Kim v. McIntosh, 2022 ONSC 4176

CITATION: Kim v. McIntosh, 2022 ONSC 4176

DIVISIONAL COURT FILE NO.: 56/20, 71/20, 390/21, and TBA

DATE: 2022/07/18

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Anita Kim, Responding Party

AND

Adan McIntosh, Moving Party

BEFORE: Justice R. Ryan Bell

COUNSEL: Mr. McIntosh, self-represented Moving Party

Kenneth Younie, for the Responding Party

HEARD: In writing, in Chambers: July 15, 2022

ENDORSEMENT

[1] By notice of motion dated May 30, 2022, Mr. McIntosh seeks “an order to stay the endorsement of Justice Audet dated 26^th May 2022.” In his amended notice of motion[^1], Mr. McIntosh expands the relief requested to include the following:

1. An order to recuse Justice Audet from this matter.

2. An order to stay or review the endorsement of Justice Audet dated 22^nd April 2022, partly in the public interest, regarding directing the Registrar to issue notice under Rule 2.1 for the “operative portion” of the endorsement of Justice Hood dated 2^nd December 2021.

3. An order to stay or review the endorsement of Justice Audet dated 26^th May 26, 2022 regarding the dismissal of the costs element of Justice Hood’s order as an abuse of process; the finding that Justice Hood’s order has no continuing force; the finding that and findings that [sic] the Moving Party was abusive to court staff and his litigation was an abuse of process.

[2] This endorsement addresses only Mr. McIntosh’s motion to stay the orders made by Justice Audet on April 22 and May 26, 2022. The other relief requested by Mr. McIntosh in his amended notice of motion is not properly before this court.

The endorsements of Justice Audet

[3] In her April 22, 2022 endorsement, Justice Audet made rulings with respect to each of Mr. McIntosh’s files before this court. I have reproduced below paras. 33-38 of Justice Audet’s endorsement:

33. Mr. McIntosh’s appeal in Court File No. 56/20 is dismissed under Rule 2.1.02.

34. Mr. McIntosh’s appeal in Court File No. 390/21 is dismissed under Rule 2.1.02.

35. Mr. McIntosh will be given an additional 15 days from the date of this endorsement to upload on CaseLines all of his appeal materials in court file 71/20 and in court file TBA and ensure that same can be viewed on CaseLines.

36. Once he has complied with para. 35 in relation to his appeal in court file 71/20, Mr. McIntosh may reach out to the Registrar and require that his motion for leave to appeal the costs order of Nakonechny J. be scheduled for a hearing at a date to be fixed by the Registrar. If he does not, Mr. McIntosh’s motion for leave to appeal will be dismissed without further notice.

37. If Mr. McIntosh has complied with para. 35 above in relation to his appeal in court file TBA (appeal of Hood J.’s December 2, 2021 order), the Registrar is directed to issue a notice pursuant to R.2.1 that the court is considering dismissing the motion to review the operative portion of Hood J.’s order (as opposed to his costs order) on the basis that the review motion is now moot as a result of the October 2021 Final Order [October 1, 2021 final order of Steele J. in family law proceedings between Mr. McIntosh and Ms. Kim following an undefended trial]. Upon receipt of Mr. McIntosh’s submissions, I will give further directions.

38. If Mr. McIntosh fails to comply with para. 35 above in relation to his appeal in court file TBA (appeal of Hood J.’s December 2, 2021 order), his appeal will be dismissed without further notice.

[4] Mr. McIntosh re-uploaded his motion materials in CaseLines, as directed, in court file nos. 71/20 and TBA. In her May 26, 2022 endorsement[^2], Justice Audet directed that Mr. McIntosh’s motion for leave to appeal the costs order of Justice Nakonechny (court file no. 71/20) may proceed.

[5] In court file no. TBA, Justice Audet directed that the registrar issue a notice pursuant to r. 2.1 that the court was considering dismissing Mr. McIntosh’s motion to review the operative portion of Justice Hood’s order (as opposed to his costs order) on the basis that Mr. McIntosh’s motion was now moot as a result of the October 2021 Fina1 Order. Mr. McIntosh provided written submissions in response to the r. 2.1 notice issued by the registrar. At para. 7 of her May 26, 2022 endorsement, Justice Audet rejected Mr. McIntosh’s submissions objecting to the accuracy of the r. 2.1 notice and the court’s jurisdiction to direct that such a notice be issued.

[6] I have reproduced below, paras. 9-10 of Justice Audet’s May 26, 2022 endorsement:

9. I conclude that Mr. McIntosh’s motion for leave to appeal Hood J.’s order is now moot, since Mr. McIntosh’s legal proceeding before the Superior Court of Justice is now the subject of a final order and, therefore, the operative part of Hood J.’s Order has no continuing force.

10. Further, I find that it would be an abuse of process to allow Mr. McIntosh to seek leave to appeal before this Court the $500 cost award made by Hood J. In my view, the amount in question does not justify dedicating the Court’s very limited resources to such an appeal.

[7] In her endorsement, Justice Audet also addressed Mr. McIntosh’s request for an urgent motion seeking her recusal based on his allegation that Justice Audet is corrupt. At para. 13, Justice Audet held that his motion seeking her recusal as case management judge was moot because all proceedings initiated by Mr. McIntosh in the Divisional Court had been dismissed, with the exception of his motion for leave to appeal the costs order of Justice Nakonechny. Justice Audet’s role as case management judge was therefore at an end.

[8] In response to Mr. McIntosh’s correspondence to the Registrar seeking to set dates for the hearing of his recusal motion and his motion to review her endorsement of April 22, 2022, Justice Audet released a further endorsement dated May 31, 2022. Paras. 2-4 of Justice Audet’s May 31, 2022 endorsement are set out below:

2. These requests have been addressed in my May 26, 2022 endorsement, but since there appears to be confusion on the part of Mr. McIntosh, this supplementary endorsement is meant to clarify.

3. Any appeal (or review) of my April 22, 2022 endorsement by Mr. McIntosh must be brought before the Ontario Court of Appeal.

4. Mr. McIntosh’s motion seeking my recusal as Case Management Judge is now moot since all appeals or motions for leave to appeal lodged before this court have been dismissed, with the exception of Mr. McIntosh’s motion for leave to appeal the costs order of Nakonechny J. in Court File No. 71/20 which is being processed. As my role as Case Management Judge in this matter is at an end, Mr. McIntosh’s recusal motion is moot and will not proceed.

Further directions provided to Mr. McIntosh

[9] On June 22, 2022, this court provided directions to Mr. McIntosh as follows:

Justice Ryan Bell, Local Administrative Judge for Divisional Court (Ottawa) directs me to advise you as follows:

1. Regarding file no. 56/20, this appeal was dismissed under R.2.1.02 by Audet J. on April 22, 2022. A decision dismissing a proceeding under R.2.1 is not subject to a review before a panel of the Divisional Court. Mr. McIntosh’s recourse is to seek leave to appeal the order to the Court of Appeal. Subject to no. 5 below, no motions may be brought within 56/20 because it has been dismissed.

2. Regarding file no. 390/21, this appeal was dismissed under R.2.1.02 by Audet J. on April 22, 2022. A decision dismissing a proceeding under R.2.1 is not subject to a review before a panel of the Divisional Court. Mr. McIntosh’s recourse is to seek leave to appeal the order to the Court of Appeal. Subject to no. 5 below, no motions may be brought within 390/21 because it has been dismissed.

3. Regarding court file no. 71/20, in her endorsement dated May 26, 2022, Audet J. directed that the motion for leave to appeal the costs order of Nakonechny J. dated January 7, 2022 may now proceed. The motion for leave to appeal the costs order will be heard in writing by a panel of the Divisional Court in the week of July 18, 2022.

4. Regarding court file no. TBA, in her endorsement dated May 26, 2022, Audet J. held that Mr. McIntosh’s motion for leave to appeal the order of Hood J. is moot and that it would be an abuse of process to allow Mr. McIntosh to seek leave to appeal the costs order made by Hood J. Audet J. determined that Mr. McIntosh’s motion seeking her recusal as case management judge was moot because all proceedings initiated by him before the Divisional Court have been dismissed with the exception of his motion for leave to appeal the costs order in 71/20. Mr. McIntosh’s recourse is to the Court of Appeal. Subject to no. 5 below, no motions may be brought within court file no. TBA because it has been dismissed.

5. By notice of motion dated May 30, 2022, Mr. McIntosh seeks “an order to stay the endorsement of Justice Audet dated 26^th May 2022.” Mr. McIntosh’s notice of motion dated May 30, 2022 will be accepted by the Divisional Court for filing. Mr. McIntosh may pursue his motion for a stay, on the following terms:

a. Mr. McIntosh will serve and upload to CaseLines his motion materials for the motion for a stay by July 6, 2022 and shall send the court an email when he has done this.

b. If Mr. McIntosh fails to serve and upload to CaseLines his motion materials pursuant to (a), the motion shall be dismissed as abandoned without costs.

[10] Mr. McIntosh provided his amended notice of motion, and his motion record and a factum, both dated July 5, 2022, within the timeline directed.

[11] In his amended notice of motion, in addition to his request for orders staying Justice Audet’s endorsements, Mr. McIntosh renews his requests to recuse Justice Audet and to “review” Justice Audet’s April 22 and May 26, 2022 endorsements.

[12] The recusal and review issues were addressed in Justice Audet’s endorsements of May 26 and May 31, 2022. The recusal and review issues were again addressed in the court’s directions of June 22, 2022. Those directions continue to apply.

[13] Accordingly, as Mr. McIntosh’s motion for leave to appeal the costs order in court file no. 71/20 will be heard in writing by a panel of this court in the week of July 18, 2022, the only matter properly before this court is Mr. McIntosh’s stay motion.

Mr. McIntosh’s stay motion

[14] Rule 63 of the Rules of Civil Procedure[^3] sets out the procedures for obtaining a stay pending appeal. Rule 63.02(1) provides that 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 appealed or 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. Where a stay is granted by an order of the court whose decision is to be appealed, the stay expires if no notice of motion for leave to appeal or no notice of appeal is delivered and the time for the delivery of the notice has expired: r. 63.02(2).

[15] In his July 5, 2022 affidavit filed in support of his stay motion, Mr. McIntosh states that he was not “attempt[ing] to review the portion of an order dismissing a matter under Rule 2.1 and I had already filed leave to appeal this issue in the Court of Appeal”; rather, the motions he filed “were in regard to reviewing the direction to issue notice under Rule 2.1, not the subsequent dismissal.”[^4]

[16] A decision of this court dismissing a proceeding under r. 2.1 is not subject to review before a panel of this court; the only recourse is to the Court of Appeal, with leave: Ledsham v. Air Canada.[^5]

[17] Rule 2.1.01(1) enables the court, on its own initiative or at the request of a party, to stay or dismiss a proceeding or a motion that on its face appears to be frivolous or vexatious or otherwise an abuse of the process of the court by way of a summary procedure set out in the rule. Unless the court orders otherwise, the summary procedure includes that “[t]he court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order”: r. 2.1.01(3)1. The court’s direction to the registrar to give notice is just that – a direction. It is a procedural step and is not subject to review or appeal.

[18] Mr. McIntosh’s materials in support of his motion for a stay pending appeal do not include a copy of his notice of motion for leave to appeal to the Court of Appeal. In determining the stay motion, I have proceeded on the basis that Mr. McIntosh’s notice of motion seeks leave to appeal in respect of the matters identified in paras. 2 and 3 of his amended notice of motion in this court.

The governing test

[19] In deciding whether to grant a stay by order, the court is to consider: (i) is there a serious issue to be tried (that is, to be determined on the appeal); (ii) will the moving party suffer irreparable harm if the stay is not granted; and (iii) does the balance of convenience favour granting the stay: RJR-MacDonald Inc. v. Canada (Attorney General).[^6] The factors are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust.[^7]

[20] Since this is a stay motion in the context of a motion for leave to appeal to the Court of Appeal, the principles governing motions for leave to appeal from orders of the Divisional Court must also be considered: Louis v. Poitras.[^8]

Application of the test

(i) Is there a serious question to be determined on the appeal

[21] In his notice of motion for a stay pending his motion for leave to appeal, Mr. McIntosh states the following under the grounds for the motion:

10. Justice Audet directed notice under Rule 2.1 in TBA without having read the pleadings. She further did not provide any reasons to reject the assertion that jurisdiction did not exist to direct notice under Rule 2.1.

11. It is in the public interest for the court to clarify if a judge needs to have read pleadings before they can direction notice [sic] under Rule 2.1.

12. Justice Audet dismissed the costs portion of the order of Justice Hood as an abuse of process without first directing notice to be provided under Rule 2.1.

13. Justice Audet falsely stated that the Moving Party filed a 14B motion before Justice Hood when it was the Responding Party and Justice Audet falsely stated that the only motions available after a final order were Motions to Change.

14. Justice Audet falsely stated that Justice Hood’s endorsement had not [sic] continuing force after a final order was made.

15. Justice Audet found the Moving Party was abusive to court staff and filled litigations as a[n] abuse of process without allow[ing] the Moving Party the right to be heard on these matters, or view the evidence and seems to have made this submission on behalf of the Responding Party.

[22] In his factum, Mr. McIntosh frames the questions of the court (which I take to be the serious questions to be determined on the proposed appeal) as follows:

1. Can Justice Audet dismiss a motion for recusal, due to mootness, in the same endorsement creating the mootness?

2. Can Justice Audet issue notice under Rule 2.1 without reading the pleadings?

3. Can Justice Audet dismiss the appeal of the costs portion of Justice Hood’s order as an abuse of process without providing notice under Rule 2.1?

4. Does the order of Justice Hood have continuing force?

5. If the order of Justice Hood does have continuing force, should it be stayed or set aside?

6. Can Justice Audet make a finding that the Moving Party was abusive to staff and engaged in litigation that was an abuse of process without proving the Moving Party an opportunity to be heard on the matter or be provided [with] the evidence relied upon?

[23] Although the threshold for demonstrating a serious question for determination on the appeal is low, in my view, there is no merit to Mr. McIntosh’s proposed appeal. Justice Audet determined that Mr. McIntosh’s motion seeking her recusal as case management judge was moot because, with the exception of his motion for leave to appeal the costs order of Justice Nakonechny, the proceedings initiated by him in Divisional Court had all been dismissed and, as a result, Justice Audet’s role as case management judge in these matters was at an end. Simply put, there is nothing left for Justice Audet to case manage.

[24] In her May 26, 2022 endorsement, Justice Audet addressed Mr. McIntosh’s position that she had no authority to direct the issuance of a r. 2.1 notice because she had not read “the pleadings.” Justice Audet stated that the pleadings to which she referred were Mr. McIntosh’s 14B motion materials considered by Justice Hood and explained that there was no need for her to access the 14B motion materials to question whether Mr. McIntosh’s appeal of Justice Hood’s order was moot, given that a final order had already been made in that proceeding. In my view, Justice Audet’s conclusion that Mr. McIntosh’s motion for leave to appeal Justice Hood’s order was moot since his underlying legal proceeding before the Superior Court of Justice is the subject of a final order is unassailable. So, too, is her conclusion that the operative part of Justice Hood’s order (as opposed to his order for costs) has no continuing force. Further, the court’s direction to the registrar to give notice is a procedural step and is not subject to appeal.

[25] It was open to Justice Audet, in her discretion, to find that it would be an abuse of process to allow Mr. McIntosh to seek leave to appeal the $500 costs award made by Justice Hood. Justice Audet explained that she did so on the basis that the amount in question does not justify dedicating the court’s limited resources to such a matter. Justice Audet did not exercise her discretion arbitrarily or capriciously.

[26] In her May 26, 2022 endorsement, Justice Audet concluded that Mr. McIntosh’s behaviour to court staff throughout the proceedings before this court has been abusive. Justice Audet gave specific examples of Mr. McIntosh’s abusive behaviour. Justice Audet described Mr. McIntosh’s litigation conduct as a clear abuse of the court’s process. In this regard, she noted that Mr. McIntosh’s submissions in response to the r. 2.1 notice issued by the registrar in court file no. TBA were emailed directly to her, at her work email address, and that he had named her as a responding party, seeking costs against her personally. Justice Audet observed that Mr. McIntosh had requested an urgent motion seeking her recusal based on his allegation that she is corrupt.

[27] In connection with this motion, Mr. McIntosh persists in his efforts to assert the recusal and review issues, notwithstanding that they were addressed in Justice Audet’s endorsements and in this court’s directions of June 22, 2022. I agree with Justice Audet’s characterization of Mr. McIntosh’s behaviour and her conclusion that “[t]his behaviour on the part of Mr. McIntosh cannot possibly be condoned by this Court.”

[28] There is no serious issue to be determined on the appeal. Because this low threshold has not been met, I need not consider the principles governing motions for leave to appeal.

(ii) The question of irreparable harm

[29] A court must ascertain whether a refusal to grant the stay could so adversely affect the moving party’s interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the stay motion: RJR-MacDonald, at p. 341. Irreparable harm is harm which either cannot be quantified in monetary terms or which cannot be cured. Irreparable harm may also occur where the failure to grant a stay would render any subsequent appeal moot.

[30] Mr. McIntosh will not suffer irreparable harm if a stay pending his motion to leave to appeal is not granted. Mr. McIntosh’s ability to pursue his motion for leave to appeal will not be rendered moot if a stay is not granted.

(iii) Balance of convenience

[31] The final component of the RJR-MacDonald stay test requires a determination of which of the two parties will suffer the greater harm from the granting or refusal of the stay, pending a decision on the merits. The balance of convenience in this case is neutral as between Mr. McIntosh and Ms. Kim because Mr. McIntosh’s ability to pursue his motion for leave to appeal will not be rendered moot if a stay is not granted.

(iv) Is it in the interests of justice that a stay be granted

[32] I have concluded that Mr. McIntosh has not raised a serious question to be determined on the appeal, should leave to appeal be granted, nor has he demonstrated that he would suffer irreparable harm if a stay were not granted. The balance of convenience factor is neutral as between the parties. In the circumstances, I have no hesitation in concluding that it is not in the interests of justice that a stay be granted.

Conclusion

[33] Mr. McIntosh’s motion for a stay pending appeal is dismissed.

Madam Justice R. Ryan Bell

Date: July 18, 2022

CITATION: Kim v. McIntosh, 2022 ONSC 4176

DIVISIONAL COURT FILE NO.: 56/20, 71/20, 390/21, and TBA

DATE: 2022/07/18

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Anita Kim, Responding Party

AND

Adan McIntosh, Moving Party

COUNSEL: Mr. McIntosh, self-represented Moving Party

Kenneth Younie, for the Responding Party

ENDORSEMENT

RYAN BELL J.

Released: July 18, 2022

[^1]: Dated May 1, 2022, but identified in Mr. McIntosh’s motion record as dated July 1, 2022.

[^2]: Kim v. McIntosh, 2022 ONSC 3173.

[^3]: R.R.O. 1990, Reg. 194.

[^4]: At paras. 12 and 17 of Mr. McIntosh’s affidavit sworn July 5, 2022.

[^5]: 2022 ONSC 1877. See also Berge v. College of Audiologists, 2021 ONSC 4403, where the unsuccessful party sought and was denied leave at the Court of Appeal on November 29, 2021 (M52646).

[^6]: 1994 117 (SCC), [1994] 1 S.C.R. 311.

[^7]: 2011 ONCA 620, 283 O.A.C. 321, at para. 16.

[^8]: 2020 ONCA 815, at para. 18.