Court File and Parties

CITATION: Ledsham v. Air Canada Pilots Association, 2022 ONSC 1877

DIVISIONAL COURT FILE NO.: 171/22

DATE: 20220324

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ANTHONY LEDSHAM v. AIR CANADA PILOTS ASSOCIATION

BEFORE: D.L. Corbett J.

COUNSEL: Mr. Ledsham, self-represented

HEARD: March 23, 2022, in writing

AMENDED REASONS FOR DECISION[^1]

[1] This court directed the Registrar to give the appellant notice pursuant to R.2.1 that the court is considering dismissing his appeal as frivolous, vexatious and an abuse of process and considering making an order restricting the appellant's access to the courts in respect to the issues and parties connected with the underlying litigation. This endorsement explains why I am dismissing the appeal but not requiring the appellant to obtain prior permission from an administrative judge of the Divisional Court before commencing or continuing any further legal proceedings in this court related to the subject-matter of the arbitral award, enforcement of which was the subject-matter of the proceedings below.

Background

[2] The respondent represents pilots employed by Air Canada and Air Canada Rouge. The appellant was a member of the respondent and was one of eleven elected members of the applicant’s “Master Elected Council”, the highest governing body of the respondent.

[3] Misdemeanour charges were brought against the appellant by the respondent for alleged violations of the applicant’s constitution. By order of Steele J. dated October 19, 2020, Arbitrator Matthew Wilson was appointed to hear and decide these charges.

[4] By decision dated December 2, 2020, the Arbitrator found the appellant in breach of several provisions of the respondent’s constitution and granted various remedies, including expulsion from membership in the respondent. The respondent requested that the expulsion order not be enforced immediately, a request granted by the Arbitrator.

[5] The respondent alleged that the appellant engaged in further misconduct and applied to the Arbitrator for enforcement of the expulsion order and ancillary relief, which the Arbitrator granted by decision dated July 13, 2021.

[6] The appellant did not appeal or seek judicial review of the Arbitrator’s decisions.

[7] The respondent applied to the Superior Court of Justice pursuant to s.50(3) of the Arbitration Act, 1991, S.O. 1991, c. 17, to enforce the Arbitrator’s decisions.

[8] Subsection 27(3) of the Arbitrations Act provides that the court shall enforce an award unless:

(a) the thirty-day period for commencing an appeal or an application to set the award aside has not yet elapsed;

(b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity;

(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity; or

(d) the award is a family arbitration award.

[9] The application judge, A. Ramsay J., found that none of the circumstances described in s.27(3) apply, and therefore that she was required to grant the requested enforcement order.

[10] The appellant appeals this decision to the Divisional Court.

The Notice of Appeal and the R.2.1 Notice

[11] Upon reviewing the appellant’s Notice of Appeal, this court directed that notice be given to the appellant pursuant to R.2.1 because of the following concerns:

The court directs the Registrar to give notice to the appellant that the court is considering dismissing his appeal as frivolous, vexatious and an abuse of process, for the following reasons:

1. The issue before the Superior Court of Justice was whether or not to order enforcement of the Arbitrator's Awards. Those Awards, made December 2, 2020 and July 13, 2021, were not challenged within the thirty day time period during which the appellant could have challenged them. Thus, pursuant to s.37 of the Arbitrations Act, the Awards bind the parties. In para. 1 of the Notice of Appeal, the appellant asks that the Awards "be set aside". Since this relief does not appear to have been within the jurisdiction of the Superior Court in the proceedings below, [it] therefore is not apparently within the jurisdiction of this court on appeal from the decision below.

2. The appellant seeks an order in para. 3 of the Notice of Appeal that certain persons "be charged with fraud". That relief does not appear to be within the jurisdiction of this court to grant.

3. The appellant seeks an order in para. 4 of the Notice of Appeal that counsel for the respondent in appeal be charged with perjury. That relief does not appear to be within the jurisdiction of this court to grant.

4. The appellant seeks an order in para. 5 of the Notice of Appeal that various persons, including the Arbitrator, be "charged with failing to appear as witnesses" before the Ontario Superior Court of Justice. That relief does not appear to be within the jurisdiction of this court to grant.

5. The appellant seeks an order in para. 6 of the Notice of Appeal that the respondent in appeal pay costs to the appellant equal to all expenses incurred by the respondent in appeal "on all actions" involving the appellant. Costs are an indemnity, awarded in respect to discrete proceedings or steps in proceedings. This costs claim appears to be contrary to basic principles governing costs awards.

6. The appellant fails to seek an order setting aside the decision of the Superior Court of Justice, the primary ground of relief available to him on an appeal from the court below. However the appellant is self-represented, and on a large and liberal reading of the Notice of Appeal, it is clear that setting aside the decision of the Superior Court of Justice is the primary relief he seeks on appeal. However, the appellant appears to fail to state a ground upon which there is an arguable basis for appeal. In particular:

(a) The appellant alleges that the Awards violate his rights under the Canadian Charter of Rights and Freedoms. Such an allegation might be pursued in an appeal or application for judicial review from the Awards of the Arbitrator. However, such a challenge to the Awards has not been brought by the appellant, and does not appear to have been within the jurisdiction of the court below to consider.

(b) The appellant alleges that the Awards are based upon "false allegations and improper evidence" which "clearly constitute perjury". Such allegations might be pursued in an appeal or application for judicial review from the Awards of the Arbitrator. However, such a challenge to the Awards has not been brought by the appellant, and does not appear to have been within the jurisdiction of the court below to consider.

(c) The Awards "were clearly illegal". Such an allegation, baldly asserted, would not be tenable by itself. To the extent that it is based on grounds described in paras. 6(a) and 6(b) of this direction, it fails to identify a ground for appeal of the decision below. To the extent it is based on other grounds, it is devoid of particularity and is insufficient to establish a basis for appeal.

7. Jurisdiction for this appeal lies in the Ontario Court of Appeal pursuant to s.49 of the Arbitrations Act. As stated in this provision, such an appeal may only be brought with leave from the Court of Appeal, which has been neither sought nor granted.

8. Given the concerns set out in paragraphs 1 to 5, above, the court is considering making an order restricting the appellant's access to the courts in respect to the issues and parties connected with the underlying litigation. It appears that the appellant is behaving as a vexatious litigant in respect to these matters and that his access to justice may need to be controlled to protect adverse parties and the administration of justice from vexatious recourse to the justice system.

Given the number of concerns raised by the court in respect to this appeal, the appellant shall have forty-five days and up to twenty pages for his response.

The respondent in appeal is directed not to respond to the appellant's submissions unless this court subsequently directs otherwise.

[12] The appellant responded to the R.2.1 Notice by email on March 21, 2022, as follows:

Good afternoon,

Please advise Justice Corbett of the following:

1. I find the allegations of “frivolous, vexatious and an abuse of process” very concerning. I demand my day in Court, to plead my case. Any determination of my motivations prior to this is frankly premature.

2. I fully explained to Justice Ramsay why the Arbitrator’s awards of December 2, 2020 and July 13 2021 were not challenged. This will be found in the Court transcripts, to which I have been denied, to date. Justice Ramsay appeared to accept my explanation.

3. Please ask Justice Corbett the relevance of his/her mention that the Appellant is “self represented”.

4. I fail to see how the Superior Court of Justice could possibly endorse the Arbitrator’s awards, which were based on false evidence and hearsay. The duly-summoned witnesses did not appear at the hearing, therefore I was denied due process on November 29, 2021. Regardless of the paucity of credible evidence, the Arbitrator grossly exceeded his authority, by infringing on my Charter Rights and Freedoms for such exceedingly minor accusations. Justice Ramsay’s duty was to set aside the Arbitrator’s awards and allow a Judicial Review of said awards by the Divisional Court. In this, I contend that Justice Ramsay erred in Law.

5. The following statement is particularly perplexing: “7. Jurisdiction for this appeal lies in the Ontario Court of Appeal pursuant to s.49 of the Arbitrations Act. As stated in this provision, such an appeal may only be brought with leave from the Court of Appeal, which has been neither sought nor granted.”

It appears as if Justice Corbett did not read the whole string of emails attached. On March 22, 2021, my attempts to Appeal with the Court of Appeal were refused and I was instructed to contact the Divisional Court. I have copied the email below, for your convenience:

On Mar 14, 2022, at 14:43, JUS-G-MAG-Judicial COA E-file COA.E-file@ontario.ca wrote:

Good afternoon,

In response to your e-mail below and further to your telephone conversation with the Deputy Registrar earlier today, you should be contacting the Divisional court and not the Court of Appeal as per Courts of Justice ACT s. 19 (1).

The Divisional court contact phone # is 416-327-5100 and/or e-mail scj-csj.divcourtmail@ontario.ca

Regards,

Office of the Registrar / Svetlana

6. I will be available to meet Justice Corbett in person, if that would assist in explaining my position. Once again, I respectfully request this matter be treated on an urgent basis. It is now approaching 2 1/2 years of injurious and criminal action by the Respondents. I explained to Justice Ramsay that I expect to be protected as a “whistleblower”. I fear for my safety, considering the gravity of the crimes committed by the Respondents.

[13] By direction sent to the appellant on March 22, 2022, the court directed as follows:

The court has received a brief response from the appellant to the R.2.1 Notice issued by the court.

In his response, the appellant states as follows:

"I will be available to meet Justice Corbett in person, if that would assist in explaining my position."

Proceedings pursuant to R.2.1 are conducted in writing. If the appellant's email of March 21, 2022 contains his complete response to the R.2.1 notice, the court will adjudicate the issue. If the appellant has any further submissions to address the concerns identified by the court in connection with the R.2.1 Notice, he may provide them to the court, in writing, within the 45 day deadline stipulated in the Notice.

The court appreciates that the appellant considers these matters urgent, and if he completes his submissions prior to the deadline, and advises the court that his submissions are complete, then the court will expedite its adjudication of the R.2.1 issue.

[14] The appellant responded almost immediately, as follows:

My response was comprehensive. You may consider it final and proceed with scheduling the Appeal.

I thank you in advance for assisting me in respecting the urgency of this matter.

Preliminary Point

[15] The appellant asks why the court referred to him as a “self-represented litigant” and asked the court to explain the relevance of the fact that he is self-represented. Self-represented litigants are entitled to assistance and information from the court to facilitate their access to justice. When reading a pleading from a self-represented litigant, the court makes allowances for the fact that the litigant is not legally trained and may not express his claims to the same standard expected of a lawyer. Where the substance of the case discloses a potentially meritorious appeal or application, the court should strive to provide directions to facilitate a process that will lead to disposition of the case on the merits. The court has borne these principles in mind in assessing this appeal. With respect, the context in which this reference was made in the court’s direction makes this purpose clear in its face.

Rule 2.1

[16] Rule 2.1 should only be invoked to terminate an appeal in the clearest of cases. If deficiencies in the notice of appeal could be cured by amendment or by striking out portions of the notice of appeal, the court should fashion a remedy that preserves the appellant’s ability to pursue arguable grounds of appeal. If, however, it is clear that an appeal brought to this court cannot possibly succeed, then it should be dismissed pursuant to R.2.1 to save all parties and the court the time, effort and expense of the appeal process.

Analysis

[17] I organize my analysis around the enumerated concerns raised with the appellant giving rise to the R.2.1 notice. I follow the numbering used in the email setting out these concerns, quoted in full at para. 11, above.

[18] First, I start with the concerns set out in items #2, 3, 4 and 5. In his response, the appellant did not address any of these items. They are, on their face, vexatious and an abuse of process. None of those issues are in the jurisdiction of this court to grant on an appeal from the decision of the application judge. They also bear the hallmarks of vexatious litigation: personalizing the conduct of legal professionals involved in the case, including the Arbitrator, and seeking to pursue follow-on litigation.

[19] Second, I address the jurisdictional issue set out in item #7: this appeal is within the jurisdiction of the Court of Appeal and not the Divisional Court. In response, the appellant advises that he was told the opposite by staff at the Court of Appeal.

[20] Court staff provide direction on the basis of information they are given by the litigants. Where the information provided is incorrect or incomplete, this can lead to incorrect directions. And even when the information provided is correct and complete, sometimes court staff get it wrong. However this may have come about in this case, the directions from staff in the Court of Appeal were wrong in this instance. The order of the application judge is a final order within the meaning of ss. 6(1) and 19(1)(a) of the Courts of Justice Act and in any event s.49 of the Arbitration Act expressly confers jurisdiction over this appeal on the Court of Appeal.

[21] This is not a small or technical point. Jurisdiction cannot be conferred by consent (or by the direction of court staff). If this case had proceeded to a hearing in this court, weeks or months from now, once the panel discovered the jurisdictional error, it would have had to dismiss the appeal for lack of jurisdiction: everyone is better off having this issue raised and determined at the outset through case management and recourse to R.2.1.

[22] I appreciate that this will be frustrating for the appellant. As a self-represented litigant, he cannot be faulted for following directions from court staff about jurisdiction. In these circumstances I would ordinarily consider transferring this matter to the Court of Appeal. However, the other concerns with the appeal weigh against that, as I shall explain.

[23] Third, in respect to items 1 and 6, the court is concerned that the appellant has failed to provide a meaningful response to the court’s concerns. Those concerns are important – indeed, they are fundamental to the ordered process for arbitrations that has been stipulated by the Legislature.

[24] The scheme of the Arbitrations Act is clear on this point. The Arbitrator makes the decision. If no appeal or review is taken from that decision, the order “binds the parties” and is then enforceable. On application, the Superior Court is required to enforce the order unless the circumstances set out in s.27(3) of the Arbitrations Act exist. The application judge may not inquire into the underlying merits of the Arbitrator’s decision – or, put another way – the application judge may not conduct a review or hear an appeal of the decision of the Arbitrator – on an application for enforcement.

[25] If the appellant had wished to pursue an appeal or an application for judicial review, he was required to do that within thirty days of the arbitral decisions. He did not do that, and so the arbitral decision became enforceable. He was not entitled to mount a collateral attack on the arbitral decisions during the enforcement application.

[26] I know the appellant believes the Awards are wrong. He has stated that very clearly. However, his recourse for those concerns lay in an appeal or an application for judicial review. He did not take those steps, and he is foreclosed from taking those steps during the course of enforcement proceedings.

[27] The application judge made these principles clear in her decision. I made them clear in the explanation of the court’s concerns giving rise to the R.2.1 notice. The appellant has not answered these concerns, and instead has repeated his reliance on his arguments that the Arbitrator’s decisions are wrong.

[28] The appellant states that he explained to the application judge why he did not appeal or seek judicial review of the Arbitrator’s decision. He states that he cannot put that explanation in front of this court because a transcript of oral argument has not been released to him. With respect, that is not the point. For the purposes of the application below, it does not matter why the appellant did not appeal or seek judicial review of the Arbitrator’s decision. The application judge had no jurisdiction to conduct a review or appeal from the Arbitrator’s decision. On appeal from the application judge, this court has no jurisdiction to conduct an appeal or review of the Arbitrator’s decision. The appellant does not respond to this argument by saying that he has grounds for an appeal or review. Further, the appellant’s reliance on unavailability of a transcript of argument before the application judge is, itself, vexatious. Oral argument is not part of the record below. It is not evidence. If the appellant had an explanation that he provided to the application judge that he thought was material to this court for the purposes of these R.2.1 proceedings, he could have set that out in his response to the R.2.1 notice.

A Note On Transcripts

[29] This court frequently hears requests from self-represented litigants for transcripts of arguments on appeals from motions and applications where the record is in writing. Such transcripts are generally not required for an appeal in this court and are generally irrelevant. Appeals are based on the decision below, which is reviewed on the evidence below and the law. Oral argument is neither evidence nor law. Nothing in the Notice of Appeal in this case identifies an issue on appeal that would require a transcript of oral argument in this case.

The Principle of Finality

[30] The position of the appellant offends the principle of finality, which is a pillar of the justice system. Failure to respect the finality principle is a hallmark of vexatious litigation.

[31] Litigation and arbitration are forms of formal conflict resolution. They follow prescribed procedures. After those processes conclude, and appeal and review rights have been exhausted or expired, the matter becomes beyond dispute. It is decided. Whatever anyone may think of the decision, it is over.

[32] The appellant may not mount an attack on the arbitration decision during enforcement proceedings. To do so is vexatious. That is what the appellant tried to do unsuccessfully, before the application judge, and that is what he seeks to do in this appeal.

The Way Forward for the Appellant

[33] It is clear that the appellant thinks the Arbitrator’s decisions are wrong and the resulting orders are unjust. He has two alternative ways forward. One is that he can accept that he has lost, and whatever he feels about that result, he accepts that the matter has been decided on a final basis. The other is that he seeks an extension in the time in which to appeal or seek judicial review of the Arbitrator’s decisions. The test to obtain an extension is a stringent one: see Wellwood v. Ontario (Provincial Police), 2010 ONCA 386. But if the appellant can meet the test, he may yet be able to challenge the decisions of the Arbitrator. If he cannot meet that test, then whether he accepts it or not, the matter is over.

Summary and Disposition

[34] The appellant is in the wrong court in respect to an appeal from the application judge’s decision. Four of his other claims are vexatious on their face – they seek orders from this court that are not within this court’s jurisdiction to grant. And in respect to the grounds advanced for the only proper appeal available from the decision of the application judge, the appellant has only advanced grounds that constitute a collateral attack on the Arbitrator’s decisions, issues that are not open to debate in the enforcement proceedings. I dismiss the appeal for lack of jurisdiction in this court. I decline to transfer the appeal to the Court of Appeal because the appeal, itself, is frivolous, vexatious and an abuse of process.

[35] The appeal is dismissed pursuant to R.2.1.01, without costs.

Finality of this Decision

[36] This decision terminates this appeal in the Divisional Court. There is no further process available to the appellant in respect to this appeal in this court. If the appellant seeks to challenge this decision, his recourse is by way of a motion for leave to appeal this decision to the Court of Appeal.

Further Terms

[37] As noted at the start of these reasons, the court advised the appellant that it is considering restricting his access to this court in respect to matters related to this litigation, because of his vexatious conduct respecting this appeal. The court has noted several aspects of the appellant’s conduct that suggest that he is a vexatious litigant. However, as a self-represented litigant, this court should exercise caution in imposing restrictions on the appellant’s access to justice, given that the conduct of this appeal is the only basis before this court for such an order. I conclude that this one vexatious appeal is not a sufficient basis to impose restrictions in future on the appellant’s access to justice in this court, and I decline to impose such conditions. If the appellant should engage in further vexatious proceedings in this court, however, the court can consider this appeal as part of any pattern of conduct that might ground such an order in future.

“D.L. Corbett J.”

March 24, 2022

[^1]: This decision was amended on March 25, 2022 to correct an error in para 1.