no basis in the materials filed for me to reach the necessary conclusion to justify the use of the attenuated process of Rule 2.1 in this case.
[12] I therefore decline to make an order dismissing the motion for leave to appeal under Rule 2.1.02.
[13] The respondent remains free to bring a motion to quash the motion for leave to appeal if he is so advised. Otherwise, the motion for leave to appeal is to be listed for hearing in writing by a panel in the ordinary course.
F.L. Myers J.
Date: January 20, 2020