SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Bucknor v. Sloan
COUNSEL: Ms Bucknor, self-represented Appellant
BEFORE: D.L. Corbett J.
IN CHAMBERS, IN WRITING
Background
1Ms Bucknor appeals the decision of the Small Claims Court respecting her claims related to property she held in a rental storage locker. Ms Bucknor is self-represented.
2Ms Bucknor prevailed in Small Claims Court (judgment was granted against Mr Sloan for $5,000, plus costs, plus an order that Mr Sloan return certain items of property to Ms Bucknor).
The Rule 2.1 Notice
3On September 2, 2020, the Registrar issued a notice pursuant to R.2.1.01 to Ms Bucknor with the following email, all at my direction:
Justice Corbett, the administrative judge of the Divisional Court, has directed me to respond to your recent email and notice of appeal as follows:
The notice of appeal fails to state a ground of appeal to this court. It states that there is fresh evidence, which could be a basis for a motion in the Small Claims Court, but is not, itself, a basis for an appeal in this court. Further, the alleged fresh evidence does not appear to establish a basis for this court to intervene.
The supporting document is an unduly lengthy narrative that fails to concisely state any basis for appeal to this court.
Please find attached a notice issued by the Registrar pursuant to Rule 2.1 that the court is considering dismissing your appeal as frivolous, vexatious and an abuse of process for failing to state a proper ground of appeal, failing to concisely state the basis for an appeal based on fresh evidence, and in being so unduly long and unfocused to be an improper pleading.
Please provide your submissions as indicated in the attached notice within the prescribed timelines.
The Appellant's Response and Proposed Fresh Evidence
4Ms Bucknor responded to the notice by providing an amended notice of appeal and a copy of a police report she obtained pursuant to a Freedom of Information request. In the amended Notice of Appeal, Ms Bucknor lists her grounds of appeal as follows:
New evidence has appeared as the Defendant has confessed to the Brantford Police as to the where abouts of the contentment of the storage locker space (sic).
5Attached to her submissions is a copy of the police response to her Freedom of Information Request. Attached to that response is a redacted copy of a police occurrence report that apparently concerns an incident between Ms Bucknor and Mr Sloan respecting the former’s attempt to enforce a court order for recovery of her property. Ms Bucknor states that her new evidence is that Mr Sloan “confessed” to the police officer that property was elsewhere in his control. That is not what the police report says. Rather, it says:
Officers then informed BUCKNOR that [redacted] was not in possession of the property and to continue with the civil matter via small claims court.
In her submission, Ms Bucknor says that police told her that Mr Sloan did have the property elsewhere, but that police would not include that information in the report.
6Ms Bucknor subsequently delivered a further amendment to her notice of appeal in which she appears to have added respondents who were not parties to the Small Claims Court trial. The allegations against these defendants do not appear to have anything to do wioth the Small Claims Court trial against Mr Sloan. Finally, in her most recent email, Ms Bucknor’s one ground of appeal remains unchanged: fresh evidence from the Brantford Police.
Analysis
7I have reviewed all of the materials Ms Bucknor has sent, including the 22 page, single-spaced, entirely underlined document, most of which appears to have nothing to do with Mr Sloan. From my review of everything Ms Bucknor has provided, it may be that she has a basis to go back to the Small Claims Court respecting the property Mr Sloan was ordered to return to her, and she may have a basis to go back to the Small Claims Court about her alleged “fresh evidence”, but there is no basis for an appeal to the Divisional Court.
8Ms Bucknor’s appeal is dismissed as frivolous, vexatious and an abuse of process:
(a) Fresh evidence is not, by itself, a ground of appeal from the Small Claims Court to this court. Fact-finding is the role of the trial court. In very limited circumstances, a trial court may permit a party to re-open the case to admit fresh evidence after judgment. That is the proper place for Ms Bucknor to raise this issue, if she wishes to do so.
(b) No other ground of appeal has been provided for this appeal and therefore there is no basis stated on which an appeal is brought properly to this court.
(c) Ms Bucknor’s description of the so-called “fresh evidence” does not satisfy the fresh evidence test in any event: the police report does not contain the information on which Ms Bucknor relies, and indeed appears to state the opposite. Ms Bucknor’s statement as to what the police officer told her is not admissible against Mr Sloan because it is hearsay. I note these points to underscore the main point: it is for the trial court to consider an application to re-open the case to admit fresh evidence. This court will consider admitting fresh evidence on appeal, but not if that is the sole basis for the appeal. Fact-finding is the role of the trial court, not the appellate court.
(d) Failure to state an arguable ground of appeal renders the appeal doomed to failure, and therefore frivolous, vexatious and an abuse of process.
9Ms Bucknor stated in her original covering email that she had wanted to take this issue to Small Claims Court but did not do that because Small Claims Court proceedings were in abeyance because of COVID-19. That is not a good reason to bring a matter properly before the Small Claims Court to the Divisional Court.
Disposition
10For these reasons this appeal is dismissed without costs pursuant to R.2.1.01, without prejudice to any further steps Ms Bucknor may try to take in the Small Claims Court.
D.L. Corbett J.
Date: September 14, 2020