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Civil Litigation Cases - Frivolous and Vexatious (7). UM Financial Inc. v. Central 1 Credit Union [application of CJA 140 to non-parties]
In UM Financial Inc. v. Central 1 Credit Union (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against the motion court's dismissal of an "action as frivolous, vexatious, and an abuse of process" and where it "made a vexatious litigant order under s. 140 of the Courts of Justice Act".
Here the court considered the application of CJA s.140 ['Vexatious litigant orders'] to non-parties:[4] The appellants misunderstand the important gatekeeping role of s. 140 orders. They do not block access to justice. Instead, they preserve it for the many. Through focused and proportionate terms, these remedial preventative instruments screen out vexatious litigation while permitting plausible claims to proceed. They protect innocent parties from abuse. They safeguard the integrity of the judicial process. They conserve judicial resources to meet the needs of Ontario’s growing population. They prevent the dissipation of those resources to serve the private vendettas of the vexatious few.
[5] In this case, the motion judge properly determined that including the appellants in the s. 140 order would advance these important goals. Section 140 applies to non-parties who initiate or conduct vexatious litigation through a party. The motion judge rejected the appellants’ attempt to evade accountability through non-party status because they did precisely that – Dr. Kalair directed the action from behind the scenes, and Mr. Sairally conducted it vexatiously by swearing an inaccurate affidavit riddled with unfounded assertions. The motion judge was thus entitled to conclude that requiring them to seek leave before pursuing receivership-related claims was necessary to prevent further abusive relitigation.
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E. Standard of review
[31] A vexatious litigant order under s. 140 of the CJA is discretionary and intensely fact specific. The motion judge’s determination is owed deference absent an extricable material legal error, a palpable and overriding error of fact, or a failure to exercise discretion judicially: College of Registered Nurses of Manitoba v. Hancock, 2023 MBCA 70, [2024] 2 W.W.R. 589, at para. 77.
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1. The s. 140 Order
[33] The appellants challenge the lawfulness, propriety, and fairness of the s. 140 order. They submit that s. 140 does not authorize the motion judge to include them in the order because they are non-parties, that their conduct did not meet the statutory thresholds, that the order is disproportionate and overbroad, and that procedural safeguards were not respected.
[34] I disagree. The order is lawful, proper, and procedurally fair. The appellants have not shown any reversible error.
a. Section 140 Authorizes Orders Against Vexatious Non-Parties
[35] First, s. 140 of the CJA authorizes orders against vexatious non-parties.
[36] Section 140 provides:140 (1) If a judge of the Superior Court of Justice or of the Court of Appeal is satisfied that a person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner, the judge may make an order that includes any of the following terms:
1. No further proceeding may be instituted by the person in any court, except by leave of a judge of the Superior Court of Justice.
2. No proceeding previously instituted by the person in any court shall be continued, except by leave of a judge of the Superior Court of Justice.
3. Any other term that is just. [37] These words sweep in vexatious non-parties. Section 140 applies to “a person”, an inclusive term which covers non-parties and parties alike. The words that follow similarly require not party status but personal conduct – instituting or conducting vexatious litigation. Non-parties can perform those very acts by acting through a party: Lenczner Slaght LLP v. GlycoBioSciences Inc., 2025 ONCA 841, at para. 7.
[38] The context confirms that s. 140 applies to vexatious non-parties. The legislature applied s. 140 to “a person” despite restricting many other CJA provisions to parties. This deliberate choice of a broader term must be respected: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 81-82; see CJA, ss. 105(2), 112(7), 116(7), 126(4).
[39] Further, including vexatious non-parties advances s. 140’s gatekeeping purpose – to prevent vexatious litigation from draining the time, energy, and resources of innocent parties and courts alike. Sometimes, directing minds of corporate entities or non-party “invisible litigants” are responsible for that unacceptable conduct. Applying s. 140 to those vexatious non-parties furthers its preventative purpose by giving them “skin in the game”, while exempting them from its reach encourages further abuse by making their abusive actions a “no-risk proposition”: see, by analogy, Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at paras. 45-46, leave to appeal refused, [2020] S.C.C.A. No. 194; see also McLean v. Connell, 2025 ONCA 495, at para. 17; Lenczner Slaght, at para. 7.
[40] Including vexatious non-parties within s. 140’s protective scope also advances the CJA’s broader aims – strengthening public confidence in the administration of justice and ensuring timely access to justice for all Ontarians. The courts of this province are public institutions with a public service mission. Their resources are meant to benefit all. They must be managed wisely to meet the needs of Ontario’s growing population. By diverting those public resources to serve the vendettas of a private few, vexatious litigation harms the many. It fuels delays that erode public confidence and frustrate access to justice. By preventing those harms, applying s. 140 to vexatious non-parties strengthens systemic efficiency, public confidence, and access to justice: McLean, at para. 17; Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at paras. 16-21; Canada v. Olumide, 2017 FCA 42, [2018] 2 F.C.R. 328, at paras. 17-20.
[41] It follows that I would reject the appellants’ interpretive counterarguments. The premise of those submissions – that a s. 140 order bars them from accessing the courts – is incorrect. They can seek the court’s leave to proceed, which is itself a right of access. That screening mechanism properly separates the wheat of plausible claims for which the courthouse doors remain open from the chaff of vexatious litigation which the appellants have no constitutional right to bring: Law Society of Upper Canada v. Chavali (1998), 31 C.P.C. (4th) 221 (Ont. C.A.), at para. 4; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at para. 47; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 157, per Wagner C.J.
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[49] Third, I would reject the appellants’ challenge to the motion judge’s discretionary judgments to include them in the order and set its scope.
[50] Section 140 orders should be purposive, proportionate, and tailored. The court should consider whether an order would further the legislative aims – protecting innocent parties from abusive litigation, preserving the integrity of the judicial process, and safeguarding judicial resources to serve the needs of the many – as well as the effectiveness of alternative remedies. If an order is appropriate, the court should craft focused terms to achieve those goals in the specific context of the case while avoiding overbreadth: Jonsson v. Lymer, 2020 ABCA 167, 448 D.L.R. (4th) 275, at paras. 12, 63; Olumide, at para. 31.
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G. Disposition
[66] The motion judge was confronted with a record showing persistent efforts, through changing combinations of corporate and individual actors, to relitigate matters arising from the 2011 receivership that had already been finally determined. He was entitled to conclude that the present action was another such effort, that the appellants’ vexatious conduct met the statutory thresholds, and that imposing a tailored leave requirement on them under s. 140 was necessary to prevent further abuse. .... . Berentschot v. Ontario [leave to amend pleadings in a R2.1 context]
In Berentschot v. Ontario (Ont CA, 2026) the Ontario Court of Appeal dismisses an appeal, here brought against an "order of the motion judge dismissing her action pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it was frivolous, vexatious, and an abuse of the process of the court".
Here the court considers whether an R2.1 'frivolous and vexatious' motion attracts the same discretion to amend pleadings as arises in the R21 'motions to strike' context:[18] We also reject the appellant’s submission that the motion judge was required to grant leave to amend.
[19] The procedural requirements of r. 2.1.01 were followed. The appellant received notice of the court’s concerns and was afforded an opportunity to make written submissions. She availed herself of that opportunity. The motion judge considered those submissions and concluded that they reiterated the allegations advanced in the claim without addressing its fundamental deficiencies.
[20] Although leave to amend may be appropriate where a viable cause of action could potentially be pleaded, a motion judge is not required to permit amendment where the proceeding is incapable of being transformed into a sustainable claim. It was open to the motion judge to conclude that this was such a case, and that no useful purpose would be served by granting leave to amend in this case. . Berentschot v. Ontario [R2.1 v R20 and R21]
In Berentschot v. Ontario (Ont CA, 2026) the Ontario Court of Appeal dismisses an appeal, here brought against an "order of the motion judge dismissing her action pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it was frivolous, vexatious, and an abuse of the process of the court".
The court contrasted R2.1 'frivolous and vexatious' motions, here with R20 summary judgement and R21 motions to strike:[16] Nor did the motion judge improperly convert the r. 2.1.01 process into a determination under rr. 20 or 21. His conclusion that the action was incapable of success flowed directly from his review of the pleading. He found that the statement of claim failed to set out coherent material facts, failed to identify a legally recognizable cause of action against Ontario, and consisted largely of broad assertions unsupported by particulars. Those conclusions were open to him on the record before the court.
[17] Rule 2.1.01 exists to permit the summary dismissal of proceedings that, on their face, constitute an abuse of process. The motion judge’s analysis remained well within the proper scope of the rule. . Berentschot v. Ontario [Charter]
In Berentschot v. Ontario (Ont CA, 2026) the Ontario Court of Appeal dismisses an appeal, here brought against an "order of the motion judge dismissing her action pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it was frivolous, vexatious, and an abuse of the process of the court".
Here the court considers whether the raising of Charter issues immunizes the case from R2.1 'frivolous and vexatious' motions:[14] The appellant’s first and second grounds of appeal rest on the proposition that the assertion of Charter rights places a proceeding beyond the reach of r. 2.1.01. That proposition is unsupported by the jurisprudence.
[15] The court’s authority to control its own process is not displaced when a litigant makes a constitutional claim: Ahmed v. Ontario (Attorney General), 2021 ONCA 427; Joshi v. Ontario, 2019 ONSC 2444. . Berentschot v. Ontario [SOR]
In Berentschot v. Ontario (Ont CA, 2026) the Ontario Court of Appeal dismisses an appeal, here brought against an "order of the motion judge dismissing her action pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it was frivolous, vexatious, and an abuse of the process of the court".
Here the court the appellate SOR applicable to R2.1 'frivolous and vexatious" issues:[12] A decision under r. 2.1.01 is discretionary and attracts appellate deference. Intervention is warranted only where the motion judge acted on an error in principle, misapprehended the applicable legal framework, or reached a result that is clearly wrong: Fabrikant v. Kelly, 2023 ONCA 579, at para. 3. . Rahman v. Peel Standard Condominium Corporation No. 779
In Rahman v. Peel Standard Condominium Corporation No. 779 (Ont CA, 2026) the Ontario Court of Appeal considered an appeal, this brought against an R21 order "dismissing his claim as an abuse of process and requiring him to seek leave from the court before bringing future proceedings".
The order requiring leave was set aside as the appropriate CJA 140 and RCP R2.2 ['Vexatious Litigant Orders'] procedures were not followed:[6] Having said that, the motion judge also ordered that Mr. Rahman “should seek leave from the court before he can bring any future court proceeding against the defendant or its counsel.” This relief was not sought in Peel’s notice of motion and appears to have been addressed for the first time in oral argument.
[7] While the self-represented appellant did not raise this issue on appeal it was put to the parties in oral argument during the hearing.
[8] This portion of the order must be set aside. While the vexatious litigant order is permitted under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), given the gravity of the relief and the impact on any litigant so designated, there are procedural requirements under r. 2.2 of the Rules that must be followed: McLean v. Connell, 2025 ONCA 495, at paras. 18, 22-23. These requirements include but are not limited to: a) notice (r. 2.2.03(4) if sought by party or r. 2.2.04(1) if on judge’s own initiative); and b) an opportunity to respond (r. 2.2.05). Any order to this effect must also include reference to the right of appeal or review under s. 140(2.3) of the CJA (r. 2.2.07(5)). None of these requirements were met in this case.
[9] Even if a vexatious litigant order would appear warranted on the record before the court, it cannot stand when the appropriate procedure was not followed and a party’s right to a fair hearing on the issue was compromised: Kalaba v. Bylykbashi, 2006 CanLII 3953 (ON CA), 265 D.L.R. (4th) 320, at paras. 50-51. . Yan. v. Canada (Chief Electoral Officer) [is CJA s.140 'vexatious' leave required for appeals?]
In Yan. v. Canada (Chief Electoral Officer) (Ont CA, 2026) the Ontario Court of Appeal considers a motion to abandon an appeal.
The court considered the operation of CJA s.140(3) ['Vexatious litigant orders (a 'VLO') - Application for leave to proceed'] and s.140(4) ['Vexatious litigant orders - Leave to proceed'], here where such order requires the subject party "to seek leave to institute new proceedings in any court or continue any proceeding previously commenced". Here, s.140 leave was granted to commence the underlying application, but the issue was whether a resultant appeal also required s.140 leave (it does):Does Ms. Yan require leave under s. 140 of the CJA to bring the present motion?
[8]] As noted above, Ms. Yan remains subject to a vexatious litigant order (VLO), pending her appeal of that order. Although she was granted leave under s. 140 of the CJA to commence the Application in the Superior Court, the issue is whether that grant of leave also grants her an automatic right to appeal the order dismissing her Application, or whether a fresh application for leave under s. 140 is required in order to commence an appeal and bring this associated motion within the appeal.
[9]] In my view, the latter interpretation is correct. The fact that a person subject to a VLO has been given leave to commence a particular proceeding does not thereby suspend the effect of the VLO. Thus, where a person is subject to a VLO which includes terms preventing them from instituting further proceedings in any court or continuing previously instituted proceedings in any court unless they obtain leave (i.e., the exemplar terms provided in s. 140(1) of the CJA), then that person must obtain leave to bring any further proceedings beyond those for which leave has been granted. A “proceeding” includes an appeal: Varma v. Rozenberg, 1998 CanLII 4334 (Ont. C.A.), at para. 5. This is also plain on the face of the order, which requires leave to institute or continue proceedings. In other words, a grant of leave does not carry forward; it applies only to the specific action, application, or motion for which it is granted. If it were otherwise and a person subject to a VLO had an automatic right to bring motions or appeals whenever they are granted leave to institute or continue a proceeding, it could give rise to the very mischief that the VLO was intended to prevent, namely, subjecting other parties and the court to potentially frivolous and vexatious litigation.
[10]] Therefore, Ms. Yan was required to obtain leave to commence her appeal of the application judge’s order and to bring the present motion for costs. While she failed to do so, in the exceptional circumstances of this case, I am nevertheless prepared to grant her leave to bring this motion myself, for a number of reasons.
[11] First, Ms. Yan has now abandoned her appeal, a step for which no permission is required, and the only remaining live issue is her request for costs. Second, it does not appear that the specific issue of whether a grant of leave under s. 140 extends to appeal proceedings has ever squarely been addressed by this court, so Ms. Yan should not be faulted for failing to seek leave of a Superior Court judge before bringing this motion. Third and most importantly, Ms. Yan’s appeal as well as her motion for costs each had reasonable grounds and were not an abuse of process, given the fact, as noted above, that had the Agency’s current interpretation of s. 65(i) of the Act been in effect at the relevant time, Ms. Yan would have been permitted to run in the April 2025 election. This would have meant that the entire litigation would have been unnecessary.
[12]] I therefore find that it is in the interests of justice that Ms. Yan be permitted to seek costs of her abandoned appeal. I grant her leave to bring the motion for costs pursuant to s. 140(4) of the CJA, exercising my jurisdiction as a Superior Court judge pursuant to s. 13(2) of the CJA and relying on r. 2.03 of the Rules to dispense with the procedural requirements set out in r. 38.13, which must normally be followed when seeking leave. I do so in the exceptional circumstances of this case, where it was previously unclear whether a person subject to a VLO needed a separate grant of leave to file an appeal where leave had been granted to bring the underlying proceeding in the Superior Court.
[13]] In the future, even where leave was granted to initiate or continue a proceeding in another court, leave must be sought from a Superior Court judge under s. 140(3) of the CJA prior to filing a notice of appeal with this court or bringing any associated motions. If leave is not obtained, the Registrar will refuse to accept a notice of appeal or notice of motion, pursuant to r. 2.2.09(5) of the Rules. . Seferovic v. 285 Spadina SPV Inc. [order applies to 'any court']
In Seferovic v. 285 Spadina SPV Inc. (Ont CA, 2026) the Ontario Court of Appeal noted that the R2.1.01 frivolous and vexatious order in this case applied to "any court":[18] As a result of Mr. Hitti’s behaviour, he was declared a vexatious litigant pursuant to s. 140 of the CJA. As a result, Mr. Hitti is prohibited from instituting any further proceedings in any court without leave of a judge of the Superior Court of Justice. Mr. Hitti has ignored that declaration. While he delivered a notice of appeal of the September 29, 2025 order of Cavanagh J., he has once again done so without first seeking leave of the Superior Court, contrary to s. 140(1) of the CJA.
[19] Accordingly, the appeal is frivolous and is yet another abuse of the process of the court and it is dismissed pursuant to rule 2.1.01.
[20] Finally, we note that Mr. Hitti’s continuing abuse of court staff is also unacceptable. No further correspondence from Mr. Hitti will be reviewed by court staff, filed in this court’s record, or receive a response, unless Mr. Hitti provides proof that he has obtained leave from a judge of the Superior Court to commence or continue a proceeding.
[21] To be clear, as a result of the order declaring him a vexatious litigant, he is required to seek leave from a judge of the Superior Court before he commences any step in any proceeding in any court. This applies to proceedings already commenced. . Dong v. Boone
In Dong v. Boone (Ont CA, 2026) the Ontario Court of Appeal considered R2.1 frivolous and vexatious motion and self-presenters:[9] As this court noted in P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98, at para. 21:Although the blunt instrument of r. 2.1.01 should be applied robustly to weed out litigation that is clearly frivolous, vexatious or an abuse of process, the bluntness of the rule and the significant consequences of its application mandate its fair application. Fairness is especially important where the plaintiff is self-represented. [Citations omitted.] . Seferovic v. 285 Spadina SPV Inc.
In Seferovic v. 285 Spadina SPV Inc. (Ont CA, 2026) the Ontario Court of Appeal considers frivolous and vexatious doctrine, including it's 'hallmarks' and the need to obtain leave to bring proceedings after a frivolous and vexatious motion succeeds against the applicant/plaintiff/mover:[8] I pause to note that this motion bears many of the hallmarks of vexatious and frivolous litigation. Most of the relief sought is not available through the appeal process or from an appeal court, let alone from a single judge on a motion. Most of the relief he seeks is grandiose and manifestly frivolous. The grounds for the motion are rife with scandalous conspiratorial claims made against multiple judges of the Superior Court of Justice and other “state actors”, including unsupportable claims of malice, malicious discrimination, defamation and allegations of bad faith. In aid of the motions, he invokes numerous manifestly inapplicable provisions of the Charter of Rights and Freedoms, the Ontario Human Rights Code, the Criminal Code, and international covenants. The motions even contain unspecified claims for habeas corpus relief. This would have been an appropriate case for providing notice of dismissal pursuant to r. 2.1.02. But it is not necessary to pursue this route because Mr. Hitti has brought these motions without leave, contrary to the Vexatious Litigant Order.
[9] Mr. Hitti claims that he does not require leave to bring these motions because Osborne J.’s Vexatious Litigant Order is void, ultra vires, and of no effect based on multiple objections he makes to its correctness. This is not correct. Regardless of whether any of the objections he takes to the order have merit, which I need not address, a vexatious litigant order made under s. 140 of the CJA, “stands until such time as it is reversed or stayed”: Varma v. Rozenberg, 1998 CanLII 4334 (Ont. C.A.), at para. 5.
[10] It is of course settled that a vexatious litigant order is a final order appealable as of right to the Court of Appeal, without requiring leave: CJA, s. 140(2.3); see also Kallaba v. Bylykbashi (2006), 2006 CanLII 3953 (ON CA), 207 O.A.C. 60 (C.A.), at paras. 23-29. However, it is also settled that where the terms of the order are broad enough to include proceedings in the Court of Appeal, as they are in this case, “apart from the argument of the appeal of [the] vexatious litigant order itself, any motions in that [appeal] proceeding require leave of a Superior Court judge”: Son v. Khan, 2018 ONCA 984, at para. 6; College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Yan, 2025 ONCA 380, at para. 3, motion to review dismissed, 2025 ONCA 520; and Ontario (Attorney General) v. Reyes, 2017 ONCA 613.
[11] It follows that Mr. Hitti required leave to bring each of the motions now before me in COA-25-CV-1552. Neither the declaration that he is a vexatious litigant nor Osborne J.’s order pursuant to s. 140(1) of the CJA that he is prohibited from instituting any proceedings in any court except by leave of a judge of the Superior Court of Justice have been reversed or stayed. They are still operative and must be observed. The motions must therefore be dismissed because Mr. Hitti did not obtain leave to bring them, pursuant to the terms of the Vexatious Litigant Order and s. 140(3) of the Courts of Justice Act. . Tong v. Duong
In Tong v. Duong (Ont Div Ct, 2026) the Ontario Divisional Court considered an R2.1.01(3) ['Stay or Dismissal of Proceedings - Court May Stay, Dismiss - On Own Initiative or On Request'] frivolous and vexatious issue, here in a landlord's RTA s.210 appeal:[5] Rule 2.1.01 outlines a process that permits the court to bring fair and just resolutions to a particular category of disputes in a proportionate, timely and affordable way. Under Rule 2.1.01(1) and 2.1.01(3), the Court may on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the court’s process.
[6] The principles to be applied by a judge considering a requisition under Rule 2.1.01 include, but are not limited to, the following:(a) The statement of claim must be read generously. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt if it appears that the action might be viable;
(b) “[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 9;
(c) An action should be dismissed under Rule 2.1 only if there is “a basis in the pleadings to support the resort to the attenuated process” resulting from the use of the rule: Raji, at para. 9;
(d) The procedure under Rule 2.1 should not be used as a substitute for a pleadings motion; and
(e) The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3 [7] At para. 9 in Gao v. Ontario WSIB, 2014 ONSC 6497, 61 C.P.C. (7th) 153, Myers J. referred to the definition in Black’s Law Dictionary of “frivolous”: "Lacking a legal basis or legal merit; not serious; not reasonably purposeful": quoting from Currie v. Halton Regional Police Services Board, (2003) 2003 CanLII 7815 (ON CA), 233 D.L.R. (4th) 657, (ON CA), at para. 14.
[8] In considering whether there is a legal basis or legal merit to an appeal, the focus under r. 2.1 is on the pleadings (or notice of appeal) and any submissions of the parties made pursuant to the rule. The role of the judge is to determine whether on its face, and in light of any submissions, the proceeding is frivolous, vexatious, or an abuse of process. . 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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