



COURT OF APPEAL FOR ONTARIO

CITATION: Teitler v. Dale, 2021 ONCA 577

DATE: 20210819

DOCKET: M52684

van
    Rensburg J.A. (Motion Judge)

BETWEEN

Elise
    Teitler

Applicant (Responding Party)

and

Lawrence
    Dale

Respondent (Moving Party)

Lawrence M. Dale, acting in person

Martha McCarthy, for the responding
    party

Heard: August 5, 2021 by videoconference

REASONS
    FOR DECISION

[1]

The moving party, Lawrence Dale, seeks an
    extension of time to appeal the vexatious litigant order of Diamond J. dated
    July 5, 2019.

[2]

The application judges order was made in two
    proceedings: FS-15-400682, a family law proceeding commenced by Ms. Teitler in
    2015
[1]
, and CV-19-00618979-0000, a proceeding
    commenced by Ms. Teitler by application pursuant to s.140 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43.

[3]

Diamond J.s order found Mr. Dale to be in
    contempt of certain provisions of eight orders of the Superior Court in the
    family law proceedings, struck out his Answer in those proceedings, and
    permitted Ms. Teitler to schedule a date for an uncontested trial. The order,
    at paras. 4 and 5, also declared Mr. Dale to be a vexatious litigant and precluded
    Mr. Dale from continuing in the family law proceeding and from continuing or instituting
    other proceedings without leave of a judge of the Superior Court of Justice,
    with the exception of CV-09-374829, which is an action between Mr. Dale and the
    Toronto Real Estate Board.

[4]

The uncontested trial in the family law
    proceedings took place on September 27, 2020 before Kiteley J., and resulted in
    a final order respecting child and spousal support and parenting of the
    parties children, and a restraining order, each dated December 17, 2020.

[5]

Until recently, Mr. Dale did not appeal or seek
    leave to appeal any part of Diamond J.s order.

[6]

If he is granted an extension of time to appeal,
    Mr. Dale seeks a stay. Among other things, he contends that he wants to bring
    proceedings involving the children and to appeal the order of Kiteley J.

Extension of Time

[7]

This court can extend time to appeal under r.
    3.02 of the
Rules of Civil Procedure
when it considers it just to do
    so. The onus is on the moving party to establish the grounds for an extension. While
    each case depends on its own circumstances, the following factors are relevant:
    (1) whether the moving party formed an intention to appeal within the relevant
    period (i.e. 30 days from the date of the order); (2) the length of, and
    explanation for, the delay in appealing; (3) prejudice to the responding party;
    and (4) the merits of the proposed appeal. The overarching principle is whether
    the justice of the case requires the extension of time:
Howard v. Martin
,
    2014 ONCA 309, at para. 26. Where, as here, the order affects children, the
    justice of the case is reflected in the best interests of the children:
Denomme
    v. McArthur
, 2013 ONCA 694, at para. 7.

[8]

Mr. Dale contends that the fact that court staff
    would not accept what he attempted to file with this court, which he says was a
    mistake, should be determinative of this motion. In the alternative, he asserts
    that he has met each element of the test set out above, and that the overall
    justice of the case strongly favours an extension of time.

[9]

I have concluded that it is not in the interests
    of justice to grant the requested extension of time.

[10]

I begin by observing that Mr. Dale did not put
    proper evidence before this court. His affidavits dated July 26, 2021 and
    August 3, 2021 are not sworn or affirmed before a commissioner of oaths, which
    Mr. Dale explains is because of the COVID situation. There is nothing in the  Consolidated
    Practice Direction Regarding Proceedings in the Court of Appeal During the
    COVID-19 Pandemic or the
Rules of Civil Procedure
that would exempt
    Mr. Dale from the requirement of providing a properly sworn or affirmed
    affidavit. Although Mr. Dale is self-represented in these proceedings, he was
    qualified as a lawyer and he is an experienced litigant. I do not accept his
    explanation for failing to provide evidence in the proper form. Although I
    could have dismissed his motion on this basis alone, I am dismissing the motion
    after considering the relevant factors in light of the record before me,
    including the unsworn affidavits.

[11]

The first factor is whether Mr. Dale had a
bona
    fide
intention to appeal within the relevant time. The 30 days to appeal
    ran from the date of the order (July 5, 2019). Contrary to Mr. Dales
    submission, the time did not run from the date the order was issued and entered
    (October 1, 2019):
Byers (Litigation Guardian of) v. Pentex Print Master
    Industries Inc
.
(2003), 62 O.R. (3d) 647 (C.A.), at para. 31.

[12]

I do not believe Mr. Dales assertion that he
    had the intention to appeal the order of Diamond J. within 30 days of the date
    the order was made, or even, allowing for some delay in the order coming to his
    attention, within 30 days of when he knew about the order (which he says was in
    August 2019, although the responding party has provided evidence that the
    endorsement of Diamond J. was sent to one of the email addresses he had
    provided to the court on July 8, 2019). If he had the intention to appeal at
    the time, I would have expected Mr. Dale to have served a notice of appeal or to
    have had some other contemporaneous communication with Ms. Teitlers counsel to
    advise that he was seeking to appeal the vexatious litigant order. The absence
    of this kind of evidence is telling. It is more likely, as I will explain, that
    Mr. Dale only formed the intention to appeal the vexatious litigant order after
    he attempted to appeal Kiteley J.s order and was informed by the court that he
    required leave of a Superior Court judge to do so. This was more than a year
    after Mr. Dale had been declared a vexatious litigant.

[13]

I turn to the next factor: the length of and
    explanation for Mr. Dales delay in seeking an extension of time.

[14]

This motion was brought some two years after the
    order Mr. Dale is seeking to appeal. Mr. Dale claims that he is not responsible
    for any of the delay; rather, he blames the Court of Appeal staff for the delay.
    Without indicating precisely when, Mr. Dale asserts that he immediately
    contacted the Court of Appeal intake office to bring his motion to extend the
    time for filing the notice of appeal, but that court staff told him they would
    not accept any filing of his notice of motion because he is a vexatious
    litigant. He says that court staff maintained this position until recently. Mr.
    Dale also states that he was prevented from bringing his motion because only
    urgent matters could be brought to this court as a result of the COVID-19
    pandemic.

[15]

I do not accept Mr. Dales explanation for the
    lengthy delay of more than two years between the order he seeks to appeal and
    his motion to extend time to appeal: essentially that court staff and the
    pandemic prevented him from proceeding with his motion.

[16]

First, there is nothing to substantiate Mr.
    Dales assertion that court staff prevented him from bringing a motion to extend
    time to appeal the vexatious litigant order from the time the order was made,
    and for the following 20 months. In oral argument Mr. Dale explained the
    absence of any emails or other written evidence during this period by asserting
    that all of his communications with the court were verbal. I simply do not
    believe Mr. Dale on this point.

[17]

Mr. Dale has reproduced portions of an email
    exchange with court staff on January 21 and 22, 2021. The emails make it clear
    that he had tried to file a notice of appeal from the final order of Kiteley J.,
    and was prevented from doing so without an order of a Superior Court judge due
    to the vexatious litigant order. He took the position that he was entitled to
    appeal the order notwithstanding the vexatious litigant order, which is wrong
    at law. While a vexatious litigant is entitled to appeal the order declaring
    him vexatious without leave, he is not permitted to appeal any other decision
    or order without leave of a Superior Court judge:
Kallaba v. Bylykbashi
(2006),
    265 D.L.R. (4th) 320, at paras 29-33, leave to appeal refused, [2006] S.C.C.A.
    No. 144. It appears that when the court refused to accept his notice of appeal
    for filing, Mr. Dale realized that he would need to successfully appeal the
    order of Diamond J., if he were to appeal the order of Kiteley J. without an
    order of a Superior Court judge. This occurred in January 2021.

[18]

Mr. Dale relied on  an email exchange with court
    staff on July 27, 2021. On that occasion a staff member refused his filing
    because he was a vexatious litigant. Mr. Dale sorted out the misunderstanding
    with the Deputy Registrar, and an hour later he received an email confirming he
    could file his motion. As Mr. Dale emphasized in his oral argument, he is a persistent
    litigant. If, as he claims, he had been prevented by the court from filing a
    motion to extend time to appeal the vexatious litigant order since the fall of
    2019, no doubt he would have sorted out the issue, as he quickly did in July of
    this year.

[19]

Mr. Dale also relies on the COVID-19 pandemic to
    explain his delay in moving for an extension of time. Contrary to Mr. Dales claim
    that he was told that he could not bring his motion because the court was
    accepting only urgent matters, this court continued to sit on appeals and
    motions in 2021, including motions to extend time to appeal. The timelines for
    serving and filing documents in this court were extended between March 16, 2020
    and July 15, 2020, and regular timelines were reinstated effective July 16,
    2020. There is nothing in the courts COVID Practice Directions that would have
    prevented Mr. Dale from pursuing a motion to extend time to appeal the vexatious
    litigant order.

[20]

Mr. Dale has not provided a reasonable
    explanation for his lengthy delay in seeking an extension of time to appeal the
    vexatious litigant order.

[21]

I turn to consider the merits of the appeal. Compelling
    merits may tip the balance in cases where, as here, other factors militate
    against an extension of time: see
Howard
, at para. 36.

[22]

Mr. Dales principal ground of appeal is that he
    was denied a fair hearing, due process and natural justice when the vexatious
    litigant order was granted in the context of a combined motion and application
    hearing. He also asserts that the application judge erred in law and fact because
    the underlying facts do not support the vexatious litigant finding. I will
    consider each ground in turn.

[23]

With respect to the procedure on a vexatious
    litigant application Mr. Dale relies on two cases:
Lukezic v. Royal Bank of
    Canada
, 2012 ONCA 350 and
Kallaba
.
In
Lukezic

this court agreed with the dissenting reasons of Lang J.A. in
Kallaba

that a vexatious litigant order shall only be made on application. Mr. Dale
    says that, although an application was issued, in substance what was heard was
    not an application. Essentially, I understand his argument to be one of
    procedural fairness. He points to para. 16 of
Lukezic
where the court
    stated:

an application provides the procedure best
    suited to the determination of whether a litigant is vexatious. In large
    measure this is because of the due process protections which that procedure
    accords to the person targeted, such as personal service, adjudication by a
    judge, a directed trial of an issue if necessary, and the right of appeal
    without the need for leave.

[24]

Mr. Dale was afforded all of the due process
    protections referred to in this passage. While a due process argument might
    be made in another case on a different record, I cannot see any prospect of it
    succeeding in this case. Mr. Dale had notice that a vexatious litigant order
    was sought, and it was pursued by application. Although he had arranged the court
    attendance and knew its purpose, Mr. Dale did not attend when Akbarali J.
    provided directions for the hearing of the application together with Ms. Teitlers
    motion for contempt and to strike his Answer. As the case management judge, Akbarali
    J. was familiar with the proceedings and the parties and she made an order that
    was entirely within her discretion. She set a timetable for the delivery of the
    materials and for the hearing by Diamond J., who had been appointed as the
    judge to hear motions in the family law proceedings. Mr. Dale complied with the
    timetable when he delivered his responding materials on time. He attended court
    on the appointed date, however he left the hearing after his request for an
    adjournment was denied. As Diamond J. explained, Mr. Dale sought an adjournment
    in order to bring a motion that was based on a conspiracy theory and that he
    had threatened to bring for months, if not arguably, years.

[25]

Mr. Dales draft notice of appeal also asserts
    that Diamond J. erred in law and fact in making the vexatious litigant order. However,
    Mr. Dale did not press this argument in the motion before me, except to suggest
    that Diamond J. was wrong to rely on previous orders of Faieta J. and Akbarali
    J. Mr. Dale in fact made numerous attempts to appeal or set aside various
    orders in the family law proceedings, including the orders of Faieta J. as the
    previous case management judge:
Dale v. Teitler
, 2018 ONSC 6861 (Div.
    Ct.). Diamond J. made it clear that, although he had no reason to doubt the correctness
    or appropriateness of Akbarali J.s findings of fact, he had reviewed the
    Continuing Record, and had reached the same conclusions. Diamond J. referred to
    Mr. Dales avoidance of his court-ordered obligations, his pursuit of
    unattainable remedies based on a conspiracy theory that stretch[ed] the boundaries
    of reality, his commencement of civil and criminal proceedings against Ms.
    Teitler, her lawyers, judges and other professionals, the motions he had
    brought and abandoned, his attempts to re-litigate issues that had been decided
    against him, and ultimately his total disregard for the Court and its
    resources: at paras. 43, 44. Diamond J.s reasons, which are detailed and
    comprehensive, reveal no reversible error.

[26]

Since I have concluded that the proposed appeal
    has no arguable merit, this factor weighs against granting an extension of
    time.

[27]

Finally, I turn to consider prejudice to Ms.
    Teitler and the children, which informs my consideration of the justice of the
    case. Mr. Dale contends that there will be little prejudice to Ms. Teitler
    because he is willing not to deal with property and support issues. His willingness
    not to deal with such issues is a hollow offer: Mr. Dale is in default of the
    outstanding orders for support and equalization. He has paid very little child
    support in the last five years. The child support arrears are significant.

[28]

I accept Ms. Teitlers submission that to permit
    Mr. Dale to proceed at this stage with his appeal would severely prejudice her
    interests and those of the children. In addition to the outstanding support and
    equalization payment obligations, Mr. Dale is in default of numerous costs
    awards. If Mr. Dales appeal proceeds, she will have to incur further legal
    costs, without hope of recovering such costs from Mr. Dale. As for the
    children, although Mr. Dale has not complied with many of the orders in the
    family law proceeding, Ms. Teitler describes the current situation as relatively
    stable, and not disregulated. And, as Ms. Teitlers counsel pointed out, there
    is a path forward that is available to Mr. Dale in relation to the children 
    he could comply with the provisions of the orders of Faieta J. dated August 31,
    2018 and Kiteley J. dated December 17, 2020 respecting the children.

[29]

For these reasons the extension of time is
    refused.

Stay Pending Appeal

[30]

Having refused the extension of time for Mr.
    Dale to appeal the vexatious litigant order, it is unnecessary to address the
    question of a stay. I will briefly explain why I would have dismissed the
    motion for a stay if I had granted the extension.

[31]

A stay of proceedings is a discretionary order
    made when the court is persuaded that (1) the appeal has arguable merit; (2)
    there would be irreparable harm to the moving party if the stay were refused;
    and (3) the balance of convenience favours a stay. Again, the overarching
    consideration is whether the interests of justice call for a stay:
BTR
    Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust
,
    2011 ONCA 620, at para. 16.

[32]

I have already determined that the proposed
    appeal is without merit. Mr. Dale has put forward no evidence that would
    persuade me that there would be irreparable harm if the stay were refused. I
    accept the evidence that a stay would be harmful to the children and to Ms.
    Teitler. The balance of convenience in any event weighs heavily against a stay.
    The record confirms that Mr. Dale has engaged in meritless and vexatious
    litigation, while at the same time disregarding the procedures of the court. He
    has ignored court orders respecting parenting and support issues, including orders
    restricting his contact with the children. To stay the vexatious litigant order
    pending appeal would only permit and encourage Mr. Dale to continue such
    harmful conduct while an appeal is pursued.

Disposition

[33]

For these reasons the motion is dismissed. Ms.
    Teitler is entitled to her costs. She has asked for the opportunity to make
    written submissions. The court will receive costs submissions as follows: from
    the responding party on or before August 27, 2021, and from the moving party on
    or before September 3, 2021, with no right of reply. Costs submissions shall be
    limited to three pages per side, exclusive of the moving partys bill of costs.

K. van Rensburg J.A.





[1]
FS-15-400682 is subject to a sealing order in the
Superior
    Court made December 17, 2020 by Kiteley J.


