Court File and Parties

COURT FILE NO.: CV-17-3356-00ES DATE: 2023 04 06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Brian Blanks, Applicant W. Jackson, for the Applicant

- and -

Carol Elizabeth Roberts, Respondent Self-Represented

HEARD: March 28th, 2023

REASONS FOR JUDGMENT

LEMAY J

[1] The late Terrence Blanks passed away in 2011. The Courts are still administering his estate. I am case managing the Court proceedings. A trial was completed before Kumaranayake J. and judgment was granted last year. At this point, the Estate needs to be wound up and the monies being held by the Superior Court of Justice need to be paid out.

[2] As a result, I convened a hearing on March 28th, 2023 to discuss the final steps in the management of this case. The parties were invited to advise me of any issues that remained outstanding. Based on their submissions, the issues that I have considered are:

a) An error in previous endorsements where I referred to the accountant as Robert Maxwell rather than Brian Maxwell. b) Ms. Roberts’ submissions that there were mistakes that needed to be corrected in the various judgments that had been made. c) Ms. Roberts’ concern that there are references to Plaintiff and Defendant as well as Applicant and Respondent in some of the materials. d) The concern that the parties had not received a signed version of the endorsement I released on October 12th, 2022. e) Whether a direction should be provided to the accountant of the Superior Court of Justice to pay out amounts to Robert Gore and Associates and to the Canada Revenue Agency. f) The final accounting of various adjustments to the estate. g) The timetable for costs submissions for the various case management hearings.

[3] I will deal with each issue in turn.

Issue #1 - Error in the Endorsements

[4] There are a couple of occasions where I have referred to Mr. Brian Maxwell, of the accounting firm Robert Gore and Associates as Mr. Robert Maxwell. For clarity, I confirm that my references to Mr. Maxwell are to Mr. Brian Maxwell.

[5] I have issued a corrected version of the endorsements that refer to Mr. Maxwell as Robert Maxwell. These were previously provided to the parties.

Issue #2 - Alleged Errors in the Judgments

[6] Ms. Roberts argued that there were errors in the judgments that had been made in this case. She focused on two allegedly significant substantive errors. First, she claims that there were errors in the title to the house that the Estate owned. Second, she claims that we have not adequately identified the creditors of the Estate. I will set out the history of this action, Ms. Roberts’ claims of deficiencies and my disposition of them.

a) A Brief History of This Litigation

[7] The late Brian Blanks owned a property at 7382 Redstone Road n (“the Property”) in Mississauga. The property was sold by way of an Agreement of Purchase and Sale back in May of 2016. Approximately a year and a half after the sale of the Property Ms. Roberts raised a series of concerns about the sale of the Property.

[8] Ms. Roberts’ concerns have been adjudicated on several previous occasions, and included concerns of fraud on the part of Mr. Blanks and the purchasers as well as fraud on the part of the real estate agents. Those concerns have all been dismissed: see 2018 ONSC 7699.

[9] In addition, as part of the decision I released on December 21st, 2018, I invited the parties to confirm for me the issues that were in dispute. At that time, no further issues were raised about the house. The issue of whether Mr. Terrence Blanks had creditors that had not paid was also not raised at this time.

[10] There were a series of further appearances that I have detailed in my November 30th, 2020 decision (2020 ONSC 7133). Suffice it to say that, between February of 2019 and February of 2020, no issues about either creditors or the sale of the house were raised. A series of issues (trustee compensation and occupation rent key among them) were identified and a plan put in place to litigate those issues.

[11] At a case management conference on February 25th, 2020, Ms. Roberts raised, for the first time, a question about whether the creditors of the late Mr. Terrence Blanks had been properly paid. In the proceedings that followed the February 25th, 2020 proceeding, Ms. Roberts provided further registry and land titles documentation relating to the Property. Ms. Roberts again raised the issue of whether the sale of the Property was proper.

[12] In my decision of November 30th, 2020 (at para. 78), I stated the following:

[78] Second, Ms. Roberts’ request to include these documents is simply an attempt to re-litigate the issues that I already determined nearly two years ago, after an extensive hearing in which Ms. Roberts agreed that I had everything I needed to decide the issues. The parties are entitled to finality in the litigation of their case, and permitting Ms. Roberts to reopen the issue of the sale of the Redstone property at this late stage would be an abuse of process.

[13] In other words, the issue of the Property had been fully and finally determined and it would be an abuse of process to permit further litigation about it.

[14] In February of 2020, we had discussion of what should be done about Mr. Terrence Blanks’ creditors. In March of 2020, a Notice to Creditors was prepared at Ms. Roberts’ request. The content of that notice was worked out between the parties.

[15] In October of 2020, Ms. Roberts challenged the Notice to Creditors and said that it had been prepared and agreed to while she was ‘symptomatic’ with her disability. She was not, at that time, seeking any specific relief. However, in my November 30th, 2020 decision, I upheld the validity of the Notice to Creditors, stating:

[52] First, Ms. Roberts’ comment about the Notice to Creditors. Ms. Roberts has not made any specific request of the Court. However, I will address this issue as if Ms. Roberts was seeking to have the Notice to Creditors set aside and re-done. On the record before me, I am not prepared to do that for two reasons.

[53] First, unless Ms. Roberts is alleging that her symptoms prevented her from being able to understand the notice to creditors, the fact that she was “symptomatic” is not, in and of itself, a reason to have the notice set aside. On the record I have, there is no basis to conclude that Ms. Roberts’ “symptoms” prevented her from understanding the content of the Notice to Creditors or to providing an effective agreement to the content.

[54] Second, even if Ms. Roberts was unable to understand the content of the Notice to Creditors and/or agree to the content of that notice, I am of the view that the notice was more than sufficient on the facts of this case. Mr. Blanks died in 2011. The notice was being sent nearly nine years later. There is a real question as to whether the Limitations Act, 2002, S.O. 2002 c. 24 Sched “B” would be a bar to any claim that any creditor might have against Mr. Terrence Blanks or his Estate. The Notice to Creditors was sent out of an abundance of caution.

[16] In other words, in November of 2020, I concluded that the issue of the Property and the issue of the late Mr. Terrence Blanks’ creditors had been fully resolved.

b) The Alleged Deficiencies

[17] At the hearing on March 28th, 2023, Ms. Roberts advised me that there were “mistakes that needed to be corrected” in the decisions. The three areas that were identified were the title to the Property, the question of whether all of Mr. Blanks’ creditors had been identified, and the tax returns. I will set out the arguments on each issue.

[18] With respect to the title to the Property, Ms. Roberts alleged that the mistakes were as follows:

a) There were Charter violations in respect of the manner in which the property was dealt with, including violations of sections 7, 15 and 25. b) There were violations of the Income Tax Act and the Land Transfer Tax Act. c) The title to the Property was not clear because it might have been a ground lease pursuant to Treaties 13 and 14. Ms. Roberts advises me that Treaty 13 was signed in August of 1806.

[19] With respect to the creditors, Ms. Roberts alleged that we might have failed to identify some of them. No specific creditors were named.

[20] With respect to the tax returns, various deficiencies were alleged, including the rate of tax and the manner in which amount of tax owing was calculated. No basis for these challenges was set out.

c) The Disposition of the Deficiencies

[21] I begin with the tax returns. I rejected Ms. Roberts’ argument that there were deficiencies in the tax returns for two reasons:

a) I had set out a process for the parties to object to the contents of the tax returns. Ms. Roberts did not identify any specific issues with the tax returns in the time period that I had set. b) If there are errors in the tax returns, then those errors can be identified by the Canada Revenue Agency.

[22] In addition to those two reasons, I would note that Mr. Terrence Blanks passed away almost twelve (12) years ago. This Estate needs to be wound up. I would also note that this Estate is actually a very simple one to administer. The bulk of the Estate’s assets are money that has been in a trust account or paid into Court since May of 2016.

[23] This brings me to the issues of the Property and the creditors. During the course of the hearing on March 28th, 2023, I identified the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 as being applicable to these circumstances. More specifically, after considerable discussion, I advised Ms. Roberts that I viewed her attempts to relitigate both of these issues as an abuse of process.

[24] In the Toronto decision, Arbour J. stated the following (at paras. 37 and 38):

37 In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The 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. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]

As Goudge J.A.’s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. (See, for example, Franco v. White (2001), 53 O.R. (3d) 391 (C.A.); Bomac Construction Ltd. v. Stevenson, [1986] 5 W.W.R. 21 (Sask. C.A.); and Bjarnarson v. Government of Manitoba (1987), 38 D.L.R. (4th) 32 (Man. Q.B.), aff’d (1987), 21 C.P.C. (2d) 302 (Man. C.A.).) This has resulted in some criticism, on the ground that the doctrine of abuse of process by relitigation is in effect non-mutual issue estoppel by another name without the important qualifications recognized by the American courts as part and parcel of the general doctrine of non-mutual issue estoppel (Watson, supra, at pp. 624-25).

38 It is true that the doctrine of abuse of process has been extended beyond the strict parameters of res judicata while borrowing much of its rationales and some of its constraints. It is said to be more of an adjunct doctrine, defined in reaction to the settled rules of issue estoppel and cause of action estoppel, than an independent one (Lange, supra, at p. 344). The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel (Lange, supra, at pp. 347-48):

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

[25] The issues of the Property and of the potential creditors of the Estate have been litigated. Re-litigating those issues would be an abuse of process as described by Arbour J. and it should not be permitted.

[26] I also note that the Limitations Act, 2002, S.O. 2002, c. 24 Sched “B” contains limitations periods that would likely bar both any claim against the Estate for the sale of the Property and any claim that any creditor might make against the Estate. This is a further reason to preclude Ms. Roberts from litigating these issues.

[27] Finally, I would note (and repeat) my conclusion from my November 30th, 2020 decision that Ms. Roberts raised the issue of the sale of the Redstone property and the issue of Mr. Terrence Blanks’ creditors in part to delay the trial of the action. In addition to being an abuse of process, I conclude that Ms. Roberts has again raised these concerns in part to delay the final administration of the Estate.

[28] For these reasons, I summarily dismissed Ms. Roberts’ request to re-open these issues. If Ms. Roberts wishes to pursue these issues, she is welcome to seek relief in another forum.

Issues #3 and #4

[29] These issues both deal with small points in respect of the endorsements that I have released. First, the fact that different terms may have been used at different points in this proceeding does not change either the outcome or the legal identity of the parties. Second, my records show that a signed endorsement was released on October 12th, 2022. I have provided the parties with a further copy of that endorsement.

Issue #5 - Directions to the Accountant of the Superior Court of Justice

[30] In his submissions, Mr. Jackson sought to have me make two directions to the Accountant of the Superior Court of Justice. First, a direction to pay the sum of $2,305.20 to Robert Gore and Associates on account of the fees to complete the tax returns for the Estate. The accountant will not file the tax returns until that bill is paid. As a result, I am ordering the money to be released immediately.

[31] Second, a direction was sought to pay Canada Revenue Agency the sum of $11,326.81 on account of the taxes owing on the various returns. The Estate has not filed tax returns since 2016. This money has to be paid in order to facilitate the finalizing of the Estate’s affairs. As a result, I am also ordering the money to be released immediately.

[32] I was advised that there may be a need for further payments to CRA, both on account of a late filing penalty and on account of the 2023 tax return. In respect of the penalty amount, either party may pay the late filing and/or other fees charged in order to ensure that interest does not continue to accrue. We will address the 2023 tax return at the next appearance.

[33] If there are any issues in having the monies paid promptly, my judicial assistant may be contacted in order to schedule an appearance before me.

Issue #6 - Final Adjustments to the Estate

[34] Mr. Jackson provided me with information about the adjustments that had to be made to the Estate based on past events. In addition to the fees payable to Robert Gore and Associates and the taxes payable, there are the following adjustments:

a) Mr. Blanks owes the Estate $1,800.00 on account of the ring that he purchased in the sealed bid auction. b) Ms. Roberts owes the Estate $18,500.00 on account of the Rolex watch that she purchased in the sealed bid auction. c) Mr. Blanks owes the Estate $52,300.00 on account of the decision of Kumaranayake J. d) Ms. Roberts owes the Estate $29,000.00 on account of the decision of Kumaranayake J.

[35] There may also be final adjustments on account of additional interest owing by the Superior Court of Justice as well as penalties and arrears owing to Canada Revenue Agency. We will do a final accounting after the tax returns are assessed. However, I confirm that the adjustments set out above are the only ones other than CRA, payments to Robert Gore and Associates and interest earned on the monies deposited with the Accountant of the Superior Court of Justice that will be permitted on the Estate.

[36] I had indicated that I would provide a calculation of the adjustments to the parties. Given that there are still more small adjustments to be made, I have decided to defer that calculation until after the next appearance.

Issue #7 - Costs Submissions

[37] I originally became responsible for case managing this matter in October of 2018. I released my first detailed and substantive endorsement in this matter on December 21st, 2018 (see 2018 ONSC 7699). In that endorsement, I noted that the costs for the appearance before me in October of 2018, as well as previous appearances before Bloom J. and Shaw J. were reserved.

[38] Since that endorsement, I have reserved all of the costs for the various case management appearances before me. It is now time to fix those costs. To that end, I have set the timetable for costs submissions as follows:

a) Each party may serve and file costs submissions not to exceed seven (7) single-spaced pages, exclusive of bills of costs, offers to settle and case-law by no later than April 24th, 2023. b) Each party may serve and file reply costs submissions not to exceed two (2) single-spaced pages by no later than May 4th, 2023. c) For clarity, filing means that the costs submissions must be uploaded to CaseLines and provided to my judicial assistant. d) There are to be no extensions to the time limits for costs submissions, even on consent, without my leave. As I explained to Ms. Roberts, these deadlines take into account the fact that she is self-represented and her personal circumstances.

[39] The costs submissions should address the issue of who should pay the costs, including whether the Estate should bear the costs of the litigation or whether an individual party or individual parties should bear the costs of the litigation.

Conclusion and Orders

[40] For the foregoing reasons, I am ordering as follows:

a) Ms. Roberts concerns about deficiencies in the judgments are dismissed except for the amendment of Mr. Maxwell’s first name from Robert to Brian. b) The accountant of the Superior Court of Justice is directed to pay the sum of $2,305.20 to the accounting firm Robert Gore and Associates on account of fees incurred to prepare the tax returns of the Estate. c) The accountant of the Superior Court of Justice is directed to pay the Canada Revenue Agency the sum of $11,326.81 on account of the taxes that have been calculated as owing. d) The parties are to provide costs submissions on the schedule as set out herein.

[41] I remain seized of this matter. A further case conference will be held the week of June 5th, 2023 at 9:15 a.m. The parties are to advise as to their availability for dates that week for an in person hearing. As I indicated to the parties, my expectation is that the last tax return that will be filed for this Estate is the 2023 return. As a result, the purpose of the appearance in June will be to make sure that matters are moving forward. The parties are asked to have Mr. Maxwell provide an update prior to that hearing. The parties are also direct to file their calculations on adjustments.

[42] The costs of the appearance on March 28th, 2023 are to be dealt with as part of the parties’ costs submissions.

LEMAY J Released: April 6, 2023