Court File and Parties

CITATION: Mohammed v. Dysart (Municipality), 2022 ONSC 3803

OSHAWA DIVISIONAL COURT FILE NO.: DC-22-1298

DATE: 2022-06-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jameel Mohammed, Plaintiff/Appellant

AND:

The Municipality of Dysart and Laurie Salvatore, Defendants/Respondents

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Jameel Mohammed, Self-Represented

John F. Black, Counsel for the Respondents

HEARD: In-Writing

ENDORSEMENT

Introduction

[1] On March 21, 2022, the Appellant, Jameel Mohammed, filed a Notice of Appeal, purporting to appeal from the decisions of:

a) Justice Lack, dated November 23, 2020

b) Justice Corkery, dated June 11, 2021

c) Justice Lavine, dated February 28, 2022

[2] I reviewed the Appellant’s Notice of Appeal in my role as Triage Judge for Divisional Court, Central East Region.

[3] On March 28, 2022, I issued the following direction:

1. Pursuant to Rule 61.04 of the Rules of Civil Procedure, Notices of Appeal must be served within 30 days after the making the order appealed from, and filed within a further 10 days.

2. The Appellant appears to be out of time for filing a Notice of Appeal from the decisions of Justices Lack and Corkery.

3. In addition, the decision of Justice Lavine is a decision on Mr. Mohammed’s application for leave to proceed in accordance with sections 140(3) and (4) of the Courts of Justice Act., R.S.O. 1990, c. C.43. Pursuant to s. 140(4)(e) of that Act, “no appeal lies from the refusal to grant relief to the applicant”.

4. The Notice of Appeal appears on its face to be an abuse of process. The registrar is directed to send notice to the appellant in Form 2.1A to provide the Appellant with one opportunity to explain why the Notice of Appeal should not be quashed in accordance with the process set out in Rule 2.1.01(3).

5. The appeal is stayed under s. 106 of the Courts of Justice Act pending further order of the court. The registrar shall accept no correspondence and no further filings from the Appellant in this Appeal except only the Appellant’s written submission, if delivered in accordance with the page limit contained in Rule 2.1.01(3).

6. The registrar is to serve a copy of this Endorsement and a Form 2.1A notice on the Appellant and the Respondents.

[4] On April 6, 2022, the Appellant filed his submissions in response to the Rule 2.1 Notice.

[5] The Respondents filed their responding submissions on June 17, 2022.

Underlying Application

[6] The Appellant’s submissions state that he issued an Application in the Ontario Superior Court against the Respondents on August 18, 2020, seeking an Order that the Respondents allow him to construct a foundation for a religious memorial on his mother’s grave site at the Evergreen Cemetery. He alleges that the Application was urgent because “I cannot manifest expression from the heart in good conscience, hence, no communication with the Almighty Divinity, through the interred.”

[7] The Appellant indicates that he paid Luesby Memorial Company to manufacture a 62 inch long memorial for his mother’s grave site, but the foundation was only 42 inches long and would not support the monument. The Appellant was advised by Luesby Memorial Company that the municipality would only approve a 42 inch foundation. He alleges that the municipality and its employee have violated his right to religious freedom.

[8] The Appellant alleges that he has now paid for a 62 inch foundation, but that the municipality will not permit him to have it installed in the cemetery.

[9] When the Appellant commenced his Application in August 2020, he did not serve the Notice of Application on the Respondents personally, but served the Respondents through the mail.

[10] By letter dated September 24, 2020, the Appellant was advised by the Court office, after consultation with a Justice of the Court, that service of an originating process by ordinary mail was not sufficient service (see Rule 16.01 (1)). He was advised that once he had served the documents “in a way that conforms to the Rules of Civil Procedure, you are welcome to resubmit your materials”.

[11] In response to this letter, the Appellant brought an “emergency motion” to “set aside the letter dated September 24, 2020” and for an order to dispense with service.

[12] The emergency motion was heard by Lack J. in writing. On November 23, 2020, Lack J. noted that the underlying Notice of Application and supporting affidavit, as well as the “emergency” ex parte motion before her, had not been served on the Respondents. Lack J. denied the Applicant’s motion to dispense with service, holding: “The request is denied. The material must be served or the Applicant must obtain an order for alternative service”.

[13] In addition, Lack J. included in her Order a letter from the Ministry of the Attorney General advising that the Applicant was subject to two orders under s. 140(1) of the Courts of Justice Act, declaring him a vexatious litigant. The letter indicates that the Applicant had sought to appeal this Order, but did not appeal in time, and his several efforts to extend the time to file the appeal were finally dismissed by a panel of the Court of Appeal on February 22, 2016.

[14] Pursuant to s. 140(1) of the Courts of Justice Act, a person declared to be a vexatious litigant may not bring further proceedings in Court without leave of the Court.

[15] For ease of reference, s. 140 provides:

Vexatious proceedings

140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

Application for leave to proceed

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.

Leave to proceed

(4) Where an application for leave is made under subsection (3),

(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;

(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;

(c) the court may rescind the order made under subsection (1);

(d) the Attorney General is entitled to be heard on the application; and

(e) no appeal lies from a refusal to grant relief to the applicant.

[16] Accordingly, Lack J. stated as follows:

Before anything further is done on this matter by the Applicant, he must include a copy of these orders in the material filed and demonstrate that he is entitled to proceed with this litigation despite the orders.

[17] Justice Lack’s decisions on these two issues were interlocutory decisions. As such, they could only be appealed to the Divisional Court with leave (s. 19(1)(b) of the Courts of Justice Act), in accordance with the process outlined in Rule 61.03 of the Rules of Civil Procedure. Rule 61.03(1)(b) requires that the motion for leave to appeal shall be served within 15 days after making the order or decision from which leave to appeal is sought.

[18] The Appellant did not seek leave to appeal Lack J.’s Order within the time required by the Rules.

[19] The Appellant next brought a “Motion for Reconsideration”. I do not have access to that motion material. On February 10, 2021, Gunsolus J. issued an Order granting the Appellant leave to serve the Respondents by ordinary mail and that, following the filing of an affidavit of service, “the matter can then be considered”.

[20] Gunsolus J.’s Order was not a “reconsideration” of Lack J.’s Order, since Lack J. specifically provided that the Appellant was free to obtain an Order for Substitute Service. Gunsolus J. did not deal with the existing s. 140(1) Order, and it is not clear from his Endorsement what material was before him when he made his Order, or what “matter” could be considered after the material was served.

[21] The Appellant was content with the Order of Gunsolus J., and it is not one of the orders he seeks to appeal.

[22] The matter then came before Corkery J. In an Endorsement dated June 11, 2021, Corkery J. referenced Lack. J.’s Order that the Appellant was to “demonstrate that he is entitled to proceed with this litigation despite the [s. 140] orders”. Corkery J. held:

The Applicant has filed two affidavits of service, having now served both respondents by regular letter mail with the Application Record. However, nothing has been served or filed by the Applicant to satisfy the second part of the order of Justice Lack. Nothing further can be done with this matter.

[23] Justice Corkery did not decide the Appellant’s s. 140(3) application. As I understand Corkery J.’s Order, he only decided that the Applicant had not satisfied the second part of Lack J.’s Order, and that nothing further could be done until that requirement was satisfied.

[24] Justice Corkery’s Order was not a decision on the merits of the main Application, or even a decision on the merits of a s. 140(3) application. He decided only that the Applicant had not satisfied a procedural step. That decision was, therefore, an interlocutory order requiring a motion for leave to appeal.

[25] If Justice Corkery had decided the Appellant’s s.140(3) application, his decision would not be subject to an appeal (s. 140(4)(e)), but, as indicated, I do not read his endorsement as purporting to decide the merits of that application.

[26] Finally, the Appellant brought a motion to “reconsider and set aside” the order of Corkery J. This motion was heard by Lavine J. on October 4, 2021.

[27] Before proceeding further, I should point out that there is no such thing as motion to “reconsider and set aside”. With specific exceptions, the decision of a Superior Court Judge cannot be “reconsidered” or “set aside” by another Superior Court Judge. Final decisions of the Superior Court may be appealed, and an interlocutory decision may be appealed if leave to appeal is granted. Superior Court judges do not “reconsider” the decisions of other Superior Court judges. Orders may be set aside or varied only under the very specific circumstances set out in Rule 37.14 and Rule 59.06, neither of which have any application to this case.

[28] Rule 59.06 provides that “an order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate” may be amended in the proceeding. Such motions are generally brought before the judge who granted the original order. They are not a “reconsideration”. Orders may also be set aside or varied “on the ground of fraud or of facts arising or discovered” after the order was made.

[29] Were it otherwise, litigants could bring multiple “reconsideration” motions rather than seeking leave to appeal, hoping to eventually find a judge who agrees with their position. There would be no finality. This would be a tremendous waste of judicial resources, as different and multiple judges would be asked to “reconsider” the same interlocutory matter repeatedly until the litigant finally obtained the result that he or she wants.

[30] Sometimes motions are dismissed on a “without prejudice” basis, which may invite the moving party to bring the motion back when specified circumstances change or certain events occur. Otherwise, the court’s decision is final and, subject to Rules 37.14 and 59.06, can only be “reconsidered” or “set aside” by an appellate court.

[31] Lavine J. released her decision on February 28, 2022. After reviewing the history of these proceedings, she recognized that she had no jurisdiction to “reconsider” the decision of Corkery J., and concluded, at para. 12:

Before me, in this motion and in the application, Mr. Mohammed seeks leave under s. 140(3) to institute his application, and that his application be heard. This is the relief sought when the matter was before Corkery J. Although I have been unable to ascertain the content of the record before Corkery J., Mr. Mohammed urges that Corkery J.’s endorsement be set aside because Corkery J. failed to consider the material filed, not that Mr. Mohammed has now addressed deficiencies in the record before Corkery J. As such the relief sought having been considered and decided by Corkery J., there is no basis upon which I am able to set aside the decision of Corkery J.

[32] Justice Lavine’s Order was not a decision on the merits of the main Application, or a decision on the merits of a s.140(3) application, it was a decision that the Appellant could not ask her to reconsider the decision of Corkery J. Again, this was an interlocutory decision and can only be appealed with leave.

Respondents Submissions

[33] The Respondents were invited to make submissions on the Court’s Rule 2.1 Notice. Their submissions provide more details relating to the history of these proceedings.

[34] The Respondents note that the Appellant commenced previous applications against the Respondents for the same relief.

[35] In Corporation of the United Townships of Dysart v. Mohammed, Loukidelis J. declared Mr. Mohammed to be a vexatious litigant pursuant to s. 140 of the Courts of Justice Act.

[36] In his decision, Loukidelis J. described the issue as follows, at paras. 3, 4, 7 and 8:

With respect to the Dysart application the unfortunate chain of events started with the death of Mr. Mohammed’s mother Mrs. Elaine Wilson. A burial plot was purchased in the Dysart municipal cemetery known as Evergreen Cemetery.

Mr. Mohammed felt that his religious beliefs in marking his mother’s grave should override any by-law regulations that governed all grave sites in that cemetery.

All his claims relating to this dispute have been adjudicated and cannot be re-litigated, a fact the respondent cannot accept.

The decisions of Glass J., Wood J., and the Divisional Court closed that issue and all avenues of appeal have been exhausted.

[37] Loukidelis J. found, at paras. 25 -26:

Mr. Mohammed a.k.a. Adolphus Wilson is a litigant spiralling out of control who will continue to litigate and harass unless he is stopped now. He ignores cost orders while the applicants are forced to incur heavy legal expenses to defend each action. Enough.

He must be prohibited from continuing this course of conduct.

[38] Mr. Mohammed’s motion to extend the time to file an appeal was dismissed by a full panel of the Court of Appeal: Dysart, Dudley, Harcourt, Guilford, Harburn, Bruton, Havelock, Eyre and Clyde (United Townships) v. Mohammed, 2016 ONCA 153, and his application for leave to appeal to the Supreme Court of Canada was also dismissed: Jameel Hosein Mohammed also known as Adolphus Cecil Wilson, et al. v. Corporation of the United Townships of Dysart, Dudley, Harcourt, Guilford, Harburn, Bruton, Havelock, Eyre and Clyde, et al..

[39] Other related actions by the Appellant against the Municipality of Dysart were dismissed on motions for summary judgment: Mohammed v. Dysart (Municipality of), leave to appeal to SCC dismissed [2003] S.C.C.A. No. 250.

[40] The relief requested in this latest Application is identical to the relief requested in the earlier proceedings, all of which were dismissed.

[41] The Appellant has not paid Dysart its costs from these previous proceedings, which now amount to over $200,000.

Analysis

[42] All three of the Orders which the Appellant purports to appeal are interlocutory orders for which the Appellant must seek leave to appeal. On this basis alone, his Notice of Appeal dated March 21, 2022 must be struck out as an abuse of process.

[43] Moreover, the Appellant cannot proceed with any further proceeding, including any motions for leave to appeal, appeals or applications, until he obtains leave of the Court to institute or continue with the proceeding pursuant to s. 140(3) of the Courts of Justice Act. Pursuant to s. 140(4)(b), “the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application” (Emphasis Added).

[44] This is precisely the same point made by Lack J. in her November 23, 2020 Endorsement.

Conclusion

[45] This Court Orders:

a) The Notice of Appeal dated March 21, 2022 is struck out.

b) The Application is stayed until the Applicant obtains leave of the Court to institute or continue with the proceeding pursuant to s. 140(3) of the Courts of Justice Act.

c) The registrar shall accept no correspondence and no further filings from the Appellant in this Appeal or the main Application except only the Appellant’s Application for leave pursuant to s. 140(3) of the Courts of Justice Act.

d) I will remain seized of this matter. If the Appellant files an Application under s. 140(3) of the Courts of Justice Act, the Application shall be dealt with in writing.

Justice R.E. Charney

Date: June 27, 2022