



COURT OF APPEAL FOR ONTARIO

CITATION: Michail v. Ontario English Catholic Teachers
    Association, 2018 ONCA 950

DATE: 20181123

DOCKET: M49750 (C65674)

Brown J.A. (In Chambers)

BETWEEN

Myriam Michail

Plaintiff (Moving Party)

and

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

Defendants (Responding Parties)

Myriam Michail, acting in person

Christopher Perri, for the responding parties, the
    Ontario English Catholic Teachers Association et al.

Audra Ranalli, for the responding party, the Attorney
    General of Ontario

Jacob Pollice, for the responding party, the Department
    of Justice Canada

Heard: In writing

REASONS FOR DECISION

[1]

Myriam Michail brings a motion in writing seeking several orders: (i)
    dispensing with the requirement that she sign a standard undertaking in order
    to obtain the release of audio recordings of the hearings of earlier motions heard
    by this court on August 30, 2018 and October 18, 2018; (ii) permitting her to
    transcribe those proceedings; (iii) directing the publication on the courts
    website of the reasons of Paciocco J.A. released September 4, 2018; and (iv)
    permitting her to challenge the constitutional validity and applicability of
    portions of s. 136 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    specifically ss. 136(1)(a)(i), (b), (c), and 136(4).

[2]

The respondents take no position on her motion. The Attorney General of
    Ontario and Department of Justice Canada take the position that Ms. Michails motion
    is not properly before the court and that her Notice of Constitutional Question
    in respect of s. 136 of the
Courts of Justice Act
is a nullity.

[3]

The procedural history of this appeal is set out in the October 25, 2018
    reasons of the panel reported at 2018 ONCA 857, available on the courts
    website.

[4]

Ms. Michail initiated judicial review proceedings in the Divisional
    Court. Certain interlocutory orders were made by single judges in those
    proceedings in 2017. In July 2018, Ms. Michail filed a notice of appeal from
    those orders in this court.

[5]

She then brought a motion seeking certain procedural directions in
    regard to her appeal: (i) the ability to file a factum of more than 30 pages;
    (ii) the transfer of the files in her Divisional Court judicial review
    proceedings in Hamilton and London to this court to be used as part of the
    record on appeal; and (iii) an extension of the time to perfect her appeal.

[6]

Paciocco J.A heard the motion on August 30, 2018. By reasons released
    September 4, 2018, Paciocco J.A. granted Ms. Michail an extension of time to
    perfect her appeal. However, he dismissed the balance of her motion, giving a
    detailed explanation of why he was doing so at paras. 14 to 19 of his reasons:

In my view, I must dismiss the appellants motion for relief
    from compliance with the page limit as being contrary to the interests of
    justice.

First, the 30 page limit for facta is imposed to keep appeals
    manageable, efficient and cost-effective for the litigants and the court. I
    agree with counsel for the OECTA that it is burdensome and expensive for
    responding parties to have to cope with lengthy pleadings. Permitting the
    appellant to file an overlong factum would work unfairness to the respondents.

Second, I have reviewed the 95 page notice of appeal filed in
    this matter, with care. It is repetitive and includes extensive material not
    contemplated by the Rules. For example, the notice of appeal raises issues that
    have not yet been the subject of adjudication below, including information
    about the treatment of the Divisional Court files, and the constitutionality of
    provisions of the
Courts of Justice Act
.

Third, the appellant bases her request, in part, on her
    personal organizational preferences. She wishes to include, in the body of her
    factum, documents that should be in her appeal book and compendium, exhibit
    book, and book of authorities. She says that doing so helps her organize her
    thoughts, and, in her view, makes for easier argument. I see no basis for
    permitting the appellant to redesign the manner of pleading and argument,
    developed by this court over many years, a process faithfully followed by many
    self-represented litigants. In my view, the appellant must pay heed to and
    comply with the
Rules
.

In short, I am persuaded that if the appellant restricts
    herself to appropriate content for court documents as described in the
Rules
,
    removes immaterial information, and takes a disciplined approach to setting out
    appropriate bases for proper grounds of appeal, she can comply with the page
    limits. The motion for relief from the page limit imposed by the
Rules
is dismissed.

I also dismiss the appellants request to have the Divisional
    Court files transferred, en masse, to this court. Those files cannot be used as
    the court record in this court, and the appellant has not satisfied me of the
    need for all of the documents contained in those files to be before this court.

[7]

Ms. Michail then brought a motion asking a panel of this court to review
    the order of Paciocco J.A.

[8]

The respondents brought a motion to quash Ms. Michails appeal.

[9]

At the direction of the President of the panel, the court advised Ms.
    Michail by letter dated October 15, 2018 that it would first consider the
    motion to quash.

[10]

The
    panel did so at the hearing on October 18, 2018. In its October 25, 2018
    reasons, the panel explained why this court did not have jurisdiction to
    consider Ms. Michails appeal. The panel quashed Ms. Michails appeal.

[11]

Since
    the appeal has been quashed, I do not have the jurisdiction to consider Ms.
    Michails new motion. There no longer is an appeal before this court in which a
    constitutional question can be raised, nor is there an appeal in which I could
    make the procedural orders sought by Ms. Michail. Consequently, I must dismiss
    her motion for lack of jurisdiction.

[12]

It
    remains open to Ms. Michail to obtain the audio recordings of both hearings by
    completing the standard Request Form/Undertaking to the Court for Access to
    Digital Recordings.

[13]

Finally,
    by way of explanation to Ms. Michail, this court does not require motion judges
    to post on the courts website the reasons for each motion they decide. It is
    left to the individual motion judge to decide whether or not to publish on the
    courts website his or her reasons on a motion.

David Brown J.A.


