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Civil Litigation Cases - Frivolous and Vexatious (7). M.E. v. Children’s Aid Society of Toronto [considering R2.1-ordered leave to file appeal]
In M.E. v. Children’s Aid Society of Toronto (Ont CA, 2025) the Ontario Court of Appeal dismissed a motion for leave to appeal (leave being required from an R2.1.01 frivolous and vexatious order), here brought against an "order allowing the Children’s Aid Society of Toronto’s (“CAST”) motion to dismiss M.E.’s action for delay".
Here the court considers these R2.1.01 'leave' requirements, here where the order read: "the appellant will not be permitted to file any further materials in this court without leave of a judge of the court.”":[3] The overarching issue on this motion is whether it is in the interests of justice that M.E. be permitted to file a notice of appeal. In Huang v. Braga, 2020 ONCA 645, 75 C.P.C. (8th) 281, Pepall J.A. presented a test for leave in the context of a r. 37.16 order prohibiting a party from filing further documents, which is the substance of the order made here. At para. 16, Pepall J.A. suggested the following helpful factors that I agree should inform the analysis:Consideration should first be given to the strength of the grounds advanced by the moving party. Put differently, are there reasonable grounds of appeal that merit granting the leave requested? Second, the context of the r. 37.16 order itself should be considered. Is the substance of the leave request a continuation of the frivolous and vexatious or abusive process that had generated the r. 37.16 order in the first place? The r. 37.16 order is of course not a bar, but as stated in Evans v. Snieg, 2019 ONSC 7270, at para. 30, “such an order should not be lightly disregarded or blithely treated”. Lastly, the overriding consideration is whether the granting or refusal of leave is in the interests of justice. [4] See also: Hoang v. Mann Engineering Ltd., 2022 ONCA 82, at para. 10, where Tulloch C.J.O. referenced with approval and applied the same factors.
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[9] To be clear, this is not a motion for leave to appeal; it is a motion for leave to file a notice of appeal. This court imposed the leave requirement because M.E. had instigated in these proceedings myriad unsuccessful frivolous and vexatious motions and other steps, including serving and filing voluminous and incoherent documents, and making unfounded and serious allegations against counsel and others. Having regard to the impetus for and purpose of the leave requirement, including the history of these proceedings, it is therefore necessary to examine M.E.’s proposed notice of appeal to determine whether it contains the same deficiencies and is of the same vexatious and frivolous nature that led to the imposition of the leave requirement.
[10] M.E.’s proposed notice of appeal contains the same fatal flaws as her previous pleadings. Her stated grounds of appeal are references to various provisions of the Young Offender’s Act, Youth Criminal Justice Act, the Mental Health Act, “Child and Family Services Act (repealed)” and Child, Youth and Family Services Act, 2017. She also asks to “set aside” the dismissal order, claiming that “the Justice was acting ultra vires of her jurisdiction”, citing Toronto (Police Service) v. L.D., 2018 ONCA 17, 357 C.C.C. (3d) 1, a decision dealing with the proper route of appeal from a youth court judge’s decision. None of these statutory provisions nor the requested order are tenable grounds of appeal in relation to the dismissal order. M.E.’s materials on this motion do not provide any clarification. Her challenge to the dismissal order is unknowable. As such, the proposed appeal is frivolous and vexatious and does not meet the leave requirement. For these reasons, I do not grant M.E. leave to file the proposed notice of appeal.
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