DATE: 20050511

DOCKET: C41306

COURT OF APPEAL FOR ONTARIO

MOLDAVER, BORINS and LAFORME JJ.A.

B E T W E E N :

MARY MARTHA COADY Appellant (Plaintiff)

• and -

Thomas Bastedo and BRIAN JOHN BOYLE Respondent (Defendant)

Counsel: M. Martha Coady, In person Keith Egli, for the respondent

Heard: May 5, 2005

On appeal from the order of Justice Robert Smith of the Superior Court of Justice dated December 1, 2004.

BY THE COURT:

[1] The appellant appeals from the order of Smith J. dismissing her motion for various forms of financial and other relief, including a request that a judgment of O’Connell J. dated July 23, 1997, rejecting as frivolous and vexatious her claim for much the same relief, be set aside, and Smith J.’s further order under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C-43, prohibiting her from commencing any further legal action or proceeding against the respondent, including but not limited to any application to vary spousal support, without first obtaining leave of a Superior Court judge.

[2] This appeal arises out of an ongoing family law dispute between the appellant and the respondent dating back to the couple’s separation in 1987. The core of the dispute centres around the appellant’s attempt to set aside Minutes of Settlement entered into by her and the respondent in 1993 and incorporated into a consent judgment granted by Rutherford J. on September 21, 1993 on the basis that at the time the Minutes of Settlement were signed, the respondent fraudulently failed to disclose his interest in a family trust worth millions of dollars and thereafter, he took steps to financially ruin her by having her disbarred by the Law Society of Upper Canada.

[3] The motion judge gave thorough and comprehensive reasons for dismissing the various arguments raised by the appellant in her motion. After addressing and rejecting them, the motion judge considered the history of the proceedings between the appellant and the respondent, and, in addition to rejecting her arguments, he determined that her motion should be dismissed on the ground that it was frivolous, vexatious and an abuse of the court’s process. That finding was integral to his further finding that the appellant should be prohibited from commencing any further legal action or proceedings against the respondent without first obtaining leave of a Superior Court judge.

[4] In refusing to give effect to the appellant’s primary complaint – that O’Connell J.’s order of July 23, 1997 should be set aside on the basis that it had been obtained by fraud – the motion judge carefully considered the “fresh evidence of material fraud” presented by the appellant and found that it failed to satisfy the “cogent” evidence test set forth in International Corona Resources Ltd. v. LAC Minerals Ltd. (1988), 66 O.R. (2d) 610 at 622. Rather, in the opinion of the motion judge, the fresh evidence was largely speculative, inconclusive and unreliable and in some instances, irrelevant. Simply put, it did not rise above the level of suspicion.

[5] Having reviewed the evidence in question, we agree with the motion judge’s assessment of it and we see no basis for interfering with his conclusion that it was of “no probative value” on the issue of material fraud and thus incapable “of invalidating the decision of Justice O’Connell in 1997 or the Minutes of Settlement entered into between the parties and incorporated into the judgment of Justice Rutherford in 1993”.

[6] Having rejected the appellant’s primary argument, the motion judge next considered her request for further financial disclosure which she sought in the context of an allegation that the respondent had failed to fully disclose his assets at the time of the Minutes of Settlement in 1993. In rejecting the appellant’s request, the motion judge found that the issue of inadequate financial disclosure had been raised by the appellant in three prior proceedings before three different judges and in each instance, her claim for additional financial disclosure had been dismissed. It was in this context that he concluded that “on the basis of either res judicata or issue estoppel, [the appellant’s] motion for further financial disclosure from [the respondent] or for alleged non-disclosure of financial assets ought not to proceed again against [the respondent].” As the motion judge explained at para. 55 of his reasons:

Mr. Boyle [the respondent] was a party to the three previous motions all of which have been finally decided and all of which ruled on essentially the same question and found that Mr. Boyle did not fail to disclose any assets, prior to the date of settlement. The parties in all cases were the same, that is, Ms. Coady and Mr. Brian Boyle. The decision of Justice O’Connell [of July 23, 1997] was upheld by the Court of Appeal for Ontario and leave to appeal was refused by the Supreme Court of Canada. As a result, the decision was final.

[7] We see no error in the motion judge’s analysis or his conclusion. In short, we are satisfied that he was correct in refusing to allow the appellant to pursue yet again the issues of inadequate financial disclosure and alleged non-disclosure in respect of the 1993 Minutes of Settlement.

[8] The motion judge then considered the appellant’s request for production of various brokerage and banking records of the respondent which she had subpoenaed from RBC Dominion Securities and the Royal Bank. In refusing her request, the motion judge felt that the documents would not shed any light on the respondent’s financial situation at the time of the Minutes of Settlement in 1993 and that the production being sought amounted essentially to an end-run around his determination that the doctrine of res judicata applied and precluded her from raising again the issue of financial disclosure “for the period before the Minutes of Settlement were signed”.

[9] In so concluding, the motion judge did not foreclose the possibility that the documents in question would be relevant if the appellant were to move, on proper evidence, under s. 17 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, and the Family Law Rules, O. Reg. 114/99, to vary the support provisions agreed to in the Minutes of Settlement and incorporated into Rutherford J.’s order dated September 21, 1993. (In her motion, the appellant included an application under s. 17 to vary the support order but the motion judge found “that she had not presented sufficient evidence to establish the evidentiary foundation” needed to allow the court to assess whether she met the criteria for a variation under Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303. Rather than dismiss her application, as requested by the respondent, the motion judge permitted her to pursue it, albeit on condition that she obtain leave from a Superior Court judge.)

[10] Contrary to the appellant’s submission, we are not persuaded that the motion judge erred in his analysis. On the evidence before him, we are satisfied that he was correct in refusing to order production of the records. We also reject the appellant’s submission that we should view the records as fresh evidence on the appeal.

[11] The motion judge also rejected the appellant’s argument that the respondent should be ordered to pay the appellant the amount of support payments he had paid to the Sheriff pursuant to garnishment proceedings taken by the appellant’s creditors subsequent to Rutherford J.’s spousal support judgment. As we read the reasons of the motion judge, in rejecting the appellant’s request, he effectively held that the appellant should be estopped, as against the respondent, from seeking the relief in question by virtue of her failure to attack the garnishment proceedings when the support payments were being garnisheed. In this regard, the motion judge quite properly observed that in making the payments to the Sheriff, the respondent had no choice but to do so “as directed by the garnishment notices”. We see no error in the motion judge’s analysis.

[12] Finally, the motion judge addressed the respondent’s cross-motion seeking that the appellant’s motion be dismissed as frivolous, vexatious and an abuse of process. In giving effect to the respondent’s request, the motion judge reviewed the tortured history of the proceedings between the appellant and the respondent and he summed up his findings at paras. 70, 89 and 90 as follows:

[70] The characteristics of vexatious litigation mentioned above were cited in Justice O’Connell’s decision. Ms. Coady has made numerous claims that Mr. Boyle had funded litigation and complaints by Mastromonaco and Armitage against her to the law Society of Upper Canada that have caused her financial ruin. These claims have been repeated in this motion. Ms. Coady has also repeated that Mr. Boyle had failed to adequately disclose his financial assets in this motion and she made the same allegations in several previous proceedings that have been brought before the court. In addition, Ms. Coady has persistently launched unsuccessful appeals from these decisions. Justice O’Connell’s decision was appealed to the Court of Appeal for Ontario and upheld and leave to appeal was denied by the Supreme Court of Canada.

[89] Justice O’Connell found that Ms. Coady had engaged in frivolous, vexatious and abusive litigation against Mr. Boyle in her family litigation, and this finding has been upheld by the Court of Appeal for Ontario and leave to appeal has been refused by the Supreme Court of Canada.

[90] Ms. Coady in this proceeding is again seeking to re-litigate many of the issues that have been determined by Justice O’Connell after she has unsuccessfully appealed Justice O’Connell’s decision on those issues. Ms. Coady is pursuing the issue of financial non-disclosure by Mr. Boyle once again. This issue has been dealt with by Justices Lang, Rutherford, and O’Connell. Ms. Coady’s actions in continuing to re-litigate the same issues is evidence that Ms. Coady is engaging in vexatious litigation and such vexatious litigation constitutes an abuse of the court’s process.

[13] In the context of finding that the appellant’s motion was frivolous and vexatious, the motion judge also considered the fact that in proceedings before the Law Society, the appellant had signed an Agreed Statement of Fact in which she conceded that she had engaged in frivolous, vexatious and abusive litigation against the respondent “for the reasons enunciated by Justice O’Connell dated July 23, 1997”. In the end, however, as noted in para. 91 of his reasons, the motion judge observed that even without considering the Agreed Statement of Fact, there was “sufficient evidence, based on the history of litigation of the same issues to find that [the appellant] has engaged in vexatious and abusive litigation against [the respondent].”

[14] We see no reason to go behind that statement and we agree with the motion judge’s analysis and conclusion. Accordingly, we would not admit the fresh evidence concerning the Agreed Statement of Fact (since held to be invalid by a panel of the Law Society), as in our view, that evidence could not reasonably be expected to have affected the motion judge’s decision.

[15] In the circumstances, we agree with the motion judge’s further finding that the appellant should be prohibited from commencing any further legal action or proceeding against the respondent without first obtaining leave of a Superior Court judge. In so concluding, we acknowledge that the motion judge took into account, as one factor, the appellant’s admission of vexatious conduct in her Agreed Statement of Fact before the Law Society. Accepting, for present purposes, that he should not have done so in light of the proposed fresh evidence, we are nonetheless satisfied that the motion judge would have reached the same result had he ignored the Agreed Statement of Fact. In short, we believe that the evidence underlying the s. 140 order is overwhelming and we see no basis for disturbing it. To the extent that the appellant seeks to pursue her s. 17 variation order, we think it appropriate that she should be required to satisfy a Justice of the Superior Court that leave should be granted. In that way, if leave is granted, it will ensure that the proceedings are focused and not merely a repetition of the vexatious and abusive litigation in which the appellant has engaged to date.

[16] Finally, we reject out of hand the ground of appeal in the appellant’s factum but not referred to in oral argument, that the motion judge was biased or that he deprived her of a fair hearing. In our view, the motion judge exhibited great patience with the appellant and he conducted the proceeding in a fair, impartial and judicious manner. Indeed, in our view, his conduct was exemplary.

[17] Turning lastly to the issue of costs, the motion judge provided detailed reasons for concluding that the appellant should bear the costs of the proceeding and he provided equally informative reasons for setting the costs on the scale and in the amount that he did. We see no basis for interfering with his order.

[18] Accordingly, the appeal is dismissed. The parties shall have ten days from the release date of these reasons to submit bills of costs and brief submissions (not to exceed three pages double-spaced) as to the costs of the appeal.

Signed: “M.J. Moldaver J.A.”

“S. Borins J.A.”

“H.S. LaForme J.A.”

RELEASED: “MJM” May 11, 2005