



COURT OF APPEAL FOR ONTARIO

CITATION: Hart v. Fullarton, 2021 ONCA 438

DATE: 20210617

DOCKET: M52515

Brown
    J.A. (Motions Judge)

BETWEEN

Melissa
    Hart

Applicant

(Moving
    Party)

and

Kevin
    Fullarton

Respondent

(Responding
    Party)

Melissa Hart, acting in person

Steve Benmor, for the responding party

Heard: June 15, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

The applicant, Melissa Hart, who is self-represented,
    seeks an order extending the time to file a notice of appeal from that part of
    the November 5, 2020 order of Nakonechny J. (the Final Order) which dismissed
    her application for spousal support. Ms. Hart does not seek to appeal that part
    of the Final Order which, in essence, declared her to be a vexatious litigant
    under s. 140(1) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
).

BACKGROUND

[2]

By application issued October 15, 2019, Ms. Hart applied in the Superior
    Court of Justice for retroactive and ongoing spousal support from the
    respondent, Kevin Fullarton. A one-day trial was held before
Nakonechny J.
on October 29, 2020. In paras. 1-3 of her
    reasons, the trial judge identified the issues for her determination:

The Applicant, Melissa Hart, seeks retroactive
    and ongoing spousal support from the Respondent, Kevin Fullarton, under Part
    III of the
Family Law Act
.

The Applicants Application issued October 15,
    2019, also contained a claim for an interest in the property known municipally
    as Unit 502-245 Dalesford Road, Toronto, owned solely by the Respondent. The
    Applicant withdrew this claim at the commencement of trial.

The Respondent asks that the Applicants claim
    for spousal support be dismissed, for a finding that the Applicant is a
    vexatious litigant and an order that the Applicant shall not bring any further
    proceedings against the Respondent.

[3]

In the Final Order, the trial judge dismissed the application in its
    entirety and, pursuant to
CJA
s. 140(1), ordered that Ms. Hart shall
    not commence any further proceeding against [Mr. Fullarton]
in any court
except with leave of a judge of the Ontario
    Superior Court of Justice. [Emphasis added.]

[4]

In response to subsequent motions by Ms. Hart to re-open the trial, the
    trial judge released an endorsement dated December 16, 2020 in which she wrote:

The Applicant has been advised by the Family Trial Office that
    if she wishes to appeal the Judgment, the proper procedure is to file an appeal
    with the appropriate court. Despite receiving this information, the Applicant
    continues to file motions for leave with the Ontario Superior Court of Justice.

Paragraph 83 (2) of the Reasons for Judgment states that the
    Applicant shall not commence a further proceeding against the Respondent
    without leave of a judge of the Ontario Superior Court of Justice. Rule 1.03 of
    the
Rules of Civil Procedure
defines a
    proceeding as an action or an application, not an appeal.

This Endorsement is to clarify that, in accordance with the
    Judgment, the Applicant does not require leave from a judge of the Ontario
    Superior Court of Justice to commence an appeal of the trial decision.

[5]

While it is true that r. 1.03 does not include
    an appeal within its definition of proceeding, this court has held that the
    language proceeding  in any court in s. 140(1)(c) of the
CJA
includes a proceeding in the Court of Appeal and proceeding includes an
    appeal:
Varma v. Rozenberg
, [1998] O.J. No. 4183 (C.A.), at para. 5.

[6]

Ms. Hart did not receive the December 16
    endorsement until March 11, 2021. The record is not clear on why she did not.

[7]

In any event, Ms. Hart next filed a notice of
    appeal from the Final Order in the Divisional Court. That resulted in a January
    12, 2021 endorsement by Corbett J., sitting as a single judge of the
    Divisional Court, informing the applicant that: (i) any appeal from the
    order declaring her to be a vexatious litigant lies to the Court of Appeal; and
    (ii) an appeal of any other part of the Judgment first required leave under
CJA
s. 140(3) from a Superior Court judge.

[8]

As disclosed by the reasons of OBrien J. dated
    April 6, 2021, Ms. Hart moved for leave under s. 140(3) of the
CJA
to
    appeal the judgment of the trial judge dismissing her claim for spousal
    support: at para. 1. OBrien J. dismissed the motion. While she did not find
    the proposed appeal to be an abuse of process, OBrien J. concluded that Ms.
    Hart had not shown reasonable grounds for bringing the appeal.

[9]

In the course of her reasons, OBrien J.
    considered the effect of the trial judges December 16, 2020 endorsement,
    reproduced in para. 4 above. She held, at para. 23:

Finally, I have considered whether the
    Applicant should be permitted to proceed with the appeal on the basis of the
    December 16, 2020 endorsement of Nakonechny J. indicating that she was entitled
    to do so in spite of the s. 140(1) order. The subsequent endorsement of Corbett
    J. clarified that the Applicant could not appeal as of right and was required
    to first seek leave from a judge of this court. There is a long line of
    authority providing that, as stated by Corbett J., s. 140 of the
CJA
prevents appeals without leave: see, for example,
Kalaba v. Bylykbashi
(2006), 265 D.L.R. (4th) 320 (Ont. C.A.), at para. 26;
Varma v. Rozenberg
,
    1998 CanLII 4334 (Ont. C.A.), at para. 5; and
Vermette v. Nassr
, 2016
    ONCA 658, at para. 5. It appears these authorities were not before Nakonechny
    J. when she issued her endorsement. I read Nakonechny J.s endorsement as
    setting out her understanding of the meaning of proceeding under the
Rules
    of Civil Procedure
.
I do not read it as intending
    to provide the Applicant with a right of appeal that she did not otherwise have
.

[10]

On April 26, 2021 Ms. Hart attempted to file
    with this court a notice of appeal from the Final Order. The Registrar refused
    to accept the notice as it was beyond the 30-day appeal period for the Final
    Order. Consequently, Ms. Hart now moves for an order extending the time to file
    her notice of appeal.

Analysis

[11]

Sections 140(1) and (3) of the
CJA
state:

140 (1) Where a judge of the
    Superior Court of Justice is satisfied, on application, that a person has
    persistently and without reasonable grounds,

(a) instituted vexatious proceedings
    in any court; or

(b) conducted a proceeding in any
    court in a vexatious manner,

the judge may order that,

(c) no further
proceeding
be instituted by the person
in any court
; or

(d) a proceeding previously
    instituted by the person in any court not be continued,

except by leave of a judge of the
    Superior Court of Justice.

(3) Where a person against whom an
    order under subsection (1) has been made seeks leave to institute or continue a
    proceeding, the person shall do so by way of an application in the Superior
    Court of Justice. [Emphasis added.]

[12]

The jurisprudence of this court regarding
CJA
s. 140 has established the following principles regarding the sections
    applicability to appeals to this court:

(i)

The language proceeding  in any court in s.
    140(1)(c) includes a proceeding in the Court of Appeal and proceeding
    includes an appeal:
Varma v. Rozenberg
, at para. 5;

(ii)

This court generally will require leave to appeal where a
    litigant seeks to initiate or continue litigation after a vexatious litigant
    order has been made against the litigant:
Kallaba v.
    Bylykbashi
(2006), 207 O.A.C. 60, (C.A.), at para.
    33, leave to appeal refused, [2006] S.C.C.A. No. 144;

(iii)

However, leave to appeal a vexatious litigant
    order itself is not required. Such an order is final in nature and appealable
    as of right to the Court of Appeal pursuant to s. 6(1)(b) of the
CJA
.
    The effect of a s. 140(1) order does not extend so far as to require leave to
    appeal from the very order that declares a person to be a vexatious litigant
    and restricts her right to access the courts:
Kallaba,
at paras. 23 and
    29.

[13]

During the hearing of this motion, in response
    to my inquiries, Ms. Hart confirmed that she is not seeking to appeal the
    vexatious litigant portion of the Final Order but the portion that dismissed
    her claim for spousal support. Consequently,
CJA
s. 140(3), as
    interpreted by the decisions of this court, requires Ms. Hart to obtain leave
    from a Superior Court judge to do so.

[14]

I agree with OBrien J.s reading of the
    December 16, 2020 endorsement that the trial judge did not intend to provide
    Ms. Hart with a right of appeal that she did not otherwise have.

[15]

Ms. Hart sought leave to proceed with an appeal
    of the spousal support aspect of the Final Order from OBrien J.
[1]
Her request for
    leave was denied.
CJA
s. 140(4)(e) clearly states that no appeal lies
    from a refusal to grant leave to proceed:
Chavali v. The Law Society of
    Upper Canada
, 2007 ONCA 482, at paras. 4-5. Consequently, there is no
    merit to the appeal that Ms. Hart now seeks to bring before this court in
    respect of the dismissal of her application for spousal support and the justice
    of the case requires dismissing her motion for an extension of time.

[16]

For these reasons, I dismiss Ms. Harts motion.

[17]

Mr. Fullarton seeks his partial indemnity costs
    of this motion, including costs caused by its adjournment last week, in the
    amount of $2,000. I am not prepared to award costs for the adjourned motion;
    communication glitches between the court and Ms. Hart seem to have been the
    cause of the adjournment. However, Ms. Hart shall pay Mr. Fullarton his partial
    indemnity costs of the motion fixed in the amount of $1,500, inclusive of
    disbursements and applicable taxes, within 30 days of the release of these reasons.

David
    Brown J.A.





[1]
Neither party raised the issue of whether an appeal of the dismissal of the
    spousal support aspect of the Final Order would lie to the Divisional Court
    under
CJA
s. 19(1)(a) or to this court under
CJA
s. 6(1)(b).
    However, Ms. Hart is self-represented. Consequently, during the hearing of the
    motion, at my request, respondents counsel provided a copy of Ms. Harts
    October 15, 2019 Form 8 Application. Her claim did not specify the amount of
    monetary relief that she was seeking. The absence of any quantification of the
    relief claimed, coupled with Ms. Harts filing of a notice of appeal to the
    Divisional Court, have satisfied me that she was proceeding on the basis that
    the Divisional Court was the appropriate court to proceed with an appeal of the
    dismissal of her spousal support claim. In any event, even if her claim had
    exceeded $50,000, the jurisprudence on
CJA
s. 140(3) would require her
    to move before a judge of the Superior Court for leave to proceed with an
    appeal to this court. She did, and OBrien J. dismissed her request for leave
    to proceed with an appeal.


