



COURT OF APPEAL FOR ONTARIO

CITATION: Michail v. Ontario English Catholic Teachers'
    Association, 2018 ONCA 857

DATE: 20181025

DOCKET: M49592 (C65674)

Feldman, Pardu and Roberts, JJ.A.

BETWEEN

Myriam Michail

Appellant/Responding Party

and

Ontario English Catholic Teachers Association,
    Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone, and
    Sheila Brescia,
London District Catholic School Board
and Ontario Labour
    Relations Board

Respondents/
Moving Party

Elizabeth Traynor and Liam Ledgerwood, for the moving
    party

Audra Ranalli, for Attorney General of Ontario

Aaron Hart, for Ontario Labour Relations Board

Christopher Perri, for Ontario English Catholic Teachers' Association, Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone and Sheila Brescia

Myriam Michail, in person

David Campbell
,
duty
    counsel

Heard: October 18, 2018

On appeal from the order of Justice Lynne Leitch dated
    March 21, 2017 of the Superior Court of Justice and from the order of A. Duncan
    Grace of the Superior Court of Justice, dated June 26, 2017 and costs order
    dated August 9, 2017.

REASONS FOR
    DECISION

[1]

The respondents move for an order quashing the appeal on the basis that
    the appellant seeks to appeal three interlocutory orders made by the Superior
    Court, where the right of appeal is under s. 19(1)(b) of the
Courts of
    Justice Act
to the Divisional Court with leave.

[2]

The procedural history was helpfully set out in detail by Paciocco J.A.
    in his endorsement dated September 4, 2018. In brief, the appellant wished to
    have two decisions judicially reviewed, an arbitration decision, and a decision
    of the OLRB. Instead of bringing the application for judicial review directly
    to the Divisional Court, the appellant sought leave to have it heard by a
    single judge of the Superior Court on an urgent basis in London. Initially,
    Leitch J. set a timetable for the hearing of the appellants leave motion,
    which was eventually held before Grace J. He dismissed the motion, and ordered
    that the application for judicial review be transferred to the Divisional Court
    in London, or in Toronto where it could be heard sooner. He also ordered the
    appellant to pay $10,000 costs to the respondent.

[3]

The appellant seeks to appeal the order of Leitch J. and the orders of
    Grace J. to this court. In her written materials, she seeks to have this court
    hear the application for judicial review and various constitutional issues,
    none of which was determined below. In oral argument, the appellant conceded
    that the order of Leitch J. is interlocutory, but that she is seeking to appeal
    the orders of Grace J., which she submits are final orders. The appellant also
    explained that there have been a number of administrative problems at the court
    office since the order of Grace J., resulting in problems with the Divisional
    Court file for her judicial review application in both the London office, and
    in the Hamilton office where another file was commenced.

[4]

Dealing first with the jurisdiction of this court to hear the appeals,
    it is clear that the order transferring the application for judicial review to
    the Divisional Court, which was made by Grace J., is an interlocutory order of
    a procedural nature. It does not address the merits of the proposed judicial
    review application.

[5]

The appellant sought a procedure for the hearing of her judicial review application
    before a single judge rather than by a panel of the Divisional Court, which
    procedural request was refused. The appellant may seek leave from the
    Divisional Court to appeal that refusal, under s. 19(1)(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43,which provides:

19 (1) An appeal
    lies to the Divisional Court from,

(b) an
    interlocutory order of a judge of the Superior Court of Justice, with leave as
    provided in the rules of court.

[6]

Alternatively, the appellant may proceed with her judicial review application
    before the Divisional Court. In accordance with the provisions of s. 6(1) of
    the
Judicial Review Procedure Act
, R.S.O. 1990, c. J.1, her application
    for judicial review is within the jurisdiction of the Divisional Court. No
    aspect of the merits of her judicial review has been adjudicated, including any
    constitutional issues she wishes to raise in respect of the Labour Board. No
    final order has been made that disposes of any matter in issue in the
    litigation. As a result, there is no appeal to this court.

[7]

Similarly, in accordance with s. 19(1.2) of the
Courts of Justice
    Act
, the appellants proposed appeal from the $10,000 costs order of Grace
    J. is to the Divisional Court, with leave, because it is within that courts
    monetary jurisdiction.

[8]

As the appeal to this court must be quashed, it is for the Divisional
    Court and its administration to assist the appellant, a self-represented
    litigant, to bring forward her judicial review application.

[9]

The respondent seeks $17,000 in costs of this appeal on the partial indemnity
    scale. While the respondent was correct that no appeal lies to this court and
    the appeal must be quashed, we may also take into account when assessing the
    costs issue the fact that the appellant is self-represented and the underlying
    issues involve the termination of her employment. In the result, the motion is
    granted with a nominal award of costs in the amount of $2,000, inclusive of
    disbursements and HST.

K.
    Feldman J.A.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


