Court File and Parties

CITATION: Mashin v. Spiteri, 2025 ONSC 5733

DIVISIONAL COURT FILE NO. 777/25

DATE: 2025-10-08

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Nicholas Mashin, Moving Party AND: Joseph Spiteri, Respondent

BEFORE: Nakatsuru J.

COUNSEL: Self-Represented, Moving Party Fay McFarlane, for the Respondent

CONSIDERED IN WRITING at: Toronto, October 7, 2025

ENDORSEMENT

[1] Nicholas Mashin, the moving party, has been given notice that the Court is considering making an order staying or dismissing these proceedings under r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Mr. Mashin brought a motion for leave to appeal and stay the interlocutory decision of Charney J. dated August 25, 2025.[^1] Justice Charney set aside the endorsement of Vallee J. made on August 6, 2025. On that day, Mr. Mashin brought an ex parte motion for a Certificate of Pending Litigation on the home that is the subject of the litigation. Mr. Spiteri holds the mortgage on the property. Vallee J. issued an interlocutory injunction prohibiting Mr. Spiteri from entering into a binding agreement of purchase and sale of the property until Mr. Mashin served Mr. Spiteri with the materials and Vallee J. could properly consider the responding materials.

[2] Mr. Mashin provided submissions in response to the notice.

[3] I have carefully considered his submissions as well as the motion record.

[4] Under r. 2.1, this court may stay or dismiss a proceeding that appears to be on its face frivolous, vexatious, or an abuse of process: Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 18. The power to dismiss an appeal under r. 2.1. is to 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 v. The Law Society of Upper Canada, 2015 ONCA 733, 81 C.P.C. (7th) 258, at para. 8.

[5] I find that this is a clear case where that high threshold has been met for the following reasons.

[6] First, Charney J.’s decision is thorough and well-reasoned. Unimpeachable. In setting aside the order of Vallee J., Charney J. outlined the history of Mr. Mashin’s journey in the courts regarding this property. This included Sutherland J.’s decision of July 10, 2025, which granted Mr. Spiteri’s summary judgment motion in relation to the defaulted mortgage on the subject property. Mr. Mashin did not dispute the mortgage was in default. Summary judgment was granted. This significant decision was not brought to Vallee J.’s attention. Neither were two subsequent motions in the Superior Court of Justice attempting to stay Sutherland J.’s decision that were dismissed as improper or collateral attacks. It was only then that Mr. Mashin started his own action regarding this mortgage that underpinned his motion before Vallee J. Charney J. held at para. 19:

It is clear that Mr. Mashin’s new action is an abuse of process and another impermissible collateral attack on Sutherland J.’s decision on the summary judgment motion. This new action seeks to relitigate the exact issues decided by Sutherland J. in his decision on the summary judgment motion. Since this new action is an abuse of process, Mr. Mashin is not entitled to a Certificate of Pending Litigation or an interlocutory injunction.

Charney J. also ordered that Mr. Mashin seek the court’s approval before bringing any further motions.

[7] Second, none of the grounds raised by Mr. Mashin in his notice of motion for leave to appeal on their face has any merit. None have any hope of meeting the test for leave to appeal in this Court. Additionally, it is obvious that he will not meet the test for an interlocutory stay.

[8] Third, I find that this motion for leave to appeal and a stay is clearly yet another attempt to further Mr. Mashin’s collateral attacks on Sutherland J.’s decision and to delay Mr. Spiteri from rightfully benefiting from the success of his motion for summary judgment. It is an abuse of process.

[9] These proceedings are dismissed as frivolous, vexatious and an abuse of process under r. 2.1.02 of the Rules of Civil Procedure.

Nakatsuru J.

Date: October 8, 2025.

[^1]: Mr. Mashin also seeks leave to appeal Vallee J.’s decision of September 9, 2025, which vacated her previous order of August 6, 2025, for essentially the same reasons as Charney J. and to the same effect.