Regis Jogendra v. Kenneth L. Campbell, 2011 ONSC 272

CITATION: Jogendra v Kenneth L. Campbell, 2011 ONSC 272

SMALL CLAIMS COURT FILE NO.: SC-08-67422

DIVISIONAL COURT FILE NO.: 133/10

DATE: 20110117

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

REGIS JOGENDRA

Appellant

(Plaintiff)

– and –

KENNETH L. CAMPBELL

Respondent

(Defendant)

Self-Represented

Judie Im, for the Respondent

HEARD at Toronto: January 10, 2011

REASONS FOR JUDGMENT

Ferrier J.:

[1] This is an appeal of two decisions of Deputy Judges in the Toronto Small Claims Court:

(i) The decision of Deputy Judge Lévesque dated January 14, 2009, dismissing the appellant’s action against the respondent Kenneth Campbell, and

(ii) the decision of Deputy Judge Winer, dated February 23, 2010, dismissing the appellant’s motion to set aside the above decision of Deputy Judge Lévesque.

Background

[2] The appellant, then a Justice of the Peace, was charged with 10 counts of sexual assault against 10 different women that had sought his services as a Justice of the Peace, and one count of sexual assault against a 17-year-old girl which allegedly occurred on the Toronto Transit Commission subway.

[3] The appellant claims that the respondent, a government employee, is personally liable to him for refusing his demands to the Ministry of the Attorney General for reimbursement of his legal expenses in defending the sexual assault charges. He claims entitlement to reimbursement on the basis that he was acting in the course of his employment so is protected by "judicial immunity".

[4] The claim against the respondent is framed in negligence, professional malpractice, failure to pay an unpaid account/invoice, abuse of authority, and discrimination under the Canadian Charter of Rights and Freedoms. The claim also contains numerous other inflammatory complaints and allegations that are not recognized causes of action including but not limited to, that the respondent acted in bad faith, unlawfully, arbitrarily, capriciously, with bias, and with malice, and that he deliberately refused to follow the law, and failed to follow direction from the Associate Chief Justice of the Ontario Court of Justice.

[5] Deputy Judge Lévesque dismissed the action as being barred by the Limitations Act, 2002 and being an abuse of process.

[6] The appellant then brought a motion to set aside the decision of Deputy Judge Lévesque and to set the matter down for trial. Deputy Judge Winer dismissed the motion, because the previous order was a final order and the motion before him was tantamount to an appeal.

Facts

[7] In 1999, on the basis of complaints by 10 different women that they had been sexually assaulted by the appellant while seeking his assistance as a Justice of the Peace, the appellant was charged criminally with 10 counts of sexual assault.

[8] The appellant was also the subject of a complaint before the Justice of the Peace Review Council ("JPRC") in respect of the same alleged sexual assaults.

[9] In the course of the criminal proceedings, the Crown and defence counsel agreed to resolve the 1999 charges against the appellant on the basis that he would appear before the JPRC and admit the allegations contained in the complaint, that he would be removed from office as a Justice of the Peace permanently and that upon these steps being completed the Crown would withdraw the criminal charges and the matter would be concluded.

[10] Before the matter was so resolved, a 17-year-old girl alleged that she had been sexually assaulted by the appellant on a TTC subway train, which led to another charge of sexual assault against the appellant in June 2001.

[11] As a result, the resolution of the 1999 charges was put in abeyance. Following a trial on the 2001 charge, the appellant was found not guilty. The earlier agreement for the 1999 charges was then implemented: the appellant offered his retirement as a Justice of the Peace, notwithstanding that by this time he had reached the mandatory age of retirement, he admitted the allegations to the JPRC and the Crown withdrew the outstanding 1999 charges.

[12] The Appellant’s claim is the third legal proceeding brought against employees of the Ministry seeking monetary compensation several years after his retirement and resolution of the aforementioned criminal charges. The two other proceedings are human rights complaints filed with the Ontario Human Rights Commission in March and April of 2007.

[13] The March 2007 human rights complaint names the following parties as Respondents: Her Majesty the Queen in Right of Ontario, the now former Attorney General of Ontario Michael Bryant, former Chief Justice of the Ontario Court of Justice Brian Lennox, and former Associate Chief Justice – Co-ordinator of Justices of the Peace of the Ontario Court of Justice, Donald Ebbs. The Appellant alleges that the Respondents discriminated against him on the grounds of ancestry, colour, ethnic origin, place of origin and race by not assigning him to full-time presiding duties as a Justice of the Peace several years ago.

[14] The April 2007 human rights complaint names the Respondent, Kenneth Campbell, and claims that Mr. Campbell discriminated against him on the grounds of ancestry, colour, ethnic origin, place of origin and race by rejecting his claim for reimbursement of his legal expenses in defending the sexual assault charges. The substance of the April 2007 human rights complaint is nearly identical to this claim.

[15] Ultimately, in March 2009, the March 2007 complaint was dismissed for delay and the April 2007 complaint was dismissed as untimely and an abuse of process. A request for reconsideration was denied in May 2009.

The appellant's claim

[16] This claim was commenced on April 28, 2008. The claim is based solely on letters the respondent wrote to the appellant denying the appellant’s claim for reimbursement of his legal expenses in defending the sexual assault charges. At all times the respondent was acting as a member of the staff of the Ministry of the Attorney General.

[17] The appellant first requested reimbursement of his legal expenses in defending the criminal charges by letter from his counsel dated June 30, 1999 to the Associate Chief Justice of the Ontario Court of Justice. His request was based on the belief that he was entitled to reimbursement of his legal expenses because he was acting in the course of his duties as a Justice of the peace and was protected by judicial immunity.

[18] By letter dated August 19, 1999, the Associate Chief Justice advised the appellant’s counsel to direct the request to the Ministry of the Attorney General. Contrary to the submission of the appellant, the letter is not a direction or order to the Ministry to pay the appellant’s legal fees.

[19] Nearly 7 years later, by letter dated July 6, 2006, the appellant’s new counsel requested reimbursement of the appellant’s legal expenses from the Ministry of the Attorney General. The request was for the sum of $84,813.76, which sum included the costs for the trial in defending the 2001 charge (the charge relating to the TTC event).

[20] Over the course of the next eight months, the respondent, on behalf of the Ministry, denied the appellant's many written requests for reimbursement. In support of the various causes of action pled, the appellant alleges that the respondent through his letters failed to follow the alleged direction or order of the Associate Chief Justice, changed his reasons for denying reimbursement, avoided or refused to follow precedents for the reimbursement of legal expenses, did not deal with issues raised and declined to respond to further letters.

[21] On the basis of the respondent’s letters, the appellant claims that the respondent is liable in negligence, professional malpractice, failure to pay an unpaid account or invoice, abuse of authority, and discrimination under the Canadian Charter of Rights and Freedoms. The statement of claim contains numerous inflammatory allegations against the respondent which are not recognized causes of action.

[22] On May 20, 2008, the statement of defence was filed alleging that the claim was frivolous, vexatious, an abuse of process and did not disclose a reasonable cause of action.

[23] Subsequently, the appellant moved to strike the respondent's defence and the respondent moved to strike the statement of claim and to have the action dismissed. The motions came on for hearing before Deputy Judge Arnold on October 28, 2008. He adjourned both motions to the trial judge and ordered that a date for trial be set by the court.

[24] Two days later, on October 30, 2008, Justice Godfrey, the supervising administrative judge for the Toronto region, ordered that the matter be restored to the settlement conference list prior to a trial date being set. (Previously, in July 2008, a settlement conference convened following the launching of the appellant's motion, was adjourned sine die so that the parties could arrange a mutually convenient date to argue their motions.)

[25] Deputy Judge Lévesque conducted the settlement conference which had been directed by Justice Godfrey, on January 14, 2009 and dismissed the action as an abuse of process and barred by the Limitations Act 2002.

[26] The appellant then brought a motion before Deputy Judge Winer on February 23, 2010 to set aside the decision of Deputy Judge Lévesque. Deputy Judge Winer found that he was not sitting on appeal from the earlier order and that Deputy Judge Lévesque’s order was a final one made with both parties present. He dismissed the motion.

[27] This appeal is in respect of the two latter orders.

Issues and Analysis

[28] The sole issue on this appeal is whether either order was incorrect.

[29] The order of Deputy Judge Lévesque was clearly a final order and the motion before Deputy Judge Winer was in effect a motion by way of appeal. Deputy Judge Winer had no jurisdiction to hear an appeal from Deputy Judge Lévesque's order. On that basis alone the order of Deputy Judge Winer is correct. The appeal in that respect is thus dismissed.

[30] Concerning the order made by Deputy Judge Lévesque, it is clear from the Small Claims Court Rules that on a settlement conference, a judge has a broad discretion to make a variety of orders both procedural and substantive, including an order staying in action, striking out a claim or dismissing an action: see rule 13.05 (1) and (2) and rule 12.02.

[31] The appellant argues that Rule 13.05(2)(b) of the Small Claims Court Rules limits the kinds of orders that can be made at “an additional settlement conference”.

[32] I disagree.

[33] This is not “an additional settlement conference”. Rather it was a continuation of a conference that had been adjourned sine die by deputy Judge Arnold.

[34] Furthermore, Rule 13.05(2)(b) does not limit the powers of the judge, rather expands those powers to permit a judge to grant judgment in favour of a plaintiff when a defendant fails to attend two settlement conferences.

[35] Clearly this action is an abuse of process and is frivolous and vexatious. The matters raised have been raised twice before in earlier proceedings before the Human Rights Commission. None of the claims have any legal basis or merit.

[36] To suggest that he was acting in the course of his duties as a Justice of the Peace and is thereby protected by judicial community, especially when he admitted to the allegations made against him, is simply specious. Furthermore he has the gall to claim for legal expenses incurred in the trial of the charge of sexual assault in the TTC event. Specious is hardly a sufficient adjective.

[37] For the same reasons the claim discloses no reasonable cause of action.

[38] In connection with the limitation period, the appellant first sought reimbursement of his legal expenses in June 1999. His cause of action arose then. The claim is out of time.

[39] This defence is available even though it was not pleaded in the statement of defence, because the statement of claim is such that it is clear from the statement of claim that the limitation period has expired. See: Greatrek Trust S.A./Inc. v. Aurelian Resources Inc. 2009 6095 (ON SC), 2009 CarswellOnt 748 at para. 10.

[40] Accordingly the decision of Deputy Judge Lévesque, dismissing the action, was correct.

[41] The appeal is dismissed.

[42] Costs to the respondent fixed in the sum of $2,000 plus H.S.T.

Ferrier J.

Released: January 17, 2011