In Nithiananthan v. Quash, the administrative judge for the Ontario Divisional Court recently held that a motion for leave to appeal from an order dismissing an earlier motion for leave to appeal (“leave on leave”) was frivolous, vexatious, or an abuse of process. The administrative judge, Justice Nordheimer, confirmed the general rule that there is no right of appeal from an order refusing leave to appeal, except in narrow circumstances where the judge has mistakenly declined jurisdiction. Justice Nordheimer’s decision was subsequently confirmed by Associate Chief Justice Marrocco, after the plaintiff attempted to move before a full panel of the Divisional Court to vary the decision.

Background

Justice Nordheimer, sitting as a Superior Court judge, dismissed the plaintiff’s original motion for leave to appeal to the Divisional Court. The plaintiff subsequently filed with the Divisional Court office a motion for leave to appeal the order dismissing the original motion for leave to appeal.

The Divisional Court office expressed the view that the Divisional Court did not have jurisdiction to entertain this form of motion. The Divisional Court office advised counsel for the plaintiff that he should write to Justice Nordheimer, in his capacity as the administrative judge for the Divisional Court, to seek approval to file the motion for leave to appeal.

Decision on motion for leave to appeal

Justice Nordheimer confirmed the general rule, referred to in a number of cases, that there is no right of appeal from an order refusing leave to appeal. The function of requiring leave to appeal, which is intended as a check on unnecessary or frivolous appeals, would be defeated if appeals could be heard from that decision.

However, Justice Nordheimer also confirmed that the general rule is not absolute. He stated that, if a judge mistakenly declines jurisdiction on a leave motion by acting upon a wrong principle, redress should be had to an appellate court. This is a very narrow exception to the general rule and a party may not avoid the general rule solely by making a bald allegation that jurisdiction has been declined.

In this case, the plaintiff provided no particulars in support of the assertion that jurisdiction was declined. Justice Nordheimer reviewed the reasons in the original motion for leave to appeal and concluded that jurisdiction was not declined; rather, the motion was determined on its merits. Justice Nordheimer therefore held that the fresh motion for leave was frivolous, vexatious, or an abuse of the court’s process and dismissed it pursuant to Rule 2.1.01 of the Rules of Civil Procedure.

Decision on motion to vary

After receiving the decision of Justice Nordheimer, the plaintiff attempted to move before a full panel of the Divisional Court to vary the decision, pursuant to section 21(5) of the Courts of Justice Act. Associate Chief Justice Marrocco agreed with the reasons of Justice Nordheimer and held that the plaintiff’s motion to vary had no chance of success. He thus dismissed it under to Rule 2.1.01.

Associate Chief Justice Marrocco also explained that Justice Nordheimer, although he dismissed the plaintiff’s original motion for leave to appeal, was carrying out his responsibilities as the administrative judge of the Divisional Court when he decided that the Divisional Court lacked the jurisdiction to give the plaintiff the remedy he was seeking. Justice Nordheimer was not sitting on an appeal from his own decision.