Court File and Parties

Citation: Pack v. Cord Blood Bank of Canada Inc., 2023 ONSC 5156 Divisional Court File No.: 254/23 and 255/23 Date: 2023-09-18 Superior Court of Justice – Ontario Divisional Court

Re: Bernadette Ellison aka Bernadette Scherz, Moving Party/Defendant And: Stephen Pack and Natasha Pack, Respondents to Motion/Plaintiffs Cord Blood Bank of Canada Inc., Respondent to Motion/Defendant

Before: Matheson J.

Counsel: Self-Represented Moving Party Emily C. Durst, for Stephen and Natasha Pack Safia J. Lakhani, for the Cord Blood Bank of Canada Inc.

Heard at Toronto: In Writing.

Endorsement

[1] The moving party has brought motions for leave to appeal the decisions of Valente J. dated April 6, 2023 (File No. 254/23) and April 12, 2023 (File No. 255/23). This endorsement addresses a request to quash all or part of those motions under r. 2.1 of the Rules of Civil Procedure.

[2] The April 6, 2023 decision declined the moving party’s motion for leave to examine the plaintiffs and several other people at the hearing of a motion to strike out the statement of defence.

[3] The April 12, 2023 decision scheduled the motion to strike out the statement of defence for May 2, 2023. However, the motion to strike did not proceed at that time. Among other things, the judge was told of the motion seeking leave to appeal the April 6, 2023 decision, above, and the motion was adjourned.

[4] After the commencement of the two motions for leave to appeal, this Court gave directions setting out a number of topics for discussion at a case conference. As set out in Leiper J.’s directions arising from the case conference, the moving party was given a time period within which they could consider whether to amend their motions. The directions further indicated that counsel for the respondents could take steps under r. 2.1 if the motions were not amended.

[5] After the time period had passed, and the moving party made no amendments, counsel to the respondents requested that notice be given under r. 2.1. Leiper J. set a schedule for written submissions, providing until August 22, 2023 for submissions from the moving party. No submissions were received from the moving party.

[6] By notice from the Registrar dated August 31, 2023, the moving party had an additional 15 days from that date to provide submissions and has not done so.

[7] Subrule 2.1.01(1) authorizes the Court to dismiss a motion 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.

[8] Beginning with the motion for leave to appeal the April 12, 2023 decision, it is clear that it should be dismissed. That decision set a return date for a motion to strike. As set out above, on that return date, the motion did not proceed. The motion for leave to appeal the April 12, 2023 decision is moot. The moving party also sought relief on the leave motion that is unavailable, including summary judgment and a finding of fraud. Neither matter was before the judge nor was it the subject of the April 12, 2023 decision. The motion for leave to appeal the April 12, 2023 decision is therefore dismissed.

[9] Moving to the motion for leave to appeal the April 6, 2023 decision, the parties that requested this r. 2.1 process challenge parts of the relief sought, not including the primary relief. The primary relief sought is leave to appeal the April 6, 2023 decision.

[10] The relief that is challenged is as follows. The moving party seeks to set aside the order from which leave is sought. That request is premature and may be made if leave to appeal is granted. As well, the moving party seeks an acknowledgment that there was fraud. It does not appear that that relief was sought on the motion giving rise to the April 6, 2023 decision. Even if it was, it is also premature to request that relief before the question of leave to appeal is decided.

[11] Since the primary relief sought in the April 6, 2023 decision is not the subject of this r. 2.1 process, the motion for leave to appeal will not be dismissed under r. 2.1. Further, there is no need to dismiss the claims for relief that have been challenged in this r. 2.1 process. The respondents may refer to the issues about the scope of the relief in their responding materials on the leave motion.

[12] In summary, the motion for leave to appeal the April 12, 2023 (Court File No. 255/23) is dismissed under r. 2.1. The motion for leave to appeal the April 6, 2023 decision (Court File No. 254/23) is not dismissed under r. 2.1 and, given the above circumstances, it shall be expedited. The parties shall submit their agreed, or proposed, schedules for the exchange of the motion materials and factums within 10 days from today, by email to the Court office, after which the schedule shall be set by the Court.

Matheson J.

Date: September 18, 2023