2023 ONSC 367, 2023 ONSC 367

CITATION : Ontario College of Teachers v. Bouragba, 2023 ONSC 367 DIVISIONAL COURT FILE NO.: 264/21 DATE: 20230113 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: ONTARIO COLLEGE OF TEACHERS v. AHMED BOURAGBA BEFORE: D.L. Corbett J. Mr Bouragba , self-represented Appellant/Defendant Christine Lonsdale and Emilie Bruneau , for the Respondent/Plaintiff HEARD: June 27, 2022 REASONS FOR DECISION [1] [ 1 ] Mr Bouragba appeals the final order of Master Brott dated March 22, 2021, permitting the respondent Ontario College of Teachers to discontinue its action against Mr Bouragba ( 2021 ONSC 2204 ).

Mr Bouragba argues that the respondent may not discontinue its proceeding in the face of his outstanding motion to dismiss the action pursuant to s.137.1 of the Courts of Justice Act (the “ CJA” ). In my view, Mr Bouragba’s position on the motion below, and this appeal, is unreasonable and without merit. For the reasons that follow, the appeal is dismissed. Jurisdiction and Standard of Review [ 2 ] This is an appeal from the final order of a Master, in the jurisdiction of a single judge of the Divisional Court: CJA , s.19(1) (c).

An appellate standard of review applies: Canada (Minister of Citizenship and Immigration v. Vavilov , 2019 SCC 65 , para. 37 . The first three issues on appeal are questions of law to which a correctness standard of review applies. The fourth issue turns on findings of fact and the Master’s exercise of discretion and is reviewable on a deferential standard: Housen v. Nikolaisen , 2002 SCC 33 , paras. 8 and 10 . Procedural History [ 3 ] The underlying action was commenced in 2016 and is a claim in defamation brought by the respondent against Mr Bouragba (CV-16-562585).

In March 2018, Mr Bouragba moved to have the action dismissed pursuant to s.137.1 of the Courts of Justice Act (the “anti-SLAPP provision”). This motion was dismissed by Pollak J. ( 2018 ONSC 4096 ). [ 4 ] The Court of Appeal reversed the decision of Pollak J. and directed that the anti-SLAPP motion be remitted back to the Superior Court for a fresh hearing before a different judge ( 2019 ONCA 1028 ). Following the Court of Appeal’s decision, the respondent concluded that it did not wish to pursue its claims against Mr Bouragba. It sought his consent to discontinue the proceeding. Mr Bouragba refused to consent.

The respondent then sought to

schedule a motion to obtain leave to discontinue the proceeding. Mr Bouragba sought to

schedule the anti-SLAPP motion. By unreported endorsement dated September 3, 2020, O’Brien J. directed that the respondent’s motion to obtain leave to discontinue be argued first, before a Master, and that the anti-SLAPP motion proceed thereafter before a judge if the action was not discontinued. [ 5 ] Mr Bouragba appealed the decision of O’Brien J. to the Court of Appeal and moved for a stay pending hearing of his appeal. The respondent moved to quash this appeal.

By decision dated January 4, 2021, the Court of Appeal quashed the appeal on the basis that the order of O’Brien J. was interlocutory and jurisdiction for the appeal lay with the Divisional Court, with leave. The Court ordered costs against Mr Bouragba fixed at $1,000. [ 6 ] The respondent’s motion for leave to discontinue was heard by Master Brott on January 12, 2021 (as had been directed by O’Brien J.). Decision Below [ 7 ] Mr Bouragba opposed the motion for leave to discontinue on the following bases: (

a) The motion for leave to discontinue was not within the Master’s jurisdiction; (

b) The motion was precluded by operation of s.137.1(5) of the Courts of Justice Act ; (

c) The motion violated the Court of Appeal’s order directing a fresh hearing of the s.137.1 motion; (

d) The respondent failed to meet the test for leave to discontinue the action. The Master found for the respondent on each of these points. As I explain below, the Master’s decision was correct in respect to points a, b, and c. Her decision respecting point d discloses no error in principle, no palpable and overriding error in fact, and is reasonable as an exercise of discretion. (

a) Jurisdiction of the Master

[ 8 ] Mr Bouragba argued that only judges have jurisdiction over matters relating to the anti-SLAPP provision. The Master did not conclude otherwise. Rather, the Master concluded that the motion before her was brought under R.23.01 of the Rules of Civil Procedure, and that it is well established that a Master has jurisdiction to hear such a motion. In this conclusion, the Master was manifestly correct.

Mr Bouragba argued that appeals under the anti-SLAPP provision, lie to the Court of Appeal, whilst appeals from the Master lie to this court (in respect to a final order) or a single judge of the Superior Court (in respect to an interlocutory order). He argued that this creates an inconsistency highlighting the Master’s lack of jurisdiction over the motion for leave to discontinue. The Master rejected this argument, finding that the “substantive issue” on the motion before her was discontinuance, not the merits of the anti-SLAPP motion.

Appeal from a Master’s decision on the issue of discontinuance would follow the same appeal routes as any other decision of the Master. [ 9 ] The Master was correct in finding that she had jurisdiction. Nothing in the anti-SLAPP provision suggests that all interlocutory proceedings in connection with the action (including in connection with the anti-SLAPP motion) must be heard by a judge. For example, motions may be brought in connection with the anti-SLAPP motion to strike evidence tendered on the motion, conduct of cross-examinations, undertakings and refusals on cross-examinations, and the like.

There is no bar in the anti-SLAPP provision to a Master hearing such interlocutory motions if they are otherwise within the Master’s jurisdiction. Some interlocutory steps are precluded or are expressly in the jurisdiction of a judge [for example, see s.137.1(5), quoted below, and s.137.1(6)], but nowhere is it stated that a Master is precluded generally from hearing motions properly in the jurisdiction of a Master. The merits of the anti-SLAPP motion, itself, is within the sole jurisdiction of a judge.

However, the Master correctly concluded that she was not being asked to decide the merits of the anti-SLAPP motion. [ 10 ] The Master also found that she had been directed to decide the discontinuance motion by O’Brien J. That direction had been affirmed, effectively, by dicta from the Court of Appeal when it stated: On the College’s motion to discontinue its action, Mr. Bouragba is free to argue s. 137.1(5) precludes the College from bringing a motion to discontinue its action after Mr. Bouragba had commenced his motion under s. 137.1 and before the s. 137.1 motion was finally disposed of. If Mr.

Bouragba chooses to advance that argument, it will be for the master hearing the motion to discontinue to decide the merits of that and any other argument advanced by him. ( 2021 ONCA 8 , para. 5 ) The Master was correct in concluding that she was required to hear the discontinuance motion by the order of O’Brien J. However, that order could not confer jurisdiction on the Master if she had none, and I do not take the Court of Appeal’s dicta to decide this jurisdictional point (that court having declined jurisdiction over the appeal).

In any event, the motion before the Master was clearly within her jurisdiction, and it matters not if the decision on the motion could obviate the anti-SLAPP. O’Brien J. was right in concluding the motion was properly heard by a Master, and the dicta in the Court of Appeal was not addressing a reasonably contestable issue. Rather, it was providing common sense direction to Mr Bouragba, a self-represented litigant, as to how he could pursue his argument against granting leave to discontinue.

The Effect of s.137.1(5) of the Courts of Justice Act [ 11 ] Subsection 137.1(5) of the Courts of Justice Act provides as follows: Once a motion under this

section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. [ 12 ] Mr Bouragba argues that the motion for leave to discontinue was a “further step in the proceeding”. It is precluded by s.137.1(5). The provision is an absolute prohibition, it is statutory, and the court has no discretion to dispense with it (see United Soils Management Ltd. v. Katu Mohamed , 2017 ONSC 904 , per Penny J.).

The Master found that the prohibition in s.137.1 applies to any step “to advance the litigation”, but that the prohibition does not apply to a motion seeking “to bring the entire proceeding to an end.” I agree with the Master’s conclusion on this point in the context of a motion for leave to discontinue the entire action, with prejudice. [2] [ 13 ] The purpose of the anti-SLAPP provision is to require that the propriety of the action be decided before the parties take other steps that run up the costs of the litigation for the parties and for the administration of justice: Ontario, Ministry of the Attorney General, Anti-SLAPP Advisory Panel: Report to the Attorney General , Toronto, 2010, para. 42.

The provision does not exist to enable a defendant to obtain a decision on the merits of the anti-SLAPP motion, but rather to eliminate improper lawsuits early, to save everyone, including the administration of justice, unnecessary time and expense. In moving first reading of the legislation that enacted the anti- SLAPP provision, Attorney General Meilleur stated to the Legislature: Catching strategic lawsuits early also has benefits for the courts, by minimizing the amount of valuable public resources wasted on those matters.

This, of course, benefits all court users. (Ontario, Legislative Assembly, Official Report of Debates (Hansard) , 41 st Parl., 1 st Sess., No 41A (December 10, 2014) at 1971) [ 14 ] Mr Bouragba is asking this court to set aside the discontinuance, which has the effect of terminating the action in his favour, so that he may subsequently pursue a motion before a judge for an order terminating the proceedings in his favour, at significantly greater cost to the parties and the administration of justice.

The impracticality of this position is apparent on its face. [ 15 ] Mr Bouragba also relies on the decision of Myers J. in Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555 for the proposition that an action may not be discontinued in the face of a motion the anti-SLAPP provision. I do not read Canadian Thermo this way. Myers J. is clear that he did not order discontinuance, but that he was trying to assist the parties to agree to terms of a consent discontinuance (para. 39).

It is evident that Myers J. was frustrated by the impracticality of the approach taken by the parties to costs of a consent discontinuance, and that the failure to agree to costs meant that there was no consent. Myers J. was not deciding the question of whether he should grant leave to discontinue on a contested leave motion, but rather he was deciding whether he had, in fact, previously granted such an order. [ 16 ] The proper goal of an anti-SLAPP motion is to obtain a dismissal order. Discontinuance of the proceeding, with prejudice,

has the same effect, at considerably less cost and delay. As a matter of simple common sense, it cannot be the case that the legislature intended to preclude discontinuance when it precluded “further steps” pending decision on the anti-SLAPP motion. The Master did not err in concluding that CJA , s.137.1(5) was no bar to the motion for leave to discontinue, on appropriate terms.

Effect of the Court of Appeal Order [ 17 ] Mr Bouragba argues that, in directing that the anti-SLAPP motion be remitted to the Superior Court, for a fresh hearing before a different judge, the Court of Appeal required that the anti-SLAPP motion be heard on the merits. [ 18 ] In the ordinary course, an appellate court may order for a fresh hearing when it grants an appeal. Such an order returns the case to the court below to continue. Such an order does not foreclose the parties from settling the case, or the plaintiff from abandoning its claims.

As an example, remitting a case for a new trial is a more common remedy in criminal than it is in civil cases. Such an order does not preclude the Crown from withdrawing the charges, or for the accused to entering a plea of guilty after plea-bargaining with the Crown. It is no different in a civil case where a matter is remitted for a fresh hearing. [ 19 ] There are situations where an appellate court issues an order in the nature of mandamus , requiring a public official or decision-maker to fulfill his public obligation to attend to a matter.

When these situations arise, the language of the court’s direction is clear. A routine order remitting a case back for a re-hearing is not such a situation. [ 20 ] Mr Bouragba relies on Poffenroth Agri Ltd. v. Brown , 2020 SKCA 121 , to argue that discontinuing the action is an abuse of process. This argument is misconceived. In Poffenroth the court gave directions about which of two courts should hear a jurisdiction motion. Purporting to discontinue the action in which the court had directed that the jurisdiction motion be heard was found to be an abuse of process, to defeat the court’s directions.

This is not analogous to the present case. If, in the face of the court’s directions in Poffenroth , the plaintiff had decided to abandon all its claims against the defendants, with prejudice, the court’s directions respecting the proper forum for a jurisdiction motion would have been no impediment. [ 21 ] The Master made no error in concluding that the order of the Court of Appeal directing a fresh hearing did not preclude granting leave to the plaintiff to discontinue the entire proceeding.

The Master’s Exercise of Discretion [ 22 ] The Master correctly stated the test for granting leave to discontinue: R.23.01(1)(b); 1623242 Ontario Inc. v. Great Lakes Copper Inc. , 2016 ONSC 1002 , para. 47 , Vitucci v. Dimakis , 2019 ONSC 6960 , para. 18 . The Master reasonably concluded that this case is closer to those where the case is not beyond the pleadings stage than those where the case is ready for trial. The Master identified the steps the parties would have to take to ready the case for trial if leave to discontinue was not granted.

The Master concluded, reasonably, that both sides were seeking the same substantive result: dismissal of the proceeding. [ 23 ] The Master identified potential prejudice arising from discontinuance of the proceeding and devised terms to address that potential prejudice. Discontinuance without terms would permit the plaintiff to re-commence proceedings (subject to limitations defences). Dismissal would not.

Therefore, as proposed by the respondent, the Master added a term to the order precluding further litigation by the plaintiff of matters arising out of the events giving rise to the action: the court “further orders that the discontinuance shall be deemed a bar to any subsequent action(

s) brought by the plaintiff arising from the same causes of action asserted in this Action.” The Master noted that Mr Bouragba would not be prejudiced respecting any claim for costs of the action because he was entitled to have this issue addressed under R.23.05(1). [ 24 ] The Master rejected Mr Bouragba’s argument that he was entitled to have the merits of the anti-SLAPP motion determined. The Master’s assessment on this point was reasonable: the purpose of the anti-SLAPP provision is to provide for

summary dismissal of certain claims, not to provide a forum to litigate those claims. If a plaintiff would prefer to abandon the litigation to defending the anti- SLAPP motion, there is no resulting “prejudice” to the defendant. The Master’s Costs Decision [ 25 ] On the motion for leave to discontinue, the respondent, the successful party, did not seek costs. Mr Bouragba sought costs of $40,000. The Master awarded no costs of the motion. [ 26 ] No leave has been sought or granted to appeal the Master’s costs disposition for the motion.

That costs order is reasonable, given that the respondent was entirely successful on the motion. There is no basis to interfere with the Master’s costs award for the motion. [ 27 ] For the costs of the action, the Master provided directions enabling Mr Bouragba to seek costs of the action (including costs associated with the anti-SLAPP motion). There is no basis upon which this court should intervene in respect to those directions. Disposition [ 28 ] The appeal is dismissed. The respondent does not seek appeal costs and so none are awarded. _______________________________ D.L. Corbett J. January 13, 2023