2023 ONSC 5523, 2023 ONSC 5523

CITATION : Mohammad v. Springer Nature, 2023 ONSC 5523 DIVISIONAL COURT FILE NO.: 532/23 DATE: 20231004 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Ahmad Mohammad , Moving Party AND: SPRINGER NATURE, Respondent BEFORE: Matheson J. COUNSEL: Self-represented Moving Party Eric Leinveer , for the Respondent HEARD at Toronto: In Writing. ENDORSEMENT [ 1 ] The moving party has submitted a motion for leave to appeal the decision of Papageorgiou J. dated April 6, 2023 (the “Decision”).

This Court directed the Registrar to issue a notice to the moving party pursuant to r. 2.1.01(3) of the Rules of Civil Procedure as follows: The new motion for leave to appeal challenges an order of Papageorgiou J. dated April 6, 2023. However, that was a decision not to dismiss the moving party’s proceeding under r. 2.1 of the Rules of Civil Procedure. The motion for leave to appeal does not seek to change that outcome. The motion seeks other relief giving rise to an issue about whether any of the relief sought is available on this motion.

The Registrar is directed to issue a notice pursuant to r. 2.1 regarding the new motion for leave to appeal. Because the moving party has already filed a motion record and factum, I will have regard for those materials in addressing the issue of whether this motion for leave to appeal ought to be dismissed under r. 2.1. However, the moving party will also have the opportunity to make further written submissions in accordance with the Registrar’s notice. [ 2 ] Subrule 2.1.01(1) authorizes the court to dismiss a motion as frivolous or vexatious or otherwise an abuse of the process of the court.

However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada , 2015 ONCA 733 , at para. 8 . [ 3 ] This is a clear case. The notice of motion acknowledges that the Decision was to not dismiss the moving party’s claim. That was the only issue addressed in the Decision. The notice of motion for leave to appeal seeks

summary judgment under r. 20, an order disallowing the respondent from bringing a motion under r. 21, and costs regarding the Decision. Papageorgiou J. was not deciding a motion under r. 20 or a request by the moving party for terms regarding r. 21. Nor was a claim for costs in favour of the moving party made or decided. In turn, the relief sought on the motion for leave to appeal is not the proper subject-matter of an appeal from the Decision, let alone a motion for leave to appeal. It is not in the interests of justice to allow this motion to continue: Mohammad v.

McMaster University , 2023 ONCA 598 . [ 4 ] The moving party submits that he intended, from the beginning, to bring a motion for

summary judgment under r. 20 and potentially a r. 19 default judgment motion. He also alleges bad faith delays in the proceedings in the Superior Court and refers to a motion brought by the defendant after the Decision that has not yet been heard. These submissions do not change the above. Other motions that may be brought, or have been brought and not yet decided, may be the subject of appeal rights after they are decided. They are not the proper subject of an appeal of the Decision in this Court.

The motion for leave to appeal will not lead to the relief sought by the moving party. [ 5 ] The motion materials put forward by the moving party do not change the above. [ 6 ] The motion for leave to appeal is dismissed as frivolous, vexatious and an abuse of process. ___________________________

Matheson J. Date: October 4, 2023