



COURT OF APPEAL FOR ONTARIO

CITATION: Damallie v. Ping, 2016 ONCA 603

DATE: 20160728

DOCKET: M46381 & M46729

Gillese J.A. (In Chambers)

BETWEEN

Clifton Damallie

Plaintiff (Moving Party/
Responding Party by way of cross motion)

and

Dr. Peony Ping

Defendant (Responding Party/
Moving Party by way of cross-motion)

Clifton Damallie, acting in person

Jeremy Opolsky, appearing as
amicus

Julia Lauwers, for the responding party/moving party by way
    of cross motion

Heard: July 27, 2016

ENDORSEMENT

[1]

Mr. Damallie moves for an order dismissing the orders of the Registrar
    dated August 12, 2015, and December 4, 2015.

[2]

Dr. Peony Ping is the responding party to the motion. She brings a
    cross-motion asking that this proceeding be referred to a panel of the Court of
    Appeal (the Panel) for a determination under rule 2.1 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, that the proceeding is, on its
    face, frivolous, vexatious and an abuse of process.  Dr. Ping also asks for an
    order staying Mr. Damallies motion and any other motions in this proceeding
    pursuant to s. 106 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    pending the outcome of the Panels determination under rule 2.1.

[3]

For the reasons that follow, the cross-motion is granted and Mr.
    Damallies motion is stayed pending the outcome of the Panels determination.

BACKGROUND IN BRIEF


[4]

Dr. Ping is a dentist in good standing with the Royal College of Dental
    Surgeons of Ontario. Mr. Damallie was a patient of Dr. Ping from June 9, 2011,
    to March 22, 2012.

[5]

On September 17, 2012, Mr. Damallie began an action against Dr. Ping in
    the Small Claims Court in Toronto. On July 4, 2013, Deputy Judge Shapiro
    dismissed Mr. Damallies claim (the Dismissal).

[6]

A very abbreviated version of what transpired after the Dismissal
    follows.

[7]

On January 8, 2014, Mr. Damallie brought a motion in the Divisional
    Court, in which he sought an extension of time to file a notice of appeal
    against the Dismissal. By order dated January 8, 2014, a single judge of the
    Divisional Court dismissed the motion (the First Divisional Court order). In
    thoughtful and thorough reasons, the court explained that the proposed appeal
    had no merit.

[8]

Mr. Damallie moved to set aside the First Divisional Court order. By
    order dated September 24, 2014, a three-judge panel of the Divisional Court
    dismissed the motion and upheld the First Divisional Court order (the Second
    Divisional Court order). Again, the court gave thorough and sound reasons for
    why the proposed appeal should not be permitted to proceed and why there was no
    error in the First Divisional Court order.

[9]

By notice of motion dated September 29, 2014, Mr. Damallie indicated
    that he would make a motion in this court seeking leave to appeal the Second
    Divisional Court order (the Originating CA Motion).

[10]

On December 15, 2014, the Registrar notified Mr. Damallie that she would
    dismiss the Originating CA Motion for delay unless he filed his motion record
    and factum in accordance with the
Rules
by December 30, 2014.

[11]

Mr. Damallie did not file the requisite materials.

[12]

Instead, in March of 2015, Mr. Damallie brought a motion for an
    extension of time to file the requisite materials. That motion was dismissed by
    court order dated April 8, 2015 (the April 2015 order).

[13]

Mr. Damallie then filed a notice of motion asking that a panel of this
    court review the April 2015 order. However, he failed to file the necessary
    documents in support of that motion. Again, the Registrar advised that his
    motion would be dismissed for delay if he did not file the documents by a
    specified date. Again, instead of meeting that requirement, he filed another
    motion in which he sought an extension of time to file the documents. That motion
    was dismissed. Again, he brought a motion seeking a review of the dismissal. But
    he did not file the requisite materials so the Registrar notified him of her
    intention to dismiss for delay. So Mr. Damallie brought another motion.

[14]

And so the pattern has continued for the past eighteen months, with Mr.
    Damallie filing notice of motion after notice of motion, each one challenging a
    decision this court has rendered in this matter but failing to provide the
    requisite documentation.

[15]

By order dated April 14, 2016, the Registrar dismissed the Originating
    CA Motion for delay (the Order). This had the effect of dismissing the
    underlying motion for leave to appeal to this court.

[16]

Nonetheless, Mr. Damallie continues to bring motions in this proceeding.
    He frequently fails to serve Dr. Ping with the motion materials and fails to inform
    her of the dates on which the motions are scheduled to be heard.

ANALYSIS

[17]

Through her cross-motion, Dr. Ping asks for this courts help in ending
    this cycle. She asks that this matter be referred to a panel of the court (the
    Panel) for a determination under rule 2.1 of the
Rules
. Rule 2.1.01(1)
    gives the court the power to stay or dismiss a proceeding if the proceeding
    appears on its face to be frivolous or vexatious or otherwise an abuse of the
    process of the court.

[18]

Mr. Damallie voiced two concerns in respect of the cross-motion. First, he
    asked whether the Panel would address his concerns relating to the costs orders
    made against him in the administrative dismissals made by the Registrar.
[1]
He wants those costs orders to be waived. Second, Mr. Damallie asked whether
    he would be given a fair chance to express his reasons for believing that the
    Court of Appeal should hear his proposed appeal.

[19]

Amicus
submitted that this court should not entertain the
    cross-motion. He points out that in a letter dated January 12, 2016, counsel
    for Dr. Ping wrote to the Registrar asking for an order from the court pursuant
    to rule 2.1.01(6). He suggests that Dr. Ping should continue to wait and see
    what might transpire as a result of that request.

[20]

I see no reason why the cross-motion should not be entertained by this
    court.  There are very few reported decisions in which this court has stayed or
    dismissed a proceeding under rule 2.1: see e.g.
Hoang v. Mann Engineering
    Ltd.
, 2015 ONCA 838; and
Gallos v. Toronto (City)
, 2014 ONCA 818.  I
    see nothing in those decisions to suggest that the matter cannot be brought to
    the courts attention by means of a motion such as that brought today by Dr.
    Ping.

[21]

Amicus
correctly points out that rule 2.1.01(6) contemplates that
    a party to a proceeding may file with the registrar a written request for an
    order under subrule (1). However, this provision uses the word may,
    indicating that it is permissive.  Thus, I do not see it as precluding a party
    from bringing a motion such as that which Dr. Ping brings today.

[22]

It has been many months since counsel for Dr. Ping sent a written
    request to the Registrar and there have been countless motions since that time,
    many of which, in my view, were moot. The Order had the effect of dismissing
    the underlying motion for leave to appeal to this court. As all of the
    outstanding motions brought by Mr. Damallie relate to the underlying motion, in
    my view, the Order rendered those motions moot.  And yet, the motions continue
    to be brought and heard.  There must be some method by which a responding party
    can enlist the courts aid in coming to grips with the situation. A motion of
    this sort provides such an avenue.

[23]

I turn now to the merits of the cross-motion.

[24]

I have reviewed many of the notices of motion that Mr. Damallie has
    filed in this proceeding in this court.  Apart from the fact that most now
    appear to be moot, for the reasons already given, the notices of motion also appear
    to be simply repeated attempts to re-argue issues that the court has already
    determined. They consist of bald assertions that the decision he seeks to
    challenge is incorrect.  On the face of the notices of motion, they appear to
    be frivolous, vexatious and an abuse of process.

[25]

Further, the Divisional Court has twice considered the proposed appeal
    and found there was no merit to it. In many of the decisions rendered by this
    court on Mr. Damallies motions, the court has also referred to the absence of
    merit to the proposed appeal. See, for example, the reasons for decision dated
    February 17, 2016, of Hourigan J.A (M45889).

[26]

I have considered Mr. Damallies concerns and am satisfied that he will
    be given the opportunity to be fairly heard, including on the matter of the
    costs orders against him, if I refer this proceeding to a Panel.

[27]

Rule 2.1.01(3) sets out a procedure that the court is required to follow
    when it is considering making an order under subrule (1), unless it orders
    otherwise. It provides that the plaintiff or applicant (in this case, Mr.
    Damallie) is to be given the opportunity to file with the court a written
    submission. Thus, Mr. Damallie should have the opportunity to put forward the
    matters that he wishes the Panel to take into consideration, including, if he
    wishes, the matter of the costs orders made against him in this proceeding.

[28]

For the convenience of all, rule 2.1 of the
Rules
is set out in
    full in Schedule A to these reasons.

DISPOSITION

[29]

For these reasons, the cross-motion is granted. An order shall go in
    accordance with the draft order located at tab 27 of the Motion Record for the
    cross-motion, with the exception of para. 4. Mr. Damallies present and other
    motions in this proceeding are stayed pending the Panels determination under rule
    2.1. Costs of todays motion and cross-motion are reserved to the Panel.

E.E. Gillese J.A.




SCHEDULE
    A

[30]

Rule 2.1 of the
Rules of Civil Procedure
provides:

2.1.01

(1)
The court may, on its own
    initiative, stay or dismiss a proceeding if the proceeding appears on its face
    to be frivolous or vexatious or otherwise an abuse of the process of the court.

(2)
The court may make a determination under subrule (1) in a summary manner,
    subject to the procedures set out in this rule.

(3)
Unless the court orders otherwise, an order
    under subrule (1) shall be made on the basis of written submissions, if any, in
    accordance with the following procedures:

1. The court shall direct the registrar to give
    notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the
    court is considering making the order.

2. The plaintiff or applicant may, within 15 days
    after receiving the notice, file with the court a written submission, no more
    than 10 pages in length, responding to the notice.

3. If the plaintiff or applicant does not file a
    written submission that complies with paragraph 2, the court may make the order
    without any further notice to the plaintiff or applicant or to any other party.

4. If the plaintiff or applicant files a written
    submission that complies with paragraph 2, the court may direct the registrar
    to give a copy of the submission to any other party.

5. A party who receives a copy of the plaintiffs
    or applicants submission may, within 10 days after receiving the copy, file
    with the court a written submission, no more than 10 pages in length,
    responding to the plaintiffs or applicants submission, and shall give a copy
    of the responding submission to the plaintiff or applicant and, on the request
    of any other party, to that party.

(4)
A document required under subrule (3) to be
    given to a party shall be mailed in the manner described in subclause 16.01 (4)
    (b) (i), and is deemed to have been received on the fifth day after it is
    mailed.

(5)
The registrar shall serve a copy of the order
    by mail on the plaintiff or applicant as soon as possible after the order is
    made.

(6)
Any party to
    the proceeding may file with the registrar a written request for an order under
    subrule (1).

(7)
If the registrar becomes aware that a
    proceeding could be the subject of an order under subrule (1), the registrar
    shall notify the court.

2.1.02
(1)
The court may, on its own
    initiative, stay or dismiss a motion if the motion appears on its face to be
    frivolous or vexatious or otherwise an abuse of the process of the court. O.
    Reg. 43/14, s. 1.

(2)
Subrules 2.1.01 (2) to (7) apply, with
    necessary modifications, to the making of an order under subrule (1) and, for
    the purpose,

(a) a reference to the proceeding shall be read as
    a reference to the motion; and

(b) a reference to the plaintiff or applicant
    shall be read as a reference to the moving party.

(3)
On making an order under subrule (1), the
    court may also make an order under rule 37.16 prohibiting the moving party from
    making further motions in a proceeding without leave.

2.1.03
(1)
If the court determines that a person who is subject to an order under subsection
    140 (1) of the
Courts of Justice Act
has instituted or continued a
    proceeding without the order having been rescinded or leave granted for the
    proceeding to be instituted or continued, the court shall make an order staying
    or dismissing the proceeding.

(2)
Any party to the proceeding may file with the
    registrar a written request for an order under subrule (1).

(3)
An order under subrule (1) may be made
    without notice, but the registrar shall serve a copy of the order by mail on
    every party to the proceeding for whom an address is provided in the
    originating process as soon as possible after the order is made.





[1]

Mr. Damallies notice of motion before the court today refers
    to the administrative dismissal orders as being dated August 12, 2015, and
    December 4, 2015. Apart from a brief affidavit, he did not file supporting materials
    for the motion. In the materials filed by the responding party in support of
    its cross-motion, I located the Registrars dismissal order dated December 4,
    2015. It dismissed one of Mr. Damallies motions (not the Originating CA
    Motion) for delay with costs fixed at $750. I could not locate an
    administrative dismissal order dated August 12, 2015. However, the Order - which
    dismissed the Originating CA Motion  did dismiss for delay with costs fixed at
    $750.


