



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario College of Teachers v.
    Bouragba, 2021 ONCA 508

DATE:  20210714

DOCKET: M52510

(C69405)

Brown, Roberts and Zarnett JJ.A.

BETWEEN

The Ontario College of Teachers

Plaintiff

(Respondent/Responding
    Party)

and

Ahmed Bouragba

Defendant

(Appellant/Moving
    Party)

Ahmed Bouragba, acting in person

Charlotte-Anne Malischewski, for the
    responding party

Heard: July 2, 2021 by video conference

REASONS FOR DECISION

[1]

By order dated June 14, 2021, Zarnett J.A.
    ordered that the motion by the appellant, Ahmed Bouragba, be heard by a panel.

[2]

Mr. Bouragba has filed in this court an appeal
    from the order of Master Brott dated March 22, 2021 (the Order). He has also
    filed an appeal from the Order to the Divisional Court. Mr. Bouragba now moves
    to transfer his Divisional Court appeal to this court so that they can be heard
    together.

[3]

To transfer his appeal from the Divisional Court
    to this court, Mr. Bouragba must demonstrate that his appeal already filed with
    this court lies to this court, as required by s. 6(2) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 (
CJA
).

[4]

The responding party, The Ontario College of
    Teachers (College), started a defamation action against Mr. Bouragba. He
    moved under
CJA
s. 137.1 to dismiss the action. His motion was
    dismissed. This court allowed his appeal and sent his s. 137.1 motion back to
    the Superior Court to be heard by a different judge:
Ontario College of
    Teachers v. Bouragba
, 2019 ONCA 1028, 51 C.P.C. (8
th
) 280,
    leave to appeal to S.C.C. refused, 39229 (October 29, 2020).

[5]

The College then moved under r. 23.01 of the
Rules
    of Civil Procedure
seeking leave to discontinue its action, with prejudice
    to the College. Mr. Bouragba opposed the motion. Master Brott granted the
    motion. The first three paragraphs of her Order read as follows:

1. THIS COURT ORDERS that this action is
    discontinued.

2. THIS COURT ORDERS that the discontinuance
    of this action shall be deemed a bar to any subsequent action or actions
    brought by the Plaintiff arising from the same causes of action asserted within
    this action.

3. THIS COURT ORDERS that the discontinuance
    of this action shall be deemed to have ended the Defendants motion brought
    under section 137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.
    43.

[6]

Mr. Bouragba submits that an appeal of the Order
    lies to this court pursuant to
CJA
s. 6(1)(d), which states that an
    appeal lies to the Court of Appeal from  (d) an order made under section
    137.1.

[7]

We disagree. An order made under section 137.1
    within the meaning of
CJA
s. 6(1)(d) is an order made by a judge of
    the Superior Court of Justice. This is clear from the language of s. 137.1,
    which authorizes a judge to make orders that: (i) dismiss a proceeding (s.
    137.1(3)); (ii) refuse to dismiss a proceeding (s. 137.1(4)); (iii) amend a
    pleading (s. 137.1(6)); (iv) award costs (s. 137.1(7) and (8); or award damages
    to the moving party (s. 137.1(9)).

[8]

A case management master, such as Master Brott,
    is not a judge. Consequently, her Order was not an order made by a judge,
    within the meaning of
CJA
s. 137.1, and therefore not an order made
    under section 137.1 within the meaning of
CJA
s. 6(1)(d). It follows
    that no appeal from the Order lies to this court.  We would observe that the
    issue of this courts jurisdiction to hear an appeal under
CJA
s.
    6(1)(d) was not raised in the case of
Bruyea v. Canada (Veteran Affairs)
,
    2019 ONCA 599, 439 D.L.R. (4
th
) 193. However, in
Bruyea
, at
    para. 14, the court did point out the significance of s. 137.1s use of the
    word judge instead of court, in respect of the authority of a master.

[9]

Accordingly, Mr. Bouragba has not demonstrated
    that an appeal of the Order lies to this court for the purposes of the
    transfer provisions in
CJA
s. 6(2).

[10]

Mr. Bouragbas transfer
    motion is dismissed. The proper court to consider his appeal from the Order is
    the Divisional Court:
CJA
s.
19(1)(c)
.

[11]

There shall be no order
    as to the costs of this motion.

David Brown J.A.

L.B. Roberts J.A.

B. Zarnett J.A.


