



COURT OF APPEAL FOR ONTARIO

CITATION: Overtveld v. Overtveld , 2021 ONCA
    930

DATE: 20211224

DOCKET: M52945

Tulloch J.A. (Motion Judge)

BETWEEN

Gilles
    Jozias Overtveld and Gi-Las Management

and Maintenance Ltd.

Moving Parties

and

Joy Overtveld
,
Todd Overtveld
,
Gary Katz
,
Charles Rotenberg,
Logan
    Katz LLP
, MBC Law PC, Roger Ramonat, Leonard Burnstein, Francine
    Sarazin, Borden Ladner Gervais LLP, Kathleen McDormand, James Law, David
    Sheriff-Scott, Norton Rose Fulbright LLP, Jamie MacDonald, Cavanaugh LLP,
    Susanne Sviergula,
Blaney McMurtry LLP
,
Teri MacDonald
, Michael Rappaport, Merovitz Potechin
    LLP, Yasmin Vinograd, KMH Lawyers, Miriam Vale Peters, Chuck Merovitz, Maureen
    MacGillvray and Tina Johanson

Responding Parties

G.F. Windsor, for the moving parties

Gavin J. Tighe, for the responding
    parties Blaney McMurtry LLP and Teri MacDonald

Scarlett Trazo, for the responding
    parties Joy Overtveld, Todd Overtveld and Gary Katz

Jessica Warwick, for the responding
    party Logan Katz LLP

Heard: November 23, 2021 by video conference

REASONS
    FOR DECISION

[1]

This is a motion brought by the moving parties,
    Gilles Overtveld and Gi-Las Management and Maintenance Ltd., seeking an order
    extending the time to file a notice of appeal of an endorsement of Labrosse J.
    of the Superior Court of Justice dated September 27, 2021, striking out the
    statement of claim in the within action against all defendants.

The Facts

[2]

The moving party, Giles Overtveld (Mr.
    Overtveld) is 93 years old, and the founder of the co-moving party, Gi-Las
    Management and Maintenance Ltd., a real estate management company with assets
    valued at more than $25 million.

[3]

Mr. Overtveld is the father of two of the responding
    parties: his son, Todd Overtveld, and his daughter, Joy Overtveld. In 2011, Mr.
    Overtveld appointed his children as his powers of attorney. After his marriage
    to a young woman a few years later, the Overtveld children raised concerns
    about Mr. Overtvelds mental state and capacity.

[4]

In recent years, Mr. Overtveld has resisted his
    childrens interference into his personal affairs and has initiated a claim
    against them in the Ottawa Superior Court of Justice. These claims have
    devolved into scandalous innuendos and spurious claims against several people,
    including opposing lawyers and judges tangentially involved in the case. In an
    attempt to circumvent the Superior Court of Justice in Ottawa, Mr. Overtveld initiated
    another action in the Brampton Superior Court of Justice, repeating essentially
    the same allegations as those in the Ottawa action, but also alleging bias
    against a number of Superior Court judges who preside in Ottawa.

[5]

The statement of claim in the within action was
    issued in the Superior Court of Justice at Brampton on May 26, 2021. The within
    action is related to a series of at least seven prior proceedings involving Mr.
    Overtveld and various combinations of the responding parties, all of which
    proceedings were issued or originated in the Superior Court of Justice at
    Ottawa (the Prior Proceedings). At the time of the issuance of the within
    statement of claim, all of the Prior Proceedings were being case managed
    together in Ottawa by the Honourable Justice Labrosse, pursuant to the
    direction of Regional Senior Justice MacLeod.

[6]

As against the respondent lawyers, almost all of
    whom acted or continue to act for parties opposite in litigation to the
    plaintiffs, the statement of claim alleges that they conspired with each other,
    their respective clients, expert witnesses, court staff and sitting judges of
    the Superior Court of Justice to obtain various of the orders and endorsements
    that were made in the Prior Proceedings.

[7]

The sole issue on this motion is whether the moving
    parties should be granted an extension of time to file the notice of appeal
    with respect to their proposed appeal of the September 27, 2021 endorsement of
    Labrosse J. striking out the statement of claim in the within action. For the
    reasons below, I am not satisfied that the moving parties request should be granted.

Test for an Extension of Time

[8]

The test on a motion to extend time is
    well-settled. The overarching principle is whether the justice of the case
    requires that an extension be given:
Enbridge Gas Distribution Inc. v.
    Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. As this court
    stated in
Enbridge
, at para. 15, each case depends on its own
    circumstances, but the court is to take into account all relevant
    considerations, including:

A.

whether the moving party formed a
bona fide
intention to appeal within the relevant time period;

B.

the length of, and explanation for, the delay in
    filing;

C.

any prejudice to the responding parties, caused,
    perpetuated or exacerbated by the delay; and

D.

the merits of the proposed appeal.

[9]

After considering all the circumstances of this
    case, and the relevant claim which was the subject of the September 27, 2021
    decision to strike, I am satisfied that the proposed appeal has no merit and
    that the justice of the case does not require granting an extension.

[10]

The primary allegations in the within action
    against Joy and Todd Overtveld are that they obtained the 2011 powers of
    attorney by improper means and have used the 2011 powers of attorney for
    improper purposes. As pointed out by the responding parties, these are the same
    allegations and claims that have been made on behalf of Mr. Overtveld in a prior
    proceeding. This proceeding remains extant before the Superior Court of Justice
    at Ottawa and has yet to be determined. It is being case managed by Labrosse J.
    along with all of the various prior related proceedings involving Mr.
    Overtveld.

[11]

Furthermore, in addition to naming Joy and Todd
    as defendants, the within action also named as defendants:

A.

all of the lawyers who acted or currently act for the parties
    opposite in litigation to the plaintiffs in the related Prior Proceedings;

B.

the expert witnesses engaged by the parties
    opposite in litigation to the plaintiffs in the related Prior Proceedings;

C.

various court staff of the Superior Court of
    Justice at Ottawa; and

D.

the plaintiffs current and former lawyers in the related
    proceedings.

[12]

After reviewing the pleadings, which are the
    subject of the within motion, I agree with the observations of the responding
    parties that the notice of appeal:

A.

does not identify any alleged errors whatsoever on the part of
    Labrosse J. in the September 27, 2021 endorsement;

B.

does not disclose any discernible legal basis for the appeal;

C.

does not disclose any discernible legal grounds
    for the appeal;

D.

simply repeats the various scandalous
    allegations and conspiracy theories that were made by the plaintiffs in the statement
    of claim in the within action; and

E.

is replete with scandalous allegations of wrongdoing against various
    judges of the Superior Court of Justice.

[13]

I am guided by the comments of my colleague,
    Pardu J.A., in
1250264 Ontario Inc. v. Pet Valu Canada Inc.
, 2015 ONCA
    5, at para. 7:

Here, the delay is short, an explanation has
    been provided for the delay, and there is no prejudice to Pet Valu. However, I
    am unable to find any scintilla suggesting that the appeal has merit. The
    affidavit filed in support of the motion to extend time is silent on the issue
    of the merits. The notice of appeal is so general that I am unable to construct
    any basis for an arguable appeal from the motion judges factual findings. Very
    little would be required to show that there is some basis for an appeal in
    these circumstances, but I can find nothing.

[14]

I find the above comments of Pardu J.A. in the
Pet
    Valu
case applicable to the proposed notice of appeal in the instant case.
    The notice of appeal in the instant case does not identify any alleged error
    made by Labrosse J. in the September 27, 2021 endorsement or provide any way
    for this court to discern or construct any basis for an arguable appeal.

[15]

I agree with the submissions of the responding
    parties that the notice of appeal in the instant case does not assist this
    court in highlighting any meritorious legal basis for the proposed appeal, but
    only repeats the scandalous and vexatious allegations and conspiracy theories contained
    in the statement of claim that the defendants conspired with each other, with
    their clients, with expert witnesses, with the court staff, and with various
    sitting judges of the Superior Court of Justice of the East Region in order to
    obtain various allegedly improper and corrupt orders and endorsements in the
    various Prior Proceedings.

[16]

I also agree that if the moving parties were of
    the view that any of the prior orders or endorsements contained errors or were
    somehow improperly obtained, their recourse would have been to appeal, or to
    seek leave to appeal, any such prior orders and endorsements. They have not
    done so.

[17]

Instead, the moving parties rolled their
    existing claims in the Prior Proceedings forward, naming an expanded group of
    defendants that includes the lawyers for the opposite litigation parties in the
    Prior Proceedings, expert witnesses for the opposite litigation parties in the
    Prior Proceedings, and court staff of the Superior Court of Justice. As
    correctly pointed out by the responding parties, this is one of the hallmarks
    of vexatious litigation.

[18]

In the
Pet Valu
case, Pardu J.A. noted
    that the affidavit filed in support of the motion to extend time was silent on
    the issue of the merits. Similarly, in the instant case, no affidavit has been
    filed at all. This further supports the conclusion that the proposed appeal has
    no merit.

[19]

Additionally, while the responding parties do
    not dispute that the moving parties formed an intention to appeal within the
    applicable time period, they assert that if the extension motion were to be
    granted, they will suffer real prejudice, as their professional reputations as
    lawyers and as officers of the court will continue to be tarnished by the
    scandalous allegations of conspiracy and deceit contained in the notice of
    appeal, as well as in the manner in which the moving parties have chosen to
    conduct the litigation. I agree.

[20]

As pointed out by the responding parties, the
    instant case is similar to that of
Beard Winter LLP v. Shekhdar
, 2016
    ONCA 493, in which the moving party sought an order to extend the time to file
    a motion for leave to appeal a decision of the Divisional Court. Within the
    motion materials, the moving party alleged bias on the part of Doherty J.A., as
    well as other scandalous allegations against the respondent lawyers in that
    case.

[21]

In dismissing the motion, Doherty J.A. observed,
    at para. 19, that the manner in which the moving party had conducted the
    litigation amounted to prejudice against the respondents:

Although the absence of any basis upon which
    leave could be granted is sufficient to determine the motion for an extension,
    I make one further point. An extension of time is a discretionary order. The
    respondent claims, correctly in my view, that it has suffered significant and
    ongoing prejudice because of the manner in which the moving party has conducted
    this litigation. The respondents have faced what they describe as a
    never-ending stream of vexatious motions and appeals. The moving partys
    tactics have no doubt extracted a significant personal and economic toll on
    those targeted by those tactics. This court should be very reluctant to allow
    the moving party to pursue yet a further motion in the never-ending stream of
    motions launched by the moving party. For the reasons set out above, the motion
    for an extension of time is dismissed.

[22]

I have arrived at a similar conclusion as
    Doherty J.A. did in the
Shekhdar
case. In this case, the moving parties
    personal attacks on the character and professional integrity of the lawyers and
    judges who have had prior involvement in this case has caused and continues to
    cause ongoing prejudice. This, in my view, is another factor that militates
    against granting the motion for an extension of time.

[23]

In all the circumstances, I have concluded that
    the motion for an extension of time has no merit, and the justice of the case
    does not warrant granting an extension. I am also of the view that even if
    there were some merit to the proposed appeal, if the requested extension were
    to be granted, the responding parties would continue to suffer significant
    ongoing prejudice.

[24]

Accordingly, the motion for extension of time is
    denied.

M.
    Tulloch J.A.


