



COURT OF APPEAL FOR ONTARIO

CITATION: Aljawhiri v. Pharmacy Examining
    Board of Canada, 2019 ONCA 798

DATE: 20191003

DOCKET: M50814

Nordheimer J.A. (Motion Judge)

BETWEEN

Steve Aljawhiri

Moving Party

and

Pharmacy Examining Board of
    Canada

Responding Party

David Matas, for the moving party (by
    teleconference)

Kate Byers, for the responding party

Heard: October 3, 2019

REASONS FOR DECISION

[1]

Mr. Aljawhiri brings this motion to extend the
    time to appeal the order of Myers J., dated August 23, 2018, sitting as a
    single judge of the Divisional Court, dismissing his application for judicial
    review on the grounds that it was frivolous and vexatious. As a preliminary
    matter, I must consider whether this court has jurisdiction to entertain Mr.
    Aljawhiris proposed appeal. I conclude that it does not. As a result, I see no
    purpose in extending the time to file the proposed appeal and would dismiss the
    motion.

[2]

Mr. Aljawhiri brought an application for
    judicial review through which he sought an order in the nature of
mandamus
requiring the Pharmacy Examining Board of Canada to produce its decision which
    limits the number of qualifying exams each candidate is allowed.

[3]

The Pharmacy Examining Board of Canada brought a
    motion to dismiss the application for judicial review on the basis that it was
    an abuse of process or, alternatively, on the basis of delay. The motion judge
    dismissed the application for judicial review on the basis that it was
    frivolous and vexatious. There is authority for the proposition that a single
    judge of the Divisional Court may quash an application for judicial review:
Keewatin
    v. Ontario (Ministry of Natural Resources)
(2003), 66 O.R. (3d) 370 (Div.
    Ct.).

[4]

The fact that the motion below was decided by a
    single judge of the Divisional Court directly affects the proper route of
    appeal. The
Courts of Justice Act
, R.S.O. 1990, c. C.43, expressly
    provides, at s. 21(5), that a panel of the Divisional Court may set aside or
    vary the decision of a judge who hears and determines a motion.

[5]

Section 6(1)(a) of the
Courts of Justice Act
provides that an appeal lies to this court, with leave, from an order of the
    Divisional Court. I am not satisfied that an order of a single judge of the Divisional
    Court, on an interlocutory motion, constitutes such an order. I note that this
    court expressed the same concern in
Overseas Missionary Fellowship v.
    578369 Ontario Ltd.
(1990), 73 O.R. (2d) 73 (C.A.). The result would be
    different if the single judge had been acting in place of the panel, under s.
    21(2), but that is not the situation here.

[6]

Even if I am incorrect in that conclusion, the
    result is the same. As determined in
Overseas
, the specific review provided
    by s. 21(5) of decisions of single judges of the Divisional Court on motion would
    take precedence over and exclude the general appeal route provided by s.
    6(1)(a). Consequently, any appeal from the order of the motion judge here must
    be taken to a panel of the Divisional Court and not to this court. This
    conclusion is consistent with other decisions of this court including
Alliance
    to Protect Prince Edward County v. Ontario (Environment and Climate Change),
2018 ONCA 576, 17 C.E.L.R. (4th) 167, and
Predie v. Ontario (Ministry of
    the Environment)
, 2006 CanLII 6450 (Ont. C.A.), leave to appeal refused,
    [2006] S.C.C.A. No. 127.

[7]

Given that I am satisfied that this court lacks
    jurisdiction to entertain the proposed appeal, I am equally satisfied that the
    justice of the case does not require an extension of time for bringing that
    appeal. This court can extend time on such terms as are just:
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, r. 3.02(1). The overarching
    principle in exercising this discretion is whether the justice of the case
    requires an extension:
Sennek v. Carleton Condominium Corporation No. 116
,
    2017 ONCA 154, at para. 17. Given that this court lacks jurisdiction, I see no purpose
    in providing more time to file an appeal which is not properly before this
    court. I note that this court has come to similar conclusions where an
    extension of time is sought on an appeal that this court lacks jurisdiction to
    hear: see
Henderson v. Henderson
, 2014 ONCA 571, 324 O.A.C. 138, at
    para. 8;
Sennek
, at para. 18.

[8]

The motion is dismissed. The Pharmacy Examining
    Board of Canada is entitled to its costs fixed in the agreed amount of $3,500
    inclusive of disbursements and HST.

I.V.B. Nordheimer J.A.


