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Appeals - Quashing

A court's jurisdiction to quash an appeal is located in Courts of Justice Act (CJA) 134(3). Given the broad range of grounds to quash, the provision is itself quite broad - covering lack of merit of substantive grounds, abuse of process and more. The standard to quash is high.

The power to quash has received a lot of use recently in Landlord and Tenant Board appeals to the Divisional Court, where the court holds that the appeal is an abuse of process, just filed to obtain the automatic LTB order stay under RCP 63.01(3).

The RCP require any motion in the Court of Appeal (not the Divisional Court) that "finally determines an appeal, other than an order dismissing the appeal on consent" to be heard by a panel of the court "consisting of not fewer than three judges sitting together, and always of an uneven number of judges" [R61.16(2.2)].

. TD Bank v. Virgo

In TD Bank v. Virgo (Div Ct, 2022) the Divisional Court contrasted the new R2.1 frivolous provisions (in the appeal context) with motions to quash an appeal [CJA 134(3)]:
[14] Rule 2.1.01 should be invoked to dismiss an appeal only in the clearest of cases. It is meant to provide a summary mechanism for disposing of proceedings or motions that are on their face frivolous, vexatious, or otherwise an abuse of process. It is not intended or designed to replace the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or want of merit: Simpson v. Chartered Professional Accountants of Ontario, 2016 ONSC 806 at para. 43; Scaduto v. Law Society of Upper Canada, 2015 ONCA 733 at paras. 7-9.
. Arnold v. Lulu Holdings Inc.

In Arnold v. Lulu Holdings Inc. (Div Ct, 2021) the Divisional Court set out the test for quashing an appeal:
[25] There is no dispute about the test on a motion to quash an appeal. Both sides rely on Meglis v. Lackan, 2020 ONSC 5049 (Div. Ct.). As shown in that case, an appeal under the RTA should be quashed in these circumstances, relied upon by the landlord:
(i) when it does not raise a question of law (including questions of procedural fairness) or is otherwise devoid of merit: and,

(ii)when it is an abuse of process (including appeals brought for the sole purpose of obtaining a stay of an eviction).
. Leon v. Dealnet Capital Corporation

In Leon v. Dealnet Capital Corporation (Div Ct, 2021) the Divisional Court stated this on a motion to quash an appeal:
[16] The only issue is whether I should exercise my discretion to quash the appeal because it is completely devoid of merit. In Schmidt v. Toronto-Dominion Bank, 1995 CanLII 3502, 24 O.R. (3d) 1 (C.A.) at paras. 6-7, the Court of Appeal held that the power to quash an appeal “will seldom be exercised”. It pointed out that “It is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal.” The court held that there “is a minimal level of merit needed to defeat a motion to quash.”
. Scetto v. Scetto

In Scetto v. Scetto (Ont CA, 2021) the Court of Appeal sets out basic law regarding quashing an appeal:
[22] Sutherland Law’s position on the motion to quash the Directions Order can be summarized as follows. The threshold for quashing an appeal is high, and to be exercised only in the clearest of cases where the appeal is “manifestly devoid of merit”. It relies on this court’s decision in Schmidt v. Toronto Dominion Bank, 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at paras. 6-8, which cautions against bringing motions to quash on the grounds that the appeal is manifestly devoid of merit:
The court may also quash an appeal where it is manifestly devoid of merit … The very nature of this power, however, dictates that it will seldom be exercised. It is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without first hearing the entire appeal …

In our view, a motion to quash, which, according to the practice of this court, is usually scheduled to be heard on the same day as several other motions, is not the proper forum in which to engage in a de facto hearing of the full appeal. Furthermore, given the minimal level of merit needed to defeat a motion to quash based on the alleged absence of any merit in the appeal, it is inevitable that many such motions will fail. Where they fail, there must be a second full inquiry into the merits of the appeal at some later point in time before a different panel. The added expense and loss of valuable court time occasioned by this duplication of effort hurts the litigants involved in the particular case, and others whose cases are in the appellate process.

… Respondents should not be encouraged to jump the queue of perfected appeals awaiting hearing by seeking a full hearing of the appeal under the guise of a motion to quash.
. Bon v. Hutchens

In Bon v. Hutchens (Div Ct, 2021) the Divisional Court held that an RTA appeal should be dismissed as an abuse of process when it is primarily filed for the purpose of getting the automatic stay:
[18] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.

[19] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a Tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye, at para. 27.

....

[22] Whether an appeal has merit appears not to be relevant to the issue of whether the appeal is an abuse of process: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 (Div. Ct.), at para. 25. ...
. Lara v. Veluz

In Lara v. Veluz (Div Ct, 2021) the Divisional Court considered the test for quashing an appeal under CJA 134(3):
[13] Section 134 (3) of the Courts of Justice Act, R.S.O. 1990, Chap. C. 43, provides that in the “proper case” may quash an appeal. In Christo v. Woon, 2017 ONSC 5127(SCDC) at paras. 21-22, this court summarized the three grounds upon which the court will quash an appeal:
1. the appeal does not raise a question of law;

2. the appeal is manifestly devoid of merit; and

3. the appeal is an abuse of the court’s process.
. Porringa v. Everitt and Lundy

In Porringa v. Everitt and Lundy (Div Ct, 2021) the Divisional Court considered quashed an appeal under CJA 134(3):
[20] In Schmidt v. Toronto-Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at p. 3, the court stated that that the power to quash an appeal is to be exercised sparingly because it “is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without first hearing the entire appeal”.
. Setia v. Appleby College

In Setia v. Appleby College (Ont CA, 2013) the Court of Appeal set out the standard for quashing an appeal:
[40] Relying on this court’s decision in Schmidt v. Toronto-Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1, the Society argues that the threshold for the granting of an order quashing an appeal is high and that the demonstration of even a minimal level of merit to an appeal will defeat a motion to quash where it is alleged that the proposed appeal lacks merit. I agree.
. AMT Finance Inc. v. LaFontaine

In AMT Finance Inc. v. LaFontaine (Ont CA, 2020) the Court of Appeal holds that a R25.11 motion [to strike pleadings as frivolous and vexatious] is not appropriate to strike paragraphs of the Notice of Appeal. The proper procedure is a motion to quash:
[2] The respondent seeks an order under Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, striking a number of paragraphs of the Notice of Appeal as vexatious and an abuse of process of the court, as they purport to appeal orders that were either not appealable to this court, or where no timely appeal was taken, or where an appeal was taken and dismissed for failure to perfect.

[3] Rule 25.11 allows the court to strike a “pleading or other document” that is “scandalous, frivolous or vexatious”, or “an abuse of the process of the court.” While it could be argued that a notice of appeal falls within the scope of “other document”, in my view, this motion is, in effect, a motion to quash part of the appeal, and therefore properly lies to a panel of this court in accordance with ss. 7(2)-(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43; Rule 61.16(2.2) of the Rules of Civil Procedure; and the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, at s. 7.2.1.

[4] What the respondent is seeking to do is to have portions of the Notice of Appeal quashed as vexatious or an abuse of process on the basis that they seek to appeal out of time orders that were not appealed, were appealed but dismissed, or orders that were not appealable to this court.

[5] In Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, this court considered the difference between Rule 2.1 and motions to quash, stating at para. 43:
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. However, 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. [Emphasis added.]
[6] Similarly, this motion under Rule 25.11 is, in effect, a motion to quash part of the appeal. Where that is the effect of the order being sought, the motion should be brought before a panel of this court, using the procedure prescribed in s. 7.2 of the Practice Direction. This motion is therefore dismissed with costs fixed at $1000 inclusive of disbursements and HST.
. Dickie v. Dickie

In Dickie v. Dickie (SCC, 2007) the Supreme Court of Canada had the discretion to refuse to hear an appeal on grounds that the appellant was in contempt of the order appealed from:
[4] Laskin J.A., in dissent, was of the view that the court had a discretion to refuse to entertain Dr. Dickie’s appeal and that, based on the record showing continuing disobedience with court orders, it should have exercised that discretion. Hence, he would have adjourned Dr. Dickie’s appeal until Dr. Dickie had taken steps to comply with the court orders below. However, assuming the court was correct in entertaining the appeal, Laskin J.A. would have dismissed Dr. Dickie’s appeal, finding that neither order for security amounts to an order for the “payment of money” within the meaning of rule 60.11, and that Dr. Dickie was afforded procedural fairness.

[5] Mrs. Dickie appeals to this Court.

[6] In our view, the Court of Appeal had the authority to refuse to entertain Dr. Dickie’s appeal and, had it exercised its discretion as proposed by Laskin J.A. and for the reasons he gave, we would have found no basis to interfere with the result. However, the Court of Appeal having otherwise exercised its discretion and heard the appeal, this preliminary question is now moot.
. Meglis v. Lackan

In Meglis v. Lackan (Div Ct, 2020) the Divisional Court considered the test for quashing on appeal, here from the Landlord and Tenant Board:
[22] Section 134(3) of the Courts of Justice Act, R.S.O 1990, c. C.43, gives a court to which an appeal is brought the power to quash the appeal. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is to be exercised sparingly because it "is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal".

[23] Pursuant to section 210(1) of the Residential Tenancies Act, 2006, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: see, for example, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 33-34; and Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8.
. Kang v. Grant

In Kang v. Grant (Div Ct, 2020) the Divisional Court quashed an appeal under CJA 134(3):
[19] In Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8, the court confirmed that a court that hears an appeal may quash the appeal pursuant to s. 134(3) of the Court of Justice Act, if the appeal is manifestly devoid of merit. “An appeal of an order of the Board that does not disclose a question of law may be quashed on the basis that it is manifestly devoid of merit”: see Mahdieh, at para. 8.

[20] In Schmidt v. Toronto Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6, the court stated that that the power to quash an appeal is to be exercised sparingly because it “is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without first hearing the entire appeal”.

[21] Section 210(1) of the RTA notes that an appeal from a decision of the Board is to be determined by the Divisional Court, but only on a question of law. The bar to quash an appeal is generally high on the basis that it is devoid of merit. However, it is appropriate to quash an appeal from an Order of the Board where the appeal does not raise a question of law: see Meglis v. Lackan, 2020 ONSC 5049 (Div. Ct.), at para. 23. In addition, this court has held that launching an appeal for the only purpose of obtaining a stay of the eviction in landlord and tenant proceedings is an abuse of process: see Meglis, at para. 31.


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