CITATION: Master Tech Inc. v. Assaf, 2023 ONSC 3177
DIVISIONAL COURT FILE NO.: 232/23
DATE: 20230529
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Master Tech Inc., Appellant
AND:
Wajeb Assaf and Klaiman Edmonds, Respondents
BEFORE: Nishikawa J.
COUNSEL: Fariborz Tavana, in person for Master Tech Inc.
Mark Kestenberg, for Klainman Edmonds
No one appearing for Wajeb Assaf
HEARD at Toronto: In writing
RULE 2.1.01 ENDORSEMENT
Overview
[1] The Appellant seeks to appeal two orders of Chalmers J. The first is an order dated February 15, 2023 awarding the defendants $17,500 in costs (the “Costs Order”). The second is an order dated April 3, 2023 dismissing the Appellant’s claim pursuant to Rules 57.03(2) and 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Merits Order”). Although there are two orders, the Appellant filed a single notice of appeal with the Divisional Court.
[2] The Respondent, Klaiman Edmonds, has brought a motion to quash the appeal of the Costs Order on the basis that the appeal was filed late and the Appellant failed to seek leave to appeal.
[3] A case conference was held on May 11, 2023 to discuss the following issues regarding the appeal: (i) the ability of Fariborz Tavana, who is not a lawyer, to represent the Appellant, Master Tech Inc.; and (ii) the proper appeal routes for the two orders.
[4] Following the case conference, I issued an endorsement confirming that under s. 19(1)(a)(1.2)(c) of the Courts of Justice Act, the claim that was dismissed, which was for over $500,000 in damages, exceeded the monetary jurisdiction of this court. An appeal of the Merits Order would be to the Court of Appeal as of right. In the case conference endorsement, I declined to transfer the appeal of the Merits Order to the Court of Appeal.
[5] In respect of the Costs Order, the endorsement noted that under s. 133(b) of the Courts of Justice Act, no appeal lies without leave of the court to which the appeal is to be taken “where the appeal is only as to costs that are in the discretion of the court that made the order for costs.” Rule 62.02(1)2 states that leave to appeal to the Divisional Court must be obtained for a final order of a judge of the Superior Court for costs under s. 19(1)(a) and 133(b) of the Courts of Justice Act. The Appellant was advised that leave to appeal the Costs Order was required and that, given the passage of time, a motion to extend the time to seek leave to appeal would be necessary.
[6] In the endorsement, I further advised that the Respondent need not pursue the motion to quash. I directed the Registrar to send a notice under Rule 2.1.01 advising that this court was considering dismissing the appeal under Rule 2.1.01 of the Rules as frivolous, vexatious or an abuse of process based on the following issues:
• Mr. Tavana’s ability to continue the appeal and act for the appellant corporation given the requirement under Rule 15.01(2) that a corporation be represented by a lawyer, except with leave of the court, and that Master Tech Inc. was dissolved in 2020; and
• Contrary to s. 133(b) of the Courts of Justice Act, the Appellant had not sought leave to appeal.
[7] I gave the Appellant until June 23, 2023 to respond, which is considerably longer than the 10-day period specified under the Rules.
[8] On May 16, 2023, Mr. Tavana provided a brief written submission stating that the two motion records before Chalmers J. “ought to have sufficiently delivered necessary points and matters” and that “any further submission would be duplication of matters and so redundant. And thus there is no need for further submission from the Appellant, at this time and place, unless the court orders otherwise.” (Emphasis in original.) Mr. Tavana did not forward the motion material on the basis that he would be out of Canada with limited access to the internet.
Analysis
[9] This court may stay or dismiss an appeal if it appears to be frivolous, vexatious, or an abuse of process: Rule 2.1.01, Rules of Civil Procedure. Rule 2.1.01 can only be used in the “clearest of cases”, where the frivolous or abusive nature of the proceedings is apparent on the face of the pleadings: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8; Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8; Khan v. Law Society of Ontario, 2020 ONCA 320, at para. 6. Rule 2.1.01 should not be used to weed out cases that might be frivolous, vexatious or an abuse of process or where it is a close call: Visic, at para. 8.
[10] The Appellant declined to respond to the Rule 2.1.01 notice as directed by the court. It is not up to this court to search the Superior Court of Justice court file to find a basis for the appeal. Similarly, it is not up to Respondent’s counsel to provide the material to the court, as suggested by Mr. Tavana. The Appellant bears the burden of satisfying the court that the appeal ought not to be dismissed as frivolous, vexatious and an abuse of process. He has failed to do so.
[11] Mr. Tavana was advised that leave was required to appeal the Costs Order and that the Appellant would have to bring a motion for an extension of time. In fact, Respondent’s counsel advised Mr. Tavana the day after he served the notice of appeal that leave was required to appeal the Costs Order and that the Merits Order was in the wrong court. Mr. Tavana was made aware of the applicable rules but declined to follow them. To date, the Appellant has not brought a motion for leave to appeal. It is up to the Appellant to take the proper steps under the Rules to pursue the appeal. The Appellant cannot seek to pursue an appeal and yet consistently disregard the applicable rules.
[12] As a result, given that the Appellant has not attempted to prove otherwise, I am satisfied that the appeal ought to be dismissed as frivolous, vexatious and an abuse of process.
Conclusion
[13] Accordingly, the appeal is dismissed pursuant to Rule 2.1.01. Given that the responding parties were not required to make any submissions in response to the Court’s Rule 2.1.01 notice, no costs are ordered.
“Nishikawa J.”
Date: May 29, 2023