Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of the Divisional Court was lacking because the appellant sought to appeal a costs order without first obtaining leave under s. 133 of the Courts of Justice Act.
• Rule 2.1.01 of the Rules of Civil Procedure was engaged to summarily dismiss the proceeding as frivolous, vexatious, or an abuse of process where the Court clearly had no jurisdiction over the appeal as framed.
• The appellant attempted, within an appeal from costs, to indirectly challenge an earlier peremptory timetable order of Justice Koehnen, even though that earlier order was not properly before the Divisional Court.
• The underlying finding that the application was “deemed abandoned” flowed from the appellant’s non-compliance with peremptory timetable terms, which the Associate Justice relied on when awarding costs.
• The appellant’s extensive submissions focused on criticizing the earlier substantive order and various procedural doctrines rather than addressing the central jurisdictional issue of leave to appeal costs.
• Ultimately, the Divisional Court dismissed the proceeding under r. 2.1 but expressly preserved the appellant’s right, within a short window, to commence a proper motion for leave to appeal the costs decision as a new proceeding.

Facts of the case

Victor Opara commenced an application in the Superior Court of Justice in Ontario. In that underlying proceeding, Justice Koehnen issued a timetable order that was expressly peremptory. The order stated that the dates in the timetable were “absolutely peremptory to both parties” and, specifically for Mr. Opara, that if he failed to complete any task required of him, he would lose the right to argue the application and the application would be deemed abandoned. Mr. Opara did not comply with that peremptory timetable. Relying on the express language of Justice Koehnen’s order, Associate Justice D. Michael Brown later treated the application as having been deemed abandoned and went on to address only the issue of costs between the parties arising from that procedural outcome. The only formal order made by Associate Justice Brown was therefore an order for costs, not an order dismissing the underlying application on the merits. The reasons for decision explained why the application was treated as abandoned and why costs were awarded, but they did not constitute an additional, appealable order beyond the costs disposition.

Procedural history and prior orders

The prior order of Justice Koehnen is central to the appellant’s complaints. In that order, the peremptory timetable set out specific steps and deadlines, warning that non-compliance by Mr. Opara would result in the application being deemed abandoned and his loss of the right to argue it. When those terms were not met, the peremptory consequence—deemed abandonment—was triggered. Associate Justice Brown, in his later decision, quoted Justice Koehnen’s order and proceeded on the basis that the application was deemed abandoned because of Mr. Opara’s non-compliance. On that footing, the Associate Justice’s only operative disposition was to award costs. Dissatisfied, Mr. Opara turned to the Divisional Court, filing two notices of appeal in an effort to challenge what he perceived as the dismissal of his application and the costs order. Both notices, however, related to the same order by Associate Justice Brown.

The appeal to the Divisional Court and the rule 2.1 notice

When the two notices of appeal reached the Divisional Court, the Court identified at the outset that the decision under challenge was a costs decision of an Associate Justice. Under s. 133 of the Courts of Justice Act, appeals of costs orders to the Divisional Court generally require leave to appeal; there is no automatic right of appeal from costs. The Court therefore indicated to the parties that it was considering making an order under r. 2.1.01 of the Rules of Civil Procedure to stay or dismiss the proceeding as frivolous, vexatious, or an abuse of process, and directed that brief submissions be provided addressing why leave to appeal would not be required. Instead of short, focused submissions on the need for leave, both parties submitted lengthy materials. Mr. Opara’s materials in particular focused heavily on the earlier decision of Justice Koehnen and the proposition that that decision had been misinterpreted or misapplied by the Associate Justice. He did not address in a meaningful way the jurisdictional requirement for leave to appeal the costs order, nor did he request that his proceeding be converted into a motion for leave to appeal. To complicate matters, Mr. Opara was self-represented but identified himself as a lawyer in communications with the Court, and nonetheless insisted on relying on his self-represented status.

Issues raised by the appellant’s submissions

In responding to the Court’s rule 2.1 notice, Mr. Opara advanced extensive submissions about various procedural doctrines. He discussed when an order should or should not be peremptory, under what circumstances a party should be excused from failing to comply with a timetable order, principles surrounding dismissal for delay, and broader fairness concerns. These arguments were all directed at attacking or revisiting Justice Koehnen’s timetable order and its consequences. He also made brief submissions on costs, arguing that the Associate Justice erred in the way he exercised his discretion in awarding costs. In his proposed relief, Mr. Opara asked the Divisional Court to allow the appeal, set aside “the dismissal and costs,” reinstate the application, deem his April 22, 2024 filing to have been timely, and proceed with the underlying application that had been addressed by Justice Koehnen. In substance, therefore, he sought to overturn both the costs order of Associate Justice Brown and, indirectly, the earlier peremptory timetable order of Justice Koehnen by way of an appeal framed only against the costs decision. None of this squarely addressed the statutory requirement that leave to appeal a costs order be obtained before the Divisional Court could exercise jurisdiction.

Application of rule 2.1 and the Court’s jurisdictional analysis

Rule 2.1.01(1) permits the Court to summarily stay or dismiss a proceeding that is frivolous, vexatious, or otherwise an abuse of the court’s process. Appellate courts, including the Ontario Court of Appeal, have cautioned that this rule is reserved for the “clearest of cases” because of its summary and exceptional nature. In this case, Justice Matheson concluded that the matter met that high threshold. The core problem was jurisdictional: the Divisional Court simply had no jurisdiction to entertain the appeal as constituted because leave to appeal the costs order had not been sought or obtained. The notices of appeal were directed at the Associate Justice’s costs decision; there is no right of appeal from reasons for decision; and the appellant was effectively trying to use that appeal to challenge an earlier order of Justice Koehnen that was not properly before the Court. As a result, the proceeding was characterized as an abuse of process suitable for disposition under r. 2.1.

Outcome, rights preserved, and monetary consequences

Justice Matheson therefore dismissed the Divisional Court proceeding under r. 2.1. At the same time, the Court made clear that this dismissal did not forever foreclose the appellant’s ability to challenge the costs order. The reasons expressly confirmed that Mr. Opara had the right to seek leave to appeal the decision of Associate Justice Brown and that, within that leave motion, he could raise the very grounds he was now advancing. The Court granted him a short window—two weeks from the date of the endorsement—to serve and file a notice of motion for leave to appeal the costs decision, provided that any such motion be brought as a new filing under the Consolidated Practice Direction for Divisional Court Proceedings. The Court also held that the earlier decision of Justice Koehnen was not properly challenged in this proceeding and declined to express any view on the merits of any potential challenge to that order or to the costs decision. As a result, the successful party in this Divisional Court proceeding is the respondent, The Law Office of Joy Nwawe, whose position that the appeal could not properly proceed was effectively upheld. The endorsement does not quantify any new costs award in the Divisional Court, and the amount of the underlying costs order made by Associate Justice Brown is not stated in this decision, so the total monetary award or costs actually ordered in favour of the successful party cannot be determined from this judgment.