



COURT OF APPEAL FOR ONTARIO

CITATION: Collins v. Canada Post Corporation, 2022 ONCA 295

DATE: 20220413

DOCKET: C69883

Roberts, Miller and Zarnett JJ.A.

BETWEEN

R. Maxine Collins

Plaintiff (Appellant)

and

Canada Post Corporation and Norton Rose Fulbright
    Canada

Defendants (Respondents)

R. Maxine Collins, acting in person

Michael R. Kestenberg and David S. Lipkus, for the
    respondent, Norton Rose Fulbright Canada

Ted Brook, for the respondent, Canada Post Corporation

Heard: in writing

Determination pursuant to r. 2.1 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194 with respect to the appeal from
    the order of Justice Marc E. Smith of the Superior Court of Justice, dated
    September 9, 2021, with reasons at 2021 ONSC 5987.

REASONS FOR DECISION

[1]

The appellant brought an action against the respondents in the Superior
    Court of Justice seeking damages for conduct in, and concerning an action in,
    the Federal Court. The appellants Federal Court action is against the
    respondent Canada Post. The respondent Norton Rose acts as counsel for Canada
    Post in the Federal Court action.

[2]

Proceeding under r. 2.1.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, the motion judge found
    that the appellants Superior Court action as against each respondent was frivolous,
    vexatious, and otherwise an abuse of the courts processes. He dismissed her Superior
    Court action. The appellant has appealed that dismissal.

The Parties Positions

[3]

The respondents each made a request to this court that the appeal be
    dismissed under r. 2.1.01, on the basis that the appeal appears, on its face,
    to be frivolous, vexatious, and/or an abuse of process.

[4]

After the respondents requests were received, the registrar asked the
    parties to make written submissions.

[5]

On March 9 and 11, 2022, both of the respondents, by counsel, filed
    written submissions in support of their requests. The respondents essentially
    submit that the appellants Superior Court action, complaining about events in
    a Federal Court action, was correctly determined by the motion judge to be
    frivolous, vexatious, and an abuse of process based on the doctrine of absolute
    privilege and the prohibition against collateral attack, and that the appellant
    has no viable ground of appeal from that determination.

[6]

The appellant filed a letter dated March 14, 2022, acknowledging receipt
    of the respondents written submissions in support of their r. 2.1 requests. In
    her letter, she asserts that each respondent should be considered self-represented
    due to defects in their respective appointments of the lawyers who filed the
    submissions. She also refers to certain case law relating to r. 2.1.01, and highlights
    the propositions that: (1) the rule is a streamlined procedure for proceedings
    that are on their face frivolous, vexatious, or otherwise an abuse of process; (2)
    the rule is not intended to supplant the established procedure for a motion to
    quash an appeal for want of jurisdiction or merit; and (3) a court must
    consider whether a motion to quash may be the more appropriate procedural
    vehicle to address a respondents merit or jurisdiction complaints. After asserting
    that the registrar had not called for submissions in the manner or sequence
    contemplated by r. 2.1, the appellants letter declines to take a position on
    [the respondents submissions] as the Court has the requisite knowledge and
    experience to determine on the face of any Rule 2.1 Request whether or not it
    is an attempt to avoid a proper motion.

Analysis

[7]

We see no merit to the appellants concern about the respondents
    representation by counsel, nor about the manner and sequence in which written
    submissions were requested. The appellant had the opportunity to consider and
    respond to the respondents submissions. We agree with the appellant that in
    considering the respondents requests in light of the decision below and the
    points she intends to raise on her appeal as explained and amplified in her
    factum, we must consider, among other things, whether a motion to quash would
    be the more appropriate procedural vehicle.

[8]

One of the appellants grounds of appeal is that the motion judge should
    have recused himself. After the respondents made requests that the Superior
    Court action be dismissed under r. 2.1.01, the motion judge directed that the
    appellant be given notice that he was considering making that order, gave her
    the opportunity to file submissions and, in the interim, stayed the action. The
    appellant made submissions, which included a request that the motion judge
    recuse himself from ruling on the r. 2.1.01 requests because he had stayed her
    action pending receipt of her submissions.

[9]

The appellants ground of appeal that the motion judge was disqualified
    from dealing with whether the action should be finally dismissed because he
    granted an interim stay of her action is without substance. The motion judge
    made it clear that he was staying the action pending receipt and consideration
    of any submissions the appellant made on whether a r. 2.1 dismissal was appropriate.
    This did not constitute a prejudgment of the issues in a manner that would
    foreclose his further involvement.

[10]

The
    motion judge found that the claims against Norton Rose in the Superior Court action
    relate entirely to their participation as counsel in the Federal Court proceedings
    and include allegations that Norton Rose commissioned a misleading affidavit
    and omitted to advise the Federal Court of material facts. He held that the
    claims against Norton Rose were barred by the doctrine of absolute privilege, which
    provides that no action can be brought against (among others) counsel for
    statements made in the ordinary course of a judicial proceeding:
Salasel v.
    Cuthbertson
, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35.

[11]

As
    concerned the claims against Canada Post in the action, the motion judge
    interpreted them to include the same accusations as were made against Norton
    Rose, which were not actionable on the basis of absolute privilege, and complaints
    about decisions and rulings made in the Federal Court proceeding and other
    proceedings, which were barred by the doctrine against collateral attack
    articulated by the Supreme Court in
Wilson v. The Queen
, [1983] 2 S.C.R.
    594, at p. 599. Although some of the claims were alleged to be for defamation
    or conspiracy to defame, they were not tenable because all the statements alleged
    to be defamatory were made by Canada Posts counsel in the Federal Court
    proceedings.

[12]

There
    is no arguable merit to the grounds of appeal that assert that the motion judge
    was wrong to come to these conclusions and to employ r. 2.1.01 in these
    circumstances. The appellant herself describes her
Superior
    Court
action as alleging the respondents abused the process of the
Federal Court
by improperly filing a motion record in
    the Federal Court proceedings and making statements in those proceedings that she
    considers defamatory. The motion judge made no arguable error in applying the
    doctrines of absolute privilege and collateral attack to conclude that such
    claims were not actionable in the Superior Court and that her action was
    therefore frivolous, vexatious, or an abuse of process.

[13]

The
    appeal appears on its face to be frivolous, vexatious, or otherwise an abuse of
    the process of the court within the meaning of r. 2.1.01. This is a case where
    resort to the streamlined process in that rule is appropriate, rather than
    requiring a motion to quash.

Conclusion

[14]

The
    appeal is therefore dismissed.

L.B. Roberts J.A.

B.W. Miller J.A.

B. Zarnett J.A.


