



COURT OF APPEAL FOR ONTARIO

CITATION: Bernard v. Fuhgeh, 2020 ONCA 529

DATE: 20200821

DOCKET: M51686 (M51272)

Paciocco J.A. (Motion Judge)

BETWEEN

Marie Marielle Edith Bernard

Applicant (Responding Party)

and

William
    Ndze Fuhgeh

Respondent (Moving Party)

William Ndze Fuhgeh, acting in person

Marie Marielle Edith Bernard,
    acting in person

Heard: in writing

REASONS FOR DECISION

OVERVIEW

[1]

The moving party, William N. Fuhgeh, filed a
    Notice of Motion for Leave to Appeal in this court that should have been filed
    in the Divisional Court. He now seeks an order pursuant to s. 110 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C-43, transferring the Court of Appeal file
    to that court. The respondent, Edith Bernard, opposes the requested transfer
    order.

[2]

In her
    responding materials, Ms. Bernard requested either an order finding Mr. Fuhgeh to
    be a vexatious litigant, or that his motion be dismissed as frivolous
, vexatious and an abuse of process.

[3]

For the reasons that follow, Mr. Fuhgehs motion
    is dismissed. This disposition renders Ms. Bernards request to declare Mr.
    Fuhgehs motion frivolous, vexatious and an abuse of process moot.

MATERIAL FACTS

[4]

On February 22, 2017, Edith Bernard commenced
    Family Division litigation against William N. Fuhgeh that included custody and
    access issues related to their son, W.B. Mr. Fuhgeh subsequently withdrew from
    the litigation. On December 18, 2017, after an uncontested trial, an order was
    made granting Ms. Bernard sole custody of W.B. and limiting Mr. Fuhgeh to
    supervised access, on conditions.

[5]

Mr. Fuhgeh did not appeal that decision but a
    year later, on December 3, 2018, he brought a motion to set aside that order.

[6]

On May 3, 2019, he filed a simple notice of motion
    seeking temporary unsupervised access to their son. On July 2, 2019, J. Mackinnon
    J. dismissed Mr. Fuhgehs motion for temporary unsupervised access because the
    relief Mr. Fuhgeh was requesting is not available pursuant to a simple notice
    of motion. J. Mackinnon J. ruled that according to the
Family Law Rules
,
    O. Reg 114/99, since there is a final order in force addressing access to W.B.,
    the relief Mr. Fuhgeh sought is only available through a Motion to Change,
    which is an originating process that must be accompanied by evidence of a
    material change in circumstances affecting the best interests of the child.

[7]

The parties ultimately fell into dispute over
    the form and content of the formal order that should issue because of
    disagreement over whether J. Mackinnon J.s order was final or interlocutory.
    On December 9, 2019, J. Mackinnon J. released an endorsement affirming that her
    July 2, 2019 order was final.

[8]

On December 13, 2019, Mr. Fuhgeh filed a notice
    of motion before the Divisional Court asking for directions regarding whether
    J. Mackinnon J.s decision of July 2, 2019 is interlocutory or final. He sought
    leave of the Divisional Court to appeal from both the July 2, 2019 and December
    9, 2019 rulings, if the orders were determined to be interlocutory. In the
    alternative, he asked that his motion file be transferred to the Court of
    Appeal if it was determined that the orders are final.

[9]

In response to that motion Ms. Bernard asked the
    Divisional Court to make an order pursuant to r. 2.1.01 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, dismissing the leave to appeal motion
    to the Divisional Court as frivolous or vexatious or otherwise an abuse of the process
    of the court. On December 18, 2019, Corbett J. directed the Registrar to issue
    a r. 2.1 notice on the basis that:

(1) Mackinnon Js recent endorsement merges
    into the first order and may not be appealed separately; (2) the proposed
    appeal cannot possibly meet the test for leave to appeal, and so is frivolous
    and vexatious and an abuse of process.

[10]

Mr. Fuhgeh was given an opportunity to respond
    to the r. 2.1 notice. In that response he conceded that the orders were final,
    and that J. Mackinnon J.s December 18, 2019 endorsement merged with her July
    2, 2019 decision.

[11]

On January 13, 2020, Myers J. conducted a r. 2.1
    review. He dismissed Mr. Fuhgehs motions for leave to appeal the July 2, 2019
    and December 9, 2019 decisions to the Divisional Court, as well as his motion
    for directions. Myers J. explained:

·

The motion for leave to appeal the July 2, 2019
    order has no merit, having been brought in the wrong court;

·

The motion for leave to appeal the December 9,
    2019 order is frivolous because Mr. Fuhgeh acknowledges that this endorsement
    merged with the order of July 2, 2019. A merged order cannot be the subject of
    a separate appeal; and

·

The materials filed by Mr. Fuhgeh bear the hallmarks
    of vexatious proceedings identified in
Scaduto v. Law Society of Upper
    Canada
, 2015 ONCA 733, and that [it] would be abusive to subject Ms.
    Bernard and the court to a motion to quash the appeal in light of the
    scatter-gun and scandalous allegations made by Mr. Fuhgeh in [the] face of his
    admission that he is in the wrong court.

[12]

Myers J. also dismissed Mr. Fuhgehs motion to
    transfer the matter to this court in light of his finding that the materials
    satisfied the
Scaduto

test.

[13]

The Court of Appeal file that is the subject of
    the current motions does not relate to an appeal of the substantive orders of
    J. Mackinnon J. Instead, it relates to Mr. Fuhgehs motion for leave to appeal Myers
    J.s r. 2.1 order.

ANALYSIS

A.

THE tRANSFER REQUEST

[14]

Section 110(1) of the
Courts of Justice Act
provides: [w]here a proceeding or a step in a proceeding is brought or taken
    before the wrong court, judge or officer, it may be transferred or adjourned to
    the proper court, judge or officer.

[15]

I am authorized under this section to transfer
    Mr. Fuhgehs leave to appeal application file to the Divisional Court for the
    purpose of permitting Mr. Fuhgeh to bring a leave to appeal application before
    that court:
Cheung v. Samra
, 2018 ONCA 923;
Suresh v. R.
(1982),
    42 O.R. (3d) 793 (C.A.). Whether I do so is a matter of discretion:
White
    v. Garrow
, [2011] O.J. No. 6482 (C.A.), at para. 3. In
Dunnington v.
    656956 Ontario Ltd.
(1992), 9 O.R. (3d) 124 (Div. Ct.), Rosenberg J. (as
    he then was) helpfully identified relevant factors for consideration,
    including:

·

The merits of the proposed appeal or application;

·

Whether the respondent will suffer undue
    prejudice as a result of further delay while the appeal or application is
    waiting to be heard; and

·

Whether the appellant moved expeditiously after
    becoming aware that jurisdiction was in dispute.

[16]

On the basis of the relevant factors, I will not
    grant the transfer order requested, as doing so is not in the interests of
    justice.

[17]

I appreciate that Mr. Fuhgeh was prompt in
    bringing this motion when he realized that he was in the wrong court, and that
    he would like an opportunity to challenge Myers J.s determination that his
    Divisional Court materials bore the hallmarks of a vexatious application identified
    in the
Scaduto

decision. However, there is no realistic chance
    that the Divisional Court will grant leave to appeal given that Mr. Fuhgeh now
    concedes that he was in the wrong court and that J. Mackinnon J.s endorsement
    of December 9, 2019 merged with the decision of July 2, 2019. These
    concessions, appropriately taken, constitute an admission that the orders made
    by Myers J. are correct. It is inconceivable that the Divisional Court will
    grant leave.

[18]

There is also the question of prejudice to Ms. Bernard.
    I agree with her submission that Myers J.s conclusion that the motions he was
    addressing satisfied the
Scaduto

test have nothing to do with
    Ms. Bernard. She should not have to incur the expense involved in responding to
    a meritless appeal so that Mr. Fuhgeh can seek to challenge a finding by Myers
    J. that would not affect the correctness of the orders Myers J. ultimately
    made.

[19]

Nor should Ms. Bernard have to bear the delay that
    will occur if the file is transferred while the leave to appeal application is
    pending. I am not persuaded that her recognition that COVID-19 has delayed
    court proceedings constitutes an acknowledgement by her that any delay that may
    occur is without prejudice.

[20]

In
White
, at para. 4, Sharpe J.A. (in
    Chambers) said of the application for transfer before him, I refuse to
    exercise my discretion in favour of the moving parties on the ground that their
    proposed application for leave to appeal has no hope of success. I am of the
    same mind in this case.

[21]

The motion for transfer is dismissed.

B.

thE Vexatious LitigaNt request

[22]

In her responding materials, Ms. Bernard asked
    for [a]n order finding Mr. Fuhgeh a vexatious litigant or, at the very least,
    that his motion be dismissed as frivolous, vexatious and an abuse of process.

[23]

Even if Ms. Bernard was formally seeking a
    vexatious litigant declaration against Mr. Fuhgeh, no such order could be made.
    Such orders are issued pursuant to s. 140 of the
Courts of Justice Act
by Judges of the Superior Court. They must also be sought by way of originating
    applications, not by way of motions:
Lukezic v. Royal Bank of Canada
,
    2012 ONCA 350.

[24]

However, having reviewed her materials, I
    interpret Ms. Bernards request for such declaration not to be a formal, serious
    request for a ruling, but rather a rhetorical flourish. Ms. Bernards materials
    include extensive grounds for her request that Mr. Fuhgehs transfer motion be
    dismissed, under the heading, The Grounds for Dismissing the Motion Are. Her materials
    contain no submissions on why Mr. Fuhgeh should be declared to be a vexatious litigant.
    Since I do not interpret this request as being formally before me, I need issue
    no ruling.

[25]

As for Ms. Bernards request that Mr. Fuhgehs
    transfer motion be dismissed as frivolous, vexatious and an abuse of process,
    that request is now moot, given the decision I have just rendered. On this
    basis alone, the request is dismissed.

COSTS

[26]

Both self-represented parties are seeking costs,
    but no bills of costs have been filed. If either party wishes to pursue costs,
    they must file written argument, not to exceed 2 pages, by September 11, 2020,
    accompanied by a bill of costs confined to the legal costs, disbursements and
    HST being sought, as well as an itemization for the claims being made.

David
    M. Paciocco J.A.


