



COURT OF APPEAL FOR ONTARIO

CITATION: Wang v. Banton, 2021 ONCA 72

DATE: 20210203

DOCKET: M51875 (C68114)

Roberts, Zarnett and Sossin
    JJ.A.

BETWEEN

Yong Wang

Appellant/Plaintiff

(Appellant/Responding Party)

and

Christopher Banton

Respondent/Defendant

(Respondent/Moving
    Party)

William J. Jesseau, for the moving
    party/respondent

Yong Wang, acting in person

Heard: January 27, 2021 by
    video conference

REASONS FOR
DECISION

[1]

The respondent moves to quash the appellants
    appeal from the order of Justice Shaun OBrien, dated February 12, 2020, on the
    basis that this court does not have jurisdiction to hear this appeal. In the
    alternative, the respondent seeks an order staying or dismissing the
    appellants appeal as frivolous, vexatious, or otherwise an abuse of process.

[2]

The appellant is a plaintiff in an action for
    personal injury and other damages that he claims he sustained as a result of a
    motor vehicle accident involving the respondent, which occurred on March 5,
    2010. Notwithstanding three orders of Case Management Masters of the Superior
    Court of Justice, the appellant has refused to attend a defence medical
    examination. Justice OBrien dismissed the appellants appeal from the September
    25, 2017 order of Master Priti T. Sugunasiri, requiring the appellant to comply
    with the orders of Master Lou Ann Pope, dated August 17, 2016, and Master Barbara
    McAfee, dated December 12, 2016, that he attend a defence medical examination.
    She also ordered that he attend a defence medical examination within 60 days of
    the date of her order, failing which, the respondent could move to dismiss the
    appellants action without notice.

[3]

The appellant had initially commenced his appeal
    from Master Sugunasiris order in the Divisional Court. On December 5, 2019,
    Justice Lise G. Favreau, sitting as a single judge of the Divisional Court,
    determined that as the order appealed from was interlocutory, the Divisional
    Court had no jurisdiction to hear it. She therefore transferred the appeal to
    the Superior Court. The appellant did not seek to appeal from this order.

[4]

Justice OBriens order dismissing the
    appellants appeal from an interlocutory order and ordering his attendance at a
    defence medical examination is itself interlocutory, as it does not decide a
    final issue in the litigation between the parties and deals with a purely
    procedural matter. In consequence, this court has no jurisdiction to hear the
    appeal, and the appeal must be quashed.

[5]

An appeal from an interlocutory order of a judge
    of the Superior Court lies to the Divisional Court with leave as provided in
    the rules of court, in accordance with s. 19(1)(b) of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43. A motion seeking leave to appeal must be
    brought by a notice of motion, which must be served within 15 days of the order:
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, r. 62.02(3). The time
    for the appellant to bring such a motion has long expired.

[6]

The quashing of the appeal in this court is
    without prejudice to the appellant, as he may seek leave to extend the time to
    bring a motion for leave to appeal to the Divisional Court, pursuant to r. 3.02
    of the
Rules of Civil Procedure
.

[7]

The respondent also seeks an order that the
    appellant be prohibited from bringing any further motions in this appeal or in
    any appeal from the same interlocutory order of Justice OBrien without leave,
    pursuant to r. 2.1.02(3) of the
Rules of Civil Procedure
. The
    respondent frankly conceded in oral submissions that the practical effect of
    quashing the appeal is that, if an extension of time is granted by the Divisional
    Court, the appellant will have to seek leave to bring his appeal before the
    Divisional Court in any event.

[8]

Rule 2.1 is meant to provide a streamlined
    procedure for disposing of proceedings and motions that on their face are
    frivolous, vexatious or otherwise an abuse of process
:

Simpson v. The Chartered
    Professional Accountants of Ontario
, 2016 ONCA
    806, 5 C.P.C. (8th) 280, at para. 43
.
However, as this court also
    observed in
Simpson
, at para 43, the rule is not intended or designed
    to supplant the established procedural mechanism of bringing a motion to quash
    an appeal for want of jurisdiction or for want of merit, and the court will
    consider whether a motion to quash is the more appropriate procedural
    vehicle.

[9]

In this case, the respondents successful motion
    to quash the appellants appeal for this courts want of jurisdiction was its
    primary focus and, therefore, the more appropriate procedural vehicle. We
    therefore decline to make an order under r. 2.1 of the
Rules of Civil
    Procedure
.

Disposition

[10]

The respondents motion to quash the appellants
    appeal is granted without prejudice to the appellant seeking an extension of
    time from the Divisional Court, and if granted, leave to appeal to the
    Divisional Court.

[11]

In the circumstances of this case, the respondent
    is entitled to his costs on a partial indemnity basis in the amount of $2,000,
    inclusive of disbursements and applicable taxes.

L.B.
    Roberts J.A.


B. Zarnett J.A.

Sossin
    J.A.


