



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. Reyes, 2017 ONCA 613

DATE: 20170720

DOCKET: M48054 (C63925)

B.W. Miller J.A. (In Chambers)

BETWEEN

Attorney General of Ontario

Plaintiff (Respondent/Responding Party)

and

Althea Reyes

Defendant (Appellant/Moving Party)

Althea Reyes, in person

Domenic Polla, for the respondent, Attorney General of
    Ontario

Kiran Arora, for the respondent, The Office of the
    Childrens Lawyer

Heard: July 19, 2017

ENDORSEMENT

[1]

The moving party, Ms. Reyes, is subject to a vexatious litigant order
    made by Perell J. and dated May 31, 2017. The terms of that order put
    constraints on her ability to commence or continue legal proceedings.
    Specifically, she cannot commence or continue any proceedings in Ontario
    without first obtaining leave from a judge of the Superior Court of Justice
    pursuant to s. 140(3) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43.

[2]

The process for obtaining leave is expressly provided in rule 38.13 of
    the
Rules of Civil Procedure
. That rule provides that an application
    under s. 140(3) is to be heard in writing without the attendance of the
    parties, unless the Court orders otherwise. That means that the application
    will be decided by a judge, in chambers, based on the written materials that
    the applicant, and any responding party, files with the Court. The rule is
    intended to eliminate the need for counsel and parties to appear on the motion.

[3]

Ms. Reyes is concerned that the effect of the order of Perell J. is to prevent
    her from continuing two proceedings that require her immediate attention.

[4]

She appealed the vexatious litigant order to this Court by right:
Kallaba
    v. Bylykbashi
(2006), 265 D.L.R. (4
th
) 320 (ON CA). That appeal
    has not yet been heard, and in the interim she wishes to obtain a stay of the
    order. It is at this point that she has run into difficulties. She filed motion
    materials with this Court seeking a stay of the order. The Court Registry
    advised her that although it would hold the materials in abeyance, she would be
    required to obtain leave from a judge of the Superior Court before the motion
    could be heard in this Court.

[5]

Ms. Reyes ought to have brought that application for leave to the
    Superior Court in writing under rule 38.13. She did not do so, and instead
    brought a motion in the ordinary course both for leave and for the stay itself.
    The motion was heard by Lederer J. on July 18, 2017. He denied the motion, and
    concluded that it was itself an abuse of process for Ms. Reyes to have sought a
    stay from both the Superior Court of Justice and the Court of Appeal. For her
    part, Ms. Reyes argued before me that she was simply following the directions
    that had been given to her by the registry of the Court of Appeal, and that
    Lederer J. erred in concluding that she was thereby committing an abuse of
    process.

[6]

Regardless, and as Lederer J. noted, the leave motion ought to have been
    brought in writing pursuant to rule 38.13(2). As Lederer J. stated, the failure
    to follow rule 38.13 is more than a failure to comply with a formality. It
    circumvents a process designed to protect other litigants, putting them to the
    time and expense of an oral hearing. Failure to observe the prescribed process is
    not an irregularity which ought to be cured by the application of rule 2.01.

[7]

Decisively, s. 140(4)I of the
Courts of Justice Act
provides
    that no appeal lies from a refusal to grant relief to the applicant from a
    refusal by a judge of the Superior Court of Justice to grant leave to institute
    or continue a proceeding in any Court. Section 140(4)I is determinative of that
    aspect of the motion before me. Leave to bring a motion in this Court for a
    stay of the order of Perell J. pending appeal has been refused by Lederer J. No
    appeal from that decision is available, and that is the end of the matter in
    this Court.

[8]

Ms. Reyes argues, however, that this Court can nevertheless hear her motion
    for a stay under s. 106 of the
Courts of Justice Act
. The reasoning is
    this. If leave is not required to appeal a vexatious litigant order  because
    of the risk of fundamental unfairness if the order was granted in error:
Kallaba
 than neither should leave be necessary to seek an interim stay of that order
    pending the appeal: the same risk of unfairness from an order made in error
    hovers over them both.

[9]

I do not agree with this argument.

[10]

It
    must be remembered that the vexatious litigant order is presumptively correct
    and it strikes a balance between safeguards for the vexatious litigant and protection
    for other litigants. And although there is some risk of unfairness to the
    applicant should it later be determined that the order was made in error, such
    that the applicant should never have been put to the additional burden of
    having to seek leave, the risk of unfairness is nevertheless temporarily
    contained to the period of time up until the decision of the appeal. The risk of
    unfairness is further limited by the opportunity to seek leave in the Superior
    Court to bring the motion for a stay.

[11]

Were
    it to be otherwise, and a motion for a stay was available as of right, a
    vexatious litigant would be able to command two additional oral hearings: one
    for the stay motion and another for an appeal if the stay motion were
    unsuccessful. This would put opposing parties to further expense, contrary to
    the purpose of s. 140.

[12]

Accordingly,
    the motion must be dismissed.

[13]

That
    does not mean that Ms. Reyes has no further option open to her. She is at liberty,
    as counsel for the Attorney General of Ontario stressed in oral argument, to
    bring a proper application in writing under rule 38.13 for leave to continue in
    both proceedings that she has ongoing. Such an application would be decided
    based on the written materials filed, and Ms. Reyes would need to persuade the
    judge hearing the application that the proceeding is not an abuse of process
    and that there are reasonable grounds for the proceeding. She would need to
    file an application record, including an affidavit, supporting the relief
    sought.

[14]

The
    Registry Office of the Court of Appeal is not to accept any notice of motion or
    notice of appeal from Ms. Reyes while the May 31, 2017 order of Perell J.
    remains in effect, unless she has first obtained leave from a judge of the
    Superior Court of Justice.

Disposition

[15]

The
    motion is dismissed. There is no order as to costs.

B.W. Miller J.A.


