Court File and Parties

CITATION: Kim v. McIntosh, 2021 ONSC 3576

DIVISIONAL COURT FILE NO.: 56/20, 71/20 and 119/21

DATE: 20210517

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Anita Kim, Responding Party

AND:

Adan McIntosh, Moving Party

BEFORE: D.L. Corbett J.

COUNSEL: Mr. McIntosh, self-represented Moving Party

No one appearing, for the responding party

HEARD in writing at Toronto: May 17, 2021

Endorsement

[1] I am satisfied that Mr McIntosh’s explanation for his delay is sufficient that his motion for leave to appeal the costs order of Nakonechny ought not be dismissed pursuant to R.2.1. It is now for Mr McIntosh to serve and then upload his motion materials for the motion for leave to appeal. I provide directions for him to do this at the end of this endorsement. This motion is not in any sense urgent and is scheduled on a more relaxed timetable than the other motion for leave to appeal.

[2] In respect the request to review of the order of Favreau J., Mr McIntosh states in his submission in response to the R.2.1 motion that he believed that he had to seek leave to appeal that decision and so he relied on the deadline for bringing a motion for leave to appeal, rather than the deadline for a motion to review the order of a single judge of the Divisional Court. The court has seen an email from Mr McIntosh dated February 8, 2021, requesting to bring a motion for leave to appeal the order of Favreau J. The court has not seen any other documentation that establishes an earlier date by which Mr McIntosh took steps to review or seek leave to appeal the order of Favreau J. If Mr McIntosh did take any steps prior to February 2021, he is to provide full particulars to the court, after which the court will decide the R.2.1 issue.

[3] Mr McIntosh is also seeking leave to appeal an order of Shore J. dated January 28, 2021. That motion was brought on time. Mr McIntosh may serve his motion materials for this motion for leave to appeal and upload them to CaseLines forthwith. He should send an email to this court to advise when he has done this; the court will then give further directions.

[4] In respect to the motion for leave to appeal the costs order of Nakonechny, J., Mr McIntosh shall serve and upload his motions materials by June 25, 2021, and shall confirm to this court by email when he has done so. The court will then give further directions.

[5] Ms McIntosh also seeks a stay of the order of Nakonechny J. pending his motion for leave to appeal. He may serve and upload his motion for a stay to CaseLines after which he shall advise this court that he has done so and the court will provide further directions.

[6] Mr McIntosh shall provide any further information and documents he has to explain his delay in seeking review of the order of Favreau J. by June 11, 2021, after which the court will decide the R.2.1 issue in respect to that issue.

[7] The court regrets the delay in adjudicating the R.2.1 issue. As the parties will understand, the court has a high volume of hearing requests and limited resources because of COVID-19. While the court has permitted the motion for leave to appeal the costs order to proceed and has not yet decided whether it will permit the review of Justice Favreau’s order to proceed, those proceedings are markers of vexatious behavior. Costs orders are highly discretionary, and leave is seldom granted in respect to them. Favreau J. denied Mr McIntosh’s requested extension because the underlying appeal – of an order extending an interim order – is without merit. Mr McIntosh has outstanding costs order, he is in this court on a fee waiver, and every step he takes in the litigation may put the other side to expense.

[8] Mr McIntosh has purported to seek to bring a motion seeking leave to appeal case management directions given by this court. A further R.2.1 notice will be issued in respect to that motion in due course.

D.L. Corbett J.

Date: May 17, 2021