SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-0008
DATE: 2013-03-06

RE: Kandarp Vyas v. Nishnawbe Aski Police Services & Its Authority

HEARD: March 1, 2013

BEFORE: Fitzpatrick J.

COUNSEL:
Kandarp Vyas, self-represented
Etienne Esquega, for the Defendants
Morris Holervich for Interested Parties Erickson & Partners

ENDORSEMENT

[1] The plaintiff, moving party Kandarp Vyas (“Mr. Vyas”), who is self-represented, brings the within motion. He is asking for the following relief which I repeat verbatim from his notice of motion;

1. “An order granting leave to appeal from the Judgement of the Superior Court of Justice Honourable Judge D.C. Shaw dated January 10, 2013.

2. An order granting leave to appeal to the Divisional court from the Judgement of the Superior Court of Justice Honourable Judge Hellen Pierce dated November 15, 2012.

3. An order declaring the partly heard motion is improper and not viable under the court administration as two judges are involved in one motion hearing and giving two separate directions.

4. An Order granting dismissal of the cost in the amount of $2000 payable by the plaintiff to the defendant and the amount of $750 payable to Erickson and Partners ordered by the Honourable Judge D.C. Shaw on January 10, 2013.

5. An Order granting the Plaintiff’s motion as allowed and admitted which is dismissed by the Honourable Judge D.C. Shaw on January 10, 2013.

6. An order declaring that the previous law firm, Erickson and Partners be not an interested party in this case.

7. An order granting the extension of time for filing to the plaintiff as he is self represented.

8. An order granting other reliefs as deemed just by this Honourable Court.”

[2] I will refer to the various prayers for relief using the numbering in Mr. Vyas’ notice of motion. In my view, there are a number of the prayers for relief in the notice of motion for which I have either no jurisdiction to grant at this point in the litigation, or are without any basis in fact or in law. Specifically, the relief set out in paragraphs 2, 3, 4, 5, and 6. On the other hand, I do have jurisdiction to deal with the claim in paragraphs 1, 7 and 8. I propose first to deal with the matters for which I have no jurisdiction to grant or have no basis in fact or law, and then discuss the only real substantive matter before the Court, the motion for leave to appeal the order of Justice Shaw dated January 10, 2013.

The relief in paragraph 2

[3] Mr. Vyas seeks leave to appeal the order of Justice Pierce dated November 15th, 2012. This order is the form of a handwritten endorsement which reads as follows:

Vyas v. NAPS Nov. 15/12 Mr. Esquega appears. The motion has not been properly served on all interested parties & is not confirmed. It is struck from the list. Costs of today are reserved to the disposing judge. Pierce J.

[4] No transcript of the proceedings on November 15th, 2012 was placed before the Court. The Court had to rely on an account of the events of that attendance given by Mr. Vyas during his submissions.

[5] It appears that Mr. Vyas’ motion, which was ultimately disposed of by the order of Justice Shaw on January 10, 2013, was scheduled to be heard on November 15th, 2012. When the motion was called, counsel for the responding party objected to the failure of Mr. Vyas to file certain materials, and to serve his former law firm Erickson & Partners with the motion materials, which among other things, sought a declaration that they were longer entitled to represent the defendant, and together with Mr. Esquega, were not to be allowed to conduct examinations for discovery in the main action. Justice Pierce directed Mr. Vyas to review the file outside the court room and gave him the court file. The court services officer escorted Mr. Vyas into the hall, as motions court was continuing.

[6] Mr. Vyas takes exception to having been so escorted. He suggests this infringes on the open court concept that is the subject of a number of Supreme Court of Canada and Ontario Court of Appeal decisions. He vaguely hinted that matters may have occurred with respect to his case while he was in the hall with the file and suggests it was disrespectful to make him go outside while other motions were continuing.

[7] With respect, Mr. Vyas complaint in this regard is without merit. This court is aware that it is not the practice of the court to permit self-represented persons to review court files without court staff present. What occurred that day was usual, respectful, regular, and was in no way, shape or form disrespectful to Mr. Vyas either as a person or as a litigant.

[8] The endorsement of Justice Pierce did nothing that adjudicated or prejudiced Mr. Vyas’s position in any way. From the endorsement, it is clear that it was an interlocutory decision of the most minimal consequence, simply striking a matter from the list so it would be heard another day. In any event, a motion for leave to appeal of an interlocutory decision must be brought within seven days of the decision or such further time as is allowed by the judge hearing the motion pursuant to Rule 62.02(2). Mr. Vyas is clearly out of time for a motion for leave of a decision made on November 15, 2012. The decision of Justice Pierce had no adverse impact on Mr. Vyas in my view. There is no reason to extend the time for filing a motion for leave of that particular endorsement. The relief requested in paragraph 2 of the notice of motion is accordingly denied.

The relief in paragraph 3

[9] The relief sought in this paragraph arises from Mr. Vyas’ apparent misunderstanding of the nature of the court process. He argues that because Justice Pierce first had before her on November 15, 2012, the motion that ultimately was the subject of the order of Justice Shaw in January 2013, that the motion was a “partly heard motion” and was not “viable and acceptable under the court administration as two judges are involved in one motion hearing and giving two separate decisions”. Again, with respect, Justice Pierce did not hear or adjudicate on the merits of Mr. Vyas’ motion on November 15, 2012, as is abundantly clear from her endorsement, set out above. Contrary to Mr. Vyas’ submissions, two judges have not been involved in deciding one motion and have not given two separate decisions. There is no merit, or basis in law or in fact for the relief requested in paragraph 3. The relief requested in paragraph 3 of the notice of motion is accordingly denied.

The relief in paragraph 4, 5 and 6

[10] The relief in these paragraphs would only be available if leave to appeal the order of Justice Shaw dated January 10, 2013 is granted. Leave to appeal the order of Justice Shaw will not be granted for reasons set out below. The relief requested in paragraphs 4, 5 and 6 of the notice of motion is accordingly denied.

The relief in paragraph 7

[11] Counsel for the responding party did not take any issue with the timeliness of the motion in so far as Mr. Vyas sought leave to appeal of the order of Justice Shaw dated January 10, 2013. I have previously denied any extension of time with respect to leave for the order of November 12, 2012. No further comment on the relief in paragraph 7 is required

The relief in paragraph 1

[12] This court has jurisdiction to deal with a motion for leave to appeal the order of Justice Shaw dated January 10, 2013. The order of Justice Shaw was an interlocutory order dealing with Mr. Vyas’ attempt to:

1. have Mr. Esquega removed as solicitors for the defendant;

2. prevent Mr. Esquega’s former firm, Erickson & Partners from acting for the defendant;

3. prevent Mr. Esquega and Erickson & Partners from conducting discoveries in the matter;

4. declare an affidavit filed by Mr. Esquega on a prior motion as “null and void”;

5. to set aside a previous order of March 24, 2011;

6. striking the defendant’s statement of defence; and

7. obtain an order for $15,000.00 in costs.

[13] The test for granting leave for appeal of this order is governed by Rule 62.02(4) which is as follows:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[14] The text of this Rule was read to Mr. Vyas’ at the commencement of the motion. He indicated he was aware that this Rule set out the test for granting leave in this matter.

[15] In my view, Mr. Vyas’ motion for leave fails to satisfy the grounds set out in either Rule 62.02(4)(a) and (b).

[16] Mr. Vyas provided to the court 31 cases, the citations of which are as follows:

• Alberta v Stedelbauer Chevrolet Oldsmobile Ltd., 1968 55 (SCC), [1969] S.C.R. 137
• Attis v. Ontario, 2011 ONCA 675
• Baker v. Canada (Minister of Citizenship and Immigration, 1999 699 (SCC), [1999] 2 S.C.R. 817
• Carey v. Ontario, 1986 7 (SCC), [1986] 2 S.C.R. 637
• Church v. Fenton (1880), 1880 7 (SCC), 5 S.C.R. 239
• Hesseltine v. Nelles (1912), 1912 11 (SCC), 47 S.C.R. 230
• International Business Machines Corp. v. Printech Ribbons Inc., 1993 3013 (FC), [1994] 1 F.C. 692
• Kane v. Board of Governors of U.B.C., 1980 10 (SCC), [1980] 1 S.C.R. 1105
• The King v. Orford, 1943 21 (SCC), [1943] S.C.R. 103
• The King v. The Ship Emma K and Barrett, 1936 22 (SCC), [1936] S.C.R. 256
• Law Society of Upper Canada v. Kimberly Lynne Townley-Smith, 2012 ONLSHP 52, 2012 ONLSHP 0052
• MacDonald Estate v Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235
• Manulife Bank of Canada v. Conlin, 1996 182 (SCC), [1996] 3 S.C.R. 415
• Palkowski v. Ivancic, 2009 ONCA 705
• Paradis v. Cardin, [1913] S.C.R. 625
• R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443
• R. v. Schofield, 2012 ONCA 120
• R. v. Wijesinha, 1995 67 (SCC), [1995] 3 S.C.R. 422
• Re O’Brien (1889), 1889 1 (SCC), 16 S.C.R. 197
• Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), 1998 833 (SCC), [1998] 1 S.C.R. 3
• Restaurant Le Clémenceau Inc. v. Drouin, 1987 54 (SCC), [1987] 1 S.C.R. 706
• Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522
• Sketchley v Canada (Attorney General), 2005 FCA 404
• Stanley v. Jardine Estate, 1951 30 (SCC), [1952] 1 S.C.R. 260
• Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177
• Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332
• Vandervort v. Canada, [1997] T.C.J. No. 1136 (Tax Court)
• Vyas v. Nishnawbe Aski Police Service, 2013 ONSC 269
• Vyas v. Nishnawbe Aski Police Service, 2011 ONSC 1132
• Walker v. Ritchie, 2006 SCC 45, [2006] 2 S.C.R. 428
• Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594

[17] None of these cases dealt with the test on Rule 62.02(4). Nor did any of these cases represent a conflicting decision by another judge, or court in Ontario, or elsewhere, on the matter involved in the proposed appeal. As well, many of these decisions have received negative treatment from other courts.

[18] While many of the cases Mr. Vyas referred to in argument did stand for the propositions that were set out in the head notes of the cases, and were read to the court by Mr. Vyas, (for example the principles of open court, the principle that lawyers cannot act as both advocate and witness, and the maxim “audi alteram partem”), Mr. Vyas did not convince the court that the facts in this case were similar to those that were dealt with in the various cases he referred to. In other words, all cases argued by Mr. Vyas were distinguishable from the present matter on the basis that they did not deal with circumstances of a similar nature to those before the court on this motion. With respect, none of the cases relied upon by Mr. Vyas were in any way shape or form relevant, or had any bearing on the issues before this Court in determining whether or not to grant leave to appeal.

[19] In this matter, the Court was considering the very narrow test for obtaining leave to appeal an interlocutory order. In Bell Expressvu Ltd. Partnership v. Morgan, 2008 63136 (ON SCDC), [2008] O.J. No. 4758 (Div. Crt.), Justice Bellamy stated that the test for granting leave to appeal from an interlocutory order is an onerous one. Leave will not be granted where the decision is well-reasoned and the issues raised are not of general importance.

[20] In argument, Mr. Vyas focused on an affidavit filed by Mr. Esquega in a prior motion in an attempt to convince the court that Mr. Esquega was somehow in a conflict or that it was improper for him, in any event, to file an affidavit in the prior motion. Justice Shaw’s decision properly relied on the decision of Master McLeod in Mapletoft v. Service, [2008] O.J. No. 693 (S.C.J.), which stands for the proposition that is not improper for counsel who appear as advocates in a matter, to have filed an affidavit in the matter, if the substance of the affidavit is routine, uncontroverted or testifies to procedural information. None of the cases provided to the court by Mr. Vyas dealt with the matters as did Master McLeod’s decision.

[21] Mr. Vyas’ submits that leave is required because he was not present for a portion of the adjudication of the motion, and consequently this makes an appeal of this order a matter of general importance. It appears on the day the matter was heard, Mr. Vyas was not in court for a very brief time when the matter was first called. The transcript of the time Mr. Vyas was not present was put before the Court. The transcript consisted of 2 pages. Most importantly near the end of that portion of the transcript, at line 16, Justice Shaw and counsel for the NAPS have the following interaction:

THE COURT: No, it’s fine. I can’t get into it. The plaintiff, the applicant is not here so I do not want to get into any merits. I just want to know where it’s going, but it’s going ahead?

MR. ESQUEGA: Yes.

THE COURT: All right. This matter I am about to hear is scheduled for one hour is it?

COURT REGISTRAR: Yes.

THE COURT: So you’re excused for an hour.

MR. ESQUEGA: Great, thank you Your Honour.

[22] The matter then came back before Justice Shaw for a hearing. The transcript of the motion proceeding where Mr. Vyas’ was present and did argue his motion was before this court. The transcript of this portion of the proceedings before Justice Shaw is 70 pages long.

[23] In my view, Mr. Vyas’s submission that he was excluded from the process, or that the entire process is tainted because he was briefly absent, is completely without merit. The transcripts before this court make it very clear what happened that day. Justice Shaw indicated he wasn’t dealing with the merits until Mr. Vyas was there. Justice Shaw acted in a completely appropriate manner. Mr. Vyas’ complaint arises again from his apparent lack of comprehension of the nature of the court process. His submissions in this regard were without merit.

[24] There is no reason to doubt the correctness of the order in question. It is well written and well-reasoned. It does not involve matters of such importance that leave should be granted

[25] The relief in paragraph 1 is therefore denied.

[26] The Court could not discern any other relief requested by Mr. Vyas. His motion is therefore in total dismissed.

[27] Before the parties began their main submissions, I asked them what would be their expectation for a cost award in the event they were successful on this motion. I have noted those amounts and find that Mr. Vyas’ estimate of an award in the range of $2,000.00 inclusive of disbursements and HST would be appropriate and reasonable. In the circumstances, it is my view that this motion for leave was without merit and I am prepared to award costs in the amount of $2,00.00 payable forthwith by Mr. Vyas to the defendant NAPS. While I appreciate that Erickson and Partners appeared on this motion, I believe that attendance was not necessary and no costs are to be paid to them for this attendance.

[28] Order to go dismissing motion for leave with costs payable by Mr. Vyas forthwith to the defendant NAPS.

The Hon. Mr. Justice F.B. Fitzpatrick
DATE: March 6, 2013

COURT FILE NO.: CV-11-0008
DATE: 2013-03-06
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kandarp Vyas v. Nishnawbe Aski Police Services & Its Authority

BEFORE:

COUNSEL:
Kandarp Vyas, self-represented
Etienne Esquega, for the Defedants
Morris Holervich for Interested Parties Erickson & Partners

ENDORSEMENT

Fitzpatrick J.

DATE: March 6, 2013

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