CITATION: Mohammad v. Springer Nature, 2023 ONSC 1805

DIVISIONAL COURT FILE NO.: 135/23

DATE: 20230320

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ahmad Mohammad, Appellant

AND:

Springer nature, Respondent

BEFORE: Matheson J.

COUNSEL: Self-represented Appellant

Eric Leinveer, for the Respondent

HEARD at Toronto in Writing: March 20, 2023

ENDORSEMENT

[1] This court directed the Registrar to issue a notice to Mr. Mohammad pursuant to r. 2.1 of the Rules of Civil Procedure on the following basis:

The appellant has confirmed that the date in the notice of appeal – Feb. 28, 2023 – should be Feb. 27, 2023.

According to the notice of appeal, the appellant seeks to appeal the endorsement of Justice Papageorgiou in which she directs the registrar to send out a rule 2.1 notice in the underlying proceedings (the Decision). The Decision does not decide the issue of whether or not the powers under rule 2.1 to stay or dismiss the proceeding will be used. That decision has not yet been made, and once it is may be appealed to the Court of Appeal, but not to the Divisional Court.

In the appellant’s response to the rule 2.1 notice in this court, the appellant should address the issue of why he would have a right of appeal of the Decision, which is essentially the direction to take an administrative step in a process that is not yet complete.

[2] Mr. Mohammad responded to the r. 2.1 notice as follows:

My appeal shall not be reviewed under rule 2.1 for the following reasons:

1- Pursuant to the notice of profession for the divisional court, the court indicates that where an appeal challenges the procedural fairness of an endorsement, no standards will be applied by the court.

2- In my notice of appeal, I clearly stated that I requested a constitutional question; and my request was declined by Chalmers J., see enclosed (he doesn’t state that my application is about constitutional question for unknown reasons!). The constitutional question is to ensure the impartiality of justice, and procedural fairness.

3- The two endorsements made by Papageorgiou J, and then Chalmers J. directly violated the procedural fairness (the constitutional act); and the divisional court shall stop these violations instead of leaving the court of appeal being overloaded.

4- To rephrase, the divisional court is to intervene against interlocutory orders when the matter is referring to procedural fairness and when the plaintiff is making a submission to question the constitution. The divisional court should be a safeguard of the fairness procedure instead of referring to the court of appeal; because it is assumed to behave in a good-faith way!

[3] Mr. Mohammad also submitted a copy of an endorsement from Civil Practice Court dated March 1, 2023, in which Chalmers J., presiding, declined to schedule Mr. Mohammad’s application in the Superior Court because of the pending decision under r. 2.1. Chalmers J. ordered Mr. Mohammad could return to Civil Practice Court to schedule the application after the decision under r. 2.1 if the application was moving forward. The Civil Practice Court order is referred to later in the notice of appeal and is mentioned in Mr. Mohammad’s r. 2.1 submissions in the Divisional Court. I have therefore considered it part of the appeal for the purpose of this ruling under r. 2.1.

[4] Subrule 2.1.01(1) authorizes the court to dismiss an appeal as frivolous or vexatious or otherwise an abuse of the process of the court. However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8.

[5] This is a clear case. There has not yet been a decision under r. 2.1 in the Superior Court, as set out above. Mr. Mohammad was free to raise whatever arguments he wished to raise in his written submissions in that process in the Superior Court, including the arguments mentioned in his notice of appeal and his r. 2.1 submissions in this court. The ultimate decision under r. 2.1 in the Superior Court may be challenged. There is no right to appeal the administrative step taken in the Decision to invoke the process under r. 2.1. The proposed appeal is therefore an abuse of process.

[6] The decision of Chalmers J. is an interlocutory decision that may only be appealed with leave and leave has not been sought. Further, the notice of appeal does not show an error in principle in the exercise of scheduling discretion and an appeal would be rendered moot by ongoing steps in the Superior Court before an appeal from that order could be heard in this court. If Mr. Mohammad had sought leave to appeal the Civil Practice Court decision, the result in this court would be the same. The proceedings in this court are dismissed as an abuse of process.

[7] Mr. Mohammad’s proper course is to respond to the r. 2.1 notice issued by the Superior Court. If he is dissatisfied with the disposition of the r. 2.1 issue, he may then seek to pursue his appeal rights.

Matheson J.

Date: March 20, 2023