Court File and Parties
Citation: Gallagher v. Henri, 2021 ONSC 5373
Divisional Court File No.: 596/20
Date: 2021-08-05
Superior Court of Justice – Ontario
Divisional Court
Re: Karen Gallagher, Responding Party
And: Ephraim Henri, Moving Party
Before: D.L. Corbett J.
Counsel: Mr Henri, self-represented Appellant
Heard: In Writing, In Chambers
Endorsement
[1] By Notice of Motion dated November 26, 2020, Mr Henri initiated a motion for an extension of time in which to appeal a costs order of Desotti J. made August 20, 2018. The Notice of Motion was sent to the court by email on December 8, 2020.
[2] In his motion materials, Mr Henri says (among other things) that he cannot afford to pay the costs order, and that as a self-represented litigant, the deadline for bringing an appeal is unfairly short. It is clear that his motion is focused entirely on the costs order made two years earlier.
[3] By email endorsement dated December 8, 2020, this court directed Mr Henri as follows:
The moving party moves for an extension of time in which to appeal a final costs order of $10,000.
The test to obtain an extension is as follows:
The moving party should show that he intended to bring this appeal within the appeal period.
The moving party should explain his delay in bringing the appeal.
The court considers any prejudice that may be caused by granting the extension.
The court considers the merits of the proposed appeal.
The moving party wants to appeal a costs award. To do this, he first needs to obtain leave to appeal, which requires him to bring a motion for leave to appeal (Courts of Justice Act, s.133(b)). The moving party is now more than two years out of date.
The materials provided by the moving party could not justify granting an extension.
The court will permit the moving party to amend his materials and then resubmit his motion. If he does this, then the court will give further directions to the parties.
The court has an obligation to provide information to the moving party to assist him to access the justice system. The directions that follow are intended for this purpose.
If the moving party decides to re-submit his materials, his new motion should take account of the following points:
(a) he is seeking leave to appeal a final costs order of $10,000 made by a Superior Court judge on August 20, 2018.
(b) he should provide his best evidence that he intended to try to appeal back in August or September 2018, including copies of any email, correspondence or other document he sent to the other side, to the court or to some other person, back in August or September 2018, stating his intention to bring an appeal.
(c) he should provide his best evidence of the reason(s) that he did not do anything to try to appeal until December 2020, more than two years after the deadline. The moving party has already provided some information about this issue and he does not need repeat what he has already provided. But if there is anything else to explain the delay, he should provide it.
(d) the moving party should provide his explanation as to why he says there is merit to his appeal. Generally, a moving party has to show that the judge made a legal error - an error "in principle" that is important beyond the interests of the parties in this case. The amount the judge ordered was less than either party said the costs should be, so the moving party needs to explain why he says the judge made a mistake.
As the moving party should understand from this description, it is difficult to win a motion for an extension of time, after more than two years, to appeal a $10,000 costs order. The moving party may also want to bear in mind that if he does bring a motion and the other party is put to legal expense to defend it, it is likely the court will make another costs order against the moving party. That is the general principle in court proceedings: the loser reimburses the winner for some of the legal costs. It is, of course, for the moving party to assess the potential risks and benefits of bring his motion to seek an extension.
The moving party's deadline to resubmit motion materials is January 15, 2021.
The responding party does not need to prepare anything or respond until this court gives further directions.
[4] Under cover of an email received by the court on January 14, 2021, Mr Henri delivered a fresh motion record. In it he identified the relief he seeks as follows: “extension of time for several orders related to SCJ File 6982/13.”
[5] The stated grounds for this motion are as follows:
All of a sudden in recent days the matters of error, partiality, and failure of process in matters of conflict of interest has surfaced due to the involvement of a SCJ Mr Justice that has explicitly claimed conflict, yet several endorsements marks on the file and remarks on the bench have introduced by this Mr Justice. Due to which bias, partiality and errors has been implicitly introduced effecting the standard of unbiased, impartial judgment.
[6] In his affidavit in support of this motion, Mr Henri states that “[i]n recent days all of a sudden it is come to light that this file has been tainted….” Mr Henri does not explain how it is that these matters have only recently “come to light”, and the limited particulars he provides of his claim of apprehension of bias all appear to rest on facts that would have been known to him at the time the impugned orders were made.
[7] Nowhere in the January motion materials does Mr Henri address his proposed appeal of a costs order of Desotti J. made in August 2018 or address the issues that would have to be addressed on a motion for an extension of time to seek leave to appeal that costs order.
[8] By email endorsement sent January 19, 2021, Mr Henri was directed as follows:
On December 8, 2020, Mr Henri provided the court with a motion record in which he seeks an order to extend the time in which to appeal the costs order of Desotti J. made in August 2018. Mr Henri is a self-represented litigant and is entitled to assistance from the court in order to follow the court process properly. To this end, this court issued a direction to Mr Henri advising him that his motion materials were so deficient that his motion could not possibly succeed. The court advised Mr Henri of the defects in his materials and gave him permission to submit fresh motion materials to the court that addressed the issues involved in his motion. The court gave Mr Henri a deadline of January 15, 2021 to provide proper motion materials.
By email dated January 14, 2021, Mr Henri provided fresh motion materials to the court. These fresh materials did not address any of the problems the court had identified with Mr Henri's original materials. Instead, they state an entirely new basis for an appeal, and state that Mr Henri wishes to appeal several past court decisions. Mr Henri has not identified the decisions he wishes to appeal. The basis of the proposed appeal is a reasonable apprehension of bias on the part of the judge. Mr Henri does not identify who the judge is. A review of the FRANK summary of the case - between 2013 and 2018 - shows that no less than 11 judges appear to have been involved in this case (Justices George, Desotti, Gorman, Aston, Howard, Garson, Bondy, Raikes, Campbell, Donohue).
Mr Henri's motion materials for this fresh motion do not address the test required to obtain an extension. They do not establish whether the orders to be appealed are interlocutory or final (and thus whether the appeal lies to this court or to the Court of Appeal).
I will give Mr Henri one last opportunity to frame his motion properly. He shall have until March 1, 2021 to provide proper motion materials for his request to extend time to appeal. The test to obtain an extension to bring an appeal was set out in my prior endorsement. Mr Henri must address each aspect of this test, and must identify precisely which orders he is now seeking an extension in which to bring his appeal. If the materials fail to raise an arguable case for an extension, then the court will direct the Registrar to issue a notice pursuant to R.2.1.01 of the Rules of Civil Procedure that the court is considering dismissing the motion as frivolous, vexatious and/or an abuse of process.
The responding party shall not respond to this direction or to Mr Henri's motion materials unless the court directs otherwise.
[9] Mr Henri did not respond to this direction or submit properly framed motion materials. On March 8, 2021, at my direction, the Registrar gave Mr Henri notice that the court is considering dismissing his motion for an extension pursuant to R.2.1.01 on the following basis:
Mr Henri was directed by email dated January 18, 2021 to provide proper amended motion materials by March 1, 2021, failing which the Registrar would be directed to give him notice pursuant to R. 2.1.01 that the court is considering dismissing his motion as frivolous, vexatious and an abuse of process.
Mr Henri has not responded to the court's direction of January 18, 2021.
The Registrar is directed to give Mr Henri notice pursuant to R.2.1.01, on the basis described in the court's endorsement of January 18, 2021.
Adverse parties shall not respond to Mr Henri's response to the R.2.1.01 notice unless the court subsequently directs otherwise.
[10] Mr Henri provided a lengthy response to this notice on March 10, 2021, by email. In short, he says that he has had little time available because of obligations to tend to his ailing elderly mother, and other difficult personal circumstances.
[11] The final order in this case was apparently made by Desotti J. in 2018. No explanation has been provided that could possibly justify extending the time to bring an appeal for so long.
[12] Enough is enough. Mr Henri first approached the court more than four months ago and he has had multiple opportunities to address the court’s concerns with his motion. The motion is dismissed pursuant to R.2.l.01: it cannot possibly succeed because it does not address central aspects of the test to obtain an extension of time in which to appeal and has not even identified with precision the orders he is seeking to appeal.
[13] As stated to Mr Henri previously, the court has an obligation to assist self-represented litigants to navigate the court system. But all litigants have an obligation to act responsibly in their pursuit of their cases. Following the court’s directions, designed to help the litigant address the issues he wishes to raise, is required.
[14] Mr Henri’s motion to extend the time to appeal orders in SCJ File 6982/13 is dismissed without costs. Mr Henri may not bring any further motions in Divisional Court in respect to orders made in SCJ File 6982/13 without first obtaining permission from an administrative judge of the Divisional Court or their designate.
D.L. Corbett J.
Date: August 5, 2021