Court File and Parties
CITATION: McLeod v. Wigwamen Incorporated, 2025 ONSC 1415
DIVISIONAL COURT FILE NO.: 230/23, 270/23, 463/23
DATE: 20250306
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: JASON MCLEOD Appellant
AND:
WIGWAMEN INCORPORATED Respondent
BEFORE: Justice O’Brien
COUNSEL: J. McLeod, Self-Represented T. M. Duggan, Counsel for the Respondent
HEARD: In-writing
Rule 2.1 ENDORSEMENT
[1] The appellant, Mr. McLeod has brought a motion asking the court to reconsider its judgment dated February 8, 2024. For the reasons that follow, the motion is dismissed pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] Mr. McLeod’s appeal is from orders of the Landlord and Tenant Board terminating his tenancy in respect of two residential units in the same building. Mr. McLeod lived in one unit while his children and their mother, Elizabeth Bunnah, lived in the other. This court dismissed the appeal from those orders by decision dated February 8, 2024.
[3] Mr. McLeod filed a motion for leave to appeal to the Court of Appeal and brought a motion seeking a stay pending the hearing of the motion for leave to appeal. At the same time, Ms. Bunnah sought leave to intervene in the motion for leave to appeal. The Court of Appeal granted both motions in a decision dated April 8, 2024.
[4] Ms. Bunnah subsequently brought a motion asking this court to reconsider its February 8, 2024 decision dismissing the appeal and for an order adding her as a party to the appeal in this court. That motion was dismissed by endorsement dated January 6, 2025.
[5] When Mr. McLeod’s motion for reconsideration was filed with the court, the respondent filed a request that it be dismissed pursuant to r. 2.1. The court issued case management directions advising that it was considering dismissing the motion under r. 2.1. The court stated it was concerned the motion may be frivolous, vexatious or an abuse of the process of the court for the following reasons, which are an excerpt from the case management directions:
The appeal of this matter was determined by a decision of the court dated February 8, 2024, which was almost a year ago. The appeal was heard over two months before the court’s decision was released.
Mr. McLeod initiated a motion for leave to appeal that decision. The Court of Appeal released a decision staying this court’s decision pending the disposition of the motion for leave to appeal and granting Ms. Bunnah, the mother of Mr. McLeod’s children, leave to intervene in the motion for leave to appeal. That decision was released on April 5, 2024, over nine months ago.
Ms. Bunnah has already brought a motion seeking to have this court reconsider its February 8, 2024 decision on the basis that (1) she did not participate before the Board and before this court and (2) Mr. McLeod’s former counsel compromised the fairness of the hearing before this court. That motion was dismissed by decision dated January 6, 2025.
Mr. McLeod repeats some of the same allegations in his current notice of motion, namely that Ms. Bunnah should be added as a party to the appeal and that his former counsel compromised the fairness of the hearing.
There is a history of exhausting rights of review and seeking to redetermine settled issues before the Landlord and Tenant Board. The Board dismissed Mr. McLeod’s request to review one of its orders as an abuse of process because he and Ms. Bunnah had already sought to review what was essentially an identical order. The Board characterized it as the third time the tenant brought the same request for review.
The grounds for Mr. McLeod’s motion set out in his notice of motion do not raise the type of mistake or omission that would usually ground reconsidering a decision. His allegations instead reargue the merits of his appeal and of the hearing before the Board.
Mr. McLeod has already started a motion for leave to appeal and it remains open to him to raise his challenges to this court’s decision in that forum.
[6] In response to the r. 2.1 notice, Mr. McLeod filed submissions in which he made numerous arguments, including that: (a) the court failed to apply the correctness standard of review; (b) the court failed to consider breaches of procedural fairness including with respect to Ms. Bunnah; (c) the court failed to consider issue estoppel in light of the related findings of the Ontario Court of Justice, which acquitted Mr. McLeod of criminal charges; and (d) the court failed to consider s. 83(3) of the Residential Tenancies Act, 2006, R.S.O. 2006, c. 17.
[7] However, since the filing of Mr. McLeod’s submissions, by endorsement dated February 19, 2025 (McLeod v. Wigwamen Incorporated, COA-24-OM-0057), the Court of Appeal heard and dismissed the motion for leave to appeal from this court’s February 8, 2024 decision. This means this court is now functus officio.
[8] Mr. McLeod has correctly set out the law with respect to r. 2.1. Rule. 2.1 is not for close calls. It 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 support the resort to the attenuated process”: Mohammad v. McMaster University, 2023 ONCA 598, at para. 6; Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 9.
[9] This is such a case. Mr. McLeod submits this court is not functus officio because it did not issue a formal order. But by endorsement dated June 17, 2024, the Court of Appeal permitted Mr. McLeod to proceed with his motion for leave to appeal without an issued order from this court. The Court of Appeal has disposed of the motion for leave to appeal from the decision Mr. McLeod seeks to have reconsidered. In these circumstances, this court is functus officio and Mr. McLeod’s motion therefore is fundamentally flawed.
[10] Mr. McLeod’s motion for reconsideration therefore is dismissed.
O’Brien J
Released: March 6, 2025