CITATION: Persaud v. Estate of Rita Persaud, 2022 ONSC 2073

DIVISIONAL COURT FILE NO.: 129/22

DATE: 20220404

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MOHINI PERSAUD v. ESTATE OF RITA PERSAUD

BEFORE: D.L. Corbett J.

Rohini Persaud, self-represented

HEARD: April 4, 2022, in writing

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement explains why I am dismissing as abandoned, Mohini Persaud’s motions for leave to appeal from orders of Gilmore, Kimmel and McEwen JJ. for failing to follow case management directions.

[2] Ms Persaud has conducted herself vexatiously throughout these brief proceedings in the Divisional Court. Any further proceedings she brings in this court shall be case managed by an administrative judge of the Divisional Court, and Ms Persaud is ordered to bring this requirement and a copy of this endorsement to the attention of court staff if she seeks to commence further proceedings in the Divisional Court: Peoples Trust Company v. Atas, 2018 ONSC 58 paras. 306-309, 357(4), aff’d . 2019 ONCA 359, leave to appeal to SCC dismissed 2020 29393.

[3] If Ms Persaud repeats this conduct in further Divisional Court proceedings, the court may add a requirement that she be represented by counsel (at her own expense) or may preclude her from commencing or taking steps in any proceedings in this court without prior leave of an administrative judge of the Divisional Court: Lum v. College of Physiotherapists of Ontario, 2020 ONCA 271.

Overview

[4] On February 28, 2022, Mohini Persaud initiated Divisional Court motions for leave to appeal interlocutory orders made in relation to pending motions scheduled to be heard in the Commercial Court on April 20, 2022. Ms Persaud requested a stay of the impugned orders, and of the underlying Commercial Court proceedings, until her appeal proceedings were concluded in this court.

[5] Consistent with this court’s usual approach, this court refused to schedule an interim stay motion and instead established an expedited process for the motions for leave to appeal to decide those leave motions before April 20, 2022, prior to the pending motions below. The issue of an interim stay could then be considered if leave to appeal was granted.

[6] Ms Persaud failed to serve and upload to CaseLines her motion materials for the motion for leave to appeal by the scheduled deadline. This was her choice, and as a result her leave motions will not be adjudicated before the pending motions below are heard. Thus, the motions for leave to appeal will be rendered largely or entirely moot: a party may not pursue appeal rights in respect to interlocutory orders that have merged in the disposition of ongoing proceedings in the court below: CAMPP Windsor Essex Residents Association v. City of Windsor, 2021 ONSC 3456, para. 7. Ms Persaud was warned repeatedly about the deadline, and the prospect of dismissal of her leave motions if she missed the deadline.

[7] Finally, Ms Persaud has conducted herself vexatiously in this court. I recount the exchange of communications in this matter which, on their face, show Ms Persaud refusing to follow court directions, challenging directions repeatedly after they have been made, seeking to delay and prolong conflict, failing to discharge her responsibility as a litigant, and impugning the court’s conduct because it did not accord with her view on how the proceedings ought to be managed.

[8] Adverse parties and the administration of justice require protection from this kind of conduct, which absorbs excessive time and resources.

[9] To be clear to Ms Persaud, to guide her future conduct as a litigant:

(a) when the court issues a direction, that is the end of discussion on that topic, not an invitation for debate or discussion.

(b) when a court makes a decision, it provides such justification for the decision as it considers appropriate in the circumstances. Those are the reasons, and the court will not debate its justification, or provide further justification, after the fact.

(c) Ms Persaud’s agreement with a direction is not a condition precedent for that direction being effective.

(d) case management is management of a case by the court, not by Ms Persaud.

(e) the court is obliged to assist self-represented litigants to navigate the court process so that disputes will be decided by a fair process on the merits. The court is not obliged to engage in a running colloquy with a self-represented litigant, to provide the litigant with legal advice, to entertain debates about decisions after-the-fact, or to grant accommodations that prejudice the interests of other parties or the administration of justice.

(f) most self-represented litigants are not vexatious litigants; however, most vexatious litigants are self-represented. Being self-represented is not license to be vexatious.

Context

[10] The underlying proceedings are estate litigation. Ms Persaud is self-represented in those proceedings. The proceedings below have, apparently, been actively case-managed. Currently, by virtue of an order of Kimmel J. made January 21, 2022, a “settlement enforcement motion” and a “stay motion” are scheduled to be heard on April 20, 2022. It is clear from Kimmel J.’s endorsement that Her Honour intended to provide all the directions and terms necessary so that the scheduled motions would proceed as scheduled. Paragraph 21(m), (n) and (o) of the endorsement make this intent clear:

m. To ensure that this timetable is adhered to, there shall be no other motions brought by any party prior to the return of the motions now scheduled to be heard on April 20, 2022, without leave of the court. Any such leave motions will only be considered if there is demonstrated relevance and urgency.

n. This timetable shall be adhered to without exception so as to ensure that motions can be heard as scheduled, with or without the contemplated evidence and filings. A party’s failure to participate or adhere to this timetable, and any consequences that may flow from that, may be raised in the context of a party’s position or terms sought at the return of the settlement enforcement and/or stay motions, in the manner that the Rules provide for.

o. If any party is dissatisfied with a previous court order or endorsement, their recourse is as prescribed under the Rules. The parties are reminded that the court will not entertain challenges to, or requests to vary, previous court orders or endorsements at a case conference, except with respect to timetabling.

[11] McEwen J. made orders previously in the underlying proceeding on January 11, 2021 and on May 27, 2021. These orders were effective when made. Issues apparently arose about some aspects of these orders, and a case conference was held before McEwen J. on February 7, 2022, to address “clerical errors” in the orders. Justice McEwen’s endorsement from February 7, 2022 reads as follows:

I conducted a case conference to deal with the confusion concerning two orders that I granted in these matters, being the orders of January 11, 2021 and May 27, 2021. I have attached copies of these orders for convenience.

The corrections I wish to make are as follows:

1. With respect to the January 11, 2021 order, the preamble states that “these Applications” were heard. This was a clerical error. Instead, only a case conference was held that day. I have corrected the error in the Amended Order which I have also attached.

2. With respect to the May 27, 2021 order, there are two errors. The date of the endorsement is “24 June 15”. It should be “24 June 21”. Also, the order was amended to note that Mr Kalen Brady did not attend. According to the counsel slip, he did attend. Again, given these were clerical errors I am amending the May 27/21 order which I have also attached. None of the parties quarrel with the corrections. Notwithstanding the objections of Ms Mohini Persaud I do not believe that any other amendments are warranted.

I did indicate at the case conference however that RBC documentation referred to at para. 2 of the Jan. 11/21 order should be provided by Wagner Sidlofsky LLP to the other parties and counsel indicated that this had been done.

Last, I am instructing the Estates Office to accept the two orders with the multiple titles of proceeding, and to file them in the action and the two applications as per the file numbers in the handwritten endorsement.

[12] By notice of motion dated February 22, 2022, provided to this court by email on February 28, 2022, Mohini Persaud sought leave to appeal the orders of McEwen J., Kimmel J., and aspects of an order of Gilmore J. made January 4, 2022, sought a stay of these orders, and a stay of the underlying proceedings pending determination of the appeal (among other relief claimed).

[13] In the notice of motion, Ms Persaud also sought orders from this court to obtain transcripts of various case conferences and motions heard in the court below.

[14] Ms Persaud’s email attaching her Notice of Motion for leave to appeal was received in the court office at around 4 pm on February 28, 2022. At 10:00 am the following day, March 1, 2022, the court provided the following direction:

Justice Corbett directs me to advise you as follows:

A motion for leave to appeal may be heard and decided as quickly as a motion for stay. Barring extraordinary circumstances, this court will not schedule a stay motion prior to a motion for leave to appeal has been decided.

Transcripts of motions appearances are not required for a motion for leave to appeal, and barring extraordinary circumstances, this court will not direct preparation of transcripts prior to a determination of the motion for leave to appeal.

The moving party shall advise this court, as soon as possible, as to when he will be able to serve his motion materials for the motion for leave to appeal, after which the court will provide further directions.

If the moving party believes that extraordinary circumstances exist justifying departure from the principles set out above, he may request a case conference. He should begin preparation of his motion materials for leave to appeal without delay in any event.

All of these directions are in accordance with usual practice in Divisional Court for a motion for leave to appeal that could impact on the orderly process of ongoing litigation in the court below. The goal, as reflected in these directions, is to provide a timely decision on the motion for leave to appeal without interrupting ongoing proceedings below.

[15] Ms Persaud responded to the court as follows on March 2, 2022:

I have a pre-scheduled hearing on March 11, before Justice Dietrich that deals with overlapping issues in this appeal that might have cost-effective and timesaving results.

Pending the outcome of this hearing before Justice Dietrich, I am requesting to hold off on serving my Motion Record, which may be affected by the same.

I, respectfully ask that the Honourable Justice Corbett give me this time.

Please advise if this will be granted.

Thank you.

[16] In response, the court directed as follows on March 2, 2022:

The moving party has asked that delivery of his motion materials be deferred until after an appearance before Dietrich J. on March 11, 2022.

This is a short period and the court is prepared to defer scheduling until after the conference, but wishes to be clear that this court makes no finding that the reason for the deferral is material to scheduling in this court. It is such a short period that the court is prepared to grant the request without making further inquiry.

The moving party has indicated previously that he considers the matter urgent and that he would like to seek a stay pending a motion for leave to appeal. The moving party should understand that deferring process in this court may be considered a factor in assessing whether there is urgency that justifies expediting the motion in this court or scheduling a stay motion before decision on the motion for leave to appeal.

The moving party is directed to advise this court by March 14, 2022 of the date by which he will serve his motion materials for the motion for leave to appeal, after which the court will provide further directions.

[17] Ms Persaud responded on March 3, 2022, as follows:

The Applicant, Miss Mohini Persaud, thanks the Honourable Justice Corbett for granting the deferral of her Motion materials until after the case conference before Dietrich J.

The Applicant does not intend on diminishing the urgency of her appeal, however, she wishes to make clear to the Honourable Justice Corbett that she has been and is doing everything possible to resolve this situation with McEwen J.'s courthouse before proceeding with her appeal in Divisional court.

As such, it is prudent to have the pre-scheduled hearing before Dietrich J. which deals with overlapping issues that might result in time savings and cost effectiveness.

The unredacted transcripts and audio tapes of hearings before McEwen J., Kimmel J. and Gilmore J. are necessary in order to properly prepare the Applicant's Motion Record for the Motion to Seek Leave to Appeal.

The Applicant is a Self-Represented Litigant who doesn't understand why the Honourable Justice Corbett has indicated the unredacted/unedited transcripts and audios are not necessary for the Motion to Seek Leave to Appeal.

The Applicant, respectfully asks that the Honourable Justice Corbett clarify this issue.

Thank you for your consideration.

The Applicant, Miss Mohini Persaud

[18] The court responded as follows on March 3, 2022:

The moving party asks why transcripts are not necessary on a motion for leave to appeal.

A motion for leave to appeal is based on the "record" and decision from the court below. The "record" includes the evidence, but not the arguments made below. This court understands that all of the evidence below was in writing, and that no oral evidence was taken in the court below, as is the case in almost all interlocutory motions below. Thus it is probable that a transcript of oral argument at the hearing of the motion would be irrelevant on the motion for leave to appeal.

Further, on a motion for leave to appeal the moving party is entitled to submit affidavit evidence in support of the motion, in which the moving party describes the grounds of appeal and why the issues on appeal transcend the interests of the parties and are of such importance to the law that this court should grant leave to appeal (see R.62.02(4)).

A moving party is not precluded from filing transcripts of argument on a motion for leave to appeal, but this court will not generally delay a motion for leave to appeal to obtain transcripts, and generally will not order production of transcripts of argument if the presiding judge has declined to authorize release of the recording of the hearing for the purposes of the motion for leave to appeal.

If the moving party believes she needs the transcript for the motion for leave to appeal, she may file all her motion materials and ask that the leave panel adjourn its decision on the leave [motion] until transcripts are obtained.

[19] Ms Persaud then emailed the court as follows on March 11, 2022:

I respectfully need some clarification as to the following:

"A motion for leave to appeal is based on the "record" and decision from the court below. The "record" includes the evidence, but not the arguments made below. This court understands that all of the evidence below was in writing, and that no oral evidence was taken in the court below, as is the case in almost all interlocutory motions below. Thus it is probable that a transcript of oral argument at the hearing of the motion would be irrelevant on the motion for leave to appeal."

Why does the court believe that the evidence "below" (in my email below?) was in writing and not oral?

The Applicant's appeal is based on oral discussions at case conferences and one motion hearing (that was adjourned) that suggest palpable and overriding error and/or biases against the Applicant by the Case Manager McEwen J. This resulted in productions and other orders that were originally granted to the Applicant, being given to the Respondent Lawyers who never asked for them or had any need to ask for them. The Applicant believes this is an error of law.

Further, the Applications were given priority over the Respondent's enforcement of a settlement and/or dismissal of the applications throughout the Effective Case Management Period. After the palpable and overriding error and/or biases came to light at the close of the Effective Case Management Period, the applications were prevented from advancing, while the enforcement of the Settlement was expedited. Again, this is believed to be an error of law.

This is why the unredacted/unedited transcripts and audios of the case conferences and motion hearings are needed. In addition, a stay motion is also needed to stop all actions in the 3 Court Files this affects until the unredacted transcripts can be received to properly prepare the Affidavit and properly file the Motion Record.

As already stated, the hearing before Dietrich J. was pre-scheduled by the Applicant to resolve these overlapping issues for the reasons already mentioned.

Because the deadline for the appeal would have expired before the hearing with Dietrich J., it was necessary to file the appeal before the expiration date.

The Applicant respectfully asks the Honourable Justice Corbett what steps she should take in light of her predicament.

Thank you for your kind consideration.

The Applicant, Ms. Mohini Persaud

[20] The court provided the following further direction on March 4, 2022:

"Discussions at a case conference" are not evidence. The court has given its directions, as follows:

"If the moving party believes she needs the transcript for the motion for leave to appeal, she may file all her motion materials and ask that the leave panel adjourn its decision on the leave panel until transcripts are obtained."

The orders below are not stayed pending decision on the motion for leave to appeal, so if the moving party believes matters to be urgent, she should prepare and serve her motion materials without further delay.

If the moving party is still uncertain how she should proceed, she may request a case conference with this court.

[21] Ms Persaud responded as follows on March 4, 2022:

Good Afternoon,

THE APPEAL: In short, the Applicant filed a Disclosure Application because the Respondent Lawyers refused to provide disclosures. During case conferences, McEwen J. and Dietrich J. ordered in the Applicant's favour to prioritize productions and other steps to advance the Application. Due to palpable and overriding error and/or biases against the Applicant, McEwen J. essentially started reversing his orders and those of Dietrich J. either directly and/or indirectly through other Justices. This resulted in the Respondent Lawyers getting the disclosures they already had or were to have. This also resulted in preventing the Applications from being heard, while expediting the enforcement Settlement.

The "discussions at the case conferences" are evidence of what was agreed to by McEwen J. during his Effective Case Management Period; the palpable and overriding error and/or biases against the Applicant at the close of the Effective Case Management Period; and thereafter. The same holds true for the case conference before Kimmel J.

The Applicant, respectfully, requests the Honourable Justice Corbett to provide the Rule in the Rules of Civil Procedure or Courts of Justice Act or any other Act that allows Justices to edit and/or redact transcripts before releasing them to the ordering party and prohibits the Self-Represented Litigant from access to the Case Conference audios and/or unredacted/unedited transcripts. This is particularly a concern, given that they are needed for an application for Judicial Review; a Complaint that has already been filed with the Canadian Judicial Council and/or a Human Rights Application. In these scenarios, the Justices would be conflicted in doing so -- just as in this Appeal.

The discussions at the one motion hearing before Gilmore J. is also evidence of what was agreed to by Gilmore J. compared to what her written endorsement and issued order says. Please provide any Rules or Acts that allow this Justice to refuse the release of this audio and/or the ability to redact/edit the transcripts.

Given that the appeal is about the original spirit and intent of the orders made during the Effective Case Management Period (that the Applicant has not been able to give practical effect to) compared to the orders after the Effective Case Management Period, the discussions at the Case Conferences and one Motion Hearing that produced orders and/or led to the production of orders are imperative for the Applicant's Affidavit and Motion Records.

The Applicant is hesitant on agreeing to attend a case conference to discuss further because, all of the case conferences and one motion attended (other than those before Dietrich J.) have prevented the Applicant from speaking (unless she interrupts) and have allowed the Respondent lawyers to dominate the hearings and distract the court with irrelevant discussions on frivolous, vexatious issues (instead of the issues in the Applications) created by the Respondent lawyers to build a baseless case against the Applicant (evidenced by, pretty-much, every brief they filed). This has resulted in more hearings, increased costs and an abuse of process (due to the continued delays).

If a judge does not have to honour the orders they agree to at a case conference and it cannot be enforced, then, what's the point of having a case conference? I don't say this to be disrespectful at all. It just occurs to me that they defeat the purpose they were intended for. Please provide me any Act that allows a judge not to honour the original spirit and intent of their order - I assume if they were allowed to amend, it must be for reasons other than biased, personal ones.

I will use whatever evidence I have available to write my Motion Materials but will make very clear that I was denied access to the unredacted/unedited transcripts and audios to effectively argue my Motion.

This is a sad state of court affairs and the fact is most Canadians cannot afford hundreds of thousands of dollars to get lawyers (unless they steal an estate).

Please excuse my bluntness, but I don't know any other way to be.

Thank you for your kind consideration.

The Applicant, Ms. Mohini Persaud

[22] On March 7, 2022, the court directed as follows:

Justice Corbett directs me to advise you as follows:

Case management directions are not a debate. The court has provided directions. If the moving party is still uncertain how she should proceed, she may request a case conference with this court.

[23] Ms Persaud then sent the following emails to the court (all on March 7, 2022):

11:02 am

I'd like to schedule a case conference with the Honourable Justice Corbett.

To help me prepare, I'd like some information as to the relevant rule or law on a judge's right to prevent me from getting access to the disclosures (unredacted/undedited transcripts and audio tapes) in these circumstances which is needed for the Leave to Appeal, the complaint to the Canadian Judicial Council and/or an application for Judicial Review and/or an application to the Human Rights Tribunal because of the same probable bias.

Please advise the earliest date available after my March 11, 2022 case conference with Justice Dietrich.

I apologize for any misunderstanding on the subject of case conferences, but people tend to react to future similar circumstances based on their past experiences, psychologically speaking - that's a very natural human reaction.

The only case management experience I've had is with McEwen J.'s courthouse in this matter and it appears to have achieved the very opposite of what case management is supposed to achieve - cost and time savings.

I need the steps and timetable to achieve the goals set out in my Notice of Motion in the most cost effective and timesaving way.

I appreciate the Honourable Justice Corbett's assistance in this matter as I feel I am at a procedural crossroads.

Thank you for your kind consideration.

The Applicant, Ms. Mohini Persaud

1:06 pm

With all due respect, I'm not sure what the Honourable Justice Corbett directs at this moment based on your last email response sent on Monday, March 7, 2022 10:12 AM regarding a case conference hearing.

Regarding directions for a case conference, your email from Friday, March 4, 2022 2:05 PM said,

"If the moving party is still uncertain how she should proceed, she may request a case conference with this court."

From this statement, it appears the direction for a case conference was an option given to me and not mandated. I only explained my position on case management to provide clarity as to my hesitance.

Is the Honourable Justice Corbett now mandating case management? If so, I believe at least McEwen J. needs to be in attendance. Please advise.

At any rate, I did some investigations on getting the unredacted/undedited transcripts. My findings: Judicial approval of transcripts is prohibited when the transcripts are for a complaint to the Canadian Judicial Council on the Justices in question (and by extension an application for Judicial Review). Presumably, this is due to a conflict of interest, which was noted in my Notice of Motion.

In this way, I believe it is prudent to follow up with the Canadian Judicial Council who has my complaint for further directions.

Due to the bad experience I've had with case management, I would prefer to continue communicating through emails.

I'm at a procedural crossroads as follows:

1. If I file my motion materials for the Motion to seek leave to appeal at this point, I won't have the unredacted/undedited transcripts (disclosures) to properly substantiate it. This means I likely won't be granted the leave or the stay.

2. If I file and adjourn, I won't get the stay.

The result of both #1 & #2, the settlement will be enforced (since it is still being heard in McEwen J.'s courthouse) and my application will be moot.

Is there something I am missing?

If the Applicant requests a case conference, as the moving party, will she be allowed to speak? This is how they are supposed to work, but didn't.

Perhaps the Applicant needs directions as to the steps and timetable (this was never given throughout McEwen J.'s case management, despite numerous requests and this is why the Applicant thinks case management is useless. It's not really a debate but an observation).

Please advise how she should proceed.

Thanks for your kind consideration.

The Applicant, Ms. Mohini Persaud

4:02 pm

I just wanted to, once again, clarify to the Honourable Justice Corbett that, as a Self-Represented Litigant, I may not be communicating as well as a person who has been trained as a lawyer and I have limited resources to attain the help of a lawyer. To that extent, I apologize if I am not very clear or too blunt.

Further, I can only draw from my past experiences with case management which have not been good.

I'll try to explain once again.

My Appeal is based on probable bias of McEwen J. and/or the other Justices. In this way, McEwen J. and/or the other Justices should not be in a position of possibly redacting/editing the evidence contained in the transcripts needed to prove my case.

The onus is on me to prove the merits of my appeal. I cannot put my best foot forward in making the case for leave to appeal unless I have access to the unredacted/unedited transcripts and audio tapes which may contain the evidence necessary. I also need the stay in order to receive the disclosures, review and prepare my Motion materials properly.

I would also like to know before attending any case conference (if a case conference is needed) what the relevant rule or law is on a judge's right to prevent me from getting access to the disclosures (unredacted/unedited transcripts and audio tapes) in these circumstances which are also needed for a complaint to the Canadian Judicial Council and/or an application for Judicial Review because of the same probable bias. Rule 30 of the Rules of Civil Procedure stresses the importance of disclosures and I believe the Courts of Justice Act also stresses the same. I respectfully ask the Honourable Justice Corbett for this information.

Once I have the rule and/or law, I'll be in a better position to research the rule and/or law and respond to it properly to make the case conference more efficient, if one is needed.

In my opinion, any case conference should be addressing this question but I can't prepare or respond properly in the case conference unless I have access to that rule and/or law.

Thanks kindly for your consideration.

The Applicant, Ms. Mohini Persaud

[24] In response, the court directed as follows on March 9, 2022:

Justice Corbett directs me to advise you as follows:

As requested, the court will schedule a case management teleconference after March 11, 2022.

The moving party may raise any questions or concerns she has with the case management judge during the case management conference.

The court appreciates that the moving party is a self-represented litigant, and is entitled to assistance from staff and the court to navigate the court's process so that her motion may be determined on the merits following a fair process. This requirement to assist the moving party does not include responding to inquiries to justify directions that have been given. If the moving party does not understand the directions that are provided, the court will try to explain them further. The court will not, however, respond to requests for justification for directions given, or debate the merits of those directions with any litigant. The court will explain this principle to the moving party in more detail at the case conference.

This direction does not modify or qualify directions given previously.

The case conference was scheduled for March 15, 2022.

[25] On March 11, 2022, Ms Persaud wrote to the court as follows:

Due to technical difficulties, the case conference before Dietrich J. had to be adjourned to March 22, 2022.

In this way, I seek directions from the Honourable Justice Corbett as to how to proceed.

Please advise.

Thank you.

The Applicant, Ms. Mohini Persaud

[26] The court provided the following direction in response:

The order below is not stayed pending a case conference in this court or pending the motion for leave to appeal.

The moving party asked to defer the case conference until after a conference with Dietrich J. scheduled for March 11, 2022. Apparently that conference before Dietrich J. has been adjourned until March 22nd because of technological difficulties on March 11th. The moving party seeks directions from this court on how to proceed in this court as a result of this development.

If the moving party wishes, this court will defer proceedings in this court until after March 22nd, to afford the parties further time to appear before Dietrich J. However, this court cannot advise the applicant on whether this is a wise course of action for her. The order below is not stayed currently, and likely will not be stayed pending a motion for leave to appeal. Ordinary prudence would suggest that moving promptly on the motion for leave to appeal would be advisable if the moving party considers the matter urgent.

For now, the conference in this court will remain as scheduled to proceed as previously directed. If the moving party wishes to defer it, she should make that request of the court by email.

[27] Ms Persaud responded on March 11, 2022, as follows:

I'd like to proceed with the case conference by telephone with the Honourable Justice Corbett as scheduled on March 15, 2022 at 3:00 p.m.

I'm asking to defer the Honourable Justice Corbett's deadline (March 14, 2022) previously directed, as to when the moving party/Applicant must advise the Honourable Justice Corbett as to when the Applicant/moving party intends on filing her Motion materials, until after the case conference with the Honourable Justice Corbett scheduled for 3:00 p.m. on March 15, 2022.

Please advise if the Honourable Justice Corbett will extend his deadline of March 14, 2022 for the Applicant to advise him as to when her Motion materials will be filed for the Motion to Seek Leave to Appeal. -- until after the March 15, 2022 telephone case conference before the Honourable Justice Corbett.

Also, please confirm how the Applicant can file her short case conference brief for the telephone case conference on March 15, 2022. Can she send it to this email address or is there another one? Please advise.

Thank you.

The Applicant, Ms. Mohini Persaud

[28] The court then directed as follows on March 11, 2022:

The March 14th deadline is set aside - scheduling will be discussed at the case conference, which shall proceed as scheduled.

Parties are not permitted to file case conference briefs for case management in Divisional Court.

[29] Ms Persaud then emailed the court as follows:

4:47 pm

I haven't heard from you but wish to inform the Honourable Justice Corbett that I am a Self-Represented Litigant and therefore have little experience with court procedures and processes.

I filed my Notice of Motion to Seek Leave to Appeal in order to preserve my right to appeal but I won't know about whether to move forward until after the hearing with Justice Dietrich on March 22, 2022. I just read the following section that I believe applies to me: Notice to Profession – Divisional Court, Section D.2(6) that states, "Where a party wishes to commence a proceeding to preserve the party’s rights, but does not wish to proceed immediately or to give notice of it to other parties, the party need not send a copy to all other parties [or provide addresses and email addresses for opposing parties], but should clearly indicate, instead, that the party wishes to commence but not yet move forward with the application." As such, I don't believe I have to copy the other parties on any further emails and, at this time, I am cancelling the case conference with the Honourable Justice Corbett scheduled for March 15, 2022 at 3:00 p.m.

In this way, is the deadline prescribed by the Honourable Justice Corbett for me to advise by March 14, 2022 as to when my Motion materials will be served on the other parties necessary?

Please confirm.

I appreciate all of the Honourable Justice Corbett's help

Thanks,

The Applicant, Ms. Mohini Persaud

10:29 pm

I guess I was sending you an email at the same time as you sent the one below.

I was cancelling the case conference scheduled for March 15, 2022 at 3:00 p.m. with the Honourable Justice Corbett because the Respondent lawyer, Mr. Hershel Sahian had sent me a letter threatening to declare me a vexatious litigant for agreeing to the case conference. To this extent, I've attached Mr. Sahian's letter and email sent on Mar 11, 2022 4:24:34 p.m.

Why am I a vexatious litigant for following the Honourable Justice Corbett's directions?

I have also attached my last email to you cancelling the case conference as a reference.

I guess I panicked when the Respondent lawyers sent their letter and this is indicative of their conduct that is not expected of officers of the court.

I am a Self-Represented Litigant unfamiliar with the court's procedures & processes.

Any way, I am going to continue to follow the Honourable Justice Corbett's directions and attend the March 15, 2022 case conference at 3:00 p.m. - please disregard my last email to cancel.

I looked up Rule 63.02 in the Rules of Civil Procedure that states: "(1) An interlocutory or final order may be stayed on such terms as are just,

(a) by an order of the court whose decision is to be appealed;

(b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken. O. Reg. 465/93, s. 8. "

Because time is of the essence and Justice Dietrich adjourned her case conference to March 22, 2022, I may be at a disadvantage if I have to wait so long to get the stay and looks like I may have to set up a hearing for an order to get unredacted/unedited transcripts and audios which will take some time. This is going to hold me up from Perfecting my Appeal. In this way, I'll prepare a Certificate of Stay and send to you ahead of the hearing for you to sign.

Sorry for the misunderstanding but I got scared by Mr. Sahian's letter.

Please don't cancel the case conference at 3:00 p.m. on March 15, 2022.

Thanks for your kind consideration.

The Applicant, Ms. Mohini Persaud

[30] The court then directed as follows:

The case conference will proceed on March 15, 2022 at 3 pm as scheduled.

[31] The case conference proceeded as scheduled. The court issued the following direction on March 16, 2022, after the case conference:

Justice Corbett directs me to advise you as follows:

The court confirms the case management teleconference held March 15, 2022.

1. The moving party's motion materials for the motion for leave to appeal shall be served and uploaded to CaseLines by March 28, 2022.

2. Responding materials on the leave motion shall be served and uploaded to CaseLines by April 11, 2022.

3. The parties shall provide their motion materials for the motion for leave to appeal (including costs materials) to the court by uploading them to CaseLines by April 11, 2022.

4. The parties are directed to the court's Notice to Profession dated February 18, 2021 and are asked to follow the Notice in respect to (a) materials uploaded to CaseLines; (b) "filing" materials with the court; and (c) payment of court fees. The parties are advised that during oral argument, the court expects them to refer to materials by CaseLines page number, and not by reference to the page number or by tabs in the record: use of CaseLines page numbers assists the court to navigate through the record during oral argument using the "Find Page" function in CaseLines.

5. This motion for leave to appeal shall be heard in writing by a panel of three judges of the Divisional Court on an expedited basis the week of April 11, 2022 or as soon after that as it may be reached. A motion is scheduled in the Commercial Court on April 20, 2022, and a decision on the leave motion before that date would be of benefit to the parties.

6. The impugned orders and the proceedings below are not stayed pending decision on the motion for leave to appeal.

7. The moving party again raised the issue of transcripts. The court's prior directions on this issue are clear. The moving party is entitled to place affidavit evidence before the court for use on the motion for leave to appeal in which she sets out the bases on which she says leave should be granted and why she says the issues warrant granting leave to appeal.

8. The moving party has mentioned "applications" respecting judicial conduct and alleged human rights violations in the proceedings below. Proceedings the moving party has or intends to bring before the Canadian Judicial Council and the Human Rights Tribunal are not matters properly brought before this court on this motion for leave to appeal.

9. The deadline to seek leave to appeal is fifteen days from the date of the impugned order. It appears that some or all of the motions for leave to appeal are out of time. The moving party should include in her motion a request for extensions of time in which to move for leave to appeal if the court considers them necessary, and should include in her motion materials her explanation (a) as to why the motions are not out of time; and/or (b) her explanation for the delay in seeking leave.

The parties are scheduled to appear before Dietrich J. for another case conference next week. I have explained to the parties that Dietrich J. does not sit on appeal from other judges in the Commercial Court, since the moving party indicated that the conference was for the purpose of "rectifying" orders made by another judge or judges. A copy of this direction shall be sent to Dietrich J. so that Her Honour is aware that there is an outstanding motion for leave to appeal in this court and that the proceedings in the Commercial Court have not been stayed pending decision on the leave motion.

[32] On March 17, 2022, Ms Persaud wrote to the court as follows:

I'd like to thank the Honourable Justice Corbett for clarifying everything for me.

I just wanted to know if I will have the opportunity to reply the responding motion record and if there is a deadline for this.

Thank you.

The Applicant, Ms. Mohini Persaud

[33] The court responded as follows on March 18, 2022:

Please advise the parties as follows:

Reply is permitted on a motion for leave to appeal. Reply materials are restricted to responding to new issues raised for the first time in responding materials and not for purposes of rebuttal of issues already addressed in the moving party's materials.

If the moving party wishes to deliver reply materials, she should so advise the court, with the date by which she will serve and upload her reply materials to CaseLines.

[34] On March 17, 2022, Ms Persaud also write to the court as follows:

I am sorry that, as a Self-Represented Litigant, I may not be familiar with all of the legal language used and procedures. This is why I wanted to submit something in writing before the March 15, 2022 case conference but was advised by Justice Corbett, I was not allowed to do so.

I have other concerns pertaining to the Honourable Justice Corbett's endorsement I only received this morning for some reason.

Regarding that Justice Dietrich's hearing scheduled for March 22, 2022, here is what the hearing was for:

"The parties are scheduled to appear before Dietrich J. for another case conference next week. I have explained to the parties that Dietrich J. does not sit on appeal from other judges in the Commercial Court, since the moving party indicated that the conference was for the purpose of "rectifying" orders made by another judge or judges. A copy of this direction shall be sent to Dietrich J. so that Her Honour is aware that there is an outstanding motion for leave to appeal in this court and that the proceedings in the Commercial Court have not ben stayed pending decision on the leave motion."

Here is what the hearing before Justice Dietrich currently rescheduled to March 22, 2022 was for: enforcement according to Justice Dietrich’s November 2, 2021, Order (the timetables also need to be amended). Both are scheduled to be heard concurrently on April 20, 2022. This would not give the Applicant sufficient time to receive & review the disclosures granted to her particularly the RBC bank productions and further productions, that she was not able to give practical effect to. Schedule another case conference to deal with the further productions, if necessary, preferably with Justice Dietrich due to her familiarity for efficiency.

2. An order to add respondents to the application needs to be materialized or a case conference for the same.

3. If #1 & #2 cannot be effected, schedule a hearing for a court order for unredacted/unedited transcripts and audios of case conferences and one motion to date in this matter to be used for a Motion to Seek Leave to Appeal, a Complaint already filed with the Canadian Judicial Council, and/or an Application for Judicial Review to be filed and/or a Human Rights Tribunal Application to be filed by the Applicant. The stay Motion would also need to be updated to reflect these actions to proceed before any enforcement of the settlement and to stay all actions in all three Court files for the same reasons.

4. If #1 & #2 can be effected, establish the steps and timetable to have the applications heard prior to any other actions in all 3 court files and place the matter back into case management with a different Case Manager, preferably with Justice Dietrich due to familiarity that would result in cost effectiveness & timesavings. Once the disclosures are received and the respondents added, the application can be heard, at the first available date

Unfortunately, as an SRL, I may not have been able to remember everything when the Honourable Justice Corbett asked me as to the reason for the hearing.

I researched Case studies that said, I am expected to do everything possible to resolve matters in the inferior court before proceeding to an appeal. Because I had already scheduled a hearing that was supposed to be heard on January 13, 2022 to resolve the production issues & McEwen J.'s orders, I thought it would be cheaper and require less time to proceed with this hearing before Justice Dietrich, before appeal.

The other challenge I indicated is that the Actions in all court files are proceeding expeditiously in the Commercial court, without the unredacted transcripts, audios & productions necessary to properly deal with them. It works out to me being denied disclosures that is contrary to Rule 49(2)(3)(4) of the Estate's Act, Rule 30, 74.16 & 74.17 of the Rules of Civil Procedure, Section 42 of the Substitute Decisons Act & Section 23 of the Trustee Act.

I am also not able to get a stay to give me the time to resolve the production matters, which will likely lead to yet another appeal, increased costs and more time delays.

I was in the process of cancelling the hearing with Justice Dietrich because Justice Corbett said she had no jurisdiction. This is confusing because she had previously clarified similar provisions in Justice McEwen's original January 11, 2021 order back on August 30, 2021, on the request of the Respondent Lawyers. (assuming due to Rule 59 of the Rules of Civil Procedure?).

In addition, Justice Kimmel's hearing was to clarify Justice Gilmore's 2 orders that contradicted Justice Dietrich's and Justice Cavanagh's previous orders. Justice McEwen's hearing on February 7, 2022 was to clarify both Justice Kimmel's, Justice Gilmore's and to sign and finalize his original January 11, 2021 order as well as his June 17, 2021 order. At the February 7, 2021 hearing before, Justice McEwen, he amended his January 11, 2021 order and refused to deal with anything else. (emphasis added)

I'd like the Honourable Justice Corbett to review the whole situation, at the earliest time possible as I have to let the scheduling office know if Justice Corbett's endorsement and case conference meant to imply I should cancel the case conference before Justice Dietrich based on the reason for the hearing before Justice Dietrich as stated above.

I think it might have been helpful if the Honourable Justice Corbett would have either provided me the questions he wanted to ask of me before hand so I could have researched/reviewed before attending or allowed me to file something to give him a background.

It's not that I don't like directions, it's just that I am not familiar with some legal terms used since I have no legal training and the procedures/processes of the court. I am a Self-Represented Litigant.

Please advise.

Thanks,

The Applicant, Ms. Mohini Persaud

1:22 pm

Sorry, all of the information for the hearing before Justice Dietrich on March 22, 2022 didn't get copied.

I have attached my Court Confirmation & Request Form for more information.

I look forward to hearing from the Honourable Justice Corbett as to whether to cancel the hearing or not.

Thanks,

The Applicant, Ms. Mohini Persaud

To this email Ms Persaud attached copies of her request form and confirmation form for the conference before Dietrich J. In the sentence underlined above, the appellant states that McEwen J. “refused to deal with anything else.” That is not what McEwen J.’s endorsement says (see underlined portion of the endorsement at para. 11(2) above). Based on the endorsement, McEwen J. “dealt” with the issues raised by Ms Persaud by declining to make changes to his order that she requested.

[35] This court responded to these emails on March 18, 2022, as follows:

Please advise the parties as follows:

As a self-represented litigant, Ms Persaud is entitled to assistance from the court to explain court processes. She is not entitled to a running dialogue with a judge of this court, nor is she entitled to legal advice from this court.

This court's endorsement is clear. The parties shall follow it. This court has clearly stated that the proceedings in this court have not stayed processes in the Commercial Court. Thus the parties shall follow the directions of the Commercial Court in respect to the processes in that court.

[36] On March 19, 2022, Ms Persaud wrote to the court as follows:

Hello,

Section D.2.(6) gives me the right to preserve my rights to appeal and not copy the other parties and I am using it.

I am a SRL (Self-Represented Litigant) and as such, I have attached the Statement of Principles on Self-represented Litigants and Accused Persons for Justice Corbett's review.

I know the Honourable Justice Corbett has directed me in order to assist in providing information only - thank you.

Respectfully, as communicated to you in my email sent: 03/17/2022 14:11, because you did not provide me any information before hand to understand why you suggested a case conference that was held on March 15, 2022 and would not allow me to research, prepare & submit materials before hand to make it more efficient, I felt ill-prepared for all your questions.

It is natural that, anyone functioning in a new field with no training, would not understand your legal jargon, procedures and processes - I believe case management is supposed to help with this.

I filed my Notice of Motion of the orders because I only had 15 days to do so and was not aware of the procedure until you provided your information.

As an SRL or any human being, this did not give me enough time to research and/or prepare properly and I only noticed Section D.2.(6) after I had filed. In addition, I had not realized that, in doing so, this implied "urgency", which is the case but there are challenges as already explained to you.

My emails sent on 03/11/2022 23:29 & 03/11/2022 17:47, might give you insight into my confusion.

Based on the information that you have provided in your emails & the case conference, I'm not sure Rule 62.02's Appeal route would be helpful at this time for all the reasons stated before.

As such, I am not ready to move forward on this and have decided to take another route.

I will notify the other parties and I hope you will preserve my right to proceed, should I need to, later.

At this time, this will be my last email to your court.

Take care and thank you for assisting in this matter.

The Applicant, Ms. Mohini Persaud

[37] The court provided the following direction in response on March 21, 2022:

Justice Corbett directs me to advise you as follows:

Ms Persaud is in error in concluding that she may communicate with the court in this matter without copying the other side, and may unilaterally decide to hold her motions for leave to appeal in abeyance. The provision to which she refers in the Practice Direction refers to commencement of a proceeding, not its process once it has been commenced and entered case management. This case is already in case management, and a party may not unilaterally bring the process of the case to a halt in this way.

This court's directions on March 16, 2022 remain in force. Ms Persaud may not relieve herself from them by sending an email to the court. In particular, Ms Persaud's materials for the motion for leave to appeal are to be served and uploaded to CaseLines by March 28, 2022.

It is open to Ms Persaud to abandon her motion for leave to appeal, which would be an end to the issue in this court. However, she should understand that if she abandons the motion for leave to appeal, she will not be able to re-start it later.

If Ms Persaud fails to comply with the court's direction for serving and uploading her motion materials by March 28, 2022, the court may dismiss the motion for leave to appeal as abandoned.

[38] Ms Persaud then wrote to the court again on this topic, on March 21, 2022, as follows:

In regard to the email below and specifically,

"The provision to which she refers in the Practice Direction refers to commencement of a proceeding, not its process once it has been commenced and entered case management. This case is already in case management, and a party may not unilaterally bring the process of the case to a halt in this way."

In the email from the court sent on: 03/04/2022 15:05, the court said,

"If the moving party is still uncertain how she should proceed, she may request a case conference with this court." - This was why I requested the case conference because I was uncertain as to how to proceed.

As a result of attending the case conference and thereafter having an opportunity to think about the information provided by the Honourable Justice Corbett , I've decided to preserve my right to appeal the orders but not to move forward at this time.

If by attending a case conference this prevented me from preserving my right to appeal the orders while deciding not to move forward at this time, then this should have been made clear to me - particularly since I am a SRL who is not familiar with the procedures and processes of the court.

I hope to resolve this misunderstanding and I have already advised the other parties that I will not be moving forward at this time but still wish to preserve my right to do so later, if necessary.

Thanks for your kind consideration.

The Applicant, Ms. Mohini Persaud

[39] The court responded as follows:

The court believes that it could not have been clearer. Ms Persaud may not decide unilaterally that she "will not move forward" but "preserve her right to do so later, if necessary." She must comply with the court's scheduling direction or risk having the motion for leave to appeal dismissed as abandoned, which will preclude her from "moving forward" with the motion for leave to appeal later.

[40] Ms Persaud then wrote to the court again on March 21, 2022:

In regard to the email below and specifically,

"The provision to which she refers in the Practice Direction refers to commencement of a proceeding, not its process once it has been commenced and entered case management. This case is already in case management, and a party may not unilaterally bring the process of the case to a halt in this way."

In the email from the court sent on: 03/04/2022 15:05, the court said,

"If the moving party is still uncertain how she should proceed, she may request a case conference with this court." - This was why I requested the case conference because I was uncertain as to how to proceed.

As a result of attending the case conference and thereafter having an opportunity to think about the information provided by the Honourable Justice Corbett , I've decided to preserve my right to appeal the orders but not to move forward at this time.

If by attending a case conference this prevented me from preserving my right to appeal the orders while deciding not to move forward at this time, then this should have been made clear to me - particularly since I am a SRL who is not familiar with the procedures and processes of the court.

In Section D.7 of Notice to Profession – Divisional Court, it says,

All matters in Divisional Court, and all steps in all matters in Divisional Court, are subject to case management by an Administrative Judge of the Divisional Court or a designate. The purpose of case management is to facilitate the timely adjudication of all matters in Divisional Court in a cost-effective and proportional manner.

I am reviewing the best cost-saving, timely route possible and I'm not sure moving forward with seeking leave to appeal, particularly with its limitations is the best avenue.

I believe the guiding principle behind case management is for cost-savings and timeliness. Am I incorrect?

I believe clarifying the production & conflict issues as addressed to the Respondent lawyers since 2019 before filing my disclosure and conflict application in the Commercial court, would be the most cost-effective, time-saving avenue.

I have presented the Respondents in my application with an Offer on March 10, 2022 and numerous emails to that effect, however, have had no response as yet as to the production issues in my disclosure application that are needed to address the conflicted Litigation Administrator and his conflicted Respondent Lawyers.

Instead of addressing the issues in my application and the disclosures needed, the Respondent Lawyers have continued to distract & divert the court with bald allegations of vexation against me and procedural maneuvers to take advantage of the fact that I am an SRL. Their case conference brief for the March 22, 2022 case conference before Justice Dietrich is a prime example.

The most cost-effective, time-saving solution would be if we can get the clarifying orders from the Commercial court, rather than a costly appeal, now or later.

I'd like to preserve my right to appeal the orders but not move forward based on the above.

Thanks for your kind consideration.

The Applicant, Ms. Mohini Persaud

[41] The court responded as follows on March 22, 2022:

Justice Corbett directs me to advise the parties as follows:

The court will not respond further to Ms Persaud's emails respecting the current status of the motions for leave to appeal. The court's directions are clear.

[42] Ms Persaud wrote again to the court, as follows on March 24, 2022:

Further to the direction of the Honourable Justice Corbett, I wish to inform you that, as a Self-Represented Litigant (SRL), I'm understanding that, depending on the specific terminology used, this can lead to different routes in dealing with matters.

Again, my purpose for attending the case conference was because you had indicated that ""If the moving party is still uncertain how she should proceed, she may request a case conference with this court." - This was why I requested the case conference because I was uncertain as to how to proceed. As a result, I would have preferred to preserve my right to appeal but not move forward at this time.

I am currently exploring the possibility of "varying" and/or "clarifying" the orders as opposed to "rectifying" them. Dietrich J. indicated this might be better addressed with McEwen J.

At the case conference before Dietrich J., it came to light that McEwen J. did not prohibit me from requesting productions needed in the Actions in his order, he just might have omitted me from doing so. In this respect, I am seeking to rectify this ongoing lack of clarity in the prior orders.

I am also trying to get further productions which has not been ruled on but which might eliminate the need for an appeal.

In this respect, it would greatly assist me if you were able to preserve my right to appeal but allow me not to move forward at this time.

If these can be resolved in the Commercial court, that would be the most time-saving, cost-effective solution.

I hope you are able to assist in this matter.

Thanks for your kind consideration.

The Applicant, Ms. Mohini Persaud

[43] The court responded by email to the parties on March 24, 2022, as follows:

The request is denied.

[44] The endorsement of Dietrich J. from the conference referenced in Ms Persaud’s email is as follows:

Endorsement

The case conference was requested by Mohini Persaud. By court order, she has been denied the opportunity to bring any motion in this matter prior to the hearing scheduled for April 20, 2022. Notwithstanding, Ms. Persaud used this case conference as a means to seek written “clarification” of an order of Justice McEwen, which she has already appealed to the Divisional Court. Ms. Persaud is once again seeking an order for further production in advance of the April 20, 2022 hearing. She also asks that the hearing be stayed pending the result of her appeal to the Divisional Court. The Divisional Court has made it abundantly clear that the April 20, 2022 hearing is not stayed.

Girga Persaud supports the request for further disclosure. She sought the court’s advice with respect to how to proceed with her application, which I explained I could not give. I encouraged her to retain counsel.

[45] On March 28, 2022, Ms Persaud emailed the court again, as follows:

I apologize for not having any legal training to write emails with the correct legal eloquence. I am a Self-Represented Litigant and write as a regular layman.

I don't understand why the Honourable Justice Corbett would direct me as follows through his staff's email sent on 03/04/2022 15:05: "If the moving party is still uncertain how she should proceed, she may request a case conference with this court.", if I could not rely on this direction when I agreed to attend the case conference. The case conference was for the purpose of getting directions from the Honourable Justice Corbett on how to proceed.

I understand from the Honourable Justice Corbett's communications through his staff's email below that, attending the case conference would only risk me having my motion for leave to appeal abandoned or dismissed. I don't believe this affects my right to appeal the order(s), just possibly the motion for leave to appeal. Am I correct?

I'm still not sure if appealing the orders at this time is premature but would like to preserve my right to do so in the future.

I am copying the other parties on the direction of the court but this may increase costs since the Respondent Lawyers charge for emails. Since I didn't want to move forward at this time and only wanted to preserve my right to appeal the orders, I didn't want to copy the other parties since it wasn't necessary according to Section D.2 (6) of the Practice Directions.

I was trying to get clarification from McEwen J. based on Dietrich J.'s March 23, 2022 endorsement, however was informed that he is no longer hearing the matter. Dietrich J. will be attending. (emphasis added)

I am currently trying to schedule another case conference with Dietrich J. to “vary” or “set aside” the order(s) according to Rule 59.06, which I believe is within her jurisdiction and, therefore not an appeal. (emphasis added)

I'm surprised that the technicalities of the semantics of using the words "rectify" compared to "clarify" compared to "varying" or "setting aside" orders would affect my ability to rectify the clarity of the orders.

Please understand that, I'm just trying my darndest to do the proper research before proceeding in any direction and trying to choose the most cost-effective, timesaving route possible. I only had 15 days to appeal the orders and very little time to research and pre-scheduled hearings with the Commercial court to resolve.

So far, I haven't been given any direction from the Commercial court on steps to take in my litigation and, therefore, I am in the position of guessing as to the most cost-effective, timesaving route.

At any rate, I'm not prepared to file any materials at this time on the motion for leave to appeal given the situation above.

I respectfully ask the Honourable Justice Corbett for clarity if I'm not interpreting the situation incorrectly.

Thanks for your kind consideration.

The Applicant, Ms. Mohini Persaud

It is apparent from the endorsement of Dietrich J. that Her Honour did not direct Ms Persaud back to McEwen J. Indeed, there would have been no point in doing that: the parties were before McEwen J. in February, at which point all issues with His Honour’s orders were, or had to be, raised and decided. It is also apparent from the order of Dietrich J. that Her Honour was not prepared to provide Ms Persaud with the relief she was seeking.

[46] Ms Persaud did not serve and upload to CaseLines her motion materials for the motion for leave to appeal by March 28, 2022. On March 29, 2022, the court directed as follows:

This court directed the moving party to serve and upload to CaseLines her motion materials for the motions for leave to appeal by March 28, 2022. The schedule was established to enable this court to decide the motions for leave to appeal prior to a motion in the Commercial Court, currently scheduled for hearing April 20, 2022.

The moving party has not complied with the direction to serve and upload her motion materials by March 28, 2022.

The moving party is asked to explain, by email, by April 1, 2022, why the court should not dismiss her motion for leave to appeal as abandoned for failure to meet the schedule directed by this court.

[47] Ms Persaud responded to the court’s direction by email dated March 29, 2022. The email was not copied to other parties. Ms Persaud explains this failure to copy other parties on the basis that she was raising personal matters with the court in response to the court’s direction, and she did not wish to share those personal matters with other parties. Near the conclusion of her email Ms Persaud states (bold in the original):

Given the Human Rights issues, I don't consent to copying the other parties.

A party may not communicate with the court without copying the other side. Balancing this principle with Ms Persaud’s declared sensitivity respecting the contents of her email, the court directed as follows:

The court has received a communication from Ms Persaud responding to the court's email of March 29, 2022, but Ms Persaud's response has not been copied to other parties.

This court will not consider a response that has not been copied to the other parties. In light of Ms Persaud's request that aspects of her response not be disclosed because of its sensitive and personal nature, the court will disregard Ms Persaud's response and give her the opportunity to provide a fresh response that is copied to all parties. The deadline for this response remains April 1, 2022.

To be clear, the issue in respect to which the response is required is as follows:

The moving party is asked to explain, by email, by April 1, 2022, why the court should not dismiss her motion for leave to appeal as abandoned for failure to meet the schedule directed by this court.

[48] Ms Persaud provided a response, copied to other parties, on April 1, 2022.

Ms Persaud’s Response

[49] Because of its length, I summarize rather than quoting in full Ms Persaud’s submissions. She repeats the arguments and objections she raised in her prior emails. She argued that the court has deprived her of a procedural option by luring her to a case conference without explaining to her that the consequence would be to abrogate her right to commence a motion for leave to appeal, but not proceed with it, while reserving her appeal rights to a later time. She argues that as a self-represented person, she needed more information than she was given, and more time to absorb the information she was given. She says the case management directions are rife with error, given these points, and should be varied or set aside pursuant to R.59.06.

Analysis

[50] Litigation is not a reiterative, circular process. It is linear. When a court makes an order or gives a direction, that is not an invitation for debate or discussion. A party is not excused from following a court order because she disagrees with it, feels it should not have been made, or wishes to take steps to try to have it changed or set aside. A self-represented litigant is not entitled to ignore these principles because she is self-represented.

[51] Self-represented litigants are entitled to assistance from the court to navigate the court’s process. However, it is not the role of the court to descend into the fray to provide self-represented parties with legal, procedural, or strategic advice. In providing support and assistance to self-represented litigants, the court must also bear in mind procedural and substantive fairness to other parties. This includes requiring appropriately tailored processes, reasonable scheduling deadlines, and preventing endless repetition of arguments and issues. This court went so far as to advise Ms Persaud that it would be unwise for her to delay moving forward with her motion for leave to appeal – that sort of advice is at the outer limits of the appropriate role of the court in advising a self-represented litigant.

[52] The impugned interlocutory orders of McEwen J. were made in January and May 2021. The time to challenge them has long passed. The corrections to those orders, in February 2022, were clerical, as so described by McEwen J., and as reflected in his endorsement. It is also clear from the endorsement of McEwen J. that the appellant wanted other changes made to the orders and he declined to make those changes. On the face of the endorsements, any issue Ms Persaud has about the orders has been raised with and decided by McEwen J.

[53] It was open to the appellant to seek leave to appeal McEwen J.’s decision not to make further amendments to the orders; other challenges to the orders of McEwen J. would seem to be so far out of time as to preclude appeal proceedings, but since Ms Persaud did not deliver motion materials, this cannot be certain: the court did provide her with a process to seek any required extension to bring a motion for leave to appeal broader issues connected with the orders of McEwen J.

[54] The order of Kimmel J. is clear that Ms Persaud may bring no more preliminary motions prior to the motions on April 20, 2022, except with leave from the court. The time for leave to appeal the order of Kimmel J. expired before Ms Persaud brought her motion for leave to appeal.

[55] The order of Kimmel J. is clear that variation of prior orders may not be sought at a case conference, except as regards scheduling, and yet that is precisely what Ms Persaud did before Dietrich J. On the information before me, it is clear that the issue of the proper contents of the orders of McEwen J. has been decided by McEwen J., and that Ms Persaud’s recourse is a motion for leave to appeal to his court. This court provided her with a clear process by which she could pursue those appeal rights in a timely way so as not to disrupt the orderly process of the case below. She has not availed herself of that process. All parties are entitled to decision on the leave motions prior to April 20th, not just Mohini Persaud.

[56] This is classic vexatious litigation – refusing to accept that an issue has been decided, and endlessly challenging it through repeated circular processes.

[57] One process the moving party had not exhausted was the appeal process in this court. She initiated that process. She said it was urgent. She said it had to be dealt with before the motions scheduled for April 20, 2022. She asked that those motions be stayed and that all proceedings below be stayed. This court gave the moving party a process to follow that would have enabled her to obtain a decision on her leave motion prior to the motions scheduled below. If leave to appeal had been granted, then this court would have considered staying the motions below pending decision on the appeal. Once that process was established, the moving party embarked on a vexatious campaign in this court to delay the very process that had been designed to address the interests she, herself, had identified: urgent adjudication of her leave motion.

[58] This court’s goal on a motion for leave to appeal an interlocutory order is to facilitate adjudication of the leave motion on the merits without prejudicing the ongoing progress of the underlying litigation. This court has gone well beyond the service this court ordinarily provides to litigants to be crystal-clear with the moving party that (a) the court will hear and decide her motion for leave to appeal, if she proceeds with it; (b) the court will spend the necessary resources to expedite the leave motion to minimize prejudice to any party; (c) the court will not allow the appellate process to be invoked to abuse the process of this court by derailing proceedings scheduled below.

[59] The leave motion cannot now be heard in an orderly way before the motion on April 20th. The leave motion will be largely or entirely moot once the main motions are argued on April 20th. Further, leave motions must be brought within fifteen days and are supposed to proceed with alacrity in the ordinary course: lingering uncertainty about the authority of interlocutory orders only serves to delay underlying proceedings and drive up costs.

[60] After the court had established a schedule reflecting the moving party’s interests, expressed to be urgent, the moving party advised the court that she wished to “not proceed” with the leave motion but “reserve her rights” to do so at some unidentified time in the future. She relied on para. D.2.6 of the current Divisional Court Notice to Profession, which reads as follows:

Where a party wishes to commence a proceeding to preserve the party’s rights, but does not wish to proceed immediately or to give notice of it to other parties, the party need not send a copy to all other parties [or provide addresses and email addresses for opposing parties], but should clearly indicate, instead, that the party wishes to commence but not yet move forward with the application.

The court advised Ms Persaud, clearly, that this provision has no application to this matter, which is in case management and for which the court has given scheduling directions. Ms Persaud then argued that this was always her intention, and that somehow the court’s direction to hold a case conference has robbed her of this option, which is what she wanted to pursue. This, she argues, results from dereliction of this court’s duty to assist Ms Persaud as a self-represented litigant. This argument is meritless and vexatious.

[61] First, D.2.6 does not apply to appeals or motions for leave to appeal. Those processes cannot be commenced without serving a Notice of Appeal or a Notice of Motion (as the case may be) and then providing it to the court. In rare cases where an appeal proceeding is initiated but a party wishes it held in abeyance, this is sought on notice to opposing parties and is in the discretion of the court. This is clear by the effect of RR. 61.04(1) and 61.03.1(3)(a). Until the originating process has been served, it cannot be filed with the court to commence the proceeding.

[62] Second, D.2.6 provides that the party “clearly indicate” at the outset, when initiating proceedings in Divisional Court, “that the party wishes to commence but not yet move forward with the application.” The moving party did not do that. Quite the contrary, she gave notice of the motion to other parties and requested an immediate stay of the orders and proceedings below. That request was entirely inconsistent with the now professed desire from the outset to commence the motion for leave to appeal but not move forward with it.

[63] Third, whatever a party may wish to do, the issue is in the discretion of the court to decide. The party does not have a “right” to commence proceedings and then “not move forward with them.” In this instance, we are talking about a challenge to interlocutory orders that affect a motion scheduled to be heard on April 20, 2022. Most or all of the impugned provisions in the orders will be moot by the time the motion is heard and decided in April. The expressed desire to “reserve” appeal rights would have the effect of reserving the right to mount a collateral attack on decisions on the upcoming motions, after-the-fact. That simply will not do. If the moving party had requested to take such a course before a case management schedule had been put in place, the court would have refused. The time to challenge these orders is before the motion in April.

[64] Ms Persaud’s explanation for not complying with this court’s directions is that those directions are wrong, unfair and ought to be set aside. Nowhere does she claim that she was unable to comply with the directions. She believes that there are other, better ways for her to address her concerns with the impugned orders. This is entirely vexatious. A party may not disregard court orders and directions because she disagrees with them or considers that a different approach would be better.

[65] Mohini Persaud was given clear directions about what she needed to do to move forward with her motions for leave to appeal. She did not follow those directions. Her motions are dismissed as abandoned for failure to follow the court’s case management directions. Any party seeking costs of the abandoned motions shall make their request by way of a letter of no longer than three pages, to be provided by email by April 14, 2022.

[66] Mohini Persaud’s conduct in his matter has been vexatious. As a self-represented litigant, she is not entitled to seek a running colloquy with a judge, she is not entitled to reasons for every routine direction provided in a file, she is not entitled to debate directions that have been given, and she is not entitled to argue with the court’s directions, and she is not entitled to ignore directions because she thinks she knows better. In the ordinary course, a motion for leave to appeal is scheduled in this court with the assistance of one or two short emails. This motion has involved a running exchange of communications with Ms Persaud which have been a profligate waste of judicial and staff resources.

[67] The court will not, solely on the basis of these events, make an order restricting Mohini Persaud’s access to this court because of her vexatious conduct, but if this sort of behaviour should repeat in this court, the moving party’s conduct in this motion may be taken into account as part of a pattern that may justify subsequent intervention. It also may be relied on in the court below if it is considered to be part of an overall pattern of conduct justifying intervention to protect the administration of justice and adverse parties from vexatious conduct.

[68] For these reasons, the motion for leave to appeal is dismissed as abandoned for failure to follow the court’s scheduling directions, with costs to be addressed as specified in this endorsement.

“D.L. Corbett J.”

April 4, 2022