Citation

CITATION: Smith v. Smith, 2022 ONSC 427

DIVISIONAL COURT FILE NO.: 928/21

DATE: 20220119

Court and Parties

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Lynn Michelle Smith, Applicant (Respondent)

AND:

Darrin Smith, Respondent (Appellant)

BEFORE: Favreau J.

COUNSEL: Cyrus Muller and Walter Drescher – for the Appellant

Justice Lyons – for the Respondent on the Appeal

NOTICE UNDER RULE 2.1.01 OF THE RULES OF CIVIL PROCEDURE

[1] On December 3, 2021, counsel for Darrin Smith sent a request to the Divisional Court to commence an appeal from an order made by Breithaupt Smith J. discontinuing a trial and ordering that the trial start again before a different judge.

[2] Following receipt of the notice of appeal, the Court made the following direction:

The appellant seeks to appeal an order ending a trial and directing that a new trial be scheduled. This appears to be an interlocutory order, from which leave is required pursuant to Rule 62.02(4) of the Rules of Civil Procedure. If the appellant disagrees, the appellant is directed to provide the basis for disagreement. If the appellant agrees, the appellant is directed to take necessary steps to discontinue the appeal and commence a motion for leave to appeal. The appellant is to respond to this direction by December 13, 2021.

[3] In response to this direction, the appellant’s counsel sent submissions outlining his view that the proposed appeal from the discontinuance of the trial before the trial judge is a final order. In making this submission, the appellant states that the order is final because he will not have another opportunity to raise the issue of whether the trial should have been discontinued and whether it can proceed before Breithaupt Smith J.

[4] This is not the test for determining whether the order is final or interlocutory. As recently held in 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, at para. 7:

A final order disposes of the litigation, or finally disposes of part of the litigation: Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.). An interlocutory order disposes of the issue raised, most often a procedural issue, but the litigation proceeds: Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), at p. 678.

[5] In this case, the decision to discontinue the trial and have it heard by another judge does not dispose of the litigation or part of the litigation. All issues in the litigation are to be decided in a new trial before a different judge.

[6] Rule 2.1.01 of the Rules of Civil Procedure provides that the court may dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court. Rule 2.1.01 may be invoked and is a useful tool where it is clear on its face that a proposed proceeding does not fall within the Court’s jurisdiction.

[7] The court is considering whether to dismiss this appeal on the basis of Rule 2.1.01.

[8] However, Mr. Smith should be given another opportunity to explain why his proposed appeal is not interlocutory.

[9] Accordingly, the court makes the following order:

a. Pursuant to Rule 2.1.01(3)(1), the registrar is directed to give notice to Mr. Smith through his counsel in Form 2.1A that the court is considering making an order under rule 2.1 dismissing the appeal;

b. If Mr. Smith chooses to make written submissions in response to the notice, in accordance with Rule 2.1.01(3)2, his written submissions should address the apparent deficiencies identified above;

c. Pending the outcome of the written hearing under Rule 2.1 or further order of the court, the appeal is stayed pursuant to section 106 of the Courts of Justice Act, R.S.O. 1990, c C.43;

d. The registrar shall accept no further filings on the appeal except Mr. Smith’s written submissions delivered in accordance with rule 2.1.01(3); and

e. In addition to the service by mail required by Rule 2.1.01(4), the registrar is to send a copy of this endorsement and a Form 2.1A notice to Mr. Smith’s counsel and counsel for the respondent listed above by email.

Favreau J.

Date: January 19, 2022