In a recent Ontario Court of Appeal decision, the court dismissed a plaintiff’s eighth motion for an extension of time to perfect his appeal. The court characterized the plaintiff’s behaviour as an abuse of process.

Notably, one of the plaintiff’s grounds of appeal was that the trial judge had erred in failing to make him a peanut butter and jelly sandwich during the trial.

Plaintiff Files Eight Motions Requesting Extra Time to Perfect Appeal

In 2007, the plaintiff was involved in a motor vehicle accident involving the respondents. The self-represented plaintiff sought damages in court.

Following a 10-day jury trial in 2019, the plaintiff’s claim was dismissed. While the respondents were found to have caused the accident, the plaintiff’s claim was dismissed on the basis that he had failed to prove that the accident caused any damages.

The plaintiff sought to appeal the 2019 decision. However, he had failed to perfect his appeal on time. An appeal is perfected when all the documents necessary for the hearing of the appeal have been served and filed with the court with proof of service within the time periods set out in the relevant legislation.

Beginning in August 2019, the plaintiff had brought eight successive motions for an extension of time to perfect his appeal, leading to the instant decision by the Ontario Court of Appeal.

Court of Appeal Dismissed Motion as an Abuse of Process

The court began by explaining that, in determining whether to grant such an extension, the overarching consideration is whether the justice of the case requires the extension. Additionally, there exist well‑established criteria informing such consideration as follows:

  • a continuing intention to appeal;
  • the length and reason for the delay;
  • the prejudice to the respondents; and
  • the merits of the appeal.

With regard to the first criteria, the court held that while the plaintiff had commenced his appeal in a timely manner, he had not demonstrated a continuing intention to proceed. It found that he had unreasonably refused to take the appropriate steps to perfect the appeal and had engaged in conduct that was clearly frivolous, vexatious, and an abuse of process.

For instance, the plaintiff claimed that he had failed to perfect his appeal because he had not been able to obtain the requisite transcripts of evidence. However, the court found that the plaintiff had simply refused to do so, even though he had been advised numerous times on how to proceed. The court found that he had repeatedly and inappropriately sought to obtain discounts and free transcripts from the court reporter.

In addition, the court noted that while the plaintiff claimed that he did not have the court reporter’s address and did not know where to send payment for the transcripts, the plaintiff had in fact repeatedly harangued and harassed the court reporter. For example, in one email to the plaintiff, dated October 1, 2020, the court reporter accurately summarized the situation:

“You have been harassing me and threatening me for at least a year now. Your original order form to me was for an appeal. I told you that you would need three hard certified copies for your appeal. You didn’t want to order that from me. You went away several times and then another threatening email pops up from you. If you want to proceed with your original order, I am prepared to prepare your hard copies for appeal. I have provided that estimate of cost to you on several occasions. In my mind you are trying to bully me into providing these transcripts to you for free. As I told you before, you are welcome to get someone else to transcribe the matter for you. Otherwise, go back to my original estimate of costs I provided to you and send me the deposit and I will prepare your transcripts for appeal. You must also provide your appeal file number as that has to be inserted on the transcripts.” [Emphasis added by court.]

As such, the court found that the plaintiff had not complied with the court reporter’s reasonable and necessary requests. The court observed: “[The plaintiff] is the author of almost two years’ inexcusable delay in the perfection of his appeal.”

The court then turned to the question of prejudice and found that the excessive delays had caused the respondents prejudice. It opined that, while the plaintiff was entitled to commence an appeal, the respondents were equally entitled to have the appeal heard and disposed of in a timely manner.

Further, with respect to the merits of the plaintiff’s appeal, the court held that the materials filed did not present arguable issues for adjudication. It found that the vast majority of his approximately 61 stated grounds of appeal were frivolous or vexatious, dealing with issues such as whether the trial judge erred in failing to make a peanut butter and jelly sandwich for the plaintiff during the trial. For instance, the court cited a letter received by respondents’ counsel on November 10, 2020 that displayed the plaintiff’s improper use of the appeal process, which read as follows:

“Mr. Wong I’ll make you a deal you have 24 hours to respond to the deal on the table. It shouldn’t be too hard for you. For you clear my name of any criminal conviction and get me back my gun license or pay me £ 150.000 and I’ll walk away from this accident claim. They’ll be no pardons. And if I was a lawyer with a degree you would’ve paid me to walk away I might have one. Maybe we can get back in front of Judge Chalmers again for a new trial. He’s also one of my other favourite judges haven’t seen him in a while. He still owes me a peanut butter and jelly sandwich with the homemade strawberry jam.

If you choose not to we will just have a lot more many motions in court again since it’s my new playground and I’m having fun seeing you and Judge Zarnett [not] to mention Judge Fairburn. She’s like my dynamite in court in action this could go on forever. He’s one of my favourite judges never ending.” [Emphasis added by court.]

The court concluded that there was no basis upon which to grant the plaintiff’s motion, stating:

“To [grant leave or an extension of time for the perfection of the plaintiff’s appeal] would bring the administration of justice into disrepute. His actions constitute an abuse of process. At a certain point, enough is enough. That point has been reached here.”

As a result, the plaintiff’s motion was dismissed.

For Help

Appeals are reviews of decisions made by lower court judges.  Judicial review is an appeal of a decision of an agency, tribunal, board or commission outside of the Court system.  These proceedings are essentially a reconsideration by a higher court of a lower court or decision-maker’s decision. Appeals and judicial review rarely involve a whole new trial, new evidence or re-examination of witnesses, but rather, they are a means of testing the legal soundness of the original decision based on the same information.

At Petker Campbell Postnikoff in Waterloo, we rely on our significant trial experience to effectively represent our clients at all levels of appeal and judicial review including at the Ontario Court of Appeal and the Ontario Divisional Court. Our clients can be confident knowing that their matter is in the hands of skilled advocates with an in-depth understanding of the unique nature of the appeal process and the appellate system. We offer our clients effective, high-quality legal representation throughout the appeal and review process and enjoy a reputation for excellent service.

Contact the experienced appeal lawyers at Petker Campbell Postnikoff for dedicated and proficient representation of your appeal or judicial review. We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call us 519-886-1204 or contact us online for a consultation.