Court of Appeal for Ontario

Date: 2019-05-06 Docket: C64955

Judges: Tulloch, Huscroft and Harvison Young JJ.A.

Between

Peoples Trust Company, David Brooker, Taras Kulish, Moses Muyal, Michael Harold Kimberly, Irene Mary Kimberly, Stancer Gosssin Rose, Raymond Stancer, Michael Hart Rose, Rose and Rose, Blair Coleman Rose, Scott Kelly, Rahul Shastri, Ira T. Kagan, David Winer, David Sloan, Baker Schneider Ruggiero, Patrice Cote, Ron Hatcher, Steinberg Morton Frymer LLP, Michael John Mitchell, Nicholas Carlos Canizares, David Hart Bresver, Bresver Scheininger & Chapman LLP, Rui Ruivo, Frank Pa, Atlantic (HS) Financial Corporation, Tom Pires, Mega Corp, Krishan Chahal, and Nutan Chahal

Applicants (Respondents)

and

Nadire Atas and 626381 Ontario Limited

Respondents (Appellants)

Counsel

Nadire Atas, acting in person

Christina J. Wallis, for the respondent Peoples Trust Company

Yoginder Gulia, for the respondents Krishan Chahal and Nutan Chahal

Gary Caplan, for all remaining respondents

Heard: April 12, 2019

On appeal from: the judgment of Justice D.L. Corbett of the Superior Court of Justice, dated January 3, 2018, with reasons reported at 2018 ONSC 58.

Reasons for Decision

[1] The appellants were declared vexatious litigants pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. The appellants raise a number of related arguments on appeal. For the following reasons, the appeal is dismissed.

[2] The appellants argue that the application judge – who was acting as case management judge for the underlying litigation and the s. 140 application – had no jurisdiction to hear the s. 140 application. We disagree. The application judge addressed this issue at paras. 234-249 of his reasons. We see no error in his conclusion that he had jurisdiction to hear the application on the facts of this case.

[3] In the course of the more than 4-year process of case managing the underlying litigation, the application judge did not conduct any settlement discussions or hold a judicial pre-trial in respect of the underlying litigation or the s. 140 application. This distinguishes the present case from the authorities cited by the appellants. In addition, the appellants did not appeal from the application judge's ruling dated June 30, 2015, made when this issue was first raised by the appellants, that he had jurisdiction to hear the s. 140 application.

[4] We also disagree with the submission that the application judge erred in finding that the appellants had acted in a vexatious manner in defending proceedings brought against them, or in requiring the appellants to seek leave prior to taking any further step in defending such proceedings.

[5] The court has a broad discretion to control its process and to make appropriate orders where vexatious proceedings have been instituted or proceedings have been conducted in a vexatious manner, both pursuant to s. 140 of the Courts of Justice Act and as a component of the court's inherent jurisdiction. This jurisdiction extends to the conduct of litigants in defending proceedings. We are satisfied that this was an appropriate case, given the history and record of the matter before the court, for the application judge to require the appellants to seek leave before taking any step in a proceeding in which they are defendants.

[6] The argument that the application judge erred in finding that the court had jurisdiction to make a pre-screening Chavali order[^1] similarly fails. The application judge thoroughly canvassed the issue of his jurisdiction to make the Chavali order at para. 304 of his reasons and did not err in determining he had jurisdiction to make the order.

[7] We also find no error with respect to the terms of the pre-screening Chavali order, as incorporated in the judgment. Among other things, the order requires the appellants to: (1) obtain permission from the designated case management judge prior to bringing any application under s. 140(3) of the Courts of Justice Act to obtain leave to proceed with a proceeding or a step in a proceeding in any court in Ontario; (2) provide the judgment and application judge's reasons to any non-Ontario court or any administrative body, commission or tribunal in which the appellants seek to initiate or continue a proceeding; and (3) prior to commencing any criminal proceedings or to making a complaint to a peace officer, provide the judgment and the application judge's reasons to the peace officer or judicial officer, as appropriate. The order does not purport to control the process of administrative bodies, criminal courts, or non-Ontario courts who, upon being made aware of what the Superior Court has held with respect to the appellants being vexatious litigants, may control their own processes as they see fit.

[8] The appellants also argue that the application judge erred in his assessment of the evidence and findings of fact on the s. 140 application. We find no merit to this argument. It is an attempt to re-litigate the issues that were before the application judge, which is not the role of this appeal court. The application judge carefully and painstakingly reviewed the evidence in the course of his reasons and there is no basis to disturb his findings: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[9] We do not agree with the appellants' submission that continued case management, and particularly the Chavali order, is unfair to Ms. Atas as a self-represented litigant. At the core of the court's jurisdiction under s. 140 of the Courts of Justice and pursuant to its inherent jurisdiction is the discretion to control its process and prevent the abuse of its process. Unchecked, abusive and vexatious proceedings consume scarce resources at the expense of all litigants, including other self-represented litigants who deserve ready access to justice. This is particularly true in this post-Jordan world in which all players in the judicial system, including judges, are obligated to ensure and facilitate more timely access to the courts: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 116.

[10] The appellants are mistaken in their suggestion that the application judge is functus officio and cannot continue to case manage the proceedings. While the application judge is functus as to the determination that the appellants are vexatious litigants, that doctrine does not apply to the continued case management of the underlying proceedings pursuant to both the Rules and the terms of the judgment, which includes the Chavali order.

[11] Finally, the appellants argue that the application judge's costs orders dated February 7, 2017 (in relation to the appellants' recusal motion) and October 19, 2018 (in relation to the s. 140 application) should be set aside. We disagree. The appellants have not identified any error in the application judge's exercise of his discretion as to costs that would warrant intervention from this court: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

Disposition

[12] For the foregoing reasons, the appeal is dismissed. The respondents are entitled to their costs of the appeal, fixed in the all-inclusive amount of $16,690.

"M. Tulloch J.A."

"Grant Huscroft J.A."

"A. Harvison Young J.A."