



COURT OF APPEAL FOR ONTARIO

CITATION: Philbert v. Graham, 2022 ONCA 122

DATE: 20220209

DOCKET: M53115 (C69956)



Thorburn
J.A. (Motions Judge)



BETWEEN

Elizabeth
Philbert

Plaintiff (Appellant/Moving Party)

and

Heather
Graham



Defendant (Respondent/Responding Party)

Elizabeth Philbert, acting in person

Heather Graham, acting in person

Heard: February 7, 2022 in writing



ENDORSEMENT

I.

OVERVIEW

[1]

The
appellant and moving party, Elizabeth Philbert, brings a motion in writing for
an extension of time to perfect her appeal.

[2]

The
appellant claims the respondent is abusing her role as Senior Counsel at the
Department of Justice to bring about the dismissal of the appellants claims,
and harassing her.

II.

HISTORY OF PROCEEDINGS

[3]

The
appellant filed claim SC-16-00013293 in Small Claims Court against the
respondent (the Small Claims Court action). The trial was set down to proceed
on September 29, 2017. The appellant failed to attend the hearing and the court
dismissed the claim

as abandoned. The court awarded costs to the
respondent in the amount of $628.56.

[4]

On
July 17, 2017, prior to the dismissal of the Small Claims Court action, the
appellant filed claim CV-17-578993 in the Superior Court of Justice against the
respondent. On December 14, 2017, the court dismissed this claim

pursuant
to r. 2.1.01 of the
Rules of Civil Procedure
,
R.R.O. 1990,
Reg. 194, as frivolous, vexatious, or an abuse of process.

[5]

On May
31, 2018, the Ontario Court of Justice issued a Recognizance to Keep the Peace
against the appellant, ordering the appellant to have no contact with the
respondent or her children, and not to attend anywhere the respondent and her
children are known to reside, work, or attend school.

[6]

The
appellant filed a second Superior Court claim, CV-19-00633675, against the
respondent. On March 15, 2021, the court dismissed this claim pursuant to r. 2.1.01
as frivolous, vexatious, or an abuse of process, stating that the claim
dredg[ed] up the same facts as set out in the first Superior Court claim.

[7]

On May
25, 2021, the appellant filed this third Superior Court claim (this claim).
On September 28, 2021, Steele J. issued her endorsement. She reviewed the
previous claims and found that this claim was another attempt to relitigate
allegations of harassment, slander and defamation [that go] back to 2013. She
noted that those allegations had been dismissed. She noted that, Where a claim
has been dismissed, the same claim based on the same factual underpinning
cannot be readvanced. This is an abuse of the courts processes.

[8]

Steele
J. therefore dismissed this claim as frivolous, vexatious or an abuse of
process pursuant to r. 2.1.01. The court noted that the statement of claim for
this claim contained new allegations regarding damage to the appellants property.
The court dismissed the action without prejudice to the appellant filing in
Small Claims Court her claim regarding alleged property damage.

III.

STEPS TAKEN TO PERFECT
THIS APPEAL

[9]

The
appellant filed this Notice of Appeal on November 1, 2021. She failed to
perfect the appeal by the statutory deadline of December 1, 2021.

[10]

The Registrar of this
court therefore issued a Notice of Intention to Dismiss Appeal for Delay on
December 6, 2021, granting an extension to the appellant to December 28, 2021.
The appellant failed to perfect the appeal by December 28, 2021.

[11]

The appellant sent several
emails to the respondent in late December 2021. Given the history of this
litigation, the appellants emails to the respondent were intercepted and
screened by Security Operations at the Department of Justice before they were
provided in part to the respondent.

[12]

When it became apparent to
the respondent that the appellant might be seeking the respondents consent to
an order pursuant to the Superior Court of Justices September 28, 2021
endorsement in this claim, the respondent wrote to the appellant on December
24, 2021 and proposed language for a draft order. The respondent provided a
draft order on December 31, 2021. On January 7, 2022, the appellant wrote to
the respondent indicating that she accepted the wording in the draft order and
requesting her signature on it. On January 7, 2022, the respondent wrote to the
appellant stating that her signature was not required and providing a signed
approval of the draft order.

[13]

It appears that on January
10, 2022, the appellant wrote to request the respondents consent to extend the
time to perfect the appeal.

[14]

On January 12, the
respondent asked that the appellant send the motion record to her along with a
consent form. There is no record of a reply from the appellant.

IV.

ANALYSIS AND CONCLUSION

[15]

On a motion to extend
time, an extension should be granted if the justice of the case requires it:
Rizzi
v. Mavros
,
2007 ONCA 350, 85 O.R. (3d) 401, at para. 17;
Reid
v. College of Chiropractors of Ontario
,
2016 ONCA 779, at para. 14
. Relevant considerations
include:


i.

whether the moving
party formed an intention to seek leave within the relevant period;


ii.

the length of, and
explanation for the delay;


iii.

prejudice to the
respondent;


iv.

merits of the appeal;
and


v.

whether the justice of
the case requires it.

Rizzi
, at para. 16;
Reid
, at para. 14.

[16]

This court has held that
lack of merit alone can be a sufficient basis on which to deny an extension of
time:
Reid
,
at para. 15;
Friedrich v. Metropolitan Toronto
Condominium Corporation No. 1018
,
2019 ONCA 216
,
at paras.
5-9.

[17]

I agree with Steele J. of the
Superior Court that the appellants conduct is frivolous, vexatious, or an
abuse of proceedings. The appellants conduct in this proceeding fits squarely
within the indicia of vexatious litigation articulated by Pepall J.A. in
Lochner
v. Ontario Civilian Police Commission
, 2020 ONCA 720, at para. 20, citing
Gao
v. Ontario (Workplace Safety and Insurance Board)
,
2014 ONSC 6497,
37 C.L.R. (4th) 7, at paras. 14-15 which include:


i.

bringing multiple
proceedings to try to re-determine issues that have already been decided;


ii.

advancing grounds and
issues raised in prior proceedings;


iii.

persistent pursuit of
unsuccessful appeals;


iv.

bringing proceedings
for a purpose other than the assertion of legitimate rights;


v.

bringing proceedings
where a reasonable person would understand that they would not expect to obtain
the relief sought;


vi.

failing to pay costs
awards; and


vii.

inappropriate
submissions in form and content.

[18]

The appellant appears to
be attempting to re-litigate the same allegations which have been dismissed by
the Superior Court in early proceedings. I see no merit to the appeal.
Moreover, the appellant has failed to offer any reasonable explanation for
failing to meet the statutory deadline for the filing of her appeal.

[19]

For these reasons, the
request to extend the time for perfecting this appeal is denied.

J.A.
Thorburn J.A.


