Court File and Parties
CITATION: Goble v. Onyx Community Services, 2023 ONSC 1052
COURT FILE NO.: DC-23-2771
DATE: 2023/02/13
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
RE: Trevor Goble, Appellant
- and -
Onyx Community Services, Respondent
BEFORE: Regional Senior Justice Calum MacLeod (in Chambers)
HEARD: In writing pursuant to Rule 2.1 of the Rules of Civil Procedure
DECISION AND REASONS
[1] This matter was referred to me by the Registrar of the Divisional Court at the request of counsel for the Respondent (Defendant in court file CV-22-89357). The request was made to the Registrar by letter as permitted under Rule 2.1.
[2] The matter I am asked to dismiss is a Notice of Appeal filed by Mr. Goble. He appeals the order of Justice Sally Gomery made on January 1, 2023, in which Justice Gomery struck out the statement of claim in court file number CV-22-89357 as frivolous and vexatious. She dismissed the action with costs of $22,346 payable by Mr. Goble and Mr. Ascani (his remaining co-plaintiff at that time).[^1]
[3] The purpose of Rule 2.1 is to provide a summary method for the court to dismiss any civil proceeding that is self evidently frivolous, vexatious or an abuse of the process of the court. It is reserved for matters that are on their face improper and impossible of success and in which it would be inappropriate for the responding party to be put to the expense of bringing a formal motion. The rule applies to any civil proceeding including appeals.
[4] Despite the summary nature of the proceeding, the court may give notice to the party against which the order is sought and permit brief written submissions although the court is not required to do so in all instances.[^2]
[5] In this case, the Respondent sought the order as soon as the Notice of Appeal was served and he copied the Appellants with the request. The Appellant Goble has already responded in writing objecting to the use of the summary process. As a consequence, it is not necessary to direct the Registrar to put the Appellant on notice under Rule 2.1.01 (3), because I already have the position of the Appellant respecting the use of this rule and whether it is appropriate in this case.
[6] In his letter and email to the court, Mr. Goble states that he has an “inherent right to appeal” and states that the order he is appealing is an order for $22,346 and not an order for $76,657 as suggested by counsel for the Respondent.
[7] Mr. Goble is incorrect when he refers to an “inherent right to appeal”. All rights to appeal in civil matters are statutory rights and are governed by statute. In particular, the jurisdiction of the Divisional Court to hear appeals from final orders of judges of the Superior Court of Justice is limited.
[8] Section 19 of the Courts of Justice Act [^3]specifies that an appeal of a final order lies to this court if it is either a final order for less than $50,000, is the dismissal of a claim that is not for more than $50,000 or alternatively is the dismissal of a claim in which the court has determined that the damages could never exceed $50,000. So, while it is true that the costs awarded against the Appellants were an amount less than $50,000, it is not the case that the claim which was dismissed was less than $50,000. The original claim was for much more than this and although it had been reduced in an amended statement of claim, the plaintiffs were still claiming combined damages of at least the $76,657 described by Justice Gomery.
[9] It is true that only Mr. Goble is appealing, and the claim he was advancing on his own behalf in the original action (as amended) was less than $50,000 but that is not the way the statute has been interpreted. Where claims are dismissed, it is the total amount of the claims by all plaintiffs that determine whether the Divisional Court has jurisdiction.[^4] As a consequence, the Divisional Court would be without jurisdiction to hear this appeal. That alone compels dismissal of the appeal but it is not the only reason. The Apellant has a history of frivolous and vexatious litigation described in the decision under appeal and the various findings that the Appellant is a vexatious litigant also described therein.
[10] The Court of Appeal has, on more than one occasion, considered the previous findings that a litigant was a vexatious litigant in dismissing an appeal under Rule 2.1. [^5] In the Notice of Appeal, the Appellant states that the judge was incorrect in her summary of the facts, alleges bias and appears to state new facts that were not before the court. None of this appears to raise credible grounds for challenging the core findings. Justice Gomery found that the underlying action bore the hallmarks of a vexatious proceeding, that the Appellant had sued Onyx five times, that Mr. Goble asserted claims and made allegations that had been rejected in previous proceedings, and found that the amended claim included recycled claims that had already been adjudicated supplemented by new related claims. She also found that Mr. Goble’s own claim for defamation was statute barred. The notice of appeal does not reveal grounds for challenging that finding.
[11] I conclude that on the face of the Notice of Appeal when read together with the findings of Justice Gomery and the history of prior litigation, this is a clear and obvious case in which the appeal appears to be frivolous and vexatious.
[12] I permanently stay the appeal pursuant to Rule 2.1.
[13] As this was not a motion and the only submission made by the Respondent was by letter, no costs are awarded.
Justice C. MacLeod
Date: February 13, 2023
CITATION: Goble v. Onyx Community Services, 2023 ONSC 1052
COURT FILE NO.: DC-23-2771
DATE: 2023/02/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C MacLeod RSJ
BETWEEN:
Trevor Goble, Appellant
- and -
Onyx Community Services, Respondent
DECISION AND REASONS
C. MacLeod, RSJ.
Date of Release: February 13, 2023
[^1]: Goble v. Onyx Community Services, 2023 ONSC 393 [^2]: See Kim v. McIntosh, 2022 ONSC 6452 @ para. 30 and Kovacevic v. Kovacevic, 2022 ONSC 2389 (Div. Ct.) [^3]: RSO 1990, c. C.43 as amended [^4]: See Harte-Eichmanis v. Fernandes, 2012 ONCA 266 @ para. 13 [^5]: See Wilson v. Fatahi-Ghandehari, 2023 ONCA 74 and see Van Delst v. Hronowsky, 2022 ONCA 881 in which the rule was invoked following a motion.