Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230203 DOCKET: COA-22-CV-0409

Huscroft, Miller and Nordheimer JJ.A.

BETWEEN

Garfield Anthony Hibbert Plaintiff (Appellant)

and

National Bank Transit 0371-1 Defendant (Respondent)

Counsel: Garfield Hibbert, acting in person Sophie Arseneault and Gabrielle Cyr, for the respondent

Heard: in writing

On appeal from the order of Justice Markus Koehnen of the Superior Court of Justice dated November 1, 2022.

Reasons for Decision

[1] Mr. Hibbert has filed an appeal from the order of the motion judge that struck out his statement of claim and dismissed this action. Counsel for the respondent sought a dismissal of the appeal pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and filed materials in support of that request. Upon a review of the matter, the Registrar was directed by the court to send notice to the appellant that it was considering the r. 2.1 request. The appellant filed material in response to the r. 2.1 request. The respondents then filed materials in reply to the appellant’s response.

[2] The appellant has complained about the manner in which the respondent dealt with a deposit made into a tax-free savings account (“TFSA”) in the amount of $9,500 in 2012. When the appellant contended that the amount did not appear in his account, he commenced an action in the Small Claims Court in 2018.

[3] The Small Claims Court action was dismissed in August 2019 after a trial. It turned out that the TFSA was a joint account and the amount in issue had been removed by the joint holder of the account. In any event, the appellant’s claim was found to be statute-barred as being outside the two-year limitation period. The appellant did not appeal that outcome.

[4] The appellant then commenced a second action in the Small Claims Court in September 2019 claiming he had found new evidence. That action is apparently still outstanding.

[5] Notwithstanding that fact, the appellant commenced a third action, this time in the Superior Court of Justice in Brampton, that raised the same issues regarding the TFSA claim. That action was dismissed pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on July 18, 2022.

[6] The appellant then commenced a fourth action in the Superior Court of Justice in Toronto, again raising the issues about the TFSA. That action was also dismissed pursuant to r. 2.1. It is that order which is the subject of this appeal.

[7] As noted by the motion judge below, the appellant cannot commence a new action each time he fails in a previous action. If he is dissatisfied with the result of his original claim, he had a right of appeal which he did not exercise regarding the first Small Claims Court action. We make no comment on why the second Small Claims Court action is still outstanding, but both the Brampton and Toronto actions were properly struck as being vexatious. In such circumstances, the appeal of the order in the Toronto action also constitutes a proceeding “that appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court” as defined in r. 2.1. There is nothing in the submissions of the appellant that would undermine that conclusion. Indeed, the appellant’s submissions essentially acknowledge the duplicate nature of the fourth action.

[8] Consequently, the appeal is dismissed. We make no order as to costs.

“Grant Huscroft J.A.”

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A.”