Court File and Parties

CITATION: Kim v. McIntosh, 2021 ONSC 6217

DIVISIONAL COURT FILE NO.: 56/20

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

HEARD: In writing, In Chambers: September 17, 2021

Endorsement

[1] Mr McIntosh has three matters pending in this court. This endorsement addresses only one of these matters: his motion to review the order of Favreau J. sitting as a single judge of the Divisional Court.

[2] The order of Favreau J. was made March 6, 2020 (2020 ONSC 1447). In this decision, Favreau J. declined to extend the time for Mr McIntosh to seek leave to appeal from the order of Paisley J.

[3] Mr McIntosh says that he served a notice of motion for leave to appeal from the decision of Favreau J. within about a week of the decision. He is self-represented. He is outside Ontario. He says that he mailed the Notice to the Divisional Court office. There is no record within the Divisional Court of this document having been received.

[4] Then, as a result of COVID-19, regular court operations closed and the court began to operate under new procedures. Deadlines were suspended by the Province, and this court has taken a relaxed approach to deadlines so long as the court is satisfied that a litigant is not trying to take unfair advantage for tactical reasons. Based on the history of the matter, I accept that Mr McIntosh may have intended to seek review of Justice Favreau’s order in a timely manner, and that his delay in moving forward is explained by COVID-19, his self-represented status, and his being outside the jurisdiction.

[5] In all the circumstances, I am prepared to let him proceed with his motion to review the order of Favreau J. before a panel of three judges, but on terms.

[6] First, Mr McIntosh must serve and upload to CaseLines his motion materials for the review motion by October 29, 2021. Once he has done that, he must notify this court that his motion materials are available on CaseLines. If Mr McIntosh serves and uploads his materials faster, then the motion can move forward more quickly, however I do not want to place him under an unduly tight deadline to complete his motion materials.

[7] Second, Mr McIntosh is restricted in the materials he may place in the record on the review motion to the written materials that were before Favreau J. on the extension motion before her. This is a review of what Favreau J. decided, based on the materials before her. It is not a fresh hearing of the extension motion.

[8] Third, Mr McIntosh may not obtain and file a transcript of the argument before Favreau J. on the review motion. I say this prospectively because it is clear from other materials provided to the court by Mr McIntosh that he wishes such transcripts to be prepared and put before the review court. If Mr McIntosh takes the position that he requires transcripts, he may serve and upload a motion seeking the transcripts and he may include in those motion materials an affidavit explaining why he says that transcripts of oral argument before Favreau J. are needed for the review motion. The review panel can then deal with the transcript request at the hearing of the review motion. Mr McIntosh is to understand that these directions are limited to a request for transcripts of the appearance before Favreau J. Mr McIntosh may not file transcripts of appearances before Paisley J. or Jyers J. on the review motion because these transcripts were not filed before Favreau J. on the motion for an extension.

[9] Fourth, in her decision, Justice Favreau was satisfied that Mr McIntosh intended to seek leave to appeal from the order of Paisley J. and had a reasonable explanation for his delay in pursuing that motion. However, Favreau J. found that the proposed motion for leave to appeal was so devoid of merit that the extension should not be granted. In his review motion, Mr McIntosh should understand that he will need to address these findings by Favreau J. Based on materials sent by Mr McIntosh to the court, it seems that he considers that he may argue that the respondent failed to make full and fair disclosure before Myers J. and/or Paisley J. Those are issues that may not be litigated at first instance in this court. The place to raise them is on motion in the Superior Court, not on appeal in this court: any appeal from the decision of Favreau J. is base don the materials before Her Honour; any appeal from the order of Paisley J. would be based on the materials that were before Paisley J.

[10] The responding party is directed not to file any responding material on the review motion until the court gives further directions after reviewing Mr McIntosh’s motion materials.

D.L. Corbett J.

Release Date: September 20, 2021