Court File and Parties

CITATION: Leong and Shah et al v. Ryabikhina et al., 2013 ONSC 6725

DIVISIONAL COURT FILE NO.: 79/13

DATE: 20131101

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PARDU, C. MCKINNON, WILTON-SIEGEL JJ.

BETWEEN:

Dr. Renata Leong, Dr. Rajiv Shah and St. Michael’s Hospital Respondents

– and –

Elena Ryabikhina and Nadejda Ryabikhina Appellant

K. Booth, for Dr. Leong and Dr. Shah

J. Gutman, for St. Michael’s Hospital

Nadejda Ryabikhina, in Person

HEARD: October 17, 2013

Reasons for Decision

by the court:

[1] The Respondent physicians bring a motion to restrain Nadejda Ryabikhina from bringing any further appeals or motions in the Divisional Court unless leave is granted, until the application of the Respondent physicians in the Superior Court of Justice to have her determined a vexatious litigant (the “Application”) has been determined.

[2] This panel has jurisdiction to hear this motion pursuant to Rule 61.16(2.1), as this panel heard the motion by Nadejda Ryabikhina to set aside the order of Aston J.

[3] Section 106 of the Court of Justice Act provides:

A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just. R.S.O. 1990, c. C.43, s. 106.

[4] Similarly, Rule 37.16 indicates:

On motion by any party, a judge or master may by order prohibit another party from making further motions in the proceeding without leave, where the judge or master on the hearing of the motion is satisfied that the other party is attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions. R.R.O. 1990, Reg. 194, r. 37.16.

[5] This Court also has inherent jurisdiction “to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner.” R. v. Cunningham, 2010 SCC 10 par 18).

[6] As observed by Blair J. in Hedley v. Air Canada [1994] O.J. No. 287, at paras. 14-15.

“The court has always had an inherent jurisdiction to grant a stay of proceedings whenever it is just and convenient to do so, in order to control its process or prevent an abuse of that process . . . In the civil context, this general power is also embodied in the very broad terms of s. 106 of the Courts of Justice Act, R.S.O. 1990, Chap. C.43 . . . Recently, Mr. Justice O’Connell has observed that this discretionary power is “highly dependent on the facts of each particular case”.

[7] The Court has authority to prevent abuse of process.

[8] The Supreme Court of Canada observed in Behn v. Moulton Contracting Ltd., 2013 SCC 26 at para. 40:

…[T]he doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

…The doctrine of abuse of process is flexible, and it exists to ensure that the administration of justice is not brought into disrepute.

[9] Proceedings which are an abuse of process do more than cause harm to the parties on the receiving end of these matters. They consume the scarce resources of the court with frivolous proceedings, delaying the hearing of other matters where there are real issues requiring resolution.

[10] The history of this matter illustrates that Nadejda Ryabikhina has many of the characteristics of a vexatious litigant.

[11] She has commenced five separate actions arising out of the same events. Four of these have been stayed or summarily dismissed.

[12] The Court of Appeal has ordered security for costs on the one outstanding matter pursuant to Rule 61.06 on the ground that there is good reason to believe the appeal is frivolous and vexatious. Nadejda Ryabikhina has persisted in appealing from the order of Master Graham adjourning the motion, although she has indicated she does not intend to pursue any of the outstanding motions in the application. The documents she files are lengthy, disorganized and at times incomprehensible. She makes scandalous allegations against judges who do not rule in her favour. These are mirrored by equally scandalous allegations against opposing counsel. She has been ordered to pay over $34,000 in costs in nine separate orders which remain outstanding. Roberts J. order that Nadejda Ryabikhina could not bring any further motion until the costs were paid or leave was granted. Roberts J. aptly characterized the appeal as frivolous and without merit.

[13] There is good reason to believe Nadejda Ryabikhina will bring further vexatious and frivolous appeals or motions in the Divisional Court unless the Court exercises some judicial control.

[14] St. Michael’s Hospital has not brought a motion for this relief. It is entangled in these proceedings in the same fashion as the physicians.

[15] Both the hospital and the physicians have been prejudiced by the meritless steps taken by Nadejda Ryabikhina, and the hospital also asks that the court exercise its inherent jurisdiction to control its own process by including it in any order restructuring Nadejda Ryabikhina.

[16] In oral argument Nadejda Ryabikhina indicated that these proceedings by her could go away with a settlement.

[17] An order will issue as follows:

(a) an Order staying all proceedings and appeals brought by Nadejda Ryabikhina in the Divisional Court in respect of or relating to the application bearing Court File No. CV-12-451169 or the application bearing Court File No. CV-12449608 or naming Dr. Leong or Dr. Shah or St. Michael’s Hospital as parties, or seeking relief as against or relating to Dr. Leong or Dr. Shah or St. Michael’s Hospital, until such applications have been decided;

(b) an Order that the stay will only be lifted in respect of a proceeding or appeal if leave of this Court is obtained;

(c) an Order directing that any such application for leave shall be made in writing and without an oral hearing;

(d) an Order directing that Nadejda Ryabikhina will provide Dr. Leong and Dr. Shah and St. Michael’s Hospital with 14 days prior written notice of any application for leave;

(e) an Order that, should Nadejda Ryabikhina file material seeking to commence or continue a proceeding or appeal in the Divisional Court without first filing an entered Order granting leave for them to do so, the proceeding or appeal shall be immediately stayed upon any person filing a copy of this Order in such court;

[18] Again, costs should follow the result. Costs to the moving party physicians fixed at $5,000, payable within 30 days by Nadejda Ryabikhina.

[19] Order also to issue dispensing with the need for approval as to form by Nadejda Ryabikhina of this order.

PARDU J.

MCKINNON J.

WILTON-SIEGEL J.

Released:

CITATION: Leong and Shah et al v. Ryabikhina et al., 2013 ONSC 6725

DIVISIONAL COURT FILE NO.: 79/13

DATE: 20131101

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PARDU, MACKENNON, WILTON-SIEGEL JJ.

BETWEEN:

Dr. Renata Leong, Dr. Rajiv Shah and St. Michael’s Hospital Respondents

– and –

Elena Ryabikhina and Nadejda Ryabikhina Appellant

REASONS FOR JUDGMENT

Pardu J.

Released: November 1, 2013