Court File and Parties

CITATION: Hordo v. State Farm Mutual Automobile Insurance Company, 2021 ONSC 7908

DIVISIONAL COURT FILE NO.: 862/21

DATE: 20211201

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DIANA MICHELLE DANIELLA HORDO v. state farm mutual automobile insurance company

BEFORE: D.L. Corbett J.

HEARD: In Writing, In Chambers

Endorsement

[1] The applicant commenced an application for judicial review of an interlocutory order of Vermette J. granting an order removing the applicant’s solicitor of record. Vermette J. refused an order that the applicant’s father (a former lawyer not currently a member of the Law Society of Ontario) be given leave to represent her in this proceeding and declined to grant other relief requested by the applicant at the hearing of the motion.

[2] The court gave the applicant notice that it was considering dismissing the application as frivolous, vexatious and an abuse of process pursuant to R.2.1.01 and provided the applicant with the following guidance on issues she should address in response to the notice:

Ms Hordo applies for judicial review from a decision of Vermette J. removing Mr Besunder as Ms Hordo's solicitor of record, on terms, and dismissing relief sought by Ms Hordo that was not before the court properly on the motion to remove Mr Besunder as counsel, without prejudice to any future motions that may be brought by Ms Hordo.

The Registrar is directed to issue a notice to Ms Hordo that the court is considering dismissing the application for judicial review pursuant to R.2.1.01 as frivolous, vexatious and/or an abuse of process for the following reasons:

1. The order of Vermette J. is interlocutory. It may be appealed to this court, but only with leave of this court. No leave has been sought or granted and thus no appeal rights have been exercised by Ms Hordo. This court will not generally permit a party to bring an application for judicial review where she has not first exhausted her appeal rights.

2. The order of Vermette J. removing Mr Besunder from the record is manifestly correct. Ms Hordo has made repeated serious allegations against Mr Besunder and it is clear that the solicitor/client relationship has broken down. There is no basis on which a review court would set aside the order and require Mr Besunder to continue to act for Ms Hordo, and it is clear that Ms Hordo does not want Mr Besunder to continue to be her lawyer. Aside from imposing terms for transfer of the file, a motions court would not adjudicate claims as between solicitor and client on the removal motion: those are issues that must be pursued in other proceedings and not within the proceeding brought by Ms Hordo against the defendant insurer.

3. In the application for judicial review, Ms Hordo seeks relief against numerous non-parties. This relief was not available on the motion before Vermette J. and is not available in this court on review of Vermette J.'s decision.

4. In the application for judicial review, Ms Hordo seeks substantive relief against the defendant in the underlying action. This relief was not available on the motion before Vermette J. and is not available in this court on review of Vermette J.'s order.

5. The Notice of Application is prolix, unfocused, and fails to raise reasonable grounds for relief on review of the decision of Vermette J. One extricable issue mentioned in the application that could, conceivably, ground arguable proceedings in this court is an order that Ms Hordo's father, a former lawyer, not represent her in this proceeding. That order has been made repeatedly in this proceeding by several judges. However, the order of Vermette J. is the first such order made when Ms Hordo was not represented by a solicitor of record.

A non-lawyer - including a family member with legal training - may not represent someone in the Superior Court of Justice without leave of that court. If Ms Hordo believed that the case management judge erred in refusing to grant her leave to have her father represent her, after removing Mr Besunder as her counsel of record, Ms Hordo's proper recourse was a motion for leave to appeal to this court.

6. The record, including Ms Hordo's notice of application for judicial review, appears to disclose that Ms Hordo is litigating vexatiously and putting other parties, strangers to the litigation, and the administration of justice, to substantial needless expense. Ms Hordo, as a self-represented litigant, is entitled to consideration and assistance from the court in navigating the court process. However, Ms Hordo's self-represented status does not entitle her to litigate vexatiously, to ignore court directions, or to bring vexatious steps in her proceeding. This court is considering making an order prohibiting Ms Hordo from bringing any proceedings in this court in respect to matters connected with this litigation unless either (a) she is represented by a lawyer licensed to practice law in Ontario; or (b) she obtains prior permission from an administrative judge of the Divisional Court.

This court notes that the order of Vermette J. is not stayed by reason of Ms Hordo's application to this court. The parties and Mr Besunder are required to follow the order of Vermette J. and case management and other steps in the litigation may continue in the Superior Court while this application is pending unless a court subsequently orders otherwise.

Responding parties are directed not to respond to Ms Hordo's submissions respecting these R.2.1.01 proceedings unless this court subsequently directs otherwise.

[3] Ms Hordo provided a written response to the R.2.1.01 notice, including fourteen attachments. The response fails to address the concerns raised by the court respecting this application. Therefore, for the reasons that follow, the application is dismissed as frivolous, vexatious and an abuse of process. In addition, the court concludes that Ms Hordo is likely to engage in further vexatious litigation and that her recourse to the courts should be controlled to protect the administration of justice from wasting resources on further vexatious litigation: Ms Hordo may not bring or pursue any proceedings in this court in connection with the claims at issue in her action against State Farm unless either (a) she is represented by a lawyer licensed to practice law in Ontario; or (b) she obtains permission from an administrative judge of the Divisional Court or their designate.

Reasons to Dismiss the Application

[4] The order of Vermette J. is an interlocutory order in a civil proceeding. If Ms Hordo wished to challenge the order, her proper course was to bring a motion for leave to appeal in this court. While an application for judicial review may be brought in respect to ongoing civil proceedings, such an application will not be entertained in this court if the applicant has not first exhausted her appeal rights. Permitting the application to proceed would frustrate the leave requirements for appeals from interlocutory orders. This issue was raised with Ms Hordo and she failed to address it at all in her response to the R.2.1.01 notice.

[5] Ms Hordo argues that the motion judge ought not to have released Mr Besunder from the file without addressing her allegations of misconduct against him. She does not address the fact that the order is without prejudice to her pursuing claims against Mr Besunder in separate proceedings. This issue was raised with Ms Hordo and she failed to address it in her response to the R.2.1.01 notice, other than repeating her position to the contrary. She provided no legal authority to support her position. A dispute between her and her former lawyer is not properly adjudicated in her proceeding against State Farm.

[6] Ms Hordo’s claims for relief that were not before the motion judge, and her claims for relief in her application that are not the subject matter of the motion judge’s decision, are not a proper subject matter for an application for judicial review to this court. These issues were raised with Ms Hordo and she failed to address them in her response to the R.2.1.01 notice.

[7] Ms Hordo explained the reasons why she wants her father, a retired lawyer, to represent her in court. This aspect of the motion judge’s decision could be the basis of a motion for leave to appeal to this court. Ms Hordo is self-represented and should not have her appeal rights extinguished solely because she does not know the correct process to follow in pursuing them, so long as there is no prejudice to the responding party. In all the circumstances, I will extend the time within which Ms Hordo may bring a motion for leave to appeal the decision of Vermette J. refusing to permit Ms Hordo’s father to represent her. Ms Hordo should not misunderstand this point. This does not mean that she will necessarily be granted leave to appeal. That will be for a panel of three judges of this court to decide, if she brings the motion for leave to appeal.

Disposition

[8] There are only two issues raised in the application that could ground relief in this court: the refusal to permit Ms Hordo’s father to represent her in this proceeding and the costs order made in favour of her former lawyer. These issues may be pursued by way of a motion for leave to appeal, not by way of an application for judicial review. The application is dismissed as frivolous, vexatious and an abuse of process. This decision is without prejudice to Ms Hordo bringing a motion for leave to appeal (a) the decision to refuse her permission to have her father represent her; and (b) the costs order. The time for Ms Hordo to bring such a motion is extended to January 4, 2022, by which date Ms Hordo must serve and upload to CaseLines her notice of motion, motion record and factum seeking leave to appeal. She must also indicate her intention to pursue this motion by email to counsel for State Farm and her former lawyer, copied to the court, no later than December 10, 2021. Ms Hordo is cautioned that the proceedings below are not stayed pending decision on the motion for leave to appeal.

“D.L. Corbett J.”

December 1, 2021