CITATION: Cudini v. 1704405 Ontario Inc., 2012 ONSC 6645
DIVISIONAL COURT FILE NO.: DC-11-0090 and DC-12-0067
SUPERIOR COURT FILE NO.: CV-12-5748
DATE: 2012 11 23
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: ILSA CUDINI a.k.a. ILSA SILVA v. 1704405 ONTARIO INC. c.o.b. as HANDSMITH & ASSOCIATES
BEFORE: K. van Rensburg J.
COUNSEL: Appellant/Applicant Ilsa Cudini, self-represented Respondent Steven Smith, self-represented
ENDORSEMENT
[1] This is a decision in two appeals to the Divisional Court and a separate application proceeding commenced in the Superior Court. The respondent seeks an order quashing the appeals and dismissing the application. He also seeks an order prohibiting Ilsa Cudini, also known as Ilsa Silva, from bringing any further motion or proceeding against him or his company without leave of the court.
[2] The moving party is 1704405 Ontario Inc., carrying on business as Handsmith & Associates, a corporation in which Steven Smith is the controlling shareholder. Mr. Smith is a paralegal, who provided services at some point for Ms Cudini. Ms Cudini is the appellant in two appeals now pending in the Divisional Court and the applicant in an application she recently commenced in the Superior Court.
The Small Claims Court Proceedings
[3] Mr. Smith, through his company, sued Ms Cudini for payment of his fees in Action No. SC-09-5873-00 in the Small Claims Court. The original trial was before Deputy Judge Boguski who on May 12, 2011 granted judgment for the plaintiff in the sum of $1,155 plus pre-judgment interest and costs, and dismissed the defendant’s claim with costs. The plaintiff issued notices of garnishment to collect on the judgment.
[4] No appeal was taken from the Small Claims Court judgment, however Ms Cudini brought a motion to request a new trial under rule 17.04 of the Small Claims Court Rules. Under rule 17.04(5) a new trial may be granted, or the court can substitute its judgment for that of the original judge, if there is a purely arithmetical error in the determination of the amount of damages award or if there is relevant evidence that was not available to the party at the time of the original trial and could not reasonably have been expected to be available at that time.
[5] On September 8, 2011 Deputy Judge Latimer dismissed Ms Cudini’s motion for a new trial, with costs of $200, and he adjourned a garnishment hearing which was also before him, to December 9, 2011.
[6] Mr. Smith had caused to be issued a notice of garnishment to a tenant from whom Ms Cudini collected rent, for the sum of $2,116, consisting of the judgment amount of $1,155, pre-judgment interest of $246 and costs to the date of judgment of $615.
[7] In his endorsement of September 8th, Deputy Judge Latimer required the tenant to pay $2,316 into court (the garnishment amount plus the $200 he had awarded against Ms Cudini that day). He ordered certain documents to be provided, including bank statements, and he urged Ms Cudini’s son Paul Serpa to attend the next hearing date in order to prove his entitlement to the money. Ms Cudini claimed at that time, as she continues to assert, that the building is owned by her son and that any rent that is paid by a tenant, and collected by her, belongs to her son, and is accordingly not available to Mr. Smith in satisfaction of his judgment.
[8] On the December 9, 2011 attendance, Ms Cudini did not produce bank statements, allegedly because of her son’s refusal to cooperate. The garnishment hearing was adjourned to April 10, 2012, and that day the matter was adjourned peremptory on the parties to July 26, 2012.
[9] On July 26, 2012, Ms Cudini did not appear. Latimer D.J. ordered payment out of court of the monies that had been paid in by the tenant, but not before August 14, 2012. Costs of $900 were awarded against Ms Cudini.
The First Divisional Court Appeal
[10] Ms Cudini commenced proceedings in the Divisional Court (DC-11-0090) to appeal the order of Deputy Judge Latimer dated September 8, 2011, dismissing her r. 17.04 motion. Her notice of appeal sought an order granting a new trial, an order vacating all garnishment proceedings, an order to release any money paid into court, and an order to prevent the respondent from “any further abuse, threats, harassment, intimidation, etc…”. Her recently amended notice of appeal seeks an order vacating the order in its entirety and granting the appellant a new trial, or alternatively quashing the judgment and the garnishment proceedings.
[11] On November 15, 2011 Ms Cudini filed a certificate to prove that she had ordered transcripts of the proceedings on September 8, 2011 and May 12, 2011. She has since indicated that she does not need the transcripts for the appeal.
[12] On July 27, 2012 Ms Cudini appeared without notice to Mr. Smith before Price J. seeking an order in the Divisional Court appeal to release the funds in court to her son Paul Serpa. Price J. ordered that the motion be served on the respondent and that, in order to preserve the status quo, the funds in court to the credit of the Small Claims Court action not be paid out without further order of the court, on notice to Ms Cudini.
[13] Ms Cudini then brought an urgent motion returnable August 31, 2012 again seeking that the funds in court be paid out to her. She served Mr. Smith the night before by fax and email, and Mr. Smith faxed a request for an adjournment to the wrong office. When Mr. Smith did not attend, Ms Cudini obtained an order from Gray J. that the sum of $2,316 paid into the Small Claims Court be released to her forthwith.
[14] Mr. Smith then brought a motion to set aside the order of Gray J. He also sought an order prohibiting Ms Cudini from bringing or continuing any further proceedings against him. Mr. Smith’s motion was originally returnable September 11, 2012.
[15] On September 11, 2012, Donohue J. set aside the order of Gray J. She directed that, with respect to the disposition of the funds in court, one or the other party was required to bring a motion properly before the court, served with sufficient time for the other to prepare and file material in response. She gave directions respecting the preparation of materials. Donohue J. concluded that the materials before her were incomplete and there was insufficient history to satisfy the requirements of a vexatious litigant order.
[16] Mr. Smith then brought a motion returnable October 18, 2012 to quash Ms Cudini’s appeal. Ms Cudini brought her own motion for an order dismissing Mr. Smith’s motion and for an order of “supervision,” alleging that the action in the Small Claims Court was an abuse of process, and that Mr. Smith had used the courts of justice to commit illegal acts with deception, falsehood and misrepresentations. She also brought a motion returnable that day to set aside the order of Donohue J. dated September 11, 2012, and requesting that the funds held in the court’s trust account be released in accordance with Gray J.’s order of August 31, 2012.
[17] On October 18, 2012, Bielby J. adjourned the motion to strike the appeal to November 2, 2012 to permit the appellant to satisfy the court that her appeal had been perfected.
[18] On October 22, 2012 Ms Cudini served Mr. Smith by fax with a Notice of Emergency Motion returnable the following day with no supporting materials. She sought the release of the money in court for the stated purpose of emergency airfare for her son to attend her brother’s funeral. Baltman J. refused to add the motion to the motions list for October 23rd noting, “This appears to be one of numerous motions brought on short notice by Ms Cudini and with dubious merit”.
[19] In his amended notice of motion dated October 25, 2012 for the motion returnable November 2, 2012, Mr. Smith sought an order quashing the appeal, an order that the appellant be required to seek leave of the court for permission before filing any further motions, an order staying the appeal pending compliance with prior costs orders, and an order that the funds to the credit of the Small Claims Court action be released to him.
[20] The matter was again before Donohue J. on November 2, 2012. At Ms Cudini’s request, Mr. Smith’s motion was adjourned to November 15, 2012, peremptory to Ms Cudini. Donohue J. gave directions for the service and filing of materials, and prohibited Ms Cudini from bringing any emergency motions in the matter in the interim.
[21] In her factum of November 13, 2012, Ms Cudini requested additional relief, including an order releasing the funds in court, an order “to allow the Fundamentals of Justice and fairness”, and an order prohibiting Mr. Smith from taking any further proceedings against her.
The Second Divisional Court Appeal
[22] On August 21, 2012 Ms Cudini commenced an appeal to the Divisional Court (DC-12-0067) of the order of Deputy Judge Latimer dated September 8, 2011, and asked that this appeal be heard with DC-11-00-90. The only ground of appeal set out in the notice of appeal is that: “The respondent has gone beyond abuse of process, procedures and law and his actions are believed to be criminal for perjury of his Oath of Office and Administrative Justice”.
[23] Mr. Smith moves to quash this appeal.
The Application
[24] A notice of application in CV-12-57478-00 was issued by the court on October 29, 2012. Ms Cudini is the applicant and Mr. Smith’s company is the respondent. The application, which has a return date of November 27, 2012, seeks an order, among other things, for the release of the monies in court, vacating the Small Claims Court proceedings and granting “the Appeal”. The application was served on Mr. Smith in court on November 2nd after the appearance before Donohue J. No application record has been served or filed with the court.
[25] Mr. Smith brought a motion returnable November 15, 2012 for an order striking the application without leave to amend and vacating the return date of the application, and an order preventing Ms Cudini from bringing any further motions or proceedings against 1704405 Ontario Inc. c.o.b. as Handsmith & Associates or its principal shareholder Steven J. Smith as named in DC-11-0090, SC-11-121-889 and CV-12-5748-00 without leave of the court.
Issues
[26] All of the motions referred to above that were served by both parties were returnable on November 15, 2012, and when not reached that day, were adjourned to the following day when they were heard.
[27] The issues are the following:
- Should DC -11-0090 be dismissed?
- Should DC 12-0067-00 be dismissed?
- Should Application CV-12-57478-00 be dismissed?
- Should the monies paid into court to the credit of the Small Claims Court action be paid out, and if so, to whom?
- Should an order be made against Ms Cudini preventing her from bringing or continuing any further proceedings against Mr. Smith or his company without leave of the court?
- Is any other relief warranted?
Appeal in DC-11-0090
[28] Initially Mr. Smith sought to dismiss the appeal because it was not perfected in time. Ms Cudini was granted additional time, and it appears that, although late, she complied with the requirements necessary to perfect her appeal.
[29] Mr. Smith also seeks to dismiss the appeal on the basis that there is no appeal jurisdiction with respect to the order or orders in question.
[30] Ms Cudini did not address the jurisdictional argument, but asserted that she had perfected the appeal and that, irrespective of the statutory limits on her rights of appeal, she should be able to pursue the appeal because she disagrees with the decisions that were made, and she believes that there was fraud and misrepresentation in the proceedings in the court below.
[31] Section 31 of the Courts of Justice Act is exhaustive with respect to the rights to appeal a decision of the Small Claims Court: Grainger v. Windsor-Essex Children’s Aid Society (2009), 2009 34987 (ON SC), 96 O.R. (3d) 711 (Div. Ct.), at para. 12. Section 31 provides:
An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,
(a) for the payment of money in excess of the prescribed amount excluding costs; or
(b) for the recovery of possession of personal property exceeding the prescribed amount in value.
The prescribed amount pursuant to O. Reg. 244/10 is $2,500.
[32] As Granger J. concluded through his careful analysis in the Grainger case (at paras. 12 through 22), there is no right to appeal an order of the Small Claims Court other than pursuant to s. 31. There is no right to appeal an interlocutory order of that court, and there is no right to request leave to appeal an order of the Small Claims Court to the Divisional Court or to the Superior Court. Section 31 is the sole source of appeal jurisdiction for an order of the Ontario Small Claims Court.
[33] The order that Ms Cudini seeks to appeal is the order of Deputy Judge Latimer dated September 8, 2011, dismissing her motion for a new trial under rule 17.04. Mr. Smith argues that since this is not a judgment for an amount greater than $2,500 there is no right to appeal. Even if the appeal could be considered to relate to the original judgment of Deputy Judge Boguski, the amount of the judgment was only $1,155.
[34] In Action Auto Leasing & Gallery Inc. v. Robillard, [2011] O.J. No. 2453 (Div. Ct.), Heeney J. observed that there is an inconsistency between the wording of s. 31 and the regulation. Section 31 provides a right of appeal “from a final order of the Small Claims Court in an action for the payment of money in excess of the prescribed amount”, while the regulation suggests that the right to appeal is only from judgments for amounts greater than $2,500. In Action Auto Leasing, the court was dealing with a claim that had been dismissed at trial, where the amount sought by the unsuccessful plaintiff exceeded $2,500. Heeney J. concluded that it was the amount at issue in the action, and not the amount of the judgment that determined the plaintiff’s right of appeal. He distinguished the decision in Lambert v. Clarke, [1904] O.J. No. 116 (Div. Ct.), where the defendant had sought to appeal a judgment for less than the then prescribed limit of $100, where the plaintiff had sued for a greater amount, on the basis that the only number that mattered in an appeal by a defendant was the amount of the judgment against him. The “matter in dispute” in the appeal was a judgment for less than the prescribed limit.
[35] In the present case the plaintiff sought damages of $1,155.40 plus interest and costs and he obtained judgment for $1,155 plus interest and costs. This is a case like Lambert, where the amount in dispute in the appeal (the judgment amount) is less than the prescribed amount. Even if the court were to consider the amount of the original claim to govern in a case where the defendant, and not the plaintiff, is the appellant, there would be no jurisdiction to entertain this appeal.
[36] Accordingly, there is no jurisdiction in this court (or in any other court) to hear an appeal of the judgment and orders made in Small Claims Court Action No. SC-09-5873-00. The appeal in DC -11-0090 is accordingly dismissed.
Appeal in DC-12-0067
[37] The appeal in this court file is a duplication of the appeal in DC-11-0090. Again, the orders sought to be appealed are the same as those at issue in the earlier appeal. For the reasons I have dismissed the appeal in DC-11-0090, the appeal in DC-12-0067 is also dismissed.
Application CV-12-57478-00
[38] This application again appears to be a direct or collateral attack on the Small Claims Court order or orders that are the subject of the appeal in DC-11-0090. For the reasons I have dismissed the appeal in DC-11-0090, this application is also dismissed. The effect of this order is to vacate the November 27th return date.
Payment of Monies Out of Court
[39] Both parties seek the payment out of the monies paid into court by the tenant in response to the garnishment proceedings in the Small Claims Court. Now that the appeals have been dismissed, the order of Deputy Judge Latimer dated July 26, 2012, is no longer stayed, and the monies in court to the credit of Small Claims Court Action SC-09-5873-00 shall be paid out to Mr. Smith’s company, 1704405 Ontario Inc.
Order Prohibiting Ms Cudini from Commencing or Continuing any Proceedings against Mr. Smith and his Company
[40] Mr. Smith is seeking an order prohibiting Ms Cudini from commencing or continuing proceedings against him and his company. As the Court of Appeal has recently determined, a vexatious litigant order under s. 140 of the Courts of Justice Act, can be granted only on application (that is as an originating process), and not by motion in an existing proceeding: Lukezic v. Royal Bank of Canada, [2012] O.J. No. 2344 (C.A.), adopting the dissenting reasons and analysis of Lang J.A. in Kallaba v. Bylykbashi, 2006 3953 (ON CA), [2006] O.J. No. 545 (C.A.).
[41] Based on the voluminous materials filed in these proceedings, and the manner in which Ms Cudini has conducted the litigation, Mr. Smith is justifiably concerned that Ms Cudini will continue to engage in similar repetitive and harassing conduct if not constrained by court order. I have concluded however that I do not have authority under the “abuse of process” doctrine to grant an order in the terms Mr. Smith is seeking, because such an order would in substance be a vexatious litigant order, and requires an application.
[42] S. 140(5) of the Courts of Justice Act preserves the authority of the court to “stay or dismiss a proceeding as an abuse of process or on any other ground”. Under rule 37.17 of the Rules of Civil Procedure, a judge or master may prohibit a party from making further motions in a proceeding without leave, and under rule 21.01(d) a defendant may move before a judge to have an action stayed or dismissed on the grounds that the action is an abuse of the process of the court.
[43] If I had not dismissed the existing proceedings commenced by Ms Cudini against Mr. Smith’s company on the jurisdictional grounds noted above, I would have dismissed the second Divisional Court appeal and the application as an abuse of process. The proceedings were clearly an attempt to relitigate the constituent issues or material facts already embraced in a decision that had already been determined. Such conduct is an abuse of process, and will justify an order dismissing a proceeding: Toronto (City) v. Canadian Union of Public Employees, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 37, per Arbour J.
[44] As I have noted, I am unable to grant the order that Mr. Smith requests in the absence of an application. That relief is denied, without prejudice to Mr. Smith commencing an application for such relief if he sees fit to do so. The parties advised that there is a vexatious litigation proceeding pending against Ms Cudini in the Milton Court (File No. 2552/12), with a return date next week. Mr. Smith may seek to be added to such proceedings or standing to appear at the hearing. Whether or not he is permitted to do so will, of course, be in the discretion of the presiding judge.
Other Relief
[45] To the extent that Ms Cudini’s notices of motion and other materials filed in respect of this matter seek relief other than already addressed, her claims are dismissed. The appeals having been dismissed, there is no basis for the interlocutory relief she has requested in the form of a “supervision order”, or for an order that the two Divisional Court appeals be heard together. There is also no evidentiary foundation for an order to prevent Mr. Smith from bringing further proceedings against her.
Conclusion
[46] An order shall go in DC-11-0090 dismissing the appeal and directing the monies in court to the credit of Small Claims Court Action SC-09-5873-00 to be paid out to Mr. Smith’s company, 1704405 Ontario Inc. The respondent is entitled to costs payable by the appellant. If there is no agreement on costs. I will receive brief written submissions limited to three pages double-spaced from the parties as follows: Mr. Smith’s submissions within 15 days, Ms. Cudini’s submissions within ten days of receipt of Mr. Smith’s submissions and reply submissions, if any, within five days of delivery of Ms. Cudini’s submissions.
[47] An order shall go in DC-12-00-67 dismissing the appeal without costs.
[48] An order shall go in Application CV-12-5748 dismissing the application without costs.
[49] The request for an order prohibiting Ms Cudini from commencing or continuing any proceedings against 1704405 Ontario Inc. or Steven Smith in any court in Ontario without leave is dismissed, without prejudice to the moving party bringing an application for such relief.
[50] Ms Cudini’s approval of a draft order is dispensed with.
K. van Rensburg J.
DATE: November 23, 2012
CITATION: Cudini v. 1704405 Ontario Inc., 2012 ONSC 6645
DIVISIONAL COURT FILE NO.: DC-11-0090 and DC-12-0067
SUPERIOR COURT FILE NO: CV-12-5748
DATE: 2012 11 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ILSA CUDINI a.k.a. ILSA SILVA v. 1704405 ONTARIO INC. c.o.b. as HANDSMITH & ASSOCIATES
BEFORE: K. van RENSBURG J.
COUNSEL: Ilsa Cudini, Appellant/Applicant, self-represented Steven Smith, Respondent, self-represented
ENDORSEMENT
K. van Rensburg J.
DATE: November 23, 2012