MOTION TO QUASH ENDORSEMENT

[1] This 9 am appointment was set to hear the Respondent’s Motion to Quash Mr. Babadi’s appeal. We had a 15 minute delay because of technical issues, commencing at 9:15. The Appellant/Respondent to the Motion, Mr. Babadi was present, in that he had a tile with his name on the Zoom Screen. He did not join our zoom until 9:29 as he was in another virtual hearing. He also uploaded a Supplementary Responding Factum as he began his argument.

The Motion

[2] The Respondents move to quash this appeal from Chozik, J.’s 7 January 2025 order striking the Appellant’s Statement of Claim on the basis that the Appeal from Chozik, J.’s order is outside the jurisdiction of the Divisional Court and that it is late.

Background

[3] The Appellant sued the Respondents for various torts and Charter violations, claiming $6 million in damages. The allegations he makes against the Guelph Police Service and certain of its members are serious.

Relevant Facts

[4] The Respondents moved to strike the Statement of Claim under Rule 21.01(b) for revealing no reasonable cause of action and under 2.1 as being vexation. Chozik, J. heard the Motion on 7 January. She allowed the motion and struck the Statement of Claim for both reasons. It is unclear whether Chozik, J. pronounced her decision on 7 January. Her Endorsement is dated 7 January 2025, as is the Order, although it was not issued until 21 January 2025. The Appellant’s Notice of Appeal is dated 18 February 2025 and was served 20 February, outside the 30 day appeal period based on date of pronouncement and of the Order.

Positions of the Parties

[5] The Respondent argues that this Appeal should be quashed for two reasons: a) the Statement of Claim claimed $6 million, the appeal from Chozik, J.’s Order striking the Statement of Claim is to the Court of Appeal, not this Court, and b) the Notice of Appeal was served late, and the Appellant obtained no order extending the time to appeal.

[6] The Appellant opposes the motion arguing that the Appeal is within the jurisdiction of the Divisional Court and that it is not late.

[7] With respect to this Court’s jurisdiction, notwithstanding the quantum of the Statement of Claim, the Appellant argues that this appeal is within this Court’s jurisdiction. Sections 19(1)(2) and 19(1.2)(c) of the Courts of Justice Act apply and make the Divisional Court the proper appellate court. This appeal arises not from any judgment for a monetary award, but from Chozik, J.’s Order striking his Statement of Claim which denied him natural justice by preventing this meritorious action from proceeding to trial on its merits, on a full evidentiary record.

[8] With respect to the time for the appeal, the Appellant argues that the 30 days does not begin to run until the order is issued and entered.

Result

[9] The Respondent’s motion is allowed with costs payable by the Appellant to the Respondent fixed at $4,000.00. This Court has no jurisdiction. The Appeal should be before the Court of Appeal. Had this Court jurisdiction, however, I would have extended the time to serve the Notice of Appeal to 20 February, the date of actual service.

Does the Divisional Court’s Jurisdiction?

[10] No. This appeal ought to have been brought to the Court of Appeal.

[11] Under s. 19(1) and (1.2)(c) of the Courts of Justice Act, the appellate jurisdiction of this Court is triggered not by the nature of the appeal being pursued (as the Appellant argues), but by the nature and of underlying claim and the amount claimed in it. Under s. 19(1)(a), where the appeal is from a Superior Cour Judge as described in subsections (1.1) or (1.2), the appeal is to the Divisional Court. Subsection (1.2) (c) provides that where the Notice of Appeal is filed after 7 October 2007, the appeal to the Divisional Court is from only from orders dismissing claims for amounts not exceeding $50,000.00 in total. In other words, it is the amount claimed in the action that determines the appeal route where the appeal is from a final order such as this. Even where the damages are indeterminate, so long as the Statement of Claim claims damages over $50,000.00, the Divisional Court does not have jurisdiction (see: Pullano v. Hinder, 2021 ONSC 4714 at Paragraph 13).

[12] Since the Appellant did not ask in his responding materials for an order transferring the matter to the Court of Appeal, I make no such order.

[13] My finding that this Court has no Jurisdiction to entertain the appeal decides this matter. If I am incorrect, I now turn to the question of the timeliness of the appeal.

Was this Appeal Commenced within 30 Days?

[14] No.

[15] It is unclear from the record as to when the Appellant received Chozik, J.’s decision. From the two emails the Appellant sent to the Court on 8 January 2025, he had received Chozik, J.’s decision by 10:36 am, 8 January 2025, when he sent his first email.

[16] The time within which an Appellant must bring his or her appeal begins to run when the decision appealed from is pronounced orally or the signed written reasons are delivered. Where the judgment or order appealed from states that the time to appeal runs from another date, clarification is required, or something of substance is missed, the time for appeal begins to run from when the judgment is issued and entered. That costs are not decided until later is irrelevant to the question of when the appeal period begins to run (see: Fontaine v. Canada (Attorney General), 2012 ONCA 206 at para. s 57-60; Gefen v. Gaertner, 2021 ONCA 631, at para. 5 – 8; David v. Loblaw Companies Limited, 2022 ONCA 833, footnote 1).

[17] In this case, Chozik, J.’s reasons were clear and were signed. The clock for the time for the Appellant to bring his appeal began to run on 8 January at the latest.

[18] The Appellant cites Grasshopper v Palmer, 2023 ONCA 631 for support for his argument that the appeal period does not run until the order appealed from is issued and entered. The case is on assistance. It stands for the proposition that where a Judge decides liability on Summary Judgment, then releases a decision on damages, the appeal period from the liability portion of the proceedings runs from the decision on damages (at para. 12).

Should I Abridge the Time to Bring this Appeal?

[19] Assuming this Court had jurisdiction, yes.

[20] In para. 25 of his Factum, the Appellant asks to “Permit the appeal on its merits before the Divisional Court.”, which I interpret to be a request to extend time under Rule 3.02(3). Since R. 3.02(3) requires that motions to extend time to appeal must be made before the Court to which the appeal must be taken, I confine my comments to whether I would have granted the extension, had I found that the Divisional Court had jurisdiction to hear the Appeal.

[21] Had the Divisional Court the jurisdiction to hear this Appeal, I would have granted the extension of time. There is no evidence of prejudice to the Respondents from the two-week delay by the Applicant (see: Correct Building Corp. v. Lehman, 2022 ONCA 723).

Costs

[22] I received submissions on costs in the zoom hearing. The Appellant says he should have $4,000.00 if he wins and the Respondents say they should have $4,800 if they win.

[23] The Appellant shall pay costs of the Appeal and the Motion to Quash to the Respondent fixed at $4,000.00, all inclusive.

Trimble, J.

Released: April 28, 2025

CITATION: Babadi v. Guelph Police Services et al, 2025 ONSC 2596

COURT FILE NO.: DC-25-14-0000

DATE: 2025 04 28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BABADI, MILAD

Appellant

and –

GUELPH POLICE SERVICES

Respondent

MOTION TO QUASH ENDORSEMENT

Trimble J.

Released: April 28, 2025

Babadi v. Guelph Police Services et al., 2025 ONSC 2596

Case Summary

MOTION TO QUASH ENDORSEMENT

The Motion

Background

Relevant Facts

Positions of the Parties

Result

Does the Divisional Court’s Jurisdiction?

Was this Appeal Commenced within 30 Days?

Should I Abridge the Time to Bring this Appeal?

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2