Court File and Parties

CITATION: Fabrikant v. Brazeau et al., 2024 ONSC 2364

DIVISIONAL COURT FILE NO.: 095/24

DATE: 2024-04-23

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN: VALERY FABRIKANT, Appellant

AND: CHRISTOPHER BRAZEAU AND DAVID KIFT AND ATTORNEY GENERAL OF CANADA, Respondents

BEFORE: Leiper J.

COUNSEL: Valery Fabrikant, Appellant James Sayce, Gerry Antman, Karine Bedard, Michael Rosenberg, Adam Kanji and Lauren Weaver, for Christopher Brazeau and David Kift Omar Ha-Redeye, for the Attorney General of Canada

HEARD: In writing, April 23, 2024

Endorsement

[1] The appellant filed an appeal to the Divisional Court from a decision rendered by Perell, J. in the class proceedings, Brazeau v. Canada 2023 ONSC 6077 denying him standing to make submissions regarding alleged unfairness in the Individual Issues Protocol (“IIP”) for the distribution of benefits to class members.

[2] On March 6, 2024, I directed that notice be given to the parties under Rule 2.1 of the Rules of Civil Procedure R.R.O. 1990, Reg 194 that the Court would consider whether the appeal should be dismissed as frivolous, vexatious or as an abuse of process of the court. The appellant submits that given the respondent Attorney General of Canada did not challenge the right to appeal or state that he needs leave to appeal, that this should be dispositive of any Rule 2.1 analysis. The appellant further submits that as a class member he has more rights than the representative plaintiffs.

[3] In the alternative, the appellant submits that if he has no standing to make submissions about the IIP under the Class Proceedings Act, 1992, SO 1992, c. 6 then his mistake can be “easily corrected” as he is entitled to seek leave to appeal the decision of Perell, J. pursuant to s. 19 of the Courts of Justice Act.

[4] As the Court of Appeal has noted in Visic v Elia Associates Professional Corporation, 2020 ONCA 690, at para 8:

Rule 2.1 must be “interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may be used only in “the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Scaduto, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.

[5] In keeping with the gatekeeping role of the court, if the only basis on which the appellant was seeking to appeal was via s. 30(6) of the CPA, I would have dismissed this appeal pursuant to Rule 2.1 on the basis that the appeal is frivolous and cannot succeed. I say this for the following reasons.

[6] The appellant’s Notice of Appeal relies on a right of appeal pursuant to s. 30(6) of the Class Proceedings Act which reads:

Appeals: individual awards

(6) A class member may appeal to the Divisional Court from an order under section 24 or 25 determining an individual claim made by the member and awarding the member an amount that is equal to or greater than the monetary jurisdiction of the Small Claims Court. 1992, c. 6, s. 30 (6); 2020, c. 11, Sched. 4, s. 27 (3)

[7] The appellant did not opt-out of the class proceedings. He is not a representative plaintiff. His application before Perell, J. did not involve a determination of his individual claim, rather it raised challenges to the fairness of the IIP. Thus, s. 30(6) of the Class Proceedings Act 1992 does not provide him with a basis to appeal as pleaded in his Notice of Appeal. On that basis, I would have found his appeal to be without merit.

[8] However, the appellant who is self-represented, seeks to amend his pleadings and seek leave to appeal pursuant to s. 19 of the CJA. It is unclear whether the substance of such a motion would continue to relate to his rights (or lack thereof) under the CPA.

[9] Given the alternative position taken by the appellant, I will not exercise my discretion to apply Rule 2.1 to the leave to appeal motion pursuant to s. 19 of the CJA. Instead, I make the following orders:

i. The appellant shall serve, file and upload his amended material seeking leave to appeal the decision of Perell, J., no later than May 27, 2024. The responding parties need not file responding material but they are to upload a copy of this endorsement to CaseLines for the leave to appeal panel.

ii. The motion for leave shall be placed before a panel of the Divisional Court, to be considered in writing before the first available panel no sooner than June 6, 2024.

Leiper, J.

Released: April 23, 2024