CITATION: Kim v. McIntosh, 2022 ONSC 6452

DIVISIONAL COURT FILE NOS.: 56/20, 71/20, 390/21

DATE: 2022/11/17

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Anita Kim, Responding Party

AND

Adan McIntosh, Moving Party

BEFORE: Justice S. Corthorn

COUNSEL: Mr. McIntosh, Self-represented Moving Party

HEARD: In writing, in Chambers

ENDORSEMENT

Introduction

[1] Two endorsements were released by the court in this matter in the past several months. The most recent endorsement is dated August 15, 2022. In that endorsement, a three-member panel of this court (“the Panel”) dismisses Mr. McIntosh’s motion for leave to appeal the January 2019 costs award of Nakonechny J.

[2] In the earlier of the two endorsements, Ryan Bell J. determined a motion by Mr. McIntosh to stay, pending appeal, orders made by Audet J. in April and May 2022. At paras. 14-32 of her endorsement, Ryan Bell J. reviews the relevant procedure, sets out the governing test, and applies the test to Mr. McIntosh’s motion for a stay pending appeal. At para. 33, Ryan Bell J. dismisses the motion.

[3] In response to each endorsement, Mr. McIntosh filed a notice of motion. Each notice of motion refers solely to Divisional Court File No. 071/20. Both endorsements have the same title of proceeding as this endorsement. In summary, there are two motions by Mr. McIntosh before this court.

[4] The relief sought on each of the two motions is the same. Mr. McIntosh requests that each of the orders made be set aside. He also requests that each of the judge or judges who made the subject order be recused.

[5] Both of Mr. McIntosh’s notices of motion are before me for consideration under r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 2.1.02(1) provides that “The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous, or vexatious or otherwise an abuse of the process of the court.” The procedure to be followed when dealing with a motion under r. 2.1.02 is the same as that to be followed when the court deals with a proceeding: rr. 2.1.01(2)-(7) and 2.1.02(2).

[6] I will first review the law with respect to r. 2.1 and then address each of Mr. McIntosh’s motions.

The Substantive Test Under rr. 2.1.01 and 2.1.02

[7] Rule 2.1 establishes streamlined procedures that permit the court to fairly, and in a just manner, resolve a particular category of disputes in a timely, proportionate, and affordable way. The majority of the law that has developed with respect to r. 2.1 has developed in relation to proceedings (r. 2.1.01) rather than motions (r. 2.1.02). In the overview that follows, the references to “proceeding” or “action” is, for the purpose of this endorsement, replaced with “motion”.

[8] In at least three decisions, the Ontario Court of Appeal has highlighted that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases (Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733; Khan v. Krylov & Company LLP, 2017 ONCA 625; and Khan v. Law Society of Ontario, 2020 ONCA 320). At para. 15 of Khan v. Law Society, the Court cautioned judges regarding reliance on r. 2.1.01:

We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.

[9] The principles to be applied by a judge determining matters under rr. 2.1.01 and 2.1.02 include, but are not limited to, the following:

• “[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 9; and
• The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3.

[10] To determine whether an action may be characterized as “vexatious, frivolous or an abuse of the court” under r. 2.1.01, the court may consider the criteria developed for applications pursuant to s. 140 of the Courts of Justice Act.

[11] At para. 9, in Gao v. Ontario WSIB, 2014 ONSC 6497, Myers J. referred to the definition in Black’s Law Dictionary of “frivolous”: "Lacking a legal basis or legal merit; not serious; not reasonably purposeful", quoting from Currie v. Halton Regional Police Services Board, 2003 7815, Ont. C.A., at para. 14.

[12] In Scaduto, Khan v. Krylov, and Khan v. Law Society, the Ontario Court of Appeal endorsed the approach taken to r. 2.1.01 in such lower court cases as Gao and Raji, referenced above.

The Procedure Under r. 2.1.02

[13] A judge considering dismissing a motion under r. 2.1.02(1) may seek written submissions from the parties. When doing so, the procedure set out at r. 2.1.01(3) is followed. Where further submissions would serve no purpose, the judge may waive the requirement for them.

[14] Waiving the requirement for further submissions is the exception, rather than the general rule.

[15] I turn next to the most recent and then to the earlier of the court’s two endorsements.

The August 2022 Endorsement of the Panel

[16] The Panel dismissed Mr. McIntosh’s motion for leave to appeal the costs award of Nakonechny J. dated January 2019. It did so in the following single paragraph:

A panel of the Court was convened to review the outstanding request by Mr. McIntosh for leave to appeal the costs award of Nakonechny J. dated January 7, 2019. Such requests for leave are dealt with in writing. Reasons for granting or withholding leave are not required and in keeping with the practice in the Court of Appeal and the Supreme Court of Canada reasons are not normally provided.

[17] In his September 13, 2022 notice of motion, Mr. McIntosh requests that the Panel be recused and that their order be set aside. In support of that request, Mr. McIntosh relies on the following grounds:

1. It is clear from the endorsement that [no member of the Panel] read the materials in 071/20 before dismissing the matter. This is contrary to principle of audi alteram partem.

2. Failure to adhere the audi alteram partem principle is accepted as an apprehension of bias and is grounds for recusal.

3. The court also took over a year after materials were filed to hear the matter in 071/20 contrary to the principle that justice delayed is justice denied.

4. The entirety of this constitutes a mistake and or fraud and the endorsement should be set aside or changed under FLR 25(19).

[18] For the reasons that follow, Mr. McIntosh’s motion falls within the scope of the clearest of cases for which the blunt instrument of r. 2.1.02(1) is to be applied. The matters raised on the motion do not rise to the level of a close call. This motion is an appropriate one for which to make an order, under r. 2.1.01(3), dispensing with the requirement for written submissions to be filed.

[19] First, the Panel made the decision in chambers in accordance with the procedure requiring that Mr. McIntosh’s motion for leave to appeal the January 2019 award of costs be heard in writing: r. 62.02(2). The Latin phrase upon which Mr. McIntosh relies – “audi alteram partem”, meaning listen to the other side, is not relevant to the motion for leave to appeal. Mr. McIntosh availed himself of the right to file materials in support of the motion for leave to appeal. He was heard – albeit in writing.

[20] Second, Mr. McIntosh relies on a delay from the date on which his motion for leave to appeal was filed and the date on which it was determined. Mr. McIntosh does nothing more than rely on the adage “justice delayed is justice denied”.

[21] Regardless of when the motion for leave was determined, the order made brought the matter to an end. Mr. McIntosh was not delayed in taking a next step. He did not suffer any prejudice and he was not denied justice in the process.

[22] Last, Mr. McIntosh asserts that the circumstances in which the Panel dismissed the motion for leave to appeal constitute “a mistake and [/] or a fraud”. Mr. McIntosh relies on r. 25(19) of the Family Law Rules, O. Reg. 114/99 in support of his request to have the Panel’s order set aside. There is no merit whatsoever to the alleged mistake and/or fraud on the part of the Panel.

[23] The motion for an order recusing the Panel is not properly before the court.

[24] In the words of Myers J., at para. 18 in Gao, a robust application of r. 2.1.02 requires that Mr. McIntosh’s motion in response to the Panel’s endorsement and order be brought to an early end. The motion dated September 13, 2022, is dismissed.

[25] I turn next to the motion in response to the July 2022 endorsement of Ryan Bell J.

The July 2022 Endorsement of Justice Ryan Bell

[26] Justice Ryan Bell determined Mr. McIntosh’s motion for an order staying the orders of Justice Audet dated April and May 2022 and to recuse Justice Audet from the matter. Justice Ryan Bell determined only the motion to stay the two orders. Justice Ryan Bell concluded that the request for an order to recuse Justice Audet was not properly before the court: Kim v. McIntosh, 2022 ONSC 4176, at para. 2.

[27] Mr. McIntosh’s notice of motion in response to Justice Ryan Bell’s endorsement is dated July 20, 2022 – two days following the date on which the endorsement was released, and the order made. Mr. McIntosh requests an order recusing Justice Bell. The request for that relief is not properly before the court.

[28] The only other relief requested by Mr. McIntosh is an order setting aside Justice Ryan Bell’s endorsement. Mr. McIntosh asks that his motion be heard by a panel of this court. In support of that request, he relies on s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[29] In support of the substantive relief requested, Mr. McIntosh relies on the following grounds:

1. Justice Ryan Bell made an erroneous assumption regarding the reasons the Moving Party was seeking leave to appeal.

2. Justice Ryan Bell applied the wrong test to the matter.

3. Justice Ryan Bell has actively sought to litigate for the Responding Party and ensured the Responding Party would not have to defend legitimate issues of law.

4. Justice Ryan Bell made false accusation without evidence or allowing the Moving Party to respond.

5. Justice Ryan Bell had no jurisdiction to hear the motion in chambers and denied the Moving Party the safeguards of an oral motion.

6. Justice Ryan Bell did not provide reasons to support much of her findings.

7. Justice Ryan Bell falsely stated parts of the motion were not properly before the court and failed to consider the substantive issues.

8. Family Law Rules 1(12), 2, 25(19) and 38(35).

9. Rules of Civil Procedure 1.04(1), 1.04(2), 1.07, 3.02(1), 4.05(4), 37.01(1), 61.04, 61.05(5) and 61.09.

10. Courts of Justice Act 25(5) and 106.

[30] For the reasons that follow, Mr. McIntosh’s motion falls within the scope of the clearest of cases for which the blunt instrument of r. 2.1.02(1) is to be applied. The matters raised on the motion do not rise to the level of a close call. This motion is an appropriate one for which to make an order, under r. 2.1.03(1), dispensing with the requirement for written submissions to be filed.

[31] First, the July 2022 notice of motion is the second in a series of several occasions on which Mr. McIntosh, unhappy with an outcome, seeks to have the subject order set aside and the decision-maker(s) recused. The motion is exemplary of Mr. McIntosh’s pattern of behaviour as a litigant. That factor alone does not support the exercise of the court’s discretion to dismiss the motion under r. 2.1.02. That factor is, however, relevant to consideration of the vexatious and abusive nature of the motion.

[32] Second, Mr. McIntosh is unhappy with the substance of Justice Ryan Bell’s 9-page, 33-paragraph endorsement. I find that Justice Ryan Bell was detailed and thorough in her consideration of the procedural history and the substantive issues. There is no merit to Mr. McIntosh’s assertions that Justice Ryan Bell “made an erroneous assumption”; “applied the wrong test”; “actively sought to litigate for the Responding Party”; falsely accused Mr. McIntosh of anything; failed to provide reasons in support of her findings; and failed to consider the substantive issues.

[33] Mr. McIntosh makes very broad assertions regarding the quality of Justice Ryan Bell’s reasons and decision. He does so without tying those broad assertions to a specific paragraph in or portion of the endorsement.

[34] I find that the July 20, 2022 motion lacks legal basis and, on its face, is abusive of the court process. The motion dated July 20, 2022, is dismissed.

Summary

[35] The motions dated July 20, 2022, and September 13, 2022, are dismissed under r. 2.1.02(1). There shall be no costs of either motion.

Madam Justice S. Corthorn

Date: November 17, 2022

CITATION: Kim v. McIntosh, 2022 ONSC 6452

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

DATE: 2022/11/17

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Anita Kim, Responding Party

AND

Adan McIntosh, Moving Party

COUNSEL: Mr. McIntosh, Self-represented Moving Party

ENDORSEMENT

Madam Justice S. Corthorn

Released: November 17, 2022