Background
Hua Sui was convicted of an offence under Ontario’s Provincial Offences Act, and the Ontario Court of Justice dismissed his appeal. Rather than appeal that dismissal, he commenced a new Superior Court proceeding seeking leave to compel the Ontario Court of Justice clerk to file his notice of appeal nunc pro tunc and to halt further enforcement steps.
The Superior Court denied his motion for lack of jurisdiction and declined to provide a formal order. Sui then served a notice of appeal to the Court of Appeal but could not perfect it without an issued and entered order. He moved for additional time to perfect, dispensation from the formal-order requirement, validation of service, and related procedural relief. Ontario opposed the motion, arguing that the proposed appeal lacked merit and was barred by the statutory provision governing refusals of leave involving vexatious litigants.
The Court’s Holding
Thorburn J.A., sitting as motion judge, denied Sui’s motion for an extension of time and the related procedural relief. The proposed appeal had no merit because Sui identified no legal basis on which the Superior Court could have granted the order he sought. Lack of merit alone was sufficient to refuse an extension under the applicable test.
The court also considered two earlier orders declaring Sui a vexatious litigant and requiring permission before he could commence proceedings in the Divisional Court or Superior Court. Because those orders predated Ontario’s newer procedural framework and were not made under s. 140 of the Courts of Justice Act, the motion judge left open whether the statutory prohibition against appealing a refusal of leave technically applied.
Instead of deciding that issue, Thorburn J.A. directed the Registrar to initiate a rule 2.1 review before a panel of the Court of Appeal. That process would allow Sui to make submissions on why the appeal should not be dismissed as frivolous, vexatious, or an abuse of process.
Key Takeaways
- A proposed appeal’s lack of merit can by itself justify denying additional time to perfect it.
- A litigant cannot use a new Superior Court proceeding to obtain relief for which that court has no legal authority.
- Only a panel of the Court of Appeal may dismiss an appeal under rule 2.1 as frivolous, vexatious, or an abuse of process, and the litigant must first receive notice and an opportunity to respond.
Why It Matters
The decision illustrates how Ontario appellate courts address attempts to continue litigation through new proceedings after earlier avenues have failed. It also distinguishes between denying procedural relief because an appeal lacks merit and formally dismissing an appeal under the rule governing frivolous or vexatious proceedings.
The ruling additionally flags uncertainty about applying the statutory appeal bar to vexatious-litigant orders made before Ontario’s newer procedural framework took effect, leaving that technical question unresolved.