Ontario – Dismissal of appeal of order enforcing award as abuse of process – #621

In Ledsham v. Air Canada Pilots Association, 2022 ONSC 1877, a self-represented litigant found himself in the wrong place at the wrong time to appeal an order enforcing an arbitral award. Justice D.L. Corbett of the Ontario Divisional Court summarily dismissed the appeal under rule 2.1.01 of the Ontario Rules of Civil Procedure. That Rule provides that the court may, on its own initiative, stay or dismiss a proceeding if it appears on its face to be frivolous, vexatious or an abuse of the process. Despite observing several badges of vexatiousness, Justice Corbett declined to declare the appellant a vexatious litigant. He nevertheless found the appeal before him was frivolous, vexatious and an abuse of process.

The arbitration – The Appellant was a member of the Air Canada Pilots Association (the “Association”). He was also an elected member of its “Master Elected Council”. The Association charged the Appellant with misdemeanours under its constitution and referred these charges to an arbitration. The arbitrator rendered an award finding that the Appellant had violated several provisions in the Association’s constitution. He granted various remedies, including an order expelling the Appellant from the Association.

The Appellant did not appeal the award or apply to set it aside.

The enforcement application – The Association brought an application to enforce the award pursuant to subsection 50(3) of the Ontario Arbitration Act, 1991 (the “Act”). That provision directs the court to enforce an award unless: (a) the thirty-day period for commencing an appeal or an application to set the award aside has not yet elapsed; (b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity; (c) the award has been set aside or the arbitration is the subject of a declaration of invalidity; or (d) the award is a family arbitration award. The application judge, Justice Ramsay, found none of these circumstances applied. She thus concluded she was required to enforce the award.

The appeal – The appellant appealed to the Divisional Court. Upon reviewing the notice of appeal, Justice Corbett issued a notice pursuant to rule 2.1.01 indicating he was considering dismissing the appeal as frivolous, vexatious and an abuse of process. The notice outlined eight bases for this action, chief among them that the Appellant sought various relief falling outside the Court’s jurisdiction. For example, he sought an order that certain individuals be charged with perjury, and that others, including the arbitrator, be “charged with failing to appear as a witness” before the Superior Court of Justice on the enforcement application. The notice also raised the fact that, pursuant to section 49 of the Act, any appeal from the application judge’s order is to the Court of Appeal, not the Divisional Court.

The Appellant responded to the notice, though Justice Corbett found the response failed to grapple substantively with the concerns he raised. The appellant also took issue with the fact that Justice Corbett characterized him as a “self-represented litigant”.

Justice Corbett found the circumstances appropriate to exercise his discretion under Rule 2.1.01 to summarily dismiss the appeal. He found that the deficiencies in the notice of appeal were fatal, and that leave to amend would serve no end. He observed that the Appellant addressed almost none of the eight concerns raised in the notice. Justice Corbett thus concluded the grounds set out in the notice of appeal were frivolous, vexatious and an abuse of process on their face.

With respect to Justice Corbett’s concern that the Court of Appeal was the proper venue, the Appellant stated he was told the opposite by the Court of Appeal’s staff, which is why he filed in the Divisional Court. Justice Corbett demonstrated some sympathy for the Appellant on this point even though it was insufficient to remedy the jurisdiction issue:

“[20] Court staff provide direction on the basis of information they are given by the litigants.  Where the information provided is incorrect or incomplete, this can lead to incorrect directions.  And even when the information provided is correct and complete, sometimes court staff get it wrong. However this may have come about in this case, the directions from staff in the Court of Appeal were wrong in this instance.  The order of the application judge is a final order within the meaning of ss. 6(1) and 19(1)(a) of the Courts of Justice Act and in any event s.49 of the Arbitration Act expressly confers jurisdiction over this appeal on the Court of Appeal.

[21] This is not a small or technical point.  Jurisdiction cannot be conferred by consent (or by the direction of court staff).  If this case had proceeded to a hearing in this court, weeks or months from now, once the panel discovered the jurisdictional error, it would have had to dismiss the appeal for lack of jurisdiction: everyone is better off having this issue raised and determined at the outset through case management and recourse to R.2.1.

[22] I appreciate that this will be frustrating for the appellant.  As a self-represented litigant, he cannot be faulted for following directions from court staff about jurisdiction. In these circumstances I would ordinarily consider transferring this matter to the Court of Appeal.  However, the other concerns with the appeal weigh against that, as I shall explain.” (Emphasis added)

Despite this apparent error on the court staff’s part, Justice Corbett found the other defects in the notice of appeal sufficiently grave such that he could not permit the proceeding to advance any farther. Among them was the fact that the Appellant did not bring an appeal or application to set aside the award. Having failed to do so, his attempt to resist enforcement was doomed to fail as a matter of law.

In the result, Justice Corbett dismissed the appeal, without costs. In concluding, he signaled that he considered declaring the Appellant a vexatious litigant as his conduct evidenced several hallmarks. However, on balance, he opted not to make that declaration, stating “this one vexatious appeal is not a sufficient basis to impose restrictions in future on the appellant’s access to justice in this court”. Justice Corbett noted, however, that should the Appellant engage in further vexatious behaviour, the Court could consider his conduct in this appeal as an aggravating factor weighing in favour of declaring him a vexatious litigant in the future.

Contributor’s Notes:

First, although the Court raised a number of fatal defects in the Appellant’s notice of appeal, the fact that section 49 of the Act designates the Court of Appeal, and not the Divisional Court, as the appropriate venue would ordinarily be enough to quash the notice of appeal.

Second, and relatedly, Justice Corbett showed sensitivity to the fact that the Appellant was self-represented. In addressing the comment in the Appellant’s response, in which he inquired why Justice Corbett referred to him as a “self-represented litigant”, Justice Corbett explained the judicial policy behind according latitude to those acting on their own behalf without legal training:

“[15] The appellant asks why the court referred to him as a “self-represented litigant” and asked the court to explain the relevance of the fact that he is self-represented.  Self-represented litigants are entitled to assistance and information from the court to facilitate their access to justice.  When reading a pleading from a self-represented litigant, the court makes allowances for the fact that the litigant is not legally trained and may not express his claims to the same standard expected of a lawyer.  Where the substance of the case discloses a potentially meritorious appeal or application, the court should strive to provide directions to facilitate a process that will lead to disposition of the case on the merits.  The court has borne these principles in mind in assessing this appeal.  With respect, the context in which this reference was made in the court’s direction makes this purpose clear in its face.”

Third, under the heading “The Way Forward for the Appellant”, Justice Corbett suggested it would have been open to the Appellant to seek an extension of time in which to file an appeal or application to set aside the award:

[33] It is clear that the appellant thinks the Arbitrator’s decisions are wrong and the resulting orders are unjust.  He has two alternative ways forward.  One is that he can accept that he has lost, and whatever he feels about that result, he accepts that the matter has been decided on a final basis.  The other is that he seeks an extension in the time in which to appeal or seek judicial review of the Arbitrator’s decisions.  The test to obtain an extension is a stringent one: see Wellwood v. Ontario (Provincial Police), 2010 ONCA 386.  But if the appellant can meet the test, he may yet be able to challenge the decisions of the Arbitrator.  If he cannot meet that test, then whether he accepts it or not, the matter is over.”

The Court of Appeal has confirmed that the 30-day deadline to appeal or apply to set aside an award under section 47 of the Act is peremptory, and that an application judge has no jurisdiction to extend it [R & G Draper Farms (Keswick) Ltd. v. 1758691 Ontario Inc., 2014 ONCA 278 (CanLII), at para 17]. Accordingly, it does not seem an extension of time would have been open to the Appellant. This jurisprudence drives home that litigants minded to challenge an award under the Act should file any notice of application to appeal and/or set aside within the 30-day deadline. Although the deadline is firm, there does not appear to be any authority precluding an applicant from amending the notice of application after the 30 days has elapsed. This author has in fact seen that occur in practice.

Fourth, for another recent Case Note regarding enforcement and appeal/set-aside applications, see Case Note: Ontario – Award enforcement application met with merits arguments in leave to appeal/set aside cross-application #539.