CITATION: Halik v. 580 Christie Street Co-Ownership Inc., 2024 ONSC 5722

DIVISIONAL COURT FILE NO.: 379/24

DATE: 2024-10-15

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Miha Halik, Appellant

AND:

580 Christie Street Co-Ownership Inc., Respondent

BEFORE: Justice O’Brien

COUNSEL: M. Halik, Self-Represented J. Fine, for the Respondent

HEARD: In-writing

ENDORSEMENT

Overview

[1] This endorsement provides my reasons for dismissing this appeal pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Mr. Halik is appealing an order of the application judge, Papageorgiou J., dated June 7, 2024. The application judge found Mr. Halik breached a co-ownership agreement with the respondent related to a unit in a suite at 580 Christie Street. The application judge ordered that the respondent was entitled to vacant possession of the ownership unit and to dispose of the appellant’s ownership interest.

[2] Mr. Halik brought a motion for a stay pending appeal in this court. By decision dated August 15, 2024, Shore J. dismissed the motion. She found there was no serious issue to be tried on appeal. She also concluded it was not in the interests of justice for a stay to be granted since Mr. Halik had ignored several court orders and continued to have significant unpaid costs ordered against him.

[3] During case management in this court, the respondent requested that the appeal be dismissed pursuant to r. 2.1.01. The court agreed there was a concern the appeal was frivolous or vexatious or otherwise an abuse of the process of the court. In case management directions, it explained this was because:

• In her decision dismissing the stay motion, Shore J. concluded the basis for the appeal is a collateral attack on the orders made in the previous application between the parties;

• Shore J. found the appellant has not raised any facts in dispute that were related to the underlying application rather than the previous application; and

• For these reasons, Shore J. found there were no serious issues to be tried on the appeal.

[4] The court asked the Registrar to issue a r. 2.1.01 notice and encouraged Mr. Halik to address the court’s concerns in his response. Mr. Halik did not provide any submissions in response to the notice.

Dismissal under r. 2.1.01

[5] Rule 2.1.01 allows the court to stay or dismiss a proceeding where it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. The application of r. 2.1 is “limited to 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 resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, [2015] O.J. No. 5692, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598, [2023] O.J. No. 3997, at para. 6.

[6] The rule “must be interpreted 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, at para. 8; Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8.

[7] In this case, Mr. Halik`s appeal is patently without merit for the reasons set out in the decision of Shore J. It is largely an attempt to relitigate matters already determined by the court in a separate application between the two parties.

[8] An earlier application was brought by the respondent to gain access to Mr. Halik’s suite to rectify a leak. On entry to the unit, it became clear there was also a pest infestation. That proceeding resulted in several orders including, eventually, costs orders against Mr. Halik. The litigation concluded with Mr. Halik owing over $110,000 in combined damages and costs to the respondent. The respondent then commenced the second application, seeking an order for a writ of possession and the right to dispose of the property to collect the money owing.

[9] The test for whether there is a serious issue to be determined on appeal is not a high bar. Litigants typically meet this aspect of the stay test where the appeal is not frivolous or vexatious. In this case, the appeal did not meet the test. The appeal is frivolous, vexatious and an abuse of process because, as found by Shore J., it was a collateral attack on the orders made in the initial application. Most of the grounds of appeal relate to the orders in the first application and not to the order of the application judge here.

[10] To the extent the notice of appeal raises additional issues, these are patently unmeritorious. For example, although Mr. Halik raises his medical issues, the application judge recognized these and expressed empathy for him. But they did not form a legal basis to change the outcome of the application, nor do they form a viable ground of appeal. To the extent the appeal alleges the application should not have been dealt with as an application because there were contested facts, Mr. Halik has not pointed to any contested facts other than those already dealt with in the previous application.

[11] Shore J. also noted Mr. Halik had ignored several court orders and continued to have significant costs orders against him. These facts might not on their own be enough to justify a dismissal pursuant to r. 2.1.01, but they form part of the constellation of factors to be considered.

[12] Because the stay was not granted and he did not respond to the r. 2.1 notice, it is unclear whether Mr. Halik intends to pursue the appeal. Counsel for the respondent recently e-mailed the court to advise Mr. Halik had not filed his appeal materials by the deadline imposed by the court. In any event, the appeal shall not proceed. The appeal is frivolous, vexatious and an abuse of process. It is dismissed under r. 2.1.01.

O’Brien J

Date: October 15, 2024