CITATION: Kim v. McIntosh, 2021 ONSC 6216
DIVISIONAL COURT FILE NO.: 56/20, 71/20 and 119/21
DATE: 20210920
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
Oriana Pollitt, for the Responding Party
In writing, In Chambers: September 17, 2021
ENDORSEMENT
[1] Mr McIntosh has three matters pending in this court. This endorsement addresses the issues other than Mr McIntosh’s motion to review the order of Favreau J. sitting as a single judge of the Divisional Court.
[2] McIntosh has multiple proceedings in Divisional Court:
(a) Motion to review the order of Favreau J., refusing to extend the time to seek leave to appeal the order of Paisley J.;
(b) Motion for leave to appeal the order of Shore J. from January 2021;
(c) Motion for leave to appeal the costs order of Nakonechny J.
[3] By endorsement released May 17, 2021, I provided the following directions in respect to these matters:
(a) I declined to dismiss the motion for leave to appeal the costs order of Nakonechny on the basis that it was out of time and directed Mr McIntosh to serve his motion for leave to appeal the order of Nakonechny J. and upload his motion materials to CaseLines by June 25, 2021, and directed that he advise the court by email when he had done so, after which the court would provide further directions.
(b) I directed Mr McIntosh to serve and upload to CaseLines his motion materials for leave to appeal from the decision of Shore J. “forthwith”. It was clear from the endorsement that “forthwith” meant faster than the deadline for the motion for leave to appeal the order of Nakonechny J.: I explained the June 25th deadline for the motion for leave to appeal the order of Nakonechny J. as follows: “This motion is not in any sense urgent and is scheduled on a more relaxed timetable than the other motion for leave to appeal.”
(c) Mr McIntosh indicated that he also wished to seek a stay of the order of Shore J. pending decision on his motion for leave to appeal. I directed him to serve and upload to CaseLines his motion materials for the stay motion and to advise the court when he had done this. I did not impose a deadline for Mr McIntosh to take this step.
(d) In respect to the motion to review the order of Favreau J., I directed Mr McIntosh to provide the court with further information to explain his delay in commencing that motion, after receipt of which the court would decide whether to dismiss the review motion pursuant to R.2.1.01, or whether to permit that motion to proceed. I imposed a deadline of June 11, 2021 for Mr McIntosh to provide further information respecting the review motion.
[4] Following this court’s directions, in May 2021, Mr McIntosh raised issues about his need for formal orders and for transcripts from appearances before various judges. This court responded to these concerns with further directions as follows sent on May 27, 2021:
Justice Corbett directs me to advise you as follows:
Mr McIntosh may rely upon a draft order and the reasons of Shore J. for the purposes of his motion for leave to appeal. If leave is granted then the court will provide any directions that may be required thereafter so that an order is issued and entered for the purposes of the appeal.
The court will not make an order for production of transcripts for the purposes of the motion for leave to appeal. Mr McIntosh can make his arguments on the basis of the record before Justice Shore (all of which was in writing) and he is entitled to submit affidavit evidence about any issues he wishes to raise concerning the fairness of the hearing itself. He may also argue in his motion materials that transcripts are required for the motion for leave to appeal, and it would be in the discretion of the leave panel to direct that transcripts be prepared before it decides the leave motion. If leave to appeal is granted, Mr McIntosh may revisit the issue of whether transcripts are needed for the appeal itself with the court.
[5] Mr McIntosh did provide further information respecting the review motion by June 11, 2021, as directed. I address the R.2.1.01 issue concerning the review motion in a separate endorsement.
[6] Mr McIntosh did not serve and upload to CaseLines his motion materials for the motions for leave to appeal the orders of Shore J. and Nakonechny J.
[7] By three emails to the court dated September 3 and 4, 2021, Mr McIntosh sought to bring three motions:
(i) Amended Notice of Motion in 071/20 seeking (among other things)
(1) An amended notice of motion in which he seeks various relief, including “adjourning this matter” until his proceedings in this court are concluded;
(2) An order that a transcript be prepared of appearances before Justice Paisley in 2019;
(3) Leave to appeal from the costs order of Nakonechny J. dated January 7, 2020.
(ii) A Notice of Motion in 056/20 seeking (among other things)
(1) An order staying the orders of Myers J. dated August 30, 2019 and the order of Paisley J. dated September 12, 2019; and
(2) Orders requiring Paisley J. and Favreau J. to release digital recordings of proceedings before them.
(iii) Notice of Motion in 390/21 seeking (among other things):
(1) An order staying the order of Shore J. pending determination of the motion for leave to appeal the order of Shore J.; and
(2) An order for a time frame to submit a motion for leave to appeal the order of Justice Shore pending the provisions of transcripts, directions and Response to the Moving Party’s Request to Admit.”
Non-Compliance With the Court’s Directions of May 17, 2021
[8] This court gave Mr McIntosh directions to serve and upload his motion for leave to appeal from the order of Shore J. “forthwith”. He has still not done so.
[9] This court gave Mr McIntosh directions to serve and upload his motion for leave to appeal from the order of Nakonechny J. by June 25, 2021. He never did upload these materials to CaseLines as directed and did not serve and provide these materials to the court until September 4, 2021.
[10] In his email to the court, Mr McIntosh sought an urgent hearing for a stay motion to halt the proceedings below and to stay costs orders pending completion of proceedings in this court.
[11] In his motion materials provided September 4, 2021, Mr McIntosh again raises issues about the absence of a formal order and the need for transcripts for his motions for leave to appeal. These issues were addressed in the court’s direction on May 27, 2021 and those directions still apply.
[12] This court provided a process for Mr McIntosh to follow for his two motions for leave to appeal. If he had followed that process, both motions for leave to appeal would have been decided on the merits by a panel of three judges of this court by now.
[13] The request for a stay of proceedings below and a stay of orders below pending decisions on the outstanding motions for leave to appeal is dismissed without the responding party being put to the expense and delay of preparing responding materials. A stay is an equitable remedy, and in failing to comply with this court’s directions on how to proceed with these matters, Mr McIntosh has disentitled himself to that equitable relief.
[14] Mr McIntosh may still pursue his motions for leave to appeal, on the following terms:
(a) Mr McIntosh will serve and upload to CaseLines his motion materials for the motion for leave to appeal the order of Nakonechny J. by October 1, 2021 and shall send the court an email when he has done this.
(b) Mr McIntosh will serve and upload to CaseLines his motion materials for the motion for leave to appeal the order of Shore J. by October 1, 2021 and shall send the court an email when he has done this.
(c) If Mr McIntosh fails to serve and upload to CaseLines his motion materials pursuant to either (a) and/or (b), the motion for which he has failed to serve and upload materials shall be dismissed as abandoned without costs.
[15] This court hears and decides hundreds of motions for leave to appeal every year, including many that are considered urgent by the parties, particularly in family law matters. The court can and does hear those matters very quickly after the parties have exchanged their motion materials. This court seldom grants a stay pending decision on a motion for leave to appeal, since the leave motion itself can usually be heard and decided in the same time period that it takes the parties to obtain a decision on the stay motion. In the present case, there was some initial delay in these matters by the court, but the court then charted a process for the parties so that these matters could be decided, on the merits, promptly, without further delay. The additional delay of four months from the time the court gave those directions is Mr McIntosh’s responsibility, and he cannot use his own delay as a basis for urgent equitable relief now.
[16] If leave to appeal is granted, Mr McIntosh can pursue a stay motion pending decision on the appeal itself.
D.L. Corbett J.
Release Date: September 20, 2021