Court File and Parties

CITATION: Rassouli-Rashti v. Tayefi, 2021 ONSC 7996

DIVISIONAL COURT FILE NO.: 821/21

DATE: 2021-12-03

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MOHAMMAD RASSOULI-RASHTI and MOHAMMAD REZA TAYEFI v. EHSAN TAYEFI and RALPH MICHAEL LEVINE

BEFORE: D.L. Corbett J.

HEARD: In Chambers, In Writing

Endorsement

[1] The defendant, Mr Ehsan Tayefi, seeks leave to appeal decisions of Sharma J. refusing to dismiss the action for failure of the plaintiffs to answer undertakings or to abide by prior court orders to answer undertakings.

[2] The court asked the parties to provide an agreed schedule for the motion for leave to appeal, in response to which the responding parties advised the court as follows:

I am counsel for the Plaintiffs. This proposed motion for leave is ill-conceived and does not relate to an appeal from an interlocutory order. The motion was heard by the trial judge in the context of the trial, considered with the benefit of all the evidence given at trial and decided as part of the final judgement. Before we expend time and effort as to the exchange of materials and timing, it may be suitable to schedule a motion management conference. Since the court considered all of the evidence that was given in the course of trial, Mr. Tayefi would have to produce the entire transcript for 8 plus days of evidence if he sees fit to proceed with this motion for leave to appeal.

[3] Upon confirming that this matter had been tried and final judgment rendered, the court directed that a notice be issued pursuant to R.2.1.01 and provided the following guidance to the moving party as to the concerns giving rise to the R.2.1.01 notice:

This action has been adjudged by Sharma J. in a final decision given orally on September 24, 2021. All rulings made by Sharma J. are merged into his final judgment, and any appeal from that judgment is as of right to the Court of Appeal and not by leave to the Divisional Court (see CAMPP Windsor Essex Residents Assn. v. City of Windsor, 2021 ONSC 3456).

[4] In his submissions in response to the R.2.1.01 notice, Mr Tayefi makes the following points:

(a) He was self-represented at trial and continues to self-represent, and is doing his best to advance his interests in good faith; there is no intent to abuse the court’s process;

(b) It is unfair to characterize a mistake in bringing the appeal to the wrong court as “frivolous, vexatious or an abuse of process”. Appellate jurisdiction is complicated, particularly the distinction between “final” and “interlocutory” orders, and he should not be criticized for going to the wrong court. See 1476335 Ontario Inc. v. Frezza, paras. 15-16, per D.M. Brown J.A.;

(c) R.2.1.01 is designed to address the “clearest of cases where the abusive nature of the proceeding is apparent on the face” of the proceeding. A good faith error in jurisdiction by a self-represented litigant cannot qualify as “abusive” in nature;

(d) Mr Tayefi submits that the denial of his motion to dismiss during the trial was not a “ruling about evidence and process” that took place “during the trial”, and thus the principle in CAMPP Windsor Essex Residents Assn. v. City of Windsor, 2021 ONSC 3456 does not apply to this motion for leave to appeal.

(e) Mr Tayefi argued that there is not a single decision in which a court has found that a ruling that is otherwise interlocutory is rendered final for appeal purposes because it is rendered by the trial judge.

(f) Mr Tayefi has delivered a Notice of Appeal in the Court of Appeal in respect to the portions of the decision of Justice Sharma that he considers final.

(g) Mr Tayefi requests the opportunity to respond to any additional concerns that the court has respecting his motion for leave to appeal.

[5] For the following reasons the motion for leave to appeal is dismissed pursuant to R.2.1.01.

[6] The decision of Sharma J. is a final judgment after a trial. Any rulings made during the course of the trial are merged into the trial judgment. There are not separate appeals to this court in respect to interlocutory rulings made during the trial and the to the Court of Appeal from the final judgment. A decision on an interlocutory ruling on a motion brought at the outset of trial is a trial ruling and not a separate interlocutory decision susceptible to independent appeal. To hold otherwise would lead to a multiplicity of appeals, potentially inconsistent appellate decisions, delay, unnecessary expense for the parties, and waste of court resources. In this case, the interlocutory appeal would be a collateral attack on the final judgment – something beyond the jurisdiction of this court.

[7] I accept Mr Tayefi’s submission that, as a self-represented litigant, he should not be expected to understand routes of appeal. I also accept that sorting out whether an order is interlocutory or final can be a complicated task. In this context, labelling his motion for leave to appeal as “frivolous, vexatious and/or an abuse of process” seems harsh.

[8] This court applies R.2.1.01 to a range of issues that can arise in respect to a proceeding in this court, including jurisdictional issues. This is not to disparage litigants who are trying bring an appeal, but to promote efficient operation of the justice system, to the benefit of the litigants and the courts. Since the onset of COVID-19, the court has been conducting triage and case management of all cases in Divisional Court. During triage, the court tries to identify cases that are doomed to fail in this court for assessment through the lens of R.2.1.01. This case provides a good example of why this is a worthwhile exercise.

[9] Pre-COVID, it is unlikely that the court would have identified this case as raising a jurisdictional concern at intake. If the responding parties had requested the court to review the appeal pursuant to R.2.1.01, then this process could have been initiated. More likely, responding parties would have moved to quash the appeal for want of jurisdiction. The parties would have expended time and resources to exchange materials and argue that motion. The respondents would have won that motion – many weeks after commencement of the motion for leave to appeal – and an award of costs would likely have been made against the moving party – not as a punishment but as an indemnity for the expense incurred by the responding parties to bring their successful motion.

[10] Following the motion decision, Mr Tayefi would have been entitled to review the motion decision before a panel of this court. If he invoked that process, it could take many months before the panel review was completed, all at additional cost to the parties.

[11] Under the R.2.1.01 process, the parties get a quick disposition of the issue, at little cost and little delay. The order is a final disposition of the issue in this court and is subject to appeal to the Court of Appeal, with leave from that court.

[12] A motion for leave to appeal (or other proceeding) is “frivolous, vexatious and/or an abuse of process” if, among other things, it cannot possibly succeed or can serve no useful purpose. An appeal that is beyond the jurisdiction of this court, and which can have no effect other than a collateral attack on a final order that is not within the jurisdiction of this court, fits within this category. Proceedings that are “frivolous, vexatious and/or an abuse of process” includes, but is by no means limited, to intentional abuse of the justice system. Bringing an appeal to a court that lacks jurisdiction or to attack a final order beyond the appellate jurisdiction of the court, may well be done in good faith, without any intention to abuse the court’s process, but it nevertheless fits within R.2.1.01.

[13] I agree with Mr Tayefi that R.2.1.01 should only be applied to dismiss a proceeding “in the clearest of cases”. If there was any argument available that this motion for leave to appeal could succeed, then recourse to R.2.1.01 would not be appropriate.

[14] This is, however, a clear case. This case is indistinguishable from CAMPP Windsor Essex Residents Assn. v. City of Windsor, 2021 ONSC 3456. In CAMPP Windsor, the moving party brought a motion to adduce fresh evidence on the motion for leave to appeal before Verbeem J. Motion materials were delivered in advance of the hearing. The motion could have been heard in advance of the motion for leave to appeal but was heard during the course of the leave motion. Indeed, the argument in CAMPP Windsor was stronger than it is in the case at bar because no further appeal proceedings were possible from the final decision denying leave to appeal. In this case, the moving party has appeal rights from the decision of Sharma J. in the Court of Appeal, and those appeal rights include every basis on which he asserts that the decision of Sharma J. should not stand, including trial rulings that are, in themselves, interlocutory.

[15] Where a litigant has brought appeal proceedings in this court that should be pursued in the Court of Appeal, this court may transfer the proceedings or provide some dicta that may assist the litigant in pursuing his appeal rights in the higher court. That is not necessary in this instance. Mr Tayefi has commenced an appeal in the Court of Appeal and can pursue before that court any and all reasons that he says the final decision of Sharma J. should not stand – including Sharma J.’s decision not to grant Mr Tayefi’s dismissal motion at the start of the trial.

[16] Finally, Mr Tayefi raises a concern that the court might have already reached a firm conclusion on the R.2.1.01 issue, without first considering Mr Tayefi’s submissions. The court’s practice respecting R.2.1.01 has evolved to take account of the interests of the party required to respond to the R.2.1.01 notice. The Rule requires no more than notice that the court is considering dismissing the proceeding as “frivolous, vexatious and/or an abuse of process”. Giving a litigant notice under R.2.1.01, with no explanation of the issues causing the court concern, leaves many litigants not understanding the issues that need to be addressed to respond to the notice. Litigants may also be concerned that the court is trivializing or dismissing serious issues they are seeking to raise by calling them “frivolous” and “vexatious” and “abusive”. To give proper guidance to litigants, and to try to make it clear that their issues are not being trivialized or overlooked by the court, this court tries to give guidance of the issue(s) that are of concern to the court and may lead to summary dismissal of the proceeding.

[17] This said, Mr Tayefi makes a good point that the court’s guidance could be framed in less emphatic terms. As will be clear from these reasons, the court provided the guidance to solicit and then consider any response before coming to a firm conclusion on the R.2.1.01 issue. The court’s practice has been consistent since the onset of COVID-19, and where litigants have established a meritorious response to the R.2.1.01 notice, the court has declined to dismiss pursuant to the notice. In this case, Mr Tayefi has not been able to answer the court’s concerns and so the motion for leave to appeal is dismissed pursuant to R.2.1.01, without costs, and without prejudice to the issues sought to be raised on the motion for leave to appeal being pursued in the appeal from the final order of Sharma J. initiated at the Court of Appeal.

D.L. Corbett

December 3, 2021