Court File and Parties

Citation: Brimley Place GP Inc. v. Kealy 2023 ONSC 4332

Court File No. DC-23-082

Date: 20231120

ONTARIO

DIVISIONAL COURT SUPERIOR COURT OF JUSTICE

BETWEEN:

TITLE: BRIMLEY PLACE GP INC., Applicant (Respondent)

• and -

BERNADETTE KEALY, Respondent (Appellant)

BEFORE: Leiper, J.

HEARD: In writing and by videoconference on July 21, 2023

Date of Decision: November 20, 2023

Lawyers: Siddharth S. Joshi, lawyer for Brimley Place GP Inc. Bernadette Kealy, self-represented

This Endorsement was originally dated and signed for release on July 26, 2023, but as a result of an error, it did not get released. It has therefore been re-dated for release now.

ENDORSEMENT

[1] The Appellant, Bernadette Kealy filed an appeal from the His Honour Justice Cavanagh, dated January 13, 2023, in the Respondent’s (“Brimley Place”) Application in court file no. CV-22-00682141-0000 for a writ of possession in relation to a commercial tenancy.

[2] Ms. Kealy initially appealed from the order of the writ of possession and the costs order. Once she confirmed that she had secured adequate replacement housing, Ms. Kealy no longer sought to overturn the writ of possession. However, she did ask for payment of certain expenses relative to her move and the actions taken by Brimley Place. Ms. Kealy amended her Notice of Appeal to add these new claims for relief, none of which were before Justice Cavanaugh at the motion for the writ of possession.

[3] Counsel for Brimley Place provided written submissions on its request to dismiss those added claims for relief pursuant to Rule 2.1 of the Rules of Civil Procedure. Ms. Kealy provided both written submissions and was afforded an opportunity to read her submissions to the court on July 21, 2023. She described the impact of the actions taken by Brimley Place during these proceedings and invited the court to find that her appeal should continue based on all of the grounds and areas of relief set out in the amended Notice of Appeal.

[4] After hearing from both parties, I found that the new relief added in Ms. Kealy’s amended Notice of Appeal was not related to the order made by Justice Cavanaugh or to the content of the Application. Accordingly, as I explained on July 21, 2023, these are not appropriate forms of relief on an appeal from a writ of possession and costs. These new forms of relief meet the test for “frivolous, vexatious or otherwise and abuse of the process of the court.” I grant the motion by Brimley Place to dismiss those grounds of new relief.

[5] Given that Ms. Kealy no longer seeks to overturn the writ of possession, this leaves only the costs order made by Justice Cavanaugh, for which Ms. Kealy will require to leave to appeal. I have fixed a schedule which has been communicated to the parties under separate cover.

[6] I thank counsel for Brimley Place and Ms. Kealy for their submissions and their attendance on this matter.

[7] The appeal as it relates to paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of the Notice of Appeal (as amended), is dismissed.

[8] Costs of this motion are reserved to the panel hearing the motion for leave to appeal.

Leiper J.

Released: November 20, 2023