



COURT OF APPEAL FOR ONTARIO

CITATION: Lum v. College of Physiotherapists
    of Ontario, 2020 ONCA 271

DATE: 20200429

DOCKET: M50951 and M51145 (M50815)

Gillese, Brown and Huscroft
    JJ.A.

BETWEEN

Lo-Ming Lum

Plaintiff (Moving Party)

and

College of Physiotherapists of Ontario, College
    of Physical Therapists of British Columbia, Unity Health Toronto as successor
    to St. Joseph's Health Centre,
St. Joseph's Health Centre (Toronto)
,
    Attorney General of Canada, The Honourable Harjit Singh
Sajian
Sajjan
    and The Honourable Judy Foote

Defendants (Responding parties)

Lo-Ming Lum, acting in person

Joanna Birenbaum, for the responding
    party College of Physiotherapists of Ontario

Kate Deakon, for the responding party Unity
    Health Toronto

Elizabeth Ackman and Sean McGarry, for
    the responding party College of Physical Therapists of British Columbia

Heard in writing

REASONS FOR DECISION

[1]

Ms. Lum brings two motions to this court. They
    arise within the context of an action that Ms. Lum brought against the defendants
    in April 2018 for harm she allegedly suffered as a result of whistleblowing
    (the Action).

BACKGROUND IN BRIEF

[2]

The defendants brought motions asking that the Action
    be dismissed. Justice Dunphy heard the motions. He found that the statement of
    claim was frivolous and vexatious. By order dated August 13, 2019, Dunphy J.
    granted the motions and dismissed the Action, without leave to amend (Justice
    Dunphys Order). Justice Dunphys Order also ordered costs against Ms. Lum and
    barred her from bringing any further proceedings against the defendants without
    leave of a judge of the Superior Court of Justice.

[3]

In the fall of 2019, Ms. Lum attempted to appeal
    Justice Dunphys Order to the Divisional Court. By endorsement dated September
    11, 2019, Corbett J. ordered that Ms. Lum bring a motion, on notice to the
    parties, for leave of the court to commence an appeal.

[4]

Instead, Ms. Lum filed a motion in the
    Divisional Court seeking to set aside Corbett J.s order of September 11, 2019.

[5]

By Notice of Motion dated September 16, 2019,
    Ms. Lum sought leave to appeal to this court from the order of Corbett J. dated
    September 11, 2019.

[6]

On September 27, 2019, Ms. Lum wrote to the
    Divisional Court requesting that the September 11, 2019 order of Corbett J. be
    revised. Justice Corbett reviewed Ms. Lums submissions and signed the revised
    order, as she had requested. A copy of the order was issued and entered on September
    30, 2019.

[7]

On October 1, 2019, Ms. Lum wrote to the
    Divisional Court asking to appear before it and make oral submissions to amend
    the order of Corbett J. dated September 11, 2019. The court refused to book an
    appearance before Corbett J., and directed that she file her concerns in
    writing.

[8]

By endorsement dated October 2, 2019, Corbett J.
    ruled that, as he had signed Ms. Lums draft order and it had been issued and
    entered by the Divisional Court (on September 30, 2019), the matter was settled.
    Accordingly, he refused to entertain the motion.

[9]

On October 23, 2019, Ms. Lum brought a motion in
    this court asking for an order to set aside or vary the order of September 11,
    2019. In an order dated October 23, 2019 (the Order), Tulloch J.A. dismissed
    the motion, as the proper forum for Ms. Lums motion was a panel of the
    Divisional Court.

[10]

Ms. Lum then brought the two motions now before the
    court (the Motions). In the first of the two Motions, Ms. Lum asks that the
    Order be set aside. In the second, she asks for an order dispensing with the
    requirement to file a copy of an order made by Corbett J. dated September 11,
    2019, in her materials seeking leave to appeal that order. Alternatively, she asks
    that the September 11, 2019 order be amended and she be granted an extension of
    time to file the materials seeking leave to appeal against it.

[11]

The College of Physiotherapists of Ontario prepared
    and filed a single responding factum on the Motions, on behalf of the College
    of Physical Therapists of British Columbia, Unity Health Toronto, and itself
    (the Respondents). In the current pandemic, it had been unable to reach
    counsel for the Attorney General of Canada and so could not submit a joint
    response on behalf of all the defendants to the Action.

[12]

The Respondents oppose the Motions and ask that
    they be dismissed with costs against Ms. Lum. They contend that the motions
    that Ms. Lum has brought in this court are yet another attempt by Ms. Lum to
    circumvent Justice Dunphys Order, which requires that she obtain leave of the
    Superior Court of Justice before she may take any further proceedings in that
    court in respect of the defendants. The Respondents further ask that this Court
    issue an order, pursuant to Rule 2.1 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, requiring Ms. Lum to obtain leave of a single judge of this Court
    before she may take any further proceedings in respect of the defendants in
    this Court.

[13]

The Motions were scheduled to be heard on April
    16, 2020. Due to the pandemic and the physical closure of the Court, the
    parties were offered the opportunity to have the Motions heard in writing. It
    was Ms. Lums strong preference that the Motions be heard in writing. The Respondents
    consented and the Motions were set down to be heard in writing on April 21,
    2020.

[14]

Shortly before the in-writing hearing of the
    Motions, Ms. Lum sent further correspondence to the hearing panel dated April 15,
    2020. In the correspondence, Ms. Lum sets out details of her complaints of
    improper treatment by the Divisional Court and this court. We have reviewed
    that correspondence, as well as the documentation filed by the parties on the
    Motions.

ANALYSIS

[15]

The issue raised by the first of the two Motions
    is whether Tulloch J.A. erred in determining that the correct appeal route for Ms.
    Lum was to a panel of the Divisional Court and not to this court. Justice
    Tulloch made no error. The jurisprudence makes it clear that an appeal from, or
    review of, a single judge of the Divisional Court lies to a panel of the
    Divisional Court: see, for example,
Bernard Property Maintenance v. Taylor
,
    2019 ONCA 830. As Tulloch J.A. explained in his reasons for decision, he was
    without jurisdiction to hear Ms. Lums motion. Accordingly, the first Motion is
    dismissed.

[16]

In the second of the two Motions, Ms. Lum seeks
    to have this court hear an appeal of the order dated September 11, 2019. As an
    interlocutory order, an appeal from that order lies to the Divisional Court,
    not this court. For that reason, the second Motion is dismissed.

[17]

In light of the history of this proceeding, Ms.
    Lums apparent disregard for Justice Dunphys Order, and the procedural motions
    wrongly brought to this court, we are of the view that an order pursuant to
    Rule 2.1 of the
Rules of Civil Procedure
is warranted.

DISPOSITION

[18]

Accordingly, the Motions are dismissed with
    costs to the College of Physiotherapists of Ontario, fixed at $1,000, all
    inclusive. Further, an order shall go, pursuant to Rules 2.1 and 37.16 of the
Rules
    of Civil Procedure
, requiring Ms. Lum to obtain leave of a single judge of
    the Court of Appeal before she may take any further steps or proceedings
    related to this action in this Court.

E.E. Gillese
    J.A.

David Brown
    J.A.

Grant Huscroft
    J.A.


