CITATION: Fuhgeh v. Stewart, 2021 ONSC 3053

DIVISIONAL COURT FILE NO.: DC-20-419

DATE: 2021/04/26

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO

RE: Kimberley Melissa Stewart, Respondent

AND

William Ndze Fuhgeh, Appellant

AND RE: Marie Marielle Edith Bernard, Respondent

AND

William Ndze Fuhgeh, Appellant

AND

Marc Coderre, Marie-Hélène Godbout, Intervenors

BEFORE: Ryan Bell J.

HEARD at Ottawa: In writing

ENDORSEMENT

This Proceeding

[1] By notice of appeal and supplementary notice of appeal, Mr. Fuhgeh seeks to appeal Shelston J.’s decision dated June 17, 2020[^1] and the related August 10, 2020 costs decision. Shelston J.’s decisions were made in two family law proceedings, each involving a different mother and child.

[2] In response, Ms. Bernard and the Intervenors[^2] requested that the Divisional Court make an order pursuant to Rule 2.1.01 of the Rules of Civil Procedure, R.R.O. Reg. 194 dismissing Mr. Fuhgeh’s appeal proceedings as frivolous, vexatious or otherwise an abuse of the process of the court.

[3] On December 1, 2020, Labrosse J. directed the registrar to provide notice to Mr. Fuhgeh that the court was considering dismissing his appeal proceedings for being frivolous, vexatious, and an abuse of process under Rule 2.1.01, noting that “[t]he jurisdiction of the Divisional Court is a very live issue.”

[4] Mr. Fuhgeh, who is a lawyer, delivered written submissions in response to the notice that was sent to him. The court received written submissions from Ms. Bernard and from the Intervenors. Mr. Fuhgeh also delivered reply submissions.

Background

[5] In the Bernard proceeding, Audet J. made a final order on December 18, 2017, following an uncontested trial. Mr. Fuhgeh had previously withdrawn his answer. As part of her order, Audet J. ordered Mr. Fuhgeh to pay Ms. Bernard her costs, inclusive of all costs awards previously made by the court in the proceeding.

[6] In the Stewart proceeding, Audet J. made two orders on December 18, 2017. She awarded Ms. Stewart her costs in replying to Mr. Fuhgeh’s motion to change the final order of Kershman J. dated January 21, 2014 regarding access and child support. Mr. Fuhgeh had previously filed a notice of withdrawal of his motion to change. Audet J. also made a temporary order that Mr. Fuhgeh have supervised access to his child (Joshua) in Ms. Stewart’s motion to change the access provisions of Kershman J.’s final order.

[7] Mr. Fuhgeh did not appeal these decisions, but on December 3, 2018, he brought a motion to set aside Audet J.’s uncontested trial decision in the Bernard proceeding, to set aside Audet J.’s temporary supervised access order in the Stewart proceeding, to set aside his withdrawal of his motion to change in the Stewart proceeding, and all associated costs orders.

[8] In support of his motion, Mr. Fuhgeh filed an affidavit and exhibits, totaling more than 2000 pages in which Mr. Fuhgeh made various claims for relief, including setting aside all notices of garnishment and final orders of Audet J. and the underlying interim and interlocutory orders, disqualifying Sicotte Guibault LLP and the Intervenors as solicitors for the applicants, staying the final orders issued by Audet J. and the underlying interim and interlocutory orders, setting aside the order of Audet J. appointing herself as case management judge, and an order granting immediate access to both children on a 50/50 basis.

[9] In his capacity as case management judge, Shelston J. conducted several case management conferences and made orders, including that Mr. Fuhgeh serve and file a new affidavit, and identify the 2017 interlocutory orders he was seeking to set aside. Mr. Fuhgeh provided a new affidavit dated April 26, 2019. At para. 29 of his endorsement, Shelston J. observed that in his April 26, 2019 affidavit, Mr. Fuhgeh was seeking to rely on 2055 pages of exhibits in his previous affidavit.

[10] On November 25, 2019, Mr. Fuhgeh identified the orders in the Bernard and Stewart proceedings that he was seeking to set aside.

[11] In his June 17, 2020 endorsement, Shelston J. considered three issues in relation to Mr. Fuhgeh’s motion:

i. Should Mr. Fuhgeh be permitted to move to set aside interim and interlocutory orders made prior to the final uncontested trial decision of Audet J. in the Bernard proceeding?

ii. Should Mr. Fuhgeh be permitted to move to set aside two final orders made in 2013 and 2014 in the Stewart proceeding?

iii. Should the court strike all or part of Mr. Fuhgeh’s affidavit dated April 26, 2019?

[12] Shelston J. ordered that Mr. Fuhgeh would not be permitted to move to set aside the 2013 final order of Roberston J. and the 2014 final order Kershman J. in the Stewart proceeding and that Mr. Fuhgeh would not be permitted to set aside the interim and interlocutory orders made in 2017 in the Bernard proceeding. Shelston J. also struck Mr. Fuhgeh’s affidavit on the basis that the affidavit sought to relitigate the interlocutory proceedings and was in breach of his amended case management endorsement. Shelston J. ordered that a new affidavit not to exceed 30 pages be filed, addressing only the grounds on which he was seeking to set aside Audet J.’s final order of December 18, 2017. On August 10, 2020, Shelston J. ordered Mr. Fuhgeh to pay Ms. Bernard and the Intervenors their costs.

[13] By Notice of Appeal dated July 16, 2020, Mr. Fuhgeh seeks to appeal, to this court, Shelston J.’s June 17, 2020 order, and in his Supplementary Notice of Appeal, Mr. Fuhgeh seeks leave to appeal Shelston J.’s costs order.

Mr. Fuhgeh’s Submissions Under Rule 2.1

[14] As a preliminary issue, Mr. Fuhgeh submits that this proceeding under Rule 2.1 and the registrar’s notice are a nullity for want of jurisdiction.

[15] On the substantive issue, Mr. Fuhgeh asserts that a motion to quash, and not Rule 2.1, is the appropriate route to address a “live jurisdictional issue.” Mr. Fuhgeh submits that his appeal lies to this court.

[16] Mr. Fuhgeh’s Notice of Appeal includes the following:

Mr. Fuhgeh has been the subject of very dehumanizing, degrading and insulting comments, sarcasms, embellishment and misstatement of facts by Shelston J.

Abuse of process and breach of Order is not a tool of revenge to be abused to stigmatize and demonize a party that Shelston J. has antipathy against given his words, gestures and actions. Shelston J. abused his judicial authority over Mr. Fuhgeh.

[17] With regard to Shelston J.’s amended case management endorsement and the new affidavit he was ordered to file, Mr. Fuhgeh states in his notice of appeal “[i]t now appears this is a trap set for Mr. Fuhgeh with ambiguity of what he was expected to do.”

[18] In his supplementary notice of appeal, Mr. Fuhgeh asserts that “[n]o party should be treated with such disdain and overt discrimination by Shelston J.” and that, “Shelston J. has antipathy and hatred against Mr. Fuhgeh, was hostile, mean and disrespectful towards Mr. Fuhgeh, repeatedly making denigrating, sarcastic, insulting comments with racial undertones against Mr. Fuhgeh.”

[19] Mr. Fuhgeh begins his reply submissions by describing the responding submissions of Ms. Bernard and the Intervenors in the following terms:

The post has now been shifted to see if anything thrown on the wall will stick on me. This is an impermissible fishing expedition, abuse of process, it is vexatious, it is trifling with the court, depleting scarce judicial resources, forcing me to work without pay to reply.

[20] Mr. Fuhgeh’s reply submissions include a request that Ms. Sack and her firm be removed as counsel for the Intervenors.

Analysis

[21] As a preliminary matter, Mr. Fuhgeh asserts that because the orders of Shelston J. had not been issued and entered when the Rule 2.1 notice was issued on December 1, 2020, this proceeding and the notice are “null and void, a nullity at law for want of jurisdiction.”

[22] Mr. Fuhgeh’s submission is without merit. Rule 59.01 of the Rules of Civil Procedure expressly provides that an order is effective from the date on which it is made, unless the order provides otherwise: see also Fontaine v. Canada (Attorney General), 2012 ONCA 206, at paras. 58-59. There is no basis in this case upon which to depart from this settled principle.

[23] Rule 2.1 has typically been invoked to dismiss proceedings where the opposing party has engaged in abusive litigation conduct; it is “not for close calls” and its availability “is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Collins v. Ontario, 2017 ONCA 317, at para. 17; Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at paras. 7-9.

[24] Absence of merit on its own is not sufficient to justify dismissal under rule 2.1. As the Court of Appeal for Ontario stated in Collins at para 19,

Simpson, [Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806] at para. 43, makes it clear that a r. 2.1 request is not a substitute for a motion to quash and filing the appropriate materials. The rule does not replace the bringing of a motion to quash an appeal for want of jurisdiction or for lack of merit. However, it does allow for a speedy process for disposing of proceedings and motions that are on their face frivolous, vexatious or otherwise an abuse of process.

[25] In Currie v. Halton Regional Police Services Board, 2003 7815 (Ont. C.A.), 233 D.L.R. (4th) 657, the Court of Appeal reviewed what is meant by the terms frivolous, vexatious, and abuse of process. “Frivolous” is defined in Black’s Law Dictionary as “lacking a legal basis or legal merit; not serious; not reasonably purposeful”: Currie, at para. 14.

[26] The Court of Appeal discussed the term vexatious at para. 15 of Currie:

In Foy v. Foy (No. 2) (1979), 1979 1631 (ON CA), 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. 576.

[27] Abuse of process has been described as an “intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy”: Currie, at para. 16, citing Finlayson J.A. for the majority in Canam Enterprises Inc. v. Coles, 2000 8514 (Ont. C.A.), 51 O.R. (3d) 481, rev’d on other grounds, 2002 SCC 63, [2002] S.C.R. 307. Goudge J.A. for the minority in Canam wrote, at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.

[28] The Court of Appeal in Currie concluded at para. 17 that, “any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction.”

[29] Shelston J.’s order is final in nature because it resolved the substantive question of whether Mr. Fuhgeh could set aside the various interim and interlocutory orders made in the Bernard proceeding. It is also a final order because it determined the substantive issue of whether Mr. Fuhgeh could set aside the final orders made in the Stewart proceeding.

[30] Mr. Fuhgeh recognizes that his appeal is from a final order. In his notice of appeal, Mr. Fuhgeh identifies s. 19(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 as the basis of this court’s jurisdiction in respect of an appeal of a final order. Section 19(1)(a), which incorporates s. 19(1.2), does not provide Mr. Fuhgeh with an appeal route to this court because, with the exception of costs, Shelston J.’s order is entirely unrelated to monetary relief.[^3]

[31] In his written submissions, Mr. Fuhgeh also relies on ss. 6(1), 21.8, and 21.9.1[^4] of the Courts of Justice Act as providing this court with jurisdiction. In his reply submissions, Mr. Fuhgeh asserts that this court has jurisdiction because the “underlying proceedings here are custody and access proceedings Decisions under the CLRA I moved to set aside.” Section 6(1)(b) provides that an appeal lies to the Court of Appeal from a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a)[^5] or an order from which an appeal lies to the Divisional Court under another Act. I have already discussed s. 19(1)(a). This court does not have jurisdiction under s. 21.9.1 of the Courts of Justice Act because there is no statutory provision requiring that Shelston J.’s order be appealed to the Divisional Court.

[32] Therefore, as currently conceived in this court, Mr. Fuhgeh’s appeal has no merit.

[33] I also find that Mr. Fuhgeh’s appeal proceedings are abusive. They are a clear attempt by Mr. Fuhgeh to relitigate matters that have already been determined. For this reason, I conclude that Mr. Fuhgeh’s notice of appeal and written submissions provide the basis for the use of the attenuated process of Rule 2.1.

[34] The interlocutory orders in the Bernard proceedings identified by Mr. Fuhgeh in the notice of appeal are the following:

• Trousdale J.’s order dated June 27, 2017: Trousdale J. ordered the net proceeds of sale be held in trust by Michel Sicotte in a separate trust account pending further order of the court.

• Audet J.’s order dated August 3, 2017: Audet J. dismissed Mr. Fuhgeh’s motion for a declaration that the relief sought regarding the net proceeds of sale was urgent (as well as Ms. Bernard’s motion seeking a declaration to the contrary), and Mr. Fuhgeh’s request that Audet J. recuse herself.

• Audet J.’s order dated September 6, 2017: Audet J. made a series of orders dealing with disclosure.

• Audet J.’s order dated September 13, 2017: Audet J. granted Ms. Bernard costs in the amount of $6,000 relating to the August 3, 2017 motion.

• Audet J.’s order dated October 4, 2017: Audet J. denied Mr. Fuhgeh’s request to stay the proceedings pending the appeal process, granted Mr. Fuhgeh an extension to deliver his disclosure, and permitted the parties to proceed to questioning.

• Roger J.’s order dated November 14, 2017: Roger J. dismissed Mr. Fuhgeh’s request to stay the orders of Audet J. dated August 3, September 6, and September 16, 2017, and to consolidate his motion seeking leave to appeal.

• Sheard J.’s order dated November 21, 2017: Sheard J. appointed the Office of the Children’s Lawyer, established an access schedule, dismissed the recusal motion, and ordered costs to be determined by Audet J., the case management judge.

[35] Each of these interlocutory orders was made in the course of a litigation process that ended with Audet J.’s final order, made on December 18, 2017 following the uncontested trial. As set out in Shelston J.’s endorsement, Mr. Fuhgeh appealed, to this court, Audet J.’s orders dated August 3, September 6, September 13, and October 4, 2017 orders, but he filed a notice of discontinuance on November 22, 2017 and a notice of abandonment was served on February 27, 2018.

[36] The following examples confirm that Mr. Fuhgeh’s appeal is, on its face, an effort to relitigate matters that have already been determined. First, in her final December 18, 2017 order in the Bernard proceedings, Audet J. ordered that the net proceeds of sale of Ms. Bernard’s home being held in trust (pursuant to Trousdale J.’s order) be released to Ms. Bernard. The issue was substantively and finally determined by Audet J. at an uncontested trial. And yet Mr. Fuhgeh is attempting to reopen the matter by seeking to set aside the June 2017 interim order of Trousdale J.

[37] A second, related example: on August 3, 2017, Audet J. dismissed Mr. Fuhgeh’s motion that the relief he was seeking regarding the net proceeds of sale was urgent. Audet J. addressed the issue of the net proceeds of sale on a final basis in her December 18, 2017 order. On August 3, Audet J. also dismissed Mr. Fuhgeh’s recusal motion. Mr. Fuhgeh appealed Audet J.’s order and then discontinued his appeal. As set out in Shelston J.’s endorsement, Mr. Fuhgeh’s notice of discontinuance included the following statement:

As I have withdrawn my Answer and that proceeding due to the continuous racially motivated bias of Audet J. who self appointed herself as Case Management Judge and making subsequent Decisions rending [sic] any Appellate Decisions in this appeal from this Court moot and nugatory.

[38] And yet, in these appeal proceedings, he seeks an order that he be permitted to move to set aside the August 3, 2017 order, including Audet J.’s order appointing herself case management judge “as void ab initio.”

[39] I also note that as set out in Shelston J.’s endorsement, Mr. Fuhgeh’s notice of withdrawal of his answer in the Bernard proceeding identified several other judges of the East Region “who have heard interlocutory motions in this matter [who] have exercised the same bias [as Audet J.] in their words, silence, actions and omissions.”

[40] A third example from the Bernard proceeding: Mr. Fuhgeh submits that an appeal of Audet J.’s September 6, 2017 order lies to this court. Mr. Fuhgeh previously filed a notice of discontinuance in respect of his appeal of Audet J.’s September 6, 2017 order. His present appeal is from the order of Shelston J., not orders made in 2017.

[41] A final example from the Bernard proceeding: on November 21, 2017, Sheard J. appointed the Office of the Children’s Lawyer and established an access schedule. Mr. Fuhgeh also asked that Sheard J. recuse herself. Sheard J. dismissed Mr. Fuhgeh’s recusal motion. Audet J.’s December 18, 2017 order addressed custody and access of the child on a final basis.

[42] The Stewart proceeding provides further examples of Mr. Fuhgeh’s attempts to relitigate matters that have been determined. The order of Robertson J. was a final consent order requiring Mr. Fuhgeh to pay child support. Although the order was made on consent, Mr. Fuhgeh appealed it. His appeal was dismissed. Kershman J.’s order, too, was a final order. Mr. Fuhgeh brought, and then withdrew, a motion to vary Kershman J.’s final order. It would be abusive and contrary to the objective of dealing with cases justly – which includes saving expense and time – to permit Mr. Fuhgeh to continue to relitigate these matters, particularly where he withdrew his own motion to vary.

[43] In summary, Mr. Fuhgeh’s appeal proceedings are a clear attempt to re-open matters that were determined by the court years ago. This is not a close call. To permit such proceedings to continue would be prejudicial to the respondents and the Intervenors, would detract from the objective of fair, just and timely decisions, and would bring the administration of justice into disrepute.

[44] I also find that Mr. Fuhgeh’s notice of appeal, supplementary notice of appeal, and his written submissions display the hallmarks of vexatious proceedings. Mr. Fuhgeh has made scandalous allegations against a judicial officer. He has accused counsel for the Intervenors, themselves lawyers who acted against him, and Ms. Bernard of “forcing me to work without pay to reply.” He has accused counsel of engaging in “explicit material misrepresentations” and seeks to have her disqualified. I find it would be abusive to subject Ms. Bernard and the Intervenors to a motion to quash the appeal in light of the scandalous and vexatious allegations made by Mr. Fuhgeh.

[45] As the Court of Appeal observed in Simpson, at para. 41, “[e]veryone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided.” It is clear from the history of these proceedings that Mr. Fuhgeh has repeatedly sought to re-litigate issues that have been previously decided. He has engaged in abusive litigation conduct. To permit Mr. Fuhgeh to persist in this fashion would be unfair to the opposing parties and to the administration of justice.

Conclusion

[46] For these reasons, the requests under Rule 2.1 are granted and Mr. Fuhgeh’s appeal proceedings from the orders of Shelston J. dated June 17 and August 10, 2020 are dismissed.

[47] If Ms. Bernard or the Intervenors seek any order for costs as a result of this order, they may serve Mr. Fuhgeh and file with the Office of the Registrar of the Divisional Court costs submissions no more than three pages in length by the close of business on May 7, 2021. Mr. Fuhgeh’s responding costs submissions are to be served on Ms. Bernard and the Intervenors by the close of business on May 18, 2021. In addition to their respective three pages of written submissions, Ms. Bernard and the Intervenors shall provide copies of all invoices or other proof of payment of any amounts for which they seek reimbursement by way of a costs order.

Ryan Bell J.

Date: April 26, 2021

CITATION: Fuhgeh v. Stewart, 2021 ONSC 3053

DIVISIONAL COURT FILE NO.: DC-20-419

DATE: 2021/04/26

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Kimberley Melissa Stewart, Respondent

AND

William Ndze Fuhgeh, Appellant

AND RE: Marie Marielle Edith Bernard, Respondent

AND

William Ndze Fuhgeh, Appellant

AND

Marc Coderre, Marie-Hélène Godbout, Intervenors

ENDORSEMENT

Ryan Bell J.

Released: April 26, 2021

[^1]: Stewart & Bernard v. Fuhgeh et al., 2020 ONSC 3789.

[^2]: Mr. Coderre and Ms. Godbout were previous counsel of record for Ms. Bernard and Ms. Stewart. On consent of Mr. Fuhgeh and Ms. Bernard, Mr. Coderre and Ms. Godbout were added by Shelston J. as parties to Mr. Fuhgeh’s motion to set aside the orders of Audet J.

[^3]: I note that s. 19(1)(a.1) of the Courts of Justice Act did not come into force until March 1, 2021. Pursuant to the transitional provisions, s. 19(1)(a.1) has no application to Mr. Fuhgeh’s appeal because the appeal was commenced before March 1, 2021.

[^4]: Section 21.9.1 of the Courts of Justice Act was repealed effective March 1, 2021.

[^5]: Section 6(1)(b) of the Courts of Justice Act also now refers to s. 19(1)(a.1).