



COURT OF APPEAL FOR ONTARIO

CITATION: Wilson v. Fatahi-Ghandehari, 2018 ONCA 728

DATE: 20180904

DOCKET: M49391 (C64926)

Lauwers, Miller and Nordheimer JJ.A.

BETWEEN

Stewart Wilson



Appellant

and

Sara Fatahi-Ghandehari

Respondent / Moving Party

The appellant, in person

Amar Mohammed, for the respondent, moving party

Heard: August 29, 2018

On appeal from the
orders of Justice Price of the Superior Court of Justice, dated January 11, 2018,
and
January 26, 2018 fixing costs, with
reasons reported at
2018 ONSC
669.

REASONS FOR DECISION

[1]

The respondent, Sara Fatahi-Ghandehari, moves to quash the appeal or, in
the alternative, moves for security for costs. The appellant asked for an adjournment
to a date when his previous counsel, Paul Robson, would be available after
serving his suspension from practice.

[2]

At the conclusion of the oral hearing we refused the adjournment request
and quashed the appeal, with reasons to follow. These are the reasons for our
decision.

[3]

The appellant, Stewart Wilson, has served four notices of appeal. The
first, dated November 10, 2017, was in respect of Price J.s decision on
October 10, 2017, with reasons reported at 2017 ONSC 6034, in which he found
the appellant in contempt. According to r. 61.04 of the
Rules of Civil
Procedure
, R.R.O. 1990, Reg. 194, the appellant was obliged to appeal the
October 10, 2017 decision within 30 days. Arguably, had he filed this notice of
appeal, the appeal would have been timely, but it was not filed with the court.

[4]

The second notice of appeal, dated January 26, 2018, appealed the
October 10, 2017 contempt finding. It was out of time and the appellant did not
seek an extension of time to appeal under r. 3.02(1) of the
Rules of Civil
Procedure
and the well-known principles in
Rizzi v. Mavros
,
2007 ONCA 350, 85 O.R. (3d) 401. This
is also true of the third notice, which was the amended notice of appeal dated
January 31, 2018.

[5]

The appellant then served and filed a fourth notice of appeal, which is the
operative notice for our purposes. This is the second amended notice of appeal
dated January 31, 2018, which was filed with a certificate respecting evidence
dated February 7, 2018. This notice was amended from the earlier version to
delete the appeal of the October 10, 2017 contempt finding. No explanation has
been provided for this change. However, the second paragraph of the amended
notice ASKS that the said Orders of Price J., finding the Appellant in
contempt  be set aside. This paragraph refers to the orders of January 11,
2018, and January 26, 2018, neither of which makes a contempt finding.

[6]

The respondents motion to quash the appeal is brought on the basis that
the January 11, 2018 order is interlocutory, because it deals not with the
actual finding of contempt but with the procedural consequences of that finding
and the appellants ongoing unpurged contempt. This court has no jurisdiction
over interlocutory orders, which must be appealed to the Divisional Court under
s. 19(1) of the
Courts of Justice Act
,
R.S.O. 1990, c C.43
. The courts Chief Legal Officer wrote to Mr.
Robson to advise him of this issue, as is the courts practice, but she was
rudely rebuffed.

[7]

We agree
with the
respondent that the operative amended notice of appeal is expressly limited to
the January 11, 2018 order
, which is
interlocutory. This court has no jurisdiction over the January 11, 2018 order.
We therefore quashed the appeal.

[8]

The respondent also sought to quash the costs appeal. In
order to appeal the costs order of January 26, 2018, the appellant is obliged
to seek leave to appeal costs but did not do so.
We quashed the costs appeal on the basis that the appellant did not
seek leave to appeal costs.

[9]

As for the argument that
the appellants real appeal is of the contempt order of October 10, 2017, which
is a final order, we observe again that the appellant is well out of time for
that appeal and has not brought a motion for an extension of time to appeal.
The appellant
has
taken no steps to
settle the terms of the October 10, 2017 contempt order, or to perfect his
appeals of the January 11, 2018 order, and the January 26, 2018 costs order. In
our view the appellants failure to attend to these appeals after such a long
passage of time is procedurally abusive.

[10]

The record amply shows
that the appellant has made a procedural morass of this case. The record of
non-compliance with customary practice and the rules is so egregious that there
is no explanation that the appellant or Mr. Robson could provide that would
excuse it. On this basis we refused the adjournment.

[11]

Given the history of
this proceeding, we would quash the appeal even if the order under appeal were
final, in the exercise of our inherent jurisdiction to control the process of
the court and to prevent its abuse: see
Oelbaum v. Oelbaum
, 2011 ONCA 300, 94 R.F.L. (6th) 251. This
jurisdiction is also recognized in s. 140(5) of the
Courts of
Justice Act
.



[12]

The appeal is quashed. We
fix the costs of this motion at $1,000 payable forthwith by the appellant to
the respondent.



P.
Lauwers J.A.

B.W.
Miller J.A.

I.V.B.
Nordheimer J.A.


