Court File and Parties
CITATION: Delicious Eats Inc. v. Manikumar, 2021 ONSC 3574
DIVISIONAL COURT FILE NO.: 075/21
DATE: 20210517
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Delicious Eats Inc., Responding Party
AND:
Ranjan Manikumar, Moving Party
BEFORE: D.L. Corbett J.
COUNSEL: Fadi Matthew Kazandji, for the Moving Party
No one appearing, for the Responding Party
HEARD in writing at Toronto
ENDORSEMENT
[1] In my capacity as administrative judge of the Divisional Court, on March 3, 2021, I directed the Registrar to give notice to the appellant that the court is considering dismissing this appeal as frivolous, vexatious and/or an abuse of process. My direction was provided to the appellant and explained the basis of the court’s concerns as follows:
Justice Corbett directs me to advise you as follows:
The court directs the Registrar to give notice to the appellant that the court is considering dismissing the appeal pursuant to R.2.1.01 as frivolous, vexatious and an abuse of process, for the following reasons:
The three decisions of the Small Claims Court in this matter were all made in the first half of 2019. The deadline to appeal was 30 days. No motion has been brought or order made granting an extension of time in which to bring the appeal.
On the face of the appeal, the appellant purports to appeal the first decision of the Small Claims Court on the basis of reasons which were or should have been raised with the Small Claims Court on the motion brought in that court to set aside the first decision. As such, the appeal appears to be a collateral attack on the second and third decisions of the Small Claims Court, when any appeal ought to be brought from those decisions rather than the first decision. This issue was raised with the appellant during case management, he was given an opportunity to amend his notice of appeal to address this issue properly, and his appeal, as currently framed, still appears to be a collateral attack on the second and third decisions.
[2] Through administrative oversight, the formal notice pursuant to R.2.1.01 was not sent to the appellant until April 27, 2021. That notice states as follows:
Good Afternoon,
Further to the directions below, please find attached notice issued by the Registrar pursuant to rule 2.1.
Please note that an unsigned copy of the Divisional Court’s notice is attached. As a result of the COVID crisis, it is not currently possible to transmit a copy of the signed notice. However, the notice is effective as of the date it is sent that is, the date of this email. A copy of the notice bearing the signature of the Registrar will be placed in the Court file in due course, perhaps not until after resumption of ordinary court operation.
The Registrar included a copy of the earlier direction from the court below the email attaching the notice pursuant to the Notice under R.2.1.01.
[3] The Notice pursuant to R.2.1.01 stated as follows:
TO: ANJAN MANIKUMAR
The court is considering making an order staying or dismissing this proceeding under Rule 2.1.01 because it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
THIS PROCEEDING WILL BE STAYED OR DISMISSED unless, within 15 days of receiving this notice, you file with the court a written submission, no more than 10 pages in length, responding to this notice. If you do not file a written submission that complies with this notice and Rule 2.1.01, the court may order this proceeding stayed or dismissed without further notice.
A copy of your submission may be given to any other party if the court directs it.
[4] In response, by email sent May 12, 2021, counsel for the appellant provided the court with a notice of motion for leave to appeal seeking leave to appeal to the Divisional Court from my order of April 17, 2021. In particular, the notice of motion seeks an order “granting leave to the Defendant to appeal to the Divisional Court from an order of the Honourable Justice Corbett dated April 17, 2019, which ruled a default judgement against the Defendant.” The notice of motion indicates that the moving party relies upon “the order and reasons of Justice Corbett dated April 17, 2019.”
[5] This court is now baffled by the approach of the appellant to this matter. The appellant is represented by a lawyer. This court’s directions should have been clear to a lawyer. The appellant is out of time to appeal the Small Claims Court decisions from 2019. He would have to bring a motion for an extension of time in order to appeal those decisions. This court, in the course of case managing this case, asked the appellant to explain his delay to assess whether there was any arguable basis on which an extension could be granted. The appellant’s response to these concerns led this court to a concern that there was no arguable basis on which an extension could be granted in this case, and that the respondent should not be put to the expense of defending an extension motion. Notice of these concerns was given to the appellant on March 3, 2021, but through oversight the appellant has actually had more than two months to respond to the court’s concerns, as reflected in the notice pursuant to R.2.1.01.
[6] The appellant has responded, not by answering the R.2.1.01 notice, but by purporting to bring a motion. But instead of purporting to bring a motion for an extension, he has brought a motion for leave to appeal. An extension and leave to appeal are entirely different motions. No motion for leave to appeal is required or permitted from a decision of the Small Claims Court. It only adds to the court’s concerns that the appellant has misidentified me as the Small Claims Court Deputy Judge who made a decision in his case in April 2019. With the greatest of respect, no matter how small a matter may be, counsel needs to take more care about papers he is submitting to the court in his professional capacity on behalf of a client.
[7] I have directed the Registrar to issue a notice pursuant to R.2.1.01 in respect to the motion for leave to appeal.
[8] I am concerned that the appellant does not understand what is required of him pursuant to the notice under R.2.1.01. The court has explained why it is concerned that there is no arguable basis to grant him an extension. He should respond to those concerns forthwith, not by way of a motion, but by way of written submissions, which may be set out in an email or letter. The court will accord the appellant a further ten days to answer this request, after which the court will issue its R.2.1.01 decision.
[9] The respondent is directed not to respond to these matters unless the court subsequently directs otherwise.
D.L. Corbett J.
Date: May 17, 2021