CITATION: 9383859 Canada Ltd. v. The Court of Appeal for Ontario, 2023 ONSC 5344

COURT FILE NO.: 500/23

DATE: 20230922

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: 9383859 Canada Ltd, Applicant

AND:

The Court of Appeal for Ontario and the Attorney General of Ontario, Respondents

BEFORE: Schabas J.

COUNSEL: Sandeep Singh, acting in person for the Applicant.

Josh Hunter, counsel for the Ministry of the Attorney General

HEARD: In writing

ENDORSEMENT on Rule 2.1.01

This proceeding

[1] On August 25, 2023, Sandeep Singh, on behalf of the applicant, filed an application for judicial review in this Court. In his email accompanying the notice, Mr. Singh accurately advised the Court that the applicant sought to review a decision by the Executive Legal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal in 9383859 Canada Ltd. v. Navartnam, Kubeskaram et al., COA-22-CV-0453.

[2] Following receipt of the notice of application, on August 29, 2023, the Court notified the applicant that it was “considering making an order staying or dismissing this proceeding under Rule 2.1.01 of the Rules of Civil Procedure because it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court” and required the applicant to provide written submissions.

[3] The applicant then provided a brief factum largely repeating what is contained in the notice of application for judicial review. The applicant also helpfully provided some additional information about the appeal, including correspondence relating to the delisting of the appeal. The court also received a brief submission from the Ministry of the Attorney General for Ontario.

Background

[4] On July 31, 2023, the parties to the appeal, including the appellant, received an email from a Records Coordinator at the Court of Appeal advising that the appeal listed to be heard on September 14 was “delisted, as security for costs has not been paid.” That email also referred to a motion that had been scheduled to be heard on August 14, 2023, but had to be rescheduled to September 18, 2023, to allow Mr. Singh to file materials and attend as he was not available “due to a family emergency.” An earlier email from the Records Coordinator discloses that the motion set for August 14, 2023, was brought by the respondent to have the appeal dismissed.

[5] Mr. Singh objected to his appeal, which had been perfected, being delisted. A counsel in the Office of the ELO of the Court of Appeal then confirmed, in a letter dated August 16, 2023, that the appeal had been delisted because Mr. Singh had “not complied with Justice Miller’s order dated February 27, 2023, which required [him] to pay security for costs” by March 8, 2023. Miller J.A.’s order was upheld by a panel of the Court of Appeal in July, 2023. The letter also confirmed that the respondent’s motion would proceed on September 18, 2023.

[6] The applicant, in the meantime, is now seeking leave to appeal the security for costs decision to the Supreme Court of Canada.

Analysis

[7] The dismissal of a proceeding under Rule 2.1.01 is a blunt instrument, which should not be used lightly. It is reserved for the “clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading”: Khan v. Krylov & Company LLP, 2017 ONCA 625 at para. 12. A “frivolous” proceeding is one “lacking a legal basis or legal merit; not serious; not reasonably purposeful”: Currie v. Halton Regional Police Services Board, 2003 7815 (ON CA) at para. 14.

[8] In the notice of application for judicial review and the applicant’s factum, the primary complaint of the applicant is that the ELO delisted the appeal in the absence of a judge’s order. As the factum states, the ELO “violated the Rules of Civil Procedure and deny [sic] the constitutional rights of the Applicant, by de-listing the Appeal of the Applicant, without an Order from a Honourable Judge.”

[9] I am satisfied that this complaint lacks a legal basis and legal merit, and is not reasonably purposeful, for several reasons.

[10] First, decisions of the Court of Appeal are not subject to judicial review by the Divisional Court. The Court of Appeal is a “superior court of record”: Courts of Justice Act, RSO 1990, c. C.43, ss. 2(1). Any review of its conduct must be by way of appeal or a motion to reconsider, if available. The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has no jurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1.

[11] Second, the applicant provides no authority in support of the proposition that the ELO does not have the power to “delist” and that only a judge can do so. This is not surprising as the law goes the other way. As was observed in Valente v. The Queen, 1985 25 (SCC), [1985] 2 SCR 673, at paras. 47-49, the “assignment of judges, sittings of the court, and court lists” is part of the administration of the court controlled by judges, not the executive branch of government. Indeed, control over lists is seen as a basic or “minimum requirement” of the institutional aspect of judicial independence.

[12] This control over lists by the judiciary is also found in s. 75(1) of the Courts of Justice Act. Section s. 76 of the Courts of Justice Act then provides that court staff “shall act at the direction of the chief justice of the court.” There is no rule of court requiring a judge’s order to list or delist an appeal for hearing. Scheduling of matters is usually delegated to administrative staff who may list and delist cases. If a litigant takes issue with the listing or delisting of their case by an administrator, their remedy is to seek direction from a judge of the court in which the proceeding is taking place. The applicant has not done so. The application to this court, therefore, is an inappropriate and collateral attack on proceedings that are ongoing in the Court of Appeal.

[13] Third, the decision to delist in this case follows directly from an order of the Court of Appeal, as the applicant was ordered to post security for costs by March 8, 2023. Rule 56.05 of the Rules of Civil Procedure provides that, until security for costs is posted, the party required to post those costs is not entitled to take any further step in the proceeding other than to appeal the order. The applicant appealed the order unsuccessfully to a panel and has now sought leave to appeal to the Supreme Court of Canada. However, his application for leave does not stay Miller J.A.’s order. Accordingly, as the applicant cannot proceed with the appeal because it has failed to comply with a court order, the matter was delisted. Viewed this way, the ELO’s action delisting the appeal was required in order to comply with Justice Miller’s order.

[14] Finally, the applicant, which is a corporation, alleges that the delisting of the appeal denies its constitutional rights. However, Mr. Singh has not specified any constitutional right that has been infringed by the delisting, nor has he provided any particulars of how any right was infringed.

[15] Pursuant to Rule 2.1.01, the application for judicial review is dismissed.

Paul B, Schabas J.

Date: September 22, 2023