CITATION: TD Bank v. Virgo, 2022 ONSC 1638
DIVISIONAL COURT FILE NO.: 075/22
DATE: 20220316
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: TORONTO-DOMINION BANK, Plaintiff/Respondent
AND:
JENNIFER VIRGO, Defendant/Appellant
BEFORE: Copeland J.
COUNSEL: Jennifer Virgo, self-represented Appellant
Phillip Polster, for the Respondent
HEARD in writing at Toronto: March 11, 2022
ENDORSEMENT
Introduction
[1] Ms Virgo filed a Notice of Appeal purporting to appeal under s. 19(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) from the order of Edwards J. dated January 31, 2022.[^1] The order of Edwards J. at issue is, in fact, dated February 11, 2022, as the formal order addresses both the substance of the motion decided by endorsement dated January 31, 2022 (reported at 2022 ONSC 701), and the costs endorsement dated February 11, 2022 (reported at 2022 ONSC 1015).
[2] This endorsement explains why I find that the appeal must be dismissed pursuant rule 2.1.01 of the Rules of Civil Procedure. The short explanation is that the order is interlocutory. Leave to appeal is required, pursuant to s. 19(1)(b) of the CJA. This court has no jurisdiction to hear the appeal filed.
History of the proceeding in this court
[3] As noted above, the Notice of Appeal was filed on February 7, 2022.
[4] Pursuant to the Divisional Court’s case management practices, Matheson J. issued a triage direction to the parties on February 7, 2022, as follows:
The proposed appeal arises from a decision to dismiss a motion for summary judgment, which is normally an interlocutory order. For interlocutory orders, a party must seek leave to appeal under Rule 62.02 before commencing an appeal. The court therefore requests that the appellant respond to this email indicating why she is pursuing an appeal rather than seeking leave to appeal.
[5] Ms Virgo responded by email dated February 8, 2022. The email is somewhat lengthy, and I will not reproduce it. It attempted to make the case that the order of Edwards J. was a final order. I note that at the time of this response by Ms Virgo, the formal order of Edwards J. had not yet been obtained.
[6] On February 9, 2022, Justice Matheson directed that a case conference be scheduled to discuss the issue of whether the order of Edwards J. was final or interlocutory. The case conference was scheduled for February 17, 2022.
[7] In advance of the case conference, both parties sent documentation to the court. I will not outline all of the documentation. What is relevant for present purposes is that Ms Virgo sent a 29-page submissions on whether the order of Edwards J. was final (entitled Motion Record (to Prevent Abuse of Process)), and an Appeal Book and Compendium for the proposed appeal, which contained the issued and entered order of Edwards J. dated February 11, 2022. Counsel for the respondent, TD Bank (“TD”), sent a copy of the costs endorsement of Edwards J., and a decision of the Alberta Court of Queen’s Bench in which Ms Virgo’s husband, Ade Olumide, who has been assisting her with the present litigation, was declared a vexatious litigant in the courts of Alberta: Olumide v. Alberta (Human Rights Commissions), 2019 ABQB 186.
[8] I conducted the case conference on February 17, 2022. Following the case conference, I had a direction sent to the parties confirming the discussion at the case conference as follows (sent by email February 18, 2022):
Justice Copeland confirms the case conference held February 17, 2022. Her Honour directed me to advise you as follows:
In her direction of February 7, 2022, Justice Matheson raised the issue of whether the order of Justice Edwards that is the subject of the Notice of Appeal is interlocutory, and leave is therefore required under rule 62.02.
The order of Justice Edwards has now been taken out and was discussed at the case conference. The operative portion of the order states: “the defendant’s motion for Summary Judgment is dismissed.” Justice Edwards’ order does not purport to dismiss the defendant’s counterclaim.
The issue of whether the order is final or interlocutory was discussed at the case conference. Mr. Olumide maintains it is a final order. However, his basis for that assertion rests on Justice Edwards reasons, not on the terms of the order. Appeals are taken from orders, not from reasons. Justice Copeland advised that it is open to Ms Virgo to seek leave to appeal, subject to the time not having expired.
Justice Copeland advised that she is considering dismissing Ms Virgo’s appeal under rule 2.1.01 on the basis that it is frivolous, vexatious, and abusive, because the order does not appear to be a final order. A written submission by Ms Virgo has already been submitted on this issue, which Justice Copeland will consider. In addition, Justice Copeland will permit Ms Virgo to file a further written submission, if she wishes, on the issue of the court considering dismissing the appeal under rule 2.1.01(1). Any further submission must be filed by March 3, 2022 by email to the Divisional Court office, and copied to counsel for the respondent.
Counsel for the respondent advised that he did not wish to make any submissions on the rule 2.1.01 issue.
The appellant’s husband, Ade Olumide, represented her at the case conference, as he has done in the court below and in previous proceedings in this court. Counsel for the respondent raised a concern about Mr. Olumide representing the appellant, because he has been declared a vexatious litigant by the Alberta Court of Queen’s bench (2019 ABQB 186). Justice Copeland directed that she would not decide that issue at the case conference, but that is without prejudice to TD Banks right to raise it at a future date.
[9] I directed the Registrar to send a formal rule 2.1.01 notice to Ms Virgo. That notice was sent by email February 22, 2022. Along with the formal notice, the case conference direction above was re-sent, and I extended the deadline to file submissions to March 10, 2022 (to reflect 15 days from the formal notice from the Registrar).
[10] By email dated February 23, 2022, Ms Virgo filed submissions in response to the rule 2.1.01 notice. The email to court staff attaching the submissions stated:
I have attached my reply to your email which is a violation of Criminal Code s127 collateral attack, s346 extortion, s421 intimidation, s341 s340(c) fraudulent concealment of a “judicial or official document” [sic]
[11] Despite the express direction in the rule 2.1.01 notice that any submissions in response were not exceed 10 pages (in accordance with the rule), the response filed on behalf of Ms Virgo was 184 pages long (entitled Motion Record (to Vary Order of Justice Copeland)).
[12] In addition to the 184-page document, Ms Virgo filed a 102-page document purporting to be a complaint to the Canadian Judicial Council about me, and purporting to seek a direction that the Registrar schedule three separate panel motions in three different court files. I am not aware whether the purported complaint has been filed with the Judicial Council. In any event, it does not assist in consideration of whether the order of Edwards J. is final or interlocutory.
[13] As a whole, neither of these documents is particularly responsive to the issues raised in the case conference direction and the rule 2.1.01 notice. The tone of both documents is similar to the covering email I have extracted above at paragraph 10. However, if one sifts through the documents sent in response, there are portions that address the final/interlocutory order issue. Despite their length and deficiencies, I have reviewed them, as well as the 29-page document filed prior to the case conference, in considering whether the order of Edwards J. is final or interlocutory.
Applicable law regarding rule 2.1.01 and determining whether an order is final or interlocutory
[14] Rule 2.1.01 should be invoked to dismiss an appeal only in the clearest of cases. It is meant to provide a summary mechanism for disposing of proceedings or motions that are on their face frivolous, vexatious, or otherwise an abuse of process. It is not intended or designed to replace the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or want of merit: Simpson v. Chartered Professional Accountants of Ontario, 2016 ONSC 806 at para. 43; Scaduto v. Law Society of Upper Canada, 2015 ONCA 733 at paras. 7-9.
[15] In P1 v. XYZ School, 2021 ONCA 901 at paras. 11-12, the Court of Appeal recently summarized the well-established law in relation to determining whether an order is final or interlocutory for purposes of appeal rights:
[11] For nearly 90 years, this court has approached the issue of final/interlocutory orders by beginning with this distinction laid out in Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675 (C.A.):
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral.
[12] Since then, this court has, on many occasions, addressed Hendrickson. In the recent decision of Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the law as follows:
The main principles that determine whether an order is interlocutory or final are well known:
An appeal lies from the court’s order, not from the reasons given for making the order.
An interlocutory order “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”.
In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order”.
The question of access to appellate review “must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case.” In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.]
[16] Two further principles developed in the case law in relation to final/interlocutory orders are important in considering whether the order in this case is final or interlocutory. First, the content of the formal order is “integral” to determining whether an order is final or interlocutory: Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 at para. 13. This principle derives from point #4 listed above in P1 v. XYZ School that the characterization of an order depends upon its legal nature, not its practical effect.
[17] Second, an order dismissing a summary judgment motion, in general, is not a final order: Ashak at para. 7; Skunk v. Ketash, 2016 ONCA 841 at paras. 32-35, and 58.
Analysis
[18] The central issue I must decide is whether the order of Edwards J. final or interlocutory. If it is interlocutory, then leave to appeal must be obtained pursuant to s. 19(1)(b) of the CJA in order to appeal, and the current appeal would be without jurisdiction, and should be dismissed. If the order is final, then an appeal lies pursuant to s. 19(1)(a) of the CJA.
[19] The proceedings before Edwards J. had their genesis in earlier proceedings before Leibovich J. Justice Edwards summarized the earlier proceedings and the nature of the motion before him at paragraphs 1-5 of his January 31, 2022 endorsement:
[1] The action between the Plaintiff, The Toronto-Dominion Bank (hereinafter “TD”) and the Defendant Jennifer Virgo (hereinafter “Virgo”), was determined by the decision of Leibovich J. released on June 25, 2021, pursuant to which he granted summary judgment in favour of TD in the amount of $18,490.59 (The Order). The Order arose as a result of the non-payment by Virgo of amounts owing to TD on a credit card.
[2] Virgo asked Leibovich J. to re-consider and correct the Order. The correction sought was the addition of the following:
This court orders and adjudges that the defendant’s motion for summary judgment is denied.
[3] Leibovich J., in an Endorsement that he released to the parties on September 13, 2021, indicated that he would not grant the requested adjournment [sic] correction to the Order.
[4] The Order of Leibovich J. was appealed to the Divisional Court by way of a Notice of Appeal filed by Virgo on July 21, 2021. On October 4, 2021, Corbett J. released an Endorsement of the Divisional Court which stated:
The appeal has been abandoned and no costs are sought by the Respondent. The matter is now concluded.
[5] The motion that came before me on January 26, 2022 was for summary judgment brought by Virgo as a result of allegations made in her counterclaim. The motion was argued by her husband. The basis of the claim made by Virgo in her counterclaim arises out of the suggestion that TD is in breach of its obligations to Virgo as a result of various alleged violations of the Consumer Protection Act. No evidence was filed by TD in response to Virgo’s motion for summary judgment.
[20] The active part of the order of Edwards J. states: “THIS COURT ORDERS that the defendant’s motion for Summary Judgment is dismissed”.
[21] As I have noted above, Ms Virgo’s submissions are not especially accessible. Neither she nor her husband is legally trained. I understand the substance of her submission that the order of Edwards J. is not a final order to be twofold.
[22] Ms Virgo’s first submission relates to binding facts already found in the Superior Court. The factual basis for Ms Virgo’s counterclaim is her assertion that there was a verbal agreement between her and TD, pursuant to which she agreed to pay $150 per month towards outstanding indebtedness to TD, in return for which TD agreed not to take collection proceedings on the outstanding debt. Ms Virgo asserts in the counterclaim that TD breached this purported agreement. In his decision of June 25, 2021, Leibovich J. found as a fact that no such verbal agreement existed. In considering Ms Virgo’s summary judgment motion on the counterclaim, it is clear from the endorsement of Edwards J. that he found that the factual issue of whether or not a verbal agreement existed had been decided by Leibovich J., and was res judicata (January 31, 2022 Endorsement of Edwards J. at paras. 7-10). On that basis, Edwards J. dismissed Ms Virgo’s motion for summary judgment. Ms Virgo submits that the practical effect of the finding that there was no verbal agreement, and that that finding is res judicata, is that there is no genuine issue for trial, and she will never be able to prevail in her counterclaim. In this sense, she submits that the order of Edwards J. is final.
[23] Ms Virgo’s second submission as to why the order of Edwards J. is final relates to a portion of the costs endorsement of Edwards J. At the outset of the costs endorsement, Edwards J. states: “On January 31, 2022, I released my Endorsement dismissing the Defendant’s counterclaim”. Ms Virgo submits that this is a clear statement that her counterclaim was dismissed.
[24] As noted above, the order made by Edwards J. dismissed Ms Virgo’s summary judgment motion in relation to her counterclaim against TD. The active words of the order are that “the defendant’s motion for Summary Judgment is dismissed”. All the order does is dismiss the summary judgment motion. It says nothing about dismissing the counterclaim. As a motions judge hearing a summary judgment motion, Edwards J. had the authority not only to grant or dismiss Ms Virgo’s summary judgement motion in relation to her counterclaim against TD, but also to grant summary judgment in favour of TD and to dismiss the counterclaim, even in the absence of a summary judgment motion by TD: Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922 at para. 50-52. However, all that Edwards J. did was dismiss the summary judgment motion brought by Ms Virgo. He made no order disposing of the counterclaim.
[25] I have considered Ms Virgo’s submission that in the costs endorsement, Edwards J. referred “dismissing the Defendant’s counterclaim”. I acknowledge that this wording provides some support for Ms Virgo’s submission that the order is final. However, the case law is clear that the wording of the formal order is primary in determining if an order is final or interlocutory. Appeals are from a court’s order, not from reasons given for making the order: P1 v. XYZ School at para. 11. The order is clear that Edwards J. dismissed Ms Virgo’s motion for summary judgment. He did not dismiss her counterclaim.
[26] As I have set out above, a dismissal of a motion for summary judgment is ordinarily an interlocutory order. I am satisfied that the order of Edwards J. dismissing Ms Virgo’s motion for summary judgment on her counterclaim is interlocutory.
[27] Ms Virgo may well be correct in anticipating that because of the factual finding of Leibovich J. that there was no verbal agreement between her and TD, which Edwards J. treated as res judicata in his endorsement, it is unlikely that she will prevail in her counterclaim. But this does not change the fact that all that the order of Edwards J. does is dismiss her summary judgment motion. The order does not dispose of the counterclaim. It is an interlocutory order. As such leave to appeal is required to appeal to the Divisional Court, pursuant to s. 19(1)(b) of the CJA. This court does not have jurisdiction to heard the proposed appeal in the absence of leave to appeal being sought and granted.
Conclusion
[28] The order of Edwards J. is interlocutory. Leave to appeal is required to appeal it to the Divisional Court, pursuant to s. 19(1)(b) of the CJA. The appeal filed without leave to appeal is frivolous, vexatious, and an abuse of the courts process because it is clear that this court does not have jurisdiction to hear it.
[29] The appeal is dismissed, pursuant to rule 2.1.01. I dispense with the requirement for the respondent to obtain the appellant’s approval of the form and content of the formal order to implement this decision.
[30] This order dismissing the appeal is without prejudice to Ms Virgo to bringing a motion to extend time to seek leave to appeal pursuant to s. 19(1)(b) of the CJA. I make no comment on the merits of such a motion to extend time.
[31] As this issue was raised by the court, and TD did not make any submissions, I make no order as to costs.
Copeland J.
Date: March 16, 2022
A corrected endorsement was released on March 16, 2022.
At paragraphs 19, 22, and 27, the name of the judge who heard the earlier
proceedings was corrected to refer to Leibovich J.
[^1]: The Notice of Appeal is undated, but was filed with the Divisional Court on February 7, 2022.